Any Wisconsin corporation organized to furnish water or light to any city, village or town or the inhabitants thereof, for the construction and maintenance of its plant.
Any Wisconsin corporation transmitting gas, oil or related products in pipelines for sale to the public directly or for sale to one or more other corporations furnishing such gas, oil or related products to the public.
Any rural electric cooperative association organized under ch. 185
which operates a rural electrification project to:
Generate, distribute or furnish at cost electric energy at retail to 500 or more members of said association in accordance with standard rules for extension of its service and facilities as provided in the bylaws of said association and whose bylaws also provide for the acceptance into membership of all applicants therefor who may reside within the territory in which such association undertakes to furnish its service, without discrimination as to such applicants; or
Generate, transmit and furnish electric energy at wholesale to 3 or more rural electric cooperative associations furnishing electric energy under the conditions set forth in par. (a)
, for the construction and location of its lines, substation or generating plants, ponds or reservoirs, any dam, dam site, flowage rights or undeveloped water power, or for additions or extension of its plant and for the purpose of conducting tests or studies to determine the suitability of a site for the placement of a facility.
Any person operating a plant which creates waste material which, if released without treatment would cause stream pollution, for the location of treatment facilities. This subsection does not apply to a person with a permit under ch. 293
or subch. III of ch. 295
Any business entity authorized to do business in Wisconsin that shall transmit oil or related products including all hydrocarbons which are in a liquid form at the temperature and pressure under which they are transported in pipelines in Wisconsin, and shall maintain terminal or product delivery facilities in Wisconsin, and shall be engaged in interstate or international commerce, subject to the approval of the public service commission upon a finding by it that the proposed real estate interests sought to be acquired are in the public interest.
The department of transportation for the acquisition of abandoned rail and utility property under s. 85.09
The department of natural resources with the approval of the appropriate standing committees of each house of the legislature as determined by the presiding officer thereof and as authorized by law, for acquisition of lands.
History: 1971 c. 100
; 1973 c. 243
; 1975 c. 68
; 1977 c. 29
; 1979 c. 34
s. 2102 (52) (b)
; 1979 c. 122
; 1979 c. 175
; 1981 c. 86
; 1983 a. 27
; 1985 a. 29
s. 3200 (51)
; 1985 a. 30
; 1985 a. 187
; 1985 a. 297
; 1987 a. 27
; 1989 a. 31
; 1993 a. 246
; 1993 a. 491
; 1995 a. 27
s. 9126 (19)
; 1995 a. 201
; 1997 a. 204
; 1999 a. 65
; 1999 a. 150
; 1999 a. 167
; 2001 a. 30
; 2005 a. 335
; 2007 a. 20
, s. 9121 (6) (a)
; 2009 a. 28
; 2011 a. 32
; 2013 a. 1
; 2015 a. 55
See s. 13.48 (16)
for limitation on condemnation authority of the building commission.
The inalienability of the power of eminent domain is a well-settled rule. A party with the right to condemn cannot lose that power through contract. The right to condemnation cannot be waived or abrogated by estoppel. Personal rights may be waivable, but public rights are not. Andrews v. Wisconsin Public Service Corporation, 2009 WI App 6
, 315 Wis. 2d 772
, 762 N.W.2d 837
When condemnation not to be exercised. 32.03(1)(1)
The general power of condemnation conferred in this subchapter does not extend to property owned by the state, a municipality, public board or commission, nor to the condemnation by a railroad, public utility or electric cooperative of the property of either a railroad, public utility or electric cooperative unless such power is specifically conferred by law, provided that property not to exceed 100 feet in width owned by or otherwise under the control or jurisdiction of a public board or commission of any city, village or town may be condemned by a railroad corporation for right-of-way or other purposes, whenever a city, village or town by ordinance consents thereto. This subchapter does not apply to the acquisition by municipalities of the property of public utilities used and useful in their business, nor to any city of the 1st class, except that every such city may conduct any condemnation proceedings either under this subchapter or, at its option, under other laws applicable to such city.
Any railroad corporation or pipeline corporation may acquire by condemnation lands or interest therein which are held and owned by another railroad corporation or pipeline corporation. In the case of a railroad corporation, no such land shall be taken so as to interfere with the main track of the railroad first established except for crossing, and in the case of a pipeline corporation no such land shall be taken except for crossing or in such manner as to interfere with or endanger railroad operations.
Any public utility corporation, or cooperative association mentioned in s. 32.02 (10)
, upon securing from the public service commission, pursuant to written application and upon due notice to all interested parties, an order determining that lands or interests therein sought to be acquired by the applicant are owned by a public utility corporation or such rural electric cooperative and are not then being used by the owner for service to the public by the public utility or to its members by such cooperative association and will not be required in the future for such purposes to an extent and within a period which will be interfered with by the appropriation of the lands or interests sought to be condemned, may acquire by condemnation such lands or interests therein. No lands, or interests therein, belonging to a public utility corporation or to any such cooperative association which is being held by such owner as a site for an electric generating plant, and no other property so owned, or any interest therein, which is used or suitable for the development of water power, shall be subject to condemnation under this subsection; except that an undeveloped water power site, belonging to any such public utility corporation or to any such cooperative association and which is within the flowage area of any other undeveloped water power site, may be condemned pursuant to this subsection, but only if, upon application to it, the public service commission, after hearing held upon notice to such owner and all parties interested, shall by order determine the necessity of taking such lands or interest therein. Such order shall be subject to review as prescribed by ch. 227
. Any condemnation of lands pursuant to this subsection shall be conducted in accordance with the procedure and requirements prescribed by ss. 32.04
If an electric utility is required to obtain a certificate of public convenience and necessity from the public service commission under s. 196.491 (3)
, no right to acquire real estate or personal property appurtenant thereto or interest therein for such project by condemnation shall accrue or exist under s. 32.02
or 32.075 (2)
until such a certificate of public convenience and necessity has been issued.
This subsection does not apply to the condemnation of a limited interest in real property or appurtenant personal property, except structures with foundations, necessary to conduct tests or studies to determine the suitability of a site for the placement of a utility facility, provided that:
Such a limited interest does not run for more than 3 years; and
Activities associated with such tests or studies will be conducted at reasonable hours with minimal disturbance, and the property will be reasonably restored to its former state, upon completion of such tests or studies.
This subsection does not prohibit an electric utility from negotiating with the owner, or one of the owners, of a property, or the representative of an owner, before the issuance of a certificate of public convenience and necessity, if the electric utility advises the owner or representative that the electric utility does not have the authority to acquire the property by condemnation until the issuance of a certificate of public convenience and necessity.
In this subsection, “blighted property" means any property that, by reason of abandonment, dilapidation, deterioration, age or obsolescence, inadequate provisions for ventilation, light, air, or sanitation, high density of population and overcrowding, faulty lot layout in relation to size, adequacy, accessibility, or usefulness, unsanitary or unsafe conditions, deterioration of site or other improvements, or the existence of conditions that endanger life or property by fire or other causes, or any combination of such factors, is detrimental to the public health, safety, or welfare. Property that consists of only one dwelling unit is not blighted property unless, in addition, at least one of the following applies:
The property is not occupied by the owner of the property, his or her spouse, or an individual related to the owner by blood, marriage, or adoption within the 4th degree of kinship under s. 990.001 (16)
The crime rate in, on, or adjacent to the property is at least 3 times the crime rate in the remainder of the municipality in which the property is located.
Property that is not blighted property may not be acquired by condemnation by an entity authorized to condemn property under s. 32.02 (1)
if the condemnor intends to convey or lease the acquired property to a private entity.
Before commencing the condemnation of property that a condemnor authorized to condemn property under s. 32.02 (1)
intends to convey or lease to a private entity, the condemnor shall make written findings and provide a copy of the findings to the owner of the property. The findings shall include all of the following:
The scope of the redevelopment project encompassing the owner's property.
A legal description of the redevelopment area that includes the owner's property.
A finding that the owner's property is blighted and the reasons for that finding.
County lands are not subject to condemnation by a town absent express statutory authority authorizing such condemnation. 62 Atty. Gen. 64.
Wisconsin's Response to Condemnation for Economic Development. Braun. Wis. Law. Sept. 2007.
Agricultural impact statement. 32.035(1)(a)
“Department" means department of agriculture, trade and consumer protection.
“Farm operation" means any activity conducted solely or primarily for the production of one or more agricultural commodities resulting from an agricultural use, as defined in s. 91.01 (2)
, for sale and home use, and customarily producing the commodities in sufficient quantity to be capable of contributing materially to the operator's support.
This section shall not apply if an environmental impact statement under s. 1.11
is prepared for the proposed project and if the department submits the information required under this section as part of such statement or if the condemnation is for an easement for the purpose of constructing or operating an electric transmission line, except a high voltage transmission line as defined in s. 196.491 (1) (f)
The condemnor shall notify the department of any project involving the actual or potential exercise of the powers of eminent domain affecting a farm operation. If the condemnor is the department of natural resources, the notice required by this subsection shall be given at the time that permission of the senate and assembly committees on natural resources is sought under s. 23.09 (2) (d)
or 27.01 (2) (a)
. To prepare an agricultural impact statement under this section, the department may require the condemnor to compile and submit information about an affected farm operation. The department shall charge the condemnor a fee approximating the actual costs of preparing the statement. The department may not publish the statement if the fee is not paid.
When an impact statement is required; permitted.
The department shall prepare an agricultural impact statement for each project, except a project under ch. 82
or a project located entirely within the boundaries of a city or village, if the project involves the actual or potential exercise of the powers of eminent domain and if any interest in more than 5 acres of any farm operation may be taken. The department may prepare an agricultural impact statement on a project located entirely within the boundaries of a city, village, or town or involving any interest in 5 or fewer acres of any farm operation if the condemnation would have a significant effect on any farm operation as a whole.
The agricultural impact statement shall include:
A list of the acreage and description of all land lost to agricultural production and all other land with reduced productive capacity, whether or not the land is taken.
The department's analyses, conclusions and recommendations concerning the agricultural impact of the project.
Preparation time; publication.
The department shall prepare the impact statement within 60 days of receiving the information requested from the condemnor under sub. (3)
. The department shall publish the statement upon receipt of the fee required under sub. (3)
The condemnor may not negotiate with an owner or make a jurisdictional offer under this subchapter until 30 days after the impact statement is published.
Upon completing the impact statement, the department shall distribute the impact statement to the following:
The senate and assembly committees on agriculture and transportation.
All local and regional units of government which have jurisdiction over the area affected by the project. The department shall request that each unit post the statement at the place normally used for public notice.
Local and regional news media in the area affected.
Any individual, group, club or committee which has demonstrated an interest and has requested receipt of such information.
NOTE: 2003 Wis. Act 214
, which affected this section, contains extensive explanatory notes.
Procedure in condemnation.
All acquisition of property in this state by condemnation, except as hereinafter provided, commenced after April 6, 1960 shall be accomplished in the following manner:
Condemnation for sewers and transportation facilities.
In this section, “mass transit facility" includes, without limitation because of enumeration, exclusive or preferential bus lanes if those lanes are limited to abandoned railroad rights-of-way or existing expressways constructed before May 17, 1978, highway control devices, bus passenger loading areas and terminal facilities, including shelters, and fringe and corridor parking facilities to serve bus and other public mass transportation passengers, together with the acquisition, construction, reconstruction and maintenance of lands and facilities for the development, improvement and use of public mass transportation systems for the transportation of passengers. This section does not apply to proceedings in 1st class cities under subch. II
. In any city, condemnation for housing under ss. 66.1201
, for urban renewal under s. 66.1333
, or for cultural arts facilities under subch. V of ch. 229
, may proceed under this section or under s. 32.06
at the option of the condemning authority. In any village, condemnation for housing under ss. 66.1201
or for urban renewal under s. 66.1333
may proceed under this section or under s. 32.06
at the option of the condemning authority. Condemnation by a local exposition district under subch. II of ch. 229
for any exposition center or exposition center facility may proceed under this section or under s. 32.06
at the option of the local exposition district. All other condemnation of property for public alleys, streets, highways, airports, spaceports, mass transit facilities, or other transportation facilities, gas or leachate extraction systems to remedy environmental pollution from a solid waste disposal facility, storm sewers and sanitary sewers, watercourses or water transmission and distribution facilities shall proceed as follows:
Except as provided under par. (b)
, a county board of supervisors or a county highway committee when so authorized by the county board of supervisors, a city council, a village board, a town board, a sewerage commission governing a metropolitan sewerage district created by ss. 200.05
, the secretary of transportation, a commission created by contract under s. 66.0301
, a joint local water authority created by contract under s. 66.0823
, a housing authority under ss. 66.1201
, a local exposition district created under subch. II of ch. 229
, a local cultural arts district created under subch. V of ch. 229
, a redevelopment authority under s. 66.1333
or a community development authority under s. 66.1335
shall make an order providing for the laying out, relocation and improvement of the public highway, street, alley, storm and sanitary sewers, watercourses, water transmission and distribution facilities, mass transit facilities, airport, or other transportation facilities, gas or leachate extraction systems to remedy environmental pollution from a solid waste disposal facility, housing project, redevelopment project, cultural arts facilities, exposition center or exposition center facilities which shall be known as the relocation order. This order shall include a map or plat showing the old and new locations and the lands and interests required. A copy of the order shall, within 20 days after its issue, be filed with the county clerk of the county wherein the lands are located or, in lieu of filing a copy of the order, a plat may be filed or recorded in accordance with s. 84.095
No relocation order is necessary under par. (a)
if the compensation, as estimated by the appraisal under sub. (2) (a)
, will be less than $1,000 in the aggregate.
The condemnor shall cause at least one, or more in the condemnor's discretion, appraisal to be made of all property proposed to be acquired. In making any such appraisal the appraiser shall confer with the owner or one of the owners, or the personal representative of the owner or one of the owners, if reasonably possible.
The condemnor shall provide the owner with a full narrative appraisal upon which the jurisdictional offer is based and a copy of any other appraisal made under par. (a)
and at the same time shall inform the owner of his or her right to obtain an appraisal under this paragraph. The owner may obtain an appraisal by a qualified appraiser of all property proposed to be acquired, and may submit the reasonable costs of the appraisal to the condemnor for payment. The owner shall submit a full narrative appraisal to the condemnor within 60 days after the owner receives the condemnor's appraisal. If the owner does not accept a negotiated offer under sub. (2a)
or the jurisdictional offer under sub. (3)
, the owner may use an appraisal prepared under this paragraph in any subsequent appeal.
Before making the jurisdictional offer provided in sub. (3)
, the condemnor shall attempt to negotiate personally with the owner or one of the owners or his or her representative of the property sought to be taken for the purchase of the same. In such negotiation the condemnor shall consider the owner's appraisal under sub. (2) (b)
and may contract to pay the items of compensation enumerated in ss. 32.09
as may be applicable to the property in one or more installments on such conditions as the condemnor and property owners may agree. Before attempting to negotiate under this subsection, the condemnor shall provide the owner or his or her representative with copies of applicable pamphlets prepared under s. 32.26 (6)
. When negotiating under this subsection, the condemnor shall provide the owner or his or her representative with the names of at least 10 neighboring landowners to whom offers are being made, or a list of all offerees if less than 10 owners are affected, together with a map showing all property affected by the project. Upon request by an owner or his or her representative, the condemnor shall provide the name of the owner of any other property which may be taken for the project. The owner or his or her representative shall also have the right, upon request, to examine any maps in the possession of the condemnor showing property affected by the project. The owner or his or her representative may obtain copies of such maps by tendering the reasonable and necessary costs of preparing copies. The condemnor shall record any conveyance by or on behalf of the owner of the property to the condemnor executed as a result of negotiations under this subsection with the register of deeds of the county in which the property is located. The conveyance shall state the identity of all persons having an interest of record in the property immediately prior to its conveyance, the legal description of the property, the nature of the interest acquired and the compensation for such acquisition. The condemnor shall serve upon or mail by certified mail to all persons named therein a copy of the conveyance and a notice of the right to appeal the amount of compensation under this subsection. Any person named in the conveyance may, within 6 months after the date of its recording, appeal from the amount of compensation therein stated in the manner set forth in subs. (9)
and chs. 808
for appeals from an award under sub. (7)
. For purposes of any such appeal, the amount of compensation stated in the conveyance shall be treated as the award and the date the conveyance is recorded shall be treated as the date of taking and the date of evaluation.
Jurisdictional offer to purchase.
Condemnor shall send to the owner, or one of the owners of record, and to the mortgagee, or one of the mortgagees of each mortgage of record, a notice:
Stating briefly the nature of the project, with reference to the relocation order if required, and that the condemnor in good faith intends to use the property sought to be condemned for such public purpose.
Describing the property and the interest therein sought to be taken.
Stating the proposed date of occupancy regardless of the date of taking.
Stating the amount of compensation offered, itemized as to the items of damage as set forth in s. 32.09
and that compensation for additional items of damage as set forth in s. 32.19
may be claimed under s. 32.20
and will be paid if shown to exist.
Stating that the appraisal or one of the appraisals of the property on which condemnor's offer is based is available for inspection at a specified place by persons having an interest in the lands sought to be acquired.
Stating that the owner has 20 days from date of completion of service upon the owner of the offer, as specified in sub. (6)
, in which to accept or reject the offer.
Stating that if the owner has not accepted such offer as provided in sub. (6)
the owner has 40 days from the date of completion of service upon the owner of the offer to commence a court action to contest the right of condemnation as provided in sub. (5)
; provided that the acceptance and retention of any compensation resulting from an award made prior to the commencement of such an action shall be an absolute bar to such action.
Stating that the owner, subject to subs. (9) (a)
, will have 2 years from the date of taking the property by award in which to appeal for greater compensation without prejudice to the right to use the compensation given by the award. If the condemning authority is a housing authority organized under ss. 66.1201
a redevelopment authority organized under s. 66.1333
or a community development authority organized under s. 66.1335
, the notice shall also state that in the case of an appeal under sub. (9) (a)
the parties having an interest in the property who are taking the appeal may initiate such appeal by filing with the condemning authority a letter requesting that the issue of the amount of such compensation be determined by the condemnation commission.
In this subsection, “uneconomic remnant" means the property remaining after a partial taking of property, if the property remaining is of such size, shape, or condition as to be of little value or of substantially impaired economic viability.
If the acquisition of only part of a property would leave its owner with an uneconomic remnant, the condemnor shall offer to acquire the remnant concurrently and may acquire it by purchase or by condemnation if the owner consents.
How notice of jurisdictional offer is given.
The giving of such notice is a jurisdictional requisite to a taking by condemnation. Such notice may be given by personal service in the manner of service of a circuit court summons, or it may be transmitted by certified mail. If service is by mail, service of the papers shall be deemed completed on the date of mailing and the use of mail service shall not increase the time allowed to act in answer to or in consequence of such service. If such owner or mortgagee is unknown or cannot be found there shall be published in the county wherein the property is located a class 1 notice, under ch. 985
. If such owner is a minor, or an individual adjudicated incompetent, the condemnor shall serve such notice upon the legal guardian of the minor or individual, and if there is no such guardian the condemnor shall proceed under s. 32.15
to have a special guardian appointed to represent the minor or individual in the proceeding. The reasonable fees of any special guardian as approved by the court shall be paid by the condemnor. The notice shall be called the “jurisdictional offer". The condemnor shall file a lis pendens on or within 14 days of the date of service or mailing of the jurisdictional offer or within 14 days of the date of publication if publication is necessary. The lis pendens shall include a copy of the jurisdictional offer. From the time of such filing every purchaser or encumbrancer whose conveyance or encumbrance is not recorded or filed shall be deemed a subsequent purchaser or encumbrancer and shall be bound by the terms of the jurisdictional offer and it shall not be necessary to serve other jurisdictional offers on such subsequent purchaser or encumbrancer. In the award the condemnor may name and make payment to parties who were owners or mortgagees at the time of the filing of the lis pendens unless subsequent purchasers or encumbrancers give written notice to the condemnor of their subsequently acquired interests in which event such parties shall be named in the award as their interests may appear.
Court action to contest right of condemnation.
If 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, the owner may within 40 days from the date of personal service of the jurisdictional offer or within 40 days from the date of postmark of the certified mail letter transmitting such offer, or within 40 days after date of publication of the jurisdictional offer as to persons for whom such publication was necessary and was made, commence an action in the circuit court of the county wherein the property is located, naming the condemnor as defendant. 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
, may be raised pertaining to the condemnation of the property described in the jurisdictional offer. The trial of the issues raised by the pleadings in such action shall be given precedence over all other actions in said court then not on trial. If the action is not commenced within the time limited the owner or other person having any interest in the property shall be barred from raising any such objection in any other manner. Nothing in this section shall be construed to limit in any respect the right to determine the necessity of taking as conferred by s. 32.07
nor to prevent the condemnor from proceeding with condemnation during the pendency of the action to contest the right to condemn.
Acceptance of jurisdictional offer.
The owner has 20 days from the date of personal service of the jurisdictional offer or 20 days from the date of postmark of the certified mail letter transmitting such offer, or if publication of the jurisdictional offer was necessary and was made, 20 days after the date of such publication, in which to accept the jurisdictional offer unless such time is extended by mutual written consent of the condemnor and condemnee. If such offer is accepted, the transfer of title shall be accomplished within 60 days after acceptance including payment of the consideration stipulated in such offer. If the jurisdictional offer is rejected in writing by all of the owners of record the condemnor may proceed to make an award forthwith. At any time prior to acceptance of the jurisdictional offer by the condemnee the same may be withdrawn by the condemnor.
Award of compensation.
If the owner has not accepted the jurisdictional offer within the periods limited in sub. (6)
or fails to consummate an acceptance as provided therein, the condemnor may make an award of damages in the manner and sequence of acts as follows:
The award shall be in writing. Except as provided in sub. (1) (b)
, the award shall state that it is made pursuant to relocation order of (name of commission, authority, board or council having jurisdiction to make the improvement) No. .... dated .... filed in the office of the County Clerk, County of ...., or pursuant to transportation project plat no. .... dated .... filed or recorded in the office of register of deeds, .... County. If a relocation order is not required under sub. (1) (b)
, the award shall name the condemnor. It shall name all persons having an interest of record in the property taken and may name the other persons. It shall describe such property by legal description, or by the parcel number shown on a plat filed or recorded under s. 84.095
, and state the interest therein sought to be condemned and the date when actual occupancy of the property condemned will be taken by condemnor. The award shall also state the compensation for the taking which shall be an amount at least equal to the amount of the jurisdictional offer. The award shall state that the condemnor has complied with all jurisdictional requirements. An amended award for the purpose of correcting errors wherein the award as recorded differs from the jurisdictional offer may be made, served and recorded as provided by this section.
Copy of such award shall be served on or mailed by certified mail to all persons named therein. If any such person cannot be found or the person's address is unknown, the award shall be published in the county wherein the property is situated as a class 3 notice, under ch. 985
, and completed publication as shown by affidavit shall constitute proper service. Such award shall be known as the “basic award".
When service of the award has been completed, and after payment of the award as provided in par. (d)
, the award shall be recorded in the office of the register of deeds of the county wherein the property is located. Thereupon title in fee simple to the property described in the award, or the lesser right in property acquired by the award shall vest in the condemnor as of the time of recording. The date of such recording is the “date of evaluation" and also the “date of taking".
On or before said date of taking, a check, naming the parties in interest as payees, for the amount of the award less outstanding delinquent tax liens, proportionately allocated as in division in redemption under ss. 74.51
when necessary and less prorated taxes of the same year, if any, likewise proportionately allocated when necessary against the property taken, shall at the option of the condemnor be mailed by certified mail to the owner or one of the owners of record or be deposited with the clerk of the circuit court of the county for the benefit of the persons named in the award. The clerk shall give notice thereof by certified mail to such parties. The persons entitled thereto may receive their proper share of the award by petition to and order of the circuit court of the county. The petition shall be filed with the clerk of the court without fee.