2008AP921 E-L Enterprises, Inc., v. Milwaukee Metropolitan Sewerage District

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Constitutional Law
Takings

Damage to property caused by the government's removing groundwater from property is not compensable as a taking.

"E-L's takings claim must fail. E-L's claim morphed from a complaint that the Sewerage District 'physically took portions of the wood piles which rendered them unusable and damaged the E-L Building' into a special verdict form that asked the jury to determine the sum of money that would 'justly compensate E-L for the taking of [the] groundwater.' The groundwater was indeed that which was extracted by the Sewerage District, but E-L introduced no proof as to the value of the extracted groundwater. Therefore, whether E-L owns the extracted groundwater is inapposite in this case. E-L instead seeks damages for the cost to repair its building and for the loss of use of its wood piles. However, the Sewerage District did not physically occupy the property for which E-L seeks compensation, and no government-imposed restriction deprived E-L of all, or substantially all, of the beneficial use of its property. What remains are mere consequential damages to property resulting from governmental action, which are not compensable under Article I, Section 13 of the Wisconsin Constitution or the Takings Clause of the Fifth Amendment."

Reversed.

2008AP921 E-L Enterprises, Inc., v. Milwaukee Metropolitan Sewerage District

Ziegler, J.

Attorneys: McCabe, Michael J., Milwaukee; Petersen, James H., Milwaukee; Halfenger, G. Michael, Milwaukee; Rollings, Lauri Ann, Milwaukee; Katt, William James, Jr., Milwaukee; For Respondent: Kerkman, Jerome R., Milwaukee; Cerbins, Susan A., Whitefish Bay; Cincotta, Joseph, Milwaukee

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