959 N.W.2d 317
Wis.2021Background
- United America operated a gas station/convenience store abutting Highway 51 at Northstar Road; direct, convenient access from Highway 51 was critical to its business.
- DOT completed a highway project converting Northstar Road to a bridge over Highway 51 and declined United America’s requests for on/off ramps, substantially increasing travel circuits to the property.
- The change in grade caused a large drop in customers, revenue, and the market value of United America’s property.
- United America filed an administrative claim under Wis. Stat. § 32.18 (claims for "any damages to said lands occasioned by such change of grade"); DOT denied the claim and United America sued.
- The circuit court awarded damages based on United America’s appraisal; the court of appeals reversed, holding § 32.18 compensates only structural/physical damage to land. The Wisconsin Supreme Court affirmed the court of appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a diminution in property value caused by a DOT change of grade qualifies as "any damages to the lands" under Wis. Stat. § 32.18 | § 32.18's "any damages" is broad; "lands" includes rights and interests (including market value); the statute is remedial and should be liberally read to allow monetary recovery for lost value | "Lands" is narrower than "property" and implies physical/structural injury; common-law rule bars consequential damages from police-power actions unless statute clearly abrogates it; related statutes (§ 32.09) use "property" when compensating diminution in value, showing a deliberate legislative distinction | Affirmed: diminution in market value is not compensable under § 32.18; "damages to the lands" excludes the claimed diminution in value |
Key Cases Cited
- Voigt v. Milwaukee Cnty., 158 Wis. 666 (recognizing diminution in market value as compensable "damages to property")
- Jantz v. DOT, 63 Wis. 2d 404 (identifying § 32.18 as the avenue for non-taking change-of-grade claims)
- Nick v. State Highway Comm'n, 13 Wis. 2d 511 (explaining common-law rule barring recovery for consequential injuries from police-power exercises)
- State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 271 Wis. 2d 633 (statutory interpretation framework)
- Strenke v. Hogner, 279 Wis. 2d 52 (use of prior judicial meaning in statutory interpretation)
- 118th Street Kenosha, LLC v. DOT, 359 Wis. 2d 30 (noting § 32.18 as possible remedy for grade-change diminution in value)
- Klingseisen v. Wisconsin State Highway Comm'n, 22 Wis. 2d 364 (distinguishing § 32.18 claims from eminent-domain/just-compensation rules)