833 N.W.2d 764
Wis.2013Background
- ATC sought two 45-foot transmission-line easements over a 1.5-acre triangular residential parcel owned by Scott and Lynnea Waller; the easements would cover roughly half the lot and place high-voltage lines near the house.
- ATC's appraiser valued the property before the taking at ~$130,000 and after at $55,500; the Wallers' appraisers placed after-taking value much lower (~$15,500). ATC made a jurisdictional offer of $99,500 for the easements (alternative offer of $132,000 for the whole parcel conditioned on waiver of relocation benefits); the Wallers rejected the offer.
- The Wallers filed a § 32.06(5) right-to-take action claiming the partial taking would (and did) leave an "uneconomic remnant" under § 32.06(3m); ATC filed condemnation/valuation proceedings simultaneously and obtained immediate possession.
- After multiple proceedings and appeals (including two court of appeals decisions), the circuit court ultimately found the remaining property was an uneconomic remnant, ordered ATC to acquire the whole parcel, awarded the Wallers relocation benefits, and awarded substantial litigation expenses to the Wallers.
- The Wisconsin Supreme Court affirmed: (1) § 32.06(5) is the exclusive vehicle to raise an uneconomic remnant claim when the jurisdictional offer fails to include the remnant; (2) the Wallers were left with an uneconomic remnant; (3) they were entitled to litigation expenses under § 32.28 and (4) they qualified as "displaced persons" entitled to relocation benefits under § 32.19.
Issues
| Issue | Plaintiff's Argument (Wallers) | Defendant's Argument (ATC) | Held |
|---|---|---|---|
| When must an uneconomic remnant claim be raised? | Under § 32.06(5) right-to-take when jurisdictional offer omits a remnant offer | Should be resolved in valuation/condemnation proceedings (§ 32.06(7)) or inverse condemnation | Held: § 32.06(5) is the proper and exclusive vehicle when the jurisdictional offer fails to include an offer to acquire the remnant; right-to-take and valuation may proceed concurrently |
| Did the taking leave an uneconomic remnant? | Easements covered >half the lot, rendered residential improvements obsolete and left parcel with substantially impaired economic viability | Remaining parcel was habitable and retained value; not an uneconomic remnant | Held: Circuit court findings not clearly erroneous—parcel was an uneconomic remnant under § 32.06(3m) |
| Are litigation expenses recoverable? | Yes—if court determines condemnor lacks right to condemn only the portion offered (§ 32.28(3)(b)) | No—ATC had the right to condemn the easements and negotiated in good faith; statutory text doesn’t support award here | Held: Wallers prevailed on right-to-take; litigation expenses awarded under § 32.28(3)(b) are proper |
| Are Wallers "displaced persons" entitled to relocation benefits? | Yes—the move occurred "as a direct result" of ATC's jurisdictional offer and acquisition | No—the move was voluntary and they remained habitable on the property | Held: Factual findings that the Wallers moved as a direct result of the jurisdictional offer are not clearly erroneous; they qualify as displaced persons under § 32.19(2)(e)1.a. |
Key Cases Cited
- Waller v. American Transmission Co., LLC, 322 Wis. 2d 255 (Ct. App. 2009) (Waller I) (held an owner may raise uneconomic remnant issue under § 32.06(5))
- Waller v. American Transmission Co., LLC, 334 Wis. 2d 740 (Ct. App. 2011) (Waller II) (directed circuit court to hold evidentiary hearing to determine whether remnant is of "substantially impaired economic viability")
- Warehouse II, LLC v. DOT, 291 Wis. 2d 80 (Wis. 2006) (construing entitlement to litigation expenses and liberal construction of takings remedies in favor of landowner)
- Falkner v. Northern States Power Co., 75 Wis. 2d 116 (Wis. 1977) (describing independent right-to-take and condemnation proceedings and that they may proceed simultaneously)
- Arrowhead Farms, Inc. v. Dodge County, 21 Wis. 2d 647 (Wis. 1963) (procedural issues, including scope of taking, should be resolved before compensation)
- Standard Theatres, Inc. v. Wisconsin DOT, 118 Wis. 2d 730 (Wis. 1984) (awards of litigation-related fees must be reasonable and necessary)