Judge Wedemeyer is correct that whether a truly voluntary sale of similar property can be considered in a condemnation action is an issue that needs to be addressed.
He is also correct when he states, It ill behooves a court to follow a precedential principle of law for which no rational basis exists.
However, whether to follow such precedent or not is for the Supreme Court to decide, rather than the court of appeals. Even if the facts in the case at bar are slightly different than those in Blick v. Ozaukee County, 180 Wis. 45, 192 N.W. 380 (1923), Kirkpatrick v. State, 53 Wis.2d 522, 192 N.W.2d 856 (1972), and Herro v. Department of Natural Resources, 67 Wis.2d 407, 227 N.W.2d 456 (1975), nothing in those decisions suggests that any result other than than reached by the majority would be acceptable under current law.
The modern trend is not to bar evidence of similar sales absolutely, but to place the burden on the property owner to show that the sale was actually voluntary. 5 Nichols on Eminent Domain 21.02[21-76 21-80] acknowledges that, if a sale is made to a corporation about to institute condemnation proceedings, it is not a fair test of market value.
However, Nichols continues, the mere fact that a corporation, which purchased land by voluntary sale, was invested with the power of eminent domain does not in and of itself show that the sale was compulsory settlement rather than a fair transaction in the market. … In general, the price by an entity having eminent domain power but not using that authority to acquire the property may be introduced to establish fair market value so long as the transaction was not influenced by any fear of litigation. The mere fact that one of the parties to a sale had the power to condemn does not of itself make the sale compulsory, at least where there had been no step taken to exercise such power before the sale was negotiated. … Although there is some authority that the objection resides in the weight rather than its admissibility of the sales, in cases where sales are made to condemnors, the party offering evidence of these type of sales to establish fair market value also carries the burden to show that the sale was made freely and voluntarily and not under the threat of eminent domain.
The burden would, presumably, be difficult to meet. Nevertheless, in the case at bar, for instance, inter-office memos of the County indicate that, although Pinczkowski and one of the adjacent owners had not firmly decided whether to sell the property, the owner of the other parcel is interested in selling the property. At a minimum, with respect to the latter owner, the sale may indeed be properly characterized as voluntary.
Because the Wisconsin rule is contrary to most jurisdictions, and has not seriously been considered in decades, if ever, the decision is a good candidate for review in the Supreme Court.
– David Ziemer
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David Ziemer can be reached by email.