118th Street Kenosha, LLC v. Wisconsin Department of Transportation , 359 Wis. 2d 30 ( 2014 )

2014 WI 125
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2784
COMPLETE TITLE: 118th Street Kenosha, LLC,
Plaintiff-Appellant,
v.
Wisconsin Department of Transportation,
Defendant-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 352 Wis. 2d 183, 841 N.W.2d 568)
(Ct. App. 2013 – Published)
PDC No.: 2013 WI App 147
OPINION FILED: December 10, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 10, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Bruce E. Schroeder
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, the cause was
argued by Abigail C.S. Potts, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.
For the plaintiff-appellant, there was a brief by Charles
P. Graupner, Susan M. Sager, and Michael Best & Friedrich LLP,
Milwaukee, with oral argument by Charles P. Graupner.
2014 WI 125
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2784
(L.C. No. 2011CV212)
STATE OF WISCONSIN : IN SUPREME COURT
118th Street Kenosha, LLC,
Plaintiff-Appellant, FILED
v. DEC 10, 2014
Wisconsin Department of Transportation, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
published decision of the court of appeals,1 which reversed the
order of the Kenosha County Circuit Court2 that granted the
Wisconsin Department of Transportation's ("DOT") motion in
limine to exclude evidence of diminution in value of commercial
property owned by 118th Street Kenosha, LLC ("the LLC"). We
1
118th St. Kenosha, LLC v. DOT, 2013 WI App 147, 352
Wis. 2d 183, 841 N.W.2d 568.
2
The Honorable Bruce E. Schroeder presided.
No. 2012AP2784
reverse the court of appeals and remand to the circuit court to
dismiss the action.
¶2 The LLC owns commercial property consisting of a four-
store shopping center in the City of Kenosha. Before 2010 the
commercial property had direct access to 118th Avenue by a
driveway onto 118th Avenue and indirect access to 118th Avenue
by a driveway onto 74th Place, a private road that intersected
with 118th Avenue. In 2010 the DOT performed three acts
relevant to this case: the DOT (1) relocated 118th Avenue to the
east one block, thereby eliminating the commercial property's
direct access to 118th Avenue; (2) acquired a temporary limited
easement3 that authorized the DOT to construct a new double-
throated driveway connecting the commercial property to 74th
Place; and (3) constructed that new driveway onto 74th Place.
After the DOT finished these three acts, the commercial property
had two driveways to 74th Place, indirect access to 118th Avenue
via 74th Place, and no direct access to 118th Avenue. The DOT
paid the LLC $21,000 for the temporary limited easement. The
LLC and the DOT stipulated that $21,000 was adequate
compensation for the temporary limited easement itself. An
appraiser determined that the commercial property's value
3
"An easement provides a nonpossessory right to enter and
use land in the possession of another that obligates the
landowner not to interfere with the uses authorized by the
easement." Savage v. Am. Transmission Co., 2013 WI App 20, ¶1,
346 Wis. 2d 130, 828 N.W.2d 244 (citing Restatement (Third) of
Prop.: Servitudes § 1.2 (2000)).
2
No. 2012AP2784
declined by $400,000 because the relocation of 118th Avenue
caused the commercial property to lose direct access and
proximity to 118th Avenue.
¶3 The LLC now seeks to recover damages under Wis. Stat.
§ 32.09(6g) (2011-12)4 for the commercial property's diminution
in value caused by the relocation of 118th Avenue. Subsection
32.09(6g) provides compensation for diminution in value caused
by "the taking of an easement." Because the temporary limited
easement and the relocation of 118th Avenue were both part of
the same greater highway reconstruction project, the LLC argues
its award for the temporary limited easement under § 32.09(6g)
should include damages for the commercial property's decline in
value caused by the relocation of 118th Avenue.
¶4 This case presents the following three issues:
4
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Subsection (6g)
was created by § 7, ch. 440, Laws of 1977, and it provides:
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.
3
No. 2012AP2784
(1) Is a temporary limited easement compensable under Wis.
Stat. § 32.09(6g)?5
(2) Assuming that a temporary limited easement is
compensable under Wis. Stat. § 32.09(6g), did the circuit court
appropriately exercise its discretion when it excluded evidence
of the commercial property's diminution in value from lost
direct access and proximity to 118th Avenue because the
temporary limited easement did not cause the loss?
(3) Is the LLC barred from recovering compensation for the
commercial property's loss of direct access and proximity to
118th Avenue because the relocation of 118th Avenue was a proper
exercise of the DOT's police power?
¶5 The crux of the issue before this court is whether
damages under Wis. Stat. § 32.09(6g) for the temporary limited
easement include the commercial property's diminution in value
caused by its loss of direct access and proximity to 118th
Avenue due to that road's relocation, although the temporary
limited easement did not cause that loss of direct access and
proximity.
¶6 For purposes of our analysis, we assume, without
deciding, that a temporary limited easement is compensable under
Wis. Stat. § 32.09(6g).
5
The LLC's claim for compensation for loss of direct access
and proximity to 118th Avenue is based solely on Wis. Stat.
§ 32.09(6g). The LLC does not ask us to, and we do not,
determine whether the LLC could be entitled to compensation for
that loss under any other claim.
4
No. 2012AP2784
¶7 We conclude that the LLC is precluded from seeking
damages under Wis. Stat. § 32.09(6g) for the commercial
property's diminution in value which resulted from its loss of
direct access and proximity to 118th Avenue due to the 118th
Avenue relocation. The temporary limited easement did not cause
the commercial property to lose direct access and proximity to
118th Avenue, so damages under § 32.09(6g) for the temporary
limited easement cannot include damages for the loss of direct
access and proximity to 118th Avenue. Because the LLC seeks
damages for its loss of direct access and proximity to 118th
Avenue, the circuit court did not err by excluding evidence of
those damages in the § 32.09(6g) claim for taking an easement.
Thus, the LLC improperly seeks compensation under § 32.09(6g)
for the commercial property's diminution in value based on its
lost direct access and proximity to 118th Avenue when 118th
Avenue was relocated. Because our resolution of the narrow
issue presented disposes of the LLC's claim, we need not address
the other issues presented. See Maryland Arms Ltd. P'ship v.
Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15.
¶8 We affirm the circuit court's grant of the DOT's
motion in limine seeking to exclude evidence of damages caused
by the LLC's loss of direct access and proximity to 118th
Avenue. We reverse the court of appeals and remand to the
circuit court to dismiss the action.
I. FACTUAL BACKGROUND
¶9 The LLC owns 1.83 acres or 79,715 square feet of land
("commercial property") that consists of a one-story strip mall
5
No. 2012AP2784
with four stores and restaurants. The commercial property is
located at 7300 118th Avenue in the City of Kenosha, just
northeast of the intersection of Interstate 94 and State Trunk
Highway 50. Before 2010 the eastern side of the commercial
property abutted 118th Avenue and the southern side abutted 74th
Place, a private road. A driveway on the northeastern side of
the commercial property provided direct access to 118th Avenue.
An existing single-lane driveway on the southern side of the
commercial property provided direct access to 74th Place. The
commercial property had indirect access to 118th Avenue via 74th
Place, which intersected with the western side of 118th Avenue.
¶10 On January 4, 2010, the DOT acquired a temporary
limited easement of .262 acres of the commercial property for
the purpose of constructing a new double-throated driveway
connecting the commercial property to 74th Place. Sometime in
2010, the DOT built the new driveway.6 The DOT awarded the LLC
$21,000 in damages for the temporary limited easement.7 This new
driveway was located on the southern side of the commercial
property, near the commercial property's existing single-lane
driveway to 74th Place. Therefore, the double-throated driveway
provided the commercial property with two points of direct
6
The record indicates that the new driveway was constructed
in 2010 without providing a more specific date.
7
The record suggests the $21,000 was for the rental value
of the property encumbered by the temporary limited easement and
for the loss of landscaping that resulted from the temporary
limited easement.
6
No. 2012AP2784
access to 74th Place instead of one. The DOT acquired this
temporary limited easement as part of a greater highway
reconstruction project ("Highway Reconstruction Project").8
¶11 Also sometime in 2010, as part of the greater Highway
Reconstruction Project, the DOT vacated and relocated to the
east one block the portion of 118th Avenue that abutted the
LLC's commercial property. After 118th Avenue was relocated,
the commercial property no longer abutted the Avenue; thus, it
lost direct access to 118th Avenue. The DOT did not alter 74th
Place or the fact that it connected to 118th Avenue.
¶12 On January 24, 2011, the LLC appealed to the circuit
court the DOT's award and sought additional compensation under
Wis. Stat. § 32.09(6g) for the commercial property's decline in
value caused by the loss of direct access and proximity to 118th
Avenue when the Avenue was relocated. Specifically, the LLC's
expert appraiser determined that the commercial property's "loss
of direct access to [118th Avenue], and the loss of proximity to
[118th Avenue]" caused the commercial property's value to
decline by $400,000. The LLC did not allege that $21,000 was
inadequate compensation for the temporary limited easement
itself. The damages at issue in this appeal instead relate to
the property's diminution in value because it lost direct access
8
This project involved the taking of more than 50 temporary
limited easements and more than one dozen permanent easements
from various landowners.
7
No. 2012AP2784
and proximity to 118th Avenue due to the Highway Reconstruction
Project.
II. PROCEDURAL POSTURE
¶13 On December 27, 2011, the DOT filed a motion in limine
with the circuit court, requesting the court to exclude evidence
of damages caused by the LLC's loss of direct access and
proximity to 118th Avenue. On November 5, 2012, the circuit
court granted the DOT's motion in limine.
¶14 The circuit court reasoned that Wis. Stat. § 32.09(6g)
allows only damages that result from an easement. The circuit
court stated that § 32.09(6g) "merely identifies the damages
which are allowed if, and only if, caused by a taking by the
state." (Emphasis in original.) According to the circuit court,
the LLC's loss of direct access and proximity to 118th Avenue
"was caused by the vacation of the street [118th Avenue], not by
the taking of any property from the plaintiff. Damages are
allowed under § 32.09(6g), Stats., only for loss which was a
consequence of the particular taking."
¶15 On November 9, 2012, the DOT and the LLC entered into
a stipulated judgment that preserved each party's right to
appeal the circuit court's ruling on the DOT's motion in limine.
The parties agreed that $21,000 was the fair value of the
temporary limited easement itself. The DOT already paid the LLC
that amount in damages.
¶16 On November 20, 2013, the court of appeals reversed
the circuit court's decision granting the DOT's motion in
limine. 118th St. Kenosha, LLC v. DOT, 2013 WI App 147, ¶1, 352
8
No. 2012AP2784
Wis. 2d 183, 841 N.W.2d 568. The court of appeals reasoned that
"the temporary easement was integrally connected with the
property's loss of direct access and proximity to 118th Avenue."
Id., ¶9. The court noted that Wis. Stat. § 32.09(6g) requires
that compensation for an easement be determined while "assuming
the completion of the public improvement." Id., ¶10. Based on
the "integral connection" between the temporary limited easement
and the relocation of 118th Avenue, the court of appeals held
that the "public improvement" mentioned in § 32.09(6g) refers to
the relocation of 118th Avenue. Id. Thus, the court of appeals
held that the LLC's damages for the temporary limited easement
may include damages under § 32.09(6g) for the LLC's loss of
direct access and proximity to 118th Avenue. Id., ¶11.
¶17 The DOT petitioned this court for review, and we
granted the petition.
III. STANDARD OF REVIEW
¶18 We must determine whether the circuit court properly
excluded evidence that the LLC's compensation for the temporary
limited easement should include damages under Wis. Stat.
§ 32.09(6g) for the LLC's loss of direct access and proximity to
118th Avenue. "This court will not disturb a circuit court's
decision to admit or exclude evidence unless the circuit court
erroneously exercised its discretion." Weborg v. Jenny, 2012 WI
67, ¶41, 341 Wis. 2d 668, 816 N.W.2d 191 (citing State v.
Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448). "A
circuit court erroneously exercises its discretion if it applies
an improper legal standard or makes a decision not reasonably
9
No. 2012AP2784
supported by the facts of record." 260 N. 12th St., LLC v. DOT,
2011 WI 103, ¶38, 338 Wis. 2d 34, 808 N.W.2d 372 (citing Ringer,
326 Wis. 2d 351, ¶24).
¶19 To determine whether evidence was admissible under
Wis. Stat. § 32.09(6g), we must interpret and apply that
statute. See id., ¶39. "Statutory interpretation and
application present questions of law that we review de novo
while benefiting from the analyses of the court of appeals and
circuit court." Id. (citing E–L Enters., Inc. v. Milwaukee
Metro. Sewerage Dist., 2010 WI 58, ¶20, 326 Wis. 2d 82, 785
N.W.2d 409).
¶20 "[S]tatutory interpretation 'begins with the language
of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (citations omitted). We give statutory language "its
common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." Id. (citing Bruno v. Milwaukee
Cnty., 2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660 N.W.2d 656;
Wis. Stat. § 990.01(1)). We interpret statutory language in the
context of the statute in which it is used and in relation to
closely-related statutes. Id., ¶46 (citations omitted). We do
not consult extrinsic sources of interpretation, such as
legislative history, if the statutory language is unambiguous.
Id. (citations omitted).
IV. ANALYSIS
10
No. 2012AP2784
A. The DOT's Arguments
¶21 The DOT argues that the LLC cannot recover damages
under Wis. Stat. § 32.09(6g) for the LLC's loss of direct access
and proximity to 118th Avenue. First, the DOT argues that
damages for a temporary limited easement are not compensable
under § 32.09(6g), which the DOT argues is "ineffective and
unsuitable" for calculating damages for a temporary limited
easement. According to the DOT, a temporary limited easement
often does not affect the value of the subject property, so
damages under § 32.09(6g) would unconstitutionally result in no
compensation for the property owner in many cases. The DOT
urges this court to hold that rental-value damages for a
temporary limited easement are available under the Wisconsin
Constitution's takings clause9 or § 32.09(6).10
9
Article I, Section 13 of the Wisconsin Constitution
provides that "[t]he property of no person shall be taken for
public use without just compensation therefor."
10
Wisconsin Stat. § 32.09(6) (intro.) provides:
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 . . . .
11
No. 2012AP2784
¶22 If this court holds or assumes without deciding that
damages for a temporary limited easement are compensable under
Wis. Stat. § 32.09(6g), the DOT argues that the LLC may not
recover damages under § 32.09(6g) for its loss of direct access
and proximity to 118th Avenue, for two reasons. First, the DOT
argues that, under the facts of this case, the LLC's damages
under § 32.09(6g) for the temporary limited easement may not
include damages for the LLC's loss of direct access and
proximity to 118th Avenue because the temporary limited easement
did not cause the LLC to lose direct access and proximity to
118th Avenue. Instead, according to the DOT, the relocation of
118th Avenue caused the LLC to lose direct access and proximity
to 118th Avenue. The DOT relies on Jantz v. State, 63
Wis. 2d 404, 217 N.W.2d 266 (1974), and More-Way North Corp. v.
State Highway Commission, 44 Wis. 2d 165, 170 N.W.2d 749 (1969),
for the proposition that damages for a temporary limited
easement may not include damages which were not caused by the
temporary limited easement.
¶23 Second, the DOT argues that the LLC's damages for the
temporary limited easement may not include damages under Wis.
Stat. § 32.09(6g) for the LLC's loss of direct access and
proximity to 118th Avenue because the DOT used its police power
to limit the LLC's direct access and proximity to 118th Avenue.11
11
At oral argument, the DOT argued that Wis. Stat. § 84.29
gives it a police power to relocate a public road, including
118th Avenue.
12
No. 2012AP2784
Relying on Stefan Auto Body v. State Highway Commission, 21
Wis. 2d 363, 124 N.W.2d 319 (1963), and Chicago & Northwestern
Railway Co. v. Railroad Commission of Wisconsin, 178 Wis. 485,
188 N.W. 86 (1922), the DOT argues that relocating a public road
is an exercise of the police power. The DOT relies on Surety
Savings & Loan Ass'n v. Department of Transportation, 54
Wis. 2d 438, 195 N.W.2d 464 (1972), to argue that a landowner
may not recover damages for loss of direct access to a public
road if the State eliminated that direct access under its police
power and if the landowner retained other access to the public
road. Because the LLC retained indirect access to 118th Avenue
via 74th Place after 118th Avenue was relocated, the DOT argues,
the LLC's damages for the temporary limited easement may not
include damages under § 32.09(6g) for the LLC's loss of direct
access to 118th Avenue.
B. The LLC's Arguments
¶24 The LLC argues that its damages for the temporary
limited easement should include damages under Wis. Stat.
§ 32.09(6g) for the LLC's loss of direct access and proximity to
118th Avenue. The LLC notes that § 32.09 (intro.) states: "In
all matters involving the determination of just compensation in
eminent domain proceedings, the following rules shall be
followed . . . ." The LLC relies on the language of § 32.09(6g)
to argue that § 32.09(6g) provides the proper method of
calculating the LLC's damages for the temporary limited
easement. Subsection 32.09(6g) states that its method for
determining damages applies "[i]n the case of the taking of an
13
No. 2012AP2784
easement . . . ." The LLC argues that this statutory language
does not distinguish between temporary and permanent easements.
According to the LLC, the DOT is asking this court to improperly
insert the word "permanent" immediately before the word
"easement."
¶25 The LLC further argues that, according to the language
of Wis. Stat. § 32.09(6g), the LLC's damages for the temporary
limited easement may include damages for the LLC's loss of
direct access and proximity to 118th Avenue. The LLC notes that
§ 32.09(6g) states, by reference to § 32.09(6), that damages for
loss of access and proximity are compensable under § 32.09(6)(b)
and (6)(e) "where shown to exist." The LLC argues that
§ 32.09(6g)'s command to "assum[e] the completion of the public
improvement" when calculating damages for an easement refers to
the relocation of 118th Avenue, not the construction of the
double-throated driveway. Specifically, § 32.09(6g) provides
compensation "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 . . . ." Wis. Stat. § 32.09(6g).
¶26 Additionally, the LLC argues that it lost direct
access to 118th Avenue when 118th Avenue was relocated, and that
a landowner is entitled to compensation for loss of direct
access to a public road abutting the landowner's property. The
LLC quotes our prior cases that have stated a right to access a
public road abutting one's property "is a property right, the
14
No. 2012AP2784
taking of which requires compensation," Narloch v. DOT, 115
Wis. 2d 419, 430, 340 N.W.2d 542 (1983) (citation omitted), and
"the deprivation or restriction of an existing right of access
is compensable under Wis. Stat. § 32.09(6)." Nat'l Auto
Truckstops, Inc. v. DOT, 2003 WI 95, ¶18, 263 Wis. 2d 649, 665
N.W.2d 198.
¶27 The LLC disagrees with the DOT's argument that the
LLC's loss of direct access and proximity to 118th Avenue is
separate and distinct from the temporary limited easement. The
LLC argues that the temporary limited easement was an "integral"
part of the Highway Reconstruction Project, which caused 118th
Avenue to be relocated. According to the LLC, 118th Avenue
would not have been relocated if the DOT did not acquire a
temporary limited easement to build the double-throated driveway
that connected the commercial property to 74th Place. The LLC
reasons that its appraiser stated in an affidavit that the
commercial property would have had legally insufficient access
for emergency vehicles if its only access point were the
preexisting single-lane driveway connecting the commercial
property to 74th Place. The LLC argues that Jantz and More-Way
North are distinguishable because each of those cases involved a
landowner's attempt to receive damages for a public road's
change of grade, whereas the LLC is not seeking damages for
change of grade.
¶28 The LLC also disagrees with the DOT's argument that
the DOT exercised its police power when it relocated 118th
Avenue. The LLC argues that the DOT used its eminent domain
15
No. 2012AP2784
powers under Wis. Stat. ch. 32 to acquire the temporary limited
easement and used its eminent domain power under Wis. Stat.
§ 84.09 to relocate 118th Avenue. The LLC argues that in
National Auto Truckstops, 263 Wis. 2d 649, Crown Zellerbach
Corp. v. Department of City Development of Milwaukee, 47
Wis. 2d 142, 177 N.W.2d 94 (1970), and Hastings Realty Corp. v.
Texas Co., 28 Wis. 2d 305, 137 N.W.2d 79 (1965), we rejected the
State's attempt to characterize its use of its eminent domain
power as an exercise of its police power.
¶29 Finally, the LLC rejects the DOT's assertion that the
LLC dedicated to the State its legal right to access 118th
Avenue. The LLC argues that the DOT abandoned this assertion
before the circuit court.
C. General Legal Principles
¶30 Because we decide this case on one narrow ground, we
need not decide the broader issues today. Maryland Arms, 326
Wis. 2d 300, ¶48. We do, however, briefly depart to discuss
pertinent general legal principles. "'The right of access to
and from a public highway is one of the incidents of the
ownership or occupancy of land abutting thereon.'" Hastings
Realty, 28 Wis. 2d at 310 (quoting Royal Transit, Inc. v.
Village of West Milwaukee, 266 Wis. 271, 277, 63 N.W.2d 62
(1954)). "'[H]ighway access rights are but one of a bundle of
rights which appertain to a parcel of real estate.'" Id. at 311
(quoting Nick v. State Highway Comm'n, 13 Wis. 2d 511, 517-18,
109 N.W.2d 71 (1961) (Currie, J., concurring)).
16
No. 2012AP2784
¶31 However, when the government relocates a road, it is
not always required to compensate all who are adversely affected
by the relocation. Surety Savings & Loan, 54 Wis. 2d at 444.
The State may exercise its police power to authorize the
relocation of a highway. Chicago & N.W. Ry. Co., 178 Wis. at
491 ("The state has ample power, in the exercise of the police
power, to authorize the relocation of the highway in order to
protect the public . . . .") (citations omitted). "Where access
to a highway is controlled under the exercise of the police
power and reasonable access remains, no compensation is
required." Schneider v. State, 51 Wis. 2d 458, 462, 187
N.W.2d 172 (1971) (citing Nick, 13 Wis. 2d 511). Eminent domain
can occur contemporaneously with the exercise of police power.
Wis. Stat. § 32.09(4).
¶32 In Howell Plaza, Inc. v. State Highway Commission, 92
Wis. 2d 74, 80, 284 N.W.2d 887 (1979), we stated, "there must be
a taking before there can be a claim for just compensation." In
More-Way North we stated, "[M]ere consequential damage to
property resulting from governmental action is not a taking
thereof. Sec. 13, art. I, Wis. Const., . . . does not
undertake, . . . to socialize all losses, but only those which
result from a taking of property." More-Way N. Corp., 44
Wis. 2d at 170 (quoting Wis. Power & Light Co. v. Columbia
Cnty., 3 Wis. 2d 1, 6, 87 N.W.2d 279 (1958)) (internal quotation
marks omitted).
¶33 Distinct projects are frequently undertaken during a
highway construction project, but that does not necessarily
17
No. 2012AP2784
merge each project into one single compensable act. We
explained in Jantz that the fact "[t]hat both undertakings are
related to a single overall highway improvement purpose does not
merge the actions into a single act . . . ." Jantz, 63
Wis. 2d at 411. Further, 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. See id. at 411-12.
¶34 This discussion begs the question: had the DOT not
undertaken the temporary limited easement project to create the
additional driveway with access to 74th Place, would the LLC
otherwise have a viable claim for the damages it seeks? Cf.
DeBruin v. Green Cnty., 72 Wis. 2d 464, 471, 241 N.W.2d 167
(1976). We need not endeavor to answer this question today.
D. Damages Available for an Easement
under Wis. Stat. § 32.09(6g)
¶35 The LLC seeks damages under Wis. Stat. § 32.09(6g) for
the commercial property's diminution in value caused by its loss
of direct access and proximity to 118th Avenue. The LLC's loss
of direct access and proximity to 118th Avenue was caused by the
relocation of 118th Avenue. We begin our analysis with a plain
reading of the statute. Subsection 32.09(6g) provides:
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
18
No. 2012AP2784
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.
¶36 It is true that Wis. Stat. § 32.09(6g) allows for
recovery of damages enumerated in § 32.09(6)(a) to (6)(g), but
compensation is due for "the taking of an easement." The LLC
argues that, because its commercial property was subject to a
temporary limited easement, § 32.09(6g) allows the LLC to
recover damages for its loss of direct access and proximity to
118th Avenue under § 32.09(6)(b) and (6)(e), respectively.
However, the LLC falls short of adequately explaining how the
"taking of the easement" caused these damages. Here, the
temporary limited easement provided the LLC with additional
access to 74th Place, but the easement did not cause the LLC to
lose direct access and proximity to 118th Avenue.12
12
We note that the plain language of Wis. Stat. § 32.09(6g)
also causes us to pause when considering whether that statutory
subsection is designed to apply to temporary limited easements
in the first instance. See also More-Way N. Corp. v. State
Highway Comm'n, 44 Wis. 2d 165, 173-75, 170 N.W.2d 749 (1969)
(holding that a temporary limited easement did not effect an
actual permanent taking). First, the plain language of the
statute references easements, not temporary limited easements.
Second, the before and after valuation approach arguably creates
confusion in temporary limited easement cases because it does
not consider the temporary nature of the easement. Third, this
statutory subsection may not apply to a temporary limited
easement because a temporary limited easement often will
terminate upon completion of the project. Thus, a benefit,
rather than a detriment, may accrue to the property. Thus, the
before and after valuation leaves no room for compensation for
many temporary easements. As a result, Wisconsin Constitution,
Article I, Section 13, and W.H. Pugh Coal Co. v. State, 157
Wis. 2d 620, 631, 460 N.W.2d 787 (Ct. App. 1990), instruct that
rental value may be the appropriate measure, rather than
(continued)
19
No. 2012AP2784
¶37 Subsection 32.09(6g) states that compensation for an
easement is calculated by considering the fair market value of
the whole property immediately before and after the "date of
evaluation,"13 which other statutory provisions explain is the
date on which the easement is acquired. Wis. Stat. §§ 32.09(1),
32.06(7).14 Thus, the plain purpose of considering the "date of
evaluation" is to determine the damages to the property caused
by the taking of an easement. See Hoekstra v. Guardian
Pipeline, LLC, 2006 WI App 245, ¶13, 298 Wis. 2d 165, 726
N.W.2d 648 (holding that § 32.09(6g) provides compensation for
damages that occurred "'because of'" an easement) (quoting
Arents v. ANR Pipeline Co., 2005 WI App 61, ¶14, 281
Wis. 2d 173, 696 N.W.2d 194). We conclude that § 32.09(6g)
plainly allows compensation for damages caused by the taking of
an easement. See Kalal, 271 Wis. 2d 633, ¶45.
¶38 As we assume, without deciding, that a temporary
limited easement is compensable under Wis. Stat. § 32.09(6g), we
§ 32.09(6g), when a temporary easement occurs. The $21,000
awarded in this case seems to compensate for the temporary
limited easement's rental value and resulting loss of
landscaping.
13
The "date of evaluation" generally is the date on which
the easement is acquired. Wis. Stat. §§ 32.09(1), 32.06(7); see
also 260 N. 12th St., LLC v. DOT, 2011 WI 103, ¶45, 338
Wis. 2d 34, 808 N.W.2d 372; Fields v. Am. Transmission Co., 2010
WI App 59, ¶13, 324 Wis. 2d 417, 782 N.W.2d 729.
14
We may consider closely related statutory provisions.
See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI
58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.
20
No. 2012AP2784
proceed to the crux of the issue at hand, which distills into
whether under these facts, damages are properly awarded under
§ 32.09(6g) for the commercial property's diminution in value
caused by the loss of direct access and proximity to 118th
Avenue.
¶39 In so doing, we first turn to case law which has
analyzed how damages for an easement are determined under Wis.
Stat. § 32.09(6g). Recognizing that More-Way North determined
that a temporary limited easement did not effect an actual
permanent taking, we nonetheless endeavor to further discuss
§ 32.09(6g) damages for easements. See More-Way N. Corp., 44
Wis. 2d at 176.
¶40 For example, in Hoekstra, Guardian Pipeline obtained
an easement to install a natural gas transmission pipeline on
the Hoekstras' property. Hoekstra, 298 Wis. 2d 165, ¶1. At
trial, the circuit court excluded evidence that prospective
buyers' fear of gas pipelines reduced the value of the
Hoekstras' property. Id., ¶15. The court of appeals reversed
because the property's alleged diminution in value was caused by
the easement. See id., ¶¶17-23.
¶41 Similarly, in Savage v. American Transmission Co.,
2013 WI App 20, 346 Wis. 2d 130, 828 N.W.2d 244, American
Transmission acquired a new easement to add more wires to an
electricity transmission line that was already on Savage's
property. Savage, 346 Wis. 2d 130, ¶4. At trial, the circuit
court excluded evidence that the easement precluded Savage from
using the easement property as he could have before. Id., ¶6.
21
 No. 2012AP2784
The court of appeals reversed and concluded that because the new
easement precluded Savage from using the property as he could
have before, Savage could introduce evidence of damages caused
by the new easement's restrictions. Id., ¶¶15-16.
¶42 Fields v. American Transmission Co., 2010 WI App 59,
324 Wis. 2d 417, 782 N.W.2d 729, further demonstrates that a
Wis. Stat. § 32.09(6g) claim for damages is not as sweeping as
the LLC suggests. American Transmission acquired a new easement
to replace the electricity transmission poles on the Fields'
property. Fields, 324 Wis. 2d 417, ¶¶5, 6, 11. Poles were
previously located on the Fields' property under an existing
easement from 1948. Id., ¶¶1, 4. The Fields sought
compensation for the new easement. Id., ¶1. In proving their
claim under § 32.09(6g), the Fields were entitled only to
damages caused by the new easement, not for the 1948 easement.
Id.
¶43 These three court of appeals cases demonstrate that,
even where a more permanent easement taking occurs, damages
under Wis. Stat. § 32.09(6g) are limited to those caused by the
easement at issue. Because the temporary limited easement did
not cause the diminution in value of the LLC's commercial
property, no published Wisconsin case interpreting § 32.09(6g)
allows the LLC to recover damages for its commercial property's
diminution in value as part of the LLC's damages for the
temporary limited easement.
22
No. 2012AP2784
E. May the LLC's Damages under Wis. Stat. § 32.09(6g) Include
the Commercial Property's Diminution in Value Caused by the
Relocation of 118th Avenue?
¶44 Our analysis of whether damages are compensable under
Wis. Stat. § 32.09(6g) for the commercial property's diminution
in value caused by the relocation of 118th Avenue is further
guided by precedent which has considered what damages are due
when a taking occurs in a highway relocation project. In the
case at issue, it is not disputed that no property was taken
from the LLC and the property's size and boundaries remained
unchanged. However, the LLC lost the commercial property's
proximity and direct access to 118th Avenue when that road was
relocated. The following cases, while not § 32.09(6g) easement
cases, inform our analysis.
¶45 For example, in Carazalla v. State, 269 Wis. 593, 70
N.W.2d 208 (1955) ("Carazalla I"), the Carazallas' farm abutted
United States Highway 51 in Marathon County. Carazalla I, 269
Wis. at 595. The county used eminent domain to acquire 13.05
acres of the Carazallas' farm property, but the property taken
did not include an access point to the highway. See id. at 595,
597. Highway 51 was then constructed on the acquired land. Id.
at 595-97. At trial over compensation due for the taking, the
circuit court allowed evidence that the relocation of Highway 51
caused the Carazallas' property to become less valuable. Id. at
597-98. Initially, in Carazalla I, Justice Currie's unanimous
opinion held that the circuit court did not err by allowing that
evidence. Id. at 606-08.
23
No. 2012AP2784
¶46 On rehearing in Carazalla v. State, 269 Wis. 593, 71
N.W.2d 276 (1955) ("Carazalla II"), however, we made clear that
the court erred in admitting such evidence. Justice Currie's
unanimous opinion thus concluded that in calculating
compensation due for the partial taking of land, the circuit
court indeed erred when it allowed the jury to consider the
diminution in value caused by the relocation of the highway.
Carazalla II, 269 Wis. at 608c. We clarified that Carazalla I
was incorrect to conclude that the partial taking of land and
relocation of the highway "were so interwoven that" the two acts
were "an inseparable whole," because the two acts really were
"separate and distinct." Id. In other words, we clarified in
Carazalla II that compensation for a taking cannot include
damages for a lost point of access to a highway if the point of
access was lost because of an act separate from the taking, such
as the highway's relocation.
¶47 Similarly, in Jantz, Jantz sought damages for a
partial taking of land that occurred during a highway
relocation. Jantz owned a bar and grill that abutted United
States Highway 41-45 and Maple Road in Washington County.
Jantz, 63 Wis. 2d at 406. Jantz's property had access to
Highway 41-45 only via Maple Road. See id. The DOT used
eminent domain to acquire .38 acres of Jantz's land adjacent to
Highway 41-45. Id. The property taken did not include Jantz's
point of access to the highway. See id. The DOT built
additional highway lanes on the strip of land acquired from
Jantz. Id. The DOT also relocated Maple Road. Id. Jantz's
24
 No. 2012AP2784
property maintained access to Highway 41-45 via Maple Road. Id.
Jantz argued, however, that the value of her bar and grill
declined because the roadway relocation left her with circuitous
access to the highway.15 Id. at 406-07. At trial, the circuit
court excluded evidence that the circuity of access or change in
grade reduced the value of Jantz's property. Id. at 407.
¶48 On appeal, we upheld the circuit court's exclusion of
that evidence. Id. at 412. We reasoned that the relocation of
Maple Road was separate from the partial taking of land. Id. at
411. In other words, damages for the circuitous access to the
relocated highway were not included in the compensation for the
partial taking because those damages were not "a consequence of
the taking of .38 acre of land . . . ." Id. at 412. Even if
the relocation of Maple Road and the partial taking of Jantz's
land were somehow "related to a single overall highway
improvement purpose," that fact would not transform the partial
15
Jantz also argued that her property's value declined
because of the change of grade of the highway, the right-of-way
due to the change of grade, the loss of view to and from the
property, and loss of income of the bar and grill. Jantz v.
State, 63 Wis. 2d 404, 406-07, 217 N.W.2d 266 (1974). The LLC
is incorrect in concluding that Jantz involved only a change in
grade.
25
No. 2012AP2784
taking claim into a valid claim for damages based on the highway
project's negative effect on Jantz's business. Id. at 411.16
¶49 Likewise, Schneider v. State, 51 Wis. 2d 458, 187
N.W.2d 172 (1971), like Carazalla II and Jantz, stands for the
proposition that even in a compensation claim for a partial
taking of land, the damages due are for the taking rather than
for a relocated highway's impacts on the property. In
Schneider, Schneider owned land abutting State Highway 151 and
Thompson Road in Dane County. Schneider, 51 Wis. 2d at 460. In
1956 the State of Wisconsin designated State Highway 151 as a
controlled-access highway. Id. Schneider maintained direct
access to the highway with a private permit and indirect access
to the highway via Thompson Road. Id. In 1968 the State used
eminent domain to acquire 3.29 acres of Schneider's land to
build a frontage road on the acquired land. Id. The land taken
did not include Schneider's access point to the highway. See
id. Rather, Schneider's access to the highway was reduced
because the State revoked Schneider's private permit to directly
access the highway and closed the Highway 151-Thompson Road
intersection that Schneider used to access the highway. Id.
16
We noted that Jantz perhaps may have been entitled to
recover damages under Wis. Stat. § 32.18 for harm to her
property caused by Maple Road's change in grade. Jantz, 63
Wis. 2d at 411. However, those damages were unavailable in
Jantz's lawsuit because Jantz brought suit under Wis. Stat.
§ 32.09(6) to recover compensation for the partial taking, and
the partial taking did not cause the change in grade. Id. at
411-12.
26
No. 2012AP2784
The new frontage road became Schneider's only access to the
highway. Id. at 463. At the trial on the amount of
compensation owed to Schneider, the jury's award for the partial
taking of land included damages for the property's diminution in
value caused by the property's loss of access to the highway.
See id. at 460-61, 464. The circuit court later concluded that
it was incorrect to allow evidence of diminution in value that
resulted from loss of access to the highway. Id. at 464.
¶50 On appeal we affirmed the circuit court's conclusion
that damages for the partial taking of land could not include
damages for the diminution in value of Schneider's land that
resulted from the closing of Thompson Road and the designation
of Highway 151 as a controlled-access highway. Id. at 465-66.
We reasoned that the partial taking of Schneider's land was
"separate and distinct" from Schneider's loss of access to
Highway 151 and the resulting diminution in value of Schneider's
land. Id. at 463 (citing Carazalla II, 269 Wis. at 608c).
¶51 Not surprisingly, the LLC attempts to distinguish the
above cases and instead primarily relies on National Auto
Truckstops, 263 Wis. 2d 649, for the proposition that
compensation under Wis. Stat. § 32.09(6g) for the temporary
limited easement should include damages for the commercial
property's diminution in value caused by the relocation of 118th
27
No. 2012AP2784
Avenue.17 Notably, National Auto Truckstops neither overruled
nor modified Carazalla II, Jantz, or Schneider. As a result, we
examine whether these cases can coexist in our jurisprudence.
¶52 In National Auto Truckstops the truckstop's strip of
land, which contained the only points of direct access to the
highway, was taken. Nat'l Auto Truckstops, 263 Wis. 2d 649,
¶¶4-5. National Auto owned a truckstop near the intersection of
United States Highway 12 and Interstate 94 in St. Croix County.
Id., ¶4. The DOT used eminent domain to acquire .27 acres from
the truckstop to build a frontage road on the land taken and to
17
Relying on National Auto Truckstops, Inc. v. Department
of Transportation, 2003 WI 95, 263 Wis. 2d 649, 665 N.W.2d 198,
Crown Zellerbach Corp. v. Department of City Development of
Milwaukee, 47 Wis. 2d 142, 177 N.W.2d 94 (1970), and Hastings
Realty Corp. v. Texas Co., 28 Wis. 2d 305, 137 N.W.2d 79 (1965),
the LLC argues that the relocation of 118th Avenue was an
exercise of the DOT's eminent domain power rather than police
power and, therefore, the LLC's damages for the temporary
limited easement should include damages that resulted from the
relocation of 118th Avenue.
However, even if the LLC correctly characterizes the
holdings of these cases, they are distinguishable. In these
three cases, whether the taking or easement caused the loss of
access to a road was not at issue. In the present case, by
contrast, the fact that the temporary limited easement did not
cause the LLC's loss of direct access and proximity to 118th
Avenue is fatal to the LLC's Wis. Stat. § 32.09(6g) claim.
Hastings is further distinguishable because the court in that
case did not determine whether the plaintiff was entitled to
compensation for a taking. Instead, the court determined
whether the plaintiff's lease was terminable under a provision
that allowed for termination of the lease if the State took a
portion of the leased property under eminent domain. Hastings,
28 Wis. 2d at 308-09. We do not consider whether the relocation
of 118th Avenue was an exercise of the police power under these
three cases.
28
No. 2012AP2784
widen the highway to four lanes. Id. Because the truckstop's
only two points of direct access to the highway were actually
located on the portion of land taken, the partial taking
resulted in the truckstop losing its only points of direct
access to the highway. Id., ¶¶4-5. National Auto's new access
to the highway was via the new frontage road. Id., ¶5. At
trial over compensation due for the partial taking of land, the
circuit court excluded evidence that the truckstop declined in
value because of its loss of two points of direct access to the
highway. Id., ¶7.
¶53 On appeal, we held the circuit court erred by
excluding that evidence because at issue was whether the changed
access was reasonable access. Id., ¶2. We held that, in order
to award damages to a landowner for loss of access to a road, a
jury must determine that the landowner was left without
reasonable access to the road. Id. Thus, we held that if a
jury determined that the changed access was not reasonable, then
just compensation is due for the "deprivation or restriction of
[National Auto's] right of access." Id. The evidence which
related to National Auto's loss of access due to the taking was
admissible insofar that the jury found that the changed access
was unreasonable. Central to the court's determination that the
evidence was admissible, was the fact that the property taken
contained the access points. See id., ¶¶17-18. National Auto
Truckstops does not stand for the proposition that compensation
for an easement includes damages for a commercial property's
29
No. 2012AP2784
diminution in value caused by a highway relocation project when
no property was taken.
¶54 National Auto Truckstops is fundamentally
distinguishable from the present case. In National Auto
Truckstops the parcel of land taken contained the landowner's
only two points of access to a public road. In the case at
issue, none of the LLC's land was taken. In National Auto
Truckstops a permanent taking of land occurred which caused the
size and boundaries of National Auto's property to change. In
the present case, the boundaries and size of the LLC's
commercial property are unchanged.
¶55 Unlike the taking in National Auto Truckstops, the
temporary limited easement at issue did not cause the LLC to
lose direct access and proximity to 118th Avenue. In the
present case, not only was no land taken, but by providing the
LLC with a permanent additional driveway pursuant to the
temporary limited easement, the LLC gained more, not less,
access to 74th Place. The temporary limited easement at issue
did not cause the relocation of 118th Avenue nor did the LLC
lose direct access and proximity to 118th Avenue because of the
easement. Therefore, compensation due for this temporary
limited easement does not properly include damages for the
commercial property's diminution in value based on its lost
direct access and proximity to 118th Avenue, which resulted from
the relocation of 118th Avenue.
¶56 Hence, Carazalla II, Jantz, Schneider, and National
Auto Truckstops all comport with the plain language of Wis.
30
No. 2012AP2784
Stat. § 32.09(6), which allows "compensation" for damages caused
by "a partial taking of property." See Wis. Stat. § 32.09(6).
In each case, the allowable damages were caused by the claimed
taking. These cases, however, do not stand for the proposition
that the LLC may recover the damages sought here when no
property was taken from the LLC, its property's boundaries
remained intact, and its claim is for "the taking of an
easement." At its core, this commercial property's diminution
in value resulted from its loss of direct access and proximity
to a relocated road, not because of the temporary limited
easement. No case supports the notion that the LLC's claim
under § 32.09(6g) for a temporary limited easement would include
the near half million dollar diminution in value which resulted
from 118th Avenue being relocated.
¶57 We conclude that Carazalla II, Jantz, Schneider, and
National Auto Truckstops can be reconciled in the present case,
and in fact, produce consistent analyses. Carazalla II, Jantz,
and Schneider stand for the principle that 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.
National Auto Truckstops recognized that there are circumstances
under which damages for loss of direct access to a highway could
be recoverable. However, those circumstances are glaringly
absent in the case at issue. Thus, we conclude that Carazalla
II, Jantz, and Schneider are more compelling. We agree with the
circuit court that the LLC's loss of direct access and proximity
31
No. 2012AP2784
to 118th Avenue "was caused by the vacation of the street [118th
Avenue], not by the taking of any property from the plaintiff.
Damages are allowed under § 32.09(6g), Stats., only for loss
which was a consequence of the particular taking." The circuit
court's analysis is consistent with the case law. See Jantz, 63
Wis. 2d at 412 (holding that the circuit court correctly limited
damages in a partial taking claim to "damages sustained as a
consequence of the taking"). Contrary to the LLC's suggestion,
an award for a temporary limited easement, such as the one at
issue, cannot serve to bootstrap damages that emanate from this
road relocation, especially when, as here, no land has been
taken and the property's boundaries are unchanged. See
Carazalla II, 269 Wis. at 608c (holding that compensation for a
partial taking cannot include damages for "interwoven" loss of
point of access to a road because the taking did not cause the
loss of the access point).
¶58 Whether the LLC may recover damages for its loss of
direct access and proximity to 118th Avenue under a different
theory is reserved for another day. According to the DOT, "No
one disputes that loss of access can be compensable. It is just
not compensable here." We agree. We conclude that the subject
loss is not recoverable under Wis. Stat. § 32.09(6g) because
this temporary limited easement did not cause those damages.
Cf. Jantz, 63 Wis. 2d at 411-12. Simply stated, under these
facts, the temporary limited easement did not cause the LLC to
lose direct access and proximity to 118th Avenue; therefore, the
LLC's damages for the commercial property's diminution in value
32
No. 2012AP2784
are not recoverable in its § 32.09(6g) temporary limited
easement claim.
¶59 Accordingly, we hold that the LLC's claim under Wis.
Stat. § 32.09(6g) for the temporary limited easement may not
include evidence of damages for the commercial property's
diminution in value caused by the relocation of 118th Avenue.
The circuit court did not err by excluding that evidence.
Because our holding is dispositive, we decline to address the
other issues presented.
V. CONCLUSION
¶60 For purposes of our analysis, we assume, without
deciding, that a temporary limited easement is compensable under
Wis. Stat. § 32.09(6g).
¶61 We conclude that the LLC is precluded from seeking
damages under Wis. Stat. § 32.09(6g) for the commercial
property's diminution in value which resulted from its loss of
direct access and proximity to 118th Avenue due to the 118th
Avenue relocation. The temporary limited easement did not cause
the commercial property to lose direct access and proximity to
118th Avenue, so damages under § 32.09(6g) for the temporary
limited easement cannot include damages for the loss of direct
access and proximity to 118th Avenue. Because the LLC seeks
damages for its loss of direct access and proximity to 118th
Avenue, the circuit court did not err by excluding evidence of
those damages in the § 32.09(6g) claim for taking an easement.
Thus, the LLC improperly seeks compensation under § 32.09(6g)
for the commercial property's diminution in value based on its
33
No. 2012AP2784
lost direct access and proximity to 118th Avenue when 118th
Avenue was relocated. Because our resolution of the narrow
issue presented disposes of the LLC's claim, we need not address
the other issues presented. See Maryland Arms, 326 Wis. 2d 300,
¶48.
¶62 We affirm the circuit court's grant of the DOT's
motion in limine seeking to exclude evidence of damages caused
by the LLC's loss of direct access and proximity to 118th
Avenue. We reverse the court of appeals and remand to the
circuit court to dismiss the action.
By the Court.—The decision of the court of appeals is
reversed and remanded.
34
No. 2012AP2784.ssa
¶63 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I agree
with the majority opinion that the circuit court did not err in
granting the Department of Transportation's motion to exclude
evidence of the property's alleged diminution in value resulting
from the relocation of 118th Avenue.
¶64 I further agree with the majority opinion that this
case does not present, and the court does not decide, the
following questions: whether the LLC suffered a diminution in
property value from the relocation of 118th Avenue, whether the
LLC's loss of direct access to 118th Avenue is compensable in
some action unrelated to the damages award at issue in the
present case, and whether the LLC's remaining access to 118th
Avenue is reasonable as a matter of fact or law.
¶65 The majority opinion assumes without deciding that
temporary limited easements (TLEs) fall within Wis. Stat.
§ 32.09(6g). The majority opinion does not resolve the issue
even though the Department is certain to frequently confront the
question whether TLEs are compensable under Wis. Stat.
§ 32.09(6g) and what the proper compensation is for the taking
of a TLE.1
1
Wis. Department of Transportation, Facilities Dev. Manual,
Temporary Limited Easements, ch. 12 § 1-15.5, available at
http://roadwaystandards.dot.wi.gov/standards/fdm/12-01.pdf#fd12-
1 (last visited Dec. 4, 2014). See also majority op., ¶10 n.8
("This project involved the taking of more than 50 temporary
limited easements and more than one dozen permanent
easements . . . .").
1
No. 2012AP2784.ssa
¶66 The majority opinion recites the tools for statutory
interpretation but does not apply them to decide whether TLEs
are compensable under Wis. Stat. § 32.09(6g). It merely assumes
that § 32.09(6g) applies.
¶67 This court is developing the bad habit of assuming
applicable legal principles without deciding the legal issues
that are presented and briefed.2 This habit "has the unfortunate
effect of ducking [] vital issue[s] that should be decided,"3
"fails to provide adequate guidance to litigants, the circuit
courts, and the court of appeals,"4 and flouts this court's
"ultimate responsibility for development of the law."5
2
See, e.g., State v. Tate, 2014 WI 89, ¶¶59-60, 357
Wis. 2d 172, 849 N.W.2d 798 (Abrahamson, C.J., dissenting)
("This court owes it to law enforcement, lawyers, litigants,
circuit courts, the court of appeals, and the public at large to
provide clarity about when a search has occurred . . . . Rather
than dance around the issue of whether government access to cell
phone location data in the instant cases is a search within the
meaning of the Constitutions, I propose that the court address
it head-on."); State v. Subdiaz-Osorio, 2014 WI 87, ¶159, 357
Wis. 2d 41, 849 N.W.2d 748 (Abrahamson, C.J., dissenting)
("Neither the Tate majority opinion nor Justice Prosser's lead
opinion in Subdiaz–Osorio decides whether the government access
in question constituted a search within the meaning of the
United States and Wisconsin Constitutions. Both opinions assume
that a search occurred."); State v. Nelson, 2014 WI 70, ¶¶63-64,
355 Wis. 2d 722, 849 N.W.2d 317 (Abrahamson, C.J., dissenting)
("The majority opinion assumes that the circuit court erred when
it refused to allow the defendant to tell her side of the
story. . . . I would hold that the circuit court erred.").
3
State v. Rocha-Mayo, 2014 WI 57, ¶100, 355 Wis. 2d 85, 848
N.W.2d 832 (Prosser, J., dissenting).
4
State v. Magett, 2014 WI 67, ¶96, 355 Wis. 2d 617, 850
N.W.2d 42 (Abrahamson, C.J., dissenting).
5
State ex rel. Swan v. Elections Bd., 133 Wis. 2d 87, 108,
394 N.W.2d 732 (1986).
2
No. 2012AP2784.ssa
¶68 I turn to the text of Wis. Stat. § 32.09.
¶69 This section sets forth rules for the determination of
just compensation. Various subsections describe just
compensation in terms of fair market value, which is calculated
differently under varying circumstances. Subsection (6g) of
Wis. Stat. § 32.09 explicitly governs just compensation for "the
taking of an easement." It provides as follows:
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.
(Emphasis added).
¶70 A temporary limited easement (TLE) is, of course, an
easement.6 The text of § 32.09(6g) does not distinguish between
permanent and temporary easements.
¶71 That Wis. Stat. § 32.09(6g) governs TLEs is supported
not only by the statutory text but also by the broader statutory
context. No other statute governs just compensation for the
taking of a TLE or any other particular kind of easement. On
the contrary, Wis. Stat. § 32.09 appears to govern the
determination of just compensation for all takings by eminent
6
See generally 9 Nichols on Eminent Domain ch. G32 (3d ed.
2014).
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domain.7 It explicitly covers the determination of just
compensation for "total" takings (Wis. Stat. § 32.09(5)),
"partial" takings (Wis. Stat. § 32.09(6)), and, of course,
takings of an easement (Wis. Stat. § 32.09(6g)). Thus, the
plain reading of § 32.09(6g) is that it applies to TLEs.
¶72 Although the majority opinion assumes without deciding
that Wis. Stat. § 32.09(6g) applies in the present case
involving the taking of a TLE, it expresses qualms. Lengthy
footnote 12 of the majority opinion explains why the text of
Wis. Stat. § 32.09(6g) "causes us [the majority] to pause when
considering whether that statutory subsection is designed to
apply to temporary limited easements in the first instance."
¶73 Footnote 12 of the majority opinion offers various
reasons why Wis. Stat. § 32.09(6g) might not apply to TLEs.
Most importantly, the "before and after" fair market value rule
for calculating damages for the taking of an easement does not
fit valuation of a TLE.
¶74 The "before and after" fair market value rule
determines "compensation . . . 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 . . . ." Wis. Stat. § 32.09(6g).
Generally, valuing a permanent easement using this calculation
makes sense, but the calculation does not necessarily make sense
when the taking is of a TLE.
7
Wisconsin Stat. § 32.09 is titled "Rules governing
determination of just compensation."
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¶75 TLEs present significant valuation problems for just
compensation.8 Fair market value is ordinarily established by
comparable sales. Yet there is generally no market for TLEs.9
In addition, TLEs are partial interests in terms of both space
and duration.10 According to a leading text, the valuation of a
TLE "depends on the nature of the taking."11
¶76 Few jurisdictions employ the "before and after" fair
market value calculation to determine just compensation for TLEs
because its application would produce unreasonable results. An
important tool of statutory interpretation is that "[w]ords are
given meaning to avoid absurd, unreasonable, or implausible
results . . . ."12 Thus, the text of Wis. Stat. § 32.09(6g)
should be interpreted reasonably, to avoid absurd or
unreasonable results.13
¶77 The leading text on eminent domain sets forth the
following methods used to determine just compensation for the
taking of TLEs:
8
W.H. Pugh Coal Co. v. State, 157 Wis. 2d 620, 631, 460
N.W.2d 787 (1990).
9
9 Nichols on Eminent Domain, ch. G32, § G32.08[1][a] (3d
ed. 2014).
10
Id., § G32.08[7].
11
Id., § G32.08[1][a].
12
Force ex rel. Welcenbach v. Am. Family Mut. Ins. Co.,
2014 WI 82, ¶30, 356 Wis. 2d 582, 850 N.W.2d 886.
13
See id., ¶30.
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• Fair and reasonable rental value of the land subject
to the easement;
• Loss of use;
• Diminution of the rental value of the property
adjacent to the temporary easement;
• Diminution of the rental value of the property as a
whole;
• Diminution of the fair market value of the property
during the period of the taking; and
• Fair rate of return.14
¶78 "The most widely accepted measure of compensation for
the taking of a temporary easement appears to be the rental
value of the property taken."15 "Overall, the opinions of the
United States Supreme Court support compensation for temporary
takings based on the fair market rental value."16 The rental
value is the measure of compensation that was used in the
instant case. I conclude a reasonable reading of Wis. Stat.
§ 32.09(6g) permits this method of valuation when the taking is
of a TLE.
¶79 The majority opinion's assumption that the statute
applies, alongside its assertion that the statute seems
inapplicable to TLEs, engenders confusion. I would prefer this
14
9 Nichols on Eminent Domain, ch. G32, § G32.08[1][e] (3d
ed. 2014).
15
Id., § G32.08[2][a].
16
Id., § G32.03[7]. See also W. H. Pugh Coal Co., 157
Wis. 2d at 631 ("With a temporary taking, 'the proper measure of
compensation is the rental [value] that probably could have been
obtained,' in other words, 'the reasonable value of the
property's use.'" (Citations omitted.)).
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court address head-on the question of whether and how Wis. Stat.
§ 32.09(6g) applies to TLEs.
¶80 Another point of confusion raised by the majority
opinion is the refrain that "no property was taken" (majority
op., ¶¶44, 53, 56). The instant case does, in my opinion (and
apparently in most of the court's opinion), involve a taking,
the cornerstone of condemnation proceedings giving rise to a
claim for compensation.17 Thus, if Wis. Stat. § 32.09(6g) does
not apply, the property owner must still receive just
compensation for the taking under the United States and
Wisconsin Constitutions.18 In determining just compensation for
the taking of TLEs, I wonder whether it makes any difference
whether Wis. Stat. § 32.09(6g) or constitutional principles of
just compensation apply.
¶81 In sum, footnote 12 supports the conclusion that Wis.
Stat. § 32.09(6g) does not apply to TLEs in a decision that
contradictorily assumes (without deciding) that the statute does
apply. This inconsistency in the opinion engenders unnecessary
confusion.
¶82 The damages the parties agreed upon subject to review
in this court reflect the rental value of the TLE. The result
of the majority opinion is that the rental value is upheld as
17
More-Way N. Corp. v. State Highway Comm'n, 44
Wis. 2d 165, 169, 170 N.W.2d 749 (1969).
18
U.S. Const. amend. V ("[N]or shall private property be
taken for public use, without just compensation."); Wis. Const.
art. I, § 13 ("The property of no person shall be taken for
public use without just compensation therefor.").
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just compensation in the present case. I agree with that
result.
¶83 For the reasons set forth, I write separately.
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