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00-3215 Wikel v. State of Wisconsin, Dept. of Transportation

By: dmc-admin//August 13, 2001//

00-3215 Wikel v. State of Wisconsin, Dept. of Transportation

By: dmc-admin//August 13, 2001//

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“[A]s Wikel correctly argues, her circumstances are comparable to those of the plaintiff, an electrical utility company, in Public Service Corp. v. Marathon County, 75 Wis. 2d 442, 249 N.W.2d 543 (1977). There, the supreme court concluded that a compensable taking had occurred where the county, enlarging its airport, compelled the utility to remove overhead power lines and place them underground. The supreme court explained: The removal of the power lines was important in the overall plan of enlarging the airport; the county needed the land on which the lines rested; it intended to affect the power lines; the removal of the lines was intentional, not accidental; the public benefited from the enlarged airport which necessitated the removal of the power lines. … Much the same could be said here. …

“While the Department may maintain that it accomplished only a limited taking consisting of the five-foot-strip acquisition and the easements, and that it did not cause the consequential damages Wikel alleges, Wikel is entitled to the opportunity to prove her allegation that the Department’s actions rendered her property ‘uninhabitable and unsaleable’ and, therefore, constituted a ‘total, permanent taking.’ ‘When determining whether art. I, sec. 13 is triggered by factual allegations concerning a particular piece of property, the threshold inquiry is whether the property has been ‘taken.’… In this case, Wikel’s petition pulls the trigger and, therefore, the inquiry must proceed.”

Order reversed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Lamelas, J., Schudson, J.

Attorneys:

For Appellant: Robert L. Gordon, Milwaukee; Alan Marcuvitz, Milwaukee

For Respondent: Matthew J. Frank, Madison; Frank D. Remington, Madison

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