976 N.W.2d 492
Wis.2022Background
- Waukesha County rebuilt and relocated County Trunk Highway TT (Waukesha West Bypass). The project affected the rear of Gregory Backus’s residential lot.
- An existing permanent subdivision easement (HHS Easement) already ran ~25 feet into Backus’s backyard; in 2016 the County also acquired a separate temporary limited easement (TLE) of 0.032 acres within that same area for construction activities.
- The TLE authorized construction-related rights (ingress/egress, grading, soil placement/removal, vegetation removal/planting) and terminated at project completion.
- Backus claimed compensation under Wis. Stat. § 32.09(6g) for severance damages measured by the before-and-after fair market value decline (he presented a drop from $308,000 to $217,300), plus $1,705 rental value.
- The County conceded the rental value but argued § 32.09(6g) does not apply to TLEs (it would capture effects of the entire project, not the temporary easement). The circuit court denied summary judgment; the court of appeals certified the question to the Wisconsin Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wis. Stat. § 32.09(6g) applies to temporary limited easements (TLEs) | Backus: § 32.09(6g) applies to any taking of an easement; TLE is an easement and statute governs just compensation. | County/DOT: § 32.09(6g) is ill-suited to temporary takings; TLEs should be valued under constitutional/common-law principles (rental value, other measures). | The Court held § 32.09(6g) does not apply to TLEs; statute is incompatible with before-and-after valuation for temporary easements. |
| Whether the § 32.09(6g) before-and-after FMV method can capture TLE value | Backus: a properly applied before-and-after valuation (date of evaluation = date of acquisition) can reflect diminution caused by the TLE. | County/DOT: because TLEs expire upon completion and § 32.09(6g) requires assuming completion, the before-and-after comparison will not capture the TLE’s effect and instead measures the public improvement’s overall impact. | The Court agreed with County/DOT: the before-and-after approach logically cannot measure a temporary interest that expires with project completion; valuation must proceed under constitutional/common-law measures (e.g., rental value, other applicable damages). |
Key Cases Cited
- 118th St. Kenosha, LLC v. Wis. Dep't of Transp., 359 Wis. 2d 30 (2014 WI 125) (addressed valuation issues for a TLE and left open whether § 32.09(6g) applies to TLEs; held project, not the easement, caused diminution there)
- Garza v. Am. Transm. Co., 374 Wis. 2d 555 (2017 WI 35) (defines an easement as a right to use another’s land)
- Brenner v. New Richmond Reg'l Airport Comm'n, 343 Wis. 2d 320 (2012 WI 98) (discusses severance damages and valuation principles)
- Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021) (Supreme Court takings precedent on right to exclude and physical appropriations)
- United States v. Miller, 317 U.S. 369 (1943) (describes severance damages as value relations between part taken and entire tract)