Pulvermacher Enterprises, Inc. v. State, Department of Transportation

479 N.W.2d 217, 166 Wis. 2d 234, 1991 Wisc. App. LEXIS 1601
CourtCourt of Appeals of Wisconsin
DecidedDecember 18, 1991
DocketNo. 91-0974
StatusPublished
Cited by3 cases

This text of 479 N.W.2d 217 (Pulvermacher Enterprises, Inc. v. State, Department of Transportation) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pulvermacher Enterprises, Inc. v. State, Department of Transportation, 479 N.W.2d 217, 166 Wis. 2d 234, 1991 Wisc. App. LEXIS 1601 (Wis. Ct. App. 1991).

Opinion

BROWN, J.

This is the state's appeal from an order in a condemnation case. Here, the condemnee's building sat on both the condemned property and on [236]*236adjacent property owned by the state. The state's appraiser refused to give any value to the building, opining that the building illegally encroached upon the state's property.

The central issue is whether the trial court had authority to determine an adverse possession claim by the condemnee regarding state property lying adjacent to, but not the subject of, the condemnation. If so, a further question is whether the trial court erred in deciding the case without benefit of trial. We hold that the trial court had statutory authority to determine the claim, but that the state was entitled to try whether the condemnee adversely possessed its property. We affirm in part, reverse in part and remand with directions to try the case.

The state was in the process of improving Highway 23 proceeding through the city of Princeton. In Princeton, this is Main Street. Abutting Main Street on its north side is the Pulvermacher Enterprises, Inc. property. The taking in this instance was for a temporary highway easement in order to slope the property. Nonetheless, a Pulvermacher building sitting on the subject property would have to be destroyed.

The state was unable to negotiate the acquisition of this property with Pulvermacher and issued a jurisdictional offer that was refused. The state made its award of damages and Pulvermacher then appealed to the circuit court for a trial to determine the just compensation. In the course of discovery, Pulvermacher learned that the state's appraiser was giving no value for the building that must be destroyed because part of it encroached upon state property — that being the state's right-of-way for Highway 23. The appraiser opined that the encroachment was illegal, and thus, the building was of no value.

[237]*237Briefs were submitted to the trial court prior to trial. The state anticipated that Pulvermacher would seek to dispute the appraiser's opinion by alleging that its building had been encroaching on the right-of-way in an open and notorious state for more than forty years. The state objected to this expected adverse possession claim on various grounds. Its major objection was that the claim would involve property which was not the subject of the condemnation; rather, it would involve adjacent property. The state argued that the statutes do not provide authority for the condemnee to contest a title question unless it involves the property which is the subject of the condemnation.

As anticipated, Pulvermacher's brief raised the adverse possession claim. After briefing was completed, the trial court did not discuss whether it had the authority to entertain the adverse possession claim, but it did rule that the claim was the real issue in the case. It then held, as a matter of fact and without a trial, that the subject building and another building were built in 1933 and 1935. The trial court found that Pulvermacher had been in open adverse possession of the encroached property for over fifty years. It ordered the state to file a new taking based on a new set of appraisals, taking the adversely possessed property into consideration.

The state sought clarification of the order and the trial court wrote that it had authority to decide the adverse possession issue because it "was briefed by both parties and submitted to the court." The state thereafter appealed.

The initial question is whether Pulvermacher can raise the adverse possession claim involving property that is not the subject of the condemnation proceeding. The state maintains that there is no statutory authority [238]*238for Pulvermacher to raise the claim in this proceeding or for the trial court to entertain the issue even if raised. We must therefore interpret the statutes. Statutory interpretation is a question of law that we review de novo and without deference to the trial court. L&W Constr. Co. v. DOR, 149 Wis. 2d 684, 688-89, 439 N.W.2d 619, 620 (Ct. App. 1989).

A preliminary question raised by the parties concerns the proper standard of review in interpreting the statutes relating to this case. The state points to the oft-quoted maxim that since condemnation statutes are in derogation of common law, they must be strictly construed. See Maxey v. Redevelopment Auth., 120 Wis. 2d 13, 28, 353 N.W.2d 812, 820 (Ct. App. 1984). However, our supreme court has explained the proper standard of review when interpreting our condemnation statutes. In Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 742-43, 349 N.W.2d 661, 668-69 (1984), the court wrote:

[T]his court has recognized that the rule of strict construction should be applied to the condemnor's power and to the exercise of this power. This is because the exercise of the power of eminent domain has been characterized as an "extraordinary power," and the rule of strict construction is intended to benefit the owner whose property is taken against his or her will .... Conversely, statutory provisions in favor of the owner, such as those which regulate the compensation to be paid to him or her, are to be afforded liberal construction. [Citations omitted.]

Because the statutes we construe in this case concern the remedies available to the owner and the compensation to be paid to it, we liberally construe the statutes.

The state focuses on that part of sec. 32.05(11), Stats., concerning the issues which may be tried when a [239]*239condemnee appeals the governmental entity's award of damages to the circuit court. The statute reads that " [t]he sole issues to be tried shall be questions of title, if any, under ss. 32.11 and 32.12 and the amount of just compensation to be paid by the condemnor." The state argues that adverse possession is a question of title. Because it is a question of title, the state reasons that it may only be raised if the issue comes under either sec. 32.11 or 32.12, Stats., of our condemnation statutes.

We reject the state's initial premise that an adverse possession claim can only be a question of title. Under the facts in this case, the adverse possession claim also relates to the question of "just compensation." Reading the statute liberally in favor of the condemnee as we must, it is obvious that the condemned property's value very much depends upon whether the building standing upon the property illegally encroaches upon state property. This is because "just compensation" is ordinarily determined by the value the property would obtain at a hypothetical sale to a willing buyer in a private market. Milwaukee & Suburban Transp. Corp. v. Milwaukee County, 82 Wis. 2d 420, 438, 263 N.W.2d 503, 513 (1978). If the condemnee has a valid adverse possession claim, that claim is probative regarding whether the building has value and is thus relevant to the value of the land upon which the building sits. Thus, the adverse possession claim is properly before the court as part of the "just compensation" issue.

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Bluebook (online)
479 N.W.2d 217, 166 Wis. 2d 234, 1991 Wisc. App. LEXIS 1601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pulvermacher-enterprises-inc-v-state-department-of-transportation-wisctapp-1991.