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  • InsideTrack
  • September 02, 2015

    Protect Your Client: Updated Wisconsin Condemnation Law and Practice Guides You Through Your Next Eminent Domain Case

    Whether you represent a business, a residential landowner, or a governmental entity, you can find your way with State Bar of Wisconsin PINNACLE Wisconsin Condemnation Law and Practice.

    Sept. 2, 2015 – Newly updated for 2014-15, this book informs you about recent cases, guides you through the key stages of an eminent-domain trial, provides practice tips involving jury selection, and teaches you how to present the case.

    What steps should you take when analyzing your eminent domain case? The answers are there for you in Wisconsin Condemnation Law and Practice.

    The First Step: Is there a Compensable Taking?

    The first step in an eminent domain case “is to determine whether the governmental action is a compensable taking,” write attorneys John M. Van Lieshout and Richard W. Donner in the opening chapter of Wisconsin Condemnation Law and Practice.1

    Learn from recent cases, including these:

    • Scenario 1 – Airplane overflight cases

      These might result in a taking “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 Wisconsin Supreme Court held in a case brought by an airport’s neighboring property owners after the airport’s runway expansion.2

    • Scenario 2 – “Temporary” flooding cases

      The U.S. Supreme Court says that these scenarios also can result in a taking, although such cases “should be assessed with reference to the ‘particular circumstances of each case” – such as the duration of the invasion and the severity of the interference.3 The Wisconsin Supreme Court, however, has clarified that “government action of some sort is a prerequisite for a taking under the constitution,”4 which the Wisconsin Court of Appeals has interpreted to mean that alleged governmental inaction – e.g., the failure to act on knowledge that a resident’s property was below the lowest elevation of a village’s dam – cannot form the basis for a takings claim.5

    The Money Question:  How Much Compensation is the Owner Entitled to?

    Once the property owner has established a taking, the “only issues to be tried in an eminent domain case are questions of title and compensation,” Lieshout and Donner state in the Condemnation Law book’s chapter on “The Trial of an Eminent Domain Case.”6

    This chapter sets out the key stages of an eminent-domain trial, providing practice tips about jury selection and how to present the case.  The authors also give an overview of pretrial matters – how to select an appraiser, take pretrial depositions, and bring pretrial motions, including motions in limine to exclude specific evidence (e.g., privileged expert testimony7).

    Find Your Answers: Add This Important Book to Your Library

    Condemnation Law and Practice in Wisconsin is available both in print and online via Books UnBound®. Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price.  

    Annual subscriptions to Books UnBound start at $149 per title (single-user price; call for full-library and law-firm pricing).  For more information or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.


    1 John M. Van Lieshout & Richard W. Donner, Condemnation Law and Practice in Wisconsin § 1.4 (2009 & Supp. 2015).

    2 Brenner v. New Richmond Regional Airport Comm’n, 2012 WI 98, ¶ 4, 343 Wis. 2d 320, 816 N.W.2d 291.  Find out more about this case in Joe Forward, “Supreme Court Unanimous: Taking Can Occur if Aircraft Frequently Flies Too Low,InsideTrack (State Bar of Wis., Madison, Wis.), Aug. 10, 2012.  On remand, the circuit court ultimately dismissed the property owners’ inverse condemnation action, after determining that the overflights had not caused the diminished value of the property. The court of appeals affirmed that decision. Brenner v. City of New Richmond, No. 2014AP799 (Wis. Ct. App. May 27, 2015).

    3 Arkansas Game & Fish Commission v. United States, 133 S. Ct. 511, 521 (2012).

    4 Brenner, 2012 WI 98, ¶ 83, 343 Wis. 2d 320.

    5 Fromm v. Village of Lake Delton, 2014 WI App 47, ¶ 33, 354 Wis. 2d 30, 847 N.W.2d 845 (review denied).  For more information about the court of appeals’ holding in the Lake Delton case, see Joe Forward, “Flooding Event Involving Village-Controlled Dam Not a Taking of Property,” InsideTrack (State Bar of Wis., Madison, Wis.), Apr. 3, 2014.

    6 Lieshout & Donner, supra note 1, § 8.1.

    7 See, e.g., Savage v. American Transmission Co., 2013 WI App 20, 346 Wis. 2d 130, 828 N.W.2d 244.

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