32.09(1m)
(1m) As a basis for determining value, a commission in condemnation or a court may consider the price and other terms and circumstances of any good faith sale or contract to sell and purchase comparable property. A sale or contract is comparable within the meaning of this subsection if it was made within a reasonable time before or after the date of evaluation and the property is sufficiently similar in the relevant market, with respect to situation, usability, improvements and other characteristics, to warrant a reasonable belief that it is comparable to the property being valued.
32.09(2)
(2) In determining just compensation the property sought to be condemned shall be considered on the basis of its most advantageous use but only such use as actually affects the present market value.
32.09(2m)
(2m) In determining just compensation for property sought to be condemned in connection with the construction of facilities, as defined under
s. 196.491 (1) (e), any increase in the market value of such property occurring after the date of evaluation but before the date upon which the lis pendens is filed under
s. 32.06 (7) shall be considered and allowed to the extent it is caused by factors other than the planned facility.
32.09(3)
(3) Special benefits accruing to the property and affecting its market value because of the planned public improvement shall be considered and used to offset the value of property taken or damages under
sub. (6), but in no event shall such benefits be allowed in excess of damages described under
sub. (6).
32.09(4)
(4) If a depreciation in value of property results from an exercise of the police power, even though in conjunction with the taking by eminent domain, no compensation may be paid for such depreciation except as expressly allowed in
subs. (5) (b) and
(6) and
s. 32.19.
32.09(5)(a)(a) In the case of a total taking the condemnor shall pay the fair market value of the property taken and shall be liable for the items in
s. 32.19 if shown to exist.
32.09(5)(b)
(b) Any increase or decrease in the fair market value of real property prior to the date of evaluation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, may not be taken into account in determining the just compensation for the property.
32.09(6)
(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 and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the following items of loss or damage to the property where shown to exist:
32.09(6)(a)
(a) Loss of land including improvements and fixtures actually taken.
32.09(6)(b)
(b) Deprivation or restriction of existing right of access to highway from abutting land, provided that nothing herein shall operate to restrict the power of the state or any of its subdivisions or any municipality to deprive or restrict such access without compensation under any duly authorized exercise of the police power.
32.09(6)(e)
(e) Damages resulting from actual severance of land including damages resulting from severance of improvements or fixtures and proximity damage to improvements remaining on condemnee's land. In determining severance damages under this paragraph, the condemnor may consider damages which may arise during construction of the public improvement, including damages from noise, dirt, temporary interference with vehicular or pedestrian access to the property and limitations on use of the property. The condemnor may also consider costs of extra travel made necessary by the public improvement based on the increased distance after construction of the public improvement necessary to reach any point on the property from any other point on the property.
32.09(6)(f)
(f) Damages to property abutting on a highway right-of-way due to change of grade where accompanied by a taking of land.
32.09(6)(g)
(g) Cost of fencing reasonably necessary to separate land taken from remainder of condemnee's land, less the amount allowed for fencing taken under
par. (a), but no such damage shall be allowed where the public improvement includes fencing of right-of-way without cost to abutting lands.
32.09(6g)
(6g) In the case of the taking of an easement, the compensation to be paid by the condemnor shall be determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the items of loss or damage to the property enumerated in
sub. (6) (a) to
(g) where shown to exist.
32.09(6r)(a)(a) In the case of a taking of an easement in lands zoned or used for agricultural purposes, for the purpose of constructing or operating a high-voltage transmission line, as defined in
s. 196.491 (1) (f), or any petroleum or fuel pipeline, the offer under
s. 32.05 (2a) or
32.06 (2a), the jurisdictional offer under
s. 32.05 (3) or
32.06 (3), the award of damages under
s. 32.05 (7), the award of the condemnation commissioners under
s. 32.05 (9) or
32.06 (8) or the assessment under
s. 32.57 (5), and the jury verdict as approved by the court under
s. 32.05 (10) or
(11) or
32.06 (10) or the judgment under
s. 32.61 (3) shall specify, in addition to a lump sum representing just compensation under
sub. (6) for outright acquisition of the easement, an amount payable annually on the date therein set forth to the condemnee, which amount represents just compensation under
sub. (6) for the taking of the easement for one year.
32.09(6r)(b)
(b) The condemnee shall choose between the lump sum and the annual payment method of compensation at such time as the condemnee accepts the offer, award or verdict, or the proceedings relative to the issue of compensation are otherwise terminated. Selection of the lump sum method of payment shall irrevocably bind the condemnee and successors in interest.
32.09(6r)(c)1.1. Except as provided under
subd. 2., if the condemnee selects the annual payment method of compensation, the fact of such selection and the amount of the annual payment shall be stated in the conveyance or an appendix thereto which shall be recorded with the register of deeds. The first annual payment shall be in addition to payment of any items payable under
s. 32.19. Succeeding annual payments shall be determined by multiplying the amount of the first annual payment by the quotient of the state assessment under
s. 70.575 for the year in question divided by the state assessment for the year in which the first annual payment for that easement was made, if the quotient exceeds one. A condemnee who selects the annual payment method of compensation, or any successor in interest, may at any time, by agreement with the condemnor or otherwise, waive in writing his or her right, or the right of his or her successors in interest, to receive such payments. Any successor in interest shall be deemed to have waived such right until the date on which written notice of his or her right to receive annual payments is received by the condemnor or its successor in interest.
32.09(6r)(c)2.
2. If lands which are zoned or used for agricultural purposes and which are condemned and compensated by the annual payment method of compensation under this paragraph are no longer zoned or used for agricultural purposes, the right to receive the annual payment method of compensation for a high-voltage transmission line easement shall cease and the condemnor or its successor in interest shall pay to the condemnee or any successor in interest who has given notice as required under
subd. 1. a single payment equal to the difference between the lump sum representing just compensation under
sub. (6) and the total of annual payments previously received by the condemnee and any successor in interest.
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
When a strip of land was taken and highway access to a loading dock restricted without a prior finding of necessity to limit access, the plaintiff could recover damages for loss of access because the police power under sub. (4) had not been exercised; rather the taking was by eminent domain. Crown Zellerbach Corp. v. City of Milwaukee Development Department,
47 Wis. 2d 142,
177 N.W.2d 94 (1970).
32.09 Annotation
While the general rule is that evidence of net income is inadmissible to establish fair market value, that rule does not preclude admission of net income evidence under certain circumstances for certain purposes, including impeachment, refreshing the recollection of a witness, or when proper objection is not timely made. Mancheski v. State,
49 Wis. 2d 46,
181 N.W.2d 420 (1970).
32.09 Annotation
The closing of an intersection under the police power does not require compensation so long as access to property is preserved. There is no property right to the flow of traffic. Schneider v. State,
51 Wis. 2d 458,
187 N.W.2d 172 (1971).
32.09 Annotation
It was error to receive testimony of an appraiser who made his appraisal 10 months before the date of the taking and acknowledged that the value had changed in the 10 months but could not update his appraisal. Schey Enterprises, Inc. v. State,
52 Wis. 2d 361,
190 N.W.2d 149 (1971).
32.09 Annotation
If a partial taking eliminates a sewer connection, the condemnor must pay the owner's expense of connecting to another sewer, even though the taking is by an exercise of the police power. Hanser v. Metropolitan Sewerage District of Milwaukee,
52 Wis. 2d 429,
190 N.W.2d 161 (1971).
32.09 Annotation
The admissibility of opinion evidence as to the probability of laying out a road, zoning changes, and sanitary facilities is discussed. Bembinster v. State,
57 Wis. 2d 277,
203 N.W.2d 897 (1973).
32.09 Annotation
Damages caused by a change of the grade of a street or highway where no land is taken constitutes an exercise of police power that is separate and distinct from the exercise of the power of eminent domain under sub. (6) (f) and is only compensable under s. 32.18. Jantz v. State,
63 Wis. 2d 404,
217 N.W.2d 266 (1974).
32.09 Annotation
Inconvenience is a factor only when the landowner's property rights in the remaining portion are so impaired that the owner has, in effect, had that portion taken also. DeBruin v. Green County,
72 Wis. 2d 464,
241 N.W.2d 167 (1976).
32.09 Annotation
An owner's opinion as to the value of real estate may be accepted, but in order to support a verdict some basis for the opinion must be shown. Genge v. Baraboo,
72 Wis. 2d 531,
241 N.W.2d 183 (1976).
32.09 Annotation
The requirement that property be valued as an integrated and comprehensive entity does not mean that the individual components of value may not be examined or considered in arriving at an overall fair market value. Milwaukee & Suburban Transport Corp. v. Milwaukee County,
82 Wis. 2d 420,
263 N.W.2d 503 (1978).
32.09 Annotation
An existing right of access in s. 32.09 (6) (b) includes the right of an abutting property owner to ingress and egress and the right to be judged on criteria for granting permits for access points under s. 86.07 (2). The restriction of access was a compensable taking. Narloch v. DOT,
115 Wis. 2d 419,
340 N.W.2d 542 (1983).
32.09 Annotation
A court may apply the "assemblage" doctrine that permits consideration of evidence of prospective use that requires integration of the condemned parcel with other parcels if integration of the lands is reasonably probable. Clarmar v. City of Milwaukee Redevelopment Authority,
129 Wis. 2d 81,
383 N.W.2d 890 (1986).
32.09 Annotation
There can be no compensation under sub. (6) (b) without the denial of substantially all beneficial use of a property. Sippel v. City of St. Francis,
164 Wis. 2d 527,
476 N.W.2d 579 (Ct. App. 1991).
32.09 Annotation
A change in use is not a prerequisite to finding a special benefit under sub. (3); the real issue is whether the property has gained a benefit not shared by any other parcel. Red Top Farms v. DOT,
177 Wis. 2d 822,
503 N.W.2d 354 (Ct. App. 1993).
32.09 Annotation
Damage to property is not compensated as a taking. For flooding to be a taking it must constitute a permanent physical occupation of property. Menick v. City of Menasha,
200 Wis. 2d 737,
547 N.W.2d 778 (Ct. App. 1996).
32.09 Annotation
The state's assertion that the plaintiff's property, even if rendered uninhabitable as a residence by state construction activities, could be used for some non-residential purpose could not support a motion for dismissal. Factual issues of damage and causation are properly deferred to the summary judgment or trial stage. Wikel v. DOT, 2001 WI App 214,
247 Wis. 2d 626,
635 N.W.2d 213.
32.09 Annotation
Evidence of net income is ordinarily inadmissible for purposes of establishing property values in condemnation cases involving commercial enterprises because income is dependent upon too many variables to serve as a reliable guide in determining fair market value. Rademannv. DOT, 2002 WI App 59,
252 Wis. 2d 191,
642 N.W.2d 600.
32.09 Annotation
Comparable sales evidence is admissible as direct evidence of the land's value or for the limited indirect purpose of demonstrating a basis for and giving weight to an expert opinion. Admission of comparable sales as direct evidence of value is more restrictive than the admissibility rule when offered to show a basis for an expert opinion. Admission of comparable sales evidence is within the discretion of the trial court. When offered as the basis for an expert's opinion, the extent to which the offered sales are truly comparable goes to the weight of the expert's testimony and not to admissibility. Raddeman v. DOT, 2002 WI App 59,
252 Wis. 2d 191,
642 N.W.2d 600.
32.09 Annotation
The owner of condemned property is not entitled to the cost of developing functionally equivalent substitute facilities. United States v. 564.54 Acres of Land,
441 U.S. 506 (1979).
32.10
32.10
Condemnation proceedings instituted by property owner. If any property has been occupied by a person possessing the power of condemnation and if the person has not exercised the power, the owner, to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced. The petition shall describe the land, state the person against which the condemnation proceedings are instituted and the use to which it has been put or is designed to have been put by the person against which the proceedings are instituted. A copy of the petition shall be served upon the person who has occupied petitioner's land, or interest in land. The petition shall be filed in the office of the clerk of the circuit court and thereupon the matter shall be deemed an action at law and at issue, with petitioner as plaintiff and the occupying person as defendant. The court shall make a finding of whether the defendant is occupying property of the plaintiff without having the right to do so. If the court determines that the defendant is occupying such property of the plaintiff without having the right to do so, it shall treat the matter in accordance with the provisions of this subchapter assuming the plaintiff has received from the defendant a jurisdictional offer and has failed to accept the same and assuming the plaintiff is not questioning the right of the defendant to condemn the property so occupied.
32.10 History
History: 1973 c. 170; Sup. Ct. Order,
67 Wis. 2d 575, 749 (1975);
1975 c. 218;
1977 c. 440;
1983 a. 236 s.
12.
32.10 Annotation
A cause of action under this section arises prior to the actual condemnation of the property if the complaint alleges facts that indicate the property owner has been deprived of all, or substantially all, of the beneficial use of the property. Howell Plaza, Inc. v. State Highway Comm.
66 Wis. 2d 720,
226 N.W.2d 185 (1975).
32.10 Annotation
In order for the petitioner to succeed in the initial stages of an inverse condemnation proceeding, the petitioner must allege facts that, prima facie, at least show there has been either an occupation of its property, or a taking, which must be compensated under the terms of the Wisconsin Constitution. Howell Plaza, Inc. v. State Highway Commission,
66 Wis. 2d 720,
226 N.W.2d 185 (1975).
32.10 Annotation
A landowner's petition for inverse condemnation, like a municipality's petition for condemnation, is not subject to demurrer. Revival Center Tabernacle of Battle Creek v. Milwaukee,
68 Wis. 2d 94,
227 N.W.2d 694 (1975).
32.10 Annotation
A taking occurred when a city refused to renew a lessee's theater license because of a proposed renewal project encompassing the theater's location, not when the city made a jurisdictional offer. Property is valued as of the date of the taking. Maxey v. Redevelopment Authority of Racine,
94 Wis. 2d 375,
288 N.W.2d 794 (1980).
32.10 Annotation
The doctrine of sovereign immunity cannot bar an action for just compensation based on the taking of private property for public use even though the legislature has failed to establish specific provisions for the recovery of just compensation. Zinn v. State,
112 Wis. 2d 417,
334 N.W.2d 67 (1983).
32.10 Annotation
A successful plaintiff in an inverse condemnation action was entitled to litigation expenses, which included expenses related to a direct condemnation action. Expenses related to an allocation proceeding under s. 32.11 were not recoverable. Maxey v. Racine Redevelopment Authority,
120 Wis. 2d 13,
353 N.W.2d 812 (Ct. App. 1984).
32.10 Annotation
The owner of property at the time of a taking is entitled to bring an action for inverse condemnation and need not own the property at the time of the commencement of the action. Riley v. Town of Hamilton,
153 Wis. 2d 582,
451 N.W.2d 454 (Ct. App. 1989).
32.10 Annotation
A constructive taking occurs when government regulation renders a property useless for all practical purposes. Taking jurisprudence does not allow dividing the property into segments and determining whether rights in a particular segment have been abrogated. Zealy v. City of Waukesha,
201 Wis. 2d 365,
548 N.W.2d 528 (1996).
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 Wis. 2d 467,
549 N.W.2d 561 (Ct. App. 1996).
32.10 Annotation
The reversal of an agency decision by a court does not convert an action that might otherwise have been actionable as a taking into one that is not. Once there has been sufficient deprivation of the use of property there has been a taking even though the property owner regains full use of the land through rescission of the restriction. Eberle v. Dane County Board of Adjustment,
227 Wis. 2d 609,
595 N.W.2d 730 (1999).
32.10 Annotation
When a regulatory taking claim is made, the plaintiff must prove that: 1) a government restriction or regulation is excessive and therefore constitutes a taking; and 2) any proffered compensation is unjust. Eberle v. Dane County Board of Adjustment,
227 Wis. 2d 609,
595 N.W.2d 730 (1999).
32.10 Annotation
A claimant who asserted ownership of condemned land, compensation for which was awarded to another as owner with the claimant having had full notice of the proceedings, could not institute an inverse condemnation action because the municipality had exercised its power of condemnation. Koskey v. Town of Bergen, 2000 WI App 140,
237 Wis. 2d 284,
614 N.W.2d 845.
32.10 Annotation
The state holds title to the waters of the state and any private property interest in constructing facilities in those waters is encumbered by the public trust doctrine. A riparian owner does not have a right to unfettered use of the bed of the waterway or to the issuance of a permit to construct a structure, which weighs against a finding that a riparian owner suffered a compensable regulatory taking as the result of a permit denial. R.W. Docks & Slips v. State, 2001 WI 73,
244 Wis. 2d 497,
628 N.W.2d 781.
32.10 Annotation
Taking jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a given piece have been entirely abrogated but instead focuses on the extent of the interference with rights in the parcel as a whole. R.W. Docks & Slips v. State, 2001 WI 73,
244 Wis. 2d 497,
628 N.W.2d 781.
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 Wis. 2d 13,
353 N.W.2d 812 (Ct. App. 1984).
32.12
32.12
Proceedings to perfect title. 32.12(1)
(1) If any person having the power to acquire property by condemnation enters into the possession of any property and is using the property for a purpose for which condemnation proceedings might be instituted but has not acquired title to the property, or if the title is defective, or if not in possession, has petitioned the circuit court as provided by
s. 32.06 (7) and for an order as authorized under this section either at the time of filing the petition for condemnation or thereafter, and the necessity for taking has been determined as authorized by law, the person may proceed to acquire or perfect the title as provided in this subchapter or be authorized to enter into possession as provided in this section. At any stage of the proceedings the court in which they are pending may authorize the person, if in possession, to continue in possession, and if not in possession to take possession and have and use the lands during the pendency of the proceedings and may stay all actions or proceedings against the person on account thereof on the paying in court of a sufficient sum or the giving of such securities as the court may direct to pay the compensation therefor when finally ascertained. The "date of taking" in proceedings under this section is the date on which the security required by the order for such security is approved and evidence thereof is filed with the clerk of court. In every such case the party interested in the property may institute and conduct, at the expense of the person, the proceedings to a conclusion if the person delays or omits to prosecute the same.
32.12(2)
(2) No injunction to restrain the possession or use of lands subject to proceedings under
sub. (1) by the party interested in the property or the operation thereon of any plant, line, railroad or other structure, shall be granted until compensation therefor has been fixed and determined.
32.12(3)
(3) In case such person or the person through or under whom that person claims title has paid to the owner of such lands or to any former owner thereof, or to any other person having any valid mortgage or other lien thereon, or to any owner, lien holder, mortgagee or other person entitled to any award or part of any award in satisfaction of the whole or any part of such award to which such owner, lien holder, mortgagee or other person may become entitled upon completion of such condemnation proceedings in the manner authorized by this subchapter, such sum with interest thereon from the date of such payment at the rate of 5% 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.
