Wisconsin Power & Light Co. v. Columbia County

Decision Date07 January 1958
Citation87 N.W.2d 279,3 Wis.2d 1
PartiesWISCONSIN POWER & LIGHT CO., a Wis. Corporation, Appellant, v. COLUMBIA COUNTY, a Municipal Corporation, Respondent.
CourtWisconsin Supreme Court

Schubring, Ryan, Petersen & Sutherland, Madison, for appellant.

Howard Latton, Dist. Atty., Arno J. Miller, Asst. Dist. Atty., Portage, for respondent.

WINGERT, Justice.

Appellant contends that the facts stated in the complaint constitute a cause of action on each of three grounds: (1) a taking of plaintiff's property for public use, for which plaintiff is entitled to just compensation under art. I, sec. 13, Wis.Const., (2) a trespass on plaintiff's property, and (3) an actionable nuisance. We are of opinion, as was the learned circuit judge, that no cause of action is stated on any theory.

We note at the outset that the complaint does not allege that defendant intended to invade or affect plaintiff's property, nor that defendant had any reason to anticipate that the deposit of road material on the swampy ground would damage plaintiff's tower, nor that defendant was negligent in any respect. The liberal construction to which a pleading is entitled on demurrer does not warrant reading those elements into the complaint, and hence we must assume they did not exist.

(1) Taking for public use. It is not asserted that defendant removed, seized or touched the tower. In substance the allegation is only that inanimate forces set in motion by defendant some distance from the tower eventually damaged it to an extent which destroyed its utility. Neither is it alleged that plaintiff owned the land which was dislocated; and while we may infer that the tower was there lawfully, there is no ground for attributing to plaintiff any interest in the land other than a mere easement or license to maintain the tower thereon.

The tower was not taken for public use in the usual sense of those words. Neither title nor possession was appropriated. The tower was not put to use in connection with the highway project. It was merely damaged by accident, to an extent practically equivalent to destruction.

Land may be taken for public purposes, within the meaning of the constitutional provision, without actual occupancy or seizure by the taker.

'The courts have held that the deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking. Governmental action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking.' United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed. 311.

Thus land may be 'taken' by flooding it with water impounded by a dam, Arimond v. Green Bay and Mississippi Canal Co., 31 Wis. 316, 335, Benka v. Consolidated Water Power Co., 198 Wis. 472, 474, 224 N.W. 718, or by covering it with a permanent embankment of earth, Olen v. Waupaca County, 238 Wis. 442, 449, 300 N.W. 178, or by removing lateral support by reducing the grade of a street so that the adjoining owner's soil slides down into the street. Dahlman v. City of Milwaukee, 131 Wis. 427, 438-440, 110 N.W. 479, 111 N.W. 675. Even where the owner is not excluded from the surface of the land, a 'taking' may result from raising the water level of a river so that the resulting higher level of percolating water so moistens the soil as to destroy its agricultural value. Price v. Marinette & M. P. Co., 197 Wis. 25, 27, 221 N.W. 381; United States v. Kansas City Life Ins. Co., 339 U.S. 799, 810, 70 S.Ct. 885, 94 L.Ed. 1277. 1

Personalty as well as land is 'property' within the protection of the constitutional provision. Thus destruction of fixtures and equipment in a building, where incidental to occupancy of the building by the government, is tantamount to a taking of such fixtures and equipment, whether they be considered as part of the real estate or as personal property. United States v. General Motors Corp., 323 U.S. 373, 384, 65 S.Ct. 357, 89 L.Ed. 311.

On the other hand mere consequential damage to property resulting from governmental action is not a taking thereof. Art. I, sec. 13, like its equivalent in the federal constitution, 'does not undertake * * * to socialize all losses, but those only which result from a taking of property.' United States v. Willow River Co., 324 U.S. 499, 502, 65 S.Ct. 761, 764. Thus impairment of the value of plaintiff's farm by odors from a municipal sewerage disposal plant is not a taking. Hasslinger v. Village of Hartland, 234 Wis. 201, 206, 290 N.W. 647, nor is partial obstruction of ingress to and egress from plaintiff's property, and the view therefrom, by a municipal shelter a taking of the property. Randall v. City of Milwaukee, 212 Wis. 374, 382-383, 249 N.W. 73. See also State ex rel. Saveland P. H. Corp. v. Wieland, 269 Wis. 262, 267, 69 N.W.2d 217. In this connection it is important to observe that while the constitutions of many states provide expressly that private property shall not be taken or damaged for public use without just compensation (2 Nichols on Eminent Domain, 3 ed. sec. 6.44, p. 324), that of Wisconsin provides only that 'the property of no person shall be taken for public use without just compensation therefor' (art. I, sec. 13, Wis.Const.), without mention of damage. Thus decisions from states having the broader constitutional provisions are not pertinent here, where there is in issue only damage, without appropriation to the public purpose. Randall v. City of Milwaukee, 212 Wis. 374, 383, 249 N.W. 73.

While as pointed out above, destruction of property or such damage as to render it worthless may be a taking of the property, depending on the circumstances, it is clear that not every such injury to, or even destruction of property by a public agency is a taking within the meaning of the constitutional provision. For example, an automobile damaged in an accidental collision with a municipal, state or federal vehicle would not be considered as 'taken' for public use. The owner might be entitled to recover his damages in a tort action, but not in eminent domain on the theory of a constitutional taking for public use.

It is not presently necessary nor desirable to try to locate precisely the line between situations on the one hand where damage to property constitutes a taking for public use for which the constitution requires just compensation to be paid, and those other situations in which mere damage to property by a governmental agency, even though approaching destruction, is not a taking in the constitutional sense. Suffice it to say that in our opinion the present case falls well on that side of the line, whatever its exact location, on which liability is not imposed by the constitutional provision.

In reaching this conclusion we give weight to the facts, which we may assume to exist, that the tower had no utility, direct or indirect, to the highway project, that the county did not need or desire the tower or the land on which it rested and did not intend to acquire or affect either the tower or the land, that the public obtained no benefit from injuring it, that the county had no reason to anticipate that damage would result from its acts, and that the injury to the tower was purely accidental. Whatever might be the significance of any of these facts standing alone, collectively they negative a taking in the constitutional sense. We think that for presently pertinent purposes, the case is substantially the same as if one of defendant's trucks hauling the sand and gravel had accidentally collided with and demolished one of the plaintiff's automobiles on the highway. In both cases there is damage, for which the county may or may not be liable in tort, depending on such factors as negligence and sovereign immunity; but plaintiff's property is not taken for publis use within the meaning of art. I, sec. 13, Wis.Const.

(2) Trespass. If plaintiff's tower be considered as personal property, the complaint fails to allege an actionable trespass because it does not aver an intent on the part of the defendant or its servants to interfere with the tower. An intentional interference with the possession or physical condition of a chattel in the possession of another, without justification, is a trespass. Intention to intermeddle with the chattel is an essential element of the trespass. Prosser, Law of Torts, 2 ed., 64-66, 1 Harper & James, Law of Torts, 109-110; Rest. 1 Torts sec. 218, comment b. The intent required for trespass is not merely an intention to do the act which brings about the injury, but rather an intent to act with reference to the chattel.

'Such an intention is present when an act is done for the purpose of using or otherwise intermeddling with a chattel or with knowledge that such an intermeddling will, to a substantial certainty, result from the act.' Rest. 1 Torts, sec. 218, comment a; Rest. 4 Torts, sec. 825, 1 Harper & James, op. cit. 109.

In the present case, defendant's servants undoubtedly intended to deposit the road materials on the site of the roadbed; but it is not alleged, and we certainly cannot presume, that they intended to interfere with plaintiff's tower or to set in motion a force which would do so. In the absence of some allegation to that effect, we cannot infer that they should have anticipated that the dumping of sand and gravel would, through the peculiar workings of the subsurface swamp soil, exert irresistible presure against the tower foundation. There was no element of common knowledge that the result would follow the action, such as is present where an embankment is built so close to plaintiff's land, and so steep and high, that the forces of gravity or of rainfall are quite certain to cause the earth to slide or be washed over plaintiff's land. See Rest. 1 Torts, sec. 158, comment h. In essence the case is the same as if one...

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