Carisch v. County Highway Committee

Wickhem, J. Proceedings to condemn land for highway purposes in connection with the relocation of State Trunk Highway No. 34 were commenced on or about November 1, 1932. The use of a st'rip of land five by fifteen rods, located in the city of Prescott and owned by plaintiff, became necessary in connection with this relocation. The county highway committee of Pierce county made and signed an award of damages to plaintiff in the sum of $2,000. This award was approved by the state highway commission, filed with the county clerk of Pierce county, and possession of plaintiff’s real estate taken. The award was made under sec. 83.08 (2), which provides that‘if “needed lands cannot be acquired by contract for a reasonable price, the county highway committee shall acquire the same either by condemnation proceedings in the manner provided by chapter 32 — 377 — of the statutes or by section 83.07, or shall make and sign an award of damages to the landowner and, when approved by the state highway commission, shall file the same with the county clerk; . . .” It is provided that “the landowner may receive the same without prejudice to his right to claim and to contest for a greater sum.” -It is provided that a dissatisfied landowner may “proceed as provided in chapter 32 to have his damages appraised, or may apply to the county judge on five days’ written notice to any member of the county committee, to appraise the owner’s damages and thereafter the proceedings shall be as provided in section 83.07. ...” Plaintiff, being dissatisfied, proceeded under ch. 32, in accordance with the permission granted by sec. 83.08 (2). Commissioners were appointed under the provisions of sec. 32.08, and on June 8, 1933, they filed their assessment of damages for the taking in the sum of $1,700. The plaintiff thereupon appealed to the circuit court for Pierce county. By consent of the parties, the case was tried to the court without a jury and without formal pleadings. The defendant claimed recoupment for moneys already paid. The trial court assessed plaintiff’s damages at $1,200, and entered judgment against the plaintiff for $800 damages and ' costs, which was the difference between the sum originally awarded and paid by the county highway committee and the amount found as damages by the circuit court. Plaintiff’s first contention is that the finding of the circuit court as to the fair market value of the premises at the time of the taking is contrary to the clear preponderance of the ' evidence. No useful service would be performed by an ex- . tensive analysis of the testimony. There is testimony to the effect that the property was worth $2,800 before the taking, and $100 afterwards. In conflict with this there is testimony that the property was worth from $700 to $1,000 before the taking. There being such a conflict, and the trial — 378 — court having viewed the premises and heard the witnesses, the findings cannot be said to be against the great weight and clear preponderance of the evidence. A more troublesome question arises out of the second contention of plaintiff, which is that sec. 83.08, Stats. 1931, merely gives to the aggrieved property-owner the right to “contest for a greater sum” than that awarded and paid to him by the county committee, and that it does not authorize the recovery of sums awarded and paid by the county committee in case the value of the property is ultimately found to be less than such award. It is pointed out that after an award is made the county committee has no standing to appeal or otherwise to attack the award so long as the property-owner is content to accept it. It is urged that this points to ¡a legislative intent that the county committee be definitely and finally concluded by its award, whereas the property-owner may assert and establish his right to a greater sum. It is our conclusion that the contention is not sound. One of the options of an owner dissatisfied with an award is to proceed under the provisions of ch. 32, and this course was selected by plaintiff. Secs. 32.08 to 32.10, inclusive, provide for the appointment of commissioners and the appraisal of the property by them. Sec. 32.11 provides that “any party to a condemnation proceeding . . . may appeal ... to the circuit court. . . .” This section further provides that upon the appeal being perfected, “it shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions originally brought therein.” Upon this appeal the statute contemplates and prescribes a trial de novo. Skalicky v. Friendship E. L. & P. Co. 193 Wis. 395, 214 N. W. 388, where it is said that when these proceedings “reach the circuit court on appeal they are then, by force of — 379 — this statute, for trial de novo before the court and jury and upon any and all issues that can be properly framed or asserted upon the entire record as it then stands.” To the same effect, see Spies v. Chicago & M. E. R. Co. 148 Wis. 35, 133 N. W. 1110, where it is said: “Where-the award of the commissioners is brought before the circuit court on an appeal by either party, the statute plainly contemplates that there shall be a trial de novo to finally settle the quantum of the landowner’s damages.” In the latter case the defendant railway company instituted condemnation proceedings to acquire title to certain parcels of land owned by plaintiff. Commissioners awarded damages in the sum of $1,200, which sum the defendant paid into court, and thereupon entered into possession of the premises. The plaintiff appealed to the circuit court and thereafter withdrew the money paid into court. There was no appeal by the defendant. The appeal was tried and resulted in a verdict finding the value of the land to be $730, and upon this verdict judgment was rendered in defendant’s favor for the difference between this amount and the sum paid into court by defendant. It was contended in this court that the defendant, not having appealed from the award, was not entitled to recover the difference between the two awards. This court repudiated this contention and stated that it was proper for the court to enter judgment for the difference between the first and second awards. It was the view of the court that by appealing to the circuit court and submitting to a trial de novo, the plaintiff was bound by the results of this new trial, and that the new trial could only properly proceed by ignoring the previous payment into court and disposing of the rights of the parties as they in fact existed. The doctrine of the Spies Case is decisive of the issues here. The fact that a.property-owner, aggrieved — 380 — by the award made under the terms of sec. 83.08 (2), is permitted to contest the sufficiency of the award in a proceeding which gives the county committee, as well as claimant, an appeal from the award of the commissioners and contemplates that upon such appeal there shall be a trial of the merits de novo, repels the conclusion that sec.. 83.08 (2) intended to limit the issues upon a contest to the question' whether the owner should not have a higher award. The purpose of sec. 83.08 (2) was to permit the county committee to acquire land expeditiously, and by making an award, to secure immediate possession of the premises. The 'statute gives the county committee no right to review this award, and the landowner is in a position to insist upon keeping the award if he is satisfied with it. When, however, the landowner, being dissatisfied, exercises an option to proceed under the condemnation chapter — ch.-32—he subjects himself to all of the provisions of that chapter, which provides, first, for an award by commissioners and then for an appeal by either party to the circuit court, at which time there shall be a trial de novo, unaffected by previous proceedings, which shall fully and accurately dispose of the rights of the parties. In this case, just as in the Spies Case, a judgment which would permit the landowner to retain an award of damages greater than the value of the land as found by the circuit court would not “accord with the established rights of the parties.” Plaintiff relies on Grand Rapids v. Bogoger, 141 Wis. 530, 124 N. W. 659. In that case the city condemned a strip of land owned by respondents, and the common council confirmed an award of damages in the sum of $4,500. Respondents, being dissatisfied, appealed from this award to the circuit court, but pending the appeal accepted the payment of the $4,500 and surrendered possession of the land. — 381 — It was contended that by so doing, respondents waived their right to appeal. It was held that respondents “are right if the circuit court on this appeal had no power to reduce the compensation and damages of respondents below $4,500.” It was held that the city, having confirmed the award, had no standing to appeal, since it was not a “party aggrieved,” as required by the section on appeals there involved. It was considered to follow that there could be no reduction of the award upon appeal, and consequently there was no waiver by acceptance of the award. While this case is authority for the proposition that a plaintiff whose award is subject to reduction on appeal, waives his right to appeal by accepting the award, it does not establish the doctrine that an award, confirmed or voluntarily made, may not thereafter be reduced. This question must be answered in accordance with the legislative intent as disclosed by the particular statute involved. In view of the fact that the proceedings to review an award made under sec. 83.08 (2) involve ultimately a trial de novo, it is our conclusion that the legislature contemplated that these proceedings should accurately dispose of the rights of the parties as though an award had never been made, and that the permission to accept the award without prejudice to contest for a greater sum, was merely to avoid the waiver, which, under the Grand Rapids Case, would result where an owner, whose award was subject to reduction on appeal, accepted the award. We cannot ascribe to the legislature an intention, on the one hand, that a grossly excessive award resulting in a waste of the taxpayers’ money, should be final in a proceeding designed completely to retry the issues between the county committee and the landowner. Nor, on the other hand, can we ascribe to the legislature a purpose to encourage unfair — 382 — and niggardly awards to landowners in the fear that anything thus paid could never be recovered should the owner appeal, with such a result as is here presented. By the Court. — Judgment affirmed.