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Steve Streck

Steve Streck
sstreck@axley.com
608.283.6721

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No Taking, No Compensation

May 18, 2015

Here is another decision reinforcing the concept that the DOT has to take something away from you before you are entitled to just compensation, and if something is, in fact, taken, the alleged loss has to be connected to what was taken. Our prior post here discussing the 118th Street Kenosha, LLC, v. Wisconsin Dept. of Trans. supports this proposition in a case involving lost highway access by a business.

The landowner in this recent Wisconsin Court of Appeals decision, Anthony Mullenberg, owned a home on the St. Croix River. To reach the property, the Plaintiff permissively used the neighbor’s driveway to travel to and from the highway to an easement which led to his property. The DOT acquired the property on which the drive was located, removed it for a highway and bridge project, and built a new path leading from the highway to the easement, allowing Mullenberg to travel on a new easement from the highway to his property.

In the before condition, Mullenberg was at the mercy of the owners of the driveway (two separate lots) to give him permission to use the driveway to get to his easement. Only the driveway owners had a DOT license for use of the driveway—Mullenberg did not. In addition, the new path, which included most of the original easement, was comparable in all material respects to the original access.

According to the Wisconsin Court of Appeals, these facts are undisputed. The trial court, exercising its discretionary authority under Mnuk v. Harmony Homes, Inc., 2010 WI App 102, 329 Wis. 2d 182, 790 N.W.2d 514, modified the original easement to include the new trail and terminated the portion of the original easement the new trail replaced. The court ordered the modification to “permit the purpose of the easement to be accomplished.”

So what is Mullenberg’s complaint? He has lost nothing, and has gained a permanent, legal access to his property from the highway. The court of appeals’ decision gives us a clue. The court of appeals held that:

  1. The trial court had the authority to modify the easement based on impossibility under these circumstances;
  2. Mullenberg’s argument that the DOT, as owner of the servient estate, created the impossibility by altering the original easement, was not adequately developed (the trial court held the impossibility was caused by removal of the driveway—which Plaintiff conceded the DOT had the power to do—not by altering the original easement); and
  3. The trial court did not erroneously exercise its discretion in the manner in which it modified the original easement.

The trial court also held Mullenberg was not entitled to damages based on the modification of the easement. Mullenberg claimed on appeal the trial court should never have reached this issue, and there was no evidence upon which the trial court could have made this determination. The court of appeals disagreed on both counts.

So what is this case really about? I suspect the fact that the DOT project involves replacing a new bridge to cross the St. Croix, and building that bridge much closer to the Plaintiff’s residence than the old bridge, had something to do with the commencement of this action. Here is a 2013 article discussing the real issue. But under Wisconsin law, a property owner is only entitled to just compensation if their property, or a portion thereof, is taken for the project. In this case, Mullenberg owns nothing that was taken by the DOT other than the portion of the easement that was modified.

Mullenberg is left to argue he is entitled to just compensation for the proximity of the new bridge to his waterfront property and the noise and visual encumbrance such a project causes. I understand he has commenced an inverse condemnation action in St. Croix County to recover damages for the noise and the visual encumbrance. To recover, he will have to make  a new law in Wisconsin, because normally this is not compensable.

Compensable Taking, DOT, Highway

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