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Property – Eminent domain

By: WISCONSIN LAW JOURNAL STAFF//March 25, 2015//

Property – Eminent domain

By: WISCONSIN LAW JOURNAL STAFF//March 25, 2015//

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Wisconsin Court of Appeals

Civil

Property – Eminent domain

Even though a property owner mistakenly inserted the word “dedication” on a certified survey map rather than the intended word “reservation,” the State is not free to take that property without payment of any compensation to the property owner.

“The major fault in the State’s argument is that statutory dedication requires compliance with statutory procedure.  See Vande Zande v. Town of Marquette, 2008 WI App 144, ¶8, 314 Wis. 2d 143, 758 N.W.2d 187.  For the State to rely on WIS. STAT. § 236.29(1) to convey Somers’ property via the CSM, the property first has to be properly dedicated in accordance with WIS. STAT. § 236.34(1m)(e).  Under that statute,

[a] certified survey map may be used for dedication of streets and other public areas … when owners’ certificates and mortgagees’ certificates which are in substantially the same form as required by [WIS. STAT. §] 236.21(2)(a) have been executed and the city council or village or town board involved have approved such dedication or grant.  Approval and recording of such certified surveys shall have the force and effect provided by [§] 236.29.

Sec. 236.34(1m)(e).  No governmental board involved in Somers’ development approved any road dedication or land grant for inclusion in the CSM.  Therefore, the CSM lacked the force and effect required to convey the property to the State.  Furthermore, ‘[i]ntent to dedicate to the public is an essential component of either [common law or statutory] dedication,’ Vande Zande, 314 Wis. 2d 143, ¶8, and it is undisputed that Somers never intended to dedicate the property for public use, cf. Cohn v. Town of Randall, 2001 WI App 176, ¶7, 247 Wis. 2d 118, 633 N.W.2d 674.”

Affirmed.

Recommended for publication in the official reports.

2014AP1092 Somers USA, LLC, v. DOT

Dist. II, Kenosha County, Schroeder, J., Reilly, J.

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