PUBLISHED OPINION
Case No.: 96‑1143‑FT
For Complete Title †Petition
to review Filed
of Case, see attached opinion
Petition
to review filed by Plaintiff‑Respondent
JUDGES: Cane,
P.J., LaRocque Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of
defendant-appellant, the cause was submitted on the brief of Bruce P.
Anderson and Anderson & Schneider of Balsam Lake.
Respondent
ATTORNEYSOn behalf of
plaintiff-respondent, the cause was submitted on the brief of Matthew A.
Biegert and Doar, Drill & Skow, S.C. of New Richmond.
COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 19, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1143-FT
STATE
OF WISCONSIN IN
COURT OF APPEALS
GERALD T.
CARROLL, JANICE A.
CARROLL AND ALLEN D.
BUNE,†
Plaintiffs-Respondents,
v.
TOWN OF BALSAM LAKE,
Defendant-Appellant.
APPEAL from judgment of
the circuit court for Polk County:
ROBERT H. RASMUSSEN, Judge. Reversed.
Before Cane, P.J., LaRocque
and Myse, JJ.
LaROCQUE, J. The Town of Balsam Lake appeals a judgment
ordering certain property in Polk County to be discontinued as a public
highway, and granting the adjoining landowners quiet title.[1] The Town argues that the trial court
misapplied § 80.32 Stats. We agree and therefore reverse.
The relevant facts are
not in dispute. The landowners
commenced an action seeking title to certain property through operation of §
80.32, Stats.[2] The property in question consists of a
portion of a platted road laid out in 1949 that runs from the end of a traveled
section of the road to Deer Lake. The landowners
are the adjoining property owners on either side of the property.
The record reflects that
the landowners served the Town with certain requests for admission, which the
Town failed to answer. Under such
circumstances, the facts alleged in the request are deemed admitted. Section 804.11(1)(b), Stats.
Thus, the following facts were accepted by the trial court:
1. The portion of the road [at
issue in this case] was not ... opened, traveled, worked, maintained or
repaired within 4 years from the time it was laid out.
2. The road has been entirely
abandoned as a route of travel for the past 5 years prior to the date of the
filing of Plaintiffs' claim.
3. There has been no
expenditure of funds on the road for the past 5 years prior to the date of the
filing of Plaintiffs' claim.
4. There
has been no resolution or ordinance of the Town of Balsam Lake or committee
thereof to discontinue the road.
Because the case
involves the application of § 80.32, Stats.,
to an undisputed set of facts, we review the decision of the trial court de
novo. See Local No. 695 v. LIRC,
154 Wis.2d 75, 82, 452 N.W.2d 368, 371 (1990).
Our primary purpose when interpreting a statute is to give effect to the
legislature's intent. Riverwood
Park, Inc. v. Central Ready-Mixed Concrete, Inc., 195 Wis.2d 821, 827,
536 N.W.2d 722, 724 (Ct. App. 1995).
Section 80.32(2), Stats., declares a public highway to be
discontinued in two situations.[3] The first situation occurs when the highway
has not been opened, traveled or worked within four years from the time it was
laid out. The second situation occurs
when the highway has been "entirely abandoned as a route of travel"
and no highway funds have been expended on it for a period of five years. The trial court found both of these
situations to be present.
Section 80.32, Stats., codifies the common law right
of reversion. Heise v. Village of
Pewaukee, 92 Wis.2d 333, 346, 285 N.W.2d 859, 865 (1979). When a statute merely codifies existing
common law, cases interpreting the common law are persuasive in interpreting
that section. Such a case exists
here. See Reilly v. City
of Racine, 51 Wis. 526, 8 N.W. 417 (1881). Non-use of a public highway does not operate to discontinue
property used as a public highway until such time as the property is required
for actual public use, but is not in fact opened for such use. City of Jefferson v. Eiffler,
16 Wis.2d 123, 113 N.W.2d 834 (1962).
No abandonment will be found absent a manifest abuse of discretion by
the public authority in charge in refusing to open the property. Id.
In Reilly,
our supreme court considered property that, although laid out, was not yet
required for public use. The court held
that "[u]ntil the time arrives when any street or part of a street is
required for actual public use ... no mere non-user, of any length of
time, will operate as an abandonment of it ...." Id. at 529, 8 N.W. at 418 (emphasis in
original). The stated reason for this
rule is to allow municipalities a "chance of growth commensurate with the
public necessity, which will not be lost by mere lapse of time ...." Id. at 530, 8 N.W. at 418; see
also Klinkert v. City of Racine, 177 Wis. 200, 188 N.W. 72
(1922). Thus, only "[a]fter such
time arrives when the public use requires it, and the public authorities may be
properly called upon to open a street or part of a street to the public use,
then negligence and unreasonable delay in opening the same may work an
abandonment of it by non-user."
Reilly, 51 Wis. at 530, 8 N.W. at 418 (emphasis in
original).
The Reilly
holding was reaffirmed in Jefferson, involving property that had
been laid out by the municipality but whose use was not yet required by public
demand. The court stressed that:
The
common council is the judge of the public necessity for opening up its streets
and alleys and as to whether any public convenience or use will be subserved
thereby. The public use is the dominant
interest, and the public authorities are the exclusive judges when and to what
extent the street shall be improved.
Jefferson, 8
N.W. at 132, 113 N.W.2d at 839 (footnote omitted). Thus, only when the municipality acts with a "manifest abuse
of discretion" by failing to open a public street when public use so
requires will the street cease to be a public highway. Id.
The landowners argued to
the trial court that because the facts contained in their request to admit are
established, the contested property ceases to be a public highway and the
property shall be divided equally among the landowners pursuant to § 80.32(3), Stats.
The Town asserted that the case law interpreting § 80.32 declares that
that section does not operate to discontinue a highway until public use
requires the opening of the highway but the highway is not in fact opened. The Town presented evidence to support its
claim that public use of Deer Lake had not yet expanded to the point where
opening the platted road was required.
The trial court applied the Town's admissions to § 80.32, Stats., and entered judgment for the
landowners. The Town now appeals.
We conclude that Reilly
and Jefferson are controlling.
We recognize that the rule espoused in those cases is not explicitly
contained in the language of § 80.32, Stats. However, both cases have been cited with
approval by our supreme court when interpreting that section. See Heise, 92 Wis.2d at
351-52, 285 N.W.2d at 867 ("the Reilly rationale
applies"). This court is bound by
the decisions of the Wisconsin Supreme Court.
State v. Clark, 179 Wis.2d 484, 493, 507 N.W.2d 172, 175
(Ct. App. 1993).
Furthermore, the general
rule is that the legislature is deemed to know the law and acquiesces in a
court's statutory interpretation if it does not change the statute. Salerno v. John Oster Mfg. Co.,
37 Wis.2d 433, 441, 155 N.W.2d 66, 70 (1967).
"Although the presumption of legislative adoption or ratification
of a judicial construction of a statute is entitled to less weight when the
court's construction is followed by nearly complete inaction on the part of the
legislature with respect to the statute construed," Reiter v. Dyken,
95 Wis.2d 461, 471, 290 N.W.2d 510, 515-16 (1980), this rule does not apply here. Reilly was issued in 1881 and Klinkert
in 1922. The legislature has amended §
80.32, Stats., and its
predecessor statute numerous times since those decisions, the last time in
1945. However, the legislature has not
amended that section in any manner that could be construed as an attempt to
modify those holdings. The legislature
is therefore deemed to have intended the construction of § 80.32, Stats., as interpreted by Reilly,
Klinkert, and Jefferson.
We therefore hold that
reversion does not occur under § 80.32(2), Stats.,
until the property is required for public use, and public authority in charge
acts with a manifest abuse of discretion in refusing to open the property. The Town presented the uncontroverted
testimony of David Berglund, chairman of the Town of Balsam Lake, who testified
that the Town had to that date no need for public access to Deer Lake. Berglund observed that there already exists
public access to Deer Lake from property located in St. Croix Township and that
the Town kept the disputed property "in case it is needed in the
future" for public access.
The landowners argue
that both Reilly and Jefferson are inapplicable
because a private entity platted and conveyed the land to the Town of Balsam
Lake. They cite no authority to support
their assertion, and we consider it a distinction without a difference. Further, Klinkert involved a
private plat accepted by the municipality and held:
The
acceptance of a plat by the city does not require that it shall open all the
streets and alleys for immediate use, and failure to use or occupy the same
until the necessity arises does not abandon the public right.
Id. at
204, 188 N.W. at 73.
By the Court.—Judgment
reversed.
[1] This is an expedited appeal under Rule 809.17, Stats. This opinion will refer to the adjoining landowners, Gerald T. Carroll, Janice A. Carroll and Allen D. Bune, collectively, as the landowners.
[2] Section 80.32, Stats., provides in part:
Discontinuance of highways; reversion of title.
(1) Any unrecorded
road or any part thereof which has become or is in the process of becoming a
public highway by user in any town may be discontinued in the manner
hereinbefore provided. Any proceedings
taken therefor shall not be evidence of the acceptance at any time by the town
of such road or any part thereof.
(2) Every highway
shall cease to be a public highway at the expiration of 4 years from the time
it was laid out, except such parts thereof as shall have been opened, traveled
or worked within such time, and any highway which shall have been entirely
abandoned as a route of travel, and on which no highway funds have been
expended for 5 years, shall be considered discontinued.
(3) When any highway shall be discontinued the same shall belong to the owner or owners of the adjoining lands; if it shall be located between the lands of different owners it shall be annexed to the lots to which it originally belonged if that can be ascertained; if not it shall be equally divided between the owners of the lands on each side thereof.
[3] The parties do not discuss whether the property at issue in this case constitutes a public highway within the meaning of § 80.32, Stats. While ch. 80 does not define that term, § 990.01(12), Stats., defines "highway" as including "all public ways and thoroughfares and all bridges upon the same." This definition applies to § 80.32 unless such a definition "would produce a result inconsistent with the manifest intent of the legislature." Section 990.01, Stats. We conclude that this definition applies to § 80.32.