When Must the Condemnor Take the Whole Parcel, Even Though it Wants to Take Only a Part of It?

Word reaches us from Wisconsin that that state’s Supreme Court has handed down an opinion explaining the circumstances under which a condemnor must take the entire parcel even though it only seeks to take a part of it (an easement in this case) because a taking of only the part would leave the owner with a piece of remaining land that is in an uneconomic condition, and the local statute provides that the cost of that should fall on the condemnor, not the owner. This is the third appeal in this case, and as you can imagine, the facts are pretty complex. So we won’t go through the whole megillah in anything resembling detail. But the court’s bottom line is clear: the condemnor — in this case a public utility seeking to take an easement — must take the entire larger parcel and pay for it when the owner so wishes and in the after condition the property, if subjected only to a partial taking, would wind up in an uneconomic condition.

The case is Waller v. American Transmission Co., opinion filed on July 16, 2013, consolidated cases No. 2012AP805 & 2012AP840. To get the opinion, click here http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=99492

Bottom line: on the condemnor’s initial offer of $49,000 (upped later by degrees to $99,500) the jury awarded $94,000 for the taking of the easements, to which the court added $47,509.72 to allow for the acquisition of the entire larger parcel, plus another $211,261.74 in litigation expenses.

Two Justices dissented, devoting a good part of their arguments to lamentations that the majority’s holding would be expensive. Check it out.

We note that this is not an easy opinion to read, and is one that could have benefitted greatly by the court’s use of tables. But life being what it is, the court didn’t do that, so the poor reader of the opinion has to pore through it laboriously to make out what’s what, which in the case of an opinion that  unravels three — count ’em, three — appeals in a litigation that goes back to 2007, that isn’t easy. But if you are interested in this rarely litigated aspect of relocation assistance law, we suggest you go for it.

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