Opinion
No. 340.
Argued January 3, 1975. —
Decided February 4, 1975.
APPEAL from a judgment of the circuit court for Jefferson county: ERWIN C. ZASTROW, Circuit Judge of the Twenty-sixth Circuit, Presiding. Reversed.
For the appellant the cause was argued by Robert B. McConnell, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
For the respondent there was a brief and oral argument by Dale T. McKenna of Jefferson.
This case arises out of an eminent domain proceeding commenced by appellant State Conservation Commission of Wisconsin (hereinafter Commission) to condemn the interest of respondent Beth Carroll Martineau (hereinafter Mrs. Martineau) in certain property located in Jefferson county. The proceeding was commenced in 1967 by service of a jurisdictional offer pursuant to secs. 32.06(3) and 32.05(3) and (4), Stats. Mrs. Martineau did not accept the offer and commenced an action pursuant to sec. 32.06(5) contesting the right of the Commission to condemn her land for state forest purposes.
"COURT ACTION TO CONTEST RIGHT OF CONDEMNATION. When an owner desires to contest the right of the condemnor to condemn the property described in the jurisdictional offer for any reason other than that the amount of compensation offered is inadequate, such owner may within 40 days from the date of personal service of the jurisdictional offer or within 40 days from the date of postmark of the certified mail letter transmitting such offer, or within 40 days after date of publication of the jurisdictional offer as to persons for whom such publication was necessary and was made, commence an action in the circuit court of the county wherein the property is located, naming the condemnor as defendant. Such action shall be the only manner in which any issue other than the amount of just compensation or other than proceedings to perfect title under ss. 32.11 and 32.12 may be raised pertaining to the condemnation of the property described in the jurisdictional offer. . . ."
On October 11, 1967, the Commission petitioned the circuit court for Jefferson county for assignment of the eminent domain proceeding to the County Condemnation Commissioners for Jefferson county for determination of just compensation pursuant to secs. 32.08 and 32.09, Stats. Such assignment was made on January 8, 1968.
On January 24, 1968, pursuant to an affidavit of prejudice filed against the Honorable HENRY G. GERGEN, JR., Circuit Judge for Jefferson county, the Chief Justice of this court, acting in accordance with sec. 253.19, Stats. 1967, ordered the Honorable ERWIN C. ZASTROW, County Judge of Walworth county, to serve and act as acting circuit judge in the 32.06(5) action and "to hear, try and determine all issues therein." The scope of Judge ZASTROW'S appointment was broadened on February 5, 1968, when he was appointed by Judge GERGEN "to act in all respects fully to administer the matter concerned with the petition of the State Conservation Commission to condemn certain premises belonging to Elizabeth Martineau."
" Temporary duty. A county judge may act as county judge in another county or as a circuit judge on the written request of the judge of said court; and, when designated and assigned to so act by the chief justice of the supreme court or other designated justice, shall do so. While acting temporarily as a county judge in another county or as a circuit judge, a county judge has the power to hold court, try cases and exercise all the authority of the presiding judge."
The condemnation commission issued its award of compensation and Mrs. Martineau appealed from it to the circuit court on April 24, 1968.
On December 5, 1968, the trial court held in the 32.06 (5) action that the Commission had authority to condemn Mrs. Martineau's property for state forest purposes and dismissed her complaint. She appealed to this court.
On April 23, 1969, the trial court rendered a decision in the condemnation proceeding, concluding that Mrs. Martineau had ownership of, and an exclusive right of possession to, the property in question, including the bed of a lake on the premises and the strip of land surrounding it. The court also concluded in its decision that the stream leading to the lake was not navigable in its original state, prior to construction of a dam, and that the public had not since that time acquired a right by prescription or implied dedication.
Subsequent to a jury trial on the issue of just compensation, a final judgment was entered in the condemnation proceeding on February 13, 1970, ordering that Mrs. Martineau recover $100,000 with interest as compensation for the taking.
On March 31, 1970, we handed down our decision in the appeal from the 32.06(5) action, holding that the Commission lacked authority to condemn Mrs. Martineau's property interest for state forest purposes, thereby reversing the judgment of the trial court and directing the circuit court "to void the jurisdictional offer and to terminate the condemnation proceeding of the land in question . . . ." Martineau v. State Conservation Comm. (1970), 46 Wis.2d 443, 449, 450, 175 N.W.2d 206. Pursuant to this court's mandate, the trial court, in a "cumulative order" made on October 26, 1970., stated:
"(1) That the Jurisdictional Offer of the defendant, State Conservation Commission of Wisconsin, issued on about 15 September 1967 for the condemnation of certain lands belonging to the plaintiff in Jefferson County is hereby voided.
"(2) That the condemnation proceedings commenced by the defendant, State Conservation Commission of Wisconsin, by Petition to the Honorable Henry G. Gergen, Jr., Judge of the Circuit Court for Jefferson County, and filed with said Court on about 11 October 1967, is hereby terminated and said Petition voided.
"(3) That the Lis Pendens filed by the defendant, State Conservation Commission of Wisconsin, with the Register of Deeds for Jefferson County on 11 October 1967 against the real estate of the plaintiff is hereby voided.
"(4) That the money deposited with the Jefferson County Clerk of Courts for the benefit of Elizabeth Martineau and Beth Carroll Martineau, Trustee, on about 8 March 1968 by the State Conservation Commission of Wisconsin and in the amount of $16,468.60 be returned to the Wisconsin Department of Natural Resources. Such money should be forwarded by check payable to the Wisconsin Department of Natural Resources and sent to the attention of Attorney James F. Bakken, 110 East Main Street, Madison, Wisconsin 53703. The money in question is the amount deposited with the Clerk of Courts as a result of the Jefferson County Condemnation Commission Award filed with the Clerk of Courts on 28 February 1968.
"(5) That the money deposited with the Clerk of Courts for Jefferson County as a deposit in lieu of undertaking by Beth Carroll Martineau in Case No. 4090 and deposited on 4 June 1969 be returned to Beth Carroll Martineau. Said money to be made payable to Beth Carroll Martineau and delivered to Dale T. McKenna, Esq., 317 South Main Street, Jefferson, Wisconsin 53549.
"(6) That the plaintiff be awarded costs in the above captioned cases in accordance with Section 271.04, Wisconsin Statutes, and that such costs be taxed as provided in Section 271.10, Wisconsin Statutes. Fees, as provided in Section 271.04(1), Wisconsin Statutes, shall be allowed in the amount of $100,000 in each case.
"(7) That the plaintiff's motion that said defendant be directed to pay the costs and disbursements of the plaintiff including reasonable attorney fees is hereby denied."
Mrs. Martineau appealed, unsuccessfully, from that portion of the order denying her costs, disbursements and attorney fees. Martineau v. State Conservation Comm. (1972), 54 Wis.2d 76, 194 N.W.2d 664.
On December 9, 1972, subsequent to a hearing on an order to show cause why judgment in accordance with the dictates of the decision of April 23, 1969 (relating to ownership and navigability) should not be entered, the trial court made findings of fact and conclusions of law and signed a judgment in accordance with the 1969 decision. It is from this judgment that the Commission appeals.
While several issues are raised by the parties, our resolution of the following question makes consideration of the others unnecessary: Did the trial court lose jurisdiction over the case by virtue of this court's mandate in Martineau v. State Conservation Comm. (1970), 46 Wis.2d 443, 175 N.W.2d 206, and the trial court's cumulative order?
The Commission contends that upon the entry of the "cumulative order" of October 26, 1970, the entire controversy relating to the condemnation proceeding was terminated, so that on December 9, 1972, there was no case pending before the court in which judgment could be made. Mrs. Martineau counters with the contention that both the mandate of this court in Martineau v. State Conservation Comm., supra, and the trial court's "cumulative order" dismissed only one cause of action, the condemnation proceeding. According to Mrs. Martineau, two other causes of action, one regarding her title and the other regarding navigability, remained pending. She claims that although those causes of actions were never pleaded, "they are considered `pleaded' in the eyes of the law" because they are allegedly immaterial variances.
The issues of title and navigability arose only because they bore on the question of the amount of compensation which Mrs. Martineau was to be awarded in the event of a taking, a fee simple title and exclusive right to possession being worth more than some lesser interest in the property. Thus prior to submitting the question of damages to the jury, the trial court decided both questions. Meanwhile, however, the appeal in the 32.06(5), Stats. action, contesting the right of the Commission to condemn the land, was pending. This court decided that case in favor of Mrs. Martineau, and ordered that the condemnation proceeding be terminated, thereby making the question of the amount of the award moot. The trial court's cumulative order implemented this court's mandate. Two years later, the trial court signed a judgment supporting its decision relating to the ownership and navigability of the land.
The issues of title and navigability were entirely collateral to the aspect of the proceeding relating to the amount of compensation. When the condemnation proceeding was terminated, the issues collateral thereto were likewise dismissed.
Mrs. Martineau contends that the issues of ownership and navigability were separate and distinct causes of action which survived this court's mandate and the cumulative order below. She suggests that the "pleadings" were "informally" amended to include the additional causes of action.
In Lake Geneva v. States Improvement Co. (1969), 45 Wis.2d 50, 58, 172 N.W.2d 176, this court stated:
". . . `Where a good cause of action appears from the proofs received without objection, a variance between the allegations of the complaint and the evidence is not material. The pleadings may be taken as amended to conform to the proofs.' Duffy v. Scott (1940), 235 Wis. 142, 147, 292 N.W. 273. Either the trial court or this court may deem the pleadings so amended when the variance is immaterial. Walber v. Walber (1968), 40 Wis.2d 313, 320, 161 N.W.2d 898."
Putting aside the question of materiality, it is clear that the case at bar does not present a "variance" as that term has been applied in Wisconsin. Mrs. Martineau would have the court consider, by way of amendment, a cause of action only remotely connected to the original proceeding. The mine-run cases involving variances and allowed amendments to conform with the proof involve situations where the ad damnum clause is amended, Lisowski v. Chenenoff (1968), 37 Wis.2d 610, 155 N.W.2d 619; where the facts as proved are different from those alleged, Lake, Geneva v. States Improvement Co., supra; or where the proof supplies facts which were erroneously failed to be alleged in the original pleading, Union Mfg. Co. v. Spies (1923), 181 Wis. 497, 195 N.W. 326.
In this case, not only does Mrs. Martineau seek to have the court consider as pleaded a cause of action taken from the whole cloth, but she also apparently wishes the court to formulate the pleading itself, since even if this case involved a conventional variance there is no pleading to be "taken as amended." The eminent domain proceeding is a special proceeding. Sec. 260.03, Stats. Cornish v. Milwaukee Lake Winnebago R. R. Co. (1884), 60 Wis. 476, 478, 19 N.W. 443; Wisconsin Central R. Co. v. Carnell University (1880), 49 Wis. 162, 164, 5 N.W. 331. The only relevant documents are the jurisdictional offer, the petition for assignment of the matter to the county condemnation commissioners for a determination of just compensation, and the notice of appeal to the circuit court from the award of the condemnation commissioners. Thus there is no pleading to be amended.
We hold that this court's mandate and the lower court's cumulative order terminated the only proceeding pending — the eminent domain proceeding. At that point the questions of title and navigability became moot and were dismissed with the rest of the proceeding. They did not constitute separate, independently surviving causes of action because they were not pleaded and because there is no pleading in existence capable of amendment. At the time the trial court made its judgment, findings and conclusions, there was no case pending before it upon which they could be based.
Should Mrs. Martineau be desirous of resolving the questions of title and navigability, she may proceed to do so by instituting a quiet title action pursuant to sec. 281.01, Stats. 1971, or other appropriate remedy.
By the Court. — Judgment reversed and set aside.