Chapter 32

32.09 Annotation When a strip of land was taken and highway access to a loading dock restricted without a prior finding of necessity to limit access, the plaintiff could recover damages for loss of access because the police power under sub. (4) had not been exercised; rather the taking was by eminent domain. Crown Zellerbach Corp. v. Department of City Development, 47 Wis. 2d 142, 177 N.W.2d 94 (1970).

32.09 Annotation While the general rule is that evidence of net income is inadmissible to establish fair market value, that rule does not preclude admission of net income evidence under certain circumstances for certain purposes, including impeachment, refreshing the recollection of a witness, or when proper objection is not timely made. Mancheski v. State, 49 Wis. 2d 46, 181 N.W.2d 420 (1970).

32.09 Annotation The closing of an intersection under the police power does not require compensation so long as access to property is preserved. There is no property right to the flow of traffic. Schneider v. State, 51 Wis. 2d 458, 187 N.W.2d 172 (1971).

32.09 Annotation It was error to receive testimony of an appraiser who made the appraisal ten months before the date of the taking and acknowledged that the value had changed in the ten months but could not update the appraisal. Schey Enterprises, Inc. v. State, 52 Wis. 2d 361, 190 N.W.2d 149 (1971).

32.09 Annotation The elimination of the respondent’s sewer connection, which had the effect of rendering the existing lateral sewer useless, was a damage resulting from the severance of an improvement within the meaning of sub. (6) (e), which was of such consequence as not to be incidental to the taking under the exercise of the appellant’s police power that it was a compensable item of damage. Hanser v. Metropolitan Sewerage District, 52 Wis. 2d 429, 190 N.W.2d 161 (1971).

32.09 Annotation Zoning changes and sanitary facilities are elements of value and are factors to be admitted in evidence concerning value when the evidence is in proper form. When a zoning ordinance prohibits the most advantageous use of the property, the landowner may show there is a reasonable probability of rezoning so as to allow for the highest use. Bembinster v. State, 57 Wis. 2d 277, 203 N.W.2d 897 (1973).

32.09 Annotation Damages caused by a change of the grade of a street or highway where no land is taken constitutes an exercise of police power that is separate and distinct from the exercise of the power of eminent domain under sub. (6) (f) and is only compensable under s. 32.18. Jantz v. State, 63 Wis. 2d 404, 217 N.W.2d 266 (1974).

32.09 Annotation Inconvenience is a factor only when the landowner’s property rights in the remaining portion are so impaired that the owner has, in effect, had that portion taken also. DeBruin v. Green County, 72 Wis. 2d 464, 241 N.W.2d 167 (1976).

32.09 Annotation An owner’s opinion as to the value of real estate may be accepted, but in order to support a verdict some basis for the opinion must be shown. Genge v. City of Baraboo, 72 Wis. 2d 531, 241 N.W.2d 183 (1976).

32.09 Annotation The requirement that property be valued as an integrated and comprehensive entity does not mean that the individual components of value may not be examined or considered in arriving at an overall fair market value. Milwaukee & Suburban Transport Corp. v. Milwaukee County, 82 Wis. 2d 420, 263 N.W.2d 503 (1978).

32.09 Annotation An existing right of access in sub. (6) (b) includes the right of an abutting property owner to ingress and egress and the right to be judged on criteria for granting permits for access points under s. 86.07 (2). The restriction of access was a compensable taking. Narloch v. DOT, 115 Wis. 2d 419, 340 N.W.2d 542 (1983).

32.09 Annotation A court may apply the “assemblage” doctrine that permits consideration of evidence of prospective use that requires integration of the condemned parcel with other parcels if integration of the lands is reasonably probable. Clarmar Realty Co. v. Redevelopment Authority, 129 Wis. 2d 81, 383 N.W.2d 890 (1986).

32.09 Annotation There can be no compensation under sub. (6) (b) without the denial of substantially all beneficial use of a property. Sippel v. City of St. Francis, 164 Wis. 2d 527, 476 N.W.2d 579 (Ct. App. 1991).

32.09 Annotation A change in use is not a prerequisite to finding a special benefit under sub. (3); the real issue is whether the property has gained a benefit not shared by any other parcel. Red Top Farms v. DOT, 177 Wis. 2d 822, 503 N.W.2d 354 (Ct. App. 1993).

32.09 Annotation Damage to property is not compensated as a taking. For flooding to be a taking it must constitute a permanent physical occupation of property. Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996), 95-0185.

32.09 Annotation The state’s assertion that the plaintiff’s property, even if rendered uninhabitable as a residence by state construction activities, could be used for some non-residential purpose could not support a motion for dismissal. Factual issues of damage and causation are properly deferred to the summary judgment or trial stage. Wikel v. DOT, 2001 WI App 214, 247 Wis. 2d 626, 635 N.W.2d 213, 00-3215.

32.09 Annotation Evidence of net income is ordinarily inadmissible for purposes of establishing property values in condemnation cases involving commercial enterprises because income is dependent upon too many variables to serve as a reliable guide in determining fair market value. Rademann v. DOT, 2002 WI App 59, 252 Wis. 2d 191, 642 N.W.2d 600, 00-2995.

32.09 Annotation Comparable sales evidence is admissible as direct evidence of the land’s value or for the limited indirect purpose of demonstrating a basis for and giving weight to an expert opinion. Admission of comparable sales as direct evidence of value is more restrictive than the admissibility rule when offered to show a basis for an expert opinion. Admission of comparable sales evidence is within the discretion of the trial court. When offered as the basis for an expert’s opinion, the extent to which the offered sales are truly comparable goes to the weight of the testimony, not to admissibility. Rademann v. DOT, 2002 WI App 59, 252 Wis. 2d 191, 642 N.W.2d 600, 00-2995.

32.09 Annotation The “existing right of access” under sub. (6) (b) includes the right of an abutting property owner to reasonable ingress and egress. A frontage road might not always constitute “reasonable” access. Whether there is reasonable access depends on the specific facts in a case, to be determined by the jury. National Auto Truckstops, Inc. v. DOT, 2003 WI 95, 263 Wis. 2d 649, 665 N.W.2d 198, 02-1384.

32.09 Annotation When comparable sales are offered as substantive evidence of property value, the other property must be closely comparable to the property being taken. The properties must be located near each other and sufficiently similar in relevant market, usability, improvements, and other characteristics so as to support a finding of comparability. Alsum v. DOT, 2004 WI App 196, 276 Wis. 2d 654, 689 N.W.2d 68, 03-2563.

32.09 Annotation Sub. (6) does not provide severance damages when compensation for a partial taking is based on the fair market value of the property taken. Justmann v. Portage County, 2005 WI App 9, 278 Wis. 2d 487, 692 N.W.2d 273, 03-3310.

32.09 Annotation Evidence regarding fear and safety concerns of natural gas transmission pipelines, electrical transmission lines, and oil and gasoline pipelines in partial takings cases is admissible if a qualified expert has successfully drawn the pertinent nexus in the calculation of damages between evidence of that fear and the fair market value of the property being condemned following the taking. Arents v. ANR Pipeline Co., 2005 WI App 61, 281 Wis. 2d 173, 696 N.W.2d 194, 03-1488.

32.09 Annotation Evidence of comparable sales is not the only relevant and admissible evidence in determining fair market value when available in a condemnation case. Arents v. ANR Pipeline Co., 2005 WI App 61, 281 Wis. 2d 173, 696 N.W.2d 194, 03-1488.

32.09 Annotation The requirement in sub. (6) to consider the “whole property” does not require that an individual assessment always treat contiguous, commonly-owned tax parcels separately or as a single unit, but requires that no portion of the property be left out of an assessment. When the property’s highest and best use that affects its present market value is most appropriately appraised by considering the contiguous tax parcels separately, that is the appropriate appraisal method. Conversely, when the highest and best use is more adequately represented through an appraisal of the property as a single unit, that approach is appropriate. Spiegelberg v. State, 2006 WI 75, 291 Wis. 2d 601, 717 N.W.2d 641, 04-3384.

32.09 Annotation Under Wisconsin eminent domain law, courts apply the unit rule, which prohibits valuing individual property interests or aspects separately from the property as a whole. When a parcel of land is taken by eminent domain, the compensation award is for the land itself, not the sum of the different interests therein. Hoekstra v. Guardian Pipeline, LLC, 2006 WI App 245, 298 Wis. 2d 165, 726 N.W.2d 648, 03-2809.

32.09 Annotation The lessor under a long-term favorable lease who received no compensation for its leasehold interest under the unit rule when the fair market value of the entire property was determined to be zero was not denied the right to just compensation under article I, section 13, of the Wisconsin Constitution. City of Milwaukee Post No. 2874 Veterans of Foreign Wars v. Redevelopment Authority, 2009 WI 84, 319 Wis. 2d 553, 768 N.W.2d 749, 06-2866.

32.09 Annotation Wisconsin’s project influence statute, sub. (5) (b), contains nothing about comparables. It simply states that any increase or decrease in the fair market value of the subject property caused by the public improvement may not be taken into consideration in determining just compensation. Sub. (5) (b) does not create a bright-line rule mandating that when evidence exists of comparable sales not impacted by a public improvement project, any sale alleged to be comparable that was made after the project plans were known that was located in whole or in part within the project footprint must be excluded as a matter of law. Spanbauer v. DOT, 2009 WI App 83, 320 Wis. 2d 242, 769 N.W.2d 137, 08-1165.

32.09 Annotation In easement condemnation cases, property owners are compensated for the loss in fair market value of their whole property. Pre-existing easement rights may be considered by a jury when determining just compensation. The circuit court’s exclusion of evidence of existing easement rights was erroneous because evidence of those rights was highly probative of the difference in fair market value of the property before and after the new easement was condemned. Fields v. American Transmission Co., 2010 WI App 59, 324 Wis. 2d 417, 782 N.W.2d 729, 09-1008.

32.09 Annotation Evidence of environmental contamination and of remediation costs is admissible in condemnation proceedings under this chapter so long as it is relevant to the fair market value of the property. A property’s environmental contamination and the costs to remediate it are relevant to the property’s fair market value if they would influence a prudent purchaser who is willing and able, but not obliged, to buy the property. Liability for environmental contamination has no place in a condemnation proceeding under this chapter. 260 North 12th Street, LLC v. DOT, 2011 WI 103, 338 Wis. 2d 34, 808 N.W.2d 372, 09-1557.

32.09 Annotation Damages for a partial taking cannot include damages for the impact caused by loss of access to a highway if the loss of access resulted from the relocation of the highway, rather than from the taking. Damages are allowed under sub. (6g) only for loss that was a consequence of the particular taking. An award for a temporary limited easement cannot serve to bootstrap damages that emanate from a road relocation, especially when no land was taken and the property’s boundaries were unchanged. 118th Street Kenosha, LLC v. DOT, 2014 WI 125, 359 Wis. 2d 30, 856 N.W.2d 486, 12-2784.

32.09 Annotation Section 84.25 (3) authorizes the Department of Transportation to change access to a highway designated as controlled access in whatever way it deems “necessary or desirable.” In controlled-access highway cases, abutting property owners are precluded from compensation for a change in access under sub. (6) (b) as a matter of law. However, exercises of the police power cannot deprive the owner of all or substantially all beneficial use of the property without compensation. If the replacement access is so circuitous as to amount to a regulatory taking of the property, compensation is due, and the abutting property owner may bring an inverse condemnation claim under s. 32.10. Provision of some access preserves the abutting property owner’s controlled right of access to the property. Reasonableness is not the standard to apply to determine if compensation is due under sub. (6) (b). Hoffer Properties, LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533, 12-2520.

32.09 Annotation Special benefits means an “uncommon advantage” and has the same meaning under both sub. (3) and s. 66.0703 (1) (a), the special assessments statute. Under sub. (3), only those special benefits that affect the market value of a property because of a planned improvement are considered and used to offset the value of the property taken. In contrast, s. 66.0703 (1) allows a municipality to levy and collect a special assessment upon property for special benefits conferred on the property by an improvement, regardless of the improvement’s effect on the property’s market value. Because of this distinction, a municipality’s failure to raise the issue of special benefits in an eminent domain action does not foreclose the municipality’s ability to levy and collect a special assessment upon a property for special benefits conferred. CED Properties, LLC v. City of Oshkosh, 2018 WI 24, 380 Wis. 2d 399, 909 N.W.2d 136, 16-0474.

32.09 Annotation Although 118th Street Kenosha, LLC, 2014 WI 125, involved the “taking of an easement” under sub. (6g), that court’s statutory construction analysis applies equally to a “partial taking of property” under sub. (6). The damages authorized by subs. (6) and (6g) must be caused by “a partial taking of property” under sub. (6) or caused by “the taking of an easement” under sub. (6g). In this case, it was undisputed that the partial taking of property was not the cause of the damages the plaintiffs sought. Therefore, the plaintiffs were not entitled to loss-of-access damages under sub. (6). James & Judith Nonn Trust v. DOT, 2019 WI App 29, 388 Wis. 2d 53, 930 N.W.2d 668, 18-0888.

32.09 Annotation Sub. (6g) does not apply to temporary limited easements; its application is limited to permanent easements. Temporary limited easements must be compensated under constitutional and common law principles. Backus v. Waukesha County, 2022 WI 55, 402 Wis. 2d 764, 976 N.W.2d 492, 20-0307.

32.09 Annotation The owner of condemned property is not entitled to the cost of developing functionally equivalent substitute facilities. United States v. 564.54 Acres of Land, 441 U.S. 506, 99 S. Ct. 1854, 60 L. Ed. 2d 435 (1979).

32.10 32.10 Condemnation proceedings instituted by property owner. If any property has been occupied by a person possessing the power of condemnation and if the person has not exercised the power, the owner, to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced. The petition shall describe the land, state the person against which the condemnation proceedings are instituted and the use to which it has been put or is designed to have been put by the person against which the proceedings are instituted. A copy of the petition shall be served upon the person who has occupied petitioner’s land, or interest in land. The petition shall be filed in the office of the clerk of the circuit court and thereupon the matter shall be deemed an action at law and at issue, with petitioner as plaintiff and the occupying person as defendant. The court shall make a finding of whether the defendant is occupying property of the plaintiff without having the right to do so. If the court determines that the defendant is occupying such property of the plaintiff without having the right to do so, it shall treat the matter in accordance with the provisions of this subchapter assuming the plaintiff has received from the defendant a jurisdictional offer and has failed to accept the same and assuming the plaintiff is not questioning the right of the defendant to condemn the property so occupied.

32.10 History History: 1973 c. 170; Sup. Ct. Order, 67 Wis. 2d 575, 749 (1975); 1975 c. 218; 1977 c. 440; 1983 a. 236 s. 12.

32.10 Annotation A cause of action under this section arises prior to the actual condemnation of the property if the complaint alleges facts that indicate the property owner has been deprived of all, or substantially all, of the beneficial use of the property. Howell Plaza, Inc. v. State Highway Commission, 66 Wis. 2d 720, 226 N.W.2d 185 (1975).

32.10 Annotation In order for the petitioner to succeed in the initial stages of an inverse condemnation proceeding, the petitioner must allege facts that, prima facie, at least show there has been either an occupation of its property, or a taking, which must be compensated under the terms of the Wisconsin Constitution. Howell Plaza, Inc. v. State Highway Commission, 66 Wis. 2d 720, 226 N.W.2d 185 (1975).

32.10 Annotation A landowner’s petition for inverse condemnation, like a municipality’s petition for condemnation, is not subject to demurrer. Revival Center Tabernacle v. City of Milwaukee, 68 Wis. 2d 94, 227 N.W.2d 694 (1975).

32.10 Annotation A taking occurred when a city refused to renew a lessee’s theater license because of a proposed renewal project encompassing the theater’s location, not when the city made a jurisdictional offer. Property is valued as of the date of the taking. Maxey v. Redevelopment Authority, 94 Wis. 2d 375, 288 N.W.2d 794 (1980).

32.10 Annotation The doctrine of sovereign immunity cannot bar an action for just compensation based on the taking of private property for public use even though the legislature has failed to establish specific provisions for the recovery of just compensation. Zinn v. State, 112 Wis. 2d 417, 334 N.W.2d 67 (1983).

32.10 Annotation A successful plaintiff in an inverse condemnation action was entitled to litigation expenses, which included expenses related to a direct condemnation action. Expenses related to an allocation proceeding under s. 32.11 were not recoverable. Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 353 N.W.2d 812 (Ct. App. 1984).

32.10 Annotation The owner of property at the time of a taking is entitled to bring an action for inverse condemnation and need not own the property at the time of the commencement of the action. Riley v. Town of Hamilton, 153 Wis. 2d 582, 451 N.W.2d 454 (Ct. App. 1989).

32.10 Annotation A constructive taking occurs when government regulation renders a property useless for all practical purposes. Taking jurisprudence does not allow dividing the property into segments and determining whether rights in a particular segment have been abrogated. Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996), 93-2831.

32.10 Annotation This section does not govern inverse condemnation proceedings seeking just compensation for a temporary taking of land for public use. Such takings claims are based directly on article I, section 13, of the Wisconsin Constitution. Andersen v. Village of Little Chute, 201 Wis. 2d 467, 549 N.W.2d 737 (Ct. App. 1996), 95-1677.

32.10 Annotation The reversal of an agency decision by a court does not convert an action that might otherwise have been actionable as a taking into one that is not. Once there has been sufficient deprivation of the use of property there has been a taking even though the property owner regains full use of the land through rescission of the restriction. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609, 595 N.W.2d 730 (1999), 97-2869.

32.10 Annotation When a regulatory taking claim is made, the plaintiff must prove that: 1) a government restriction or regulation is excessive and therefore constitutes a taking; and 2) any proffered compensation is unjust. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609, 595 N.W.2d 730 (1999), 97-2869.

32.10 Annotation A claimant who asserted ownership of condemned land, compensation for which was awarded to another as owner with the claimant having had full notice of the proceedings, could not institute an inverse condemnation action because the municipality had exercised its power of condemnation. Koskey v. Town of Bergen, 2000 WI App 140, 237 Wis. 2d 284, 614 N.W.2d 845, 99-2192.

32.10 Annotation The state holds title to the waters of the state, and any private property interest in constructing facilities in those waters is encumbered by the public trust doctrine. A riparian owner does not have a right to unfettered use of the bed of the waterway or to the issuance of a permit to construct a structure, which weighs against a finding that a riparian owner suffered a compensable regulatory taking as the result of a permit denial. R.W. Docks & Slips v. State, 2001 WI 73, 244 Wis. 2d 497, 628 N.W.2d 781, 99-2904.

32.10 Annotation Taking jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a given piece have been entirely abrogated but instead focuses on the extent of the interference with rights in the parcel as a whole. R.W. Docks & Slips v. State, 2001 WI 73, 244 Wis. 2d 497, 628 N.W.2d 781, 99-2904.

32.10 Annotation In order to state a claim of inverse condemnation under this section, the facts alleged must show either that there was an actual physical occupation by the condemning authority or that a government-imposed restriction deprived the owner of all, or substantially all, of the beneficial use of the owner’s property. E-L Enterprises, Inc. v. Milwaukee Metropolitan Sewerage District, 2010 WI 58, 326 Wis. 2d 82, 785 N.W.2d 409, 08-0921.

32.10 Annotation A taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner’s property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property. The government airport operator bears responsibility if aircraft are regularly deviating from the Federal Aviation Administration flight patterns and those deviations result in invasions of the superadjacent airspace of neighboring property owners with adverse effects on their properties. Placing the burden on property owners to seek enforcement against individual airlines or pilots would effectively deprive the owners of a remedy for such takings. Brenner v. New Richmond Regional Airport Commission, 2012 WI 98, 343 Wis. 2d 320, 816 N.W.2d 291, 10-0342.

32.10 Annotation In order to constitute a taking, the property loss at issue must be the result of government action. The court is not free to disregard this plainly stated rule and search for inaction that might be considered to be the functional equivalent of action, as might be at issue for example in the negligence context. Fromm v. Village of Lake Delton, 2014 WI App 47, 354 Wis. 2d 30, 847 N.W.2d 845, 13-0014.

32.10 Annotation Section 84.25 (3) authorizes the Department of Transportation to change access to a highway designated as controlled access in whatever way it deems “necessary or desirable.” In controlled-access highway cases, abutting property owners are precluded from compensation for a change in access under s. 32.09 (6) (b) as a matter of law. However, exercises of the police power cannot deprive the owner of all or substantially all beneficial use of the property without compensation. If the replacement access is so circuitous as to amount to a regulatory taking of the property, compensation is due and the abutting property owner may bring an inverse condemnation claim under this section. Provision of some access preserves the abutting property owner’s controlled right of access to the property. Reasonableness is not the standard to apply to determine if compensation is due under s. 32.09 (6) (b). Hoffer Properties, LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533, 12-2520.

32.10 Annotation It has long been settled that constitutional takings provisions interpose no barrier to the exercise of the police power of the state. Injury to property resulting from the exercise of the police power of the state does not necessitate compensation. A state acts under its police power when it regulates in the interest of public safety, convenience, and the general welfare of the public. The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. Claims for such “regulatory takings” must be brought under this section. Hoffer Properties, LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533, 12-2520.

32.11 32.11 Trial of title. If any defect of title to or encumbrance upon any parcel of land is suggested upon any appeal, or if any person petitions the court in which an appeal is pending setting up a claim adverse to the title set out in said petition to said premises and to the money or any part thereof to be paid as compensation for the property so taken, the court shall thereupon determine the question so presented. Judgment shall be entered on such determination, with costs to the prevailing party. An appeal from such judgment may be taken as from a judgment in an action.

32.11 Annotation A successful plaintiff in an inverse condemnation action was entitled to litigation expenses, which included expenses related to a direct condemnation action. Expenses related to an allocation proceeding under this section were not recoverable. Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 353 N.W.2d 812 (Ct. App. 1984).

32.12 32.12 Proceedings to perfect title.

32.12(1) (1) If any person having the power to acquire property by condemnation enters into the possession of any property and is using the property for a purpose for which condemnation proceedings might be instituted but has not acquired title to the property, or if the title is defective, or if not in possession, has petitioned the circuit court as provided by s. 32.06 (7) and for an order as authorized under this section either at the time of filing the petition for condemnation or thereafter, and the necessity for taking has been determined as authorized by law, the person may proceed to acquire or perfect the title as provided in this subchapter or be authorized to enter into possession as provided in this section. At any stage of the proceedings the court in which they are pending may authorize the person, if in possession, to continue in possession, and if not in possession to take possession and have and use the lands during the pendency of the proceedings and may stay all actions or proceedings against the person on account thereof on the paying in court of a sufficient sum or the giving of such securities as the court may direct to pay the compensation therefor when finally ascertained. The “date of taking” in proceedings under this section is the date on which the security required by the order for such security is approved and evidence thereof is filed with the clerk of court. In every such case the party interested in the property may institute and conduct, at the expense of the person, the proceedings to a conclusion if the person delays or omits to prosecute the same.

32.12(2) (2) No injunction to restrain the possession or use of lands subject to proceedings under sub. (1) by the party interested in the property or the operation thereon of any plant, line, railroad or other structure, shall be granted until compensation therefor has been fixed and determined.

32.12(3) (3) In case such person or the person through or under whom that person claims title has paid to the owner of such lands or to any former owner thereof, or to any other person having any valid mortgage or other lien thereon, or to any owner, lien holder, mortgagee or other person entitled to any award or part of any award in satisfaction of the whole or any part of such award to which such owner, lien holder, mortgagee or other person may become entitled upon completion of such condemnation proceedings in the manner authorized by this subchapter, such sum with interest thereon from the date of such payment at the rate of 5 percent per year shall be deducted from the award made by said commissioners to such owners or other person.

32.12(4) (4) In case there is a dispute in relation to the payment of any sum as aforesaid or the amount or date of any payment that may have been made, the court or judge thereof shall at the request of any party, award an issue which shall be tried in the same manner as issues of fact in said court and an appeal from the judgment thereon may be taken in the same manner as from any judgment.

32.12 History History: 1977 c. 449; 1979 c. 110 s. 60 (13); 1983 a. 236 s. 12; 1991 a. 316.

32.13 32.13 Proceedings when land mortgaged. Whenever any person has acquired title to any property for which it could institute condemnation proceedings and said property is subject to any mortgage or other lien and proceedings have been afterwards commenced by the holders of any such mortgage or lien to enforce the same, the court in which such proceedings are pending may on due notice appoint 3 commissioners from among the county commissioners created by s. 32.08 to appraise and value said property in the manner prescribed in this subchapter as of the time when such person acquired title. Such appraisal shall be exclusive of the improvements made by that person or that person’s predecessors. Said appraisal, with interest, when confirmed by said court shall stand as the maximum amount of the encumbrance chargeable to the property so taken and judgment shall be rendered according to equity for an amount not exceeding such appraisal, with interest, against such person and may be enforced as in other cases. On the payment of such amount such person shall hold said property free and discharged from said mortgage or lien. An appeal may be taken from the award of such commission by the plaintiff and tried and determined as an appeal from the county condemnation commissioners under this subchapter and the action to enforce such mortgage or lien shall in the meantime be stayed.

32.13 History History: 1983 a. 236 s. 12; 1991 a. 316.

32.14 32.14 Amendments. The court or judge may at any time permit amendments to be made to a petition filed pursuant to s. 32.06, amend any defect or informality in any of the proceedings authorized by this subchapter and may cause any parties to be added and direct such notice to be given to any party of interest as it deems proper.

32.14 History History: 1983 a. 236 s. 12.

32.15 32.15 How title in trustee acquired. In case any title or interest in real estate lawfully required by any person having the power of condemnation is vested in any trustee not authorized to sell, release and convey the same or in any minor or person adjudged mentally incompetent, the circuit court may in a summary proceeding authorize and empower such trustee or the general guardian of such minor or person adjudged mentally incompetent to sell and convey the same for the purposes required on such terms as may be just. If such minor or person adjudged mentally incompetent has no general guardian, the court may appoint a special guardian for such sale, release or conveyance. The court may require from such trustee, or general or special guardian, such security as it deems proper before any conveyance or release authorized in this section is executed. The terms of the same shall be reported to the court on oath. If the court is satisfied that such terms are just to the party interested in such real estate, it shall confirm the report and direct the conveyance or release to be executed. Such conveyance or release shall have the same effect as if executed by one having legal power to sell and convey the land.

32.15 History History: 1977 c. 83.

32.16 32.16 Abandonment of easements for public use. An easement for public use acquired by gift or purchase or by condemnation under this subchapter shall not be deemed abandoned on the grounds of nonuser thereof for any period less than that prescribed in the applicable statutes of limitations in ch. 893. Nothing contained in this section shall be presumed to adversely affect any highway right possessed by the state or any county or municipality thereof.

32.16 History History: 1983 a. 236 s. 12.

32.17 32.17 General provisions.

32.17(1) (1) Where power of condemnation is given to a state officer the title acquired shall be in the name of the state. Payments of the costs and expenses of such condemnation shall be paid from the appropriation covering the purposes for which the property is acquired.

32.17(2) (2) Any condemnation proceedings authorized under any local or special law of this state, except those applicable to cities of the 1st class, shall be conducted under the procedure provided in this subchapter.

32.17(3) (3) Where disbursements and costs, including expert witness fees and reasonable actual attorney fees in case of abandonment of proceedings by the condemnor are recoverable from a condemnor under this subchapter, they shall be recoverable from the state or any of its agencies when the state or such agency is the condemnor.

32.17 History History: 1983 s. 236 s. 12; 1993 a. 490.

32.18 32.18 Damage caused by change of grade of street or highway where no land is taken; claim; right of action. Where a street or highway improvement project undertaken by the department of transportation, a county, city, town or village, causes a change of the grade of such street or highway in cases where such grade was not previously fixed by city, village or town ordinance, but does not require a taking of any abutting lands, the owner of such lands at the date of such change of grade may file with the department of transportation in the case of state trunk highways, a county in the case of county highways or the city, town or village, causing such change of grade to be effected, whichever has jurisdiction over the street or highway, a claim for any damages to said lands occasioned by such change of grade. Special benefits may be offset against any claims for damages under this section. Such claim shall be filed within 90 days following the completion of said project; if allowed, it shall be paid in the case of the department of transportation, out of the state highway funds, otherwise, out of the funds of the respective county, city, village or town against which the claim is made as the case may be. If it is not allowed within 90 days after such date of filing it shall be deemed denied. Thereupon such owner may within 90 days following such denial commence an action against the department of transportation, the city, county, village or town as the case may be, to recover any damages to the lands shown to have resulted from such change of grade. Any judgment recovered against the department of transportation shall be paid out of the state highway funds, otherwise out of the funds of city, county, village or town against which the judgment is recovered. Where a grade has been established by ordinance, the property owner’s remedy shall be as provided by municipal law. This section shall in no way contravene, limit or restrict s. 88.87.

32.18 History History: 1977 c. 29 s. 1654 (8) (c); 1977 c. 273.

32.18 Annotation A municipality may not initiate the running of the second 90-day period by affirmatively denying a claim within the first 90-day period. A claimant has 180 days from the filing of the original claim to commence legal action. Johnson v. City of Onalaska, 153 Wis. 2d 611, 451 N.W.2d 466 (Ct. App. 1989).

32.18 Annotation The state was not a proper party for claims against the Department of Transportation (DOT) as the two are distinct legal entities. Service on the state of a summons and complaint that named the state and not DOT as a party does not constitute service on DOT necessary to establish personal jurisdiction over DOT. Hoops Enterprises, III, LLC v. Super Western, Inc., 2013 WI App 7, 345 Wis. 2d 733, 827 N.W.2d 120, 12-0062.

32.18 Annotation The diminution in property value occasioned by a change in an abutting highway’s grade is not an injury compensable under this section because such damages are not “damages to the lands.” United America, LLC v. DOT, 2021 WI 44, 397 Wis. 2d 42, 959 N.W.2d 317, 18-2383.

32.185 32.185 Condemnor. “Condemnor”, for the purposes of ss. 32.19 to 32.27, means any municipality, board, commission, public officer, or business entity vested with the power of eminent domain which acquires property for public purposes either by negotiated purchase when authorized by statute to employ its powers of eminent domain or by the power of eminent domain. “Condemnor” also means a displacing agency. In this section, “displacing agency” means any state agency, political subdivision of the state or person carrying out a program or project with public financial assistance that causes a person to be a displaced person, as defined in s. 32.19 (2) (e).

32.185 History History: 1975 c. 224; 1987 a. 399; 2015 a. 55.

32.185 Cross-reference Cross-reference: See also s. Adm 92.001, Wis. adm. code.

32.19 32.19 Additional items payable.

32.19(1) (1) Declaration of purpose. The legislature declares that it is in the public interest that persons displaced by any public project be fairly compensated by payment for the property acquired and other losses hereinafter described and suffered as the result of programs designed for the benefit of the public as a whole; and the legislature further finds and declares that, notwithstanding subch. II, or any other provision of law, payment of such relocation assistance and assistance in the acquisition of replacement housing are proper costs of the construction of public improvements. If the public improvement is funded in whole or in part by a nonlapsible trust, the relocation payments and assistance constitute a purpose for which the fund of the trust is accountable.

32.19(2) (2) Definitions. In this section and ss. 32.25 to 32.27:

32.19(2)(a) (a) “Business” means any lawful activity, excepting a farm operation, conducted primarily: