Property — eminent domain — easements

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Wisconsin Court of Appeals

Civil

Property — eminent domain — easements

Where the circuit court limited the jury’s damages from the taking of an easement to aerial rights, a new trial is required.

“By statute, a jury is to arrive at a just compensation figure by determining the difference in the fair market value of the landowner’s ‘whole’ property before the taking of the easement compared to the fair market value of the landowner’s whole property (including the easement area) after the taking. See WIS. STAT. § 32.09(6g) (2009-10); see also Fields v. American Transmission Co., 2010 WI App 59, ¶¶13-14, 324 Wis. 2d 417, 782 N.W.2d 729. Prior to trial, the circuit court interpreted the easement that ATC took to involve a loss of only ‘aerial rights.’ The circuit court granted summary judgment to ATC as Savage’s appraisal experts did not limit their opinions to a loss of ‘aerial rights.’ As the circuit court erroneously precluded Savage from offering testimony as to the value of his ‘whole’ property before and after the taking of the easement, we reverse and remand for a jury trial as to the amount of just compensation.”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP137 Savage v. ATC, LLC

Dist. II, Winnebago County, Jorgensen, J., Reilly, J.

Attorneys: For Appellant: Marcuvitz, Alan, Milwaukee; For Respondent: Bartell, Thomas M., Jr., Milwaukee; Stadler, Katherine, Madison; Cahill, Bryan J., Madison