Chapter 32

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.

32.075(3)(c)3. 3. The petitioner pay to the public utility the fair market value of the property returned to the petitioner under the order, which fair market value shall be determined under a method prescribed by the court.

32.075(3)(c)4. 4. The public utility pay its prorated share of any real estate or ad valorem taxes due on the date of the order.

32.075(3)(c)5. 5. If requested by the petitioner, the public utility pay for all costs for return of property to a reasonable topographic configuration or the condition the property was in at the time the public utility first acquired the property, as established by the court and subject to applicable land use restrictions.

32.075(3)(c)6. 6. The public utility remove from the property, at the option of the petitioner but at no expense or inconvenience to the petitioner, all buildings, equipment and other materials placed on the property by the public utility.

32.075(3)(d) (d) In an order issued under par. (b), the court may award the petitioner court costs and reasonable attorney fees and may include in the order any other terms that it deems just and reasonable.

32.075 History History: 1979 c. 110; 1983 a. 236 s. 12; 1983 a. 338, 538; 1993 a. 496; 1997 a. 204; 2005 a. 387.

32.08 32.08 Commissioner of condemnation.

32.08(1) (1) The office of commissioner of condemnation is created. In counties having a population of less than 100,000 there shall be 6 commissioners; in counties having a population of 100,000 or more and less than 750,000 there shall be 9 commissioners; in counties having a population of 750,000 or more there shall be 12 commissioners. Each such commissioner must be a resident of the county or of an adjoining county in the same judicial circuit prior to appointment and remain so during the term of office. Not more than one-third of such commissioners shall be attorneys at law, licensed for active practice in this state.

32.08(2) (2) Such commissioners shall be appointed by the circuit judge or judges of the circuit court for such county and may be removed by said judge or judges at their pleasure. Where any county has more than one circuit judge, the affirmative vote of a majority of such judges shall be necessary to an appointment or a removal. All appointments and removals shall be filed with the clerk of the circuit court for the county. Each commissioner shall take and file the official oath. The first appointments after April 6, 1960 shall be made for staggered terms of 1, 2 and 3 years as fixed by the circuit judge. Thereafter all appointments shall be made for 3-year terms. Vacancies shall be filled for the remainder of the unexpired term.

32.08(3) (3) The commissioners in each county shall annually elect one of their number as chairperson, and the chairperson shall select and notify the commissioners to serve on each commission of 3 required to sit in condemnation.

32.08(4) (4) Commissioners shall receive no salary but shall be compensated for actual service at an hourly rate to be fixed by the county board of the county. Commissioners shall also receive mileage at a rate fixed by the county board for necessary and direct round trip travel from their homes to the place where the condemnation commission conducts its hearings. The chairperson of the county commission shall receive such reasonable sum, computed at the hourly rate as fixed by the county board, as shall be allowed by the circuit judge having jurisdiction over the hearing, for his or her administrative work in selecting and notifying the commissioners to serve in the condemnation hearing and his or her necessary out-of-pocket expenses in connection with the hearing. All such compensation and expenses shall be paid by the condemnor on order approved by the circuit judge.

32.08(5) (5) If the petitioner under s. 32.06 is entitled to condemn the property or any portion of it or interest therein, the circuit judge having jurisdiction of the petition, or to whom an application for county commissioner of condemnation review is taken from a highway taking award, shall assign the matter to the chairperson of the county condemnation commissioners who shall within 7 days select 3 of the commissioners to serve as a commission to ascertain the compensation to be made for the taking of the property or rights in property sought to be condemned, fix the time and place of the hearing before the commission, which time shall not be less than 20 nor more than 30 days after the assignment date, and notify the parties in interest thereof. The judge’s order of assignment shall be accompanied by a copy of the petition for condemnation. Notice shall be given to each interested person or, where the persons have appeared in the proceeding by an attorney then to the attorney, by certified mail with return receipt requested, postmarked at least 10 days prior to the date of hearing. If any party cannot be found and has not appeared in the proceedings, a class 3 notice shall be published, under ch. 985, in the community which the chairperson of the condemnation commission directs. Costs of notification shall be paid by the petitioner upon certification by the commission chairperson.

32.08(6) (6) 

32.08(6)(a) (a) At the hearing the commissioners shall first view the property sought to be condemned and then hear all evidence desired to be produced. The condemnee shall present his or her testimony first and have the right to close. Except as provided in s. 901.05, in conducting the hearing the commission shall not be bound by common law or statutory rules of evidence. The commission shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant and unduly repetitious testimony. The amount of a prior jurisdictional offer or award shall not be disclosed to the commission. The commission shall give effect to the rules of privilege recognized by law. Basic principles of relevancy, materiality and probative force, as recognized in equitable proceedings, shall govern the proof of all questions of fact. The commission may on its own motion adjourn the hearing once for not more than 7 days, but may by stipulation of all parties grant other adjournments. A majority of the commissioners, being present, may determine all matters.

32.08(6)(b) (b) If either party desires that the proceedings by the commission be transcribed, the commission may order the same and the applicant shall pay the cost thereof. Within 10 days after the conclusion of such hearing the commission shall make a written award specifying therein the property taken and the compensation, and file such award with the clerk of the circuit court, who shall cause a copy thereof to be mailed to each party in interest and record the original in the judgment record of such court. The commission shall file with the clerk of the court a sworn voucher for the compensation due each member, which sum, upon approval by the circuit judge, shall be paid by the condemnor.

32.08 History History: 1977 c. 449; 1983 a. 302 s. 8; 1991 a. 269, 316; 1993 a. 184; 2017 a. 207 s. 5.

32.08 Annotation The failure of a condemnation commission to file its award within ten days did not deprive it of jurisdiction. Herro v. Natural Resources Board, 53 Wis. 2d 157, 192 N.W.2d 104 (1971).

32.08 Annotation The 60-day period under s. 32.05 (10) (a) for appealing a condemnation commission award begins to run when the commission has filed its award with the circuit court clerk and the clerk has mailed and recorded the award under sub. (6) (b). Dairyland Fuels, Inc. v. State, 2000 WI App 129, 237 Wis. 2d 467, 614 N.W.2d 829, 99-1296.

32.09 32.09 Rules governing determination of just compensation. In all matters involving the determination of just compensation in eminent domain proceedings, the following rules shall be followed:

32.09(1) (1) The compensation so determined and the status of the property under condemnation for the purpose of determining whether severance damages exist shall be as of the date of evaluation as fixed by s. 32.05 (7) (c) or 32.06 (7).

32.09(1m) (1m) 

32.09(1m)(a) (a) As a basis for determining value, a commission in condemnation or a court shall consider the price and other terms and circumstances of any good faith sale or contract to sell and purchase comparable property. A sale or contract is comparable within the meaning of this paragraph if it was made within a reasonable time before or after the date of evaluation and the property is sufficiently similar in the relevant market, with respect to situation, usability, improvements, and other characteristics, to warrant a reasonable belief that it is comparable to the property being valued.

32.09(1m)(b) (b) As a basis for determining value, a commission in condemnation or a court shall consider, if provided by the condemnor or condemnee, an appraisal based on the income approach and an appraisal based on the cost approach.

32.09(2) (2) In determining just compensation the property sought to be condemned shall be considered on the basis of its most advantageous use but only such use as actually affects the present market value.

32.09(2m) (2m) In determining just compensation for property sought to be condemned in connection with the construction of facilities, as defined under s. 196.491 (1) (e), any increase in the market value of such property occurring after the date of evaluation but before the date upon which the lis pendens is filed under s. 32.06 (7) shall be considered and allowed to the extent it is caused by factors other than the planned facility.

32.09(3) (3) Special benefits accruing to the property and affecting its market value because of the planned public improvement shall be considered and used to offset the value of property taken or damages under sub. (6), but in no event shall such benefits be allowed in excess of damages described under sub. (6).

32.09(4) (4) If a depreciation in value of property results from an exercise of the police power, even though in conjunction with the taking by eminent domain, no compensation may be paid for such depreciation except as expressly allowed in subs. (5) (b) and (6) and s. 32.19.

32.09(5) (5) 

32.09(5)(a) (a) In the case of a total taking the condemnor shall pay the fair market value of the property taken and shall be liable for the items in s. 32.19 if shown to exist.

32.09(5)(b) (b) Any increase or decrease in the fair market value of real property prior to the date of evaluation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, may not be taken into account in determining the just compensation for the property.

32.09(6) (6) In the case of a partial taking of property other than an easement, the compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken as of the date of evaluation or the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the following items of loss or damage to the property where shown to exist:

32.09(6)(a) (a) Loss of land including improvements and fixtures actually taken.

32.09(6)(b) (b) Deprivation or restriction of existing right of access to highway from abutting land, provided that nothing herein shall operate to restrict the power of the state or any of its subdivisions or any municipality to deprive or restrict such access without compensation under any duly authorized exercise of the police power.

32.09(6)(c) (c) Loss of air rights.

32.09(6)(d) (d) Loss of a legal nonconforming use.

32.09(6)(e) (e) Damages resulting from actual severance of land including damages resulting from severance of improvements or fixtures and proximity damage to improvements remaining on condemnee’s land. In determining severance damages under this paragraph, the condemnor may consider damages which may arise during construction of the public improvement, including damages from noise, dirt, temporary interference with vehicular or pedestrian access to the property and limitations on use of the property. The condemnor may also consider costs of extra travel made necessary by the public improvement based on the increased distance after construction of the public improvement necessary to reach any point on the property from any other point on the property.

32.09(6)(f) (f) Damages to property abutting on a highway right-of-way due to change of grade where accompanied by a taking of land.

32.09(6)(g) (g) Cost of fencing reasonably necessary to separate land taken from remainder of condemnee’s land, less the amount allowed for fencing taken under par. (a), but no such damage shall be allowed where the public improvement includes fencing of right-of-way without cost to abutting lands.

32.09(6g) (6g) In the case of the taking of an easement, the compensation to be paid by the condemnor shall be determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the items of loss or damage to the property enumerated in sub. (6) (a) to (g) where shown to exist.

32.09(6r) (6r) 

32.09(6r)(a) (a) In the case of a taking of an easement in lands zoned or used for agricultural purposes, for the purpose of constructing or operating a high-voltage transmission line, as defined in s. 196.491 (1) (f), or any petroleum or fuel pipeline, the offer under s. 32.05 (2a) or 32.06 (2a), the jurisdictional offer under s. 32.05 (3) or 32.06 (3), the award of damages under s. 32.05 (7), the award of the condemnation commissioners under s. 32.05 (9) or 32.06 (8) or the assessment under s. 32.57 (5), and the jury verdict as approved by the court under s. 32.05 (10) or (11) or 32.06 (10) or the judgment under s. 32.61 (3) shall specify, in addition to a lump sum representing just compensation under sub. (6) for outright acquisition of the easement, an amount payable annually on the date therein set forth to the condemnee, which amount represents just compensation under sub. (6) for the taking of the easement for one year.

32.09(6r)(b) (b) The condemnee shall choose between the lump sum and the annual payment method of compensation at such time as the condemnee accepts the offer, award or verdict, or the proceedings relative to the issue of compensation are otherwise terminated. Selection of the lump sum method of payment shall irrevocably bind the condemnee and successors in interest.

32.09(6r)(c) (c)

32.09(6r)(c)1. 1. Except as provided under subd. 2., if the condemnee selects the annual payment method of compensation, the fact of such selection and the amount of the annual payment shall be stated in the conveyance or an appendix thereto which shall be recorded with the register of deeds. The first annual payment shall be in addition to payment of any items payable under s. 32.19. Succeeding annual payments shall be determined by multiplying the amount of the first annual payment by the quotient of the state assessment under s. 70.575 for the year in question divided by the state assessment for the year in which the first annual payment for that easement was made, if the quotient exceeds one. A condemnee who selects the annual payment method of compensation, or any successor in interest, may at any time, by agreement with the condemnor or otherwise, waive in writing his or her right, or the right of his or her successors in interest, to receive such payments. Any successor in interest shall be deemed to have waived such right until the date on which written notice of his or her right to receive annual payments is received by the condemnor or its successor in interest.

32.09(6r)(c)2. 2. If lands which are zoned or used for agricultural purposes and which are condemned and compensated by the annual payment method of compensation under this paragraph are no longer zoned or used for agricultural purposes, the right to receive the annual payment method of compensation for a high-voltage transmission line easement shall cease and the condemnor or its successor in interest shall pay to the condemnee or any successor in interest who has given notice as required under subd. 1. a single payment equal to the difference between the lump sum representing just compensation under sub. (6) and the total of annual payments previously received by the condemnee and any successor in interest.

32.09(7) (7) In addition to the amount of compensation paid pursuant to sub. (6), the owner shall be paid for the items provided for in s. 32.19, if shown to exist, and in the manner described in s. 32.20.

32.09(8) (8) A commission in condemnation or a court may in their respective discretion require that both condemnor and owner submit to the commission or court at a specified time in advance of the commission hearing or court trial, a statement covering the respective contentions of the parties on the following points:

32.09(8)(a) (a) Highest and best use of the property.

32.09(8)(b) (b) Applicable zoning.

32.09(8)(c) (c) Designation of claimed comparable lands, sale of which will be used in appraisal opinion evidence.

32.09(8)(d) (d) Severance damage, if any.

32.09(8)(e) (e) Maps and pictures to be used.

32.09(8)(f) (f) Costs of reproduction less depreciation and rate of depreciation used.

32.09(8)(g) (g) Statements of capitalization of income where used as a factor in valuation, with supporting data.

32.09(8)(h) (h) Separate opinion as to fair market value, including before and after value where applicable by not to exceed 3 appraisers.

32.09(8)(i) (i) A recitation of all damages claimed by owner.

32.09(8)(j) (j) Qualifications and experience of witnesses offered as experts.