799 N.W.2d 487
Wis. Ct. App.2011Background
- Wallers' property partially condemned by ATC for a high-voltage line, leaving a remnant depending on the taking; wall-to-wall appraisal indicated substantial diminution and potential remnant value problems.
- Wallers asserted the remnant would be an uneconomic remnant under Wis. Stat. § 32.06(3m), triggering a concurrent remnant acquisition or condemnation.
- Circuit court initially dismissed the uneconomic remnant claim in the § 32.06(5) action, treating it as improper before a just compensation determination.
- Waller I held a property owner may contest condemnation on uneconomic remnant grounds and that determination must precede compensation, not be absorbed into the compensation phase.
- On remand, Wallers sought to introduce evidence to prove uneconomic remnant, but the circuit court scheduled no § 32.06(5) hearing until after a jury verdict on just compensation and ultimately denied the remnant hearing.
- The Wisconsin Supreme Court reversed, holding that the § 32.06(5) uneconomic remnant determination must occur before just compensation and remand for a § 32.06(5) hearing; if remnant found, the jury verdict on compensation is vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When must the uneconomic remnant be determined? | Wallers: § 32.06(5) priority requires remnant determination before compensation. | ATC: remnant issue can be decided after or concurrently with compensation. | Determination must precede compensation. |
| Is an uneconomic remnant claim proper in a § 32.06(5) proceeding? | Wallers: yes, it arises under § 32.06(3m) and must be resolved in § 32.06(5). | ATC: requires separate procedural path; cannot delay compensation. | Yes, proper in § 32.06(5) action and preempts compensation in sequencing. |
| Does delaying the uneconomic remnant hearing until after the just compensation verdict violate § 32.06(5)? | Wallers: court must not postpone remnant inquiry. | ATC: efficiency and economy favor waiting for compensation result. | Delay improper; remnant hearing must occur before/independently of compensation. |
Key Cases Cited
- Waller v. American Transmission Co., LLC (Waller I), 322 Wis. 2d 255, 776 N.W.2d 612 (Wis. App. 2009) (uneconomic remnant claim permitted before compensation; precedence over compensation issues)
- Arrowhead Farms, Inc. v. Dodge County, 21 Wis. 2d 647, 124 N.W.2d 631 (1963) (procedural issues resolve before calculating compensation)
- Rademann v. DOT, 252 Wis. 2d 191, 642 N.W.2d 600 (Wis. Ct. App. 2002) (procedural sequencing in eminent domain proceedings)