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Highway Access Case Analysis

By: dmc-admin//July 16, 2003//

Highway Access Case Analysis

By: dmc-admin//July 16, 2003//

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The majority opinion is unusual in two respects. First, it fails to even address the position raised in the dissent — that Schneider v. State, 51 Wis.2d 458, 187 N.W.2d 172 (1971) only applies when the State acts pursuant to its police powers to restrict access to a controlled-access highway.

The dissent is indisputably correct that, in past cases, the reasonableness test of Schneider has only been applied to controlled-access highways, while, in those cases not involving such highways, a taking has invariably been found as a matter of law, with the only question for the jury being damages.

Thus, while the majority opinion cites Narloch with approval, the decision effectively overrules it, as well as Hastings Realty Corp. v. Texas Co., 28 Wis.2d 305, 137 N.W.2d 79 (1965), Crown Zellerbach Corp. v. Milw. City Dev. Dept., 47 Wis.2d 142 (1970), and any other decision holding that a taking occurs as a matter of law whenever access to a non-controlled-access highway is taken.

The second unusual aspect of the majority opinion is its holding that it is for a jury to decide whether the property owner still has reasonable access to the highway — a holding flatly contrary to that in Stefan Auto Body v. State Highway Comm., 21 Wis.2d 363, 124 N.W.2d 319 (1963).

However, the court does not overrule, distinguish, or even discuss Stefan Auto Body in any way (except in other portions of the decision, when considering other issues). The extent of the court’s discussion of the issue is as follows: “A frontage road might not always constitute ‘reasonable access, even though it may in some cases, such as Schneider. Therefore, whether there is reasonable access depends on the specific facts in a case.

“The essential inquiry is whether a change in access is ‘reasonable.’ Thus, the fact that National Auto has access to Highway 12 via a frontage road does not resolve whether that access is reasonable. Rather, this is a question for a jury. (citing Narloch, and Bear v. Kenosha County, 22 Wis.2d 92, 96, 125 N.W.2d 375 (1963)). As summed up by the Supreme Court of Iowa, ‘“No hard and fast rule can be stated as to whether an abutting property owner has been denied access that is reasonable… In most instances the question is one of fact, not of law, and its determination depends largely upon the evidence in the particular case.”’ Wilson v. Iowa State Highway Comm’n, 90 N.W.2d 161, 167 (Iowa 1958); see also Seefeldt v. Dep’t of Transp., 113 Wis.2d 212, 220-221, 336 N.W.2d 182 (Ct.App.1983)(‘Because the reasonableness of access has been placed at issue in this case, the appellants are entitled to present evidence to the jury on the question of how reasonable their access will be after the highway project is completed.’)”

Stefan Auto Body arose out of the construction of Interstate Highway 94 (a controlled-access highway). A property owner, who had a good location on the old conventional two-lane highway, would only be able to access the new Interstate via a frontage road, a cul de sac that ended at the plaintiff’s property.

The State argued that the property owner was entitled to no damages, “because it results from a reasonable exercise of the police power in establishing the highway as a part of the national system of interstate highways.” The owner argued that the cul-de-sac does not give it reasonable access to the highway and the loss of direct access results in a taking for which compensation must be paid. Stefan, 32 Wis.2d at 366.

The court responded, “Preliminary, the [owner] additionally argues the question of reasonable access is an issue of a material fact which defeats the motion for summary judgment. In some cases, this may be so, but we think not in this case because, in view of the nature of the damages complained of, any access less than direct access will cause the [owner] some damage. The question is not the amount of damage but whether any damage suffered by the [owner] by being placed on the frontage road is compensable. This is a question of law and depends upon the nature and the scope of the right of access. If [the court concludes there is a taking], then we would have a remaining fact question of the amount of damages for the taking.” Id.

Thus, binding Wisconsin Supreme Court precedent establishes that the question of the reasonableness of an owner’s resulting access is a matter of law for the court, not the jury.

Links

Wisconsin Supreme Court

Related Article

Owner may have takings
claim for lost access

Without even mentioning Stefan Auto Body, however, the majority opinion cites Seefeldt, a court of appeals’ decision, and an Iowa case.

At the same time, the other decisions the court cites for authority, Narloch, and Bear, do nothing to support the court’s position. Because neither case involved a controlled-access highway, in neither case did the jury ever consider whether the remaining access was reasonable — in both cases, the court determined that a taking occurred, and the only issue the jury considered was the amount of damages.

Thus, the majority opinion effects two major changes in eminent domain law, but without explicitly overruling the previously governing case law. On the first issue, the court does so in the face of a compelling dissent, but on the second issue, the dissent did not address the propriety of the majority holding.

Accordingly, it is possible that the second holding — that it is a jury question whether remaining access is reasonable — was inadvertent, although that clearly cannot be said of the first.

– David Ziemer

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David Ziemer can be reached by email.

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