Backus v. Waukesha Cnty., 2020AP307

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtJILL J. KAROFSKY, J.
Citation2022 WI 55
PartiesGregory M. Backus, Plaintiff-Respondent, v. Waukesha County, Defendant-Appellant.
Docket Number2020AP307
Decision Date05 July 2022

2022 WI 55

Gregory M. Backus, Plaintiff-Respondent,

Waukesha County, Defendant-Appellant.

No. 2020AP307

Supreme Court of Wisconsin

July 5, 2022

ORAL ARGUMENT: April 6, 2022


APPEAL from an order of the Circuit Court for Waukesha County, L.C. No. 2018CV1379) Michael O. Bohren, Judge.

For the defendant-appellant, there were briefs filed by Deborah B. Price, principal assistant corporation counsel. There was an oral argument by Deborah B. Price.

For the plaintiff-respondent, there was a brief filed by Erik S. Olsen, Andrew D. Weininger and Eminent Domain Services, LLC, Madison. There was an oral argument by Andrew D. Weininger.

An amicus curiae brief was filed by Scott E. Rosenow and WMC Litigation Center, Madison for Wisconsin Manufacturers and Commerce, Inc.


An amicus curiae brief was filed by Clayton P. Kawski, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general, for the Wisconsin Department of Transportation.



¶1 The court of appeals certifies the following question to us: In light of 118th Street Kenosha, LLC v. DOT, 2014 WI 125, 359 Wis.2d 30, 856 N.W.2d 486, is a temporary limited easement compensable under Wis.Stat. § 32.09(6g) (2019-20)?[1] This question arises from a dispute over


the proper compensation for a temporary limited easement (TLE) that Waukesha County acquired over Gregory Backus's property to construct a highway bypass along the Backus property's rear lot line. Specifically, the County believes it need pay Backus only the rental value of the TLE. Backus disagrees, arguing that under § 32.09(6g) he is entitled to severance damages measured by the difference between the fair market value of the whole property before and after the completion of the project. In answering the certified question, we hold that § 32.09(6g) does not apply to TLEs. Having answered the question, we remand the cause back to the circuit court for further proceedings consistent with our holding.


¶2 The Waukesha West Bypass Project (the Project) reconstructed, relocated, and expanded five miles of County Trunk Highway TT, which abuts the backyard of Backus's residential property. The Project had been in the making for over 50 years. The highway itself was constructed on land already owned by the County, and in 2004 the Heritage Hills Subdivision Plat recorded an easement (HHS Easement) for highway and sidewalk slopes running the length of Backus's property and extending approximately 25 feet into his backyard.[2]

¶3 As part of the Project, in 2016 the County separately acquired a TLE over 0.032 acres of the easternmost portion of


Backus's property, the entirety of which fell within the existing HHS Easement. The TLE stated that it was for the purposes of ingress and egress, operation of machinery, grading or creation of slopes, placement or removal of soil, and to remove or plant vegetation.[3] The County terminated the TLE at the completion of the Project.

¶4 Backus seeks compensation from the County for the TLE, alleging a series of permanent damages to his property that he claims are attributable to the TLE.[4] We limit this opinion to answering the certified question and thus do not reach any issue relating to Backus's specific damages.

¶5 The Waukesha County Condemnation Commission awarded Backus compensation for the TLE, but Backus appealed the amount to the circuit court.[5] At the circuit court, Backus presented a


before-and-after valuation of his property showing its value dropped from $308,000 to $217,300 after the project was completed. He claimed he was owed the difference in value as severance damages under Wis.Stat. § 32.09(6g). He then added a $1,705 rental value for the TLE, for a total demand of $90,700 (rounded) in damages.

¶6 The County moved for summary judgment. For the purposes of the motion, the County stipulated that it owed Backus the $1,705 in rental value. But it argued that the severance damages--measured by the diminution in the fair market value--were not compensable under our 118th Street decision because the Project as a whole caused the diminution in fair market value, not the TLE. The circuit court denied the summary judgment motion, concluding that 118th Street did not foreclose the possibility of severance damages for a TLE, which raised disputed issues of material fact.

¶7 The County obtained leave to file this interlocutory appeal of the denial of its summary judgment motion. The court of appeals then certified to us, and we accepted, the question left open in 118th Street: is a TLE compensable under the valuation methodology in Wis.Stat. § 32.09(6g)?


¶8 The certified question presents a straightforward issue of statutory interpretation that we review de novo. See Bauer v. Wis. Energy Corp., 2022 WI 11, ¶11, 400 Wis.2d 592, 970 N.W.2d 243. There is no dispute that a TLE is compensable; the question before us is whether that compensation is to be


calculated under the method set forth in Wis.Stat. § 32.09(6g). We begin with a brief recap of 118th Street, which teed up the issue in this case. We then explain how the plain language of § 32.09(6g) does not allow for the valuation of temporary easements.

¶9 In 118th Street, the Department of Transportation (DOT) obtained a TLE to build a new driveway to connect a commercial property to a different street after DOT's relocation of 118th Avenue caused the commercial property to lose access to the avenue. 118th Street, 359 Wis.2d 30, ¶11. As a result, the commercial property's fair market value declined and the LLC that owned the commercial property sought compensation for the diminution in value under § 32.09(6g). Id., ¶12. In a footnote, the majority acknowledged that there are at least three reasons why § 32.09(6g) may not apply to TLEs at all: (1) the statute references "easements" and not "temporary limited easements"; (2) the before-and-after valuation creates confusion because it may fail to capture the temporary nature of a TLE; and (3) TLEs terminate upon completion of the project and thus the "after" valuation would leave no avenue for compensation for the TLE no longer in effect. Id., ¶36 n.12. Nonetheless, the opinion assumed without deciding that a TLE was compensable under § 32.09(6g). Id., ¶58. We ultimately concluded that the project as a whole caused the diminution in value, not the TLE used to construct the driveway. Id., ¶61. Now we take the opportunity to more fully analyze whether § 32.09(6g) applies to TLEs.


¶10 We begin with the language of § 32.09(6g), which reads:

In the case of the taking of an easement, the compensation to be paid by the condemnor shall be determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the items of loss or damage to the property enumerated in sub. (6)(a) to (g) where shown to exist.

We interpret this statute by looking to the text's plain meaning, giving the words their "common, ordinary, and accepted meaning." See, e.g., Cree Inc. v. LIRC, 2022 WI 15, ¶16, 400 Wis.2d 827, 970 N.W.2d 837; Wis.Stat. § 990.01(1).

¶11 Section 32.09(6g) concerns easements. In Garza v. Am. Transm. Co., we stated that "an easement grants a right to use another's land." 2017 WI 35, ¶23, 374 Wis.2d 555, 893 N.W.2d 1. The Wisconsin DOT Real Estate Program Manual sets out two categories of easements that can be acquired for eminent domain[6] projects: permanent easements and TLEs. See Wisconsin DOT Real Estate Program Manual (updated Mar. 2020). The manual describes a TLE as "an interest in land that is limited in purpose and time." In the specific context of a taking by eminent domain, the purpose of a TLE is "for construction," and


all TLEs "expire at the completion of the construction project." Id. at

¶12 Section 32.09(6g) establishes that compensation for the "taking of an easement" be measured by "deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement." Although the statute does not label it as such, this before-and-after valuation of the whole property incorporates what is known as "severance damages." Severance damages are defined as "compensation awarded to a landowner for the loss in value of the tract that remains after a partial taking of the land." Damages: severance damages, Black's Law Dictionary 491 (11th ed. 2019); see also Brenner v. New Richmond Reg'l Airport Comm'n, 2012 WI 98, ¶13 n.5, 343 Wis.2d 320, 816 N.W.2d 291; 9 Nichols on Eminent Domain § 14.02[2] (2021) ("In a before and after calculation, severance damages are not separately calculated but are automatically factored into the calculation of the value of the reminder after the taking[.]").[7]

¶13 Facially, § 32.09(6g) does not differentiate between a TLE and a permanent easement, and thus both Backus and the County maintain that the statute applies to all easements-- temporary and permanent alike. That said, we are "not bound by the parties' interpretation of the law or obligated to accept a


party's concession of law." State v. Carter, 2010 WI 77, ¶50, 327 Wis.2d 1, 785 N.W.2d 516. In this case, DOT offered an amicus brief arguing that the statute does not apply to TLEs. DOT contends that TLEs should be compensated according to the Wisconsin Constitution and common law principles.[8]

¶14 We agree with DOT and hold that portions of §...

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