990 N.W.2d 267
Wis. Ct. App.2023Background
- Sojenhomer LLC owns a parcel at the junction of County Highway G and State Highway 42 in Egg Harbor that houses a brewpub; pedestrians lacked a continuous safe walking area adjacent to the road.
- The Village planned a Highway G reconstruction that included a sidewalk on the east side, curb/gutter, storm sewer, parking changes, and decorative street lighting; plans showed part of the sidewalk and a light pole would occupy Sojenhomer’s land.
- The Village made purchase offers (including a jurisdictional offer) for a small fee parcel and temporary easement; Sojenhomer rejected and filed suit contesting the condemnation under Wis. Stat. § 32.015 (which bars condemnation to establish or extend a pedestrian way).
- The circuit court held that a sidewalk is not a “pedestrian way” (to avoid statutory surplusage) and granted summary judgment for the Village; the case proceeded to the Court of Appeals.
- The Court of Appeals reversed: it construed “pedestrian way” under Wis. Stat. § 346.02(8)(a) to include sidewalks and found undisputed evidence (engineer testimony and plans) that the Village used condemnation to acquire land to establish a sidewalk, violating §§ 32.015 and 61.34(3)(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a “sidewalk” is a “pedestrian way” under Wis. Stat. § 346.02(8)(a) (and thus within the § 32.015 / § 61.34(3)(b) prohibition) | Sidewalks are walks designated for pedestrian travel and fall within the broad statutory definition of “pedestrian way.” | § 346.02(8) uses both terms; they must be distinct to avoid surplusage, so a sidewalk is not a “pedestrian way.” | A sidewalk is a “pedestrian way.” The statute’s language is broad and includes sidewalks; using both terms in § 346.02(8) does not create impermissible surplusage because each term has a textual function. |
| Whether the Village used condemnation to acquire Sojenhomer’s property for the purpose of establishing a pedestrian way (prohibited) | Engineer testimony and project plans show the subject parcel was condemned so a sidewalk could be built; if not for the sidewalk the parcel would not have been taken. | The property acquisition was part of a larger highway reconstruction with multiple lawful purposes (drainage, parking, lighting, etc.). | The undisputed record shows the Village used condemnation to acquire the parcel to establish a sidewalk (a pedestrian way), so the condemnation violated Wis. Stat. §§ 32.015 and 61.34(3)(b); appellate court reversed summary judgment for the Village. |
Key Cases Cited
- Quick Charge Kiosk LLC v. Kaul, 392 Wis. 2d 35, 944 N.W.2d 598 (2020) (summary judgment review de novo and methodology).
- Standard Theatres v. DOT, 118 Wis. 2d 730, 349 N.W.2d 661 (1984) (condemnor’s power is extraordinary and must be strictly construed; liberal construction of owner-favoring provisions).
- State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 271 Wis. 2d 633, 681 N.W.2d 110 (2004) (statutory interpretation principles; plain-meaning rule and avoiding surplusage).
- Davis v. City of Elkhorn, 132 Wis. 2d 394, 393 N.W.2d 95 (1986) (default judgment requires a complaint that states a claim upon which relief can be granted).
- State v. Derenne, 102 Wis. 2d 38, 306 N.W.2d 12 (1981) (permissible statutory overlap does not render terms meaningless).
- Spiegelberg v. State, 291 Wis. 2d 601, 717 N.W.2d 641 (2006) (discussion of strict construction in eminent‑domain context).