High court rules ATC must pay to take property in transmission project

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A five-year lawsuit has ended with Scott and Lynnea Waller receiving hundreds of thousands of dollars after the Wisconsin Supreme Court ruled a utility company could not erect power lines on their former land without taking the whole property.

But that money, along with any other winnings from similar cases, probably will come out of the pockets of ratepayers, according to a dissenting opinion attributed to Justice Ann Walsh Bradley and released Tuesday.

“The majority,” according to the opinion, “has transformed what should be a case of minor statewide impact involving only a small amount of money into a case with significant ramifications and costly consequences for ratepayers and taxpayers who end up paying the bills.”

But Hugh Braun, who represented the Wallers in the case of Waller v. American Transmission Company, LLC, said the circumstances of the case were uncommon enough that its outcome is unlikely to be repeated soon.

“I think it’s unusual that an acquisition would result in this kind of damage to a property,” he said.

Representatives of both parties in the case agreed the court’s decision set legal precedent, only disagreeing on whether that precedent properly or improperly interpreted state statutes. At issue was whether the law forced Waukesha-based American Transmission Co. to buy all of the Waller’s former 1.5-acre property in Walworth County when the company acquired easements on their land to install high-voltage transmission lines.

The Wallers said the lines, which went along two sides of the triangular lot, “substantially diminished the desirability, practicality and value” of their property. In support of their contention, they cited an appraisal commissioned by American Transmission that found the property was worth $130,000 and concluded “the residential improvements are rendered totally obsolete.”

Lynnea Waller said Tuesday the installation affected her and her husband’s quality of life in many ways.

“We couldn’t get a lot of our TV reception and couldn’t use our cellphones,” she said. “We lost a lot of the radio stations we had been getting. They cut down all these trees, and there was a highway there. And they were the buffer for the noise.”

American Transmission eventually offered to buy the property for $132,000. But the Wallers contended they were entitled to moving expenses.

The majority opinion in the case, attributed to Justice David Prosser, affirmed a circuit court’s decision that American Transmission’s project had rendered the Wallers’ former property an “uneconomic remnant” that must be taken along with other land acquired through eminent domain. In reaching that decision, Prosser relied on a statute that gives circuit courts jurisdiction over “any issue other than the amount of just compensation.”

Prosser wrote those other issues extended to questions of uneconomic remnants. Justice Bradley, though, wrote that such questions are intrinsically tied to the value of a property and should be heard by county condemnation committees, which rule on compensation for landowners in return for a condemnation.

Besides affirming the compensation for the Wallers’ home and about $26,000 in moving costs, the Supreme Court’s decision awarded them $211,261.74 for litigation expenses. All of that, according to Bradley’s dissenting opinion, and the precedent that allows such costs to be recouped in similar cases, will result in higher costs for taxpayers.

But Lynnea Waller said the award actually was not enough. She said it did not compensate her and her husband for the time off they had to take off from work to fight the case in court.

Nor was it enough to pay for the improvements needed to the home they eventually moved to in Walworth County, Waller said.

“We bought the cheapest house that there was,” she said. “There was no well, no septic, no gutters. It was a total fixer-upper.”

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