United Am., LLC v. Wis. Dep't of Transp.

• Decision Date: 18 May 2021
• Docket Number: No. 2018AP2383,2018AP2383
• Citation: 959 N.W.2d 317,2021 WI 44,397 Wis.2d 42
• Parties: UNITED AMERICA, LLC, Plaintiff-Respondent-Petitioner, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.
• Court: Wisconsin Supreme Court

397 Wis.2d 42

959 N.W.2d 317

2021 WI 44

UNITED AMERICA, LLC, Plaintiff-Respondent-Petitioner,

v.WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.

No. 2018AP2383

Supreme Court of Wisconsin.

Oral Argument: January 11, 2021

Opinion Filed: May 18, 2021

For the plaintiff-respondent-petitioner, there were briefs filed by Joseph R. Cincotta, Milwaukee. There was an oral argument by Joseph R. Cincotta.

For the defendant-appellant, there was a brief filed by Clayton P. Kawski, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Clayton P. Kawski.

An amicus curiae brief was filed on behalf of Eminent Domain Services, LLC by Erik S. Olsen and Andrew D. Weininger, Madison.

DALLET, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, ROGGENSACK, HAGEDORN, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

REBECCA FRANK DALLET, J.

¶1 The Department of Transportation (DOT) changed the grade of a highway that abuts United America, LLC's property. As a result, access to United America's property became less convenient and that property's value decreased. The question here is whether such a diminution in property value qualifies as "damages to the lands" under Wis. Stat. § 32.18 (2017-18).¹

The court of appeals held that it does not.² We agree and therefore affirm the court of appeals’ decision.

I. BACKGROUND

¶2 United America operated a gas station and convenience store on its land that abuts the intersection of Highway 51 and Northstar Road.³ A paved driveway connected to Northstar Road provided the only access to United America's facilities.⁴ Customers traveling on Highway 51 patronized United America's business by turning onto Northstar Road at what was once an at-grade intersection.

¶3 That convenient access from Highway 51 to United America's facilities disappeared, however, when the DOT initiated a project to change the grade at the intersection, making Northstar Road a bridge over Highway 51. Despite United America's requests for on- and off-ramps to maintain convenient access between Highway 51 and United America's facilities, the DOT declined to include those ramps, resulting in a longer, indirect route to reach United America's business. Because of that added inconvenience, Highway 51 traffic largely stopped patronizing United America's business. United America's revenue subsequently suffered and its property's value decreased. United America sought compensation from the DOT for that diminished property value under Wis. Stat. § 32.18. Section 32.18 requires the DOT, in the absence of a constitutional "taking,"⁵ to pay landowners whose lands abut a change-of-grade project the value of "any damages to said lands occasioned by such change of grade." The DOT denied United America's claim.

¶4 United America timely commenced an action in the circuit court against the DOT, alleging that Wis. Stat. § 32.18 entitled it to "damages to [its] lands, property, and property value[ ]" occasioned by the change in Northstar Road's grade. At the ensuing bench trial, United America and the DOT introduced competing appraisals regarding United America's property value before and after the DOT's project. The circuit court entered judgment in favor of United America in the amount calculated by United America's expert appraisal. It concluded that the terms "any" and "occasioned" in § 32.18 indicate that the provision encompasses a broad range of compensable injuries, including "a diminution in the value of [United America]’s property due to a loss of convenient access to the flow of traffic from US Highway 51."

¶5 The DOT appealed and the court of appeals reversed. United Am., LLC v. DOT, 2020 WI App 24, 392 Wis. 2d 335, 944 N.W.2d 38. The court of appeals concluded that, considering the context and this court's precedent predating enactment of Wis. Stat. § 32.18, the phrase "to said lands" plainly limits the scope of "any damages" to "structural or physical" injuries to the land itself. Id., ¶¶14-25. It reversed the circuit court's judgment because it determined that United America's diminished property value is not a structural or physical injury to its lands. We granted United America's petition for review.

II. ANALYSIS

¶6 We review de novo the interpretation and application of Wis. Stat. § 32.18. Moreschi v. Village of Williams Bay, 2020 WI 95, ¶13, 395 Wis. 2d 55, 953 N.W.2d 318. We interpret statutes so as to give the legislature's chosen language its "full, proper, and intended effect." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. We do this by reading the operative terms in a manner consistent with either their specially defined meaning or, if not specially defined, their common, ordinary, and accepted meaning. Id., ¶45 ; Wis. Stat. § 990.01(1). Common meaning is derived in part from the statutory context in which the terms are used. Kalal, 271 Wis. 2d 633, ¶46, 681 N.W.2d 110. That includes the terms’ usage in relation to the language of closely related statutes, see id., and how the court had interpreted those terms prior to the legislature enacting the statute in question, see Strenke v. Hogner, 2005 WI 25, ¶28, 279 Wis. 2d 52, 694 N.W.2d 296.

¶7 We begin by identifying the disputed language. Section 32.18 provides:

Where a ... highway improvement project undertaken by the department of transportation ... causes a change of the grade of such ... highway in cases where such grade was not previously fixed by city, village or town ordinance, but does not require a taking of any abutting lands, the owner of such lands at the date of such change of grade may file with the department of transportation ... a claim for any damages to said lands occasioned by such change of grade.... [Upon denial of that claim,] such owner may ... commence an action against the department of transportation ... to recover any damages to the lands shown to have resulted from such change of grade.

(Emphases added.) The parties agree that United America is an abutting landowner to a DOT project that caused a change in grade, that Northstar Road's grade was not previously fixed by municipal ordinance, that no taking occurred, and that the change of grade occasioned United America's diminution in value. Thus, we face a single issue of statutory interpretation: is a diminution in value a cognizable injury within the class of "damages to the lands"?

¶8 United America claims that it is and argues for a liberal reading of Wis. Stat. § 32.18. It accuses the court of appeals of ignoring the legislature's choice of the broad phrase "any damages" by impermissibly limiting that phrase to "structural or physical" damages. Similarly, United America argues that the legislature's use of "occasioned" instead of the ostensibly narrower "caused" suggests that the legislature intended § 32.18 to cover a wider range of damages. United America also contends that § 32.18 should be interpreted liberally because of its apparent "remedial" nature. Lastly, United America urges that we read "damages" as a term of art that refers to monetary compensation and thus restricts § 32.18 to a class of monetary losses.

¶9 The DOT counters that United America's arguments miss the forest for the trees by focusing on the language surrounding the critical limiting phrase—"damages to the lands"—rather than that phrase itself. The DOT explains that the court of appeals did not add in the "structural or physical" limitation; that limitation is inherent in the plain meaning of "lands."

¶10 We conclude that the diminution in property value occasioned by a change in an abutting highway's grade is not an injury compensable under Wis. Stat. § 32.18 because such damages are not "damages to the lands." That conclusion follows from the text of § 32.18, particularly in light of the closely related Wis. Stat. § 32.09(4) and (6)(f), and is confirmed by these provisions’ legislative history. We need not decide, as the court of appeals did, the full scope of "damages to the lands"; our conclusion that a property's diminution in value falls outside the scope of "damages to lands" suffices to resolve this case.

A

¶11 Under common law, a landowner cannot recover for consequential injuries, including a diminution in property value, resulting from the exercise of state police power, such as changing a highway's grade.⁶ See Nick v. State Highway Comm'n, 13 Wis. 2d 511, 514-15, 109 N.W.2d 71 (1961) (explaining that a diminution in value due to an exercise of state police power is not recoverable); Jantz v. DOT, 63 Wis. 2d 404, 409, 217 N.W.2d 266 (1974) (affirming that a change in grade is an exercise of police power for which consequential injuries are not compensable). The legislature, however, has enacted limited and specific exceptions to that rule, including Wis. Stat. § 32.18. Section 32.18 allows certain landowners (those abutting a highway change-of-grade project) to recover for certain consequential injuries (those "to the lands") occasioned by a change of grade.

¶12 Although the legislature did not define "lands," its definition of "property" in Wis. Stat. § 32.01(2) indicates that "lands" constitutes some smaller subset of "property." Per § 32.01(2), "property" includes "estates in lands, fixtures[,] and personal property directly connected with lands." That definition differentiates several elements of "property" by their relationship to "lands." Estates in lands, for instance, comprise the intangible interests one can have in lands. See Restatement (First) of Property § 9 (1936). Similarly, "personal property directly connected with lands" indicates that the legislature uses the term "lands" to denote a separate category than "personal property." Thus, "lands" constitutes something narrower than "property," as the former does not cover the intangible estates in those lands or personal property.⁷

¶13 It follows then...