300 N.W. 178 | Wis. | 1941
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *444
In a petition filed by Otto L. Olen under sec.
"While the proceeding under ch. 32, Stats., is before the judge, it is not a proceeding in court. The taking of private property for public purpose is a matter that rests within the power and discretion of the legislature and it may be taken upon such terms as the legislature prescribes, subject to the right of trial by jury on the question of necessity where property is taken by a municipal corporation. Where a person alleges he is deprived of his property without just compensation he is entitled to a judicial determination and that right is given him by way of appeal under sec.
As no jurisdiction has been conferred by statute upon either the circuit court or this court to entertain an appeal taken prior to the making of an award by commissioners from any determination made by a county judge at an earlier stage in such proceedings, no jurisdiction of an appeal is acquired by the circuit court by virtue of a notice of appeal. Therefore, ordinarily an appeal so taken prematurely must be dismissed as was held in the cases cited above. When a petitioner considers himself aggrieved, as in the case at bar, by a county judge's determination that denies his petition for the appointment of commissioners, then if the facts shown are such as to entitle him as a matter of law to have such appointment made, the petitioner's remedy is probably by mandamus. Wheeler v. Westport,
Although ordinarily there is no alternative but to dismiss such an unauthorized appeal from such a determination by a county judge, there is a somewhat different situation in the case at bar by reason of a stipulation made in the circuit court proceedings in that it was thereby —
"Agreed by and between the parties to the above-entitled action by their respective attorneys that the petition and answer and all other pleadings, together with the testimony taken and the briefs of the parties filed and the entire record, be submittedto the circuit court for a review of the decision of the county judge," —
and further —
"that in the event this court renders a decision reversing the decision of the county judge that then and in that event a jury shall be selected at this term of court to try the issue of damages and any other issue that may be involved."
Although the parties were not rightfully in the circuit court on the intended, but unauthorized, appeal from the county judge's determination, they were, nevertheless, by virtue of the stipulation made between them "as the parties to the above-entitled action" in fact and to all legal intents and purposes in the circuit court, pursuant to their voluntary submittal to the circuit court of the entire record, including the petition and pleadings and the sworn testimony taken for the purpose of having the circuit court render a decision in review of the county judge's decision and in the event of a reversal thereof to have the circuit court proceed with the selection of a jury to try the issue of damages and any other issue that may be involved. Thus the parties by a stipulation made in intended proceedings in circuit court, which would have had jurisdiction of all the issues in an action that could be considered pending there upon an appeal taken after an award was made by commissioners, were voluntarily in court upon verified pleadings and sworn testimony which to all intents and purposes can be considered to constitute virtually an agreed verified case *449 containing the facts upon which the controversy depends and which has been voluntarily submitted to the court for decision. And as the circuit court would have jurisdiction to adjudicate the matters thus submitted, if the issues had been raised in an action pending there as the result of an appeal from and after an award made by commissioners, the case can be deemed to be pending in the circuit court by virtue of the stipulation as an action upon an agreed case under sec. 269.01, Stats.
Considered as such an action, the following matters appear beyond dispute in the record, including the testimony taken before the county judge, to wit: Under orders and in the manner directed by the Waupaca county highway commission and its highway commissioner, and under the immediate supervision of its superintendent in charge on the job, Waupaca county raised the grade of County Trunk Highway C by putting in a fill of gravel and sand about five feet deep along the sixty-feet frontage of Olen's property, and in doing so the county put about twenty-five yards of fill on Olen's land with a depth of five feet at the front lot line and sloping downward as the fill extended back twenty feet from the street, and that fill covered and prevented the use of the private walk and driveway to the house and garage. Consequently to the extent that for at least twenty feet back from the street line, Olen's land was actually covered by the permanent sloping embankment supporting the raised grade of the county highway, there was, as a matter of law, a taking of his land and not a merely consequential injury thereto. Cronin v. Janesville T. Co.
By the Court. — Judgment reversed, and cause remanded for further proceedings as directed in the opinion. *452