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High court agrees to take on barge case

A barge that was lifted out of the Menomonee River in Milwaukee remains suspended by two cranes on Friday. The Supreme Court will take on the case of a property owner who was charged fees for removing the sunken barge from the river. (Staff photo by Kevin Harnack)

The Wisconsin Supreme Court has agreed to hear the case of a Milwaukee property owner assessed the costs of removing a sunken barge from the Menomonee River.

At issue is the doctrine of judicial estoppel,” which provides that a party who successfully argues one position in court cannot then argue the opposite in a second court proceeding.

Basil Ryan Jr. operated several businesses on riverfront property at 260 N. 12th St. The state used eminent domain to condemn the property in March 2004 and acquire it for the Wisconsin Department of Transportation’s use as a staging area during the reconstruction of the Marquette Interchange.

The barge was in the river along the property when it was condemned, but the barge sank in 2006. Since then, it has been the subject of a battle between Ryan and the Wisconsin Department of Justice.

In a questionnaire during the eminent domain process, Ryan stated that he was the owner of the barge.

Ryan was paid $1.35 million for the property, and he vacated it but left the barge in the river. After it sank, and WisDOT sought to recover the costs of removal from Ryan, he then denied ownership of the barge.

The circuit court and Court of Appeals held that, having asserted ownership of the barge during the eminent domain proceeding, he is barred from denying ownership now.

Ryan’s position is that the doctrine does not apply because his earlier assertion of ownership did not occur during litigation.

But the Court of Appeals disagreed, concluding, “We think that Ryan presents a textbook example of a litigant playing ‘fast and loose’ with the judicial system.”

The court ordered Ryan to deposit $100,000 with the clerk of court’s office to ensure the barge would be removed and upheld more than $37,000 in environmental penalties. In addition, the state has appealed to the state Supreme Court the amount it paid Ryan for the property because the award was depreciated based on contamination of the property. Ryan used the property to store cars for his towing business.

The Supreme Court likely will issue an opinion next year.

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