Gregory M. Backus v. Waukesha County ( 2022 )

2022 WI 55SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP307
COMPLETE TITLE: Gregory M. Backus,
Plaintiff-Respondent,
v.
Waukesha County,
Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 5, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 6, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Michael O. Bohren
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined.
REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which
ZIEGLER, C.J., and ROGGENSACK, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs filed by
Deborah B. Price, principal assistant corporation counsel. There
was an oral argument by Deborah B. Price.
For the plaintiff-respondent, there was a brief filed by
Erik S. Olsen, Andrew D. Weininger and Eminent Domain Services,
LLC, Madison. There was an oral argument by Andrew D. Weininger.
An amicus curiae brief was filed by Scott E. Rosenow and
WMC Litigation Center, Madison for Wisconsin Manufacturers and
Commerce, Inc.
An amicus curiae brief was filed by Clayton P. Kawski,
assistant attorney general, with whom on the brief was Joshua L.
Kaul, attorney general, for the Wisconsin Department of
Transportation.
2
2022 WI 55NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP307
(L.C. No. 2018CV1379)
STATE OF WISCONSIN : IN SUPREME COURT
Gregory M. Backus,
Plaintiff-Respondent,
FILED
v. JUL 5, 2022
Waukesha County, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined.
REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which
ZIEGLER, C.J., and ROGGENSACK, J., joined.
APPEAL from an order of the Circuit Court for Waukesha
County, Michael O. Bohren, Judge. Reversed and cause remanded.
¶1 JILL J. KAROFSKY, J. The court of appeals certifies
the following question to us: In light of 118th Street Kenosha,
LLC v. DOT, 2014 WI 125, 359 Wis. 2d 30, 856 N.W.2d 486, is a
temporary limited easement compensable under Wis. Stat.
§ 32.09(6g) (2019-20)?1 This question arises from a dispute over
1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
No. 2020AP307
the proper compensation for a temporary limited easement (TLE)
that Waukesha County acquired over Gregory Backus's property to
construct a highway bypass along the Backus property's rear lot
line. Specifically, the County believes it need pay Backus only
the rental value of the TLE. Backus disagrees, arguing that
under § 32.09(6g) he is entitled to severance damages measured
by the difference between the fair market value of the whole
property before and after the completion of the project. In
answering the certified question, we hold that § 32.09(6g) does
not apply to TLEs. Having answered the question, we remand the
cause back to the circuit court for further proceedings
consistent with our holding.
I. BACKGROUND
¶2 The Waukesha West Bypass Project (the Project)
reconstructed, relocated, and expanded five miles of County
Trunk Highway TT, which abuts the backyard of Backus's
residential property. The Project had been in the making for
over 50 years. The highway itself was constructed on land
already owned by the County, and in 2004 the Heritage Hills
Subdivision Plat recorded an easement (HHS Easement) for highway
and sidewalk slopes running the length of Backus's property and
extending approximately 25 feet into his backyard.2
¶3 As part of the Project, in 2016 the County separately
acquired a TLE over 0.032 acres of the easternmost portion of
The HHS Easement was originally obtained by the City of
2
Waukesha and was subsequently transferred to Waukesha County in
2016.
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No. 2020AP307
Backus's property, the entirety of which fell within the
existing HHS Easement. The TLE stated that it was for the
purposes of ingress and egress, operation of machinery, grading
or creation of slopes, placement or removal of soil, and to
remove or plant vegetation.3 The County terminated the TLE at
the completion of the Project.
¶4 Backus seeks compensation from the County for the TLE,
alleging a series of permanent damages to his property that he
claims are attributable to the TLE.4 We limit this opinion to
answering the certified question and thus do not reach any issue
relating to Backus's specific damages.
¶5 The Waukesha County Condemnation Commission awarded
Backus compensation for the TLE, but Backus appealed the amount
to the circuit court.5 At the circuit court, Backus presented a
3 The exact relevant language is as follows: "A Temporary
Limited Easement for the public purpose and right to construct a
highway project, including the placement or removal of soil,
grading of roadway slopes, and the creation of fill or cut
slopes in the temporary limited easement area to match the new
roadway grade, as well as the right of ingress and egress as
long as required for the construction of the highway project,
including the right to preserve, protect, remove or plant
thereon any vegetation that the highway authorities may deem
necessary or desirable."
4 The County filed a motion to strike portions of Backus's
brief that reference some of these damages, contending the
referenced damages are unsupported by the record. The motion
further asks to strike references to the Petition and Complaint
of a subsequently filed lawsuit not before the circuit court.
These facts and arguments are relevant only to issues of damages
which we do not reach in this limited opinion. Thus, we deny
the motion to strike as inconsequential.
5 The Honorable Michael O. Bohren of the Waukesha County
Circuit Court presided.
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No. 2020AP307
before-and-after valuation of his property showing its value
dropped from $308,000 to $217,300 after the project was
completed. He claimed he was owed the difference in value as
severance damages under Wis. Stat. § 32.09(6g). He then added a
$1,705 rental value for the TLE, for a total demand of $90,700
(rounded) in damages.
¶6 The County moved for summary judgment. For the
purposes of the motion, the County stipulated that it owed
Backus the $1,705 in rental value. But it argued that the
severance damages——measured by the diminution in the fair market
value——were not compensable under our 118th Street decision
because the Project as a whole caused the diminution in fair
market value, not the TLE. The circuit court denied the summary
judgment motion, concluding that 118th Street did not foreclose
the possibility of severance damages for a TLE, which raised
disputed issues of material fact.
¶7 The County obtained leave to file this interlocutory
appeal of the denial of its summary judgment motion. The court
of appeals then certified to us, and we accepted, the question
left open in 118th Street: is a TLE compensable under the
valuation methodology in Wis. Stat. § 32.09(6g)?
II. ANALYSIS
¶8 The certified question presents a straightforward
issue of statutory interpretation that we review de novo. See
Bauer v. Wis. Energy Corp., 2022 WI 11, ¶11, 400 Wis. 2d 592,
970 N.W.2d 243. There is no dispute that a TLE is compensable;
the question before us is whether that compensation is to be
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No. 2020AP307
calculated under the method set forth in Wis. Stat. § 32.09(6g).
We begin with a brief recap of 118th Street, which teed up the
issue in this case. We then explain how the plain language of
§ 32.09(6g) does not allow for the valuation of temporary
easements.
¶9 In 118th Street, the Department of Transportation
(DOT) obtained a TLE to build a new driveway to connect a
commercial property to a different street after DOT's relocation
of 118th Avenue caused the commercial property to lose access to
the avenue. 118th Street, 359 Wis. 2d 30, ¶11. As a result,
the commercial property's fair market value declined and the LLC
that owned the commercial property sought compensation for the
diminution in value under § 32.09(6g). Id., ¶12. In a
footnote, the majority acknowledged that there are at least
three reasons why § 32.09(6g) may not apply to TLEs at all:
(1) the statute references "easements" and not "temporary
limited easements"; (2) the before-and-after valuation creates
confusion because it may fail to capture the temporary nature of
a TLE; and (3) TLEs terminate upon completion of the project and
thus the "after" valuation would leave no avenue for
compensation for the TLE no longer in effect. Id., ¶36 n.12.
Nonetheless, the opinion assumed without deciding that a TLE was
compensable under § 32.09(6g). Id., ¶58. We ultimately
concluded that the project as a whole caused the diminution in
value, not the TLE used to construct the driveway. Id., ¶61.
Now we take the opportunity to more fully analyze whether
§ 32.09(6g) applies to TLEs.
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No. 2020AP307
¶10 We begin with the language of § 32.09(6g), which
reads:
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.
We interpret this statute by looking to the text's plain
meaning, giving the words their "common, ordinary, and accepted
meaning." See, e.g., Cree Inc. v. LIRC, 2022 WI 15, ¶16, 400
Wis. 2d 827, 970 N.W.2d 837; Wis. Stat. § 990.01(1).
¶11 Section 32.09(6g) concerns easements. In Garza v. Am.
Transm. Co., we stated that "an easement grants a right to use
another's land." 2017 WI 35, ¶23, 374 Wis. 2d 555, 893 N.W.2d
1. The Wisconsin DOT Real Estate Program Manual sets out two
categories of easements that can be acquired for eminent domain6
projects: permanent easements and TLEs. See Wisconsin DOT Real
Estate Program Manual 2.4.6.3-2.4.6.4 (updated Mar. 2020). The
manual describes a TLE as "an interest in land that is limited
in purpose and time." In the specific context of a taking by
eminent domain, the purpose of a TLE is "for construction," and
6Eminent domain is "the inherent power of a governmental
entity to take privately owned property, esp. land, and convert
it to public use, subject to reasonable compensation for the
taking." Eminent Domain, Black's Law Dictionary (11th ed.
2019).
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No. 2020AP307
all TLEs "expire at the completion of the construction project."
Id. at 2.4.6.4.
¶12 Section 32.09(6g) establishes that compensation for
the "taking of an easement" be measured 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." Although the statute
does not label it as such, this before-and-after valuation of
the whole property incorporates what is known as "severance
damages." Severance damages are defined as "compensation
awarded to a landowner for the loss in value of the tract that
remains after a partial taking of the land." Damages: severance
damages, Black's Law Dictionary 491 (11th ed. 2019); see also
Brenner v. New Richmond Reg'l Airport Comm'n, 2012 WI 98, ¶13
n.5, 343 Wis. 2d 320, 816 N.W.2d 291; 9 Nichols on Eminent
Domain § 14.02[2] (2021) ("In a before and after calculation,
severance damages are not separately calculated but are
automatically factored into the calculation of the value of the
reminder after the taking[.]").7
¶13 Facially, § 32.09(6g) does not differentiate between a
TLE and a permanent easement, and thus both Backus and the
County maintain that the statute applies to all easements——
temporary and permanent alike. That said, we are "not bound by
the parties' interpretation of the law or obligated to accept a
7 The parties also refer to this as "proximity damages."
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No. 2020AP307
party's concession of law." State v. Carter, 2010 WI 77, ¶50,
327 Wis. 2d 1, 785 N.W.2d 516. In this case, DOT offered an
amicus brief arguing that the statute does not apply to TLEs.
DOT contends that TLEs should be compensated according to the
Wisconsin Constitution and common law principles.8
¶14 We agree with DOT and hold that portions of
§ 32.09(6g) necessarily limit its application to permanent
easements alone. As a practical matter, § 32.09(6g)'s before-
and-after valuation methodology is a poor fit for TLEs. As the
definitive treatise on eminent domain law explains "[t]he
valuation of permanent easements is a difficult task and the
valuation of temporary easements is even more difficult," and
while the before-and-after valuation method is typical for
permanent easements, it does not "logically apply to valuing
temporary easements because [that] method attempts to measure
permanent reductions in fair market value." See Nichols
§ G32.08[1][a] & [1][e].
¶15 The language of § 32.09(6g) also conflicts with that
provision's application to TLEs. The term "remainder," as
contrasted with "whole property," is particularly informative as
the former denotes that the property has been divided or severed
in some way. See Remainder Oxford English Dictionary ("[T]hat
which remains when a part has been taken away, used, or
otherwise dealt with; the rest," or "the remaining part or
8 See Wis. Const. art. I, § 13.
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No. 2020AP307
fragment of something.").9 But a TLE takes land only for
temporary use; all portions of the land and related rights
remain under the property owner's control upon the TLE's
termination. See Nichols § G32.01[3] (delineating that one
difference between temporary and permanent takings is that in
temporary takings, "after the taking period expires, the
landowner's legal interest and occupation is reestablished").
Without a continuing division or severance of land, what
"remainder" is there to value?
¶16 TLEs are further inconsistent with the statutory
language setting out the benchmark for the before-and-after
valuations. The "before" value captures the value of the whole
property immediately before the easement is recorded. The
"after" value is calculated assuming "the completion of the
public improvement." § 32.09(6g). But by definition all TLEs
expire upon completion of the public improvement, so to assume
the completion of the public improvement is to also assume the
termination of the TLE. In other words, the "before" value
captures the value of the property before the TLE exists and the
9 Although the use of "remainder" in this context may be
susceptible to a technical, industry specific definition,
treatises and guides appear to use the term consistent with this
common and ordinary meaning to reference what is left after a
partial taking. See, i.e., 9 Nichols on Eminent Domain
§ 14.02[3][c][iv] (2021) ("When a partial taking reduces the
size or shape of the remainder to such a degree that it
negatively affects what can be constructed on the remainder in
the after, the owner has been damaged."); Wisconsin DOT Real
Estate Program Manual 2.4.1.1 ("The appraiser must keep in mind
that valuing the part taken as a separate entity results in a
total taking. There is no remainder[.]").
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No. 2020AP307
"after" value assumes the TLE has ceased to exist. A before-
and-after valuation therefore never captures the actual value of
the TLE while it exists. Instead, the before-and-after
valuation will capture the effect the public improvement project
as a whole has on the fair market value of the property, which
is not the correct compensation amount. See 118th Street, 359
Wis. 2d 30, ¶43 (stating that easement damages "are limited to
those caused by the easement at issue").
¶17 That is precisely what happened in this case.
Backus's expert evaluated the fair market value of the property
before the Project began and after the Project was completed by
using comparable sales from the area that were also affected by
the Project. But this method captured the value of the property
before the TLE was recorded and after the TLE was terminated.
As such, the expert captured and compared the value of the exact
same property interests——the whole property burdened with the
HHS Easement but not the TLE. Logically, this before-and-after
valuation cannot represent the value of the TLE because the TLE
never factors into the equation. This is a stark example of why
a TLE cannot be compensated under the before-and-after fair
market value method of § 32.09(6g).
¶18 Finally, even though subsec. (6g) incorporates the
possibility of non-duplicative recovery for items of loss or
damages listed in § 32.09(6)(a)-(g), those items contemplate
permanent losses or involve damages from "actual severance of
land" and thus would compensate for only limited aspects of a
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No. 2020AP307
TLE.10 Indeed, appraisers regularly rely on § 32.09(6g)'s
"without restriction because of enumeration" language to use
common unenumerated valuation methods that better capture a
TLE's value. In this case, for example, both Backus and the
County considered the TLE's rental value despite rental value
being absent from § 32.09(6)'s enumerated list. However, the
availability of an unrestricted list of additional damages in
§ 32.09(6) does not cure the fact that § 32.09(6g) requires a
10Items of loss or damage listed in Wis. Stat.
§ 32.09(6)(a)-(g) are as follows:
(a) Loss of land including improvements and fixtures
actually taken.
(b) Deprivation or restriction of existing right of
access to highway from abutting land . . . .
(c) Loss of air rights.
(d) Loss of a legal nonconforming use.
(e) Damages resulting from actual severance of land
including damages resulting from severance of
improvements or fixtures and proximity damage to
improvements remaining on condemnee's land. In
determining severance damages under this paragraph,
the condemnor may consider damages which may arise
during construction of the public improvement,
including damages from noise, dirt, temporary
interference with vehicular or pedestrian access to
the property and limitations on use of the property.
. . .
(f) Damages to property abutting on a highway right-
of-way due to change of grade where accompanied by a
taking of land.
(g) Cost of fencing reasonably necessary to separate
land taken from remainder of condemnee's land . . . .
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No. 2020AP307
before-and-after valuation and before-and-after valuations
logically do not capture the value of a TLE.11
¶19 Given that the method listed in § 32.09(6g) cannot
capture the value of a TLE, the far more reasonable reading of
that statute is that it applies only to easements that continue
to exist beyond the completion of a public improvement project.
Therefore, § 32.09(6g) does not apply to TLEs, which must
instead be compensated under constitutional and common law
principles.12
III. CONCLUSION
¶20 Because the text of Wis. Stat. § 32.09(6g) is
incompatible with the valuation of a TLE, we hold that
compensation for a TLE is not calculated under the methodology
of § 32.09(6g).
By the Court.—Reversed and cause remanded.
11The statutory language says that "the compensation to be
paid by the condemnor shall be determined by" the before-and-
after analysis. § 32.09(6g)(emphasis added). The word "shall"
is generally presumed mandatory when it appears in a statute.
See State v. Fitzgerald, 2019 WI 69, ¶25 n.8, 387 Wis. 2d 384,
929 N.W.2d 165.
12To be abundantly clear, this opinion does not limit a
property owner's access to compensation for any provable damages
caused by a TLE. This includes, but is not limited to elements
of value currently included in the WI DOT Real Estate Program
Manual section 2.4.6.4 such as the rental value of the TLE and
damages for permanent loss of site improvements within the TLE.
We do not speculate about the extent of Backus's damages.
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No. 2020AP307.rgb
¶21 REBECCA GRASSL BRADLEY, J. (dissenting). The
certified question in this case has an obvious answer; in fact,
both parties agree that a temporary limited easement (TLE) is
compensable under Wis. Stat. § 32.09(6g). Section 32.09(6g)
begins with the phrase, "[i]n the case of the taking of an
easement[.]" (Emphasis added.) Ignoring this clear language,
the majority errs by inserting the word "permanent" in front of
the word "easement." The majority usurps the legislature's
lawmaking power with this rewrite of duly enacted law.1 See,
e.g., State v. Neill, 2020 WI 15, ¶23, 390 Wis. 2d 248, 938
N.W.2d 521 ("One of the maxims of statutory construction is that
courts should not add words to a statute to give it a certain
meaning." (quoting Fond Du Lac County v. Town of Rosendale, 149
Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989))).
¶22 The majority also disregards Wis. Stat.
§ 32.09(intro.) which states, "[i]n all matters involving the
determination of just compensation in eminent domain
proceedings, the following rules shall be followed[.]"2
(Emphasis added.) Although there are no statutory exceptions,
1The legislature knows how to refer to a specific subset of
easements. See, e.g., Wis. Stat. § (6r)(a) ("In the case of a
taking of an easement in lands zoned or used for agricultural
purposes . . . ."). It did not qualify the word in any manner
in the statute we interpret in this case.
2The majority is selective in its interpretation of the
word "shall," rendering it optional in Wis. Stat.
§ 32.09(intro.) but deeming it compulsory in § 32.09(6)(g). See
majority op., ¶18 n.11 ("The word 'shall' is generally presumed
mandatory when it appears in a statute." (citation omitted)).
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No. 2020AP307.rgb
the majority nevertheless tells Gregory M. Backus (and all
similarly situated property owners) their remedies lie beyond
the statute, which is unequivocally applicable to "all matters"
regarding "just compensation" in an "eminent domain proceeding."3
Under the majority's restructured statutory scheme, "shall be
followed" is rewritten to "may be followed"——if in the
majority's view there is a better "fit" somewhere beyond the
statute.
¶23 The majority also threatens individual freedom by
eroding private property rights. Even though Backus claims to
have suffered substantial damages, the majority's statutory
rewrite will likely limit Backus' damages to merely $1,705 for
the purported "rental value" of the interest taken in his
property. The majority takes diminution in fair market value
off the table based on its misguided sense that the
legislature's formula for compensating a TLE taking is
inadequate. Its misinterpretation of the law calls into
question the constitutionality of Wisconsin's scheme for just
compensation in cases of TLEs. See generally 1 William
Blackstone, Commentaries *135 (explaining the State is
"oblige[d]" to pay property owners "a reasonable price" when it
"indulges" its great power of eminent domain).
¶24 In recognition of the primacy of private property
rights as a first principle, the Takings Clause of the Fifth
Amendment to the United States Constitution provides: "[N]or
shall private property be taken for public use, without just
3 Id., ¶19.
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No. 2020AP307.rgb
compensation."4 This constitutional protection of property
rights is "necessary to preserve freedom" and "empowers persons
to shape and to plan their own destiny in a world where
governments are always eager to do so for them."
Murr v. Wisconsin, 582 U.S. __, 137 S. Ct. 1933, 1943 (2017).
"The Founders recognized that the protection of private property
is indispensable to the promotion of individual freedom. As
John Adams tersely put it, '[p]roperty must be secured, or
liberty cannot exist.'" Cedar Point Nursery v. Hassid, 594
U.S. __, 141 S. Ct. 2063, 2071 (2021) (quoting Discourses on
Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851)); see
also Wilkinson v. Leland, 27 U.S. 627, 657 (1829) (Story, J.)
("The fundamental maxims of a free government seem to require,
that the rights of personal liberty and private property should
be held sacred." (emphasis added)).
¶25 The majority's error stems in part from a fundamental
misunderstanding of basic property law principles. But often
motivating a court's decision to disregard the law as written is
a desire to improve the legislature's work, which the majority
in this case deems unreasonable. Once again dangerously
distorting a canon of statutory construction to achieve a result
the majority favors, the majority is oblivious to the damage it
inflicts on private property rights. I dissent.
4Article I, Section 13 of the Wisconsin Constitution
mirrors the language of the Fifth Amendment's Taking Clause:
"The property of no person shall be taken for public use without
just compensation therefor." Whether Wisconsin's constitutional
guarantee affords greater protection to property owners is
beyond the scope of this case.
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No. 2020AP307.rgb
I. A FINE FIT
¶26 The majority begins its analysis by noting, "[a]s a
practical matter, [Wis. Stat.] § 32.09(6g)'s before-and-after
methodology is a poor fit for TLEs."5 This emphasis on
"practical[ity]" and "fit" is antithetical to the job of the
judge, which is to apply the statute's meaning despite judicial
misgivings, not to second-guess the legislature's wisdom in
choosing to enact it. Although the majority purports to apply
the statute's plain meaning, it couches its explanation for
deciding TLEs are something other than easements in
consequentialist rather than textual terms, another "transparent
revelation of the results-oriented motivations underlying its
opinion." Container Life Cycle Mgmt. v. Dep't Nat. Res., 2022
WI 45, ¶78, __ Wis. 2d __, __ N.W.2d __ (Rebecca Grassl Bradley,
J., dissenting). The majority rejects the statutory text, which
applies——without limitation or qualification——to easements, in
favor of a construction the majority thinks will "produce
sensible, desirable results, since that is surely what the
legislature must have intended. But it is precisely because
people differ over what is sensible and what is desirable that
we elect those who will write our laws——and expect courts to
observe what has been written." Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 22
(2012).
¶27 For at least the third time this term, the majority
misappropriates the absurd or unreasonable results canon of
5 Majority op., ¶14.
4
No. 2020AP307.rgb
statutory construction as a cover for rewriting a statute it
deems deficient. "[E]rror-correction for absurdity can be a
slippery slope. It can lead to judicial revision of public and
private texts to make them (in the judges' view) more
reasonable." Id. at 237. "It is a misuse of the canon to
invoke it as a tool for discarding the plain meaning of an
unambiguous statute in favor of an interpretation" preferred by
the majority. Brown County v. Brown Cnty. Taxpayers Ass'n, 2022
WI 13, ¶84, 400 Wis. 2d 781, 971 N.W.2d 491 (Rebecca Grassl
Bradley, J., dissenting). "The oddity or anomaly of certain
consequences may be a perfectly valid reason for choosing one
textually permissible interpretation over another, but it is no
basis for disregarding or changing the text." See Scalia &
Garner, Reading Law, at 237.
¶28 "Although the absurd or unreasonable results canon
applies only rarely and in rather narrow circumstances, many
courts cannot resist the temptation to invoke it to justify a
preferred outcome." Container Life Cycle Mgmt., __ Wis. 2d __,
¶79. "The absurdity doctrine applies only to textual errors
that may be fixed 'by changing or supplying a particular word or
phrase whose inclusion or omission was obviously a technical or
ministerial error.'" Schwab v. Schwab, 2021 WI 67, ¶44 n.1, 397
Wis. 2d 820, 961 N.W.2d 56 (Rebecca Grassl Bradley, J.,
dissenting) (quoting Scalia & Garner, Reading Law, at 238); see
also State ex rel. Associated Indem. Corp. v. Mortensen, 224
Wis. 398, 402, 272 N.W. 457 (1937) (explaining the unreasonable
results canon does "not . . . justify a court in amending the
5
No. 2020AP307.rgb
statute or giving it a meaning to which its language is not
susceptible merely to avoid what the court believes are
inequitable or unwise results").
¶29 In this case, the majority changes the text to exempt
TLEs from a statute that facially and when read in context with
surrounding statutes unequivocally applies to any sort of
easement, whether temporary or permanent. See State v. Grunke,
2008 WI 82, ¶31, 311 Wis. 2d 439, 752 N.W.2d 769 (explaining the
unreasonable results canon applies only "when [a different]
interpretation would render the relevant statute contextually
inconsistent or would be contrary to the clearly stated purpose
of the statute"). Wisconsin Stat. § 32.09(6g) does not display
any obvious technical or ministerial errors, so the unreasonable
results canon cannot justify the majority's insertion of the
word "permanent" as a limitation on the types of easements to
which the statute applies. Nothing about the statutory language
makes it susceptible to such judicial amendment, particularly
because the majority's revision also violates the text of
§ 32.09(intro.) by creating just compensation cases to which the
statute does not apply despite an unequivocal command to apply
it to "all matters involving the determination of just
compensation in eminent domain proceedings[.]"
¶30 "[T]he ideal rule for the honest judge is, 'garbage
in/garbage out[.]'" Antonin Scalia, Q&A Justice Antonin Scalia,
C-SPAN (July 19, 2012), https://www.c-
span.org/video/transcript/?id=8335. "If you're dealing with an
inane statute you are duty bound to produce an inane result."
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Id. Properly interpreted, there is nothing inane about Wis.
Stat. § 32.09(6g) or its application to a TLE. The before-and-
after methodology actually "fit[s]" just fine, and the majority
is wrong to conclude otherwise; however, even if the majority's
concerns were valid, the unreasonable results canon would not
apply. The unreasonable results canon is not a license to
inject judicial policy preferences into the written law. "If
courts ignored the law every time they deem a result
unreasonable, the rule of law would be supplanted by the rule of
judges." Schwab, 397 Wis. 2d 820, ¶44 n.1. "Misapplication of
the canon disturbs the constitutional allocation of power among
the branches of government." Container Life Cycle Mgmt., __
Wis. 2d __, ¶79.
¶31 Wisconsin Stat. § 32.09(6g) instructs the evaluator to
assess the fair market value immediately before the property
became encumbered and its value immediately thereafter.
Effectively, for a TLE, the evaluator must capture the
"[d]iminution of the fair market value of the property during
the period of the taking." 9 Nichols on Eminent Domain
§ G.32.08[1][e] (2021). As this treatise acknowledges,
sometimes determining the diminution in fair market value caused
by the taking of a TLE is challenging; however, this court is
not at liberty to cast aside a statutory command merely because
its application may be difficult.
¶32 Consider if Backus were trying to sell his property on
the date of the taking, which is the statutory "date of
evaluation" for purposes of the fair market value calculations.
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118th St. Kenosha, LLC v. Wis. Dep't of Transp., 2014 WI 125,
¶37 n.13, 359 Wis. 2d 30, 856 N.W.2d 486 ("The 'date of
evaluation' generally is the date on which the easement is
acquired."). Before the taking, Backus' property was worth
$308,000, so he uses that as the list price. Prospective buyers
learn that Waukesha County has a TLE giving it:
[The] right to construct a highway project, including
the placement or removal of soil, grading of roadway
slopes, and the creation of fill or cut slopes in
the . . . area to match the new roadway grade, as well
as the right of ingress and engress as long as
required for the construction of the highway project,
including the right to preserve, protect, remove or
plant thereon any vegetation that the highway
authorities may deem necessary or desirable. . . .
The above temporary limited easement is to terminate
upon the completion of this project or on the day the
highway is open to the traveling public, whichever is
later.
The fair market value of Backus' property is adversely impacted
by the TLE; prospective buyers prefer to purchase unencumbered
property. The damage to fair market value in this case may be
amplified by the TLE's expansive and unlimited "rights" accorded
the government. The "right to construct a highway project"
clause is followed by "including," after which the TLE details a
non-exhaustive list of what the construction right encompasses.
A canon of construction presumes "include" and its derivatives
"introduce[] examples" and "not an exhaustive list." Scalia &
Garner, Reading Law, at 132. The TLE grants Waukesha County the
additional right to make permanent changes to the land (e.g.,
"remove or plant thereon any vegetation"). Although the
incursion may be temporary, in some situations the aftereffects
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are not. Backus alleges this is one of those cases, and in
denying Waukesha County's motion for summary judgment, the
circuit court properly recognized this disputed issue of fact
belongs to the jury to resolve.
¶33 The majority creates the illusion that this TLE was
set to terminate upon the completion of the construction
project, ignoring the actual terms of the TLE. The majority
truncates the TLE's termination language,6 which provides, "[t]he
above temporary limited easement is to terminate upon the
completion of this project or on the day the highway is open to
the traveling public, whichever is later." (Emphasis added.)
By the TLE's own terms, the public improvement could be complete
but the TLE would not expire if the highway were not "open to
the traveling public[.]" Contrary to the majority's assertion,
"all TLEs" do not "expire at the completion of the construction
project."7
¶34 The majority's "poor fit" rationale rests on its
erroneous belief that all TLEs terminate upon project
completion. They don't. As the majority notes, the after value
is calculated "assuming 'the completion of the public
improvement.'"8 Because the majority erroneously believes that
"all TLEs expire upon completion of the public improvement" it
erroneously concludes that "to assume completion of the public
6 Id., ¶3 n.3.
7Id., ¶11 (quoting Wisconsin DOT Real Estate Program Manual
2.4.6.4 (updated Mar. 2020)).
8 Id., ¶16 (quoting Wis. Stat. § 32.09(6g)).
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improvement is to also assume the termination of the TLE. In
other words, the 'before' value captures the value of the
property before the TLE exists and the 'after' value assumes the
TLE has ceased to exist. A before-and-after valuation therefore
never captures the actual value of the TLE while it exists."9
The majority misinterprets the statutory language.
¶35 Wisconsin Stat. § 32.09(6g)'s method of determining
damages does not calculate "after" damages based on the
expiration of the TLE; rather, "[t]he 'date of evaluation'
generally is the date on which the easement is acquired." 118th
St. Kenosha, LLC, 359 Wis. 2d 30, ¶37 n.13. Accordingly,
"compensation for an easement is calculated by considering the
fair market value of the whole property immediately before and
after the 'date of evaluation'" which is "the date on which the
easement is acquired." Id., ¶37. If the majority applied the
actual terms of the TLE instead of hypothetical facts
(apparently based on assertions in Wisconsin Department of
Transportation (DOT) guidance documents), the before-and-after
methodology (properly applied) could easily capture the impact
of the TLE on the fair market value of the property. Wisconsin
Stat. § 32.09(6g) may require the evaluator to assume completion
of the public improvement; however, it does not command the
evaluator assume the highway is open to the public.
¶36 What the majority characterizes as "the actual value
of the TLE while it exists"10 may be captured by language of the
9 Id.
10 Id.
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statute the majority does not address anywhere in its opinion11:
"In determining severance damages under this paragraph, the
condemnor may consider damages which may arise during
construction of the public improvement, including damages from
noise, dirt, temporary interference with vehicular or pedestrian
access to the property and limitations on use of the property."
Wis. Stat. § 32.09(6)(e). And if those damages do not
adequately capture the property owner's actual damages, the
statute does not preclude consideration or utilization of other
measures of damages because "the compensation to be paid by the
condemnor" is "without restriction because of enumeration" under
§ 32.09(6g).
II. A THREAT TO PRIVATE PROPERTY
¶37 The majority's "poor fit" rationale is not the
majority's only error. As explained in the prior section, the
majority misapplies legal terms of art in Wis. Stat.
§ 32.09(6g). Properly understood, those terms pose no barrier
to Backus' argument, as even Waukesha County concedes. More
fundamentally, the majority's misunderstanding of fundamental
property law principles endangers private property rights.
Taking the majority's reasoning to its logical conclusion, there
has not even been a taking in this case.
¶38 First, the majority states the word "remainder" ("as
contrasted with 'whole property'") means "[t]hat which remains
when a part has been taken away, used, or otherwise dealt with;
The majority relegates the language to a footnote and
11
never analyzes it. Id., ¶18 n.10.
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the rest," or "the remaining part or fragment of something."12
The majority then claims, "a TLE takes land only for temporary
use; all portions of the land remain under the property owner's
control upon the TLE's termination. . . . Without a continuing
division or severance of land, what 'remainder' is there to
value?"13 The majority seems to suggest Waukesha County did not
take any property at all, in which case, no compensation is due;
however, the majority acknowledges the taking of a TLE is
compensable. With such conflicting statements, the majority
only compounds the confusion spawned by its opinion. See
generally Zinn v. State, 112 Wis. 2d 417, 427–28, 334 N.W.2d 67(1983) ("[I]t would violate the constitutional mandate of the
just compensation clauses of the Wisconsin and United States
Constitutions to hold that a temporary taking is not
compensable.").
¶39 The majority's error in this regard stems from its
failure to consider the temporal component of property.
Although the TLE eventually expired, its expiration does not
restore the temporal interest taken. A taking occurs whenever
"government action directly interferes with or substantially
disturbs the owner's use and enjoyment of the property." Bros.
v. United States, 594 F.2d 740, 741–42 (9th Cir. 1979) (citation
omitted); see also Pumpelly v. Green Bay & Miss. Canal Co., 80
U.S. 166, 179 (1871) ("[T]here are [nu]merous authorities to
Id., ¶15 (quoting Remainder, Oxford English Dictionary
12
(edition and year not provided)).
13 Id.
12
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sustain the doctrine that a serious interruption to the common
and necessary use of property may be . . . equivalent to the
taking of it, and that under the constitutional provisions it is
not necessary that the land should be absolutely taken.").
Although the government's interference or disturbance of private
property may end at some point, it is nonetheless a compensable
taking.
¶40 "The right to exclude is 'one of the most treasured'
rights of property ownership." Cedar Point Nursery, 141 S. Ct.
at 2072 (quoting Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419, 435 (1982)). Even if the government's invasion of
Backus' land did not cause permanent or physical damage to his
property, the government's invasion is a taking for which Backus
must be compensated. "According to Blackstone, the very idea
of property entails 'that sole and despotic dominion which one
man claims and exercises over the external things of the world,
in total exclusion of the right of any other individual in the
universe.'" Id. at 2072 (quoting 2 William Blackstone,
Commentaries *2). "[T]he right to exclude is 'universally held
to be a fundamental element of the property right,' and is 'one
of the most essential sticks in the bundle of rights that are
commonly characterized as property.'" Id. (quoting Aetna v.
United States, 444 U.S. 164, 176, 179–80 (1979)).
¶41 Backus alleges more than an interference with his
right to exclude, however; he also claims the TLE adversely
affected the value of the remainder by creating a permanent
embankment——in the easement area——with damaged and dying trees
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on his property. Backus also alleges that trees and other
vegetation were removed and not replaced. Nevertheless, the
majority asks, "[w]ithout a continuing division or severance of
land, what 'remainder' is there to value?"14 The majority seems
to ignore Backus' complaint altogether.
¶42 The majority couples its faulty understanding of
"remainder" with its equally faulty conception of "severance
damages," a phrase appearing nowhere in Wis. Stat. § 32.09(6g).
It asserts "[t]he term 'remainder' . . . is particularly
informative as it denotes that the property has been divided or
severed in some way."15 The majority seems to think "severance"
means physical division or detachment. The majority is wrong.
¶43 Severance damages do not presuppose the government
permanently took a physical parcel of land. Severance damages
compensate a property owner whose interest in the land has been
taken——severed from the remaining interests in the land,
resulting in a loss to the remainder's fair market value. E.g.,
Narloch v. State Dep't of Transp., Div. of Highways, Div. II,
115 Wis. 2d 419, 422 n.2, 340 N.W.2d 542 (1983) ("Severance
damage means the diminution in value of the remaining property
resulting from the taking." (citation omitted)); Wis. JI——Civil
8102, at 1 (2008) ("Severance damages reduce the fair market
value of the remaining property because of the partial
taking."); see also United States v. Miller, 317 U.S. 369, 376
(1943) (explaining that "severance damages" is a "somewhat
14 Id.15 Id.14
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loosely" used phrase and defining it to "include any element of
value arising out of the relation of the part taken to the
entire tract" (emphasis added)); 26 Am. Jur. 2d Eminent Domain
§ 281 (updated May 2022) ("A landowner may recover as just
compensation not only the fair market value of land actually
taken but also damages for injuries to the owner's remaining
lands, frequently called 'severance damages.' An award may be
made for any diminution in the value of the remainder as long as
those damages are directly caused by the taking itself."). "In
the case of an easement," "[s]everance damages," are calculated
by "us[ing] the fair market value of the entire tract
immediately before and immediately after the taking." Ala.
Elec. Coop., Inc. v. Jones, 574 So. 2d 734, 735 (Ala. 1990)
(citation omitted).
¶44 The majority's misconception of severance damages
permeates its discussion of Wis. Stat. § 32.09(6). That
subsection contains an illustrative list of damages a property
owner may seek in addition to the diminution in fair market
value. The statute commands "giving effect" to "items of loss
or damages to the property" regardless of whether the statute
specifies them ("without restriction because of enumeration but
without duplication") provided the property owner proves them
("where shown to exist"). Despite this unambiguous language,
the majority treats the list as if it were exhaustive, and then
proclaims, "those items [in the list] contemplate permanent
losses or involve damages from 'actual severance of land,' and
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thus would compensate for only limited aspects of a TLE."16 The
majority quotes the "actual severance of land" language in the
first sentence of § 32.09(6)(e) but conveniently does not
address the very next sentence of the statute, which is not only
more expansive but expressly encompasses temporary invasions of
property: "In determining severance damages under this
paragraph, the condemner may consider damages which may arise
during construction of the public improvement, including damages
from noise, dirt, temporary interferences with vehicular or
pedestrian access to property and limitations on use of the
property." This statutory language defeats the majority's
hyper-literal construction of "actual severance of land." See
Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶13, 400
Wis. 2d 417, 970 N.W.2d 1 (rejecting a "hyper-literal
approach").
¶45 Contrary to the majority's atextual conclusion that
the statute is a "poor fit" for anything but permanent
easements, the statutory language expressly grants compensation
for "temporary interferences" with access to property, which is
precisely (at least in part) the taking for which Backus seeks
to be compensated. The majority's failure to address the second
sentence——containing the non-exhaustive list of possible
damages——shows the lengths to which the majority will go in
order to justify its results-oriented decision in this case.
Backus is statutorily entitled to present evidence of the
damages he sustained as a result of the TLE, and to recover them
16 Id., ¶18 (quoting Wis. Stat. § 32.09(6)(e)).
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if "shown to exist." Wis. Stat. § 32.09(6g). The majority
instead removes this statutory compensation for takings in the
form of TLEs.
¶46 If the majority were correct, its logic would seem to
foreclose Wis. Stat. § 32.09(6g)'s application not only to TLEs
but to many permanent easements as well. Few easements
literally "sever" land in a literal and physical sense;
nevertheless, the United States Constitution requires just
compensation. See, e.g., Cedar Point Nursery, 141 S. Ct. at
2074 (reasoning that "a physical appropriation is a taking
whether it is permanent or temporary. . . . [T]he duration of
an appropriation . . . bears only on the amount of
compensation. . . . [A]fter finding a taking by physical
invasion, [this court has] remanded the case to the lower court
to determine 'whether the easement taken was temporary or
permanent,' in order to fix the compensation due" (citations
omitted; quoted source omitted)). Section 32.09 was obviously
drafted to comply with the constitutional command to justly
compensate property owners whose interests in land are taken by
the government, however temporarily. See 260 N. 12th St., LLC
v. State of Wis. Dep't of Transp., 2011 WI 103, ¶44, 338
Wis. 2d 34, 808 N.W.2d 372 ("Wisconsin Stat. § 32.09 codifies
the constitutional requirement that a property owner receive
just compensation for the taking of his or her property.
Because § 32.09 is a statute intended to benefit an owner whose
property is taken against his or her will, we afford it liberal
construction." (citations omitted)). The statute, after all,
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applies "[i]n all matters involving the determination of just
compensation in eminent domain proceedings[.]" § 32.09(intro.).
The majority's engrafting of a permanence prerequisite does not
comport with the Takings Clause and creates a situation not
contemplated by the statute's introduction: a just compensation
case in which the statute's rules will not be applied.
¶47 Logically, if Wis. Stat. § 32.09(6g) does not apply to
TLEs, they cannot be easements within the meaning of the
statute. And if they are not easements under § 32.09(6g), then
§ 32.09(6) must govern compensation for their taking. Section
32.09(6) applies "[i]n the case of a partial taking of property
other than an easement" but the majority does not calculate
compensation under its terms, without explaining why. Of
course, the calculation in this case would be no different than
under § 32.09(6g), so the majority silently deactivates this
section of the statute too, ostensibly to avoid a "result" it
regards as "unreasonable."
II. CONCLUSION
¶48 The majority acknowledges, as it must, that
"[f]acially, [Wis. Stat.] § 32.09(6g) does not differentiate
between a TLE and a permanent easement, and thus both Backus and
the County maintain that the statute applies to all easements——
temporary and permanent alike."17 Its entire analysis should
have ended there. Instead, the majority adopts an
underdeveloped argument raised in an amicus brief submitted by
the self-interested DOT, which advocated for a statutory
17 Id., ¶13.
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construction benefitting the government at the expense of
property owners. The result is a bad precedent, to which I
dissent.
¶49 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join
this dissent.
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