Webster v. Frawley

55 N.W.2d 523, 262 Wis. 392, 1952 Wisc. LEXIS 240

• Court: Wisconsin Supreme Court
• Decided: November 5, 1952
• Status: Published

Opinions

Fairchild, J.

This court has no hesitancy in holding that the taking of the plaintiff Webster’s lands for a state truck-weighing station and its approaches constitutes a taking for a public purpose. This leaves as the only question to be determined on this appeal that of whether the state highway commission had the right to utilize the summary method of condemnation procedure authorized by secs. 84.09 and 83.08, Stats. 1949, to acquire the lands for the weighing station, or whether it was limited to the use of the condemnation method set forth in ch. 32, Stats.

The statutes hereinafter referred to are those of 1949. Sec. 84.09 (1), Stats., states:

“The state highway commission may acquire by gift, devise, purchase, or condemnation any lands for establishing, laying out, widening, enlarging, extending, constructing, reconstructing, improving, and maintaining highways, streets, and roadside parks which it is empowered to improve or maintain, or interests in lands in and about and along and leading to any or all of the same; . . .” (Emphasis supplied. )

Sec. 84.09 (2), Stats., provides that if the lands cannot be purchased expeditiously for a reasonable price, the commission may acquire the same by condemnation under ch. 32, Stats., in the manner provided for counties in sec. 83.07 or may make an award of damages to the owner.

As an alternative method, sec. 84.09 (3) (a), Stats., provides that the commission may order all or certain parts of the required land or interests therein to be acquired by the county highway committee. If the lands cannot be purchased expeditiously within a price appraised and agreed upon by the county highway committee and the state highway commission, the county highway committee may acquire them by condemnation under ch. 32, Stats., or in the manner provided in sec. 83.07 or subject to the approval of the commission in the manner provided in sec. 83.08 (2). Sec. 83.08 (2) provides as one of the methods available the making and signing of an award of damages to an owner and the filing of same with a county clerk. When the award has been filed, the county highway authorities and their contractors and employees may take possession of the lands and exercise full control of the interest in the lands acquired. There are further provisions in this section which provide for notification to the owner, payment of the amount awarded, and the granting to the owner of a two-year period within which he may take an appeal to commissioners under ch. 32 or to the county judge. In either case, the statutes grant to the property owner the ultimate right to have his damages determined by jury trial.

Lands acquired by the county highway committee for the state highway commission must be conveyed to the state without charge by the county highway committee and the county clerk in the name of the county, when so ordered by the commission. Sec. 84.09 (3) (b), Stats.

The defendants maintain that the enforcement of the weight restrictions on trucks by means of erecting weighing stations is a method of “maintaining” the highways of the state, and therefore the acquisition of land for weighing-station purposes comes within sec. 84.09 (1), Stats.

It is our conclusion, however, that the words “maintaining highways” employed in sec. 84.09 (1), Stats., have reference to activities relating to the actual physical maintenance of highways and not to activities which only remotely and indirectly affect highway maintenance, such as the policing of weight of trucks.

This conclusion is strengthened by the provisions of sec. 84.07 (1), Stats., which provides that:

“. . . Maintenance of state trunk highways includes the operations, activities, and continuing processes for their repair, preservation, restoration, and reinforcement, the removal and control of snow and the removal, treatment, and sanding of ice, and all measures deemed necessary to provide adequate traffic service. It also includes the care and protection of trees and other roadside vegetation and suitable planting to prevent soil erosion or to beautify highways pursuant to sec. 80.01 (3).”

It is apparent from a careful reading of this section that the term “maintenance” embraces only various types of work on the highway for the purpose of keeping the highway in repair. It does not include the enforcement of police regulations, such as weight restrictions on trucks. This fact is made doubly clear by the third sentence of sec. 84.07 (1), Stats., which provides:

. . The commission may arrange with any county highway committee to have all or certain parts of the work of maintaining the state trunk highways within its county performed by the county.” (Emphasis supplied.)

In other words, all maintenance activities could be performed by the county highway committee under arrangements with the state highway commission. Certainly, the enforcement of truck-weight restrictions could not properly be left to the county, and for that reason the enforcement of such restrictions cannot be classified as highway maintenance as that word is used in the statute.

The enforcement of weight restrictions has always been the obligation of state agencies other than the highway commission. At the present time the enforcement of weight restrictions is vested in the motor vehicle department.

In view of the conclusion reached by the court that the statutes under which the defendants acted to condemn the plaintiff Webster’s lands did not authorize the taking of such lands for a state truck-weighing station, it was error for the trial 'court not to have entered judgment declaring that the condemnation proceedings undertaken by the defendants were null and void and permanently restraining the defendants from entering upon the lands of plaintiff Webster pursuant to any authority claimed under such condemnation proceedings.

By the Court. — Judgment reversed and cause remanded with directions to enter judgment in conformity with this 'opinion.