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Steve Streck

Steve Streck
sstreck@axley.com
608.283.6721

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When Does a Condemning Authority Have to Condemn?

December 5, 2013

Chapter 32 of the Wisconsin Statutes grants the power of condemnation to governmental subdivisions, public utilities, school districts, a number of commissions, and a host of other entities.  It specifies precisely who may condemn, and specifies the purposes for which each condemning entity may exercise its power.  Chapter 32 has within its 29 pages virtually all of the rules that relate to the procedural and substantive aspects of eminent domain in Wisconsin.   But one thing it apparently does not do, or at least does not do very clearly, is specify when a condemning authority must condemn for certain land rights rather than simply purchase them like everyone else does.  A case now pending in Portage County Circuit Court may answer that question.

In Chojnacki v. Wisconsin Public Service Corporation, Ricky Chojnacki filed a complaint alleging that the defendant utility should have followed the condemnation procedures in Chapter 32 when it negotiated for, and purchased, a gas pipeline easement from him in early 2013.  He received a letter from WPSC “about purchasing the Easement over plaintiff s property.”  The letter is not attached to the complaint, but it apparently stated that WPSC needed the new easement because its existing pipeline had to be relocated due to a road project.

The complaint alleges that the plaintiff “was not adequately informed in the transaction and did not understand the proposed pipeline route or the full scope of the property rights encompassed by the Easement,” and that he “did not think that he had a choice in selling the easement.”  It will be interesting to see if these facts make any difference in the court’s ultimate determination of the issue.  It would seem a bit odd to have the issue turn on the subjective beliefs and knowledge of the landowner, but one would think the court could find precedent supporting that approach if it chooses to.

In his prayer for relief Mr. Chojnacki asks the court to refer the matter to the County Condemnation Commission so he can seek additional compensation for the alleged taking.  He also asks the court to declare the easement void.  If the relief sought is actually granted, it is going to change the way public utilities do business, making it significantly more expensive to acquire land rights in circumstances like this where they have to relocate their facilities.

WPSC recently filed a motion for summary judgment.  It is being briefed now.  The motion will be heard, and perhaps decided, on December 30, 2013.  More to come on this one.

Chapter 32, Statutory Issues, Voluntary Acquisitions

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