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Justin Lessner

Justin Lessner
jlessner@axley.com
608.283.6761

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The DOT Made What Argument???

July 27, 2015

We have seen a lot of arguments that have left us scratching our heads, but one made by the DOT in a recent inverse condemnation case certainly ranks near the top of the list.

In Somers USA, LLC v. Wisconsin Dep’t of Transportation, 2015 WI App 33, the DOT refused to compensate a landowner for taking its land for a highway project based on a scrivener’s error. The landowner recorded a survey known as a CSM stating it was “dedicating” some of its land to a future highway project, rather than “reserving” the land.  The difference in terminology is significant in the context of eminent domain law: a dedication requires a landowner’s donative intent to convey an interest in land for public use, whereas a reservation does not involve a conveyance but restricts use of the land for the purpose stated in the reservation.

Due to this mistake, the DOT argued it could take the landowner’s property without any compensation.  Obviously, the landowner was not pleased with the DOT’s strategy and filed an inverse condemnation lawsuit.

The strange part about the decision is the DOT agreed the landowner simply made a mistake in the terminology it used on the CSM.  Nevertheless, the DOT plowed forward with its argument that no compensation was owed to the landowner because it relied on the CSM.

The Court of Appeals was clearly not impressed with the arguments raised by the DOT calling them “absurd.”  Among other things, the Court found the “dedication” was not effective because the donor must have the intent to dedicate, and it was undisputed that such an intent was lacking.

So what was the DOT thinking in making these arguments? It is hard to know for sure.  However, the value of the land to be taken was substantial (approximately $500,000) and the DOT may have thought there was little economic downside to raising these arguments in hopes of obtaining the land for free.  The DOT may also have been motivated by the chance to develop favorable case law in the event the same or a similar scrivener’s error is made by a landowner in the future.

Compensable Taking, DOT, Highway

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