United America, LLC v. Wisconsin Department of Transportation
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The Supreme Court affirmed the decision of the court of appeals holding that a diminution in property value that results from changing the grade of a highway abutting the property does not qualify as "damages to the lands" under Wis. Stat. 32.18.
When the Department of Transportation (DOT) changed the grade of a highway that abuts United America, LLC's property, access to United America's property became less convenient. Therefore, the property's value decreased. United America brought this action alleging that section 32.18 entitled it to damages to its lands, property, and property value brought about by the change in grade. The circuit court entered judgment in favor of United America. The court of appeals reversed. The Supreme Court affirmed, holding that the plain meaning of "damages to the lands" in section 32.18 did not encompass United America's diminution in property value.
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2021 WI 44 SUPREME 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 38 PDC No:2020 WI App 24 - Published OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: May 18, 2021 January 11, 2021 Circuit Lincoln 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 44 NOTICE 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, FILED Plaintiff-Respondent-Petitioner, MAY 18, 2021 v. 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. ¶1 REBECCA FRANK DALLET, J. The Affirmed. 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 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 1 No. not.2 We agree and therefore affirm the court 2018AP2383 of appeals' decision. I. ¶2 BACKGROUND United America operated a gas station and convenience store on its land that abuts the intersection of Highway 51 and Northstar Road.3 provided the A paved driveway connected to Northstar Road only access to United America's Customers traveling on Highway 51 patronized facilities.4 United America's business by turning onto Northstar Road at what was once an at-grade intersection. ¶3 That America's convenient facilities access from disappeared, Highway 51 however, to when United 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. that added inconvenience, Highway 51 traffic Because of largely stopped United Am., LLC v. DOT, 2020 WI App 24, 392 Wis. 2d 335, 944 N.W.2d 38 (reversing the judgment of the Lincoln County Circuit Court, the Honorable Jay R. Tlusty presided). 2 United America's parcel is located in the Southwest corner of where Highway 51 (running North-South) and Northstar Road (running East-West) intersect. 3 United America cannot directly access Highway 51 from its property because the previous property owner sold the property's direct access rights to the DOT. 4 2 No. patronizing United America's business. subsequently United suffered America diminished sought property Section 32.18 and its United America's revenue property's compensation value requires the from under DOT, 2018AP2383 value the Wis. in DOT decreased. for Stat. the that § 32.18. 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 circuit United court America against timely DOT, commenced alleging that an Wis. action Stat. in the § 32.18 entitled it to "damages to [its] lands, property, and property value[]" occasioned by the change in Northstar Road's grade. the ensuing bench trial, United America and DOT At 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 A 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. 5 3 No. loss of convenient access to the flow of 2018AP2383 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. ¶6 We review de novo the interpretation and application of Wis. Stat. § 32.18. WI 95, ANALYSIS ¶13, 395 Moreschi v. Vill. of Williams Bay, 2020 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 accepted meaning. defined, their common, ordinary, Id., ¶45; Wis. Stat. § 990.01(1). and 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 liberal reading of Wis. Stat. § 32.18. argues for a It accuses the court of appeals of ignoring the legislature's choice of the broad phrase "any damages" "structural or by impermissibly physical" damages. 5 limiting that Similarly, phrase United to America 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. America also contends that § 32.18 should be United 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 than that phrase itself. to the lands"——rather 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." the text of § 32.18, That conclusion follows from 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 resolve this case. 6 to lands" suffices to No. 2018AP2383 A ¶11 Under consequential common law, injuries, a landowner including a cannot recover diminution in for 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). and specific § 32.18. abutting The legislature, however, has enacted limited exceptions Section 32.18 a highway to that allows rule, including certain change-of-grade Wis. landowners project) to Stat. (those 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 definition property directly differentiates connected several their relationship to "lands." with elements of lands." "property" That by Estates in lands, for instance, The "police power" is the government's authority to act "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). 6 7 No. 2018AP2383 comprise the intangible interests one can have in lands. Restatement (First) of Property § 9 (1936). See Similarly, "personal property directly connected with lands" indicates that the legislature uses the term "lands" category than "personal property." to denote a separate 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" narrower category of injuries than "damages to property." is a 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. Because 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). 7 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 § 32.09(6)(f), which applies when injuries. there is an But only 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 landowner's] the language property" "any damages . . . to encompassed the [an "diminution abutting in market value of [her] property" caused by a "deflection of travel with consequent loss of existing prospective patronage." 9 Voigt v. No. 2018AP2383 Milwaukee Cnty., 158 Wis. 666, 668-70, 149 N.W. 392 (1914).8 similar holding exists regarding "damages to the lands." presume that when and 32.09(6)(f), it the legislature did so difference in our case law. Thus, when provisions the but § 32.09(6)(f) legislature with and not chose to the "full both knowledge" And we §§ 32.18 of this See Strenke, 279 Wis. 2d 52, ¶28. legislature used enacted No simultaneously phrase § 32.18, "damages one compensate an enacted to property" implication owner's those is that diminution in the 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. over 175 years, we "strictly And, as we have held for 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. minimize their effect on the common law.9 2018AP2383 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 construed the rules strictly"). of the The common legislature law, did has always just been 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. § 32.09](5)(b) and (6) and [Wis. Stat. §] 32.19." added.). Stat. (Emphasis 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, The 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). 9 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 property value. barring compensation for a diminution in See Nick, 13 Wis. 2d at 514-15; Strenke, 279 Wis. 2d 52, ¶29. ¶17 To legislature excludes summarize indicated from property's its our in two specified diminution in plain-meaning ways class that of value. analysis, Wis. Stat. compensable First, the § 32.18 injuries instead of a 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 Stat. Although § 32.18 our fully plain-meaning resolves our interpretation interpretive of inquiry, Wis. 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 plainmeaning interpretation."); Inc., 2018 WI Westmas v. Creekside Tree Serv., 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 § 32.09(4). legislature enacted that provision See § 1, ch. 639, Laws of 1960. verbatim as 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 deviating from the proposal in three significant ways. by See id. The proposal came from Governor Vernon Thomson's Study 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). 10 13 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. taking. Stat. § 32.09(6)(f)11 for grade changes involving a 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. legislature's third deviation was its decision See id. to The "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. confirms our plain-meaning conclusion that And each choice a property's Wisconsin Stat. § 32.09(6)(f) was originally enacted as Wis. Stat. § 32.09(5)(g) (1959-60), but aside from a renumbering, the provision remains unchanged. 11 14 No. 2018AP2383 diminution in value falls outside the class of consequential "damages to the lands" compensable under § 32.18.12 C ¶20 United incorrectly America's focuses on textual the general argument term to "any ignoring the limiting phrase "to the lands." the contrary damages" while 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, the Oxford English Dictionary (3d ed. 2016) (defining 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 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. 12 "We rely on dictionary definitions when the legislature 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. 13 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. WI 20, reasons, ¶20, we "occasioned," nature. 385 Wis. 2d 612, reject United "damages," and 923 See State v. A.L., 2019 N.W.2d 827. America's the For arguments statute's similar regarding supposed remedial 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 "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). 14 16 No. III. ¶22 2018AP2383 CONCLUSION 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 affirmed. 17 of the court of appeals is No. ¶23 REBECCA GRASSL BRADLEY, J. 2018AP2383.rgb (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. at-grade roads facilitated convenient 1 entrance to The United No. America's business. 2018AP2383.rgb 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 converted the Northstar Highway Road 51/Northstar to a bridge Road over intersection Highway 51. and DOT refused to provide for on- and off-ramps that would preserve convenient access to United America's business at intersection, despite Bhandari imploring DOT to do so. the 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. dramatic loss of revenue, United America's business suffered a 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 Both 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]." 1 2 No. damages. 2018AP2383.rgb 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. favor of After a bench trial, the circuit court ruled in 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 "aftervalue" 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. 3 No. to the Court through appraisals," finding 2018AP2383.rgb 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 affirms the property's its court of diminution 'damages to lands.'" reasoning, appeals in the majority decision, value falls Majority op., ¶10. nevertheless concluding outside the that "a scope of 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, 4 No. 2018AP2383.rgb 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 project, the and lands" nothing resulting in the from a DOT statutory change-of-grade 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. (emphasis added). Accordingly, the circuit court § 32.18 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: the lands." "[S]tatutory language of the statute. (1) "any damages," and (2) "to interpretation begins with the If the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. For 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. 3 5 No. 2018AP2383.rgb Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. phrase "any damages," Under its most reasonable interpretation, the damages" without means precisely exception. Wis. what Stat. it says: § 32.18 "any (emphasis added). "Damages" means any "[m]oney claimed by, or ordered to be to, paid 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 N.W.2d 74 (1967). land rights, v. Benkowski, 37 Wis. 2d 285, 290, 155 As this court explained decades ago regarding "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. 6 The meaning of No. "any" refers to "any one of the sort English Dictionary 94 (6th ed. 2007). named." 2018AP2383.rgb Any, Oxford Under the plain meaning of the statutory language, any and all types of damages to the lands are recoverable. meaning court of of "damages" appeals Had the legislature wanted to limit the solely decided, to or "structural to exclude damages," as the 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." violates under the which meaning." general-terms "[g]eneral canon terms are of statutory to be given Doing so construction, their general Antonin Scalia & Bryan A. Garner, Reading Law: Interpretation of Legal Texts 101 (2012); The 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. arbitrarily limited." They are not to be Scalia & Garner, supra, at 101. "[T]he presumed point of using general words is to produce general coverage——not to exceptions." Id. leave room for courts to recognize ad hoc Unlike the court of appeals, the majority in this case deems it unnecessary to decide "the full scope of 'damages to the lands.'" arbitrarily construes "any Majority op., ¶10. damages" 7 to Nevertheless, it exclude "a property's No. diminution in value." Id. 2018AP2383.rgb There is no textual basis to support this exclusion. ¶33 The statutory error text is of the majority's illustrated by circumscription another case in of the 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)). government initiated forfeiture actions In that case, the against allegedly used for an illegal gambling business. 910 F.2d at 489. real estate South Half, 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), hereditaments and (emphasis added). all "land" means rights thereto "lands, and tenements interests and therein." Contrary to the court of appeals' conclusion 8 No. 2018AP2383.rgb 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. (19th. ed. 2019) See Tenements, Black's Law Dictionary 1771 ("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. definition of "land" in a footnote. Stat. § 990.01(18)'s 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) meaning." contravenes "the otherwise manifest statutory 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." 9 Wis. No. Stat. § 990.001(1). 2018AP2383.rgb 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 While the conclusive." legislature's Scalia & definition Garner, of supra, "lands" at may 228. be inconvenient for the majority's analysis, that does not give the majority license to ignore it. ¶37 dramatic Applying loss constitutes in the the "damage" "interest[] therein." statutory value to of the definition United of "lands," America's the property "lands"——specifically, an 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." 10 See Jantz v. DOT, 63 No. Wis. 2d 404, 411, 217 N.W.2d 266 (1974) (noting 2018AP2383.rgb that, under § 32.18, compensable damages could include "loss of view, loss of direct access, loss of income, and change of grade"). circuit court determined, United America's property As the had been valued at $600,000 prior to DOT's change-of-grade project, but plummeted to a value of $71,500 upon resulting in a loss in value of $528,500. project completion, Under the plain text of § 32.18, United America may recover the full value of the circuit court's award. ¶38 § 32.18, Rather than applying the plain language of Wis. Stat. the comparisons to § 32.09(6)(f), property" taking. due majority a "closely which to adopts a an interpretation related allows change provision" compensation of grade crafted in for resulting Wis. Stat. "damages in a by to partial 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) determination of just proceedings"——that added). of Green concerns is, "all matters compensation when there is in a involving eminent taking. the domain (Emphasis Matter of Condemnation by Redevelopment Auth. of City Bay, (describing 120 eminent Wis. 2d 402, domain as 409, a 355 process N.W.2d 240 where property "is taken against his or her will"). 11 an (1984) owner's By contrast, No. 2018AP2383.rgb § 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"). plainly established, "Section As we have 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 Wis. The majority makes the same mistake in relying upon 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 12 No. 2018AP2383.rgb 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. majority's See resort Klingseisen, to takings 22 Wis. 2d at statutes as a 368. The mechanism for interpreting § 32.18 fails to buttress its analysis and only compounds the majority's error. ¶40 path, The majority's statutory analysis takes a circuitous 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. canon of This methodology violates the ordinary-meaning statutory interpretation, semantic rule of interpretation." 69. most fundamental Scalia & Garner, supra, at "Words are to be understood in their ordinary, everyday meanings——unless the technical sense." v. "the WERC, 2018 context indicates that they bear a Id.; see Wisconsin Ass'n of State Prosecutors 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)). "gratuitously Judges roundabout "should and not complex." make" Id. at interpretation 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 13 No. 2018AP2383.rgb 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. 407-08. Jantz, 63 Wis. 2d at 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). id. at 409-11. under § 32.09(6) See This court held that Jantz could not recover in the absence of a "constructive taking"; therefore, Jantz could not collect damages related to "loss of view, loss of the . . . change Notably, however, income, of grade the and of Jantz circuity Maple court of Road." identified access Id. at § 32.18 proper basis for Jantz's claim for these damages. due to 411-12. as the 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. 14 No. Id. at 411 (emphasis added) (citations 2018AP2383.rgb 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 decade ago. court reiterated this conclusion less than a 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 15 No. itself. 2018AP2383.rgb Betraying the internal contradictions of its analysis, the majority notes that while "[u]nder common law, a landowner cannot recover diminution in for consequential property value injuries, resulting from including a exercise of the 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." statutory text, Majority op., ¶11 (emphasis added). using "clear, unambiguous and The 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 "Any value. The majority absurdly believes the statute must say ("nowhere abrogates does any the statute common diminution law," identify Wis. in damages" and statute encompasses ¶15. clearly "this unambiguously op., majority Stat. property op., ¶16 § 32.18 as abrogating the common law"), but statutory changes to prior law "need not Garner, be express"——they supra, confidently abrogates at 318. declares the common need With that law only no Wis. but be clear. explanation, Stat. § 32.18 majority's amorphous test of clarity. Scalia & the majority § 32.09(4) clearly somehow fails the 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 afforded." the remedy that the legislature intended to be Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 16 No. 2018AP2383.rgb 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." Instead, the majority opts Scalia & Garner, supra, at 33. 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. however, a Scalia "false construed." & notion Id. at 355. Garner, that supra, words at 318. should be It is, strictly "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. doing so, the majority "strangle[s] [its] meaning." Id. In 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. circumvents what the legislature wrote. § 32.18 wrongly "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 17 No. Wis. 2d 377, 914 N.W.2d 660 (Rebecca Grassl 2018AP2383.rgb 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. 18 No. 1 2018AP2383.rgb
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