Voss v. City of Middleton

CHIEF JUSTICE HEFFERNAN

(dissenting). Because the city of Madison's property clearly "abuts" on the portion of Middleton Street sought to be discontinued by the city of Middleton, Madison, as a property owner, had a statutory right to veto Middleton's discontinuance, pursuant to the unambiguous terms of sec. 66.296(2)(c), Stats. Accordingly, I dissent.

The well established rules of statutory construction must be emphasized. The purpose of statutory construction is to give effect to the intent of the legislature. County of Columbia v. Bylewski, 94 Wis. 2d 153, 164, 288 N.W.2d 129 (1980). In determining legislative intent, however, first resort must be to the language of the stat*769ute itself. State v. Derenne, 102 Wis. 2d 38, 45, 306 N.W.2d 12 (1981). Absent statutory definition, words are to be construed according to their ordinary and accepted meaning, which may be established by dictionary definition. State v. Gilbert, 115 Wis. 2d 377-78, 340 N.W.2d 511 (1983). "A statute should be construed so that no word or clause shall be rendered surplusage and every word if possible should be given effect." Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1979). "If the meaning of the statute is clear and unambiguous on its face, resort to extrinsic aids for the purpose of statutory construction is improper." State v. Denter, 121 Wis. 2d 118, 123, 357 N.W.2d 555 (1984).

The majority's proffered construction of sec. 66.296(2)(c), Stats., ignores these rules. Madison is clearly an "abutting" landowner under the plain and unambiguous terms of the statute. According to Webster's Third New International Dictionary, p. 8 (1965), the word "abut" is defined as, "to border on: reach or touch with an end (two lots that [abut] each other.)" Similarly, Black's Law Dictionary, p. 11 (6th ed. 1990), defines the word "abut" as:

To reach; to touch. To touch at the end; be contiguous; join at a border or boundary; terminate on; end at; border on; reach or touch with an end. The term "abutting" implies a closer proximity than the term "adjacent." No intervening land.

The majority's assertion that property is not "abutting" under sec. 66.296(2)(c), Stats., solely due to its physical proximity to a discontinued street (majority op. at p. 752) is directly contrary to the common and well accepted meaning of that term. The legislature did not need to use terms such as "touching" or "adjoining" to convey this meaning, because the ordinary usage of the *770word "abut" clearly and unequivocally carries such a meaning. In interpreting the very same word, "abutting," in another statute declaring the rights of abutting property owners,1 this court in Royal Transit, Inc. v. West Milwaukee, 266 Wis. 271, 274, 63 N.W.2d 62 (1954), adopted and applied the definition found in 10 McQuillin, Municipal Corporations, sec. 30.55, p. 657 (3rd ed.), which set forth what abutting property is:

When no land intervenes between the land of the abutter and the street, his property is said to 'abut.' If the property does abut, the lotline and streetline are in common. Of course, where there is no physical connection between the lotline and the streetline, the owner of the lot is not an abutter.

There is absolutely no dispute that Madison's property touched and bordered Middleton Street and that no land intervened between the two. As the unanimous court of appeals decision properly concluded, sec. 66.296(2) (c), Stats., is clear and unambiguous and this court need not look outside the statute to ascertain the meaning of the word "abut." See Voss, 156 Wis. 2d at 275.

The majority, however, has read into this statute a multi-faceted balancing test to be applied on a case-by-case basis when determining whether a property owner is an "abutter." A court's construction of "abutting," in the view of the majority, should now include such factual considerations as whether the putative "abutter" (1) was *771located within the municipality where the street was to be discontinued and paid taxes to that municipality, (2) can establish a history of prior use and access to the street to be discontinued, and (3) will not threaten the peace and serenity of the area surrounding the street to be discontinued by exercising his or her statutory right to veto such discontinuance and cause some increase in traffic by using the street.

This court's role is to apply statutes as written by the Wisconsin legislature, not to find requirements which appear nowhere within the four corners of the statute. See State v. Richards, 123 Wis. 2d 1, 12, 365 N.W.2d 7 (1985).2 It is unnecessary to examine the scope, history, and context of such an unambiguous statute to discern legislative intent. See Rice v. City of Oshkosh, 148 Wis. 2d 78, 84, 435 N.W.2d 252 (1989).

This court's statutory construction of the synonymous term, "adjoining,"3 in State ex rel. Badtke v. School Board, 1 Wis. 2d 208, 83 N.W.2d 724 (1957), is instructive. In Badtke, the appellants contended that certain territory did not "adjoin" a school district as that word was used in an annexation statute, because the two properties only touched each other in two places by the corners. Id. at 211. Citing prior Wisconsin case law dis*772tinguishing the term "adjoining" from "adjacent," this court ruled that lands which touch each other at a common corner where a third body does not intervene between the two are adjoining lands under the statute. Id. at 212. In spite of the fact that the statutory terms were literally followed, however, the appellants in Badtke persisted in voicing various policy concerns such as the burden of taxation. Id. at 212-13. This court rejected such equitable pleas because the statute was clear on its face. We stated:

Appellants have a good deal to say about the intention of the legislature. The statute is plain and unambiguous. Therefore, "... interpretation is unnecessary, and intentions cannot be imputed to the legislature except those to be gathered from the terms of the law." Estate of Ries (1951), 259 Wis. 453, 459, 49 N. W. (2d) 483, 50 N. W. (2d) 397. If, as appellants submit, the legislature meant something other than it said, the remedy is not in the courts which can deal only with the legislative mandate as that body gave it. Modifications of the statute if it works badly or in unexpected and undesirable ways must be obtained through legislative, not judicial action.

Badtke, 1 Wis. 2d at 213.

The City of Middleton, like the appellants in Badtke, has urged this court to look outside the unambiguous terms of a statute and consider equitable factors. Contrary to well established precedent, here the majority has yielded to Middleton's policy arguments and overstepped the bounds of judicial authority by applying an inappropriate legislative gloss. Moreover, had the majority conducted a historical analysis of sec. 66.296, Stats., and the time-honored statutory rights of abutters to veto street discontinuance, it would have found support only *773for the conclusion that the legislature never intended that a multi-faceted balancing test should control the determination of whether a landowner is an abutter.

As a general matter, it must first be noted that it is the state of Wisconsin and not its cities and municipalities which has absolute control of streets. "Aside from its police or regulatory power, the only power a city has over the use of the streets must be delegated to it by the state." Madison v. Reynolds, 48 Wis. 2d 156, 158, 180 N.W.2d 7 (1970).

Various powers, of course, have been expressly conferred by the Wisconsin legislature on cities through statutory enactments. See Milwaukee v. Milwaukee & Suburban Transport Corp., 6 Wis. 2d 299, 309, 94 N.W.2d 584 (1959). One of these is the general municipal power to vacate or discontinue streets. But as this court explained many years ago: "[W]here a public street or alley has been legally established, it can only be vacated, if at all, in the manner prescribed by statute." Johnston v. Lonstorf, 128 Wis. 17, 23, 107 N.W. 459 (1906). A city's power to vacate a street is statutory only and must be exercised according to the express provisions set forth by the legislature.4 See City of Ashland v. Chicago & Northwestern R. Co., 105 Wis. 398, 404, 80 N.W. 1101 (1900); see generally 39 Am. Jur. 2d, Highways, Streets, and Bridges, secs. 143, 146 (1968).

The statutory provisions in this case derive from sec. 904, Stats., originally enacted by sec. 64, ch. 188, Laws 1872, which permitted a village to discontinue a *774street " [u]pon the petition in writing of all the owners of lots or land on any street" (emphasis supplied). See ch. 40, sec. 904, Stats. (1878); see also James v. City of Darlington, 71 Wis. 173, 174-75, 36 N.W. 834 (1888). Undoubtedly recognizing the potential difficulty of obtaining the consent of all the landowners on a street, sec. 904 was amended by ch. 174, Laws 1891, to permit a street's vacation upon the petition of "all the owners of lots or land on the portion of such street or alley proposed to be vacated and two-thirds of the owners of lots or land on the remainder thereof." See sec. 904, Stats. 1898; see also Baines v. City of Janesville, 100 Wis. 369, 374, 75 N.W. 404, 76 N.W. 481 (1898).

The legislature was apparently still not satisfied with the cumbersome discontinuance scheme, and sec. 904 was repealed and re-enacted by ch. 517, Laws 1911. The new statute permitted municipalities to discontinue streets upon the petition of the owners of:

... all the frontage of the lots and lands abutting upon the portion thereof sought to be discontinued, and of the owners of more than one-half of the frontage of the lots and lands abutting on that portion of the remainder thereof, which lies within two thousand six hundred and fifty feet from the ends of the portion proposed to be discontinued. [Emphasis supplied.]

Section 904, Stats. 1911.

The discontinuance statute was subsequently renumbered to sec. 61.38, and the "veto power" of landowners located on the remainder of the street was again diminished by the legislature's enactment of ch. 421, Laws 1945. In addition to the required consent of all the landowners whose property abutted the portion of the street to be discontinued, the revised statute required the *775consent only of one-half of the landowners abutting on the remainder of the street:

which lies within 2,650 feet from the ends of the portion proposed to be discontinued, or which lies within so much of said 2,650 feet as shall be within the corporate limits of said village. [Emphasis to designate amended portion of statute.]

Section 61.38, Stats. 1945.

Thus, where the territory of the initiating municipality extended for less than 2,650 feet past the end of the discontinued street, the legislature only required the consent of half the abutters on the remainder of the street located within that municipality.

The statute was thereafter renumbered to sec. 66.296 and substantially modified by the passage of ch. 662, Laws 1951. Instead of permitting the discontinuance of a street only through the active petitioning of the various classes of abutters, the legislature once again liberalized the scheme by allowing the municipality's governing body to introduce a resolution on the discontinuance and then forcing any objecting abutters to step forth and affirmatively veto the discontinuance. See sec. 66.296, Stats. 1951.

The three classes of objecting abutters able to carry forth such a veto are now set forth at sec. 66.296(2) (c), Stats., and include: (1) "any of the owners abutting on the portion sought to be discontinued," (2) "the owners of more than one-third of the frontage of the lots and lands abutting on that portion of the remainder thereof which lies within 2,650 feet from the ends of the portion proposed to be discontinued," or (3) "the owners of more than one-third of the frontage of the lots and lands abutting on that portion of the remainder thereof. . . which *776lies within so much of said 2,650 feet as shall be within the corporate limits of the city or village."

As demonstrated above, Madison's property is unequivocally "abutting" on that portion of Middleton Street sought to be discontinued by Middleton; and, accordingly, Madison is a member of the first category of abutters which can veto the discontinuance under sec. 66.296(2)(c), Stats. The fact that Middleton currently has a barricade erected on the street surface is wholly irrelevant; Madison's property line is contiguous to the end of Middleton Street. Land abuts land and not a structure placed upon it. Because it cannot be denied that Madison's property adjoins, touches, meets, comes together with, and is contiguous to the end of Middleton Street, Madison is an "abutting" landowner under the common and ordinary meaning of that statutory term. See Clements v. City of Corpus Christi, 471 S.W.2d 83, 85-6 (Tex. App. 1971); Braden v. Board of Supervisors of Pottawattamie County, 261 Iowa 973, 977, 157 N.W.2d 123 (1968) (construing statutory term "abutting").

Equally significant, the historical evolution of sec. 66.296, Stats., suggests that the legislature never intended that extraneous policy factors be considered when determining who an "abutting" property owner is under the first category of objecting abutters given statutory veto power. First and foremost, whether Madison's property was located within the municipal boundaries of Middleton and was subject to local taxation is wholly irrelevant. The legislature in defining the first category of objecting abutters has made no mention of the need to be within a city's corporate boundaries.

Although the absence of such a provision does not create ambiguity, any perceived ambiguity is dispelled by considering the legislature's designation of a third class *777of objecting abutters who are the only ones to be expressly defined as located "within the corporate limits of the city or village." See sec. 66.296(2)(c), Stats. Under the rule of expressio unius est exclusio alterius,5 we must conclude the legislature's express placement of such a "corporate limits" element in the third category of abut-ters as a complete alternative some 47 years after it had created the first two categories (which made no mention of corporate boundaries) to mean that the first two categories are not so limited.6

Moreover, as noted by the court of appeals, one cannot seriously question that the legislature has established a street discontinuance procedure which was meant to protect the rights of abutting landowners *778located in an adjoining municipality. See Voss, 156 Wis. 2d at 273. While residents of separate municipalities only pay local taxes to their governing bodies, those owning property also abutting another municipality are placed in a vulnerable position. Given that abutting landowners on both sides of a municipal boundary line are in the same position, the state of Wisconsin through its legislature has expressly granted all abutting landowners a veto power over street vacation affecting their rights. As noted above, the state, and not the municipality, has ultimate power over streets. Although the state has delegated some of that power under sec. 66.296, the statute must be strictly followed.

Similarly, there is nothing in sec. 66.296(2)(c), Stats., to indicate that a landowner's prior use of the discontinued street should be considered when determining whether the owner is "abutting." The majority's discussion of an abutting landowner's "right of access" is irrelevant. See majority op. at 758, 763. The statute under consideration here can be sharply contrasted to the "abutting" landowner provisions of one of the "eminent domain" statutes. Section 32.09(6)(b). That statute, which concerns the determination of just compensation when there is a partial taking of property, expressly considers a demonstrable "[deprivation or restriction of existing right of access to highway from abutting land." The ability to veto a street discontinuance under sec. 66.296(2) (c), on the other hand, does not require any showing of a "deprivation or restriction of existing right of access."

The fact that Madison's property physically abuts or adjoins the end of Middleton Street, moreover, in and of itself gives rise to a common law right to the free and unobstructed use of that street. See Miller v. City of Wauwatosa, 87 Wis. 2d 676, 686-87, 275 N.W.2d 376 *779(1979); Royal, 266 Wis. at 274. This court has long held that the right of an abutting landowner to use a street or alley is determined by the public character of that way and not by "the number of persons who choose to exercise that right." See Johnston, 128 Wis. at 22 (quoting Elliott, Roads & Streets (2d ed.), secs. 23, 24, 25).

Any discussion of an alternative "reasonable expectation of access" requirement, as proposed by the City of Middleton and trial court, is equally inappropriate when dealing with the intent of the legislature. Again, the plain and unambiguous terms of the statute do not contemplate this. Even if the legislature had placed such a consideration in sec. 66.296(2)(c), Stats., it cannot seriously be denied that virtually every owner of undeveloped property abutting a street would reasonably expect to have access to that street if and when his or her property became developed. It is legally untenable to suggest that owners of undeveloped land are in a race against time to use an abutting street or lose their veto power under sec. 66.296(2) (c).

In this regard, it must also be recognized that Middleton's use of a barricade to block the end of the street is of no importance.7 The statute here, sec. 66.296, Stats., concerns the procedure for discontinuing streets, not the propriety of a municipality's placement of a barrier under its police power which might also affect an abutting landowner's common law rights to free and *780unobstructed access to the street. See Royal, 266 Wis. at 277. See also Quaglia v. Incorporated Village of Munsey Park, 54 A.D.2d 434, 389 N.Y.S.2d 616, 618-20 (1976), aff'd 377 N.E.2d 473, 44 N.Y.2d 772, 406 N.Y.S.2d 30 (1978) (property owner abutting street in another municipality which is blocked off by barricade has right to have street remain unobstructed).

Finally, the fact that Madison's veto of the street discontinuance might lead to a significant increase in traffic on Middleton Street is likewise not a legislatively recognized consideration under the statutory mandates of sec. 66.296(2) (c), Stats. While the increase in traffic would undoubtedly affect the tranquility associated with living at the end of a cul-de-sac, the statutory procedure does not permit a judge to balance the pros and cons of street vacation. At no time has Middleton framed the issue in terms of the exercise of police power in order to promote public safety or convenience. See Neenah v. Krueger, 206 Wis. 473, 476, 240 N.W. 402 (1932). This court has only been asked to interpret the plain and unambiguous terms of a street discontinuance statute.

The judiciary's job is to interpret statutes adopted by the legislature, not to determine municipal traffic policy questions. Section 66.296(2)(c), Stats., does not contemplate a case-by-case balancing of interests before determining whether a landowner is an abutter. For close to 120 years, our legislature has protected the rights of abutting landowners. While the veto power of landowners located on the remainder of a street has been reduced by various statutory amendments throughout the years, the legislature has never disturbed the absolute veto power of landowners abutting the portion of a street to be discontinued. By this opinion, the majority has usurped the power of the legislature and significantly diminished the rights of abutting property owners.

*781I respectfully dissent and would affirm the decision of the court of appeals.

I am authorized to state that Justices Shirley S. Abrahamson and William A. Bablitch join in this dissent.

The statute at issue in Royal was sec. 80.47, Stats., which provided in relevant part that:

The owners of land abutting on any highway, street, or alley shall have a common right in the free and unobstructed use thereof to its full width . . .

See Royal, 266 Wis. at 273.

The majority's dual conclusions that sec. 66.296(2)(c), Stats., is "clear and unambiguous" (majority op. at p. 752), and that the statutory term "abutting" depends on these various additional considerations are irreconcilable. Both the City of Middleton and the trial court found it necessary to conclude that the statute was ambiguous in order to read these extraneous factors into the statute.

See Black's Law Dictionary, supra at 41, defining "adjoining" as follows (with emphasis supplied): "The word in its etymological sense means touching or contiguous, as distinguished from lying near to or adjacent. To be in contact with; to abut upon."

The legislature, however, did historically allow certain classes of cities to vacate or discontinue streets based on a method established in the city charter. See State ex rel. Manitowoc Land & Fuel Co. v. Kelley, 167 Wis. 91, 95, 166 N.W. 782 (1918). In the case before us, the City of Middleton's discontinuance was based only on the statutory provisions of sec. 66.296, Stats.

See Whitaker v. State, 83 Wis. 2d 368, 374, 265 N.W.2d 575 (1978).

Because Madison belongs to the first category of abutters set forth in sec. 66.296(2)(c), Stats., it is unnecessary to address Madison's alternative claim that it also belongs to the second category of abutters on the remainder of the discontinued street. The majority's assertion that the "corporate limits" provision applies to both the second and third categories, however (see majority op. at 751-752), is erroneous. The legislature's only amendment to the statute in 1945 was the addition of the language: "or which lies within so much of said 2,650 feet as shall be within the corporate limits of said village." See ch. 421, Laws 1945. The use of the conjunction "or" unequivocally indicates that a separate alternative was established. The purpose of such an amendment was to facilitate the discontinuance of a street by only requiring the consent of abutting landowners along the remainder of the street located within the municipality. This is perfectly logical and proper by even common law standards, because the property of these landowners by definition does not abut the portion of the street to be discontinued, and hence no abutter's rights are at issue. See McQuillin, Municipal Corporations, secs. 30.54-30.55 (3rd ed. 1990).

The majority's "barricade" argument (see majority op. at 760-763) fails as a matter of fact. Middleton's engineering staff established that the barrier placed at the end of Middleton Street since 1970 was located within the City of Madison. The barrier was not relocated to the street's end within Middleton until after Voss and Madison filed their written objections pursuant to sec. 66.296(2)(c). Clearly, Madison had access to Middleton Street from its property for over 16 years.