Property — eminent domain

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Wisconsin Court of Appeals

Civil

Property — eminent domain — relocation costs

This appeal involves a claim for relocation payments by Hack-A-Way Forest Products, Inc., arising out of an eminent domain proceeding. Hack-A-Way leased property from Michael and Tammy Wilm, who also owned Hack-A-Way. Prior to the eminent domain, the Wilms owned two contiguous parcels along what was then U.S. Highway 12 near Baraboo. The two parcels are identified throughout by their tax identification numbers, 0642 and 0638. Prior to the taking, parcel 0642 fronted on Highway 12 along the parcel’s east boundary and parcel 0638 was directly west of parcel 0642.

The eminent domain taking was part of a project of the Wisconsin Department of Transportation to expand and relocate part of Highway 12. As a result of the taking, a part of parcel 0642 was taken and Highway 12 was relocated to cross through parcel 0642, somewhat west of its prior location. No part of parcel 0638 was involved in the taking. In a prior action, the Wilms and Hack-A-Way settled with the DOT on all issues related to the eminent domain, while reserving the right to certain relocation claims.

Both Hack-A-Way and the Wilms submitted relocation claims to DOT and were denied.

Hack-A-Way and the Wilms then jointly filed this action in circuit court against the DOT. The joint complaint alleged that both the Wilms and Hack-A-Way “conducted business on the real property” taken by the DOT and that both the Wilms and Hack-A-Way were “displaced persons pursuant to Wis. Stat. § 32.19(2)(g)” (2011-12).

The DOT filed a motion for summary judgment against both Hack-A-Way and the Wilms. The circuit court granted summary judgment against the Wilms, but denied summary judgment against Hack-A-Way. The court determined that the Wilms were not “owner displaced persons” under the statute, but that Hack-A-Way was a displaced person and that material issues of fact remained for trial.

The DOT moved for reconsideration of the denial of summary judgment against Hack-A-Way. The circuit court granted the DOT’s motion for reconsideration, and ordered both the Wilms and Hack-A-Way’s claims dismissed. The court decided that it had made an error of law in the prior decision denying summary judgment against Hack-A-Way and that Hack-A-Way was not a “displaced person” under the relocation statute. Hack-A-Way appeals the dismissal of its complaint. Affirmed. Not recommended for publication in the official reports.

2012AP1872 Hack-A-Way Forest Products Inc., et al. v. State of Wisconsin Department of Transportation

Dist IV, Sauk County, Evenson, J., Sherman, J.

Attorneys: For Appellant: Pitz, Ian A. J., Madison; For Respondent: Potts, Abigail, Madison; Beachy, Sara K., Madison