DSG Evergreen Family Limited Partnership v. Town of Perry ( 2020 )


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  •                                                             
    2020 WI 23
    SUPREME COURT            OF   WISCONSIN
    CASE NO.:              2017AP2352
    COMPLETE TITLE:        DSG Evergreen Family Limited Partnership,
    Plaintiff-Appellant-Petitioner,
    v.
    Town of Perry,
    Defendant-Respondent.
    REVIEW OF DECISION OF THE COURT OF APPEALS
    Reported at 385 Wis. 2d 514,925 N.W.2d 782
    (2019 – unpublished)
    OPINION FILED:         February 27, 2020
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:         November 4, 2019
    SOURCE OF APPEAL:
    COURT:              Circuit Court
    COUNTY:             Dane
    JUDGE:              Richard G. Niess
    JUSTICES:
    KELLY, J., delivered the majority opinion for a unanimous Court.
    NOT PARTICIPATING:
    ATTORNEYS:
    For the plaintiff-appellant-petitioner, there were briefs
    filed by Matthew J. Fleming and Murphy Desmond S.C., Madison. There
    was an oral argument by Matthew J. Fleming.
    For the defendant-respondent, there were briefs filed by Mark
    J. Steichen and Boardman & Clark LLP, Madison. There was an oral
    argument by Mark J. Steichen.
    
    2020 WI 23
    NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.   2017AP2352
    (L.C. No.      2015CV65)
    STATE OF WISCONSIN                                :              IN SUPREME COURT
    DSG Evergreen Family Limited Partnership,
    Plaintiff-Appellant-Petitioner,
    FILED
    v.                                                         FEB 27, 2020
    Town of Perry,                                                           Sheila T. Reiff
    Clerk of Supreme Court
    Defendant-Respondent.
    DANIEL KELLY, J. delivered the majority opinion for a unanimous
    Court.
    REVIEW of a decision of the Court of Appeals.                      Reversed and
    remanded for further proceedings consistent with this opinion.
    ¶1       DANIEL      KELLY,   J.   The   Town     of   Perry     (the     "Town")
    acquired a portion of property belonging to DSG Evergreen Family
    Limited Partnership ("DSG") through its power of eminent domain.
    In exercising that power, the Town committed itself to building a
    replacement road over part of the acquired property.                     DSG says the
    Town failed to build the road to the standards required by either
    the condemnation petition or Wis. Stat. § 82.50(1) (2017-18),1
    1All subsequent references to the Wisconsin Statutes are to
    the 2017-18 version unless otherwise indicated.
    No.   2017AP2352
    which applies to the construction of town roads.         It seeks a
    declaratory   judgment   establishing   the   Town's   road-building
    obligations or, in the alternative, damages sufficient to allow it
    to build the promised road.     The Town says the claim preclusion
    doctrine bars DSG from raising its claims in this case.       It also
    says that, in any event, DSG lacks a cognizable claim because the
    statutes on which it relies do not create a private cause of
    action.
    ¶2   We conclude that claim preclusion does not bar DSG's
    claim that the Town did not build the replacement road to the
    standards required by the condemnation petition.   However, we also
    conclude that Wis. Stat. § 82.50(1) does not impose obligations on
    the Town that are susceptible to a declaration of rights, nor does
    it create a private cause of action by which DSG can recover
    damages for the alleged failure to construct a proper road.
    Therefore, we reverse the decision of the court of appeals and
    remand to the circuit court for further proceedings on this claim.2
    II.   BACKGROUND
    ¶3   DSG used to own approximately 92 acres of land in the
    Town of Perry.   Now it owns just over 80 acres because the Town
    used its condemnation power to take the difference (12.13 acres)
    to create what came to be known as the Hauge Log Church Historic
    District Park (the "Park").     Prior to the condemnation, County
    2 This is a review of an unpublished decision of the court of
    appeals, DSG Evergreen Family Ltd. P'Ship v. Town of Perry, No.
    2017AP2352, unpublished slip op. (Wis. Ct. App. Dec. 20, 2018),
    which affirmed the judgment of the Dane County Circuit Court, the
    Honorable Richard G. Niess presided.
    2
    No.   2017AP2352
    Highway Z ran along the eastern edge of DSG's property.                DSG had
    built a field road off of Highway Z to access its land for
    agricultural purposes and, eventually, to reach a residence and
    farm building it anticipated building.3           This was the only means
    of accessing the property.       Now, after the condemnation, the Park
    runs along the eastern edge of DSG's property instead of County
    Highway Z.    To prevent DSG's property from being landlocked, the
    Town's condemnation petition promised to grant DSG a permanent
    access easement over a new field road it committed itself to
    building over the northern-most part of the Park.             Specifically,
    the condemnation petition said:
    The Town will replace the existing field road on the
    12.13 acre parcel to be acquired with a new field road
    from [the county highway] along the northern boundary of
    the Hauge Church Park boundary to the western boundary
    of the proposed Park in order to provide access to the
    Owner's other lands in the Town of Perry and for park-
    related purposes subject to the Hauge Church Park
    Regulations. This field road will be built to the same
    construction standards as the existing field road.
    (Emphasis added.)
    ¶4     The Town's efforts to obtain DSG's property spawned a
    significant amount of litigation.           To identify the issues already
    litigated    and——by   process    of       elimination——the   issues     still
    potentially subject to litigation, we must survey each of the cases
    3 Several years before the present proceedings, DSG obtained
    an "Agricultural Non-Controlled Access" permit which allowed it to
    access the parcel for agricultural purposes. Shortly afterwards
    it applied for and obtained a "Residential (single-family) Non-
    controlled Access" permit, allowing DSG to access the parcel from
    the county highway for residential purposes. At the time of the
    condemnation, DSG used the road only for agricultural purposes.
    3
    No.    2017AP2352
    between the Town and DSG related to the acquisition of this
    property.
    A.     The Right-to-Take Case
    ¶5        The Town attempted to negotiate a voluntary sale of DSG's
    property, as required by statute, but was unsuccessful.              See Wis.
    Stat. § 32.06(2a).       So the Town took the next step in the exercise
    of its eminent domain power——it served on DSG a "jurisdictional
    offer."     § 32.06(3).        A jurisdictional offer describes, amongst
    other subjects, the property the authority intends to acquire, the
    amount    of     compensation     the   authority    is   offering   for   the
    acquisition, and the owner's right to challenge both the exercise
    of eminent domain and the amount of compensation.             See Wis. Stat.
    §§ 32.06(3) and 32.05(3).
    ¶6        After receiving a jurisdictional offer, the owner may
    bring suit in circuit court challenging the condemnor's right to
    acquire his property.          Wis. Stat. § 32.06(5).     DSG exercised this
    right, claiming a discrepancy between the legal description in the
    jurisdictional offer and the statutorily-required appraisal upon
    which    the    offer   must    be   based   (the   "Right-to-Take   Case").4
    § 32.06(2)(b).       The circuit court dismissed DSG's claim, and the
    court of appeals affirmed.           See Town of Perry v. DSG Evergreen
    Family Ltd. P'Ship, No. 2008AP163, unpublished slip op. (Wis. Ct.
    App. Apr. 23, 2008).
    4 The jurisdictional offer DSG challenged was actually the
    "Fourth Amended Jurisdictional Offer," but because the prior
    offers are immaterial to this case, we will make no distinction
    between them.
    4
    No.   2017AP2352
    ¶7     The    Town   and   DSG   were   still   at   loggerheads   after
    resolution of the Right-to-Take Case with respect to the amount to
    be paid for the property.       Because DSG would not accept the amount
    indicated in the jurisdictional offer, the Town commenced suit to
    authoritatively establish the amount due to DSG for acquisition of
    the property, an amount known as "just compensation" (the "Just
    Compensation Case").       Wis. Const. art. I, § 13 ("The property of
    no person shall be taken for public use without just compensation
    therefor.").      The matter proceeded to a jury trial.       In the present
    case, the parties stipulated that the only issue presented to the
    jury in the Just Compensation Case was the amount owed to DSG for
    the property rights the Town was acquiring:
    The essential issue tried in the just compensation
    trial was the determination of the fair market value of
    the entirety of DSG's property before the Taking and the
    fair market value of DSG's property after the Taking
    assuming completion of the project for which the Taking
    occurred, including the construction of the new field
    road under the terms of the Petition.[5]
    ¶8     In establishing the just compensation due to DSG, the
    jury had to assume, as a practical matter, that the Town would
    5   This is the calculation prescribed by Wis. Stat. § 32.09(6):
    In the case of a partial taking of property other than
    an easement, the compensation to be paid by the condemnor
    shall be the greater of either the fair market value of
    the property taken as of the date of evaluation or the
    sum determined by deducting from the fair market value
    of the whole property immediately before the date of
    evaluation, the fair market value of the remainder
    immediately after the date of evaluation, assuming the
    completion of the public improvement[.]
    5
    No.   2017AP2352
    complete the new field road as described in the condemnation
    petition because the Town could not start its construction until
    after the trial was over and the required compensation paid.6
    Nevertheless, DSG expressed doubt about the Town's ability to build
    the new field road as indicated in the condemnation petition.             It
    introduced an engineering report to that effect, which said:
    Neither a public road nor a private driveway meeting all
    applicable Town, County, State and Federal requirements
    can be constructed entirely within the easement.      In
    addition, a private driveway constructed within the
    easement is not equivalent to the existing farm road
    because of inferior intersection sight distance and
    maximum slope characteristics.
    DSG did not, however, offer any testimony with respect to the
    report's contents, nor did the report go to the jury.
    ¶9    The jury returned a verdict favorable to DSG, awarding
    it compensation greater than the Town's jurisdictional offer.7 The
    Town then obtained title to the property by paying DSG the required
    amount and recording the award with the register of deeds.
    C.   The Present Case
    ¶10   The   Town   started   work    on   the   promised   road   after
    obtaining title to the property.         Almost immediately after it was
    6 Wisconsin Stat. § 32.06(9)(b) (The condemnor "shall within
    70 days after the date of filing of the commission's award, pay
    the amount of the award . . . to the owner and take and file the
    owner's receipt therefor with the clerk of the circuit
    court . . . .   Title to the property taken shall vest in the
    condemnor upon the filing of such receipt or the making of such
    payment.").
    7 The court of appeals affirmed the jury's verdict. See DSG
    Evergreen Family Ltd. P'Ship v. Town of Perry, No. 2011AP492,
    unpublished slip op. (Wis. Ct. App. Dec. 6, 2012).
    6
    No.   2017AP2352
    done, DSG notified the Town that it was not suitable for heavy
    farm machinery.   So the Town performed some remedial work on the
    road and brought it into compliance with the standards described
    in the Town's Driveway Ordinance.    See Perry, Wisconsin, Driveway
    Ordinance (2000).    The Town subsequently adopted a resolution
    establishing the road as the Hauge Parkway (the "Parkway") and
    declaring the road open for the "the benefit of the public,
    adjacent property owners and for park related purposes" (the
    "Resolution").
    ¶11   But DSG claims the road still does not meet the standards
    to which the Town committed itself.      The condemnation petition
    says the new field road would be "built to the same construction
    standards as the existing field road."   DSG says it built its field
    road to meet town road standards (as described in Wis. Stat.
    § 82.50), standards it says the new road doesn't meet because it
    is too narrow, too steeply sloped, lacks an emergency turn-out,
    lacks a storm-water retention pond, and lacks a place to turn
    around.
    ¶12 Because of the road's perceived inadequacies, DSG took
    the Town back to the circuit court.        Its complaint sought a
    judgment declaring that the Town "is obligated to improve and
    maintain [the new field road] to County and Town standards for a
    Town road."   Alternatively, it requested over $288,000 so that it
    could improve the new field road to the standards it claims the
    Town promised to satisfy.
    ¶13   DSG asked for summary judgment, arguing (in part) that
    by adopting the Resolution, the Town became subject to Wis. Stat.
    7
    No.   2017AP2352
    § 82.03,8 thereby imposing on it an obligation to improve the
    Parkway to the town road standards described by Wis. Stat. § 82.50.
    The Town responded with a summary judgment motion of its own in
    which it sought a ruling that, regardless of what §§ 82.03 or 82.50
    might require, they do not create a private cause of action
    enforceable by DSG.    The circuit court agreed with the Town, and
    so granted judgment against DSG on that issue.
    ¶14   The case continued with respect to the scope of the
    Town's road-building obligations imposed by the jurisdictional
    offer.     It ended when the circuit court concluded that claim
    preclusion barred DSG's claim.     It said "the before-and-after just
    compensation analysis necessarily placed the issue of construction
    standards for the new field road front and center in the prior
    action."   Therefore, it concluded that "DSG could have vigorously
    contested the replacement road promised by the Town" in the Just
    Compensation Case, but didn't.     The court of appeals affirmed.       It
    reasoned that "DSG knew before and at the time of the condemnation
    trial that the Town could not comply with the interpretation of
    the condemnation petition that DSG advocates in this lawsuit."
    DSG Evergreen Family Ltd. P'Ship v. Town of Perry, No. 2017AP2352,
    unpublished   slip   op.,   ¶42   (Wis.   Ct.   App.   Dec.   20,   2018).
    Therefore, the court of appeals concluded that "[u]nder claim
    preclusion principles, DSG cannot now request relief that the Town
    is not complying with the condemnation petition when DSG failed to
    8 Wisconsin Stat. § 82.03(1)(a) provides, in relevant part,
    that: "[t]he town board shall have the care and supervision of
    all highways under the town's jurisdiction[.]"
    8
    No.   2017AP2352
    raise that issue in the previous lawsuit."            
    Id. We granted
    DSG's
    petition for review.
    II.    STANDARD OF REVIEW
    ¶15   We review the circuit court's grant of partial summary
    judgment de novo.     Leicht Transfer & Storage Co. v. Pallet Cent.
    Enterprises, Inc., 
    2019 WI 61
    , ¶8, 
    387 Wis. 2d 95
    , 
    928 N.W.2d 534
    ("We review the disposition of a motion for summary judgment de
    novo, applying the same methodology the circuit courts apply."
    (cited source omitted)).       While our review is independent from the
    circuit court and court of appeals, we benefit from their analyses.
    See   Preisler   v.   Gen.    Cas.    Ins.   Co.,   
    2014 WI 135
    ,   ¶16,   
    360 Wis. 2d 129
    , 
    857 N.W.2d 136
    .         Summary judgment is appropriate only
    "if the pleadings, depositions, answers to interrogatories, and
    admissions on file, together with the affidavits, if any, show
    that there is no genuine issue as to any material fact and that
    the moving party is entitled to judgment as a matter of law."                Wis.
    Stat. § 802.08(2); see also Columbia Propane, L.P. v. Wis. Gas
    Co., 
    2003 WI 38
    , ¶11, 
    261 Wis. 2d 70
    , 
    661 N.W.2d 776
    (quoting and
    applying Wis. Stat. § 802.08(2) (2001-02)).
    ¶16   We also review the circuit court's decision with respect
    to claim preclusion de novo.           "Whether claim preclusion applies
    under a given factual scenario is a question of law we review
    independently of the determinations rendered by the circuit court
    and court of appeals."       Teske v. Wilson Mut. Ins. Co., 
    2019 WI 62
    ,
    ¶20, 
    387 Wis. 2d 213
    , 
    928 N.W.2d 555
    (cited source omitted).
    III.    ANALYSIS
    9
    No.    2017AP2352
    ¶17        DSG asks us to send this case back to the circuit court
    so that it may continue litigating the three claims described in
    its Complaint.            The claims include two requests for a declaration
    of rights and one alternative claim for damages.                       The first
    declaration DSG seeks is that the condemnation petition requires
    the Town to upgrade the Parkway to meet the standards to which DSG
    had built its original field road (the "Petition Standard Claim").
    DSG also requests a declaration that Wis. Stat. § 82.50 requires
    the Town of Perry to upgrade the Parkway to the standards of a
    town       road    (the    "Town   Road   Claim").   As   an   alternative     to
    declaratory relief, DSG asks for damages sufficient to allow it to
    satisfy the Town's obligation to improve the Parkway (the "Damages
    Claim").          The Town says the doctrine of claim preclusion bars us
    from entertaining DSG's case at all.9            It also denies that § 82.50
    creates a private cause of action enforceable against the Town.
    We conclude that claim preclusion does not bar any of DSG's claims.
    However, we also hold that DSG is not entitled to declaratory
    relief with respect to the Town Road Claim, and that § 82.50 does
    not create a private cause of action capable of supporting the
    Damages Claim.         Therefore, we reverse the decision of the court of
    appeals and remand the matter to the circuit court for further
    proceedings on DSG's Petition Standards Claim.                 We will address
    Some of our older decisions refer to the doctrine of claim
    9
    preclusion as res judicata. The concepts are the same, but "[t]he
    term claim preclusion replaces res judicata" in our more recent
    decisions. N. States Power Co. v. Bugher, 
    189 Wis. 2d 541
    , 550,
    
    525 N.W.2d 723
    (1995).
    10
    No.    2017AP2352
    claim preclusion first, and then the Town's argument that § 82.50
    cannot support DSG's Town Road Claim or its Damages Claim.
    A.   Claim Preclusion
    ¶18   The claim preclusion doctrine ensures that parties do
    not   continue    litigating       claims   that   a    court    has    already
    authoritatively resolved.      Kruckenberg v. Harvey, 
    2005 WI 43
    , ¶19,
    
    279 Wis. 2d 520
    , 
    694 N.W.2d 879
    ("The doctrine of claim preclusion
    provides that a final judgment on the merits in one action bars
    parties from relitigating any claim that arises out of the same
    relevant facts, transactions, or occurrences." (cited sources
    omitted)).       This   doctrine    applies   upon     satisfaction     of   the
    following elements:
    (1) identity between the parties or their privies in the
    prior   and   present  suits;   (2)   prior   litigation
    result[ing] in a final judgment on the merits by a court
    with jurisdiction; and (3) identity of the causes of
    action in the two suits.
    
    Id., ¶21 (quoted
    source omitted).           The rule applies even if the
    claim was not actually litigated, so long as the party could have
    raised it.    Teske, 
    387 Wis. 2d 213
    , ¶43 (The preclusive effect
    applies to matters "which might have been litigated in the former
    proceedings." (quoted source omitted)).              The doctrine developed
    because we recognize that "endless litigation leads to chaos; that
    certainty in legal relations must be maintained; that after a party
    has had his day in court, justice, expediency, and the preservation
    of the public tranquility requires that the matter be at an end."
    Kruckenberg, 
    279 Wis. 2d 520
    , ¶20 (quoted source omitted).
    11
    No.   2017AP2352
    ¶19    DSG agrees that its circumstances satisfy the first two
    elements of the claim preclusion test,10 so the only issue here is
    whether    the   third   element     of   the     claim    preclusion     test   is
    satisfied——to wit, whether there is an "identity of the causes of
    action" between this case and a prior case.                See Kruckenberg, 
    279 Wis. 2d 520
    , ¶24. Therefore, our analysis must compare DSG's road-
    related claims in this case against those it either actually
    litigated, or could have litigated, during the Right-to-Take Case
    or the Just Compensation Case.               We conclude that there is no
    "identity of the causes of action" between the claims in this case
    and those that were, or could have been, litigated in either of
    the prior cases.
    ¶20    We    analyze      claim      preclusion       issues     using      the
    transactional     approach,     which     "reflects       the   expectation    that
    parties    who   are   given   the     capacity    to     present   their   entire
    controversies shall in fact do so."             Teske, 
    387 Wis. 2d 213
    , ¶31.
    This requires that "all claims arising out of one transaction or
    factual situation are treated as being part of a single cause of
    action and they are required to be litigated together."                          
    Id. (quoting A.B.C.G.
    Enters., Inc. v. First Bank Se., N.A., 
    184 Wis. 2d 465
    , 480-81, 
    515 N.W.2d 904
    (1994)); see also N. States
    Power Co. v. Bugher, 
    189 Wis. 2d 541
    , 555, 
    525 N.W.2d 723
    (1995)
    (The "number of substantive theories that may be available to the
    10That is, DSG agrees there is an identity of parties between
    this case and both the Right-To-Take Case and the Just Compensation
    Case, and it agrees the two prior cases concluded with judgments
    on the merits.
    12
    No.    2017AP2352
    plaintiff is immaterial——if they all arise from the same factual
    underpinnings they must all be brought in the same action or be
    barred from future consideration.").                The operative question,
    therefore, is whether the Town's compliance with the road-building
    obligations imposed by the condemnation petition or state statutes
    was part of the same "transaction or factual situation" presented
    in the Just Compensation Trial.
    ¶21    Because   we   look    at       the   "transaction     or    factual
    situation" of the prior cases, our analysis is necessarily context
    specific.    When the allegedly claim-precluding case was part of a
    municipality's   acquisition      of    property     through     its    power   of
    eminent domain, context becomes especially important.                  Typically,
    we expect parties to raise all claims arising out of the same
    "transaction or factual situation" in the same lawsuit because
    they are masters of their own pleadings and are free to draft an
    all-encompassing      pleading.         But       parties   to     condemnation
    proceedings do not have the same degree of freedom, and that
    affects the types of claims a condemnation case may subsequently
    preclude.   So we must examine the types of issues a property owner
    may raise in eminent domain-related litigation.                  Discerning the
    scope of those issues will inform our analysis of the preclusive
    effect of the Right-to-Take Case and the Just Compensation Case.
    We will address each case in turn.
    1.   The Right-to-Take Case
    ¶22    A right-to-take case is a limited purpose action.                   As
    its name implies, such a case addresses issues related to the
    condemnor's right to acquire the property:
    13
    No.   2017AP2352
    When an owner desires to contest the right of the
    condemnor to condemn the property described in the
    jurisdictional offer for any reason other than that the
    amount of compensation offered is inadequate, such owner
    may . . . commence an action in the circuit court of the
    county wherein the property is located, naming the
    condemnor as defendant.
    Wis. Stat. § 32.06(5).       This type of action does not reach the
    amount of compensation owed to the property owner if the condemning
    authority is successful.      But it is the only opportunity to raise
    an objection to the authority's right to acquire the property.
    
    Id. ("Such action
    shall be the only manner in which any issue other
    than the amount of just compensation or other than proceedings to
    perfect title under ss. 32.11 and 32.12 may be raised pertaining
    to the condemnation of the property described in the jurisdictional
    offer.").
    ¶23   The Town argues that DSG could have asserted its claim
    regarding the sufficiency of the new field road in the Right-to-
    Take case.    Specifically, it says:
    If at the time of the condemnation proceedings DSG had
    truly believed the promise [to build the new field road
    to the standards of the old field road] to be the vague,
    nebulous formulation . . . that DSG now contends, then
    DSG could have sought to have the Fourth Amended
    Jurisdictional Offer on which the petition is based
    declared void in part or in whole.
    But DSG does not claim the Town's road-building obligation is vague
    or   nebulous.    To   the   contrary,   it   says   the   obligation   "is
    unambiguous in that the 'standard' by which the new field road was
    to be measured is expressly identified as being the 'existing field
    road.'"      Even if the Town had correctly characterized DSG's
    argument, it has provided no argument and cited no authority to
    14
    No.    2017AP2352
    suggest that this is the type of issue a property owner must raise
    in a right-to-take case.             And as the party advancing the claim
    preclusion    argument,    it     is      the   Town's   burden    to    prove   its
    applicability.         State    ex     rel.     Barksdale   v.    Litscher,      
    2004 WI App 130
    , ¶13, 
    275 Wis. 2d 493
    , 
    685 N.W.2d 801
    ("The burden of
    proving    claim   preclusion        is    upon    the    party   asserting      its
    applicability." (citing Alexopoulos v. Dakouras, 
    48 Wis. 2d 32
    ,
    37, 
    179 N.W.2d 836
    (1970))).
    ¶24    The court of appeals' opinion provides no guidance on
    this question either.          In fact, it did not substantively analyze
    the question at all because, it says, it accepted the Town's
    argument that DSG had conceded that it should have litigated the
    Town's road-building obligations in the Right-to-Take Case.                      But
    that is not actually what the Town argued, either in the court of
    appeals or here.       The Town's argument is that DSG conceded that
    "if it was going to challenge the validity of the promise, a right-
    to-take    challenge    would    have      been   the    proper   remedy."       The
    statement of law lying at the heart of this alleged concession may
    or may not be correct, but it has nothing to do with this case.
    DSG is not challenging the validity of the Town's promise as
    contained in the jurisdictional offer.                   To the contrary, DSG
    affirmatively asserts its validity.                Indeed, the whole point of
    this case is to compel the Town to make good on what DSG says is
    a valid and unambiguous promise——the construction of a replacement
    road in accordance with the standards identified in the petition
    (or, alternatively, to pay for the privilege of not doing so).
    15
    No.        2017AP2352
    ¶25    So the court of appeals' conclusion that DSG conceded it
    could have litigated its current issues in the Right-To-Take Case
    is   incorrect.           DSG    conceded    only      that,    if    it    were       to    have
    challenged the validity of the promise, it could have done so in
    the Right-To-Take case——an issue not raised in this case.                                     And
    neither      the   Town     nor    the    court   of    appeals       has   provided         any
    authority or reasoning to suggest DSG could have litigated its
    current issues in the Right-to-Take Case (a necessary potentiality
    if the litigation is to have claim-preclusive effects).                                 We will
    not develop the argument on the Town's behalf.                       State ex rel. Flynn
    v. Kemper Ctr., Inc., 
    2019 WI App 6
    ¶30 n.12, 
    385 Wis. 2d 811
    , 
    924 N.W.2d 218
         ("We    will    not    abandon      our     neutrality         to    develop
    arguments for a party.").                Consequently, the Town has failed to
    establish that the Right-to-Take Case bars DSG's current claim
    that the Town has not honored its road-building obligations.
    2.     The Just Compensation Case
    ¶26    The Town offers the Just Compensation Case as the second
    candidate for a bar against DSG's current claims.                            The issues a
    party may present in this type of case are even more constricted
    than that available in a right-to-take case.                      Consequently, so is
    its potential preclusive power.               The condemnor pursues such a case
    when   the    owner       does    not    accept   the    amount       specified         in   the
    jurisdictional offer.              It commences when the condemnor files a
    verified condemnation petition in the circuit court.                              Wis. Stat.
    § 32.06(7).         The circuit court then assigns the matter to the
    chairperson        of     the     county    condemnation          commissioners              (the
    "Chairperson").           
    Id. The Chairperson
    selects three commissioners
    16
    No.    2017AP2352
    whose task it is to "serve as a commission to ascertain the
    compensation to be made for the taking of the property or rights
    in property sought to be condemned . . . ." Wis. Stat. § 32.08(5).
    The statutes do not confer on the Commission authority to address
    any issue other than compensation.                 Upon the conclusion of its
    proceedings, the Commission "file[s] its award with the clerk of
    the circuit court, specifying therein the property or interests
    therein taken and the compensation allowed the owner . . . ."
    § 32.06(8).        If either party is dissatisfied with the award, it
    may   appeal       the    Commission's      decision    to    the   circuit      court.
    § 32.06(10).
    ¶27      As with a right-to-take case (described above), the
    scope      of   this     litigation    is   limited    by     statute.         The    case
    "proceed[s]        as    an   action   in   said   court      subject     to    all    the
    provisions of law relating to actions brought therein, but the
    only issues to be tried shall be questions of title, if any, as
    provided by ss. 32.11 and 32.12 and the amount of just compensation
    to    be    paid    by    condemnor . . . ."           Wis.    Stat.     § 32.06(10).
    According to the statutes, therefore, the only issues the parties
    may litigate in a just compensation case are matters of title and
    the amount of money to be paid to the property owner.
    ¶28      But within that already narrow litigative universe, the
    statutes narrow the available issues even further by defining how
    the court (and the Commission) calculates the compensation due to
    the owner when, as here, there is a partial taking of property:
    In the case of a partial taking of property other
    than an easement, the compensation to be paid by the
    17
    No.     2017AP2352
    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 . . . .
    Wis. Stat. § 32.09(6) (emphasis added).                So not only must the
    circuit      court   follow   a    statutorily-prescribed             method    of
    calculating just compensation, it must also assume the completion
    of the public improvement when doing so.
    ¶29    Here, part of the public improvement was a new field
    road built to the same construction standards as the old field
    road.      The condemnation petition says:
    The Town will replace the existing field road on the
    12.13 acre parcel to be acquired with a new field road
    from Highway Z along the northern boundary of the Hauge
    Church Park boundary to the western boundary of the
    proposed Park in order to provide access to the Owner's
    other lands in the Town of Perry and for park-related
    purposes subject to the Hauge Church Park Regulations.
    This field road will be built to the same construction
    standards as the existing field road.[11]
    The purpose of the road was not just to provide DSG access to its
    remaining land.      It was also to serve the Park, as provided by the
    Hauge Church Park Regulations.           This had been the plan from the
    beginning of the project, as the Town made clear when it adopted
    the   Resolution     dedicating   the    new   field    road   as     the   "Hauge
    Parkway."     The Resolution recites that "the Town has acquired real
    estate necessary for the Park, and the Plan provides for the
    establishment of a Town Park Road . . . ."             It goes on to say that
    11This language is identical to the jurisdictional offer the
    Town presented to DSG before commencing the Just Compensation Case.
    18
    No.     2017AP2352
    it constructed the Parkway "to provide access to the Park from
    County Highway Z for the benefit of the public, adjacent property
    owners    and    for    park    related     purposes . . . ."           The     recitals
    conclude with the observation that "the final task is to formally
    dedicate the Parkway to establish a permanent right of way as
    contemplated by the Plan . . . ."                    The operative part of the
    Resolution said "Hauge Parkway shall hereby be dedicated to the
    public as a public Parkway and Town Park Road, with all rights of
    use to the public and the owners of the real estate contiguous to
    the Park, subject to the Town's regulation of establishment of
    driveways."
    ¶30   Based      on    this   record,      there   can     be   no     doubt    that
    construction of the new field road——now known as the Hauge Parkway—
    —was     part    of     the    public      improvements         anticipated      by     the
    condemnation       petition.         The    parties'      stipulation       also      bears
    witness to this conclusion.                They agreed that "[t]he essential
    issue    tried     in    the     just      compensation     trial . . . assum[ed]
    completion of the project for which the Taking occurred, including
    the construction of the new field road under the terms of the
    Petition."       (Emphasis added.)              Therefore, Wis. Stat. § 32.09(6)
    required     the   circuit      court      to    assume   the    new   road     would   be
    constructed as provided by the condemnation petition.                         That is to
    say, even if DSG were convinced the Town would renege on its road-
    building obligation, or perform it inadequately or short of the
    required standards, it could not have litigated that issue in the
    Just Compensation Case, even had it so desired.                        As a matter of
    law, the court must assume that after completion of the public
    19
    No.     2017AP2352
    improvements, DSG would have access to its property over a field
    road "built to the same construction standards as the existing
    field road."
    ¶31     That    statutorily     required      assumption   draws    a   sharp
    divide between claims DSG could and could not present in the Just
    Compensation Case.          If DSG were to claim that the new field road—
    —constructed to the same standards as the old field road——would
    diminish the value of its remaining property, it would have to
    pursue that claim in the Just Compensation Case.                   Calculating
    compensation for the diminished value of the owner's remaining
    property is the core purpose of such cases.              The Just Compensation
    Case, therefore, would bar a claim based on the diminished value
    of the remaining property here.
    ¶32     But that is not DSG's claim.           In this case, DSG does not
    claim     that   a   road    built   to   the     standards   required    by   the
    condemnation petition would diminish the value of its remaining
    property.    Instead, it assumes the Just Compensation Case properly
    calculated the value of the property rights it lost——assuming the
    Town builds the required road.12               Its claim here is that the Town
    12In the Just Compensation Case, the Town argued on appeal
    that DSG's claim for increased compensation "was premised on its
    loss of reasonable access from County Highway Z to its remaining
    property after the partial taking . . . ." DSG Evergreen Family
    Ltd. P'ship, No. 2011AP492, unpublished slip op., ¶9. The court
    of appeals, however, said the Town "does not have a meritorious
    argument to present." 
    Id., ¶14. The
    court of appeals recognized
    that DSG's actual argument was that its loss of frontage on a town
    road eliminated its ability to develop residential lots on the
    remainder of its property.    Specifically, the court of appeals
    said:
    20
    No.   2017AP2352
    failed to build the required road.       The purpose of this case is to
    compel the Town to fulfill the obligations that the circuit court,
    as a matter of law, had to assume the Town would honor when it
    calculated its award of just compensation.
    ¶33    With that understanding, the Town's argument that DSG
    already litigated the Town's faithfulness to its road-building
    obligation,    or   at   least   attempted   to   do   so,   in    the   Just
    Compensation Case does not follow either as a matter of logic or
    of law.     The Town's argument in this regard depends on the
    significance of the engineering report DSG introduced in the Just
    Compensation Case.       The Town paid particular attention to the
    report's introduction, which describes the scope of the ensuing
    analysis.     In relevant part it says:
    DSG responds on this issue that at trial it was
    DSG's theory, which DSG asserts appears to have been
    accepted by the jury, that through the partial taking
    the Town took title to all of DSG's frontage property
    along public roads, thereby depriving DSG of the
    valuable opportunity to create up to six residential
    lots on its property, due to Dane County zoning
    requirements for public road frontage to support
    residential lots.    DSG points to testimony from its
    engineer "that a town road meeting the required [county
    zoning] standards would not fit within the footprint
    of the easement given by the Petition."       Thus, DSG
    argues, authority cited by the Town regarding the
    quality and nature of changed access in eminent domain
    cases is irrelevant to this case, because DSG rested its
    claim on its alleged loss of the ability to use the
    remainder parcel for residential, as opposed to
    agricultural, purposes due to the alleged loss of road
    frontage as a result of the partial taking.
    
    Id., ¶15. 21
                                                                  No.    2017AP2352
    The Town of Perry has proposed that the existing
    farm road be abandoned and a new access be constructed
    within the limits of a proposed 66' wide easement as
    located by the Town of Perry. Per the Town, the new
    access could consist of either a public road or a private
    driveway.
    A public road was preliminarily designed to meet
    the applicable minimum standards. A private driveway was
    also   preliminarily   designed   to   meet   applicable
    standards. The public road and private driveway designs
    were compared to the applicable Town, County, State and
    Federal standards. The private driveway was also
    compared to the existing farm road to see if it would
    provide an equivalent access.
    The intent of this report is to provide details of
    the analyses performed and to show how the designs either
    met or failed to meet the required standards.
    The report concludes that:
    Neither a public road nor a private driveway
    meeting all applicable Town, County, State and Federal
    requirements can be constructed entirely within the
    easement. In addition, a private driveway constructed
    within the easement is not equivalent to the existing
    farm road because of inferior intersection sight
    distance and maximum slope characteristics.
    The Town concludes that, because the report took issue with the
    Town's ability to build the road described in the condemnation
    petition,   DSG    actually   litigated,   or    at   least   attempted     to
    litigate, that issue.
    ¶34    What the engineering report actually did was opine on an
    issue the circuit court could not entertain.            The report called
    into question whether the Town could build either a public road or
    a private driveway on the easement described in the condemnation
    petition    that   would   conform    to   all    applicable        rules   and
    22
    No.     2017AP2352
    regulations.13    But that question, as a matter of law, was beyond
    the circuit court's authority to hear.             Wisconsin Stat. § 32.09(6)
    says the circuit court had to assume, contrary to the report's
    conclusion, that the Town could and would provide the road as
    described.       That   is   to   say,     § 32.09(6)    precluded      DSG    from
    litigating the question raised by the engineering report in the
    Just    Compensation    Case.14     Even      if   submission   of     the   report
    represents an attempt to do so, the claim preclusion doctrine does
    not recognize attempts at litigation.                 Instead, it asks only
    whether the final judgment in the Just Compensation Case actually
    adjudicated the claim, or could have adjudicated it had it been
    raised.     See Teske, 
    387 Wis. 2d 213
    , ¶23.          The Town does not argue
    the former, and the circuit court could not have done the latter
    without going beyond the boundaries set by § 32.09(6).                 Therefore,
    DSG's attempt to litigate an issue the circuit court was forbidden
    from entertaining (if that is what submission of the engineering
    report represents) cannot engage the claim preclusion doctrine.
    The report said the required road could not meet all of the
    13
    applicable public road standards without "impacting area outside
    of the easement."    That was problematic, the report reasoned,
    because "the area outside of the easement is not within the control
    of [DSG] and [DSG] does not have permission to use lands beyond
    the easement."    The report concluded that building a private
    driveway was problematic for the same reasons.
    This is not to say
    14                         that the circuit court could not have
    considered the engineering        report as part of the Just Compensation
    Case.   The report could          have provided, for example, evidence
    bearing on the decreased          value of DSG's remaining property——a
    proper consideration for a        just compensation trial.
    23
    No.   2017AP2352
    ¶35   We conclude that neither the Right-to-Take Case nor the
    Just Compensation Case bars DSG's Petition Standards Claim, its
    Town Road Claim, or its Damages Claim.15         But that is all we decide
    in this portion of our opinion.         We note that the Town dedicated
    a significant amount of its brief to the construction standards
    required by the condemnation petition and how the new field road
    satisfies them.     But that was the subject of the litigation the
    circuit    court   prematurely   ended    with     its   ruling   on   claim
    preclusion.   Therefore, we express no opinion on the construction
    standards required by the condemnation petition, nor the current
    field road's compliance with them.        We are simply concluding that
    claim preclusion does not serve as a bar to DSG's complaint.16
    B.   Declaration/Private Cause of Action
    ¶36   As an alternative to its claim that the Town failed to
    construct the new field road to the standards required by the
    condemnation petition (the Petition Standards Claim), DSG says the
    Town took on a statutorily-imposed obligation to improve the field
    road to town road standards when it dedicated it as the "Hauge
    Parkway" (the Town Road Claim).            Specifically, it says this
    15Because we hold that claim preclusion does not apply here,
    we need not reach DSG's alternative argument that we should create
    an exception to the claim preclusion doctrine for use in eminent
    domain cases.
    16The Town says we can affirm the decision of the court of
    appeals on the basis that it satisfied its obligation to construct
    the new field road, arguing that this leaves nothing further to
    litigate. We disagree. To be sure, the Town did build a new field
    road, but whether that road satisfies the standards required by
    the condemnation petition is another question entirely.
    24
    No.     2017AP2352
    obligation arises when a town "formally declares that a town road
    exists     and     improves     that     road,     opening     it     for     public
    travel . . . ."      So it asked for a declaration that the Town must
    comply with its statutory obligation or, in the alternative, an
    award    of    damages      sufficient   to      allow   DSG   to    perform      the
    construction the Town has refused to do.                  The Town says DSG is
    entitled to neither form of relief because it dedicated the Hauge
    Parkway as a "town parkway," not a "town road," so the standards
    applicable to town roads have no applicability.                 In any event, it
    says, the statute on which DSG relies creates no private cause of
    action against the Town.
    ¶37      As a preliminary matter, we must address some lack of
    precision in the way the parties have addressed this issue.                       The
    parties both bundled together DSG's alternative claims for relief
    and analyzed the resulting package according to a single rubric.
    They each used a different rubric, but neither of them accounted
    for the essential differences between the two types of claims.
    DSG, for example, says it may pursue declaratory judgment as well
    as its alternative demand for damages pursuant to the long-
    recognized right to compel a municipal entity or officer to perform
    its mandatory duties.         Typically, such relief is available through
    a writ of mandamus.           See Voces De La Frontera, Inc. v. Clarke,
    
    2017 WI 16
    , ¶11, 
    373 Wis. 2d 348
    , 
    891 N.W.2d 803
    ("Mandamus is a
    remedy that can be used 'to compel a public officer to perform a
    duty of his office presently due to be performed.'" State ex rel.
    Marberry      v.   Macht,     
    2003 WI 79
    ,      ¶27,    
    262 Wis. 2d 720
    ,       
    665 N.W.2d 155
    ."); Beres v. City of New Berlin, 
    34 Wis. 2d 229
    , 232,
    25
    No.    2017AP2352
    
    148 N.W.2d 653
    (1967) ("However, this court has taken the position
    that a writ of mandamus will issue to enforce the performance of
    plain imperative duties of a ministerial character imposed on a
    public body such as a city council."); State v. City of Madison,
    
    170 Wis. 133
    , 136, 
    174 N.W. 471
    (1919) ("Where there is a plain
    duty,   as    here     involved,     it   is     a    well-recognized               and   long-
    established doctrine that compliance therewith may be enforced by
    mandamus.").     The Town on the other hand, says DSG is not entitled
    to either a declaration of rights or damages because the statutes
    on which it relies do not create a private cause of action. Neither
    of these analytical rubrics is capable of properly addressing both
    of DSG's claims.
    ¶38    So we must analyze DSG's declaratory judgment claim
    separately from its claim for damages.                       After identifying the
    claimed     deficiencies    in     the    new    field       road,       DSG's      complaint
    "demands judgment against the [Town] declaring that the [Town] is
    obligated to improve and maintain all portions of the park road
    declared to exist by the Town of Perry Resolution, dated October
    17, 2011, to County and Town standards for a Town road."                                  DSG's
    request for damages, on the other hand, has nothing to do with
    declaring     rights,     but    concentrates          entirely          on    whether      the
    municipality's       failure    to   comply      with    a    statutory             obligation
    imposes civil liability in favor of a specific party.                               Therefore,
    we   will    address    DSG's    Town     Road       Claim    as     a    request         for   a
    declaration of rights, and the alternative demand for damages as
    an assertion of a "private cause of action" against the Town.
    1.     Declaratory Judgment
    26
    No.     2017AP2352
    ¶39    A plaintiff may demand a declaration of rights pursuant
    to Wis. Stat. § 806.04(2), which says:
    Any person . .    . whose rights, status or other legal
    relations are     affected by a statute . . . may have
    determined any     question of construction or validity
    arising under      the . . . statute . . . and obtain a
    declaration of    rights, status or other legal relations
    thereunder.
    We said in Tooley v. O'Connell that a declaration of rights is
    available only if the plaintiff satisfies the following four
    conditions:
    (1) There must exist a justiciable controversy that is
    to say, a controversy in which a claim of right is
    asserted against one who has an interest in contesting
    it.
    (2) The controversy must           be    between   persons    whose
    interests are adverse.
    (3) The party seeking declaratory relief must have a
    legal interest in the controversy that is to say, a
    legally protectible interest.
    (4) The issue involved in the controversy must be ripe
    for judicial determination . . . .
    
    77 Wis. 2d 422
    , 433-34, 
    253 N.W.2d 335
    (quoted source omitted;
    ellipses in original).
    ¶40    DSG says we must declare that the Town has a duty to
    improve   the   Parkway   to   town   road   standards    because    of   the
    provisions of Wis. Stat. § 82.50(1).           This statutory subsection
    says that "[t]he following minimum geometric design standards are
    established for improvements on town roads . . . ."              The balance
    of the subsection describes the design standards applicable to
    27
    No.    2017AP2352
    roads of varying traffic loads.           Id.17    DSG argues that this must
    assuredly impose on the Town an affirmative obligation with respect
    to the Parkway because the identified standards are "minimums."
    If   the    road   falls   below   this    standard,    DSG   says,   it   must
    necessarily violate the statute.           And if there is no affirmative
    obligation to comply with the statute, DSG concludes, there would
    have been no point in enacting it in the first place.
    ¶41    We conclude that DSG's Town Road Claim does not satisfy
    Tooley's first or fourth requirements.             That is, DSG does not have
    a "claim of right" in how the Town chooses to exercise its
    discretion under the terms of Wis. Stat. § 82.50.               And although
    the Town's exercise of discretion may eventually resolve to a
    particular course of action, that undecided course of action cannot
    be ripe for adjudication at this time.
    ¶42    The same statute establishing the minimum standards for
    town roads vests in the Town a certain degree of discretion with
    respect to complying with them.            Specifically, it provides that
    "[t]he department [of transportation] may approve deviations from
    the minimum standards in special cases where the strict application
    of the standards is impractical and where such deviation is not
    contrary to the public interest and safety and the intent of this
    section."      Wis. Stat. § 82.50(2).             Before the department can
    17The statute provides different standards for local service
    roads, roads with intermittent traffic, roads with less than 100
    daily cars, roads with 100-250 daily cars, roads with 251-400 daily
    cars, roads with 401-1000 daily cars, roads with 1001-2400 daily
    cars, and roads with over 2400 daily cars.         See Wis. Stat.
    § 82.50(1).
    28
    No.     2017AP2352
    approve a deviation, of course, there must be a request to deviate.
    Nothing in the statutes controls the circumstances in which the
    Town    may   apply     for    such      a    deviation,         which   indicates      the
    application is left to its discretion.                     This is consistent with
    the broader statutory framework relating to town roads, in which
    the legislature has decreed that "[t]he town board shall have the
    care    and     supervision         of       all   highways       under     the       town's
    jurisdiction . . . ."               Wis.       Stat.    § 82.03(1)(a);          see     also
    § 82.03(4) ("The town board shall direct when and where all highway
    funds shall be expended.").                   So if the Town can apply to the
    department of administration for relief from the standards imposed
    by § 82.50, then compliance with those standards is subject to at
    least some cognizable amount of discretion.                       And in the presence
    of such discretion, declaratory relief is inappropriate because
    the rights are not yet fixed:                  "Courts will not declare rights
    until    they    have    become       fixed        under    an    existing      state    of
    facts . . . ." Voight v. Walters, 
    262 Wis. 356
    , 359, 
    55 N.W.2d 399
    (1952); see also Olson v. Town of Cottage Grove, 
    2008 WI 51
    , ¶43,
    
    309 Wis. 2d 365
    , 
    749 N.W.2d 211
    ("The facts on which the court is
    asked    to     make    a     judgment         should      not     be    contingent      or
    uncertain . . . ."); Wis. Stat. § 806.04(6) ("The court may refuse
    to render or enter a declaratory judgment or decree where such
    judgment or decree, if rendered or entered, would not terminate
    the uncertainty or controversy giving rise to the proceeding.").
    ¶43    Notwithstanding these principles, DSG says, we have
    previously       enforced       a        town's        road-related        obligations.
    Specifically, it refers us to State ex rel. Cabott, Inc. v. Wojcik,
    29
    No.     2017AP2352
    
    47 Wis. 2d 759
    , 
    177 N.W.2d 828
    (1970), and State ex rel. Wollner
    v. Schloemer, 
    200 Wis. 350
    , 
    228 N.W. 487
    (1930).              It says this
    brace of cases establishes that "Wisconsin law has long recognized
    that a private cause of action for mandamus may be stated when a
    town violates clear duties imposed upon it by law with regard to
    highways and other plain statutory duties."
    ¶44   But neither Cabott nor Wollner suggests there is a
    cognizable claim in the way a town exercises its discretionary
    road-related responsibilities.         In Cabott, we addressed a statute
    that required towns to "keep [highways] passable at all times,"
    and further required that "[w]hen any highway under [the town's]
    charge becomes impassable [it] shall put the same in passable
    condition as soon as practicable."          Wis. Stat. § 81.03 (1969-70).
    We said the statutory command to keep the highways passable was
    "mandatory and unequivocal," even if the manner of making it
    passable   was    subject   to   the   town's   discretion.         
    Cabott, 47 Wis. 2d at 768
    .      There is no comparable duty under Wis. Stat.
    § 82.50.   The Town's ability to apply for a deviation from the
    standards contained in that statute mean we cannot consider them
    "mandatory and unequivocal."       Similarly, in Wollner we considered
    a statute that said "no town board shall discontinue . . . any
    highway when such discontinuance would deprive the owner of lands
    of access therefrom to the public 
    highway." 200 Wis. at 352
    (quoting   Wis.    Stat.    § 80.02    (1929-30)).     The    duty     not    to
    discontinue in such circumstances was mandatory and unequivocal.
    The ensuing writ of mandamus commanded the town to reopen the
    30
    No.   2017AP2352
    highway, but did not specify the manner of doing so inasmuch as
    that was left to the town's discretion.        
    Wollner, 200 Wis. at 352
    .
    ¶45   Our opinion in State ex rel. Wisniewski v. Rossier, 
    205 Wis. 634
    , 
    238 N.W. 825
    (1931), reinforces the lesson that we lack
    the authority to direct the Town's exercise of its discretionary
    authority.      There,   we   said   the   "crucial   question . . . [was]
    whether a town, or its officers, may be compelled by mandamus to
    repair and maintain a highway in a safe condition."           
    Id. at 635.
    Referring to our decision in Wollner, we said we "never intended
    to hold that mandamus may be invoked in this state to compel a
    town board to repair or to maintain a highway."          
    Id. at 637.
    ¶46   Although Wisniewski, Cabott, and Wollner addressed the
    significance of a town's discretion in the context of a writ of
    mandamus,18 we think the lesson is no less important in determining
    whether a person has a "claim of right" in how a town exercises
    its discretion (the first Tooley prerequisite to a declaration of
    rights).     Although we may review a town's exercise of discretion
    to ensure it stays within proper parameters, it is not for the
    judiciary to tell the town how to exercise its discretion in the
    18State ex rel. Althouse v. City of Madison, 
    79 Wis. 2d 97
    ,
    106, 
    255 N.W.2d 449
    (1977) ("[W]hen the action sought to be
    compelled is discretionary, mandamus will not lie."); State ex
    rel. Thomas v. State, 
    55 Wis. 2d 343
    , 349, 
    198 N.W.2d 675
    (1972)
    ("[M]andamus will not lie to control the manner in which a
    governmental body or officer exercises his statutorily-conferred
    discretion.").
    31
    No.   2017AP2352
    first instance.19        Because Wis. Stat. § 82.50 does not impose on
    the Town a mandatory and non-discretionary obligation to improve
    the Parkway to town road standards, DSG can have no cognizable
    claim of right until, at the earliest, the town's discretionary
    authority resolves to a particular course of action.               And because
    that has not yet occurred, DSG's Town Road Claim is also not ripe
    for review.
    2.    Damages
    ¶47        There are instances in which private parties may sue
    public officers for damages based on their failure to comply with
    statutory obligations.          But as the Town observes, "a private right
    of action is created only when (1) the language or the form of the
    statute evinces the legislature's intent to create a private right
    of action, and (2) the statute establishes private civil liability
    rather than merely providing for protection of the public."                Grube
    v. Daun, 
    210 Wis. 2d 681
    , 689, 
    563 N.W.2d 523
    (1997).                  The first
    element of the analysis focuses on the legislature's intent, which
    we find in the statute's language.            State ex rel. Kalal v. Circuit
    Court     for    Dane   Cty.,   
    2004 WI 58
    ,   ¶44,   
    271 Wis. 2d 633
    ,   
    681 N.W.2d 110
    ("We assume that the legislature's intent is expressed
    in the statutory language.").             The second element reflects the
    19See, e.g., Nowell v. City of Wausau, 
    2013 WI 88
    , ¶24, 
    351 Wis. 2d 1
    , 
    838 N.W.2d 852
    ("Thus, the scope of certiorari review
    is limited to:   (1) whether the [municipality] kept within its
    jurisdiction; (2) whether it acted according to law; (3) whether
    its action was arbitrary, oppressive or unreasonable and
    represented its will and not its judgment; and (4) whether the
    evidence was such that it might reasonably make the order or
    determination in question." (alteration in original)).
    32
    No.    2017AP2352
    general rule "'that a statute which does not purport to establish
    a civil liability, but merely makes provision to secure the safety
    or welfare of the public as an entity, is not subject to a
    construction    establishing   a    civil   liability.'"     McNeill     v.
    Jacobson, 
    55 Wis. 2d 254
    , 259, 
    198 N.W.2d 611
    (1972).            Nor will a
    cause of action "be implied to protect an interest other than the
    one specifically protected by the statute."        
    Id. ¶48 DSG
    says "Wisconsin law, has long recognized that a
    private cause of action . . . may be stated when a town violates
    clear duties imposed upon it by law with regard to highways[.]"
    But the balance of its argument makes it clear that it was
    addressing not a right to seek damages, but its ability to seek
    relief in the form of a declaration of rights or writ of mandamus
    (which we addressed above).        Nothing in its briefs describes how
    we could understand Wis. Stat. §§ 82.03 or 82.50 as making the
    Town answerable to DSG in damages for failure to improve the
    Parkway to town road standards.
    ¶49   Our review of these statutes confirms that it contains
    no language evidencing a "clear expression of intent to create a
    private right of action" for a town's failure to comply with its
    standards. Kranzush v. Badger State Mut. Cas. Co., 
    103 Wis. 2d 56
    ,
    81, 
    307 N.W.2d 256
    (1981).     Nor does any provision in the statutes
    suggest its terms exist to protect a private interest rather than
    "providing for protection of the public."        
    Grube, 210 Wis. 2d at 689
    .    We conclude that Wis. Stat. § 82.50(1) does not create a
    private cause of action.
    33
    No.    2017AP2352
    IV.   CONCLUSION
    ¶50   We hold that neither the Right-to-Take Case nor the Just
    Compensation Case bars DSG's claims in this case.                   However, we
    also hold that Wis. Stat. § 82.50(1) does not impose road-building
    obligations on the Town that are susceptible to a declaration of
    rights, nor does it create a private cause of action by which DSG
    can recover damages for the failure to improve the Parkway to town
    road standards.      Therefore, we reverse the decision of the court
    of appeals and remand to the circuit court for further proceedings
    on the Petition Standards Claim.
    By the Court.—The decision of the court of appeals is reversed
    and   the   cause   is   remanded   to    the   circuit   court    for    further
    proceedings consistent with this opinion.
    34
    No.   2017AP2352
    1