Wisconsin Constitution
Article I - Declaration Of Rights
Section 13 - Private property for public use.

The dismissal of an appeal for lack of prosecution in a condemnation action did not violate the condemnee's right to just compensation. Taylor v. State Highway Comm. 45 Wis. 2d 490, 173 N.W.2d 707.

The total rental loss occasioned by a condemnation is compensable, and a limitation to one year's loss was invalid. Luber v. Milwaukee County, 47 Wis. 2d 271, 177 N.W.2d 380.

A prohibition against filling in wetlands pursuant to an ordinance adopted under ss. 59.971 and 144.26 [now ss. 59.692 and 281.31] does not amount to a taking of property. Police powers and eminent domain are compared. Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761.

A special assessment against a railroad for a sanitary sewer laid along the railroad's right-of-way, admittedly of no immediate use or benefit to the railroad, did not constitute a violation of this section. Soo Line RR. Co v. Neenah, 64 Wis. 2d 665, 221 N.W.2d 907.

In order for the petitioner to succeed in the initial stages of an inverse condemnation proceeding, it must allege facts that, prima facie at least, show there has been either an occupation of its property under s. 32.10, or a taking, which must be compensated under the constitution. Howell Plaza, Inc. v. State Highway Comm. 66 Wis. 2d 720, 226 N.W.2d 185.

The owners of private wells ordered by the department of natural resources to seal them because of bacteriological danger are not entitled to compensation because such orders are a proper exercise of the state's police power to prevent a public harm, for which compensation is not required. Village of Sussex v. Dept. of Natural Resources, 68 Wis. 2d 187, 228 N.W.2d 173.

There must be a “taking" of property to justify compensation. DeBruin v. Green County, 72 Wis. 2d 464, 241 N.W.2d 167.

Condemnation powers are discussed. Falkner v. Northern States Power Co. 75 Wis. 2d 116, 248 N.W.2d 885.

Ordering a utility to place its power lines under ground in order to expand an airport constituted a taking because the public benefited from the enlarged airport. Public Service Corp. v. Marathon County, 75 Wis. 2d 442, 249 N.W.2d 543.

For inverse condemnation purposes, a taking can occur absent a physical invasion only when there is a legally imposed restriction upon the property's use. Howell Plaza, Inc. v. State Highway Comm. 92 Wis. 2d 74, 284 N.W.2d 887 (1979).

The doctrine of sovereign immunity cannot bar an action for just compensation based on the taking of private property for public use even though the legislature has failed to establish specific provisions for recovery of just compensation. Zinn v. State, 112 Wis. 2d 417, 334 N.W.2d 67 (1983).

Zoning classifications may unconstitutionally deprive property owners of due process of law. State ex rel. Nagawicka Is. Corp. v. Delafield, 117 Wis. 2d 23, 343 N.W.2d 816 (Ct. App. 1983).

Ordering a riparian owner to excavate and maintain a ditch to regulate a lake level was an unconstitutional taking of property. Otte v. DNR, 142 Wis. 2d 222, 418 N.W.2d 16 (Ct. App. 1987).

The operation of this section is discussed. W.H. Pugh Coal Co. 157 Wis. 2d 620, 460 N.W.2d 787 (Ct. App. 1990).

A taking by government restriction occurs only if the restriction deprives the owner of all or practically all use of property. Busse v. Dane County Regional Planning Comm. 181 Wis. 2d 527, 510 N.W.2d 136 (Ct. App. 1993).

A taking claim is not ripe for judicial review until the government agency charged with implementing applicable regulations has made a final decision applying the regulations to the property at issue. Taking claims based on equal protection or due process grounds must meet the ripeness requirement. Streff v. Town of Delafield, 190 Wis. 2d 348, 526 N.W.2d 822 (Ct. App. 1994).

Damage to property is not compensated as a taking. For flooding to be a taking it must constitute a permanent physical occupation of property. Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996), 95-0185.

A constructive taking occurs when government regulation renders a property useless for all practical purposes. Taking jurisprudence does not allow dividing the property into segments and determining whether rights in a particular segment have been abrogated. Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996), 93-2381.

Section 32.10 does not govern inverse condemnation proceedings seeking just compensation for a temporary taking of land for public use. Such takings claims are based directly on this section. Anderson v. Village of Little Chute, 201 Wis. 2d 467, 549 N.W.2d 561 (Ct. App. 1996), 95-1677.

The mandate of just compensation cannot be limited by statute or barred by sovereign immunity. Just compensation is not measured by the economic benefit to the state resulting from the taking, but by the property owner's loss. Just compensation is for property presently taken and necessarily means the property's present value presently paid, not its present value to be paid at some future time without interest. Retired Teachers Association v. Employee Trust Funds Board, 207 Wis. 2d 1, 558 N.W.2d 83 (1997), 94-0712.

When the state's constitution and statutes are silent as to the distribution of excess proceeds received when a tax lien is foreclosed on and the property is subsequently sold by the municipality, the municipality may constitutionally retain the proceeds as long as there has been notice sufficient to meet due process requirements. Due process does not require that notices state that should the tax lien be foreclosed and the property sold the municipality may retain all the proceeds. Ritter v. Ross, 207 Wis. 2d 476, 558 N.W.2d 909 (Ct. App. 1996), 95-1941.

The reversal of an agency decision by a court does not convert an action that might have otherwise been actionable as a taking into one that is not. Once there has been sufficient deprivation of use of property, there has been a taking even though the property owner regains full use of the land through rescission of the restriction. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609, 595 N.W.2d 730 (1999), 97-2869.

When a regulatory taking claim is made, the plaintiff must prove: 1) a government restriction or regulation is excessive and therefore constitutes a taking; and 2) any proffered compensation is unjust. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609, 595 N.W.2d 730 (1999), 97-2869.

A condemnation of property for a highway that was never built because an alternative route was found constituted a temporary taking entitling the owner to compensation, but not to attorney fees as there is no authority to award fees for an action brought directly under this section. Stelpflug v. Town of Waukesha, 2000 WI 81, 236 Wis. 2d 275, 612 N.W.2d 700, 97-3078.

A claimant who asserted ownership of condemned land, compensation for which was awarded to another as owner with the claimant having had full notice of the proceedings, could not institute an inverse condemnation action because the municipality had exercised its power of condemnation. Koskey v. Town of Bergen, 2000 WI App 140, 237 Wis. 2d 284, 614 N.W.2d 845, 99-2192.

A property owner who acquires property knowing that permits are required for development cannot presume that the permits will be granted and assumes the risk of loss in the event of denial. R.W. Docks & Slips v. State, 2000 WI App 183, 238 Wis. 2d 182, 617 N.W.2d 519, 99-2904.

The lessor under a long-term favorable lease who received no compensation for its leasehold interest under the unit rule when the fair market value of the entire property was determined to be zero was not denied the right to just compensation. City of Milwaukee VFW Post No. 2874 v. Redevelopment Authority of the City of Milwaukee, 2009 WI 84, 319 Wis. 2d 553, 768 N.W.2d 749, 06-2866.

Article I, Section 13 protects a wide variety of property interests recognized by state law. Contract rights are not the sine qua non for a property interest in a state fund. Property interests arise from a much broader set of factors than contract rights. A contractual relationship is a source of property interests, and that principle remains sound, but case law recognizes a broader scope of participant interests. These interests derive directly from statutory language and from the nature and purpose of the trust created by statute. Wisconsin Medical Society v. Morgan, 2010 WI 94, 328 Wis. 2d 469, 787 N.W.2d 22, 09-0728.

Health care providers have a constitutionally protected property interest in the injured patients and families compensation fund under s. 655.27, which defines the fund as an irrevocable trust, and the structure and purpose of which satisfy all the elements necessary to establish a formal trust. Because the health care providers are specifically named as beneficiaries of the trust, they have equitable title to the assets of the fund. The transfer of $200 million from the fund to another fund was an unconstitutional taking of private property without just compensation. Wisconsin Medical Society v. Morgan, 2010 WI 94, 328 Wis. 2d 469, 787 N.W.2d 22, 09-0728.

A taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner's property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property. The government airport operator bears responsibility if aircraft are regularly deviating from FAA flight patterns and those deviations result in invasions of the superadjacent airspace of neighboring property owners with adverse effects on their property. Placing the burden on the property owners to seek enforcement against individual airlines or pilots would effectively deprive the owners of a remedy for such takings. Brenner v. City of New Richmond, 2012 WI 98, 343 Wis. 2d 320, 816 N.W.2d 291, 10-0342.

Injury to property resulting from the exercise of the police power of the state does not necessitate compensation. A state acts under its police power when it regulates in the interest of public safety, convenience, and the general welfare of the public. The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. Claims for such “regulatory takings" must be brought under s. 32.10, the inverse condemnation statute. Hoffer Properties, LLC v. State of Wisconsin, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533, 12-2520.

To maintain an unconstitutional takings claim, four factors must be demonstrated: 1) a property interest exists; 2) the property interest has been taken; 3) the taking was for public use; and 4) the taking was without just compensation. Adams Outdoor Advertising Limited Partnership v. City of Madison, 2018 WI 70, 382 Wis. 2d 377, 914 N.W.2d 660, 16-0537.

A right to visibility of private property from a public road is not a cognizable right giving rise to a protected property interest. Adams Outdoor Advertising Limited Partnership v. City of Madison, 2018 WI 70, 382 Wis. 2d 377, 914 N.W.2d 660, 16-0537.

A New York law that a landlord must permit a cable television company to install cable facilities upon property was a compensable taking. Loretto v. Teleprompter Manhattan CATV Corp. 458 U.S. 419 (1982).

State land use regulation preventing beachfront development that rendered an owner's land valueless constituted a taking. When a regulation foreclosing all productive economic use of land goes beyond what “relevant background principals," such as nuisance law, would dictate, compensation must be paid. Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 120 L. Ed. 2d 798 (1992).

Seizure of private property in a forfeiture action under a warrant issued at an ex parte hearing to establish probable cause that a crime subjecting the property to forfeiture was committed, while possibly satisfying the prohibition against unreasonable searches and seizures, was a taking of property without due process. United States v. Good Real Estate, 510 U.S. 43, 126 L. Ed. 2d 490 (1993).

A municipality requiring the dedication of private property for some future public use as a condition of obtaining a building permit must meet a “rough proportionality" test showing it made some individualized determination that the dedication is related in nature and extent to the proposed development. Dolan v. City of Tigard, 512 U.S. 374, 129 L. Ed. 2d 304 (1994).

A taking claim is not barred by the mere fact that title to the property was acquired after the effective date of a state-imposed land use restriction. Palazzolo v. Rhode Island, 533 U.S. 606, 150 L. Ed. 2d 592 (2001).

A temporary moratorium on development imposed during the development of a comprehensive plan did not constitute a per se taking. Compensation is required when a regulation denies an owner all economically beneficial use of land. An interest in property consists of the metes and bounds of the property and the term of years that describes the owner's interest. Both dimensions must be considered in determining whether a taking occurred. A fee simple interest cannot be rendered valueless by a temporary prohibition on use. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 152 L. Ed. 2d 517 (2002).

Regulatory takings jurisprudence aims to identify regulatory actions that are functionally equivalent to classic takings in which government directly appropriates private property or ousts the owner from his or her domain. Each applicable test focuses upon the severity of the burden that government imposes upon private property rights. In this case lower courts struck down a rent control statute applicable to company owned gas stations as an unconstitutional regulatory taking based solely upon a finding that it did not substantially advance the state's asserted interest in controlling retail gasoline prices. The “substantially advances" test prescribes an inquiry in the nature of a due process, not a takings, test that has no proper place in takings jurisprudence. Lingle v. Chevron U.S.A. Inc. 544 U.S. 528, 161 L. Ed. 2d 876, 125 S. Ct. 2074 (2005).

The State may transfer property from one private party to another if there is a public purpose for the taking. Without exception, cases have defined the concept of public purpose broadly, reflecting a longstanding policy of deference to legislative judgments in this field. It would be incongruous to hold that a city's interest in the economic benefits to be derived from the development of an area has less of a public character than any other public interests. Clearly, there is no basis for exempting economic development from the traditionally broad understanding of public purpose. Kelo v. New London, 545 U.S. 162 L. Ed. 2d 439, 125 S. Ct. 2655 (2005).

Under Wisconsin eminent domain law, courts apply the unit rule, which prohibits valuing individual property interests or aspects separately from the property as a whole. When a parcel of land is taken by eminent domain, the compensation award is for the land itself, not the sum of the different interests therein. Hoekstra v. Guardian Pipeline, LLC, 2006 WI App 245, 298 Wis. 2d 165, 726 N.W.2d 648, 03-2809.

The lessor under a long-term favorable lease who received no compensation for its leasehold interest under the unit rule when the fair market value of the entire property was determined to be zero was not denied the right to just compensation. City of Milwaukee VFW Post No. 2874 v. Redevelopment Authority of the City of Milwaukee, 2009 WI 84, 319 Wis. 2d 553, 768 N.W.2d 749, 06-2866.

Consequential damages to property resulting from governmental action are not compensable under Article I, Section 13 or the takings clause of the 5th amendment. Here, the government did not physically occupy the plaintiff's property or use it in connection with the project in question, and the public obtained no benefit from the damaged property. Rather, the property was damaged as a result of alleged negligent construction. Accordingly, there was only damage, without appropriation to the public purpose. Such damage is not recoverable in a takings claim but instead sounds in tort. E-L Enterprises, Inc. v. Milwaukee Metropolitan Sewerage District, 2010 WI 58, 326 Wis. 2d 82, 785 N.W.2d 409, 08-0921.

The backing of water so as to overflow the lands of an individual, or any other superinduced addition of water, earth, sand, or other material, if done under statutes authorizing it for the public benefit, is a taking within the meaning of Art. I, sec. 13. Pumpelly v. Green Bay and Miss. Canal Co. 13 Wall. (U.S.) 166.

Government induced flooding, temporary in duration, gains no automatic exemption from takings clause inspection. When regulation or temporary physical invasion by government interferes with private property time is a factor in determining the existence of a compensable taking. Arkansas Game and Fish Commission v. United States, 568 U.S. 23, 133 S. Ct. 511, 184 L. Ed. 2d 417 (2012).

Precedents enable permitting authorities to insist that applicants bear the full costs of their development proposals while still forbidding the government from engaging in “out-and-out . . . extortion that would thwart the 5th amendment right to just compensation." The government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts. Extortionate demands for property in the land use permitting context run afoul of the takings clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation. Koontz v. St. Johns River Water Management District, 570 U.S. 595, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013).

The question of the proper parcel in regulatory takings cases cannot be solved by any simple test. Courts must define the parcel in a manner that reflects reasonable expectations about the property, considering a number of factors, including the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land. This endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his or her holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of our legal tradition. Murr v. Wisconsin, 582 U.S. ___, 137 S. Ct. 1933, 198 L. Ed. 2d 497 (2017).

Compensation for lost rents. 1971 WLR 657.