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Property; Eminent domain; uneconomic remnant

Property; Eminent domain; uneconomic remnant

Where easements taken pursuant to eminent domain rendered property unusable, the owners are entitled to full compensation.

“First, Wis. Stat. § 32.06(5), the ‘right-to-take’ provision, sets out the proper and exclusive way for a property owner to raise a claim that the owner will be left with an uneconomic remnant after a partial taking by the condemnor. An uneconomic remnant claim should be brought under § 32.06(5) because the condemnor has failed to include an offer to acquire any uneconomic remnant in the condemnor’s jurisdictional offer. The inclusion of an offer to acquire an uneconomic remnant acknowledges the existence of the uneconomic remnant. The exclusion of such an offer indicates that the condemnor disputes the existence of an uneconomic remnant. A right-to-take action must be decided promptly by the court and shall not prevent the condemnor from filing a simultaneous valuation petition, proceeding thereon, and taking any property interest whose condemnation is not being directly contested by the owner. A right-to-take action on an uneconomic remnant claim is designed to protect an owner’s right to fair compensation to avoid economic hardship, not to paralyze public interest takings under eminent domain.”

“Second, the Wallers’ property, after ATC took two easements for transmission lines, is an uneconomic remnant because it is of such size, shape, and condition as to be of substantially impaired economic viability as either a residential or an industrial parcel. The taking of the two easements drastically reduced the portion of the Wallers’ property not subject to a servitude. The easements themselves not only restricted the Wallers’ activity in the easement area but also substantially diminished the desirability, practicality, and value of the Wallers’ property for either a residential or industrial user.”

“Third, the Wallers prevailed on their uneconomic remnant claim brought under Wis. Stat. § 32.06(5)——the right-to-take statute——and, therefore, were entitled to litigation expenses under Wis. Stat. § 32.28.”

“Finally, the Wallers were displaced persons under Wis. Stat. § 32.19(2)(e)1.a. because they moved ‘as a direct result’ of ATC’s jurisdictional offer, and the circuit court’s findings of fact on this issue are not clearly erroneous.”


2012AP805 & 2012AP840 Waller v. American Transmission Co., LLC

Prosser, J.

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