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Just Compensation and
Damages: Is this a model
that should be adopted in
Wisconsin?
Robert W. Roth, Joseph Niebler Jr.,
and Nicholas J. Boerke
Primary Sources I
 “Government
has no other end
than the preservation of Property.”
John Locke, Second Treatise on
Civil Government, ch. 6 (written
1681, publ. 1690).
Primary Sources II

As James Madison posited: “If there be a
government then which prides itself in
maintaining the inviolability of property;
which provides that none shall be taken
directly even for public use without
indemnification to the owner, and yet
directly violates the property which
individuals have in their opinions, their
religion, their persons, and their faculties;
nay more”
Primary Sources II part 2


which indirectly violates their property, in
their actual possessions, in the labor that
acquires their daily subsistence, and in the
hallowed remnant of time which ought to
relieve their fatigues and soothe their
cares, the influence [inference?] will have
been anticipated, that such a government
is not a pattern for the United States.”
James Madison, ‘On Property’ 27 Mar 1792.
Primary Sources III


Property is a fundamental right, and if you are a
student of Locke, it may well be THE
fundamental right.
One of our first Supreme Court Justices, William
Patterson, articulated the notion very well: “[It] is
evident; that the right of acquiring and possessing
property, and having it protected, is one of the natural,
inherent, and unalienable rights of man. Men have a
sense of property: Property is necessary to their
subsistence, and correspondent to their natural wants
and desires; its security was of of the objects that
induced them to unite in society.
Primary Sources III part 2

“No man would become a member of a
community, in which he could not enjoy the
fruits of his honest labour and industry. The
preservation of property then is the primary
object of social compact, and by the late
Constitution of Pennsylvania, was made a
fundamental law.”
Justice William Patterson, in one of his early state court cases: VanHorne’s
Lesse v. Dorrance, 2 U.S. 304, 310, 1 L.Ed 391 2 Dall. 304, 28 Fed Cas.
1012 (1795).
Basic Training 101

What you get when you review some of the primary
sources yield baseline observations:



The Citizen, a member of “the People” has the right to hold all of
his property, real, personal or intellectual and use it exclusively
for his or her enjoyment, to the exclusion of all others, especially
any established government.
But that same citizen takes his same property subject to the
Plenary power of Eminent Domain, uniquely sited in government
or in today’s world, private enterprise agents of Government like
utilities as well, vested with the powers of eminent domain prior
in time to the citizen’s becoming the owner of his or her
property.
Tort law applies to analyze when the citizen’s use and enjoyment
of his or her property rights are infringed, and that is all aspects
of tort law, of which loss of property value is but one.

See: Tidewater Ry. C.o. v. Shartzer, 107 Va. 572
(1907).
Basic Training 101.2

In the cases, notice the strength of focus
on being “made whole”, and fully
compensated:

“The Landowner is entitled to compensation
that is the ‘full and perfect equivalent’ for the
property”
 Appalachian Power Co. v. Anderson, 212
Va. 705, 708, 187 S.E.2d 148, 152 (1972)
Basic Training 101.3

Even the “fair market value loss” process
we somewhat ardently adhere to in
Wisconsin has been criticized by SCOTUS:

“It must be remembered that market price, as
such, is not controlling. The Fifth
Amendment’s ‘exact limitation on the power
of Government’ is not market price, it is just
compensation.”
 United States v. Felin & Co., 334 U.S. 624,
652 (1948).
Basic Training 101.4

And most notably:

“The Fifth Amendment to the
Constitution…provides that private property
shat not be taken for public use without Just
Compensation. Such compensation means
the full and perfect equivalent in money of the
property taken. The owner is to be put in as
good position percuniarily as he would have
occupied if his property had not been taken.”

United States v. Miller, 317 U.S. 369, 373 (1943).
Wis.; Leading from the Rear?

Wisconsin Civil Jury Instruction 8101:


“The sole question in the Special Verdict asks
‘What was the fair market value of the
property on [the date of taking]’.” See also
WCJI 8101 on partial takings.
That’s it, no other measure of damage or
value loss in a condemnation trial other than
loss of fair market value in the after condition
is noted in the instruction, almost…
What is Just Compensation in WI?:

Since 2006, almost certainly, the recovery of
litigation expenses, that is, all litigation
expenses, are part of Just Compensation as the
term is used in the US and WI Constitutions.
 ”…In permitting recovery of litigation
expenses, the legislature sought to provide
the condemnee with just compensation by
ensuring that he or she would not be forced
to use part of the award to pay for litigation
expenses after a successful appeal.”

Warehouse II, LLC v. State Department of
Transportation, 291 Wis.2d 80, 103, 715 N.W.2d
213, 224 (2006) (citation omitted) (emphasis
added).
And what about LINT?

It isn’t that Wisconsin hasn’t considered
damages outside of loss of fair market
value, sort of:

s. 32.09(6)(e) allows landowner experiential
damages for Limitation of Use, Inconvenience,
Noise and Dirt to be considered as part of fair
market value loss in our courts.
Adjacent Landowners have no eminent
domain rights in Wisconsin

The making of a public improvement in
the vicinity of private property, which is
incidentally injured thereby, or diminished
in volume, but no part of which is taken
or used for such improvement, is not a
taking of private property for public use,
within the meaning of the constitution.

Alexander v. City of Milwaukee, 16 Wis. 247
(1862).
Adjacent Landowners have no eminent
domain rights in Wisconsin 2

“I concede that the infliction of such damages, where no
portion of the property of the plaintiff is actually taken
or occupied for public uses, does not come within the
letter of the constitutional provision prohibiting the
taking of private property for public use without
compensation. Yet, as a matter of justice, the right of
the owner to such damage is as clear as his right to
compensation where his property is actually taken. And
to deny it, though not a violation of the letter, yet is
entirely out of harmony with the spirit of that
constitutional provision.”

Alexander v. City of Milwaukee, 16 Wis. 247 (1862).
Adjacent Landowners have no eminent
domain rights in Wisconsin 2

“It may well be asked, in view of the principles
sustained by the authorities and reasoning
before cited, what is the difference in principle,
in equity, or in the rules of construction,
between the case where the property of an
individual is taken for public use, and the case
where the property of an individual is sacrificed
or rendered worthless, as the direct
consequence of contiguous operations, designed
and carried on for the benefit of the public?”
Goodall v. City of Milwaukee, 5 Wis. 32, 45
(1856).
Wisconsin is leading from
behind:

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Wisconsin is but one of 15 states that
restrict Eminent Domain damage recovery
to fair market value loss “only.” The
District of Columbia makes the total 16.
35 States have adopted constitutional
changes, statutory or case made law
which also protect private property from
damages, in addition to fair market value
loss (generally called “just compensation”)
Blue is “Just Compensation” Only
Damage Example:
Business Losses

In Dept. of Transp.v Gilling, 289 Mich. App. 219
(2009), the Michigan appellate court found that
damages for business interruption existed under
their eminent domain scheme even though their
constitution lacks the “damages”
language. Specifically, the court recognized that
there were damages available beyond
diminishment in value for “lost profits resulting
from the interruption of business” and “expenses
caused by business interruption.”
Damage Example:
Business Losses 2

Illinois clearly allowed for business damages and
interruption losses in Metro. West Side Elevated R.
Co. v. Siegel, 161 Ill. 638 (1896). This case also
explicitly says that there should be no separate
damages for moving expenses, as one selling their
business would ask the new owner to pay to move
their equipment, but that this value can be added to
the consideration of market value of the
property. Wisconsin provides limited statutory
recovery for relocation, see Wis. Stats. 31.19 &
32.20 which is considered separate and apart of
condemnation damages.
Damage Example:
Business Losses 3
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
Missouri explicitly allowed for business
interruption loss damages in Chicago, S.F.
& C. Ry. Co. v. McGrew, 104 Mo. 282
(1891).
Minnesota also allows for business loss
damages in certain situations as the result
of takings, State by Mattson v. Saugen,
283 Minn. 402 (1969).
Citations for Reference 1

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Warehouse II, LLC v. State Dep’t of
Transportation, 291 Wis.2d 80, 103, 715
N.W.2d 213 (citation omitted) (2006).
Klemm v. American Transmission Co.,
LLC, 333 Wis. 2d 580, 798 N.W.2d 223
(2011).
Dept. of Transportation of State of Illinois
v. Rasmussen, 108 Ill. App. 3d 615, 439
N.E.2d 48 (1982).
Citations for Reference 2
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Alexander v. City of Milwaukee, 16 Wis.
247 (1862).
Goodall v. City of Milwaukee, 5 Wis. 32
(1856).
Tidewater
Dept. of Transportation v. Gilling, 289
Mich. App. 219, 796 N.W.2d 476 (2010).
Metro. West Side Elevated R. Co. v.
Siegel, 161 Ill. 638, 44 N.E. 276 (1896).
Citations for Reference 3
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Chicago, S.F. & C. Ry. Co. v. McGrew, 104
Mo. 282, 15 S.W. 931 (1891).
State by Mattson v. Saugen, 283 Minn. 402,
169 N.W.2d 37 (1969).
Tidewater Ry. Co. v. Shartzer, 107 Va. 572,
59 S.E. 407 (1907).
Appalachian Power Co. v. Anderson, 212 Va.
705, 708, 187 S.E.2d 148, 152 (1972)
Citations for Reference 4

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United States v. Miller, 317 U.S. 369, 373
(1943).
United States v. Felin & Co., 334 U.S. 624,
652 (1948).
VanHorne’s Lesse v. Dorrance, 2 U.S.
304, 310 (1795).
Contact Information

Bob Roth: [email protected]

Joe Niebler Jr: [email protected]

Website: www.nprclaw.com

Office: 262-523-8000
Contact Information



Nicholas J. Boerke, von Briesen &
Roper, s.c.
411 East Wisconsin Avenue, Suite
1000 Milwaukee, WI 53202
Direct: 414-287-1460 Fax: 414-2386432 [email protected] vonbrie
sen.com