Town of Menasha v. City of Menasha (Banta Annexation)
| Decision Date | 03 June 1969 |
| Docket Number | 247,Nos. 246,s. 246 |
| Citation | 168 N.W.2d 161,42 Wis.2d 719 |
| Parties | TOWN OF MENASHA, Appellant, v. CITY OF MENASHA, Respondent. (BANTA ANNEXATION). TOWN OF MENASHA, Appellant, v. CITY OF MENASHA, Respondent. (SCHWARZBAUER ANNEXATION). |
| Court | Wisconsin Supreme Court |
Actions for declaratory relief by the town of Menasha against the city of Menasha to have two annexation proceedings declared illegal.
The facts are relatively undisputed. Two separate and unrelated ordinances are involved. The actions were consolidated for trial. Since the cases involve separate issues and separate factual settings, they will be considered separately in this opinion. The first case is referred to as the 'Schwarzbauer Annexation.'
On August 5, 1965, the city of Menasha published a 'notice of intent' to circulate an annexation petition. 1 On August 7, 1965, the city published a second 'notice of intent' which described a smaller area. On August 14, 1965, the city published a third 'notice of intent' which again reduced the area proposed for annexation.
An August 24, 1965, a petition for annexation of the territory described in the third 'notice of intent' was circulated among the owners and electors in the area proposed for annexation. Upon being executed the petition was duly filed with the city clerk.
The area involved in the petition contained approximately 183 acres which, at the time of the petition, was within the boundaries of the town of Menasha.
On September 11, 1965, the city of Menasha published an ordinance annexing the area in question. The town of Menasha commenced a declaratory judgment action, challenging the legality of the annexation proceedings. The trial court held the annexation ordinance valid. The town of Menasha appeals from the judgment sustaining the validity of the ordinance.
Additional facts are stated in the opinion.
George M. St. Peter, Steven P. Sager, Fond du Lac, for appellant, St. Peter & Hauer, Fond du Lac, of counsel.
Richard J. Steffens, City Atty., Menasha, for respondent, Brady, Tyrrell, Cotter & Cutler, Milwaukee, of counsel.
The town of Menasha contends the Schwarzbauer annexation is void for the following reasons:
(1) A prior annexation proceeding was commenced;
(2) A proper description of the property to be annexed was not served on the state of Wisconsin (3) The annexation petition was not signed by a sufficient number of property owners; and
(4) The city used improper pressure in promoting the annexation.
It was noted in the facts that the city of Menasha actually started three annexation proceedings involving the same territory. After publishing the first and second 'notices of intent,' further proceedings were apparently abandoned by the city. No petition for annexation was ever circulated involving the area described in the first and second 'notices of intent.'
The town complains that the publishing of the first 'notice of intent' invalidated a subsequent annexation proceeding. In support of its contention, the town cites Village of Brown Deer v. City of Milwaukee (1956) 274 Wis. 50, 79 N.W.2d 340.
The Brown Deer Case itself contains clear language which rejects the contention of the town.
'It is the established law of this state that in case of conflict between competing annexations, or between an annexation and a proceeding for the incorporation of a city or village, the proceeding first instituted has precedence, and the later one must yield. * * *' Village of Brown Deer v. City of Milwaukee, supra, at page 58, 79 N.W.2d at page 344. (Emphasis supplied.)
There was no competing annexation proceeding involved here. No other body was trying to annex this territory in opposition to the city of Menasha. All three notices of intent were published by the same party.
'* * * The two proceedings seek the same end and there is no conflict between different jurisdictions whereby one jurisdiction by an earlier start has priority over the attempt of a second jurisdiction. * * *' Town of Greenfield v. City of Milwaukee (1956), 273 Wis. 484, 488, 78 N.W.2d 909, 911.
The first and second 'notices of intent' were abandoned when the city failed to circulate petitions pursuant to such notices. Sec. 66.021(4)(c), Stats., requires the circulation of the petition for annexation not less than ten days or more than 20 days after publication of the notice.
We think the trial court was correct in rejecting this portion of the town's argument.
The town contends the city did not comply with sec. 66.021(11)(a), Stats., which provides:
'No annexation proceeding within a county having a population of 50,000 or more * * * shall be valid unless the person causing a notice of annexation to be published * * * shall within 5 days of the publication mail a copy of the notice and a scale map of the proposed annexation to the clerk of each municipality affected and the * * * head of the planning function in the department of local affairs and development. * * *'
The annexation proceeding in this case was commenced on August 14, 1965. On August 17, 1965, the city attorney of Menasha wrote to the state planning director. The affidavit of the city attorney which is in the record states that included with the letter was a scale map of the area proposed for annexation and a copy of the 'notice of intent' which was published in the official city newspaper.
On August 19, 1965, the state planning director wrote to the city attorney of Menasha stating that he had received a scale map of the proposed annexation, but that he had not received 'a detailed legal description' 2 of the area to be annexed. The city attorney responded that the required description had been sent 'but on the chance it was misplaced I am forwarding another.'
The town and city both agree that the state planning director had the scale map and the detailed legal description after August 23, 1965. The town maintains, however, that sec. 66.021(11)(a), Stats., required the necessary documents to be mailed by August 19. It is urged that the failure to comply with the statutes invalidiated the annexation.
The trial court made a specific finding of fact that the city complied with the notice requirements of sec. 66.021:
'If a finding of the trial court is not contrary to the great weight and clear preponderance of the evidence is must be sustained. * * *' Town of Greenfield v. City of Milwaukee, supra, at page 485, 78 N.W.2d at page 910.
The affidavit of the city attorney supports the finding of the trial court. Obviously, the trial court chose to rely on the evidence that the legal description was sent.
The finding of the trial court is not against the great weight and clear preponderance of the evidence, and it must be sustained.
This is by far the most serious contention of the town, and it is the proposition which the briefs are mainly directed to.
The Schwarzbauer annexation was a proceeding pursuant to sec. 66.021(2)(a), Stats. That statute provides that the petition for annexation must be signed by 'the owners of one-half of the land in area within such territory.'
Three experts testified regarding the acreage involved in the petition and the acreage owned by the signers of the petition for annexation. Mr. Robert Poss testified on behalf of the city that 183.52 acres were involved in the annexation petition, that the signers of the petition owned 92.99 acres, and that the non-signers owned 90.53 acres. Mr. Robert Heaslett testified on behalf of the city that 183.6952 acres were involved in the annexation petition and that the signers owned 93.0824 acres. Mr. Robert McMahon testified on behalf of the town that 183.61 acres were involved in the annexation petition, that the signers owned 91.23 acres and that the non-signers owned 92.38 acres.
There were 2.24 acres within the area described in the annexation petition which were being used as a state highway. The city experts included that highway acreage with the signers while the town expert included that area with the non-signers. The highway (State Highway 47) abuts the property of one of the signers of the annexation petition, Mr. Carl Schwarzbauer.
The city contends that the state only has a highway easement, and that Mr. Schwarbauer is the 'owner' of the 2.24 acres as that term has been defined in sec. 66.021(1)(a), Stats. 3
The town argues that Mr. Schwartzbauer was not the owner in possession in fee simple as required by sec. 66.021(1)(a) and that Mr. Schwarbauer only had a reversionary interest in the highway property. We do not agree with this contention. An easement is not an estate in land:
'* * * An easement has been defined in Wisconsin as a liberty, privilege or advantage in lands, without profit, and existing distinct from the ownership of the soil. * * * an easement differs from a fee or a limited fee in that case of an easement title does not pass but only a right to use or privilege in the land of another. * * *' Colson v. Salzman (1956), 272 Wis. 397, 401, 75 N.W.2d 421, 423.
An estate in possession in fee simple is not reduced to a lesser estate by the granting of a highway easement.
In any event the trial court excluded the 2.24 acres of highway from the total of the territory to be annexed (for example, he did not give it to either the signers or the non-signers). According to the figures of Robert Poss that left 90.75 acres for the signers and 90.53 for the non-signers. Using Robert Heaslett's figures, the signers would then have 90.8424 acres and the non-signers would have 90.6128 acres. According to Robert McMahon's computations, the signers then owned 91.23 acres and the non-signers owned 90.14 acres. In each case the petitioners always owned more than 50 percent of the property in question. The specific finding of the trial court was that 'more than 50% of the property involved in the annexation was owned by...
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