COURT OF APPEALS DECISION DATED AND RELEASED October 12, 1995 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1317
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
BRUCE BALDWIN MOHS and
JEANNETTE HIGHT MOHS,
Plaintiffs-Appellants,
v.
STATE OF WISCONSIN
DEPARTMENT OF
TRANSPORTATION
DIVISION OF HIGHWAYS,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Dane County:
GERALD C. NICHOL, Judge. Affirmed.
Before Dykman, Sundby,
and Vergeront, JJ.
PER CURIAM. Bruce and Jeannette Mohs (collectively,
"Mohs") appeal from a judgment dismissing their petition for inverse
condemnation pursuant to § 32.10, Stats. The trial court ruled on summary judgment
that there was no taking by the Department of Transportation and therefore no
right to compensation. We agree and
therefore affirm.
From 1970 until 1991,
the Mohs owned approximately fifteen acres abutting a section of Highway 51
designated as a controlled access highway under § 84.25, Stats., and lying near its intersection
with Highways 12 and 18 in Madison. In
1951, the Mohs' predecessor in title, received a permit from DOT for a driveway
from Highway 51 into the property. A
gravel and dirt driveway was constructed and has been used ever since for
access to the property.
In the late 1980's, DOT
undertook a road improvement project in the vicinity of the Mohs'
property. Because the project included
plans to eliminate the Mohs' Highway 51 access, and because there was no
alternative access to the property, DOT offered to purchase the Mohs' access
rights for $50,000, which they refused.
Several months later, DOT notified the Mohs that it would not pursue the
acquisition of their rights after concluding "that it is inappropriate for
the department to acquire access rights and pay damages when a controlled
access highway has been designated."
The Mohs transferred title to the property in 1991 and began this action
in 1993, seeking compensation for the taking of the driveway access.
Summary judgment is
appropriate if, as here, the material facts are not in dispute, and allow only
one reasonable inference. See Wagner
v. Dissing, 141 Wis.2d 931, 939-40, 416 N.W.2d 655, 658 (Ct. App.
1987). We decide summary judgments in
the same manner as the trial court and without deference to its decision. Schaller v. Marine Nat'l Bank,
131 Wis.2d 389, 394, 388 N.W.2d 645, 648 (Ct. App. 1986).
Notwithstanding DOT's
earlier plans, the undisputed facts establish that no taking of the access
rights occurred. DOT's project is
complete and the driveway remains unchanged and available for access. Although the Mohs argue that it is the right
to use the driveway as opposed to its actual use that is significant, they
offered no proof that the permit issued in 1951 has ever been revoked. Alternatively, even if it were, such action
would be a noncompensable exercise of DOT's police powers, as set forth in
§ 84.25(5), Stats.,
providing that:
No person shall have any right of entrance upon
or departure from or travel across any controlled-access highway, or to or from
abutting lands except at places designated and provided for such purposes, and
on such terms and conditions as may be specified from time to time by the
department.
Additionally, during the
project, DOT created a second access point to the property via a gravel road
between it and the nearest road. By
that road, the property retains access to Highway 51, although by a less direct
route. Therefore, even if DOT had
eliminated direct access to the highway, the Mohs retained indirect access that
was only slightly less convenient.
Taking a direct access does not require compensation if reasonable,
indirect access is provided in its place.
Schneider v. State, 51 Wis.2d 458, 463, 187 N.W.2d 172,
174-75 (1971).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.