January 7, 1957 —
March 5, 1957.
APPEAL from a judgment of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit judge. Appeal dismissed.
For the appellant there was a brief by Cavanagh, Mittelstaed, Sheldon, Heide Hartley of Kenosha, and oral argument by William A. Sheldon.
For the respondents there was a brief and oral argument by Joseph E. Higgins of Kenosha.
This is an action based on a petition for condemnation tinder sec. 32.04, Stats., wherein Louis J. Barrows and Laura Barrows, his wife, of the town of Somers, Kenosha county, are plaintiffs, and Kenosha county is the defendant. On May 25, 1956, interlocutory judgment was rendered upon order of the circuit court for Kenosha county, Hon. M. EUGENE BAKER, circuit judge, presiding, wherein it was determined that in 1954 Kenosha county took from the petitioners .38 acres of land when it widened a road immediately west of their property; that said taking was necessary; that the court thereafter appoint commissioners to ascertain the compensation to be made for the property taken, in accordance with law.
This appeal is from said interlocutory judgment.
Condemnation statutes are in derogation of the common law and must be strictly construed. Union Mfg. Co. v. Spies (1923), 181 Wis. 497, 19 N.W. 326.
Ch. 32 of the revised statutes treats with procedure in eminent domain. Nowhere in that legislation is authority conferred upon this court to entertain an appeal taken prior to the making of an award by commissioners appointed for such purpose.
Until the commissioners have made an award, a proceeding under ch. 32, Stats., is not of a judicial nature, the judge merely acting in an administrative capacity. Klump v. Cybulski (1957), 274 Wis. 604, 81 N.W.2d 42. See also Olen v. Waupaca County (1941), 238 Wis. 442, 447, 300 N.W. 178; Tobin v. Willow River Power Co. (1932), 208 Wis. 262, 242 N.W. 480; State ex rel. Department of Agriculture v. Aarons (1946), 248 Wis. 419, 22 N.W.2d 160.
Sec. 32.04, Stats., provides two separate and distinct methods by which condemnation may be started. The first course provides the manner in which one who seeks to acquire property belonging to another shall proceed. The other course provides the manner in which owners of property shall proceed against anyone taking their property without first having obtained the right to do so under sec. 32.04. See Skalicky v. Friendship E. L. — P. Co. (1927), 193 Wis. 395, 214 N.W. 388. In the matter at bar we are confronted with a proceeding instituted under the second of such methods as provided by the statute. In Manns v. Marinette — M. P. Co. (1931), 205 Wis. 349, 235 N.W. 426, 238 N.W. 624, the trial court by order had denied the motion of the defendants to vacate and set aside an order appointing commissioners in a condemnation proceeding begun by the owners of the property under the statute. The appeal was from such order. This court there stated (p. 350):
"Where no statute authorizes an appeal to this court there can be no appeal. Puffer v. Welch, 141 Wis. 304, 124 N.W. 406; Wildes v. Franke 157 Wis. 189, 146 N.W. 1119."
In the Mann Case it was also said (p. 355):
"For the purposes of this case it is sufficient to say that whether these proceedings were judicial or not, . . . the order entered did not determine the action, nor prevent a judgment from which an appeal might be taken. The appellants could have appealed from the award of the commissioners, in which proceeding all of their rights would have been determined, under the doctrine of Skalicky v. Friendship E. L. — P. Co. 193 Wis. 395, 214 N.W. 388. Under such circumstances the order was not appealable, even though made in special proceedings. It was not a final order. Sec. 274.33, Stats."
In the instant matter commissioners were not appointed by the court and an award was not made. As a consequence we are constrained to conclude that this court lacks jurisdiction to entertain the appeal from the interlocutory order rendered by the court prior to an award by commissioners, and that hence the appeal must be dismissed.
By the Court. — Appeal dismissed.