COURT OF APPEALS DECISION DATED AND FILED June 9, 2010 David
R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
Appeal Nos. |
2009AP326 2009AP327 |
2007CV3481 |
||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT II |
|||
|
|
|||
|
|
|||
No. 2009AP326 Craig S. Husar and Danielle M. Husar,
Plaintiffs-Appellants, v. City of
Defendant-Respondent. ________________________________ No. 2009AP327 Robert P. Marsh and Karen L. Marsh,
Plaintiffs-Appellants, v. City of
Defendant-Respondent. |
||||
|
|
|||
APPEAL
from a judgment of the circuit court for
Before
Neubauer, P.J.,
¶1 PER CURIAM. In this
consolidated appeal, Craig S. and Danielle M. Husar and Robert P. and Karen L. Marsh
(collectively “the appellants”) appeal from a trial court judgment in favor of
the City of
BACKGROUND
¶2 The underlying facts are undisputed. The appellants own separate residential
properties located along the west side of
¶3 On October 23, 2007, the City extended jurisdictional offers to both the Husars and the Marshes. The “legal description” attached to the Marshes’ offer describes the “permanent limited easement” to be taken by the City
[f]or the right to construct and maintain a driveway, including for such purpose the right to operate the necessary equipment thereon and the right of ingress and egress as long as required for such public purpose, including the right to preserve, protect, remove or plant thereon any vegetation that the highway authorities may deem necessary or desirable, but without prejudice to the owner’s right to make or construct improvements on said lands or to flatten the slopes, providing said activities will not impair or otherwise adversely affect the highway facilities within the right of way, in and to the following tract of land in Waukesha County ….
The jurisdictional offers advised the Husars and the Marshes that each had twenty days in which to accept the offer or, if refused, forty days in which to “commence a court action to contest the right of condemnation as provided in [Wis. Stat. §] 32.05(5) ….”
¶4 On November 28, 2007, the appellants filed separate actions against the City, which were later consolidated. The appellants challenged the adequacy of the jurisdictional offer, alleging as to each of their properties that “the taking results in a loss of access to the property, effectively landlocking it, and an attempted solution to the problem constituting an easement over an abutting neighbor’s property, to a different road located to the West of the property” violates the City’s ordinances, creates an uneconomic remnant, and constitutes a “total taking.” The City denied that its actions had resulted in a total taking or uneconomic remnants and requested that the complaint be dismissed on the merits. The trial court denied the City’s request based on its determination that the complaint “stated appropriate causes of action” under Wis. Stat. § 32.05(5).
¶5 The matter proceeded to a court trial on July 1, 2008. The court heard testimony from the city
engineer, two appraisers, and the appellants,
Craig Husar and Robert Marsh. Following
additional briefing and oral arguments, the trial court issued its oral ruling
on October 8, 2008, and later entered judgment in favor of the City. The Husars and Marshes appeal.
DISCUSSION
¶6 A property owner is authorized to contest a condemnor’s right to condemn under Wis. Stat. § 32.06, and this authorization includes the right to contest the proposed taking because it results in an uneconomic remnant. Waller v. American Transmission Co., 2009 WI App 172, ¶17, 322 Wis. 2d 255, 776 N.W.2d 612. An uneconomic remnant is defined by § 32.06(3m):
In this section, “uneconomic remnant” means the property remaining after a partial taking of property, if the property remaining is of such size, shape or condition as to be of little value or of substantially impaired economic viability. If acquisition of only part of a property would leave its owner with an uneconomic remnant, the condemnor shall offer to acquire the remnant concurrently and may acquire it by purchase or by condemnation if the owner consents.
This case requires us to
interpret and apply condemnation statutes to undisputed or found facts, thus
presenting questions of law for our de novo review. See Warehouse
II, LLC v. DOT, 2006 WI 62, ¶4, 291
¶7 Here, the appellants do not challenge the necessity of the taking. Rather, they argue that the City should have condemned the entirety of their properties. Their arguments as to this assertion are three fold. First, the appellants contend that the City’s taking of a permanent limited easement across the Marshes’ property for the Husars’ use is an illegal and improper taking for private use, and without the easement they are landlocked. Next, they argue that the condition of their properties after the taking will violate the City’s ordinances requiring lots to abut public streets and meet certain size requirements. Third, the appellants contend that, even if the easement is valid, the properties’ economic viability is substantially impaired so as to create uneconomic remnants.
¶8 The disposition of this appeal focuses on the appellants’
first argument, which is premised on the easement being private, not
public. However, the legal description
of the permanent limited easement across the Marshes’ property provides the
City with “the right of ingress and egress as long as required for such public
purpose.”[2]
The City confirmed at oral argument that
the permanent limited easement held by the City is a public one for public use,
providing access to anyone who chooses to use it.[3] Indeed, the easement makes no mention of the
Husars as the beneficiaries of the easement across the Marshes’ property, nor
does it limit the use of the “highway facilities within the right of way” to
the property owners. The City, citing to
State
ex rel. Happel v. Schmidt, 252
¶9 Our review of the record reveals that the trial court’s consideration of the easement on the Marshes’ property was based on its understanding that the easement was a “private easement.” Its written judgment states in part: “[T]he use of a private easement for the new access to Plaintiffs’ properties is proper and constitutes a valid public use and purpose,” and that “the new access to Plaintiffs’ properties is reasonable.” Therefore, the trial court’s decision reflects a misunderstanding of this underlying fact—one that was perpetuated by the litigants, whose arguments throughout the lower court proceedings focused on the private nature of the easement, presumably because the Husars and Marshes would be the ones using the easement.
¶10 Indeed, the crux of the City’s argument is that “[b]efore and after the partial taking, Appellants[’] use and utility of their properties remain the same—residential” and that the properties’ “character remain[s] in substantially the same condition, with the same function and utility.” The City contends that this is merely a change in access—the moving of a driveway from one area to another. The City’s expert appraiser’s opinion that “[e]verything remained the same with the exception of the access,” did not address the public’s right to use the appellants’ driveways.
¶11 The private nature of the easement was arguably integral to the trial court’s determinations. As to the uneconomic remnant claim, the court found that the properties are still “usable as residential property lots. They’re not unusual or irregular to such an extent that they’re not unusable as residential property lots. The size is sufficient. The location is sufficient.” There is no indication in the record that the court’s findings take into account the public nature of the easement.
¶12 Courts have recognized that the right to exclude others is “one
of the most essential sticks in the bundle of rights that are commonly
characterized as property.” Dolan
v. City of Tigard, 512
CONCLUSION
¶13 A property owner who is left with a substantially diminished
parcel of unencumbered property has a right to contest a condemnation that does
not acknowledge an uneconomic remnant. Waller,
322
By the
Court.—Judgment reversed and
cause remanded with directions.
This opinion will not be
published. See Wis. Stat. Rule
809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version.
[2] Before the trial court and in briefing, the parties’ arguments focused on the “public purpose” of the Calhoun construction project as a whole—whether a city may use eminent domain to take private property for a private easement when city construction projects obstruct access to private property. The plaintiffs rely upon Osborn v. Hart, 24 Wis. 89, 91 (1869), in which the court held that a statute permitting the taking of a private road for the use of the “applicant, his heirs or assigns” was unconstitutional because no power existed for taking private land for the construction of a road benefiting a private party, without the consent of the owner, whether or not compensation is paid.
The plaintiffs’ summary judgment briefing referred to the taking of “private property for private use,” and the creation of a “private street” or “shared private driveway.” The City’s rebuttal provided no clarification by also referring to the permanent limited easement as a “shared driveway” and “new access driveway.” In so arguing, the parties failed to recognize that the easement across the Marshes’ property, by its own terms, granted access to the public at large.
[3] When
asked: “So are you saying that the
phrase in the easement that the City has retained the right [of] ingress and
egress [as long as required for such] public purpose allows anybody and
everybody to go on this property,” the City responded, “Theoretically,
yes.”
Excerpted from the recording of oral argument, Feb. 25, 2010, http://wicourts.gov/opinions/aoralarguments.htm
(last visited May 24, 2010). The City then referenced the court’s
decision in State ex rel. Happel v. Schmidt, 252
It is the right of
travel by all the world, and not the exercise of the right, which constitutes a
way a public highway, and the actual amount of travel is not material. If it is open to all who desire to use it,
[it] is a public highway although it may accommodate only a limited portion of
the public or even a single family or although it accommodates some individuals
more than others.
(Citation omitted.)