United America, LLC v. Wisconsin Department of Transportation

2021 WI 44

• Court: Wisconsin Supreme Court
• Decided: May 18, 2021
• Docket: 2018AP002383
• Status: Published

Opinion

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: May 18, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 11, 2021

SOURCE OF APPEAL: COURT: Circuit COUNTY: Lincoln JUDGE: 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,

Plaintiff-Respondent-Petitioner, FILED v. MAY 18, 2021

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. Affirmed.

¶1 REBECCA FRANK DALLET, J. The 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

1All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. No. 2018AP2383

not.2 We agree and therefore affirm the court of appeals'

decision.

I. BACKGROUND

¶2 United America operated a gas station and convenience

store on its land that abuts the intersection of Highway 51 and

Northstar Road.3 A paved driveway connected to Northstar Road

provided the only access to United America's facilities.4

Customers traveling on Highway 51 patronized United America's

business by turning onto Northstar Road at what was once an

at-grade intersection.

¶3 That convenient access from Highway 51 to United

America's facilities disappeared, however, when 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. Because of that added inconvenience, Highway 51 traffic largely stopped

United Am., LLC v. DOT, 2020 WI App 24, 392 Wis. 2d 335, 2

944 N.W.2d 38 (reversing the judgment of the Lincoln County Circuit Court, the Honorable Jay R. Tlusty presided).

United America's parcel is located in the Southwest corner 3

of where Highway 51 (running North-South) and Northstar Road (running East-West) intersect.

United America cannot directly access Highway 51 from its 4

property because the previous property owner sold the property's direct access rights to the DOT.

2 No. 2018AP2383

patronizing United America's business. United America's revenue

subsequently suffered and its property's value decreased.

United America sought compensation from the DOT for that

diminished property value under Wis. Stat. § 32.18.

Section 32.18 requires the DOT, in the 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 United America timely commenced an action in the

circuit court against DOT, alleging that Wis. Stat. § 32.18

entitled it to "damages to [its] lands, property, and property

value[]" occasioned by the change in Northstar Road's grade. At

the ensuing bench trial, United America and DOT 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

5A 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.

3 No. 2018AP2383

loss of convenient access to the flow of 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. ANALYSIS

¶6 We review de novo the interpretation and application

of Wis. Stat. § 32.18. Moreschi v. Vill. of Williams Bay, 2020

WI 95, ¶13, 395 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 defined, their common, ordinary, and

accepted meaning. Id., ¶45; Wis. Stat. § 990.01(1). 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 argues for a

liberal reading of Wis. Stat. § 32.18. It accuses the court of

appeals of ignoring the legislature's choice of the broad phrase

"any damages" by impermissibly limiting that phrase to "structural or physical" damages. Similarly, United America

5 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. United

America also contends that § 32.18 should be 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 to the lands"——rather

than that phrase itself. 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." That conclusion follows from the text of § 32.18, 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 to lands" suffices to

resolve this case.

6 No. 2018AP2383

A

¶11 Under common law, a landowner cannot recover for

consequential injuries, including a diminution in 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). The legislature, however, has enacted limited

and specific exceptions to that rule, including Wis. Stat.

§ 32.18. Section 32.18 allows certain landowners (those

abutting a highway change-of-grade project) to 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 property directly connected with lands." That

definition differentiates several elements of "property" by

their relationship to "lands." Estates in lands, for instance,

The "police power" is the government's authority to act 6

"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).

7 No. 2018AP2383

comprise the intangible interests one can have in lands. See

Restatement (First) of Property § 9 (1936). Similarly,

"personal property directly connected with lands" indicates that

the legislature uses the term "lands" to denote a separate

category than "personal property." 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" is a

narrower category of injuries than "damages to property." 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.

7Because 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).

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 injuries. But only

§ 32.09(6)(f), which applies when there is an 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 the language "any damages . . . to [an abutting

landowner's] property" encompassed the "diminution in market

value of [her] property" caused by a "deflection of travel with

consequent loss of existing prospective patronage." Voigt v.

9 No. 2018AP2383

Milwaukee Cnty., 158 Wis. 666, 668-70, 149 N.W. 392 (1914).8 No

similar holding exists regarding "damages to the lands." And we

presume that when the legislature enacted both §§ 32.18

and 32.09(6)(f), it did so with "full knowledge" of this

difference in our case law. See Strenke, 279 Wis. 2d 52, ¶28.

Thus, when the legislature simultaneously enacted those

provisions but used the phrase "damages to property" in

§ 32.09(6)(f) and not § 32.18, one implication is that the

legislature chose to compensate an owner's diminution 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. And, as we have held for

over 175 years, we "strictly 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. 2018AP2383

minimize their effect on the common law.9 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 the rules of the common law, has always been

construed strictly"). The legislature did just 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. Stat.

§ 32.09](5)(b) and (6) and [Wis. Stat. §] 32.19." (Emphasis

added.). 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,

9The 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).

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 barring compensation for a diminution in

property value. See Nick, 13 Wis. 2d at 514-15; Strenke, 279

Wis. 2d 52, ¶29.

¶17 To summarize our plain-meaning analysis, the

legislature indicated in two ways that Wis. Stat. § 32.18

excludes from its specified class of compensable injuries a

property's diminution in value. First, instead of 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 Although our plain-meaning interpretation of Wis.

Stat. § 32.18 fully resolves our interpretive inquiry, 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 plain-

meaning interpretation."); Westmas v. Creekside Tree Serv.,

Inc., 2018 WI 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 legislature enacted that provision verbatim as

§ 32.09(4). See § 1, ch. 639, Laws of 1960. 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 by

deviating from the proposal in three significant ways. See id.

The proposal came from Governor Vernon Thomson's Study 10

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).

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. Stat. § 32.09(6)(f)11 for grade changes involving a

taking. 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. See id. The

legislature's third deviation was its decision to "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. And each choice confirms our plain-meaning conclusion that a property's

Wisconsin Stat. § 32.09(6)(f) was originally enacted as 11

Wis. Stat. § 32.09(5)(g) (1959-60), but aside from a renumbering, the provision remains unchanged.

14 No. 2018AP2383

diminution in value falls outside the class of consequential

"damages to the lands" compensable under § 32.18.12

C

¶20 United America's textual argument to the contrary

incorrectly focuses on the general term "any damages" while

ignoring the limiting phrase "to the lands." 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, Oxford English Dictionary (3d ed. 2016) (defining the

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 12 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.

"We rely on dictionary definitions when the legislature 13

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.

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. See State v. A.L., 2019

WI 20, ¶20, 385 Wis. 2d 612, 923 N.W.2d 827. For similar

reasons, we reject United America's arguments regarding

"occasioned," "damages," and the statute's supposed remedial

nature. 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 14

"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).

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III. CONCLUSION

¶22 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 of the court of appeals is

affirmed.

17 No. 2018AP2383.rgb

¶23 REBECCA GRASSL BRADLEY, J. (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. The at-grade roads facilitated convenient entrance to United

1 No. 2018AP2383.rgb

America's business. 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 the Highway 51/Northstar Road intersection and

converted Northstar Road to a bridge over Highway 51. DOT

refused to provide for on- and off-ramps that would preserve

convenient access to United America's business at the

intersection, despite Bhandari imploring DOT to do so. 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. United America's business suffered a

dramatic loss of revenue, 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

1Both 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]."

2 No. 2018AP2383.rgb

damages. 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. After a bench trial, the circuit court ruled in

favor of 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 "after-

value" 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.

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to the Court through appraisals," finding 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 its reasoning, the majority nevertheless

affirms the court of appeals decision, concluding that "a

property's diminution in value falls outside the scope of

'damages to lands.'" Majority op., ¶10. 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,

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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 the lands" resulting from a DOT change-of-grade

project, and nothing in the statutory 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. § 32.18

(emphasis added). Accordingly, the circuit court 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: (1) "any damages," and (2) "to

the lands." "[S]tatutory interpretation begins with the

language of the statute. If the meaning of the statute is

plain, we ordinarily stop the inquiry." State ex rel. Kalal v.

3For 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.

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Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,

681 N.W.2d 110. Under its most reasonable interpretation, the

phrase "any damages" means precisely what it says: "any

damages," without exception. Wis. Stat. § 32.18 (emphasis

added). "Damages" means any "[m]oney claimed by, or ordered to

be paid to, 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 v. Benkowski, 37 Wis. 2d 285, 290, 155 N.W.2d 74 (1967). As this court explained decades ago regarding

land rights, "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. The meaning of

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"any" refers to "any one of the sort named." Any, Oxford

English Dictionary 94 (6th ed. 2007). Under the plain meaning

of the statutory language, any and all types of damages to the

lands are recoverable. Had the legislature wanted to limit the

meaning of "damages" solely to "structural damages," as the

court of appeals decided, or to exclude 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." Doing so

violates the general-terms canon of statutory construction,

under which "[g]eneral terms are to be given their general

meaning." Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 101 (2012); 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. They are not to be

arbitrarily limited." Scalia & Garner, supra, at 101. "[T]he

presumed point of using general words is to produce general

coverage——not to leave room for courts to recognize ad hoc

exceptions." Id. Unlike the court of appeals, the majority in

this case deems it unnecessary to decide "the full scope of

'damages to the lands.'" Majority op., ¶10. Nevertheless, it arbitrarily construes "any damages" to exclude "a property's

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diminution in value." Id. There is no textual basis to support

this exclusion.

¶33 The error of the majority's circumscription of the

statutory text is illustrated by another case in 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)). In that case, the

government initiated forfeiture actions against real estate

allegedly used for an illegal gambling business. South Half,

910 F.2d at 489. 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), "land" means "lands, tenements and

hereditaments and all rights thereto and interests therein." (emphasis added). Contrary to the court of appeals' conclusion

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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. See Tenements, Black's Law Dictionary 1771

(19th. ed. 2019) ("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. Stat. § 990.01(18)'s

definition of "land" in a footnote. 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) contravenes "the otherwise manifest statutory

meaning." 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." Wis.

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Stat. § 990.001(1). 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 conclusive." Scalia & Garner, supra, at 228.

While the legislature's definition of "lands" may be inconvenient for the majority's analysis, that does not give the

majority license to ignore it.

¶37 Applying the statutory definition of "lands," the

dramatic loss in the value of United America's property

constitutes "damage" to the "lands"——specifically, an

"interest[] therein." 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." See Jantz v. DOT, 63

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Wis. 2d 404, 411, 217 N.W.2d 266 (1974) (noting that, under

§ 32.18, compensable damages could include "loss of view, loss

of direct access, loss of income, and change of grade"). As the

circuit court determined, United America's property had been

valued at $600,000 prior to DOT's change-of-grade project, but

plummeted to a value of $71,500 upon project completion,

resulting in a loss in value of $528,500. Under the plain text

of § 32.18, United America may recover the full value of the

circuit court's award.

¶38 Rather than applying the plain language of Wis. Stat.

§ 32.18, the majority adopts an interpretation crafted by

comparisons to a "closely related provision" in Wis. Stat.

§ 32.09(6)(f), which allows compensation for "damages to

property" due to a change of grade resulting in a partial

taking. 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) concerns "all matters involving the

determination of just compensation in eminent domain

proceedings"——that is, when there is a taking. (Emphasis

added). Matter of Condemnation by Redevelopment Auth. of City

of Green Bay, 120 Wis. 2d 402, 409, 355 N.W.2d 240 (1984)

(describing eminent domain as a process where an owner's property "is taken against his or her will"). By contrast,

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§ 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"). As we have

plainly established, "Section 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 The majority makes the same mistake in relying upon

Wis. 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

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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. See Klingseisen, 22 Wis. 2d at 368. The

majority's resort to takings statutes as a mechanism for

interpreting § 32.18 fails to buttress its analysis and only

compounds the majority's error.

¶40 The majority's statutory analysis takes a circuitous

path, 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. This methodology violates the ordinary-meaning

canon of statutory interpretation, "the most fundamental

semantic rule of interpretation." Scalia & Garner, supra, at

69. "Words are to be understood in their ordinary, everyday

meanings——unless the context indicates that they bear a

technical sense." Id.; see Wisconsin Ass'n of State Prosecutors

v. WERC, 2018 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)). Judges "should not make" interpretation

"gratuitously roundabout and complex." Id. at 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

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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. Jantz, 63 Wis. 2d at

407-08. 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). See

id. at 409-11. This court held that Jantz could not recover

under § 32.09(6) in the absence of a "constructive taking";

therefore, Jantz could not collect damages related to "loss of

view, loss of income, and circuity of access due to

the . . . change of grade of Maple Road." Id. at 411-12. Notably, however, the Jantz court identified § 32.18 as the

proper basis for Jantz's claim for these damages. 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. 2018AP2383.rgb

Id. at 411 (emphasis added) (citations 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 court reiterated this conclusion less than a

decade ago. 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

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itself. Betraying the internal contradictions of its analysis,

the majority notes that while "[u]nder common law, a landowner

cannot recover for consequential injuries, including a

diminution in property value resulting from the exercise of

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." Majority op., ¶11 (emphasis added). The

statutory text, using "clear, unambiguous and 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 op., ¶15. "Any damages"

clearly and unambiguously encompasses diminution in property

value. The majority absurdly believes the statute must say

"this statute abrogates the common law," majority op., ¶16

("nowhere does any statute identify Wis. Stat. § 32.18 as

abrogating the common law"), but statutory changes to prior law

"need not be express"——they need only be clear. Scalia & Garner, supra, at 318. With no explanation, the majority

confidently declares that Wis. Stat. § 32.09(4) clearly

abrogates the common law but § 32.18 somehow fails the

majority's amorphous test of clarity. 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 the remedy that the legislature intended to be afforded." Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI

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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." Scalia & Garner, supra, at 33.

Instead, the majority opts 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. Scalia & Garner, supra, at 318. It is,

however, a "false notion that words should be strictly

construed." Id. at 355. "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. Id. In

doing so, the majority "strangle[s] [its] meaning." 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. § 32.18 wrongly

circumvents what the legislature wrote. "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

Wis. 2d 377, 914 N.W.2d 660 (Rebecca Grassl 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.

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