Eminent domain, road with ‘lengthy, complex litigation history’ at center of Supreme Court lawsuit

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A Dane County road with a “lengthy and relatively complex litigation history” is at the center of an eminent-domain case in front of the Wisconsin Supreme Court.

The high court heard oral arguments on Monday in a lawsuit involving the agricultural company DSG Evergreen and the town of Perry, which is southwest of Madison. DSG sued the town over the construction of a field road. The town used eminent domain to condemn about 12 acres of DSG’s land to build a park. DSG received both $312,500 in compensation for the land and a promise that the town would build a new field road equivalent to the old one. The new road was meant to ensure DSG could still access the rest of its 80 acres from the county highway.

During a trial held to determine compensation, an engineering report found the new road would be narrower, steeper and have less visibility at the intersection than the old road. However, DSG didn’t raise any objections at the compensation trial. Only after the town had told DSG, in 2009, that the construction work was complete did DSG complain about the road’s steeper slope, narrowness, turn-around limitations and drainage issues. DSG sued in 2015, but the court dismissed its claim, finding that the road didn’t meet construction standards. An appeals court upheld the decision in 2018.

Matthew Fleming, shareholder at Murphy Desmond in Madison, is representing DSG in the state Supreme Court case. He said company officials were aware of the construction discrepancies before trial but didn’t think they had the facts to back up their contentions.

“We would effectively accept Perry’s promise that we’d get a road built to the same standards as our old field road,” said Fleming.

Judge Rebecca Dallet asked if the company had been under an obligation to raise its concerns in the proceedings.

“Every effort you make at the front end to challenge and litigate costs the property owner money, and the property owner may never get that money back,” said Fleming.

Fleming said the town owned the land surrounding the easement and could have taken steps to better match the slope and width of the old road.

The town, meanwhile, said it fulfilled its promise and built a road up to standards. Mark Steichen, attorney at Boardman Clark in Madison, argued DSG knew during the compensation trial that the new field road wasn’t going to be equivalent to the old road.

“If, at the time, DSG really had thought it meant the same physical characteristics, the engineering report wouldn’t have had to address the driveway standards or the county ordinance standards at all,” said Steichen.

DSG is asking the high court to require the town to meet the specifications of its old field road. The road, which connects DSG’s property to County Highway Z, has been the subject of litigation before.