United America, LLC v. Wisconsin Department of Transportation ( 2021 )

2021 WI 44SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2383
COMPLETE TITLE: United America, LLC,
Plaintiff-Respondent-Petitioner,
v.
Wisconsin Department of Transportation,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 392 Wis. 2d 335,944 N.W.2d 38PDC No:2020 WI App 24 - Published
OPINION FILED: May 18, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 11, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Lincoln
JUDGE: Jay R. Tlusty
JUSTICES:
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.
NOT PARTICIPATING:
ATTORNEYS:
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.
2
2021 WI 44NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2383
(L.C. No. 2014CV78)
STATE OF WISCONSIN : IN SUPREME COURT
United America, LLC,
Plaintiff-Respondent-Petitioner,
FILED
v. MAY 18, 2021
Wisconsin Department of Transportation, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
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.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA FRANK DALLET, J. 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
1All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
No. 2018AP2383
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
United Am., LLC v. DOT, 2020 WI App 24, 392 Wis. 2d 335,
2
944 N.W.2d 38 (reversing the judgment of the Lincoln County
Circuit Court, the Honorable Jay R. Tlusty presided).
United America's parcel is located in the Southwest corner
3
of where Highway 51 (running North-South) and Northstar Road
(running East-West) intersect.
United America cannot directly access Highway 51 from its
4
property because the previous property owner sold the property's
direct access rights to the DOT.
2
No. 2018AP2383
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 DOT, alleging that Wis. Stat. § 32.18entitled 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 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
5A constitutional taking occurs when a private property
interest is converted to public use. Both the Wisconsin and
federal constitutions require that the private owner be justly
compensated for that conversion. See Wis. Const. art. I, § 13;
U.S. Const. amend. V. United America does not argue that a
taking occurred.
3
No. 2018AP2383
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. Vill. of Williams Bay, 2020
WI 95, ¶13, 395 Wis. 2d 55, 935 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. That includes
the terms' usage in relation to the language of closely related
statutes, see id., and how the court had interpreted those terms
4
No. 2018AP2383
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
5
No. 2018AP2383
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.
6
No. 2018AP2383
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,
The "police power" is the government's authority to act
6
"in the interest of public safety, convenience[,] and the
general welfare." Nick v. State Highway Comm'n, 13 Wis. 2d 511,
513-14, 109 N.W.2d 71 (1961).
7
No. 2018AP2383
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 that "damages to the lands" is a
narrower category of injuries than "damages to property." That
conclusion is borne out by comparing how the legislature uses
those phrases differently in two closely related statutes, Wis.
Stat. §§ 32.18 and 32.09(6)(f). See, e.g., Augsburger v.
7Because the legislature specially defined "property" in
Wis. Stat. ch. 32, we rely on that definition rather than the
generic statutory definition in Wis. Stat. § 990.01. See
§ 990.01 (instructing that the generic definitions therein are
inapplicable when applying them "would produce a result
inconsistent with" the otherwise manifest statutory meaning).
But even if the generic definition of "property" controlled, it
reveals that, among the different categories of property
interests identified in its definition, "lands" denotes the
narrowest subset. See § 990.01(31); see also Earl P. Hopkins,
Handbook on the Law of Real Property § 1, at 3 (1896).
Given the context of § 32.18, that same distinction
differentiates "lands" from the generic statutory definition of
"land." See § 990.01(18). While generally the plural includes
the singular and vice versa, see Wis. Stat. § 990.001(1), here
§ 990.01(18) defines "land" as "includ[ing] lands," among other,
broader subsets of property. We therefore cannot ignore the
textual clues indicating that, at least in this context, "lands"
means something different than "land"——especially when ignoring
those clues results in a circular definition. See Solie v. Emp.
Tr. Funds Bd., 2005 WI 42, ¶31 n.17, 279 Wis. 2d 615, 695
N.W.2d 463 (declining to adopt a circular interpretation of a
statutory definition).
8
No. 2018AP2383
Homestead Mut. Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385, 856
N.W.2d 874 ("When the legislature chooses to use two different
words, we generally consider each separately and presume that
different words have different meanings."). Both provisions
provide a landowner whose lands abut a change-of-grade project
the right to compensation for resulting injuries. But only
§ 32.09(6)(f), which applies when there is an accompanying
taking, uses the broader category "property" in allowing for the
recovery of "[d]amages to property." Section 32.18, on the
other hand, applies only when there is no taking, and recovery
is limited for "damages to the lands." As "lands" is narrower
than "property," we understand this distinction to mean that the
class of injuries compensable under § 32.18 is narrower than
that compensable under § 32.09(6)(f).
¶14 That distinction is especially revealing here because,
despite our precedent defining "damages to property" to include
a property's diminution in value, the legislature opted for a
different term in Wis. Stat. § 32.18. Roughly 40 years before
the legislature enacted Wis. Stat. §§ 32.18 and 32.09(6)(f), we
held that the language "any damages . . . to [an abutting
landowner's] property" encompassed the "diminution in market
value of [her] property" caused by a "deflection of travel with
consequent loss of existing prospective patronage." Voigt v.
9
No. 2018AP2383
Milwaukee Cnty., 158 Wis. 666, 668-70, 149 N.W. 392 (1914).8 No
similar holding exists regarding "damages to the lands." And we
presume that when the legislature enacted both §§ 32.18
and 32.09(6)(f), it did so with "full knowledge" of this
difference in our case law. See Strenke, 279 Wis. 2d 52, ¶28.
Thus, when the legislature simultaneously enacted those
provisions but used the phrase "damages to property" in
§ 32.09(6)(f) and not § 32.18, one implication is that the
legislature chose to compensate an owner's diminution in
property value under the former but not the latter.
¶15 That inference is confirmed by the text of another
closely related provision, Wis. Stat. § 32.09(4). Because the
common law bars compensation for consequential injuries caused
by an exercise of police power, a statute abrogating that rule
must do so with "clear, unambiguous, and peremptory" language.
E.g., Strenke, 279 Wis. 2d 52, ¶29. And, as we have held for
over 175 years, we "strictly construe[]" those statues to
8 We additionally recognize that the legislature did not
opt for "damages to the owner," yet another phrase this court
had held provides compensation for diminished property value.
See Stamnes v. Milwaukee & S.L. Ry. Co., 131 Wis. 85, 88, 109
N.W. 100 (1906), modified on reh'g on other grounds, 131
Wis. 85, 111 N.W. 62 (1907).
10
No. 2018AP2383
minimize their effect on the common law.9 See, e.g.,
Augsburger, 359 Wis. 2d 385, ¶17; Schaefer v. City of Fond du
Lac, 99 Wis. 333, 341, 74 N.W. 810 (1898); Baxter v. Payne, 1
Pin. 501, 504 (Wis. Terr. 1845) (explaining that a law "being in
derogation of the rules of the common law, has always been
construed strictly"). The legislature did just that for
takings, using clear, unambiguous, and peremptory language in
§ 32.09(4) to expressly identify those provisions that change
the common law rule as well as how they change it: "If a
depreciation in value of property results from an exercise of
the police power, . . . no compensation may be paid for such
depreciation except as expressly allowed in [Wis. Stat.
§ 32.09](5)(b) and (6) and [Wis. Stat. §] 32.19." (Emphasis
added.). Predictably on that list, given our Voigt decision, is
§ 32.09(6)(f), which compensates "[d]amages to property."
¶16 Yet no similar provision exists for a diminution in
value in non-taking scenarios; nowhere does any statute identify
Wis. Stat. § 32.18 as abrogating the common law in that specific
manner. The legislature knows how to use clear, unambiguous,
9The dissent ignores this nearly two centuries' worth of
law and it cites no Wisconsin case to the contrary. The dissent
relies on one extrinsic source that is, ironically, consistent
with our holding here and contrary to the dissent's position.
See Antonin Scalia & Bryan A. Garner, Reading Law 318 (2012)
(arguing, consistent with our jurisprudence, that statutes
should "not be interpreted as changing the common law unless
they effect the change with clarity"); id. at 364-66 (arguing,
contrary to the dissent, that remedial statutes should not be
liberally construed because that approach "needlessly invites
judicial lawmaking" and is "impossible" to apply).
11
No. 2018AP2383
and peremptory language to change the common law rule regarding
a diminution in value——it did so in the closely related Wis.
Stat. § 32.09(4)——but it chose not to in § 32.18. See
Strenke, 279 Wis. 2d 52, ¶29; Piper v. Jones Dairy Farm, 2020
WI 28, ¶28, 390 Wis. 2d 762, 940 N.W.2d 701. Thus, we strictly
construe § 32.18 to abrogate the common law only with respect to
consequential "damages to the lands," while leaving intact the
common law rule barring compensation for a diminution in
property value. See Nick, 13 Wis. 2d at 514-15; Strenke, 279
Wis. 2d 52, ¶29.
¶17 To summarize our plain-meaning analysis, the
legislature indicated in two ways that Wis. Stat. § 32.18excludes from its specified class of compensable injuries a
property's diminution in value. First, instead of using
"damages to property," which we have said includes a property's
diminution in value, it used the narrower phrase "damages to the
lands." Second, the legislature made no clear, unambiguous, and
peremptory statement that § 32.18 abrogates the common law with
respect to compensation for a property's diminution in value.
Therefore, we conclude that an abutting landowner is not
entitled to compensation for its diminution in property value
under § 32.18.
B
¶18 Although our plain-meaning interpretation of Wis.
Stat. § 32.18 fully resolves our interpretive inquiry, we
nevertheless note that legislative history confirms its plain
meaning. See, e.g., Kalal, 271 Wis. 2d 633, ¶51 ("[L]egislative
12
No. 2018AP2383
history is sometimes consulted to confirm or verify a plain-
meaning interpretation."); Westmas v. Creekside Tree Serv.,
Inc., 2018 WI 12, ¶¶20, 49, 379 Wis. 2d 471, 907 N.W.2d 68.
Indeed, the history behind the enacted language in Wis. Stat.
§§ 32.09(4), 32.09(6)(f), and 32.18 confirms that § 32.18
excludes from its ambit a property's diminution in value. This
statutory trio came about as part of a legislative proposal from
an executive study committee that studied the "whole problem of
land acquisition."10 The committee's proposal codified the
common law rule that prohibited compensation for "a depreciation
in value of property result[ing] from an exercise of the police
power." The legislature enacted that provision verbatim as
§ 32.09(4). See § 1, ch. 639, Laws of 1960. The proposal also
contained an exception to this general prohibition that would
allow, among other things, abutting landowners to recover for
"damage [of any kind] due to change of grade whether or not
accompanied by a taking of land." (Emphasis added.) Thus, as
proposed, a landowner in United America's situation could have
recovered its diminished property value.
¶19 The legislature, however, altered that result by
deviating from the proposal in three significant ways. See id.
The proposal came from Governor Vernon Thomson's Study
10
Committee on the Problems of Land Acquisition, a group tasked
with studying "the whole problem of land acquisition with
particular attention to condemnation procedure, and methods of
determining damages suffered by those called upon to surrender
their property for the public good." Wisconsin Blue
Book 791 (1958).
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No. 2018AP2383
First, instead of one provision that applied whether or not a
taking occurred, the legislature enacted Wis. Stat. § 32.18 to
address any change of grade unaccompanied by a taking of land
and Wis. Stat. § 32.09(6)(f)11 for grade changes involving a
taking. Second, instead of allowing compensation for "damages"
generally, the legislature identified two specific classes of
compensable injuries and split those distinct classes between
the new provisions: "[d]amage to property" in § 32.09(6)(f) and
the narrower "damages to . . . lands" in § 32.18. See id. The
legislature's third deviation was its decision to "expressly
allow[]" compensation for a diminution in property value only
where there is a taking of land and only under the list of
provisions set forth in § 32.09(4). These deviations
demonstrate that both the absence of a provision similar to
§ 32.09(4) expressly identifying § 32.18 as abrogating the
common law regarding compensation for a diminution in value and
the distinction between "[d]amages to property" and "damages to
the lands" were deliberate legislative choices. And each choice
confirms our plain-meaning conclusion that a property's
Wisconsin Stat. § 32.09(6)(f) was originally enacted as
11
Wis. Stat. § 32.09(5)(g) (1959-60), but aside from a
renumbering, the provision remains unchanged.
14
No. 2018AP2383
diminution in value falls outside the class of consequential
"damages to the lands" compensable under § 32.18.12
C
¶20 United America's textual argument to the contrary
incorrectly focuses on the general term "any damages" while
ignoring the limiting phrase "to the lands." Although "any
damages," without context, appears to express a general lack of
"distinction or limitation" on the type of compensable injuries,
the text of Wis. Stat. § 32.18 limits the class of compensable
injuries to "any damages to the lands" (emphasis added). See
Any, Oxford English Dictionary (3d ed. 2016) (defining the
adjective "any" as referring "to a member of a particular group
or class without distinction or limitation" (emphasis added)).13
Thus, under § 32.18, United America may recover any and all
damages occasioned by the DOT's change-of-grade project,
provided that those damages are to United America's lands. And,
Neither
12 Jantz v. DOT, 63 Wis. 2d 404, 217
N.W.2d 266 (1974), nor 118th Street Kenosha, LLC v. DOT, 2014
WI 125, 359 Wis. 2d 30, 856 N.W.2d 486, alter this conclusion
because neither case interpreted or applied Wis. Stat. § 32.18.
In Jantz, we merely acknowledged that the plaintiff's claim for
damages caused by a non-taking change of grade belonged under
§ 32.18; we said nothing about whether such a claim would
actually succeed under that statute. 63 Wis. 2d at 411. In
118th Street Kenosha, we speculated that a property's diminution
in value "perhaps may" be compensable under § 32.18, but nowhere
in that case did we actually interpret § 32.18 as definitively
allowing such compensation. 359 Wis. 2d 30, ¶48 n.16. Thus
neither case controls here.
"We rely on dictionary definitions when the legislature
13
fails to provide a definition in the statute." State v.
A.L., 2019 WI 20, ¶16, 385 Wis. 2d 612, 923 N.W.2d 827.
15
No. 2018AP2383
as discussed above, "damages to the lands" does not include
diminished property value. In other words, the presence of
"any" does not allow us to read out of the statute the explicit
limitation the legislature put into it. See State v. A.L., 2019
WI 20, ¶20, 385 Wis. 2d 612, 923 N.W.2d 827. For similar
reasons, we reject United America's arguments regarding
"occasioned," "damages," and the statute's supposed remedial
nature. None of these arguments help us interpret the narrow
issue of whether a diminution in property value falls within the
class of "damages to the lands."14
D
¶21 Given the plain meaning of Wis. Stat. § 32.18, its
application to United America's claim is straightforward.
United America seeks compensation only under § 32.18 and only
for the diminution in its property value. A property's
diminution in value, however, is not compensable under § 32.18.
Therefore, United America's claim fails.
We also reject United America's "flow of traffic" and
14
"indirect access" arguments. United America's attempt to
reframe its injury as a lost right to the flow of Highway 51's
traffic fails because there is no such right. See Schneider v.
Div. of Highways, 51 Wis. 2d 458, 463, 187 N.W.2d 172 (1971)
("[T]here is no property right to the flow of traffic [along a
highway]."). United America also has no "indirect access" claim
because its predecessor received compensation for the property's
direct access rights to Highway 51. Cf. id. (explaining that
when a property's direct access to a highway is extinguished,
reasonable indirect access must be provided unless the owner
receives just compensation).
16
No. 2018AP2383
III. CONCLUSION
¶22 We conclude that the plain meaning of "damages to the
lands" in Wis. Stat. § 32.18 does not encompass United America's
diminution in property value. Accordingly, we affirm the court
of appeals' decision.
By the Court.—The decision of the court of appeals is
affirmed.
17
No. 2018AP2383.rgb
¶23 REBECCA GRASSL BRADLEY, J. (dissenting). "The
fundamental maxims of a free government seem to require; that
the rights of personal liberty and private property, should be
held sacred." Wilkinson v. Leland, 27 U.S. 627, 634 (1829)
(Story, J.) (emphasis added). Ignoring the plain text of Wis.
Stat. § 32.18, the majority delivers a troubling blow to the
statutory rights of Wisconsin's property owners. According to
the majority, if the Department of Transportation (DOT) causes a
change of grade on the state's highways, abutting landowners are
left without any recourse or compensation when DOT's actions
eviscerate the value of their property. The majority's
interpretation misreads § 32.18 and erases the statutory rights
of landowners in the process. Properly interpreted, when DOT
causes a change of grade that diminishes a landowner's property
value on abutting land, § 32.18 allows landowners to collect
compensatory damages. Accordingly, United America was entitled
to the circuit court's full award of damages. I respectfully
dissent.
I
¶24 In 2004, Raj Bhandari, through his limited-liability
company United America, entered into a land contract for the
purchase of real estate abutting the intersection of Highway 51
and Northstar Road in Lincoln County. For a number of years,
United America operated a gas station and convenience store on
the property where the at-grade intersection allowed for direct
vehicle access to and from Highway 51 and Northstar Road. The
at-grade roads facilitated convenient entrance to United
1
No. 2018AP2383.rgb
America's business. In 2006, before deciding whether to fully
pay off the land contract and remain on the property, Bhandari
contacted a representative at DOT to ask whether it had any
plans to change the intersection. The representative responded
that a change in the intersection would not happen in Bhandari's
lifetime or in the representative's lifetime.1
¶25 Despite DOT's assurances to Bhandari, in 2013 DOT
began a highway improvement project, which ultimately changed
the grade at the Highway 51/Northstar Road intersection and
converted Northstar Road to a bridge over Highway 51. DOT
refused to provide for on- and off-ramps that would preserve
convenient access to United America's business at the
intersection, despite Bhandari imploring DOT to do so. As a
result, individuals attempting to access United America's gas
station and convenience store from Highway 51 were forced to
take a circuitous route and drive miles out of the way to reach
United America's property. United America's business suffered a
dramatic loss of revenue, and the value of its property
plummeted.
¶26 Pursuant to Wis. Stat. § 32.18, United America timely
filed a claim with DOT requesting to be compensated for its
1Both before and after Bhandari purchased the property, DOT
wrote letters to Lincoln County commissioners and a Town of
Merrill chairman stating that it had plans to change the
intersection. However, the circuit court concluded that "it was
not convinced that any type of due diligence search by Mr.
Bhandari regarding the subject intersection would have revealed
[these prior letters]."
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damages. Absent a taking of land,2 § 32.18 requires DOT to pay
abutting landowners "for any damages" to their lands resulting
from a DOT change-of-grade project. DOT denied United America's
claim, and United America later filed suit in the Lincoln County
Circuit Court. After a bench trial, the circuit court ruled in
favor of United America. The circuit court concluded that
§ 32.18 allows United America to recover for the diminution in
its property value resulting from DOT's change of grade at the
Highway 51/Northstar Road intersection. The circuit court
determined:
[T]he subject lands were damaged as a result of the
change of grade to the highway abutting the property,
and not by the DOT's use of police power to control
the flow of traffic along its right of way. . . . The
decisions of the DOT to change the grade of the
highway abutting the Plaintiff's property, and not
include exit and entrance ramps resulted in damages to
the Plaintiff's property, through a diminution in the
value of the Plaintiff's property due to a loss of
convenient access to the flow of traffic from US
Highway 51. These were clearly foreseeable damages
when the DOT made its decisions regarding the highway
improvement project.
The circuit court found that United America suffered $528,500 in
damages due to DOT's change-of-grade project. Specifically,
United America's "before-value" was $600,000, but its "after-
value" following DOT's change-of-grade project sank to $71,500.
The circuit court arrived at this determination with the benefit
of a "substantial amount of . . . financial information provided
2 The parties agree there was no taking of land in this
case.
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to the Court through appraisals," finding United America's
appraiser to be the "most credible."
¶27 DOT appealed the decision and the court of appeals
reversed, concluding that Wis. Stat. § 32.18 allows landowners
to recover only "structural damages" to their land resulting
from a change-of-grade project. According to the court of
appeals, because United America's loss in property value from
DOT's change of grade did not qualify as "physical" or
"structural" loss, the circuit court's award must be vacated.
Without endorsing its reasoning, the majority nevertheless
affirms the court of appeals decision, concluding that "a
property's diminution in value falls outside the scope of
'damages to lands.'" Majority op., ¶10. The majority errs.
II
¶28 In relevant part, Wis. Stat. § 32.18 reads:
Where a street or highway improvement project
undertaken by the department of
transportation . . . causes a change of the grade of
[a] street or 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. . . . [If
DOT denies the claim], such owner may within 90 days
following such denial commence an action against
[DOT] . . . to recover any damages to the lands shown
to have resulted from such change of grade.
(Emphasis added.) The majority reads the text of this statute
in an insupportably strained and narrow manner. According to
the majority, United America's diminution in property value does
not qualify as "damages to the lands" under § 32.18; therefore,
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United America cannot recover any losses occasioned by DOT's
change-of-grade project. See majority op., ¶1. Contrary to the
majority's holding, § 32.18 allows landowners to recover "any
damages to the lands" resulting from a DOT change-of-grade
project, and nothing in the statutory text restricts a
landowner's recovery to "structural" or "physical" losses as the
court of appeals concluded, nor does the text foreclose the
recovery of damages for diminution in property value. § 32.18
(emphasis added). Accordingly, the circuit court properly
awarded damages to United America for DOT's change of grade at
the Highway 51/Northstar Road intersection.3
¶29 Resolution of this case rests upon the interpretation
of two key statutory phrases: (1) "any damages," and (2) "to
the lands." "[S]tatutory interpretation begins with the
language of the statute. If the meaning of the statute is
plain, we ordinarily stop the inquiry." State ex rel. Kalal v.
3For purposes of this case, there are two operative phrases
in Wis. Stat. § 32.18: the phrase "any damages to said lands
occasioned by such change of grade," and the phrase "any damages
to the lands shown to have resulted from such change of grade."
Under § 32.18, the former phrase pertains to a landowner's
statutory right to file a claim for damages with DOT after a
change of grade, whereas the latter phrase pertains to a
landowner's right to "commence an action" in circuit court when
DOT denies a claim. Both phrases similarly employ the operative
language "any damages to lands." Given that neither party
disputes that DOT's change-of-grade project caused United
America's diminution in property value, there is no reason to
differentiate between the phrases "occasioned by" and "resulted
from." Both phrases clearly contemplate a causal connection
between the landowner's damages and DOT's change-of-grade
project——which is present in this case. My analysis focuses
upon the phrase "any damages to the lands," the meaning of which
constitutes the crux of the statutory question before the court.
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Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110. Under its most reasonable interpretation, the
phrase "any damages" means precisely what it says: "any
damages," without exception. Wis. Stat. § 32.18 (emphasis
added). "Damages" means any "[m]oney claimed by, or ordered to
be paid to, a person as compensation for loss or injury."
Damages, Black's Law Dictionary 488 (11th ed. 2019) (emphasis
added); see Kalal, 271 Wis. 2d 633, ¶53 (instructing courts to
turn to dictionary definitions to ascertain the plain meaning of
a statute).
¶30 As a general matter, "loss" is commonly understood as
"the disappearance or diminution of value." Loss, Black's Law
Dictionary 1132 (11th ed. 2019) (emphasis added). "Damages"
broadly includes compensation for a "loss," which includes the
"diminution of value" of an individual's property, both real and
personal. The purpose of compensating an individual for loss is
to "make whole the damage or injury suffered by the injured
party." See White v. Benkowski, 37 Wis. 2d 285, 290, 155
N.W.2d 74 (1967). As this court explained decades ago regarding
land rights, "the measure of damages . . . will be the
difference between the present value of the land and its value
as affected by the execution of the proposed projects"——in this
case, DOT's change-of-grade project. State v. Adelmeyer, 221
Wis. 246, 262-63, 265 N.W. 838 (1936).
¶31 While the statutory meaning of "damages" is broad, it
is not unlimited. "Any" damages must be "to the lands" in order
to be recoverable under Wis. Stat. § 32.18. The meaning of
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"any" refers to "any one of the sort named." Any, Oxford
English Dictionary 94 (6th ed. 2007). Under the plain meaning
of the statutory language, any and all types of damages to the
lands are recoverable. Had the legislature wanted to limit the
meaning of "damages" solely to "structural damages," as the
court of appeals decided, or to exclude diminution-in-value
damages as the majority holds, it certainly could have. See
Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65,
¶36, 341 Wis. 2d 607, 815 N.W.2d 367. But it did not; instead,
it expressly stated that "any damages" are recoverable——nothing
less.
¶32 The majority improperly reads an exception into the
text in order to narrow the meaning of "any damages." Doing so
violates the general-terms canon of statutory construction,
under which "[g]eneral terms are to be given their general
meaning." Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 101 (2012); Benson v. City of
Madison, 2017 WI 65, ¶25, 376 Wis. 2d 35, 897 N.W.2d 16. Under
this canon, "general words (like all words, general or not) are
to be accorded their full and fair scope. They are not to be
arbitrarily limited." Scalia & Garner, supra, at 101. "[T]he
presumed point of using general words is to produce general
coverage——not to leave room for courts to recognize ad hoc
exceptions." Id. Unlike the court of appeals, the majority in
this case deems it unnecessary to decide "the full scope of
'damages to the lands.'" Majority op., ¶10. Nevertheless, it
arbitrarily construes "any damages" to exclude "a property's
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diminution in value." Id. There is no textual basis to support
this exclusion.
¶33 The error of the majority's circumscription of the
statutory text is illustrated by another case in which the
federal courts interpreted a similarly broadly-worded statute
"allowing the government to seize 'any property, including
money,' that had been used for an illegal gambling business."
Scalia & Garner, supra, at 103 (citing United States v. South
Half of Lot 7 & Lot 8, Block 14, Kountze's 3rd Addition to the
City of Omaha, 910 F.2d 488 (8th Cir. 1990)). In that case, the
government initiated forfeiture actions against real estate
allegedly used for an illegal gambling business. South Half,
910 F.2d at 489. The trial court construed "any property" to
exclude real property but the appellate court disagreed, holding
that "any property" means "any property." Id. Similar to the
majority in this case, the dissent in South Half "would have
held that the clear language meant something other than what it
said, based in part on legislative history[.]" Scalia & Garner,
supra, at 103.
¶34 While the scope of "any damages" recoverable under
Wis. Stat. § 32.18 is textually unlimited, claimed damages must
correspond "to the lands" affected by DOT's change-of-grade
project. "Land" has a specific meaning under the Wisconsin
Statutes. Although it is not defined in Chapter 32, under Wis.
Stat. § 990.01(18), "land" means "lands, tenements and
hereditaments and all rights thereto and interests therein."
(emphasis added). Contrary to the court of appeals' conclusion
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in this case, "lands" means more than just the physical, terra
firma of the land; it includes the "rights thereto and interests
therein" as well. See Tenements, Black's Law Dictionary 1771
(19th. ed. 2019) ("an estate or holding of land");
Hereditaments, Black's Law Dictionary 872 (19th ed. 2019) ("real
property"); Land, Black's Law Dictionary 1048 (19th ed. 2019)
("an estate or interest in real property."). And contrary to
the majority's holding, nothing in § 32.18 excludes diminution
in value——an interest in the lands——from recoverable damages.
Accordingly, the relevant question for this court is not simply
whether DOT's change-of-grade project caused harm to the
physical structure of United America's land itself, but whether
the project caused "any damage" to the lands, including "rights
thereto and interests therein."
¶35 The majority brushes off Wis. Stat. § 990.01(18)'s
definition of "land" in a footnote. Rather than analyzing it,
the majority dismisses the statutory command to construe "lands"
as the legislature defined it as somehow "circular" and
"inconsistent with the otherwise manifest statutory meaning."
Majority op., ¶12 n.7 (internal quotations omitted). The
majority neglects to explain how the definition of "land" in
§ 990.01(18) contravenes "the otherwise manifest statutory
meaning." The majority's rejection of the statutory definition
of "land" as "circular" because it includes "lands" also spurns
the legislative directive that "[i]n construing Wisconsin laws
the following rules shall be observed . . . : The singular
includes the plural and the plural includes the singular." Wis.
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Stat. § 990.001(1). Regardless, the majority altogether ignores
the operative language of the definition of "land" pertinent to
this case: "land" (which includes "lands") encompasses "rights
thereto and interests therein" and the value of the land is
indisputably one of the "interests therein" rendering its
diminution a damage recoverable under Wis. Stat. § 32.18.
¶36 In both instances, the majority violates the
interpretive-direction canon, under which "[d]efinition sections
and interpretation clauses are to be carefully followed."
Scalia & Garner, supra, at 225; see Wisconsin Citizens Concerned
for Cranes & Doves v. DNR, 2004 WI 40, ¶6, 270 Wis. 2d 318, 677
N.W.2d 612 (modified by statute on other grounds) ("Words that
are defined in the statute are given the definition that the
legislature has provided."). "It is very rare that a defined
meaning can be replaced with another permissible meaning of the
word on the basis of other textual indications; the definition
is virtually conclusive." Scalia & Garner, supra, at 228.
While the legislature's definition of "lands" may be
inconvenient for the majority's analysis, that does not give the
majority license to ignore it.
¶37 Applying the statutory definition of "lands," the
dramatic loss in the value of United America's property
constitutes "damage" to the "lands"——specifically, an
"interest[] therein." Wisconsin Stat. § 32.18 requires DOT to
pay a landowner for "any damages" to "lands" as a result of a
DOT change-of-grade project, and diminution in land value falls
well within the meaning of "damages." See Jantz v. DOT, 63
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Wis. 2d 404, 411, 217 N.W.2d 266 (1974) (noting that, under
§ 32.18, compensable damages could include "loss of view, loss
of direct access, loss of income, and change of grade"). As the
circuit court determined, United America's property had been
valued at $600,000 prior to DOT's change-of-grade project, but
plummeted to a value of $71,500 upon project completion,
resulting in a loss in value of $528,500. Under the plain text
of § 32.18, United America may recover the full value of the
circuit court's award.
¶38 Rather than applying the plain language of Wis. Stat.
§ 32.18, the majority adopts an interpretation crafted by
comparisons to a "closely related provision" in Wis. Stat.
§ 32.09(6)(f), which allows compensation for "damages to
property" due to a change of grade resulting in a partial
taking. According to the majority, because the legislature used
the phrase "damages to property" in § 32.09(6)(f) instead of
"damages to lands" as found in § 32.18, the legislature must
have afforded diminution-in-value damages only under the former.
See majority op., ¶14. The majority offers scant support for
this conclusion, beyond its mere declaration that it is so.
Section 32.09(6)(f) concerns "all matters involving the
determination of just compensation in eminent domain
proceedings"——that is, when there is a taking. (Emphasis
added). Matter of Condemnation by Redevelopment Auth. of City
of Green Bay, 120 Wis. 2d 402, 409, 355 N.W.2d 240 (1984)
(describing eminent domain as a process where an owner's
property "is taken against his or her will"). By contrast,
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§ 32.18 compensates landowners for damages when there is not a
taking. See § 32.18 (stating that it applies only when DOT
"does not require a taking of any abutting lands"). As we have
plainly established, "Section 32.18 . . . merely provides a
cause of action for damages; it does not bring the proceedings
into the area of eminent domain. The concept of 'just
compensation' . . . applies to condemnation proceedings, and has
no application to a statutory action for damages for change of
grade commenced pursuant to the provisions of [section] 32.18."
Klingseisen v. Wisconsin State Highway Comm'n, 22 Wis. 2d 364,
368, 126 N.W.2d 40 (1964). Accordingly, § 32.09 and its
reference to "damages to property" in the context of a taking
cannot inform the meaning of "damages to the lands" occasioned
by government action other than a taking.
¶39 The majority makes the same mistake in relying upon
Wis. Stat. § 32.09(4). That statute states that "[i]f a
depreciation in value of property results from an exercise of
the police power, even though in conjunction with taking by
eminent domain, no compensation may be paid for such
depreciation except as expressly allowed in subs. (5)(b) and (6)
and s. 32.19." § 32.09(4). Just like § 32.09(6)(f), § 32.09(4)
applies only "[i]n all matters involving the determination of
just compensation in eminent domain proceedings" and has no
application whatsoever to a statute creating a right of action
where no land is taken. § 32.09 (emphasis added). Because §
32.09 provides the rules governing the determination of just
compensation in eminent domain proceedings only, it simply has
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no bearing on the interpretation of Wis. Stat. § 32.18, which
governs claims for damages caused by changes of grade where no
land is taken. See Klingseisen, 22 Wis. 2d at 368. The
majority's resort to takings statutes as a mechanism for
interpreting § 32.18 fails to buttress its analysis and only
compounds the majority's error.
¶40 The majority's statutory analysis takes a circuitous
path, meandering into eminent domain statutes that have no
application in the absence of a taking, in order to interpret
"any damages to lands" to mean something other than what it
plainly says. This methodology violates the ordinary-meaning
canon of statutory interpretation, "the most fundamental
semantic rule of interpretation." Scalia & Garner, supra, at
69. "Words are to be understood in their ordinary, everyday
meanings——unless the context indicates that they bear a
technical sense." Id.; see Wisconsin Ass'n of State Prosecutors
v. WERC, 2018 WI 17, ¶52, 380 Wis. 2d 1, 907 N.W.2d 425.
Statutes, like "all other legal instruments" are "of a practical
nature, founded on the common business of human life, adapted to
common wants, designed for common use, and fitted for common
understandings." Scalia & Garner, supra, at 69 (quoting Joseph
Story, Commentaries on the Constitution of the United States
157-58 (1833)). Judges "should not make" interpretation
"gratuitously roundabout and complex." Id. at 70. To the
detriment of property owners, the majority adopts a complicated
and roundabout analysis that suffocates the ordinary meaning of
the statutory words. Much of the majority's analysis altogether
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avoids the plain language of Wis. Stat. § 32.18, which says "any
damages to the lands," plainly encompassing diminution in
property value as an interest in "the lands" as statutorily
defined.
¶41 This conclusion fully squares with our prior cases.
In Jantz, a property owner brought suit when the state highway
department took .38 acres of land to widen Highway 41-45 in
Washington County and changed the grade of Maple Road in order
to build an overpass across Highway 41-45. Jantz, 63 Wis. 2d at
407-08. Jantz owned a bar and grill abutting Highway 41-45 and
Maple Road, and the value of her property suffered as a result
of DOT's project. Importantly, Jantz did not bring suit under
Wis. Stat. § 32.18 but instead under Wis. Stat. § 32.09(6). See
id. at 409-11. This court held that Jantz could not recover
under § 32.09(6) in the absence of a "constructive taking";
therefore, Jantz could not collect damages related to "loss of
view, loss of income, and circuity of access due to
the . . . change of grade of Maple Road." Id. at 411-12.
Notably, however, the Jantz court identified § 32.18 as the
proper basis for Jantz's claim for these damages. In relevant
part, the court explained:
[Section] 32.18 applies as to any claim for damages
due to change of grade of Maple Road. . . . Claims of
compensable damages due to loss of view, loss of
direct access, loss of income and change of grade were
based on the before-taking and after-taking test under
sec. 32.09(6). That test does not apply because sec.
32.09(6) does not apply. . . . If appellant qualified
as an owner of abutting property to the relocated
Maple Road, any claim for damages caused by the change
of grade of Maple Road would lie under the provisions
of sec. 32.18.
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Id. at 411 (emphasis added) (citations omitted). In other
words, Jantz's claim should have been brought under § 32.18,
which serves as the basis for "any claims for damages due to
change of grade," including Jantz's claim for economic damages
arising from the loss of direct access to her property. Id.
(emphasis added).
¶42 This court reiterated this conclusion less than a
decade ago. In 118th Street Kenosha, we explained that the
Jantz court "excluded evidence that the circuity of access or
change in grade reduced the value of Jantz's property" only
because "the relocation of Maple Road was separate from the
partial taking of land" pursuant to Wis. Stat. § 32.09(6).
118th Street Kenosha, LLC v. DOT, 2014 WI 125, ¶¶47-48, 359
Wis. 2d 30, 856 N.W.2d 486. Although § 32.09(6) did not allow
the recovery of damages for diminution in value, "Jantz perhaps
may have been entitled to recover damages under Wis. Stat.
§ 32.18 for harm to her property caused by Maple Road's change
in grade." Id., ¶48 n.16. The majority in this case disavows
these prior cases, which recognized a cognizable claim under §
32.18 for the diminution in property value due to a change of
grade resulting from a DOT project.
¶43 Strangely, the majority insists that "nowhere does any
statute identify Wis. Stat. § 32.18 as abrogating the common
law" prohibition on "compensation for consequential injuries [a
property's diminution in value] caused by an exercise of the
police power." Majority op., ¶¶15-16. As the majority
seemingly recognizes earlier in its opinion, § 32.18 does so
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itself. Betraying the internal contradictions of its analysis,
the majority notes that while "[u]nder common law, a landowner
cannot recover for consequential injuries, including a
diminution in property value resulting from the exercise of
state police power" the legislature has in fact abrogated this
common law rule——in § 32.18: "The legislature, however, has
enacted limited and specific exceptions to that rule, including
Wis. Stat. § 32.18." Majority op., ¶11 (emphasis added). The
statutory text, using "clear, unambiguous and peremptory
language" as the majority demands, allows a property owner to
"recover any damages to the lands shown to have resulted from
such change of grade." Majority op., ¶15. "Any damages"
clearly and unambiguously encompasses diminution in property
value. The majority absurdly believes the statute must say
"this statute abrogates the common law," majority op., ¶16
("nowhere does any statute identify Wis. Stat. § 32.18 as
abrogating the common law"), but statutory changes to prior law
"need not be express"——they need only be clear. Scalia &
Garner, supra, at 318. With no explanation, the majority
confidently declares that Wis. Stat. § 32.09(4) clearly
abrogates the common law but § 32.18 somehow fails the
majority's amorphous test of clarity. This is classic ipse
dixit.
¶44 In the past, this court characterized Wis. Stat.
§ 32.18 as a remedial statute "that must be liberally construed
to advance the remedy that the legislature intended to be
afforded." Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI
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22, ¶21, 308 Wis. 2d 103, 746 N.W.2d 762; Hughes v. Chrysler
Motors Corp., 197 Wis. 2d 973, 979, 542 N.W.2d 148 (1996). The
statute need not be construed "liberally" in order to discern
its meaning; applying the fair reading approach outlined in
Kalal, the court need only determine "how a reasonable reader,
fully competent in the language, would have understood the text
at the time it was issued." Scalia & Garner, supra, at 33.
Instead, the majority opts to "strictly construe § 32.18,"
majority op., ¶16, embracing "a relic of the courts' historical
hostility to the emergence of statutory law" which displaced
judge-made law. Scalia & Garner, supra, at 318. It is,
however, a "false notion that words should be strictly
construed." Id. at 355. "If by strict one simply meant that
the interpreter holds tight to the fair meaning of the law, then
the doctrine would be sound." Id. Applying a discredited
doctrine, the majority eschews the fair meaning of "any damages"
in favor of "a narrow, crabbed reading" of the words. Id. In
doing so, the majority "strangle[s] [its] meaning." Id. (citing
Utah Junk Co. v. Porter, 328 U.S. 39, 44 (1946)).
¶45 Applying the plain meaning of the statutory language,
"any damages to the lands" means precisely what it says, but the
majority's interpretation of Wis. Stat. § 32.18 wrongly
circumvents what the legislature wrote. "Property rights are
necessary to preserve freedom, for property ownership empowers
persons to shape and to plan their own destiny in a world where
governments are always eager to do so for them." Adams Outdoor
Advert. Ltd. P'ship v. City of Madison, 2018 WI 70, ¶47, 382
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Wis. 2d 377, 914 N.W.2d 660 (Rebecca Grassl Bradley, J.,
dissenting) (quoting Murr v. Wisconsin, 137 S. Ct. 1933, 1943
(2017)). Section 32.18 protects private property rights by
compensating landowners when DOT causes their property values to
plummet. Because the majority's contrary interpretation impairs
these rights in contravention of the plain meaning of § 32.18, I
respectfully dissent.
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