Citation Numbers: 62 Op. Att'y Gen. 64
Judges: ROBERT W. WARREN, Attorney General
Filed Date: 3/16/1973
Status: Precedential
Modified Date: 7/6/2016
DANIEL J. MIRON, District Attorney, Marinette County
You have requested my opinion as to whether a town board in laying out a highway under sec. 80.02 or sec. 80.13, Wis. Stats., may acquire by condemnation county lands entered under sec.
"Any county which has title to any lands eligible to registration as forest crop lands shall be deemed an owner as this term is used in this chapter and may register and withdraw such lands under the provisions of this chapter in the same manner and on the same basis as other owners, except that any such county shall not be required to pay the acreage share prescribed in section
Section
"`County forests' include all county lands entered under and participating under ch. 77 on October 2, 1963, and all county lands designated as county forests by the county board or the forestry committee and entered under the county forest law and designated as `county forest lands' or `county special-use lands' as hereinafter provided."
The registration of county lands, as forest crop lands under former sec.
Section
"The general power of condemnation conferred in this chapter does not extend to property owned by the state, a municipality, public board or commission, nor to the condemnation by a railroad, public utility or electric co-operative of the property of either a railroad, public utility or electric co-operative unless such power is specifically conferred by law . . . ."
In 30 OAG 266 (1941), the opinion was expressed, by implication, that the term "municipality," as used in sec.
The opinion expressed in 47 OAG 270, was based, in part, onChicago N.W. R. Co. v. Racine (1929),
"The appellant relies principally upon the general proposition that land devoted to one public purpose may not be condemned for another public purpose in absence of express statutory authority therefor, and urges that there is no statute in Wisconsin conferring power on cities to take railway property for street purposes. This is too broad a statement of the rule. A more correct statement is that a city may not condemn such property unless there be express statutory authority or such authority appears by necessary implication, and the rule is subject to the further modification that such property may be taken if it can be taken without destroying or materially impairing the use of the property for the existing public use. 20 Corp. Jur. pp. 611, 612; 13 Ruling Case Law, p. 44. Under our statute the power exists by necessary implication; and here the company's use of the property will not be destroyed or very much interferred with. The general power of cities to condemn land is expressed by sec.
Accordingly, I am of the opinion that absent express statutory authority to the contrary, a town may not condemn county land.
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