32.09(7)
(7) In addition to the amount of compensation paid pursuant to
sub. (6), the owner shall be paid for the items provided for in
s. 32.19, if shown to exist, and in the manner described in
s. 32.20.
32.09(8)
(8) A commission in condemnation or a court may in their respective discretion require that both condemnor and owner submit to the commission or court at a specified time in advance of the commission hearing or court trial, a statement covering the respective contentions of the parties on the following points:
32.09(8)(c)
(c) Designation of claimed comparable lands, sale of which will be used in appraisal opinion evidence.
32.09(8)(f)
(f) Costs of reproduction less depreciation and rate of depreciation used.
32.09(8)(g)
(g) Statements of capitalization of income where used as a factor in valuation, with supporting data.
32.09(8)(h)
(h) Separate opinion as to fair market value, including before and after value where applicable by not to exceed 3 appraisers.
32.09(8)(i)
(i) A recitation of all damages claimed by owner.
32.09(8)(j)
(j) Qualifications and experience of witnesses offered as experts.
32.09(9)
(9) A condemnation commission or a court may make regulations for the exchange of the statements referred to in
sub. (8) by the parties, but only where both owner and condemnor furnish same, and for the holding of prehearing or pretrial conference between parties for the purpose of simplifying the issues at the commission hearing or court trial.
32.09 Annotation
In proceedings under s. 84.09 (3m), Stats. 1961, where a strip of land was taken and access to a loading dock restricted because the highway was depressed, plaintiff could recover damages for loss of access because the police power was not involved under s. 32.09 (4). Crown Zellerbach Corp. v. Milw. City Dev. Dept. 47 W (2d) 142, 177 NW (2d) 94.
32.09 Annotation
While the general rule is that evidence of net income is inadmissible to establish fair market value, that rule does not preclude admission of net income under certain circumstances for certain purposes, including impeachment, refreshing the recollection of a witness, or where proper objection is not timely made. Mancheski v. State, 49 W (2d) 46, 181 NW (2d) 420.
32.09 Annotation
The closing of an intersection under the police power does not require compensation so long as access to property is preserved, because there is no property right to the flow of traffic. Schneider v. State, 51 W (2d) 458, 187 NW (2d) 172.
32.09 Annotation
It is error to receive testimony of an appraiser who made his appraisal 10 months before the date of taking and acknowledged that the value had changed in the 10 months but could not update his appraisal. Schey Enterprises, Inc. v. State, 52 W (2d) 361, 190 NW (2d) 149.
32.09 Annotation
Where a partial taking eliminates a sewer connection, the condemnor must pay the owner's expense of connecting to another sewer, even though the taking was an exercise of the police power. Hanser v. Metropolitan Sewerage Dist. 52 W (2d) 429, 190 NW (2d) 161.
32.09 Annotation
Admissibility of opinion evidence as to probability of laying out a road, zoning changes and sanitary facilities discussed. Bembinster v. State, 57 W (2d) 277, 203 NW (2d) 897.
32.09 Annotation
Damages caused by a change of the grade of a street or highway where no land is taken constitutes an exercise of police power which is separate and distinct from the exercise of power of eminent domain under sub. (6) (f) and is only compensable under s. 32.18. Jantz v. State, 63 W (2d) 404, 217 NW (2d) 266.
32.09 Annotation
Inconvenience is a factor only when the landowner's property rights in the remaining portion are so impaired that the owner has, in effect, had that portion taken also. DeBruin v. Green County, 72 W (2d) 464, 241 NW (2d) 167.
32.09 Annotation
An owner's opinion as to the value of real estate can be accepted but in order to support a verdict some basis for the opinion must be shown. Genge v. Baraboo, 72 W (2d) 531, 241 NW (2d) 183.
32.09 Annotation
The requirement that property be valued as an integrated and comprehensive entity does not mean that the individual components of value may not be examined or considered in arriving at an overall fair market value. Milw. & Sub. Trans. v. Milw. County, 82 W (2d) 420, 263 NW (2d) 503.
32.09 Annotation
An existing right of access in s. 32.09 (6) (b) includes the right of abutting property owner to ingress and egress, and the right to be judged on criteria for granting permits for access points under s. 86.07 (2). Restriction of access was a compensable taking. Narloch v. Department of Transportation, 115 W (2d) 419, 340 NW (2d) 542 (1983).
32.09 Annotation
Guidelines adopted for considering "assemblage" in valuing condemned property. Clarmar v. Milwaukee Redevelopment, 129 W (2d) 81, 383 NW (2d) 890 (1986).
32.09 Annotation
There can be no compensation under sub. (6) (b) without the denial of substantially all beneficial use of property. Sippel v. City of St. Francis, 164 W (2d) 527, 476 NW (2d) 579 (Ct. App. 1991).
32.09 Annotation
A change in use is not a prerequisite to find a special benefit under sub. (3); the real issue is whether the property has gained a benefit not shared by any other parcel. Red Top Farms v. Dept. of Transportation, 177 W (2d) 822, 503 NW (2d) 354 (Ct. App. 1993).
32.09 Annotation
Owner of condemned property is not entitled to cost of developing functionally equivalent substitute facilities. United States v. 564.54 Acres of Land, 441 US 506 (1979).
32.10
32.10
Condemnation proceedings instituted by property owner. If any property has been occupied by a person possessing the power of condemnation and if the person has not exercised the power, the owner, to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced. The petition shall describe the land, state the person against which the condemnation proceedings are instituted and the use to which it has been put or is designed to have been put by the person against which the proceedings are instituted. A copy of the petition shall be served upon the person who has occupied petitioner's land, or interest in land. The petition shall be filed in the office of the clerk of the circuit court and thereupon the matter shall be deemed an action at law and at issue, with petitioner as plaintiff and the occupying person as defendant. The court shall make a finding of whether the defendant is occupying property of the plaintiff without having the right to do so. If the court determines that the defendant is occupying such property of the plaintiff without having the right to do so, it shall treat the matter in accordance with the provisions of this subchapter assuming the plaintiff has received from the defendant a jurisdictional offer and has failed to accept the same and assuming the plaintiff is not questioning the right of the defendant to condemn the property so occupied.
32.10 History
History: 1973 c. 170; Sup. Ct. Order, 67 W (2d) 575, 749 (1975);
1975 c. 218;
1977 c. 440;
1983 a. 236 s.
12.
32.10 Annotation
A cause of action under this section arises prior to the actual condemnation of the property by the highway commission if the complaint alleges facts which indicate the property owner has been deprived of all, or substantially all, of the beneficial use of his property. Howell Plaza, Inc. v. State Highway Comm. 66 W (2d) 720, 226 NW (2d) 185.
32.10 Annotation
A landowner's petition for inverse condemnation, like a municipality's petition for condemnation, is not subject to demurrer. Revival Center Tabernacle v. Milwaukee, 68 W (2d) 94, 227 NW (2d) 694.
32.10 Annotation
In order for the petitioner to succeed in the initial stages of the inverse condemnation proceeding, it must allege facts that, prima facie at least, show there has been either an occupation of its property, or a taking, which must be compensated under the terms of the Wisconsin Constitution. Howell Plaza, Inc. v. State Highway Comm. 66 W (2d) 720, 226 NW (2d) 185.
32.10 Annotation
Taking occurred when city refused to renew lessee's theater license, not when city made jurisdictional offer. Property is valued as of date of taking. Maxey v. Redevelopment Authority of Racine, 94 W (2d) 375, 288 NW (2d) 794 (1980).
32.10 Annotation
Doctrine of sovereign immunity cannot bar an action for just compensation based on the taking of private property for public use even though the legislature has failed to establish specific provisions for the recovery of just compensation. Zinn v. State, 112 W (2d) 417, 334 NW (2d) 67 (1983).
32.10 Annotation
A successful plaintiff in an inverse condemnation action was entitled to litigation expenses which included expenses related to a direct condemnation action. Expenses related to an allocation proceeding under s. 32.11 were not recoverable. Maxey v. Racine Redevelopment Authority, 120 W (2d) 13, 353 NW (2d) 812 (Ct. App. 1984).
32.10 Annotation
In the absence of physical occupancy or possession, property is "taken" for public use only by an action which imposes a legally enforceable restriction on use and deprives the owner of a significant portion of use. Reel Enterprises v. City of LaCrosse, 146 W (2d) 662, 431 NW (2d) 743 (Ct. App. 1988).
32.10 Annotation
The owner of property at the time of a taking is entitled to bring an action for inverse condemnation and need not own property at the time of the commencement of the action. Riley v. Town of Hamilton, 153 W (2d) 582, 451 NW (2d) 454 (Ct. App. 1989).
32.10 Annotation
A constructive taking occurs when government regulation renders a property useless for all practical purposes. Taking jurisprudence does not allow dividing the property into segments and determining whether rights in a particular segment have been abrogated. Zealy v. City of Waukesha, 201 W (2d) 365, 548 NW (2d) 528 (1996).
32.10 Annotation
This section does not govern inverse condemnation proceedings seeking just compensation for a temporary taking of land for public use. Such takings claims are based directly on Article I, section 13, of the constitution. Anderson v. Village of Little Chute, 201 W (2d) 467, 549 NW (2d) 561 (Ct. App. 1996).
32.11
32.11
Trial of title. If any defect of title to or encumbrance upon any parcel of land is suggested upon any appeal, or if any person petitions the court in which an appeal is pending setting up a claim adverse to the title set out in said petition to said premises and to the money or any part thereof to be paid as compensation for the property so taken, the court shall thereupon determine the question so presented. Judgment shall be entered on such determination, with costs to the prevailing party. An appeal from such judgment may be taken as from a judgment in an action.
32.11 Annotation
A successful plaintiff in an inverse condemnation action was entitled to litigation expenses which included expenses related to a direct condemnation action. Expenses related to an allocation proceeding under s. 32.11 were not recoverable. Maxey v. Racine Redevelopment Authority, 120 W (2d) 13, 353 NW (2d) 812 (Ct. App. 1984).
32.12
32.12
Proceedings to perfect title. 32.12(1)
(1) If any person having the power to acquire property by condemnation enters into the possession of any property and is using the property for a purpose for which condemnation proceedings might be instituted but has not acquired title to the property, or if the title is defective, or if not in possession, has petitioned the circuit court as provided by
s. 32.06 (7) and for an order as authorized under this section either at the time of filing the petition for condemnation or thereafter, and the necessity for taking has been determined as authorized by law, the person may proceed to acquire or perfect the title as provided in this subchapter or be authorized to enter into possession as provided in this section. At any stage of the proceedings the court in which they are pending may authorize the person, if in possession, to continue in possession, and if not in possession to take possession and have and use the lands during the pendency of the proceedings and may stay all actions or proceedings against the person on account thereof on the paying in court of a sufficient sum or the giving of such securities as the court may direct to pay the compensation therefor when finally ascertained. The "date of taking" in proceedings under this section is the date on which the security required by the order for such security is approved and evidence thereof is filed with the clerk of court. In every such case the party interested in the property may institute and conduct, at the expense of the person, the proceedings to a conclusion if the person delays or omits to prosecute the same.
32.12(2)
(2) No injunction to restrain the possession or use of lands subject to proceedings under
sub. (1) by the party interested in the property or the operation thereon of any plant, line, railroad or other structure, shall be granted until compensation therefor has been fixed and determined.
32.12(3)
(3) In case such person or the person through or under whom that person claims title has paid to the owner of such lands or to any former owner thereof, or to any other person having any valid mortgage or other lien thereon, or to any owner, lien holder, mortgagee or other person entitled to any award or part of any award in satisfaction of the whole or any part of such award to which such owner, lien holder, mortgagee or other person may become entitled upon completion of such condemnation proceedings in the manner authorized by this subchapter, such sum with interest thereon from the date of such payment at the rate of 5% per year shall be deducted from the award made by said commissioners to such owners or other person.
32.12(4)
(4) In case there is a dispute in relation to the payment of any sum as aforesaid or the amount or date of any payment that may have been made, the court or judge thereof shall at the request of any party, award an issue which shall be tried in the same manner as issues of fact in said court and an appeal from the judgment thereon may be taken in the same manner as from any judgment.
32.13
32.13
Proceedings when land mortgaged. Whenever any person has acquired title to any property for which it could institute condemnation proceedings and said property is subject to any mortgage or other lien and proceedings have been afterwards commenced by the holders of any such mortgage or lien to enforce the same, the court in which such proceedings are pending may on due notice appoint 3 commissioners from among the county commissioners created by
s. 32.08 to appraise and value said property in the manner prescribed in this subchapter as of the time when such person acquired title. Such appraisal shall be exclusive of the improvements made by that person or that person's predecessors. Said appraisal, with interest, when confirmed by said court shall stand as the maximum amount of the encumbrance chargeable to the property so taken and judgment shall be rendered according to equity for an amount not exceeding such appraisal, with interest, against such person and may be enforced as in other cases. On the payment of such amount such person shall hold said property free and discharged from said mortgage or lien. An appeal may be taken from the award of such commission by the plaintiff and tried and determined as an appeal from the county condemnation commissioners under this subchapter and the action to enforce such mortgage or lien shall in the meantime be stayed.
32.13 History
History: 1983 a. 236 s.
12;
1991 a. 316.
32.14
32.14
Amendments. The court or judge may at any time permit amendments to be made to a petition filed pursuant to
s. 32.06, amend any defect or informality in any of the proceedings authorized by this subchapter and may cause any parties to be added and direct such notice to be given to any party of interest as it deems proper.
32.14 History
History: 1983 a. 236 s.
12.
32.15
32.15
How title in trustee acquired. In case any title or interest in real estate lawfully required by any person having the power of condemnation is vested in any trustee not authorized to sell, release and convey the same or in any minor or person adjudged mentally incompetent, the circuit court may in a summary proceeding authorize and empower such trustee or the general guardian of such minor or person adjudged mentally incompetent to sell and convey the same for the purposes required on such terms as may be just. If such minor or person adjudged mentally incompetent has no general guardian, the court may appoint a special guardian for such sale, release or conveyance. The court may require from such trustee, or general or special guardian, such security as it deems proper before any conveyance or release authorized in this section is executed. The terms of the same shall be reported to the court on oath. If the court is satisfied that such terms are just to the party interested in such real estate, it shall confirm the report and direct the conveyance or release to be executed. Such conveyance or release shall have the same effect as if executed by one having legal power to sell and convey the land.
32.15 History
History: 1977 c. 83.
32.16
32.16
Abandonment of easements for public use. An easement for public use acquired by gift or purchase or by condemnation under this subchapter shall not be deemed abandoned on the grounds of nonuser thereof for any period less than that prescribed in the applicable statutes of limitations in
ch. 893. Nothing contained in this section shall be presumed to adversely affect any highway right possessed by the state or any county or municipality thereof.
32.16 History
History: 1983 a. 236 s.
12.
32.17
32.17
General provisions. 32.17(1)(1) Where power of condemnation is given to a state officer the title acquired shall be in the name of the state. Payments of the costs and expenses of such condemnation shall be paid from the appropriation covering the purposes for which the property is acquired.
32.17(2)
(2) Any condemnation proceedings authorized under any local or special law of this state, except those applicable to cities of the 1st class, shall be conducted under the procedure provided in this subchapter.
32.17(3)
(3) Where disbursements and costs, including expert witness fees and reasonable actual attorney fees in case of abandonment of proceedings by the condemnor are recoverable from a condemnor under this subchapter, they shall be recoverable from the state or any of its agencies when the state or such agency is the condemnor.
32.17 History
History: 1983 s. 236 s. 12;
1993 a. 490.
32.18
32.18
Damage caused by change of grade of street or highway where no land is taken; claim; right of action. Where a street or highway improvement project undertaken by the department of transportation, a county, city, town or village, causes a change of the grade of such street or highway in cases where such grade was not previously fixed by city, village or town ordinance, but does not require a taking of any abutting lands, the owner of such lands at the date of such change of grade may file with the department of transportation in the case of state trunk highways, a county in the case of county highways or the city, town or village, causing such change of grade to be effected, whichever has jurisdiction over the street or highway, a claim for any damages to said lands occasioned by such change of grade. Special benefits may be offset against any claims for damages under this section. Such claim shall be filed within 90 days following the completion of said project; if allowed, it shall be paid in the case of the department of transportation, out of the state highway funds, otherwise, out of the funds of the respective county, city, village or town against which the claim is made as the case may be. If it is not allowed within 90 days after such date of filing it shall be deemed denied. Thereupon such owner may within 90 days following such denial commence an action against the department of transportation, the city, county, village or town as the case may be, to recover any damages to the lands shown to have resulted from such change of grade. Any judgment recovered against the department of transportation shall be paid out of the state highway funds, otherwise out of the funds of city, county, village or town against which the judgment is recovered. Where a grade has been established by ordinance, the property owner's remedy shall be as provided by municipal law. This section shall in no way contravene, limit or restrict
s. 88.87.
32.18 Annotation
A municipality may not initiate the running of the second 90-day period by affirmatively denying a claim within the first 90-day period. A claimant has 180 days from the filing of the original claim to commence legal action. Johnson v. City of Onalaska, 153 W (2d) 611, 451 NW (2d) 466 (Ct. App. 1989).
32.185
32.185
Condemnor. "Condemnor", for the purposes of
ss. 32.19 to
32.27, means any municipality, board, commission, public officer or corporation vested with the power of eminent domain which acquires property for public purposes either by negotiated purchase when authorized by statute to employ its powers of eminent domain or by the power of eminent domain. "Condemnor" also means a displacing agency. In this section, "displacing agency" means any state agency, political subdivision of the state or person carrying out a program or project with public financial assistance that causes a person to be a displaced person, as defined in
s. 32.19 (2) (e).
32.185 History
History: 1975 c. 224;
1987 a. 399.
32.19
32.19
Additional items payable. 32.19(1)
(1)
Declaration of purpose. The legislature declares that it is in the public interest that persons displaced by any public project be fairly compensated by payment for the property acquired and other losses hereinafter described and suffered as the result of programs designed for the benefit of the public as a whole; and the legislature further finds and declares that, notwithstanding
subch. II, or any other provision of law, payment of such relocation assistance and assistance in the acquisition of replacement housing are proper costs of the construction of public improvements. If the public improvement is funded in whole or in part by a nonlapsible trust, the relocation payments and assistance constitute a purpose for which the fund of the trust is accountable.
32.19(2)(a)
(a) "Business" means any lawful activity, excepting a farm operation, conducted primarily:
32.19(2)(a)1.
1. For the purchase, sale, lease or rental of personal and real property, and for the manufacture, processing, or marketing of products, commodities, or any other personal property;
32.19(2)(a)4.
4. Solely for the purpose of
sub. (3) for assisting in the purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays, whether or not such display or displays are located on the premises on which any of the above activities are conducted.
32.19(2)(b)
(b) "Comparable dwelling" means one which, when compared with the dwelling being taken, is substantially equal concerning all major characteristics and functionally equivalent with respect to: the number and size of rooms and closets, area of living space, type of construction, age, state of repair, size and utility of any garage or other outbuilding, type of neighborhood and accessibility to public services and places of employment. "Comparable dwelling" shall meet all of the standard building requirements and other code requirements of the local governmental body and shall also be decent, safe and sanitary and within the financial means of the displaced person, as defined by the department of commerce.
32.19(2)(c)
(c) "Comparable replacement business" means a replacement business which, when compared with the business premises being acquired by the condemnor, is adequate for the needs of the business, is reasonably similar in all major characteristics, is functionally equivalent with respect to condition, state of repair, land area, building square footage required, access to transportation, utilities and public service, is available on the market, meets all applicable federal, state or local codes required of the particular business being conducted, is within reasonable proximity of the business acquired and is suited for the same type of business conducted by the acquired business at the time of acquisition.
32.19(2)(d)
(d) "Comparable replacement farm operation" means a replacement farm operation which, when compared with the farm operation being acquired by the condemnor, is adequate for the needs of the farmer, is reasonably similar in all major characteristics, is functionally equivalent with respect to type of farm operation, condition and state of repair of farm buildings, soil quality, yield per acre, land area, access to transportation, utilities and public services, is within reasonable proximity of the acquired farm operation, is available on the market, meets all applicable federal, state or local codes required of the particular farm operation acquired and is suited for the same type of farming operation conducted by the displaced person at the time of acquisition.
32.19(2)(e)1.1. "Displaced person" means, except as provided under
subd. 2., any person who moves from real property or who moves his or her personal property from real property:
32.19(2)(e)1.a.
a. As a direct result of a written notice of intent to acquire or the acquisition of the real property, in whole or in part or subsequent to the issuance of a jurisdictional offer under this subchapter, for public purposes; or
32.19(2)(e)1.b.
b. As a result of rehabilitation, demolition or other displacing activity, as determined by the department of commerce, if the person is a tenant-occupant of a dwelling, business or farm operation and the displacement is permanent.
32.19(2)(e)2.a.
a. Any person determined to be unlawfully occupying the property or to have occupied the property solely for the purpose of obtaining assistance under
ss. 32.19 to
32.27; or
32.19(2)(e)2.b.
b. Any person, other than a person who is an occupant of the property at the time it is acquired, who occupies the property on a rental basis for a short term or a period subject to termination when the property is needed for the program or project for which it is being acquired.
32.19(2)(f)
(f) "Farm operation" means any activity conducted solely or primarily for the production of one or more agricultural products or commodities for sale and home use, and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.
32.19(2)(g)
(g) "Owner displaced person" means a displaced person who owned the real property being acquired and also owned the business or farm operation conducted on the real property being acquired.
32.19(2)(h)1.
1. Any individual, partnership, limited liability company, corporation or association which owns a business concern; or
