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COURT OF
APPEALS DECISION DATED AND
RELEASED July
11, 1996 |
NOTICE |
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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. 95-2151
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
LEE
ROBERTS
AND
AMY ROBERTS,
Plaintiffs-Appellants,
v.
NORMAN
JENNINGS AND THE
TOWN
OF SPRINGVALE, COLUMBIA
COUNTY,
WISCONSIN,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Columbia County: DANIEL
GEORGE, Judge. Affirmed.
Before
Dykman, Sundby and Vergeront, JJ.
DYKMAN,
J. Lee and Amy Roberts appeal from an
order affirming a decision by Town of Springvale commissioners to lay a road
over the Robertses' property and awarding them $500 in damages. The Robertses argue that §§ 80.17 to .21, Stats., under which the commissioners
acted, are unconstitutionally vague.
They also argue that the commissioners took their land without due
process of law because they were not a party to the proceedings. We conclude that §§ 80.17 to .21 are not
unconstitutionally vague. We also
conclude that the Robertses waived their due process claim because they failed
to appear at a hearing on their motion to intervene and failed to follow
through with this motion. Accordingly,
we affirm.
BACKGROUND
In
the fall of 1993, Norman Jennings sought to acquire a small parcel of land
owned by Lee and Amy Roberts. He
regularly crossed this parcel to get to another part of his land, which he
claimed was not accessible by any public roadway. The Robertses told Jennings that he could cross their land
whenever he wanted but that they did not want to sell him the parcel or grant
him an easement.
Jennings
sought condemnation of the Robertses' parcel of land to have a public highway
built. He executed an affidavit
directed to the Town Board of the Town of Springvale pursuant to § 80.13, Stats.,[1]
stating that his property was landlocked and that he was unable to purchase a
right-of-way from any of the owners of the adjoining real estate. The town board rejected his request because
the Robertses had offered Jennings unlimited access to his land and because it
did not believe that Jennings's real estate was landlocked.
In
April 1994, Jennings appealed this order to the trial court pursuant to
§ 80.17, Stats. On June 3, 1994,[2]
the attorney for the town board wrote to the trial court, noting that a hearing
had been scheduled for June 22 for the selection of commissioners. By order dated June 10, 1994, the trial
court informed the parties and the Robertses' attorney that the hearing to
select the commissioners originally scheduled for June 22 had been changed to
July 12.[3] On that same date, the trial court wrote to
the Robertses' attorney, stating that it had not received a notice of
appearance from him in this case. The
court added, "it is unclear who you are representing and whether or not
your client is involved in these proceedings.
If you want anything scheduled before the Court, it will be necessary
for you to file a formal motion after serving your notice of appearance."
On
July 6, 1994, the Robertses' attorney moved to intervene and stated that he
would appear at the July 12 hearing for a decision on this matter. The attorney did not appear at the July 12
hearing, but Lee Roberts was present.
The commissioners were selected.
The court noted that the Robertses' attorney was not present and told
Lee Roberts that, therefore, it was not going to rule on his motion to
intervene. Roberts stated that he
understood. The motion was never
renewed.
At
the July 22, 1994 hearing, the commissioners heard testimony from Jennings and
from those who opposed the highway, including the Robertses, their attorney,
and the Town Board Chairman. The
commissioners also viewed the site. The
commissioners reversed the town board and ordered the town to lay a two-rod
road and pay the Robertses $500 in damages under § 80.21, Stats.
No advantages were assessed with respect to Jennings.
The
Robertses sought certiorari review of the commissioners' order pursuant
to § 80.34(2), Stats. The trial court dismissed the petition. The Robertses appeal.
STANDARD OF REVIEW
We
review the decision of the commissioners, and not that of the trial court. Berschens v. Town of Prairie du Sac,
76 Wis.2d 115, 118-19, 250 N.W.2d 369, 372 (1977). Our review is limited to irregularities or legal questions growing
out of the commissioners' proceedings, provided the alleged errors appear in
the record or the return. Id.
VAGUENESS
The
Robertses argue that §§ 80.17 to .22, Stats.,
are unconstitutionally vague because they contain no rules or standards,
thereby making their enforcement impossible.
The vagueness, they argue, stems from the procedure that permits three
randomly selected townspeople to take land from a person. Specifically, they contend that the
statutory scheme is unconstitutionally vague for the following reasons: (1) there are no requirements that the
commissioners find that the taking of a person's land serves a public purpose;
(2) there is no requirement that the commissioners give deference to the
town board; (3) the terms "damages" and "advantages"
are not defined in the statutory scheme; (4) there is no mechanism for
ensuring that taxpayers are protected from having to pay outrageous damages; (5) there
is no mechanism to ensure that a person whose land has been taken is given fair
market value or any other measure of "just compensation"; and
(6) the statutes contain no rules of evidence or procedure.
The
appellant has the burden of overcoming the presumption of constitutionality by
demonstrating that the statute is unconstitutional beyond a reasonable
doubt. Wisconsin Bingo Supply
& Equip. Co., Inc. v. Wisconsin Bingo Control Bd., 88 Wis.2d 293,
301, 276 N.W.2d 716, 719 (1979). The
test for determining whether a civil statute is unconstitutionally vague is the
following:
A statute is not necessarily void merely
because it is vague, indefinite, or uncertain, or contains terms not
susceptible of exact meaning, or is stated in general terms, or prescribes a
general course of conduct, or does not prescribe precise boundaries, or is
imperfect in its details, or contains errors or omissions, or because the
intention of the legislature might have been expressed in plainer terms, and
questions may arise as to its applicability, and opinions may differ in respect
of what falls within its terms, or because the statute is difficult to execute.
Unless a statute
is so vague and uncertain that it is impossible to execute it or to ascertain
the legislative intent with reasonable certainty, it is valid ....
Id.
The
Robertses first argue that the statutes are unconstitutionally vague because
there are no requirements that the commissioners find that the taking of their
land serves a public purpose. We
disagree. A public purpose is served by
permitting a highway to be laid out over a property owner's land. See Northern States Power Co.
v. Town of Hunter Bd. of Supervisors, 57 Wis.2d 118, 129, 203 N.W.2d
878, 883 (1972). When adopting
§ 80.13, Stats., the
legislature presumably acted with this public purpose in mind. Id. The fact that private interests may also be served does not
diminish the public nature of the highway and its accessibility to all. The highway is a public highway.
Next,
the Robertses argue that the statutes are unconstitutionally vague because the
commissioners are not required to give deference to the town board. But constitutional vagueness has to do with
being able to understand what a statute means and being able to execute it. The Robertses have no trouble explaining
that the problem they identify implicates standard of review. And they complain of the statute's method of
execution, not that they cannot tell from the statute how the statute is
executed. This is not a vagueness
challenge. If the statutes of which the
Robertses complain suffer from constitutional inadequacy, vagueness is not the
reason for the inadequacy.
The
Robertses also argue that because the terms "damages" and
"advantages" are not defined in the statutes, they are
unconstitutionally vague. Again, we
disagree. The test for vagueness when a
civil statute is challenged is that it must be "so vague and uncertain
that it is impossible to execute it or to ascertain the legislative intent with
reasonable certainty." Wisconsin
Bingo, 88 Wis.2d at 301, 276 N.W.2d at 719. Under § 80.13(3), Stats.,
the commissioners "shall assess the damages to the owner or owners of the
real estate over or through which the same shall be laid or from whom land
shall be taken and the advantages to the applicant." The town pays damages to the landowner whose
land is taken when the highway opens.
Section 80.30(1), Stats.
Just
because a statutory term is not defined does not mean that the statute is
unconstitutionally vague. See State
v. McCoy, 143 Wis.2d 274, 286, 421 N.W.2d 107, 111 (1988). "A statute is sufficiently definite if
the meaning of its terms can be discerned by referring to ordinary sources of
construction." Id.
at 286-87, 421 N.W. 2d at 111. Our
first step in construing a statute is to examine its language and if it is
clear, we apply its ordinary meaning. Riverwood
Park, Inc. v. Central Ready-Mixed Concrete, Inc., 195 Wis.2d 821, 828,
536 N.W.2d 722, 724 (Ct. App. 1995). To
ascertain its ordinary meaning, we may resort to a dictionary. Borgen v. Economy Preferred Ins. Co.,
176 Wis.2d 498, 505, 500 N.W.2d 419, 421-22 (Ct. App. 1993).
In
Webster's Dictionary, damages is defined as "the estimated reparation in
money for detriment or injury sustained : compensation or satisfaction imposed
by law for a wrong or injury caused by a violation of a legal right." Webster's
Third New International Dictionary 571 (1993). Advantage is defined as "benefit, profit, or gain of any
kind : benefit resulting from some course of action." Id. at 30. Using these definitions, we conclude that
the legislative intent of § 80.13, Stats.,
can be determined with reasonable certainty.
When the legislature provided that the commissioners "shall assess
the damages to the owner or owners of the real estate over or through which the
same shall be laid or from whom land shall be taken," it meant that the
commissioners should decide how much money would compensate the landowner whose
land has been taken. And when the
legislature provided that the commissioners should assess "the advantages
to the applicant," we conclude that this refers to how much of a financial
benefit has inured to the applicant or the enhancement in value of the
applicant's land as a result of the town's decision to lay the highway. See also Larsen v. Town
Supervisors of Spider Lake, 5 Wis.2d 240, 243, 92 N.W.2d 859, 861
(1959) (applicant pays as advantages the amount that fairly measures the
advantages accrued to his or her property by the building of the highway).
The
Robertses also argue that the statutory scheme is unconstitutionally vague
because there is no mechanism for ensuring that taxpayers are protected from
incurring outrageous damages. Again, we
believe that the Robertses have incorrectly identified their problem as one of
constitutional vagueness. A statute can
permit or require outrageous damages without being vague. Though such a statute may offend other parts
of our constitutions, it is not unconstitutionally vague.
Similarly,
the Robertses argue that the statutory scheme is unconstitutionally vague
because there are no mechanisms for ensuring that a person whose land has been
taken is given fair market value or any other measure of "just
compensation." Though the failure
to give just compensation for a taking is prohibited by other sections of our
constitutions, just compensation is not a part of a vagueness analysis. The statute is clear that the town board
must pay damages to the landowner whose land is taken for a public highway. Whether those damages are constitutionally
inadequate or excessive is not decided by considering concepts of
constitutional vagueness.
Finally,
the Robertses argue that the statutes are unconstitutionally vague because they
do not provide rules of evidence or procedure.
We disagree. First, § 801.01(2),
Stats., provides that the rules
of civil procedure set forth in chapters 801 to 847, Stats., govern procedure and practice in trial courts in all
civil actions and special proceedings except where different procedure is
prescribed by statute or rule. Chapter
80, Stats., sets out that
different procedure. Thus, the rules of
civil procedure are inapplicable.
Second,
§ 901.01, Stats., provides that
the rules of evidence set forth in chapters 901 to 911, Stats., govern proceedings in courts of the State of
Wisconsin except as provided in §§ 911.01 and 972.11, Stats. This
proceeding, however, was not a proceeding before a court but one before
commissioners. The "[h]ighway
commissioners constitute a tribunal of special and limited jurisdiction, and
must act in substantial accord with the statute or order of the court under
which they were appointed." State
ex rel. Zemlicka v. Baker, 243 Wis. 606, 608, 11 N.W.2d 364, 365
(1943). Indeed, it would be difficult,
if not impossible, to apply these evidentiary rules to these proceeding because
the commissioners need not know the rules and their application. We conclude that the fact that the
legislature intended commissioners, lay persons from the community, to decide
this matter means that the rules of evidence are not applicable to these
proceedings.
Instead,
the commissioners are charged with examining the highway and may hear testimony
from interested parties and accept their proofs. Section 80.20, Stats. The veracity of such information is ensured
by the requirement that the testimony given to the commissioners be taken only
under oath. Id. We conclude that the statutes set forth
sufficient procedural and evidentiary guidelines such that we cannot declare
them unconstitutionally vague.
DUE
PROCESS
The
Robertses argue that their due process rights were violated because their
property was taken in a proceeding in which they were not a party. Due process, they note, means that a person
must have notice and an opportunity to be heard at a meaningful time and in a
meaningful manner. Wilke v. City
of Appleton, 197 Wis.2d 717, 727, 541 N.W.2d 198, 202 (Ct. App.
1995).
The
trial court's correspondence shows that the Robertses' attorney knew about the
proceedings and had contacted the court in some fashion before June 10,
1994. On June 10, the court wrote to
the Robertses' attorney and informed him that if his clients wished to be a
part of the proceedings, they must file a notice of appearance. That same day, the court also sent an order to
the parties and the Robertses' attorney which stated that a hearing to select
the commissioners would be conducted on July 12. On July 6, the Robertses' attorney moved to intervene and stated
that he would appear at the July 12 hearing.
However, while his client appeared, he did not. The Robertses had notice of the proceedings.
With
respect to the Robertses' ability to participate in the proceedings, the
commissioners heard extensive testimony by the Robertses and the Town Board
Chairman opposing the laying of the highway.
Insofar as they attempted to offer evidence, they were permitted to do
so. They argue that they were unfairly
prohibited from intervening and properly representing their interests. The only thing that prevented them from
moving to intervene was their attorney's failure to appear at the July 12
hearing to decide the matter. The
Robertses never renewed the motion.
Accordingly, they waived any right they might have had to intervene in
the proceedings by their failure to follow through on their motion. See State v. Gollon,
115 Wis.2d 592, 604, 340 N.W.2d 912, 917 (Ct. App. 1987) (failure to renew
severance motion waived that ground for error).
We
have addressed each argument made by appellants, and we conclude that none are
meritorious. We have not addressed
questions about §§ 80.17-.21, Stats.,
which the Robertses have not raised. See
Waushara County v. Graf, 166 Wis.2d 442, 451, 480 N.W.2d 16, 19
(1992). We affirm.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
No. 95-2151(C)
SUNDBY,
J. (concurring). As the respondent
notes, the statutes providing relief to an owner whose land is landlocked are
"hoary." Section 80.13, Stats., was enacted by ch. 267, Laws of
1873. At that time, the procedures for
laying out town highways were relatively unsophisticated. Also, land lying in towns was largely described
by metes and bounds. Thus, it was not
uncommon for a landowner to discover that his or her land did not have access
to a public highway. Residents of towns
looked to the town government to solve such problems. Therefore, the legislature prescribed procedures by which a
landlocked owner could obtain access to a public highway by action of the town
board.
Under
§ 80.13, Stats.,[4]
a landlocked owner may present an affidavit to the town board averring that the
owner is "shut out" from all public highways and is unable to
purchase a right-of-way from an adjacent landowner. If the town board denies the landowner's request that the board
lay out a right-of-way to a public highway, the owner may appeal that order to
the circuit judge for appointment of residents of the town to serve as
commissioners to review the order or determination. Section 80.17, Stats. The commissioners so appointed are empowered
to reverse the decision of the town board.
Section 80.21, Stats.[5];
Berschens v. Town of Prairie du Sac, 76 Wis.2d 115, 123, 250
N.W.2d 369, 374 (1977). On appeal from
the town board's denial of the landowner's application, the commissioners
review the necessity or propriety of laying out the road. Id. at 123-24, 250 N.W.2d at
374. They may not, however, review
legal questions or irregularities which might exist in the proceedings. Id. Such claimed errors are to be reviewed by the circuit judge under
§ 80.17. The town board, in
exercising its power to lay out a road, must strictly comply with the statutory
scheme which confers that power. See
id. at 123, 250 N.W.2d at 374.
The appellants claim
that the procedures for the laying out of an access road to a public highway
for landlocked land are so vague as to be unconstitutional. They couple that with a claim that they were
denied procedural due process because they were denied a fair opportunity to be
heard. They term the
"landlocked" procedure "a strange beast." I do not find the procedure vague. First, the owner of landlocked land seeking
access to a public highway applies to the town board. Notice of the time and place of the meeting at which the town
board will consider the landlocked owner's request must be served and published
as required by § 80.05, Stats. The Roberts were served by registered mail
as required by § 80.05(2)(a). They
do not claim that they did not have an opportunity to appear at the hearing at
which the town board considered the respondent's request. Further, they were not damaged by the result
of that hearing because the town board denied respondent's request.
I
agree, however, that the appeal procedure leaves a great deal to be
desired. There is no provision under
§ 80.17, Stats., requiring
that a copy of the notice of appeal be served on the affected landowners. Section 80.18, Stats., provides that the judge shall issue a notice
specifying a time and place for the appointment of commissioners. However, there is no statutory requirement
that this notice be served on the affected landowners. The statute provides that the notice shall
be served on two or more of the supervisors at least six days before the time
for appointing commissioners.
Section 80.18 assumes that the judge could have reversed the
determination of the town board, presumably upon procedural grounds, because
the statutes make clear that the judge has no power to determine the merits.
I
read the statutory procedure to provide for appointment of commissioners only
after the circuit judge has heard any objections to the town board's order
based upon procedural defects. However,
the Roberts do not claim that the town board failed to follow the statutory
procedures when it denied respondent's application. Their claim relates solely to the proceedings before the
commissioners. Also, they do not object
to the manner in which the commissioners were appointed under § 80.19(1), Stats.
They do object, however, that they were not given an opportunity to be
heard before the commissioners under § 80.20, Stats.[6] Their principal objection to the procedure
followed is that they were not allowed to intervene in the proceedings before
the commissioners. Intervention was
unnecessary. The statute prescribes
that the commissioners "shall hear the parties interested therein and any
proofs offered by them." Plainly,
the word "parties" does not refer to parties to a civil action or
proceeding but to the "parties" interested in the laying out of the
highway and the award of damages and the determination of the landlocked
party's "advantages."
The
commissioners act upon the "warrant" of the trial judge directing the
commissioners to review the order or determination appealed from and make
return of their decision, not to the court, but to the municipal clerk. When the commissioners are sworn, they are
to meet at the time and place mentioned in the judge's warrant and examine the
highway and hear all parties interested therein. I find no procedure under these statutes for a petition to
intervene. Any person appearing before
the commissioners who can demonstrate an interest in the proceedings has the
right to be heard.
The
Roberts complain that the proceeding was an ex parte hearing. I agree that § 80.20, Stats., is defective in that it does
not provide for notice to the persons who may be affected by the commissioners'
order. However, in this case, the
Roberts were aware of the hearing and did appear. I do not believe they can base a due process violation upon lack
of notice and an opportunity to be heard when they in fact were given that
opportunity. I suggest to the
legislature, however, that §§ 80.13 through 80.24, Stats., be amended so that any property owner affected by the
decision of the commissioners is given notice and an opportunity to be
heard. Because the laying out of a
public highway affects the public, I also suggest that notice be given by
publication as is done under § 80.05(2)(c), Stats.
The
Roberts complain that the statutes do not require that the commissioners find
that a public purpose will be served by granting a landlocked owner's petition
for the laying out of a public access road.
The requirement that land be taken only for a public use and purpose is
subsumed in Article I, § 13 of the Wisconsin Constitution. The Roberts had an opportunity to make their
"public purpose" argument to the commissioners and to have their
decision reviewed by the circuit court and this court. Their rights in this respect were amply
protected.
For
these reasons, I concur in our decision but I do not join our opinion because I
do not believe it adequately addresses the contentions made by the
appellants. Hopefully, this separate
opinion may provide guidance to municipalities faced with landlocked owners'
petitions in the future. It may also
suggest to the legislature some improvements in the statutory proceedings to
eliminate the ambiguities and deficiencies which presently exist.
[1] Section 80.13(1), Stats., provides:
When any person
shall present to the supervisors of any town an affidavit satisfying them that
he is the owner or lessee of real estate ... within said town, and that the
same is shut out from all public highways, other than a waterway, by being
surrounded on all sides by real estate belonging to other persons, or by such
real estate and by water, or that he is the owner or lessee of real estate ...
and of a private way or road leading from said real estate to a public highway
but that such road or way is too narrow, giving its width, to afford him
reasonable access to and from said real estate to said public highway, that he
is unable to purchase from any of said persons the right-of-way over or through
the same to a public highway, or that he is unable to purchase from the owner
or owners of land on either or both sides of his way or road land to make such
way or road of sufficient width, or that it cannot be purchased except at an
exorbitant price, stating the lowest price for which the same can be purchased
by him, the said supervisors shall appoint a time and place for hearing said
matter, which hearing shall be after ten days and within thirty days of the
receipt of said affidavit.
[3] This document is not of record but is
contained in Jennings's appendix. We
assume, however, that the Robertses had notice of the change in the court date
because their motion to intervene noted a July 12, 1994 court date.
[4] Section 80.13, Stats., provides in part:
(1) When any person
shall present to the supervisors of any town an affidavit satisfying them that
that person is the owner or lessee of real estate (describing the same) within
said town, and that the same is shut out from all public highways, other than a
waterway, by being surrounded on all sides by real estate belonging to other
persons, or by such real estate and by water, or that that person is the owner
or lessee of real estate (describing the same) and of a private way or road
leading from said real estate to a public highway but that such road or way is
too narrow, giving its width, to afford that person reasonable access to and
from said real estate to said public highway, that that person is unable to
purchase from any of said persons the right-of-way over or through the same to
a public highway, or that that person is unable to purchase from the owner or
owners of land on either or both sides of that person's way or road land to
make such way or road of sufficient width, or that it cannot be purchased
except at an exorbitant price, stating the lowest price for which the same can
be purchased, the said supervisors shall appoint a time and place for hearing
said matter, which hearing shall be after ten days and within thirty days of
the receipt of said affidavit.
(2) Notice of the
time and place of meeting shall be served as required by s. 80.05 and published
as a class 2 notice under ch. 985.
(3) The supervisors
shall meet at the appointed time and place and shall then in their discretion
proceed to lay out such highway of not more than three nor less than two rods
in width to such real estate, or shall add enough land to its width to make it
not less than two nor more than three rods in width, and shall assess the
damages to the owner or owners of the real estate over or through which the
same shall be laid or from whom land shall be taken and the advantages to the
applicant.
(4) But the damages
assessed by the supervisors shall in no case exceed the price stated in the
affidavit of the applicant; upon laying out such highway, or in adding to the
width of a former private way or road, they shall make and sign an order
describing the same and file the same with the town clerk together with their
award of damages, which order shall be recorded by said clerk; provided, that
the amount assessed as advantages to the applicant shall be paid to the town
treasurer before the order laying out such highway shall be filed.
....
[5] Section 80.21, Stats., provides:
When an appeal has
been taken from an order or determination refusing to lay out, widen, alter or
discontinue a highway, and such determination shall be reversed, the
commissioners shall make and file the order and agreements and awards, which in
the judgment of the commissioners should have been made by the highway
authorities whose order or determination has been appealed from.
[6] Section 80.20, Stats., provides in part:
Before proceeding
to act under said warrant said commissioners shall be duly sworn justly and
impartially to discharge their duties as such commissioners; they shall meet at
the time and place mentioned in such warrant and proceed to examine such
highway; they shall hear the parties interested therein and any
proofs offered by them ....
(Emphasis added.)