DeBruin v. Green County

• Decision Date: 04 May 1976
• Docket Number: No. 106,106
• Parties: William DeBRUIN et al., Appellants, v. COUNTY OF GREEN, Respondent. (1974).
• Court: Wisconsin Supreme Court

Page 167

241 N.W.2d 167

72 Wis.2d 464

William DeBRUIN et al., Appellants, v. COUNTY OF GREEN, Respondent.

No. 106 (1974).

Supreme Court of Wisconsin.

Argued April 12, 1976.

Decided May 4, 1976.

John H. Andrews, Janesville (argued), for appellants; Wickhem, Consigny, Sedor, Andrews & Hemming, S.C., Janesville, on briefs.

Benjamin Southwick, Richland Center (argued), for respondent; Joseph D. Viney, Green County Corp. Counsel, Monroe, on briefs.

HANLEY, Justice.

The sole issue presented on this appeal is as follows: In determining the value after condemnation of a parcel which has been diminished by a partial taking through eminent domain proceedings, may the temporary inconvenience caused by public improvements work be a factor on such value?

In Wisconsin Jury Instruction Civil 8125, the following rule is stated:

'Damages resulting from the inconvenience occasioned by the construction work does not constitute a compensible item in the sense that you will separately find that damage, but it is an item to be taken into consideration by you in determining the value of the property after the taking.'

This guideline apparently grew from the decision of Carazalla v. State (1955), 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276, and the tacit reaffirmation of that aspect of the case in Richards v. State (1961), 14 Wis.2d 597, 111 N.W.2d 505.

In Carazalla, a highway which bordered the landowner's property was relocated so as to divide the parcel into three units. The trial court, over objection, allowed testimony and evidence on the inconvenience suffered by the landowner during construction of such highway. The relevancy of such evidence was justified in language embodied in the above jury instruction. Both the trial court and this court on appeal held that view that the fair market value of the property after an eminent domain taking would be diminished in the eyes of prospective purchasers by the potential temporary inconvenience generated by the construction of the improvement necessitating the condemnation. Carazalla, supra, 269 Wis. at 607, 70 N.W.2d 208. Carazalla and Richards relate to the statutory law applicable before the effective date of sec. 32.09(6), Stats.

The measure of just compensation pertinent to the facts here is contained in sec. 32.09(6), Stats.:

'In the case of a partial taking, 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 following items of loss or damage to the property where shown to exist:

'. . .' (emphasis added)

Certain items of damage are enumerated. They include:

'(b) Deprivation or restriction of existing right of access to highway from abutting land, provided that nothing herein shall operate to restrict the power of the state or any of its subdivisions or any municipality to deprive or restrict such access without compensation under any duly authorized exercise of the police power.'

The eminent domain statute involved in Carazalla was not so precise and the court there apparently relied on the case law standard of the market value difference before and after the taking. See Id. at 599, 70 N.W.2d 208, citing Jeffery v. Osborne (1911), 145 Wis. 351, 364, 129 N.W. 931 and Nowaczyk v. Marathon County (1931), 205 Wis. 536, 539, 238 N.W. 383. It is obvious that the after-taking value there was measured without an assumed status of the parcels as if the public improvement had been completed, which is the measure employed by current statute. We think the trial court was correct in its rejection of the Carazalla rule.

There is, of course, the additional consideration of whether the current statute fails to comply with the constitutional minimum of 'just compensation' under art. I, sec. 13 of the Wisconsin Constitution. See Luber v. Milwaukee County (1970), 47 Wis.2d 271, 275, 177 N.W.2d 380. We hold that the constitutional standard is also met.

In its memorandum decision, the trial court identified the fallacious procedure sponsored by Carazalla. Implicit in that decision is the belief that a lump sum award for inconvenience was unavailable but that the same evidence on the subject would be admissible because it would perhaps influence a purchaser's evaluation of a fair price for the same parcel. As the appraisal reports for the DeBruins demonstrated, the 'influence' of the evidence results in discrete and identifiable portions of the market value that correlate to a lump sum evaluation of inconvenience damage. The same award acknowledged as directly forbidden in Carazalla appears anyway in the indirect manner approved by the case. A competent appraiser using the income approach, for example, will certainly assign a monetary value to the loss of income and increased expense generated by the 'inconvenience' factors in arriving at a proposed market value.

It is clear that the procedure approved in Carazalla would not have been allowed if the court had recognized that the same result would be reached under either approach. In that case the trial court further stated:

'It is an inconvenience that must be contemplated at the time the person buys, and it is within the purview and within the though and mind of a person who buys at the time he buys immediately after the taking.'

In Carazalla and in the instant case there was no evidence of any prospective purchasers at or immediately after the taking. A more compelling reason for determining that the current statute does not deny just compensation is that the source of the inconvenience is in...