HALLOWS, C. J.
The property in question consists of approximately 58 acres lying just east of Palmyra, north
The dispute over this property has a dramatic history beginning in 1962 when the board first attempted to purchase and add it to other government owned property in the Kettle Moraine State Forest. However, Mrs. Martineau has consistently declined to sell the property to the state. In 1964 the board determined Scuppernong Creek was navigable water and told all persons who inquired that they could use the lake for fishing and hunting. The board published a brochure containing a map of the Kettle Moraine State Forest which included this property as part of the forest without designating it as being privately owned. Although Mrs. Martineau posted signs, there were many trespassers and the
The situation has become a "cause celebre" in southeastern Wisconsin and involves the efforts of a woman to defend her land against what she believes to be the encroachment by the state and the violations of her rights by the public encouraged by the state. She has defended her rights to the extent of using a gun to ward off trespassers.
In the record there is an account of how Mrs. Martineau, described as a crack shot, pumped three bullets into the prow of the boat of two astonished Milwaukee men who were fishing on the pond and who were led to believe they had a right to do so by the state of Wisconsin but had been warned to keep off the pond by Mrs. Martineau. The incident recalls another historic defense of private property of a generation ago by a farmer, John F. Dietz, who lived upon a small stream in Sawyer county near Winter. That incident was known as the "Battle of Cameron Dam" and the trial of Dietz for killing a law officer is reported in Dietz v. State (1912), 149 Wis. 462, 136 N. W. 166.
The board wants Mrs. Martineau's property and plans to use it with the surrounding land the state owns or is acquiring in the Kettle Moraine State Forest for use as a group camp. The state plans to build dormitories, a mess hall, necessary sanitation facilities, and associated playgrounds for use by school groups such as boys' schools, girls' schools, and 4-H groups. The question is, has the board the power to acquire this property within the state forest by condemnation? The answer depends upon the construction of three sections of the statutes, i.e., the Conservation Act of 1927, the eminent domain statute of 1919, and secs. 28.01 through 28.09 created in 1949 relating to state forests.
Mrs. Martineau argues that these sections are not applicable to her property because sec. 28.02 (2), Stats.,
The trial court held that the failure to grant by express delegation the right of condemnation to the board in ch. 28 did not indicate an intention to prohibit condemnation of property for the Kettle Moraine State Forest. The trial court reasoned the rules of statutory construction required it to construe sec. 28.02 (2) in harmony with sec. 23.09 (7) (d), otherwise the latter section would be repealed by implication which is not favored by the law. We disagree. Such a construction reads into sec. 28.02 (2) a power which is not there.
Only those parts of sec. 23.09 (7) (d) and of sec. 32.02 (1), Stats., to the extent of their application to the state forests, are repealed by implication, and this is justified because the legislature intended to do just that
It is a cardinal rule of statutory construction that when a general and a specific statute relate to the same subject matter, the specific statute controls and this is especially true when the specific statute is enacted after the enactment of the general statute. Raisanen v. Milwaukee (1967), 35 Wis.2d 504, 516, 151 N.W.2d 129; Wauwatosa v. Grunewald (1962), 18 Wis.2d 83, 118 N.W.2d 128; Pruitt v. State (1962), 16 Wis.2d 169, 114 N.W.2d 148; Maier v. Racine County (1957), 1 Wis.2d 384, 84 N.W.2d 76; see also Union Cemetery v. Milwaukee (1961), 13 Wis.2d 64, 108 N.W.2d 180. We must construe sec. 28.02 (2), Stats., to mean the board does not have the power by condemnation to acquire lands lying within the boundaries of an established state forest but is restricted to grants, devises, gifts, or purchases of such property.
Because of this disposition of the case, it is not necessary to consider the questions of necessity and of bad faith raised in the trial court and argued on appeal.
By the Court.—Judgment reversed, with directions to the circuit court to void the jurisdictional offer and to
WILKIE, J., took no part after oral argument.
"(7) COMMISSION RULES; STUDIES; SURVEYS; SERVICES; PENALTIES; POWERS; LONG-RANGE PLANNING. ... The commission may:
"(d) Lands, acquisition. Acquire by purchase, condemnation, lease or agreement, and receive by gifts or devise, lands or waters suitable for the purpose hereinafter enumerated, and maintain the same for the said purposes:
"1. For state forests for the purpose of growing timber, demonstrating forestry methods, protecting watersheds or providing public recreation.
"2. For state parks for the purpose of preserving scenic or historical values or natural wonders.
"(1) Any county, town, village, city including villages and cities incorporated under general or special acts, school district, soil conservation district, the state department of public welfare, the regents of the university of Wisconsin, the board of regents of state colleges, a commission created by contract under s. 66.30, with the approval of the municipality in which condemnation is proposed, or any public board or commission, for any lawful purpose, but in the case of city and village boards or commissions approval thereof shall have been granted by the governing body."
"(2) ACQUISITION. The commission may acquire lands or interest in lands by grant, devise, gift or purchase within the boundaries of established state forests or purchase areas; and outside of such boundaries for forest nurseries, tracts for forestry research or demonstration and for forest protection structures, or for access to such properties."