Chapter 32

32.05 Annotation Sub. (11) does not require service of an authenticated copy of a notice of appeal. To cut off the landowners’ right to a review when they complied with the literal language of the service requirement in sub. (11) would be extraordinarily harsh. Landings LLC v. City of Waupaca, 2005 WI App 181, 287 Wis. 2d 120, 703 N.W.2d 689, 04-1301.

32.05 Annotation Section 801.02 (1) serves to extend by 90 days the two-year deadline in sub. (9) (a) for the filing of the proof of service. When the original assignment of an appeal to the condemnation commission was premature because the proof of service had not yet been filed, but the defect was corrected within the extended time limits, there was no impediment to the issuance of a fresh assignment of the appeal. Community Development Authority v. Racine County Condemnation Commission, 2006 WI App 51, 289 Wis. 2d 613, 712 N.W.2d 380, 05-1370.

32.05 Annotation Complete condemnation of a property terminates a lease attached to that property, but the parties to a lease may contract for their rights and obligations in the event of a condemnation. Condemnation does not necessarily preclude a lessor from seeking a remedy against a lessee in a breach of contract action. Wisconsin Mall Properties, LLC v. Younkers, Inc., 2006 WI 95, 293 Wis. 2d 573, 717 N.W.2d 703, 05-0323.

32.05 Annotation In satisfying its statutory obligation to make available a comparable replacement property under sub. (8) (c) and prior to being entitled to a writ of assistance, the condemnor must identify one or more properties that meet the parameters of s. 32.19 (2) (c) to serve as a comparable replacement business. A condemnor has no open-ended obligation to provide a replacement property that is acceptable to the business being relocated. City of Janesville v. CC Midwest, Inc., 2007 WI 93, 302 Wis. 2d 599, 734 N.W.2d 428, 04-0267.

32.05 Annotation When read in conjunction with sub. (7) (d), s. 59.40 (3) (c) empowers a circuit judge not only to veto the clerk’s authority to invest a condemnation award but also to direct the clerk to transfer the award from the clerk’s control into a private money market account for the benefit of the persons named in the award or to otherwise invest the funds for the benefit of those persons. HSBC Realty Credit Corp. v. City of Glendale, 2007 WI 94, 303 Wis. 2d 1, 735 N.W.2d 77, 05-1042.

32.05 Annotation Although sub. (5) allows owners to bring a wide range of cases, the necessity of a condemnation will be upheld absent a showing of fraud, bad faith, or a gross abuse of discretion. A reviewing court may find a gross abuse of discretion when there is utter disregard for the necessity of the use of the land or when the land is taken for an illegal purpose. Generally, an allegedly unsafe road design does not constitute an utter disregard for the necessity of the use of the land. Kauer v. DOT, 2010 WI App 139, 329 Wis. 2d 713, 793 N.W.2d 99, 09-1615.

32.05 Annotation Sub. (11) makes clear that a party in interest does not lose any rights by not joining in another party’s appeal of an award. Sub. (9) (a) 1. makes clear that the unit rule applies in cases in which all parties in interest have not joined in an appeal and instructs that the separate property interests shall, in cases of dispute, be resolved by a separate partition action. A party does not lose its right to bring a claim for partition by accepting payment from the Department of Transportation for relocation expenses, which are distinct from the department’s award for the fair market value of the property taken. Lamar Co. v. Country Side Restaurant, Inc., 2012 WI 46, 340 Wis. 2d 335, 814 N.W.2d 159, 10-2023.

32.05 Annotation There is no language in this section that supports the argument that the jurisdictional offer under sub. (3) must equal the appraisal on which the offer is based and no language that would prevent a condemnor from offering more than the appraised amount as part of the effort to “attempt to negotiate personally with the owner” under sub. (2a). Otterstatter v. City of Watertown, 2017 WI App 76, 378 Wis. 2d 697, 904 N.W.2d 396, 16-2000. See also Christus Lutheran Church of Appleton v. DOT, 2021 WI 30, 396 Wis. 2d 302, 956 N.W.2d 837, 18-1114.

32.05 Annotation There is no statutory provision suggesting that an appraisal cannot serve as the basis for a jurisdictional offer because it is too old. Under Schey, 52 Wis. 2d 361 (1971), an appraisal offered to support the amount of compensation at a just compensation trial after an award of damages has been recorded must be conducted on the day of taking. However, the provisions that govern activity after an award of damages do not apply to jurisdictional offers, which precede the award of damages. Otterstatter v. City of Watertown, 2017 WI App 76, 378 Wis. 2d 697, 904 N.W.2d 396, 16-2000.

32.05 Annotation The language in sub. (8) (b) is unambiguous. Written notice to vacate must be provided at least 90 days before the intended vacation date. There is no language in the statute indicating that the 90-day notice must be provided after the condemnor has acquired title to the property. Regardless of when a condemnor provides the 90-day notice, the condemnor may not apply for a writ of assistance to require an owner to vacate until after the condemnor has acquired title. Otterstatter v. City of Watertown, 2017 WI App 76, 378 Wis. 2d 697, 904 N.W.2d 396, 16-2000.

32.05 Annotation The meaning of “based” “upon” is that the appraisal must be a supporting part or fundamental ingredient of the jurisdictional offer. In this case, the appraisal discussed and considered severance damages and other items, despite not allocating compensation for those items. The Department of Transportation’s actions in re-examining and reassessing those items that were considered but not fully addressed in the appraisal did not mean the jurisdictional offer was not “based” “upon” the appraisal as required by subs. (2) (b) and (3) (e). Christus Lutheran Church of Appleton v. DOT, 2021 WI 30, 396 Wis. 2d 302, 956 N.W.2d 837, 18-1114.

32.05 Annotation The focus of sub. (2) (a) is the appraisal of “property.” Section 32.01 (2) defines “property” as including estates in lands, fixtures, and personal property directly connected with lands. Damages are not included in the definition of property. In this case, the fact that the jurisdictional offer included compensation for severance damages not found in the appraisal did not mean that the appraisal failed to satisfy sub. (2) (a). Christus Lutheran Church of Appleton v. DOT, 2021 WI 30, 396 Wis. 2d 302, 956 N.W.2d 837, 18-1114.

32.05 Annotation Sub. (5) is just one of several statutes that enable property owners to challenge the Department of Transportation when it undertakes highway construction projects affecting private property. The appropriate statute depends on the facts of the case and the nature of the challenged governmental action. Those statutes are not interchangeable, and, even if a highway construction project results in damages that are compensable under a particular statute, those damages cannot be recovered in a claim brought under the wrong statute. In this case, the property owner could not recover damages for the closure of its driveway under sub. (5) because the access rights that the owner alleged it lost were distinct from the taking described in the department’s jurisdictional offer. DEKK Property Development, LLC v. DOT, 2023 WI 30, 406 Wis. 2d 768, 988 N.W.2d 653, 20-2146.

32.05 Annotation Statutory Restrictions on the Exercise of Eminent Domain in Wisconsin: Dual Requirements of Prior Negotiation and Provision of Negotiating Materials. Plaetzer. 63 MLR 489 (1980).

32.05 Annotation Towards Success in Eminent Domain Litigation. Southwick. WBB Oct. 1973.

32.05 Annotation New Developments In Law of Eminent Domain, Condemnation and Relocation. Thiel. WBB June 1979.

32.06 32.06 Condemnation procedure in other than transportation matters. The procedure in condemnation in all matters except acquisitions under s. 32.05 or 32.22, acquisitions under subch. II, acquisitions under subch. II of ch. 157, and acquisitions under ch. 197, shall be as follows:

32.06(1) (1) Determination of necessity of taking. The necessity of the taking shall be determined as provided in s. 32.07.

32.06(2) (2) Appraisal.

32.06(2)(a) (a) The condemnor shall cause at least one (or more in the condemnor’s discretion) appraisal to be made of the property proposed to be acquired. In making any such appraisal the appraiser shall confer with the owner or one of the owners, or the personal representative of the owner or one of the owners, if reasonably possible.

32.06(2)(b) (b) The condemnor shall provide the owner with a full narrative appraisal upon which the jurisdictional offer is based and a copy of any appraisal made under par. (a) and at the same time shall inform the owner of his or her right to obtain an appraisal under this paragraph. The owner may obtain an appraisal by a qualified appraiser of all property proposed to be acquired, and submit the reasonable costs of the appraisal to the condemnor for payment. The owner shall submit a full narrative appraisal to the condemnor within 60 days after the owner receives the condemnor’s appraisal. If the owner does not accept a negotiated offer under sub. (2a) or the jurisdictional offer under sub. (3), the owner may use an appraisal prepared under this paragraph in any subsequent appeal.

32.06(2a) (2a) Agreed price. Before making the jurisdictional offer under sub. (3) the condemnor shall attempt to negotiate personally with the owner or one of the owners or his or her representative of the property sought to be taken for the purchase of the same. In such negotiation the condemnor shall consider the owner’s appraisal under sub. (2) (b) and may contract to pay the items of compensation enumerated in ss. 32.09 and 32.19 where shown to exist. Before attempting to negotiate under this subsection, the condemnor shall provide the owner or his or her representative with copies of applicable pamphlets prepared under s. 32.26 (6). When negotiating under this subsection, the condemnor shall provide the owner or his or her representative with the names of at least 10 neighboring landowners to whom offers are being made, or a list of all offerees if less than 10 owners are affected, together with a map showing all property affected by the project. Upon request by an owner or his or her representative, the condemnor shall provide the name of the owner of any other property which may be taken for the project. The owner or his or her representative shall also have the right, upon request, to examine any maps in the possession of the condemnor showing property affected by the project. The owner or his or her representative may obtain copies of such maps by tendering the reasonable and necessary costs of preparing copies. The condemnor shall record any conveyance by or on behalf of the owner of the property to the condemnor executed as a result of negotiations under this subsection with the register of deeds of the county in which the property is located. The condemnor shall also record a certificate of compensation stating the identity of all persons having an interest of record in the property immediately prior to its conveyance, the legal description of the property, the nature of the interest acquired and the compensation for such acquisition. The condemnor shall serve upon or mail by certified mail to all persons named therein a copy of the statement and a notice of the right to appeal the amount of compensation under this subsection. Any person named in the certificate may, within 6 months after the date of its recording, appeal from the amount of compensation therein stated by filing a petition with the judge of the circuit court of the county in which the property is located for proceedings to determine the amount of just compensation. Notice of such petition shall be given to all persons having an interest of record in such property. The judge shall forthwith assign the matter to the chairperson of the county condemnation commissioners for hearing under sub. (8). The procedures prescribed under subs. (9) (a) and (b), (10) and (12) and chs. 808 and 809 shall govern such appeals. The date the conveyance is recorded shall be treated as the date of taking and the date of evaluation.

32.06(3) (3) Making jurisdictional offer. The condemnor shall make and serve the jurisdictional offer and notice in the form (insofar as applicable) and manner of service provided in s. 32.05 (3) and (4), but lis pendens shall not be filed until date of petition under sub. (7). The offer shall state that if it is not accepted within 20 days, the condemnor may petition for a determination of just compensation by county condemnation commissioners and that either party may appeal from the award of the county condemnation commissioners to the circuit court within 60 days as provided in sub. (10).

32.06(3m) (3m) Uneconomic remnant.

32.06(3m)(a) (a) In this subsection, “uneconomic remnant” means the property remaining after a partial taking of property, if the property remaining is of such size, shape, or condition as to be of little value or of substantially impaired economic viability.

32.06(3m)(b) (b) If acquisition of only part of a property would leave its owner with an uneconomic remnant, the condemnor shall offer to acquire the remnant concurrently and may acquire it by purchase or by condemnation if the owner consents.

32.06(4) (4) Right of minors and individuals adjudicated incompetent. If any person having an ownership interest in the property proposed to be condemned is a minor or is adjudicated incompetent, a special guardian shall be appointed for the person pursuant to s. 32.05 (4).

32.06(5) (5) 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. The trial of the issues raised by the pleadings in such action shall be given precedence over all other actions in said court then not on trial. If such action is not commenced within the time limited the owner or other person having any interest in the property shall be forever barred from raising any such objection in any other manner. The commencement of an action by an owner under this subsection shall not prevent a condemnor from filing the petition provided for in sub. (7) and proceeding thereon. Nothing in this subsection shall be construed to limit in any respect the right to determine the necessity of taking as conferred by s. 32.07 nor to prevent the condemnor from proceeding with condemnation during the pendency of the action to contest the right to condemn. This section shall not apply to any owner who had a right to bring a proceeding pursuant to s. 66.431 (7), 1959 stats., prior to its repeal by chapter 526, laws of 1961, effective on October 8, 1961, and, in lieu of this section, s. 66.431 (7), 1959 stats., as it existed prior to such effective date of repeal shall be the owner’s exclusive remedy.

32.06(6) (6) Acceptance of jurisdictional offer. The owner has 20 days from the date of personal service of the jurisdictional offer or 20 days from the date of postmark of the certified mail letter transmitting such offer or 20 days from the date of filing the final judgment order or remittitur in the circuit court of the county in an action commenced under sub. (5), if the judgment permits the taking of the land, in which to accept the jurisdictional offer and deliver the same to the condemnor. If the offer is accepted, the transfer of title shall be accomplished within 60 days after acceptance including payment of the consideration stipulated in such offer unless such time is extended by mutual written consent of the condemnor and condemnee. If the jurisdictional offer is rejected in writing by all of the owners of record the condemnor may proceed to petition in condemnation forthwith. If the owner fails to convey the condemnor may proceed as hereinafter set forth.

32.06(7) (7) Petition for condemnation proceedings. If the jurisdictional offer is not accepted within the periods limited in sub. (6) or the owner fails to consummate an acceptance as provided in sub. (6), the condemnor may present a verified petition to the circuit court for the county in which the property to be taken is located, for proceedings to determine the necessity of taking, where such determination is required, and the amount of just compensation. The petition shall state that the jurisdictional offer required by sub. (3) has been made and rejected; that it is the intention of the condemnor in good faith to use the property or right therein for the specified purpose. It shall name the parties having an interest of record in the property as near as may be and shall name the parties who are minors, who are adjudicated incompetent, or whose location is unknown. The petition may not disclose the amount of the jurisdictional offer, and if it does so it is a nullity. The petition shall be filed with the clerk of the court. Notice of the petition shall be given as provided in s. 32.05 (4) to all persons having an interest of record in the property, including the special guardian appointed for minors or individuals adjudicated incompetent. A lis pendens shall be filed on the date of filing the petition. The date of filing the lis pendens is the “date of evaluation” of the property for the purpose of fixing just compensation, except that if the property is to be used in connection with the construction of a facility, as defined under s. 196.491 (1), the “date of evaluation” is the date that is 2 years prior to the date on which the certificate of public convenience and necessity is issued for the facility. The hearing on the petition may not be earlier than 20 days after the date of its filing unless the petitioner acquired possession of the land under s. 32.12 (1) in which event this hearing is not necessary. If the petitioner is entitled to condemn the property or any portion of it, the judge immediately shall assign the matter to the chairperson of the county condemnation commissioners for hearing under s. 32.08. An order by the judge determining that the petitioner does not have the right to condemn or refusing to assign the matter to the chairperson of the county condemnation commissioners may be appealed directly to the court of appeals.

32.06(8) (8) Commission hearing. Thereafter the commission shall proceed in the manner and with the rights and duties as specified in s. 32.08 to hear the matter and make and file its award with the clerk of the circuit court, specifying therein the property or interests therein taken and the compensation allowed the owner, and the clerk shall give certified mail notice with return receipt requested of such filing, with a copy of the award to condemnor and owner.

32.06(9) (9) Abandonment of proceedings; or payment of award.

32.06(9)(a) (a) Within 30 days after the date of filing of the commission’s award, the condemnor shall petition the circuit court for the county wherein the property is situated, upon 5 days’ notice by certified mail to the owner, for leave to abandon the petition for taking if the condemnor desires to abandon the proceeding. The circuit court shall grant the petition upon such terms as it deems just, and shall make a formal order discontinuing the proceeding which order shall be recorded in the judgment record of the court after the record of the commission’s award. The order shall operate to divest any title of condemnor to the lands involved and to automatically discharge the lis pendens.

32.06(9)(b) (b) If condemnor does not elect to abandon the condemnation proceeding as provided in par. (a), it shall within 70 days after the date of filing of the commission’s award, pay the amount of the award, plus legal interest from the date of taking but less delinquent tax liens, proportionately allocated as in division in redemption under ss. 74.51 and 75.01 when necessary and less prorated taxes of the year of taking, if any, likewise proportionately allocated when necessary, to the owner and take and file the owner’s receipt therefor with the clerk of the circuit court, or at the option of the condemnor pay the same into the office of the clerk of the circuit court for the benefit of the parties having an interest of record on the date of evaluation in the property taken and give notice thereof by certified mail to such parties. If the condemnor pays the amount of said award within 14 days after the date of filing of the commission’s award, no interest shall accrue. Title to the property taken shall vest in the condemnor upon the filing of such receipt or the making of such payment.

32.06(9)(c) (c)

32.06(9)(c)1. 1. In this paragraph, “condemnor” has the meaning given in s. 32.185.

32.06(9)(c)2. 2. No person occupying real property may be required to move from a dwelling or move his or her business or farm without at least 90 days’ written notice of the intended vacation date from the condemnor. The person shall have rent-free occupancy of the acquired property for a period of 30 days commencing with the next 1st or 15th day of the month after title vests in the condemnor, whichever is sooner. Any person occupying the property after the date that title vests in the condemnor is liable to the condemnor for all waste committed or allowed by the occupant on the lands condemned during the occupancy. The condemnor has the right to possession when the persons who occupied the acquired property vacate, or hold over beyond the vacation date established by the condemnor, whichever is sooner, except as provided under subd. 3. If the condemnor is denied the right of possession, the condemnor may, upon 48 hours’ notice to the occupant, apply to the circuit court where the property is located for a writ of assistance to be put in possession. The circuit court shall grant the writ of assistance if all jurisdictional requirements have been complied with, if the award has been paid or tendered as required and if the condemnor has made a comparable replacement property available to the occupants, except as provided under subd. 3.

32.06(9)(c)3. 3. The condemnor may not require the persons who occupied the premises on the date that title vested in the condemnor to vacate until a comparable replacement property is made available. This subdivision does not apply to any person who waives his or her right to receive relocation benefits or services under s. 32.197 or who is not a displaced person, as defined under s. 32.19 (2) (e), unless the acquired property is part of a program or project receiving federal financial assistance.

32.06(10) (10) Appeal to circuit court. Within 60 days after the date of filing of the commission’s award either condemnor or owner may appeal to the circuit court by giving notice of appeal to the opposite party and to the clerk of the circuit court as provided in s. 32.05 (10). The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant. It shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions brought therein, but the only issues to be tried shall be questions of title, if any, as provided by ss. 32.11 and 32.12 and the amount of just compensation to be paid by condemnor, and it shall have precedence over all other actions not then on trial. It shall be tried by jury unless waived by both plaintiff and defendant. The amount of the jurisdictional offer or of the commission’s award shall not be disclosed to the jury during such trial.

32.06(10)(a) (a) If the jury verdict as approved by the court exceeds the commission’s award, the owner shall have judgment increased by the amount of legal interest from the date title vests in condemnor to date of entry of judgment on the excess of the verdict over the compensation awarded by the commission.

32.06(10)(b) (b) If the jury verdict as approved by the court does not exceed the commission’s award, the condemnor shall have judgment against the owner for the difference between the verdict and the amount of the commission’s award, with legal interest on such difference from the date condemnor paid such award.

32.06(10)(c) (c) If the jury verdict as approved by the court exceeds the amount of the jurisdictional offer, the condemnor may within 40 days after filing of such verdict petition the court for leave to abandon the proceeding and thereafter sub. (9) (a) shall apply.

32.06(10)(d) (d) All judgments required to be paid shall be paid within 60 days after entry of judgment unless within this period appeal is taken to the court of appeals or unless condemnor has petitioned for and been granted an order abandoning the condemnation proceeding. Otherwise such judgment shall bear interest from the date of entry of judgment at the rate of 10 percent per year until payment.

32.06(11) (11) Withdrawal of compensation paid into court; bond. If either party appeals from the award of the commission, the owner shall not be entitled to receive the amount of compensation paid into court by condemnor unless the owner files with the clerk of the court a surety bond executed by a licensed corporate surety company in an amount equal to one-half of the commission’s award, conditioned to pay to the condemnor, any sums together with interest and costs as allowed by the court, by which the award of the commission may be diminished.

32.06(12) (12) Effect of determination of compensation by the court where jury waived. If the action is tried by the court upon waiver of a jury, the determination of the amount of the damages by the court shall be considered in lieu of the words “jury verdict as approved by the court” where such language occurs in this section.

32.06 History History: 1973 c. 244; 1975 c. 68, 410, 422; 1977 c. 29; 1977 c. 187 s. 134; 1977 c. 438, 440, 447, 449; 1979 c. 37; 1979 c. 110 s. 60 (13); 1981 c. 390; 1983 a. 27; 1983 a. 219 ss. 4, 46; 1983 a. 236 s. 13; 1983 a. 302 s. 8; 1985 a. 316 s. 25; 1987 a. 378; 1991 a. 39, 316; 1993 a. 184; 1997 a. 204; 2005 a. 387; 2013 a. 168 s. 21; 2015 a. 196.

32.06 Annotation There was no failure to negotiate when the condemnor made an offer based on a competent appraisal offer after the condemnee had already rejected an offer that was higher and had refused to make a counteroffer. Herro v. Natural Resources Board, 53 Wis. 2d 157, 192 N.W.2d 104 (1971).

32.06 Annotation A news report of the amount of the jurisdictional offer did not invalidate the proceedings when the record did not show that the condemnation commission knew of it or was influenced by it. Herro v. Natural Resources Board, 53 Wis. 2d 157, 192 N.W.2d 104 (1971).

32.06 Annotation Costs may not be recovered if condemnation proceedings are involuntarily terminated by court order. Martineau v. State Conservation Commission, 54 Wis. 2d 76, 194 N.W.2d 664 (1972).

32.06 Annotation The issues of title and navigability were entirely collateral to the amount of compensation. When the condemnation proceeding was terminated, the issues collateral thereto were likewise dismissed. Martineau v. State Conservation Commission, 66 Wis. 2d 439, 225 N.W.2d 613 (1975).

32.06 Annotation An owner who under sub. (5) contests a condemnation on grounds that achievement of the stated public purpose is too remote or contingent must demonstrate a lack of reasonable assurance that the intended use will come to pass. Falkner v. Northern States Power Co., 75 Wis. 2d 116, 248 N.W.2d 885 (1977).

32.06 Annotation A condemnor did not exercise condemnation powers when it made a jurisdictional offer. Discussing a lessee’s share of a condemnation award. Maxey v. Redevelopment Authority, 94 Wis. 2d 375, 288 N.W.2d 794 (1980).

32.06 Annotation Time computations under sub. (10) and s. 32.05 (10) (a) are controlled by s. 801.15 (1), not s. 990.001 (4). Gangler v. Wisconsin Electric Power Co., 110 Wis. 2d 649, 329 N.W.2d 186 (1983).

32.06 Annotation Discussing notice of appeal under sub. (10) and the unit rule. Green Bay Broadcasting Co. v. Redevelopment Authority, 116 Wis. 2d 1, 342 N.W.2d 27 (1983).

32.06 Annotation Confirmed as modified on reconsideration. 119 Wis. 2d 251, 349 N.W.2d 478 (1984).

32.06 Annotation A condemnee may, under s. 805.04, voluntarily dismiss an appeal to a circuit court without court order. Dickie v. City of Tomah, 160 Wis. 2d 20, 465 N.W.2d 262 (Ct. App. 1990).

32.06 Annotation Sub. (2a) does not require the condemnor to file the certificate of compensation at the same time that it records the conveyance. Kurylo v. Wisconsin Electric Power Co., 2000 WI App 102, 235 Wis. 2d 166, 612 N.W.2d 380, 99-1342.

32.06 Annotation The existence of an uneconomic remnant is not an issue of just compensation for a jury to decide under sub. (10). The proper forum in which to declare an uneconomic remnant and to compel the condemnor to include compensation for the remnant in its offer is in an action under sub. (5). Sub. (3m) requires the condemnor to make a concurrent offer to purchase or condemn an uneconomic remnant. A property owner who is left with a substantially diminished parcel of unencumbered property must have the right to contest a condemnation that does not acknowledge an uneconomic remnant. The only statute that provides the property owner with a forum for asserting such a right is sub. (5). Waller v. American Transmission Co., 2009 WI App 172, 322 Wis. 2d 255, 776 N.W.2d 612, 09-0411.

32.06 Annotation A clerk of circuit court must comply strictly with the notice requirements in sub. (8) in order to commence the 60-day time limit for an appeal under sub. (10). Dahir Lands, LLC v. American Transmission Co., 2010 WI App 167, 330 Wis. 2d 556, 794 N.W.2d 784, 09-2583.

32.06 Annotation Whether a property is an uneconomic remnant under sub. (3m) is not just a question of value. A circuit court must also determine whether the property is of substantially impaired economic viability. A court must first determine whether a property is an uneconomic remnant before moving on to the just compensation issue. Waller v. American Transmission Co., 2011 WI App 91, 334 Wis. 2d 740, 799 N.W.2d 487, 10-1447.

32.06 Annotation Sub. (5) sets out the proper and exclusive way for a property owner to raise a claim that the owner will be left with an uneconomic remnant after a partial taking by the condemnor. An uneconomic remnant claim should be brought under sub. (5) because the condemnor has failed to include an offer to acquire any uneconomic remnant in the condemnor’s jurisdictional offer. The inclusion of an offer to acquire an uneconomic remnant acknowledges the existence of the uneconomic remnant. The exclusion of such an offer indicates that the condemnor disputes the existence of an uneconomic remnant. Waller v. American Transmission Co., 2013 WI 77, 350 Wis. 2d 242, 833 N.W.2d 764, 12-0805.

32.06 Annotation A jury verdict need not be set aside on the ground that the before-taking and after-taking values arrived at by the jury exceed the values offered by the parties’ experts. The jury is permitted to accept or reject figures experts use in determining the value of condemned property and to make adjustments to those figures based on its own view of the evidence. Geise v. American Transmission Co., 2014 WI App 72, 355 Wis. 2d 454, 853 N.W.2d 564, 11-0482.

32.06 Annotation Under sub. (10) (d), a judgment that is appealed within 60 days after entry of judgment does not have to be paid within that time period. The judgment nonetheless bears interest from the date of entry of judgment if it is not paid within that time period, assuming the judgment, or some portion of it, is upheld on appeal. Geise v. American Transmission Co., 2014 WI App 72, 355 Wis. 2d 454, 853 N.W.2d 564, 11-0482.

32.06 Annotation Sub. (2a) does not require a condemnor to negotiate in good faith regarding any subject other than condemnation. Zastrow v. American Transmission Co., 2018 WI App 51, 383 Wis. 2d 644, 916 N.W.2d 821, 17-1848.

32.06 Annotation A right-to-take case under sub. (5) is a limited purpose action and addresses issues related to the condemnor’s right to acquire the property. This type of action does not reach the amount of compensation owed to the property owner if the condemning authority is successful. But it is the only opportunity to raise an objection to the authority’s right to acquire the property. DSG Evergreen Family Limited Partnership v. Town of Perry, 2020 WI 23, 390 Wis. 2d 533, 939 N.W.2d 564, 17-2352.

32.06 Annotation The only issues the parties may litigate in a just compensation case under sub. (10) are matters of title and the amount of money to be paid to the property owner. Not only must the circuit court follow a statutorily-prescribed method of calculating just compensation, the court, under s. 32.09 (6), must also assume the completion of the public improvement when doing so. Thus, in this case, even if the property owner was convinced the condemnor would renege on its road-building obligation, or perform it inadequately or short of the required standards, the property owner could not have litigated that issue in the just compensation case, and claim preclusion did not bar the property owner’s later claim that the condemnor did not build the replacement road to the standards required by the condemnation petition. DSG Evergreen Family Limited Partnership v. Town of Perry, 2020 WI 23, 390 Wis. 2d 533, 939 N.W.2d 564, 17-2352.

32.06 Annotation Condemnation of a lessor’s property for purchase by lessees in order to reduce concentration of land ownership was a constitutional “public use.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984).

32.06 Annotation Statutory Restrictions on the Exercise of Eminent Domain in Wisconsin: Dual Requirements of Prior Negotiation and Provision of Negotiating Materials. Plaetzer. 63 MLR 489 (1980).

32.06 Annotation Picking up the Remnants Post-Waller: Properly Limiting the Scope of Uneconomic Remnant Claims in Wisconsin Eminent Domain Proceedings. Magnuson. 98 MLR 1425 (2015).

32.06 Annotation New Developments In Law of Eminent Domain, Condemnation and Relocation. Thiel. WBB June 1979.

32.07 32.07 Necessity, determination of. The necessity of the taking shall be determined as follows:

32.07(1) (1) A certificate of public convenience and necessity issued under s. 196.491 (3) shall constitute the determination of the necessity of the taking for any lands or interests described in the certificate.

32.07(2) (2) The petitioner shall determine necessity if application is by the state or any commission, department, board or other branch of state government or by a city, village, town, county, school district, board, commission, public officer, commission created by contract under s. 66.0301, joint local water authority under s. 66.0823, redevelopment authority created under s. 66.1333, local exposition district created under subch. II of ch. 229, local cultural arts district created under subch. V of ch. 229, housing authority created under ss. 66.1201 to 66.1211 or for the right-of-way of a railroad up to 100 feet in width, for a telegraph, telephone or other electric line, for the right-of-way for a gas pipeline, main or service or for easements for the construction of any elevated structure or subway for railroad purposes.

32.07(3) (3) In all other cases, the judge shall determine the necessity.

32.07(4) (4) The determination of the public service commission of the necessity of taking any undeveloped water power site made pursuant to s. 32.03 (3) shall be conclusive.

32.07 History History: 1973 c. 305; 1975 c. 68; 1979 c. 175 s. 53; 1981 c. 346; 1983 a. 27; 1985 a. 187; 1993 a. 134, 263; 1997 a. 184, 204; 1999 a. 65; 1999 a. 150 s. 672; 2009 a. 28; 2011 a. 32.

32.07 Annotation A public utility need only show that the property sought to be condemned is reasonably necessary, reasonably requisite, and proper for the accomplishment of the desired public purpose. Falkner v. Northern States Power Co., 75 Wis. 2d 116, 248 N.W.2d 885 (1977).

32.075 32.075 Use after condemnation.

32.075(1) (1) In this section, “public utility” has the meaning given under s. 196.01 (5) and includes a telecommunications carrier, as defined in s. 196.01 (8m).

32.075(2) (2) Whenever the public service commission has made a finding, either with or without hearing, that it is reasonably certain it will be necessary for a public utility to acquire lands or interests therein for the purpose of the conveyance of telegraph and telephone messages, or for the production, transformation or transmission of electric energy for the public, or for right-of-way for a gas pipeline, main or service, and that such public utility is unlikely to commence construction of its facilities upon such lands within 2 years of such finding, such public utility may file its petition and proceed with condemnation as prescribed in s. 32.06 and no further determination of necessity shall be required. When the lands to be condemned under this subsection are needed for rights-of-way for telegraph, telephone or electric lines or pipelines, it shall not be necessary that the particular parcel or parcels of land be described in the commission’s finding, but it shall be sufficient that such finding described the end points of any such lines and the general direction or course of the lines between the end points, but when the public utility files its petition under s. 32.06 it shall specifically describe therein the lands to be acquired. Notwithstanding the completion of the condemnation proceedings and the payment of the award made under this subchapter, the owner may continue to use the land until such time as the public utility constructs its facilities thereon.

32.075(3) (3) 

32.075(3)(a) (a) The public service commission shall notify by certified mail any person whose ownership interest in the property was terminated by condemnation by a public utility under this chapter if all of the following occur:

32.075(3)(a)1. 1. The public utility’s legal title was obtained after May 1, 1984, solely by a condemnation award under s. 32.06.

32.075(3)(a)2. 2. The public service commission revokes a certificate of public convenience and necessity required under s. 196.491 (3) (a) 1. or finds that a state or federal agency has denied or revoked any license, permit, certificate or other requirement on which completion of the public utility’s project for which the land was condemned is contingent or that the public utility has for any other reason abandoned a project for which the condemned property was acquired.

32.075(3)(a)3. 3. The public utility within 365 days after issuance of the public service commission denial, revocation or finding under subd. 2. has not proposed, by application to the commission, an alternative use for the property or the public service commission has denied an alternative use proposed by the public utility.

32.075(3)(b) (b) If the person is a minor or an individual adjudicated incompetent, the notice under par. (a) shall be to the special guardian appointed for him or her. The notice under par. (a) shall state that the person, or, if the person is deceased, the person’s heirs, may petition the circuit court of the county in which the property is located, within 90 days after receipt of the notice, for an order to require the public utility to return the interest in the property to the petitioner. The circuit court shall grant the petition and shall make a formal order returning the petitioner’s interest in the property. The order shall operate to divest any title of the public utility to the property subject to the petition and to automatically discharge any lis pendens filed in relation to the condemnation of the property.

32.075(3)(c) (c) An order issued under par. (b) shall direct that:

32.075(3)(c)1. 1. The public utility return the petitioner’s ownership interest in the property.

32.075(3)(c)2. 2. The public utility remove any lien or other encumbrance that may have accrued or been assessed since acquisition by the public utility.