Partial Taking Case Analysis

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The court may have reached the correct result in this case, but its reasoning is flawed in some respects.

First, the court finds that the statute is unambiguous based on the absence of a comma between the phrase "assuming the completion of the public improvement" and "and giving effect … to the following items of loss or damage…"

However, the absence (or presence) of a comma in a given location (where its inclusion would change the meaning of the statute) does not render a statute unambiguous; at most, it raises an inference that its absence was intended.

The court of appeals has been corrected by the Supreme Court for just this mistake on other occasions. In Hacker v. State Dep’t. of Health & Social Services, 197 Wis.2d 441, 455-456, 541 N.W.2d 766, 770-771 (1995), the court wrote, "We disagree with the court of appeals’ determination that sec. 50.01(1g) is unambiguous. As the parties point out, it is difficult to perceive how a statute is unambiguous if one must change the statute’s punctuation by adding commas in order to ascertain its meaning."

The next year, the Supreme Court again discussed the relevance of commas, citing precedent from the nineteenth century: "The comma may have been deleted merely for stylistic reasons. … See Morrill v. State, 38 Wis. 428, 434 (1875), rev’d on other grounds, 154 U.S. 626, 14 S.Ct. 1206, 23 L.Ed. 1009 (1877)(‘In giving construction to a statute the punctuation is entitled to small consideration, for that is more likely to be the work of the engrossing clerk or the printer than the legislature.’)." Thompson v Craney, 199 Wis.2d 674, 682-683, 546 N.W.2d 123, 128 (1996).

Furthermore, even if commas were dispositive, it is arguable that the court is not even correct as to where the controlling space is in the sentence for the comma to appear or not appear.

While there is no comma after the phrase "assuming the completion of the public improvement," there is a comma immediately before that phrase, right after the court describes how the "before and after" method is calculated.

Arguably, everything in the statute that appears after that comma is intended to apply to both the fair market method and the "before and after" method.

Neither does the court’s reference to U.S. v. 9.20 Acres of Land, 638 F2d 1123 (8th Cir. 1981), explain the court’s interpretation. The passage cited by the court merely explains that, when using the "before and after" method, damages resulting from severance cannot be counted twice.

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Other portions of the decision could be taken out of context as well, to actually support adding severance damages, where the fair market method is used. The court wrote, "Where partial takings are involved, ‘the landowner is entitled to be compensated not only for the value of his land that is actually taken, but also for the dimunition of the value of what is left to him after the taking. (quoting Farmland Preservation Ass’n v. Goldschmidt, 611 F.2d 233, 237 (8th Cir.1979)(emphases added).’"

The irrelevance of that case to the issue in the case at bar is caused by the assumption on the part of the Eighth Circuit assumes that the combination of the value of the land taken, plus the severance damages to the remainder, invariably equals the difference between the before and after values, an assumption the Wisconsin legislature rejected, when it amended the statute in 1978.

This assumption does not always hold true, however, and the case at bar is a perfect example. While the taken portion was worth $86,000, and the taking caused over $43,000 of severance damages to the remainder, the jury found the remaining property to be worth only $42,500 less than the whole property would be worth without the road expansion.

Thus, while the result in this case may or may not be correct, the reasoning has serious flaws, and may result in gross injustice in some cases as a result. Property owners who suffer partial takings, and do not receive just compensation, should preserve objections to the methodology required by this case if it is published, for potential review of the statutory construction in the Supreme Court.

– David Ziemer

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David Ziemer can be reached by email.