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05/18/83 ALDWIN H. SEEFELDT v. STATE WISCONSIN

May 18, 1983

ALDWIN H. SEEFELDT, FREDERIC A. SEEFELDT, AND MARIEL M. HEINKE, PLAINTIFFS-APPELLANTS,
v.
STATE OF WISCONSIN, DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, DEFENDANT-RESPONDENT



Appeal from a judgment of the Circuit Court for Washington County: Harold J. Wollenzien, Judge.

Scott, C.j., Voss, P.j., and Brown, J.

The opinion of the court was delivered by: Voss

This action arises out of an award of damages made by the State of Wisconsin, Department of Transportation, Division of Highways, to appellants Aldwin H. Seefeldt, Frederic A. Seefeldt and Mariel M. Heinke for a partial taking of .55 acres from 184 acres of real property located in the town of Addison, Washington county, Wisconsin. Initially, appellants had access to U.S. Highway 41. When U.S. Highway 41 was declared a controlled-access highway, the appellants' access was reduced to reasonable access. Now, the appellants allege that even this reasonable access is being taken away as the result of the taking of appellants' real estate in conjunction with the upgrading of U.S. Highway 41 to freeway status.

In general terms, the issue is whether the appellants have suffered a loss. However, the real issue is whether the state can use a two-stage approach to deprive landowners of their reasonable access to a highway without compensating them for this loss. We find that the appellants have suffered a loss because of this two-stage taking and, thus, should be compensated. Accordingly, we reverse and remand this case for further proceedings consistent with this opinion.

As the map indicates, *fn1 the appellants' property straddles U.S. Highway 41. The property is divided into four parcels. Parcel one abuts the easterly line of U.S. Highway 41, the east line of Wild Life Road and the north line of Cedar View Road. Parcel two abuts the north line of Cedar View Road. Parcel three abuts Cedar View Road on its south right-of-way line and abuts the easterly line of U.S. Highway 41. Parcel four abuts the westerly line of U.S. Highway 41 and the easterly line of Wild Life Road.

The taking that brought about this action consisted of two narrow strips of land along the east side of U.S. Highway 41. Before the taking, a town road named Cedar View Road intersected U.S. Highway 41 at grade on its east side, and Wild Life Road intersected with U.S. Highway 41 at grade on both the east and west sides of U.S. Highway 41.

The development of U.S. Highway 41 began on September 26, 1952, when the state, after complying with the requirements of sec. 84.25, Stats., declared U.S. Highway 41 a controlled-access highway. On June 8, 1972, after following the procedures set out in sec. 84.295, Stats., the state declared U.S. Highway 41 a freeway. The current highway project, which has resulted in the taking of the appellants' real estate, consists of the upgrading of U.S. Highway 41; U.S. Highway 41 is presently classified as a controlled-access highway, and subsequent to the upgrading in status, it will be classified as a freeway.

The plans of this highway project indicate that Wild Life Road and Cedar View Road will not intersect with U.S. Highway 41 near the appellants' property once the project is completed. The plans also show that the project contains no provision for construction of a frontage road in the vicinity of the appellants' property. Because of this, the appellants will be forced to take a more circuitous route in gaining access to and from U.S. Highway 41 after the highway improvement project is finished.

Before the taking, approximately 45 acres of the appellants' property were situated to the west of U.S. Highway 41, while 139 acres were located on the east side of the highway. Prior to the taking, the appellants' property did not have direct private access to U.S. Highway 41; instead, they had convenient public access via Wild Life and Cedar View Roads. After the highway improvement project is completed, the appellants will lose that convenient public access. It is anticipated that the new route the appellants will be forced to take in order to get from their property located east of U.S. Highway 41 to their property on the west side of U.S. Highway 41 will cover a distance of at least six miles. The appellants will have to travel 2.8 miles to get from their property lying east of U.S. Highway 41 to the northbound lane of U.S. Highway 41. From the eastern portion of the appellants' property to southbound U.S. Highway 41, the appellants will be forced to travel a distance of 3.1 miles. From their western portion of real estate, the appellants will have to travel 4.8 miles to reach northbound U.S. Highway 41 and 2.9 miles to reach southbound U.S. Highway 41.

Besides the circuitry of travel problem, the appellants also point out that while part of their property is zoned agricultural, some land is zoned for commercial purposes. The appellants maintain they were planning to develop a portion of their land for commercial purposes and also to develop some other parts for residential purposes.

In an attempt to substantiate their alleged loss in property value, the appellants hired L.J. Sauer, a professional real estate appraiser, to appraise their property. Sauer testified at trial concerning his findings. Sauer is of the opinion that the appellants' property value will be diminished in value because of the more circuitous route to U.S. Highway 41 caused by the highway project. Sauer calculated that because of the effects of the highway project, the appellants will suffer a property value diminution of $24,650. Sauer also stated that the appellants' property will not have reasonable access to U.S. Highway 41 once the highway project is completed.

The appellants argue that sec. 84.295(5), Stats., requires the state to compensate them for the loss of convenient access to U.S. Highway 41 from their property, which they will suffer when the highway project is completed. We agree.

Section 84.295(5), Stats., reads in pertinent part:

Where a state trunk highway is on or along any highway which is open and used for travel and is designated as a freeway or expressway, reasonable provision for public highway traffic service or access to abutting property shall be provided by means of frontage roads as a part of the freeway or expressway development, or the right of access to or crossing of the public highway ...


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