                                                                        2013 WI 77

                  SUPREME COURT                 OF     WISCONSIN
CASE NO.:                 2012AP805 & 2012AP840
COMPLETE TITLE:           Scott N. Waller and Lynnea S. Waller,
                                    Plaintiffs-Respondents,
                               v.
                          American Transmission Company, LLC,
                                    Defendant-Appellant.


                                 ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED:            July 16, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            April 10, 2013

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Walworth
   JUDGE:                 James L. Carlson

JUSTICES:
   CONCURRED:
   DISSENTED:             BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
                          filed.)
     NOT PARTICIPATING:   GABLEMAN, J., did not participate.

ATTORNEYS:
         For the defendant-appellant, there were briefs by Katherine
Stadler, Bryan J. Cahill, and Godfrey & Kahn, S.C., Madison, and
oral argument by Katherine Stadler.


         For the plaintiffs-respondents, there were briefs by Hugh
R. Braun, Nicholas R. DiUlio, and Godfrey, Braun & Frazier, LLP,
Milwaukee, and oral argument by Hugh R. Braun.


         There was an amicus curiae brief by Trevor J. Will, Bradley
D.     Jackson,        Krista   J.   Sterken,    and    Foley   &   Lardner,   LLP,
Madison, on behalf of the Wisconsin Utilities Association.
                                                                         2013 WI 77
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.   2012AP805 & 2012AP840
(L.C. No.   2008CV520 & 2010CV691)

STATE OF WISCONSIN                             :            IN SUPREME COURT

Scott N. Waller and Lynnea S. Waller,

            Plaintiffs-Respondents,
                                                                      FILED
      v.
                                                                 JUL 16, 2013
American Transmission Company, LLC,
                                                                    Diane M. Fremgen
            Defendant-Appellant.                                 Clerk of Supreme Court




      APPEAL    from   final   judgments   of       the    Circuit       Court     for

Walworth County, James L. Carlson, Judge.              Affirmed.


      ¶1    DAVID T. PROSSER, J.         This case is before the court

on a petition for bypass of the court of appeals pursuant to
Wis. Stat. (Rule) § 809.60 (2011–12).1             We are asked to interpret

the condemnation procedures in Wis. Stat. § 32.06 and determine
the   rights   of   property    owners   who       claim    that     a   taking      of

property has left them with an "uneconomic remnant."



      1
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
                                                        No.         2012AP805 & 2012AP840



       ¶2       American Transmission Company, LLC (ATC) condemned a

pair       of   easements    on    the   residential      property      of    Scott    and

Lynnea Waller (the Wallers) to facilitate the construction and

placement        of    high-voltage      transmission      lines.         The      Wallers

claimed         that   the   easements       diminished       the    value    of    their

property so much that they were left with an uneconomic remnant.

The Wallers contend that they are entitled to certain rights as

the owners of property that has substantially impaired economic

viability as a result of a partial taking.

       ¶3       The    Walworth     County   Circuit    Court2       agreed     with   the

Wallers, concluding that their property, after the taking of the

easements, was an uneconomic remnant.                  It ordered ATC to acquire

the entire property.              The circuit court also awarded the Wallers

litigation costs and relocation expenses as "displaced persons"

when they moved from the property after the taking.

       ¶4       The specific issues before this court are as follows:

            (1) At what point in a Wis. Stat. § 32.06
       condemnation proceeding must a property owner raise an
       uneconomic remnant claim?

            (2) Were the Wallers left with an                          uneconomic
       remnant after ATC took two easements                             on their
       property?

            (3) Are          the     Wallers     entitled      to      litigation
       expenses?

            (4) Are    the    Wallers   "displaced                      persons,"
       entitling them to relocation benefits?




       2
           Judge James L. Carlson, presiding.

                                             2
                                                                  No.       2012AP805 & 2012AP840



       ¶5    We affirm the circuit court and reach the following

conclusions.

       ¶6    First,         Wis.     Stat.      § 32.06(5),              the     "right-to-take"

provision, sets out the proper and exclusive way for a property

owner to raise a claim that the owner will be left with an

uneconomic remnant after a partial taking by the condemnor.                                       An

uneconomic      remnant       claim         should      be    brought          under    § 32.06(5)

because the condemnor has failed to include an offer to acquire

any uneconomic remnant in the condemnor's jurisdictional offer.

The   inclusion        of    an    offer      to       acquire      an    uneconomic        remnant

acknowledges      the       existence         of       the    uneconomic         remnant.        The

exclusion of such an offer indicates that the condemnor disputes

the existence of an uneconomic remnant.                             A right-to-take action

must be decided promptly by the court and shall not prevent the

condemnor       from        filing      a     simultaneous               valuation       petition,

proceeding       thereon,         and    taking         any       property       interest     whose

condemnation is not being directly contested by the owner.                                         A

right-to-take action on an uneconomic remnant claim is designed
to    protect    an     owner's         right      to    fair       compensation         to   avoid

economic hardship, not to paralyze public interest takings under
eminent domain.

       ¶7   Second,         the    Wallers'            property,        after     ATC    took    two
easements       for    transmission           lines,         is    an     uneconomic       remnant

because it is of such size, shape, and condition as to be of
substantially          impaired          economic            viability           as     either    a

residential or an industrial parcel.                               The taking of the two

easements       drastically          reduced           the    portion       of    the     Wallers'
                                                   3
                                                     No.        2012AP805 & 2012AP840



property not subject to a servitude.                 The easements themselves

not only restricted the Wallers' activity in the easement area

but        also    substantially        diminished          the      desirability,

practicality, and value of the Wallers' property for either a

residential or industrial user.

       ¶8     Third,   the    Wallers     prevailed        on   their    uneconomic

remnant claim brought under Wis. Stat. § 32.06(5)——the right-to-

take       statute——and,     therefore,       were   entitled      to    litigation

expenses under Wis. Stat. § 32.28.

       ¶9     Finally, the Wallers were displaced persons under Wis.

Stat. § 32.19(2)(e)1.a. because they moved "as a direct result"

of ATC's jurisdictional offer, and the circuit court's findings

of fact on this issue are not clearly erroneous.

               I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       ¶10    These consolidated cases3 come before the court with a

long and complicated history; the uneconomic remnant claim alone

has been the subject of three proceedings before the circuit

court and two appeals before the court of appeals.                        We begin
with background information on the Waller property, ATC, and the

negotiations between the two parties before ATC's jurisdictional
offer to acquire the two easements for its transmission lines.

Second, we summarize the Wallers' right-to-take action, along
with ATC's simultaneous petition to determine just compensation

       3
       This petition for bypass is composed of two cases
consolidated for purposes of appeal. The first case, 2008CV520
(No. 2012AP805) is the Wallers' relocation benefits case.    The
second case, 2010CV691 (No. 2012AP840) is the Wallers' right-to-
take action.

                                          4
                                                           No.         2012AP805 & 2012AP840



for the taking of the easements.                    Third, we examine the holding

and reasoning in the first court of appeals decision, Waller v.

American       Transmission      Co.,        LLC,        2009     WI     App     172,     322

Wis. 2d 255, 776 N.W.2d 612 (Waller I).                        Fourth, we explain the

circuit court proceedings after the first remand from the court

of appeals.       Fifth, we examine the holding and reasoning in the

second        court    of     appeals        decision,          Waller      v.    American

Transmission      Co.,      LLC, 2011       WI    App    91,     334    Wis. 2d 740,      799

N.W.2d 487 (Waller II).                  Sixth, we recount the proceedings in

the circuit court            on the       uneconomic       remnant      issue    after    the

second remand.         Finally, we examine the circuit court's findings

and     conclusions      on    the       issues     of    litigation        expenses     and

relocation benefits.

                        A. The Waller Property and ATC

        ¶11    In 1989 the Wallers purchased a 1.5 acre triangular

lot in the Town of Delavan in Walworth County.                           The property is

bounded on the east by Interstate 43, on the north by Mound

Road, and on the west by a vacant lot.                      The property——zoned A-1

Agricultural——includes               a      single-family              residence,        site

improvements, landscaping, and outbuildings.

        ¶12    The Waller property had several encumbrances burdening

it before the easements taken by ATC.                           First, a transmission

line with a 20-foot-wide easement burdened the property along

Mound    Road     on   the    north        before    the    Wallers        purchased     the

property.       Second, the property was subject to highway setbacks

along both Mound Road (25 feet) and Interstate 43 (50 feet).


                                              5
                                                               No.       2012AP805 & 2012AP840



        ¶13    For almost 20 years, the rural farmette served as the

Wallers' home.4               However, in the years since 1989 the character

of the land surrounding the Wallers' property changed.                                 By 2008

nearby      land     that         was    once    agricultural        became    an   industrial

park.

      ¶14      ATC       is       a   Wisconsin     limited      liability      company     and

public utility regulated by the Public Service Commission of

Wisconsin       (the          PSC)5       and     the    Federal       Energy       Regulatory

Commission.          The legislature authorized the creation of ATC and

designated it as a "public utility," an electric "transmission

company,"          and        a       "transmission       utility."             Wis.     Stat.

§§ 196.01(5), 196.485(1)(ge), 196.485(1)(i).                            See also 1999 Wis.

Act 9.        Wisconsin Stat. § 32.02(5)(b) vests entities like ATC

with the power of eminent domain.

        ¶15    Public utilities may not undertake work on a project

like a high-voltage transmission line unless they have obtained

the   requisite          approval         from    the    PSC    and    the     Department    of

Natural       Resources           (the    DNR).         See    Wis.    Stat.    § 196.491(3)

(requiring the PSC to issue a certificate of public convenience

and necessity before the construction of a "facility" like a


        4
       The Wallers used their property to raise chickens and
turkeys and pasture sheep.  The Wallers also had an extensive
garden on the property.
        5
       The Public Service Commission (PSC) "has jurisdiction to
supervise and regulate every public utility in this state and to
do all things necessary and convenient to its jurisdiction."
Wis. Stat. § 196.02(1).    See also Indus. Energy Grp. v. Pub.
Serv. Comm'n, 2012 WI 89, ¶26, 342 Wis. 2d 576, 819 N.W.2d 240.

                                                   6
                                                    No.       2012AP805 & 2012AP840



high-voltage transmission line).               Thus, when ATC proposed an

upgrade and expansion of an existing transmission line in and

around the City of Delavan, the statutes required administrative

proceedings before the PSC and the DNR.               One of the proceedings

included a public hearing at the PSC in Madison at which Scott

Waller testified.        He expressed concern about possible health

hazards and impairment of property values resulting from the

placement of high-voltage transmission lines affecting two sides

of his property.

      ¶16   Ultimately, on March 30, 2006, the PSC issued ATC a

certificate      of    public    convenience     and       necessity       for   the

utility's project.         The    PSC   determined     that    the    upgrade    and

expansion of transmission lines "[would] not have undue adverse

impacts on . . . public health and welfare."

      ¶17   Having received the requisite regulatory approval, ATC

proceeded to acquire the land and easements needed to advance

the project.      These acquisitions included the easements on the

Waller property.
      ¶18   As   explained       previously,    the       Waller     property    was

already burdened by a 20-foot-wide easement from an existing
transmission line on the north side along Mound Road, highway

setbacks along Mound Road, and highway setbacks along Interstate
43.

      ¶19   ATC sought to purchase two easements on the Waller
property.        The   first     easement   would      overlay       the   existing

transmission line easement on the north side of the property,

but widen the easement to 45 feet——an extension of 25 feet over
                                        7
                                                         No.      2012AP805 & 2012AP840



the existing easement.              The second easement would be 45 feet

wide and run along the east side of the property——within the 50

foot       highway   setback     from     Interstate     43.      In   addition,     ATC

sought to install a large utility pole in the northeast corner

of   the     property     to    support    conductor      wires    and   distribution

lines.6

       ¶20     Pursuant    to    Wis.     Stat.    § 32.06(2)(a),7       ATC    retained

John Rolling (Rolling) of Rolling & Co. to conduct an appraisal


       6
       The easement authorized ATC to do the following:
"Construct,   install,    operate,  maintain,  repair,   replace,
rebuild, remove, relocate, inspect and patrol a line of
structures, comprised of wood, concrete, steel or of such
material as Grantee may select, and wires, including associated
appurtenances   for   the   transmission  of  electric   current,
communication facilities and signals appurtenant thereto."

     The easement          also    granted        ATC   the    associated      necessary
rights to:

            (1) Enter upon the easement strip for the
       purposes of exercising the rights conferred by this
       easement.   (2) Construct, install, operate, maintain,
       repair, replace, rebuild, remove, relocate, inspect
       and patrol the above described facilities and other
       appurtenances that the Grantee deems necessary.    (3)
       Trim, cut down and remove any or all brush, trees and
       overhanging branches now or hereafter existing on said
       easement strip.   (4) Cut down and remove such trees
       now or hereafter existing on the property of the
       Landowner located outside of said easement strip which
       by falling might interfere with or endanger said
       line(s), together with the right, permission and
       authority to enter in a reasonable manner upon the
       property of the Landowner adjacent to said easement
       strip for such purpose.
       7
       Wis. Stat. § 32.06(2)(a) provides: "The condemnor shall
cause at least one . . . appraisal to be made of the property
proposed to be acquired."

                                            8
                                                           No.          2012AP805 & 2012AP840



of   the       property.          Rolling      concluded         that     the    property's

appraised value before the easements was $130,000.8                             With regard

to the        effects of the easements, Rolling wrote:

              We believe there will be an immediate negative
        effect on residential appeal.    Over one half of the
        property will be under easement.    The [property] will
        have major transmission lines along two of its three
        sides.    The transmission lines will be within 60
        [feet] of the house.      A substantial part of the
        landscaping will have been lost.    Our before analysis
        suggested a property which was already in transition
        from improved residential use to vacant industrial lot
        use. We believe the installation of the transmission
        line pole and the lines themselves brings this
        property to the tipping point from residential appeal
        toward light industrial appeal.      It is more likely
        that the next buyer of this property will be an
        industrial developer rather than a residential user.
        We conclude that the residential improvements are
        rendered totally obsolete.      Highest and best use
        changes from improved residential to vacant industrial
        land.
Consequently,           Rolling    concluded        that    the     Waller       property's

appraised         value   after    the   easements         was    $55,500——a        loss    of

$74,500, or nearly 57 percent loss in value.                             Rolling allotted

an additional $7,500 to demolish the residential improvements.

        ¶21       The   Wallers    retained        their   own     appraisers,       Arthur

Sullivan and Kurt Kielisch of Appraisal Group One (Group One).

Group       One    concluded      that   the       before-easement          value   of     the

property was $132,000, very similar to Rolling's before-easement




        8
       Of  the    $130,000 before-easement appraisal,  Rolling
allocated $75,500 to value of the land and $54,500 to value of
the improvements.

                                               9
                                                        No.       2012AP805 & 2012AP840



appraised value.            However, Group One came to a very different

conclusion on the after-easement value of the Waller property.

        ¶22    In    determining     the    after-easement        value,      Group    One

considered       the    property      use    for    industrial        and    residential

purposes.           In light of the neighboring industrial land uses,

Group One considered the Waller property to have its highest and

best use as "vacant for industrial purposes."                          However, Group

One noted that the property's triangular shape and small size

"negatively impact[ed] its desirability as an industrial site at

this        time."     Thus,   Group        One    concluded    that        the    current

improvements "contribute significant value to its ongoing use as

a residential property, despite the changing land use and city

expansion       surrounding        it."      In    either     case,    following      the

encumbrance of the property by two 45-foot-wide easements, the

property's use would be restricted further for either industrial

or residential purposes.9             Altogether, Group One estimated that

the easements would cover approximately 0.8 acres of land and

would       produce    in   that    area     a    100   percent    loss       in   value.
Consequently, Group One concluded that:

            Granting [the two easements to ATC] reduces the
       property owner's right to enjoy their property and
       utilize it to its fullest use. Due to the restricted
       use of the property and the giving up of the right to
       control the easement area, it is concluded that the

        9
       In particular, Group One pointed to restrictions on owner
usage in the easement area (i.e., inability to build structures,
store certain wares, plant trees or shrubs).    Furthermore, the
property's size and shape limitations, while already creating
development limitations, would be further restricted for either
industrial or residential users.

                                            10
                                                          No.        2012AP805 & 2012AP840


      easement area represents a 100% loss of property value
      to the property owner.
Thus, Group One estimated the after-easement value of the total

property to be only $15,500——resulting in a loss of $116,500, or

88 percent of the before easement value.

      ¶23    Kurt Kielisch later supplemented Group One's initial

appraisal,     stating       his     opinion       that     the       Waller     property

"suffered     substantial[ly]         impaired       economic         viability    as      a

result of the taking of the transmission line easement."                                 Mr.

Kielisch based his opinion, in part, on the following:                                 ATC's

jurisdictional       offer    indicated       a    value        of   $30,500     for    the

property, reflecting a loss of value of more than 76 percent;

the   easement   area     covered      more       than    half       of   the   property;

"public perceptions of the dangers of electric magnetic fields";

the appearance and proximity of the high-voltage transmission

lines; the highest and best use of the property after the taking

would be vacant industrial; and the inability of the parcel to

be utilized for industrial purposes in the absence of municipal

sewer and water.

      ¶24    After the Rolling and Group One appraisals, ATC made

several     offers   to   the      Wallers.        See    Wis.       Stat.   § 32.06(2a)

(requiring the condemnor, before making a jurisdictional offer,

to negotiate personally with a property owner).                           Initially, on
October 8, 2007, ATC offered to acquire only the easements for

$49,000.     The Wallers rejected that offer.                   Next, ATC raised its
offer for only the easements to $84,600, which the Wallers also

rejected.     Later, on March 14, 2008, after receiving the Group


                                         11
                                                           No.     2012AP805 & 2012AP840



One appraisal, ATC again raised its offer for the easements to

$99,500.        In the alternative, ATC offered to purchase the entire

Waller property for $132,000, provided the Wallers waived the

right to any relocation benefits.                        The Wallers rejected that

offer as well.

        ¶25    Finally, on March 20, 2008, ATC made a jurisdictional

offer to the Wallers of $99,500 for only the two easements.                             The

Wallers rejected the jurisdictional offer.

             B. The First Circuit Court Decision: The Wallers'

       Right-to-Take Action and the Just Compensation Proceeding

                                  Initiated by ATC

       ¶26     On April 25, 2008, the Wallers filed a right-to-take

action     under       Wis.    Stat.    § 32.06(5).          The     Wallers     did    not

challenge       ATC's    right    to    take      the    easements.           They   argued

instead that because the proposed easements would cover more

than     half     of    their    property         and    render    their      residential

improvements       totally       obsolete,        they    would    be    left    with    an

uneconomic remnant under § 32.06(3m).                     In short, the Wallers did
not argue that the ATC was taking too much, but that ATC was

trying    to     get    away    with    taking      too    little.         The   Wallers'
complaint claimed that "the proposed acquisition by ATC compels

a total acquisition with a guarantee of attendant relocation
benefits pursuant to . . . Wis. Stat. § 32.19."                          Then, raising

the stakes, the Wallers asked the circuit court to prohibit the
proposed       acquisition       of    the   easements       until      ATC    agreed    to

acquire the entire property and provide relocation benefits.


                                             12
                                                       No.       2012AP805 & 2012AP840



     ¶27    Four days after the Wallers filed their right-to-take

action,     ATC     filed    a    verified       petition        for       condemnation

proceedings, pursuant to Wis. Stat. § 32.06(7).10                      ATC asked the

circuit     court     for    hearings         before     the        Walworth     County

Condemnation      Commission      (the   Commission)           to    determine    just

compensation for the taking of the easements.11                            At the same

time, ATC petitioned the circuit court for immediate possession

of the easements pursuant to Wis. Stat. § 32.12(1).                        The circuit

court,     Robert    J.     Kennedy,     Judge,        granted       the    petitions,

assigning the case to the Commission and allowing ATC to take

immediate possession without a hearing.12

     ¶28    The Commission held a hearing on June 11, 2008, on

valuation    questions      to   determine      an   award.         Ultimately,    the

Commission concluded that the fair market value of the Waller

     10
       2008GF78, Walworth County, Consolidated Court Automated
Program (CCAP).    Initially, the Wallers' right-to-take action
was consolidated with the two petitions of ATC on just
compensation and immediate possession.
     11
       ATC's petition for condemnation proceedings and the
subsequent award of just compensation became the subject of
appeal by the Wallers.    Ultimately, the Wallers' appeal of the
Commission's award became 2008CV955, the valuation case.      The
appeals of the right-to-take action and the relocation benefits
case implicate the valuation case; however, neither party has
appealed the jury verdict in the valuation case, where the jury
determined that the value of the Waller property was $38,000.
     12
       Shortly after ATC filed its petition for condemnation
proceedings and to take immediate possession, the Wallers moved
the circuit court for an expedited hearing on their right-to-
take action and for a temporary injunction preventing ATC from
proceeding on their petitions.    The circuit court rejected the
Wallers' motion, concluding that there was no reason to prevent
ATC from obtaining immediate possession of the easements.

                                         13
                                                              No.      2012AP805 & 2012AP840



property before the taking of the easements was $130,000, that

the value was reduced to $40,000 after the taking, and that the

Wallers     should       be    awarded       $90,000.         The     Wallers       ultimately

accepted this amount from ATC in January 2009 but appealed the

Commission's award to the circuit court.

     ¶29     The     circuit          court,       again     presided       over     by     Judge

Kennedy, dismissed the Wallers' right-to-take action on November

8,   2008,    five        months        after        the   Commission         finished       its

valuation.         The    circuit        court       concluded       that     an   uneconomic

remnant claim should be decided in a valuation proceeding, not

in a right-to-take action.                   The Wallers appealed the dismissal

of their complaint.

                          C. Waller I: The First Appeal

      ¶30    The     sole       issue     before       the     court    of     appeals        was

"whether the question of the existence of an uneconomic remnant

is properly raised in an action under Wis. Stat. § 32.06(5)."

Waller I, 322 Wis. 2d 255, ¶10.

      ¶31    The Wallers argued that Wis. Stat. § 32.06(5) provides

the only opportunity for a property owner to challenge a taking

on   the    ground       that    it     was        incomplete       because    it     left     an

uneconomic remnant.             Id., ¶13.           The court of appeals found this

argument persuasive in light of the plain language of § 32.06(5)

(allowing     for     challenges             for     any   reason      other       than      just

compensation), as well as the statutory scheme.                               Id., ¶¶13–16.

Although conceding that "an uneconomic remnant seems to require

valuation,"        the        court     of     appeals        reasoned        that        "before

compensation can be set, there must be a determination of what
                                                14
                                                              No.         2012AP805 & 2012AP840



is     being    taken."           Id.,    ¶¶13–14.            The    uneconomic          remnant

determination          in       § 32.06(5)       "permits       the        court     and      the

[condemnation]         commission         to    'devote       full    attention'         to   the

crucial        issue       of    just     compensation          'without          having      the

deliberation           deflected         into        consideration           of    collateral

procedural matters.'"              Id., ¶14 (quoting Rademann v. DOT, 2002

WI App 59, ¶38, 252 Wis. 2d 191, 642 N.W.2d 600).                                    In other

words,       the    property       owner        must    know        the     "scope      of    the

acquisition before the question of compensation is negotiated."

Id.
       ¶32     The court of appeals also held that a property owner

asserting the existence of an uneconomic remnant after a taking

"must have the right to contest a condemnation that does not

acknowledge an uneconomic remnant."                     Id., ¶15.           The claim of an

uneconomic remnant, the                 court    of    appeals       posited,      "is    not   a

meaningless exercise swallowed up in the compensation process,"

but a property owner's assertion to protect his or her rights.

Id., ¶16.

       ¶33     Therefore, the court of appeals remanded the case to

the circuit court, directing it to reinstate the Wallers' right-

to-take claim and to determine whether ATC's taking created an

uneconomic remnant.               "If so," the court of appeals concluded,

"ATC    is required, under               [Wis.   Stat.]       § 32.06(3m),         to    make   a

concurrent         offer    for    the    remnant       and    to     provide      relocation

benefits . . . directed by Wis. Stat. § 32.19."                            Id., ¶17.

                   D. Post-Waller I: The Valuation Trial and

       Second Decision on the Wallers' Uneconomic Remnant Claim
                                                15
                                                            No.      2012AP805 & 2012AP840



        ¶34     After remand, the circuit court, with Judge John R.

Race presiding over both the right-to-take and valuation cases,

chose to postpone a               hearing     on    the    uneconomic      remnant claim

until after the jury's verdict in the valuation appeal.13

        ¶35     The circuit court conducted a three-day jury trial on

the     Wallers'        appeal      of      the    Commission's        award       of     just

compensation.           The jury concluded the before taking value of the

property at $132,000 and an after taking value at $38,000.                                 The

resulting just compensation award was $94,000, which the Wallers

did not appeal.

        ¶36     After      the   valuation        jury    trial,    the    circuit       court

incorporated both the record and the verdict from the jury trial

into     the     recently        reinstated        right-to-take          action    by    the

Wallers.        The circuit court found that the Wallers resided in

their        house   for    approximately          one    year    after    ATC     took   the

easements; that people could still reside in the Waller house;

that the property was of sufficient size to allow for meaningful

use;     and    that     the     property    and    improvements       had    substantial
value after the             taking.      Therefore,        the     circuit   court ruled

that, as a matter of law, the property after the taking of the
easements was not an uneconomic remnant.


        13
       The Wallers petitioned the court of appeals for a writ of
mandamus, arguing that the order of determination chosen by the
circuit court violated the court of appeals mandate in Waller v.
American   Transmission  Co.,   LLC,   2009  WI   App  172,  322
Wis. 2d 255, 776 N.W.2d 612 (Waller I).     The court of appeals
denied the petition, concluding that the circuit court did not
violate a plain legal duty mandated in Waller I.

                                              16
                                                      No.      2012AP805 & 2012AP840



       ¶37    The circuit court dismissed the Wallers' complaint and

the Wallers appealed.

                     E. Waller II: The Second Appeal

       ¶38    Once again, the court of appeals reversed the circuit

court.       Waller II, 334 Wis. 2d 740.            The court of appeals held

that

       when a property owner properly raises the issue of
       whether he or she will be left with an uneconomic
       remnant pursuant to Wis. Stat. § 32.06(3m), a circuit
       court must first hold an evidentiary hearing under
       § 32.06(5) to determine whether the remaining parcel
       is an uneconomic remnant.      A fact finder may not
       determine just compensation until the circuit court
       has resolved the full scope of the taking.
Id., ¶2.
       ¶39    As it did previously in Waller I, the court of appeals

acknowledged the difficulty of separating the question of the

existence of an uneconomic remnant and the question of value of

the remnant.       Id., ¶14.        However, determining the existence of

an   uneconomic     remnant    is    "not    just    a   question    of   value——a

circuit court must also determine whether the property is 'of

substantially impaired economic viability.'"                   Id. (quoting Wis.

Stat. § 32.06(3m)).       The court of appeals concluded that the

circuit court failed to address whether the Waller property was

"substantially      impaired"   as     to    its    economic    viability.      Id.

Significantly, the court of appeals stated that "the inquiry

does not end once the dollar value of the remaining property is

determined——a circuit court is also expected to examine whether




                                        17
                                                     No.      2012AP805 & 2012AP840



the   partial     taking       'substantially    impaired          [the]    economic

viability' of the property."         Id., ¶15 (alteration in original).

      ¶40     Thus, the court of appeals reversed and remanded to

the circuit court for a hearing consistent with its decision.

Id., ¶17.       Also, the court of appeals ruled that "[i]f the

circuit court finds that the Wallers' property is an uneconomic

remnant, the jury's just compensation verdict is vacated."                     Id.

       F. Post-Waller II: The Third Decision on the Wallers'

              Uneconomic Remnant Claim and Litigation Costs

      ¶41     Following the second remand from the court of appeals,

the circuit court, Judge James L. Carlson now presiding, held a

two-day trial in the right-to-take case on whether an uneconomic

remnant existed.        The trial was held in November 2011.                 For the

most part, the same witnesses who testified in the valuation

trial testified at the right-to-take trial, and the testimony

was largely the same.

      ¶42     At the conclusion of this trial, Judge Carlson ruled

that the taking did indeed leave the Wallers with an uneconomic

remnant.       The circuit court found that the property suffered

"substantially     impaired      economic     viability"      because:      (1)    the

jurisdictional offer of $99,500 set damages to the property at

76 percent of the agreed upon $130,000 pre-taking value; (2)

both appraisers agreed that the taking made the value of the

residential improvements obsolete because the highest and best

use   after    taking    was    vacant   industrial        land;   (3)     after   the

activation of both transmission line, the Wallers experienced

regular     electronic     interference       that    prompted       concern       for
                                         18
                                                               No.      2012AP805 & 2012AP840



themselves,         their     family,       and    potential         buyers;     and    (4)   the

removal        of         shrubbery     and            trees     within        the      easement

"substantially            reduced     the    attractiveness            of      the    site"   and

eliminated a sound barrier between the home and Interstate 43.

        ¶43    The    circuit       court     entered          final    judgment       for    the

Wallers, imposing an additional $47,509.72 on ATC to acquire the

entire Waller property and ordering the Wallers to quitclaim the

property to ATC.            ATC appealed the judgment.

        ¶44    After an additional two-day hearing, the circuit court

awarded the Wallers $211,261.74 in litigation expenses.                                       The

court    found       that     ATC     conditioned          the    purchase       of    all    the

Wallers' property on whether the Wallers waived any right to

relocation expenses.                On the basis of this finding, the court

determined that ATC failed to negotiate in good faith.                                        The

court also ruled that, when a condemnor fails to "resolve the

issue     of        the     uneconomic        remnant          prior      to     [making      the

jurisdictional offer]," the cost of litigation shifts to the

condemnor.           The circuit court determined that both scenarios
applied in this case.                 ATC challenges the award of litigation

costs in this appeal.
                           G. The Relocation Benefits Case

     ¶45       On December 18, 2008, the Wallers filed a claim with
ATC for relocation benefits, which ATC denied.                                  On August 15,

2009, the Wallers moved to a new permanent residence in the Town
of      Sharon        in      Walworth        County——after             the      high-voltage

transmission lines had been installed and fully charged.


                                                  19
                                                                No.        2012AP805 & 2012AP840



       ¶46     On April 30, 2010, the Wallers filed a complaint with

the    circuit      court    claiming           the     right       to   recover     relocation

costs.       The circuit court, Judge Carlson presiding, held a one-

day trial on the issue on January 25, 2012.

       ¶47     During     the     trial,         Scott       Waller      testified    that    the

decision to move resulted from ATC's jurisdictional offer of

$99,500 and the report of ATC's appraiser, Rolling, that the

easements destroyed the value of the residential improvements on

the land.       Waller testified further that he and his wife started

looking for a new home in February 2008——a month before the

jurisdictional offer——and made an offer to purchase their Town

of Sharon property the following November.14

       ¶48     Jack     Sanderson,          a     relocation          specialist     with     the

Wisconsin      Department         of   Commerce,            also    testified.        Sanderson

evaluated the Wallers' claim for relocation benefits.                                He opined

that the Wallers were displaced persons because "their home was

no    longer    safe,     decent       or       sanitary,"         and   that   it   had    "been

degraded to an industrial lot."                             However, Sanderson admitted
that he relied on "common sense" and a dictionary definition of

"decent" and not on any definition in the administrative code.
       ¶49     At   the   conclusion            of     the    trial,      the   circuit     court

ruled that the Wallers were displaced persons under Wis. Stat.
§ 32.19(2)(e)1.a.           and    entitled            to    relocation      benefits.       The


       14
       On cross-examination, Scott Waller testified that he had
considered moving to a new home even before he learned of the
transmission line upgrade and expansion, based on a desire for
larger property and more building space.

                                                  20
                                                                  No.         2012AP805 & 2012AP840



court        found        that     the   Wallers          sustained       $26,350         in        costs

associated          with     the     acquisition          of   relocation            property        and

entered judgment in that amount.15

        ¶50    ATC        appealed the       right-to-take              and    relocation cases

and petitioned this court to bypass the court of appeals.                                            The

court granted the petition on January 14, 2013.

                                   II. STANDARD OF REVIEW

        ¶51    In     this       case,      the       court    must           interpret        various

provisions           of     Wis.     Stat.       ch. 32's         condemnation            procedure.

Statutory interpretation is a question of law that this court

reviews       de     novo.         Weborg       v.    Jenny,      2012        WI    67,     ¶41,      341

Wis. 2d 668, 816 N.W.2d 191 (citations omitted).

        ¶52    The court also is asked to apply statutory provisions

on condemnation to certain facts.                         The application of a statute

to the facts of the case is a question of law that we review de

novo.        Warehouse II, LLC v. DOT, 2006 WI 62, ¶4, 291 Wis. 2d 80,

715   N.W.2d 213           (citing       State       v.   Reed,    2005        WI   53,     ¶13,     280

Wis. 2d 68, 695 N.W.2d 315). As usual, the court benefits from

the analyses of the circuit court and court of appeals.                                              Id.

(citing State v. Cole, 2003 WI 59, ¶12, 262 Wis. 2d 167, 663

N.W.2d 700).              "Findings of fact shall not be set aside unless

clearly       erroneous,           and    due     regard       shall          be    given      to     the




        15
       Wisconsin Stat. § 32.19(4)(a) capped relocation benefit
costs for the Wallers at a maximum of $25,000, but the circuit
court also permitted an additional $1,350 for the cost of
moving, pursuant to then-Wis. Admin. Code § COMM 202.54.

                                                  21
                                                   No.     2012AP805 & 2012AP840



opportunity of the trial court to judge the credibility of the

witnesses."     Wis. Stat. § 805.17(2).

                                 III. DISCUSSION

      ¶53    Before we address the arguments of counsel, we think

it is useful to summarize the condemnation process in Wisconsin.

            A. Statutory Overview of the Wis. Stat. ch. 32

                            Condemnation Process

     ¶54    The Fifth Amendment to the United States Constitution

provides, in pertinent part: "[N]or shall private property be

taken for public use, without just compensation." U.S. Const.

amend. V.     The Takings Clause of the Fifth Amendment is applied

to the states through the Fourteenth Amendment.                  Stop the Beach

Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., ___ U.S. ___,

130 S.Ct. 2592, 2597, 177 L.Ed. 2d 184 (2010); Chi., Burlington

& Quincy R.R. Co. v. Chi., 166 U.S. 226, 239 (1897).                 Article I,

Section 13 of the Wisconsin Constitution provides, "The property

of   no    person   shall   be    taken     for   public   use    without   just

compensation therefor."       Wis. Const. art. I, § 13.

     ¶55    A "taking"——or condemnation——of private property for

public use requires the award of just compensation under both

the United States and Wisconsin constitutions.                   E-L Enters. v.

Milwaukee Metro. Sewage Dist., 2010 WI 58, ¶21, 326 Wis. 2d 82,

785 N.W.2d 409 (citing Zinn v. State, 112 Wis. 2d 417, 424, 334

N.W.2d 67 (1983); Howell Plaza, Inc. v. State Highway Comm'n, 92

Wis. 2d 74, 80, 284 N.W.2d 887 (1979)).




                                       22
                                                   No.     2012AP805 & 2012AP840



       ¶56    As a general rule,16 condemnation powers in Wisconsin

are set out in Wis. Stat. ch. 32, "Eminent Domain."                   Condemnors

are divided into two categories depending on the purpose for

which they seek to acquire property.               Each category follows a

separate procedural track, although the two tracks share many

common procedures.

       ¶57    Condemnors    use    Wis.    Stat.   § 32.05,     known    as    the

"quick-take" statute,17 for condemning property related to sewer

and    transportation      projects.       Other   condemnors    utilize      Wis.

Stat. § 32.06, the "slow-take" statute, which is the "catch-all"

for condemnations not covered by § 32.05.

       ¶58    Wisconsin's         condemnation      procedures          underwent

significant revisions in 1959.             Ch. 639, Laws of 1959; Falkner

v.    N.    States Power Co.,       75   Wis. 2d 116,    120,   248   N.W.2d 885

(1977).      Based on the legislative revisions,

       [i]t is apparent that the legislature intended to
       create   two   independent  proceedings relating   to
       ["catch-all"] condemnation, an owner's action in
       circuit court under sec. 32.06(5), Stats., and the
       condemnation proceeding before a judge under sec.
       32.06(7). From sec. 32.06(5) it is clear that the two
       proceedings may go on simultaneously.


       16
       Exceptions to the general powers and procedures in Wis.
Stat. ch. 32 are Wis. Stat. § 157.50 (condemnation powers
established for municipalities to acquire land for municipal
cemeteries) and Wis. Stat. ch. 197 (acquisition of public
utilities by municipal utilities).
       17
       "Quick-take proceedings are intended to permit the
immediate transfer of possession and title to condemnors while
protecting the rights of landowners."   27 Am. Jur. 2d Eminent
Domain § 687 (2004) (footnote omitted).

                                          23
                                                              No.        2012AP805 & 2012AP840



Falkner, 75 Wis. 2d at 120.

        1. Who May Condemn, Negotiation Between the Parties,

                          and the Jurisdictional Offer

       ¶59   Wisconsin Stat. § 32.02 enumerates entities that have

the power to condemn private property.                       The list includes public

utilities such as ATC.            See Wis. Stat. § 32.02(5)(b).                         Utilities

use the condemnation procedures outlined in Wis. Stat. § 32.06.

       ¶60   Most condemnations under Wis. Stat. § 32.06 require a

determination       of     the    "necessity            of    taking."              Wis.    Stat.

§ 32.06(1).        For    example,       utilities           secure      a    certificate        of

public convenience and necessity, Wis. Stat. § 32.07(1), under

Wis. Stat. § 196.491(3).                See also Indus. Energy Grp. v. Pub.
Serv.    Comm'n,      2012       WI    89,      ¶¶26–38,        342      Wis. 2d 576,           819

N.W.2d 240 (describing the process of obtaining a certificate of

public convenience and necessity).

       ¶61   After making a determination of what it needs to take,

a condemnor "shall attempt to negotiate personally" with the

condemnee    (the     property         owner)     for    purchase         of      the    property

"sought to be taken."                 Wis. Stat. § 32.06(2a).                     The condemnor

must    "cause   at      least    one . . . appraisal               to       be   made     of   the

property to be acquired" before the negotiations commence, and

the condemnee       may    also       obtain an appraisal                "of      all    property

proposed to be acquired."              Wis. Stat. § 32.06(2)(a)–(b).




                                             24
                                             No.      2012AP805 & 2012AP840



     ¶62   If the negotiations are unsuccessful,18 the condemnor

"shall make and serve" a jurisdictional offer to purchase the

property sought.     Wis. Stat. § 32.06(3).         The contents of a

jurisdictional offer are set out in Wis. Stat. § 32.05(3).             They

include a description of the property and "the interest therein

sought to be taken," the proposed date of occupancy, and "the

amount of compensation offered," including such additional items

as relocation benefits.    Wis. Stat. § 32.05(3).

     ¶63   Immediately following   the    provision    relating    to the

jurisdictional     offer   in   Wis.     Stat.     § 32.06(3)     is   the

definitional provision on "uneconomic remnant."        It reads:

         In this section, "uneconomic remnant" means the
    property remaining after a partial taking of property,
    if the property remaining is of such size, shape or
    condition as to be of little value or of substantially
    impaired economic viability.    If acquisition of only
    part of a property would leave its owner with an
    uneconomic remnant, the condemnor shall offer to
    acquire the remnant concurrently and may acquire it by
    purchase or by condemnation if the owner consents.19
     18
       If the negotiations are successful, the condemnor must
file two documents: a record of the conveyance itself and the
certificate of compensation, indicating the identity of persons
having an interest of record in the property, the property's
legal description, the nature of the interest acquired and the
compensation provided. Kurylo v. Wis. Elec. Power Co., 2000 WI
App 102, ¶10, 235 Wis. 2d 166, 612 N.W.2d 380 (quoting Wis.
Stat. § 32.06(2a)).

     For a general discussion of negotiations in eminent domain
proceedings,   see   Ross   F.   Plaetzer,   Comment, Statutory
Restrictions on the Exercise of Eminent Domain in Wisconsin:
Dual Requirements of Prior Negotiation and Provision of
Negotiating Materials, 63 Marq. L. Rev. 489 (1980).
     19
       Except for a different title to the subsection, Wis.
Stat. § 32.05(3m) contains an identical version of this statute.

                                 25
                                                           No.      2012AP805 & 2012AP840



Wis. Stat. § 32.06(3m).

       ¶64    If      the     property          owner     fails         to   accept       the

jurisdictional offer within the time specified in the statute,

the condemnor may petition the circuit court in the county where

the    property       is     located       to    have    the      county     condemnation

commission      determine      the     just      compensation       for      the   property

sought to be taken.            Wis. Stat. §§ 32.06(6)–(7), 32.08(5).                       If

the court finds that the condemnor is entitled to condemn any

portion of the property, it "immediately shall assign the matter

to the chairperson of the county condemnation commissioners" to

hold   a     hearing    to    determine         just    compensation.          Wis.     Stat.

§§ 32.06(7), 32.08(6)(a).

             2. The Just Compensation Proceeding and Appeal

       ¶65    The county condemnation commission holds a hearing to

ascertain just compensation for the taking of the condemnee's

property.       Wis. Stat. §§ 32.06(8), 32.08(5).                       Upon determining

just compensation, the commission files a sworn voucher for the

compensation with the circuit court; if the court approves the
voucher,      the     condemnor      pays       the     just     compensation      to     the

condemnee.          Wis. Stat. §§ 32.06(8), 32.08(6)(b).                     Either party
may appeal the commission's award to the circuit court within 60

days   of     the    filing    of    the    commission's         award.        Wis.     Stat.
§ 32.06(10).         Parties may appeal only on issues related to the

amount of just          compensation        and      questions     of    title,    "and    it
shall have precedence over all actions not then on trial."                                Id.

The appeal proceeds as a jury trial unless both parties agree

otherwise.      Id.
                                                26
                                                           No.         2012AP805 & 2012AP840



                        3. Right-to-Take Proceedings

       ¶66   The county condemnation commission hearing provides an

opportunity for the condemnee to be heard on the question of

just compensation.           However, if after the condemnor makes the

jurisdictional        offer,      the    condemnee         wishes       to     contest    the

condemnor's right to take the property "for any reason other

than that the amount of compensation offered is inadequate," the

condemnee     may    file    a    separate      right-to-take           action     with   the

circuit court.        Wis. Stat. § 32.06(5).

       ¶67   A   § 32.06(5)       action     "shall       be     the    only    manner"   in

which a condemnee may raise "any issue other than the amount of

just   compensation"         or   perfection         of    title       for   the   property

described in the jurisdictional offer.                           Id.     A right-to-take

action       under     § 32.06(5)        proceeds          independently           from     a

condemnation proceeding under § 32.06(7) and a just compensation

proceeding under § 32.06(8).             Id.

       ¶68   A trial on the issues in a right-to-take action takes

precedence over all           other     actions      in    the     court     except those

already on trial.            Wis. Stat. § 32.06(5).                    Nevertheless, the

commencement of a right-to-take action does not "limit in any

respect"     the     right   of    a    condemnor         to   commence        condemnation

proceedings under § 32.06(7).                  Id.        Both matters may proceed

simultaneously.        Id.

       ¶69   If a court "determines that the condemnor does not

have the right to condemn part or all of the property described

in the jurisdictional offer or there is no necessity for its


                                           27
                                                  No.     2012AP805 & 2012AP840



taking," litigation expenses20 may be awarded to the condemnee.

Wis. Stat. § 32.28(3)(b).

                 B. When Must a Property Owner Raise an

                       Uneconomic Remnant Claim?

       ¶70    The first issue we must consider is when a property

owner must raise an uneconomic remnant claim in the condemnation

process.       The Wallers argue that an uneconomic remnant claim

must be made in       a right-to-take       proceeding,    as   expressed   in

Waller I and Waller II.         ATC, on the other hand, asserts that

there is no action for an uneconomic remnant, but if such an

action were permitted, the claim should be raised either in a

valuation proceeding before the county condemnation commission,

or alternatively, in an inverse condemnation proceeding.                    See

Wis. Stat. § 32.10.

       ¶71    Determining    whether    Wis.     Stat.    ch. 32   allows     a

property owner to bring an uneconomic remnant claim——and if so,

when——requires this court to interpret statutes.                "The purpose

of statutory interpretation is to determine what the statute

means so that it may be given its full, proper, and intended

effect."      Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26,

¶26,    339   Wis. 2d 125,    810   N.W.2d 465    (internal     brackets    and


       20
       "Litigation expenses" in Wis. Stat. § 32.28(3)(b) means
"the sum of costs, disbursements and expenses, including
reasonable attorney, appraisal and engineering fees necessary to
prepare for or participate in actual or anticipated proceedings
before   the   county  condemnation   commissioners,  board   of
assessment or any court under this chapter."         Wis. Stat.
§ 32.28(1).

                                       28
                                                              No.         2012AP805 & 2012AP840



citation omitted).            Statutory interpretation "begins with the

language of the statute."               State ex rel. Kalal v. Circuit Court

for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110

(internal       quotation      marks     omitted).              Courts          give    statutory

language its common, ordinary meaning.                         Id.        Statutory language

is    interpreted      in    the     context       in   which       it     is    used,     not    in

isolation but as part of a whole.                       Id., ¶46.          We must construe

statutory language reasonably, so as to avoid absurd results.

Id.     Legislative history may be relevant to confirm a statute's
plain meaning.         Id., ¶51.

        ¶72    Rules of construction for eminent domain statutes also

guide our interpretation of Wis. Stat. ch. 32.                                    "Because the

power     of     eminent        domain        under       Wis.           Stat.         ch. 32     is

extraordinary,          we         strictly         construe              the      condemnor's

power . . . while liberally construing provisions favoring the

landowner, including available remedies and compensation."                                       TFJ

Nominee Trust v. DOT, 2001 WI App 116, ¶10, 244 Wis. 2d 242, 629

N.W.2d 57      (citing      Miesen      v.    DOT,      226     Wis. 2d 298,             305,    594

N.W.2d 821 (Ct. App. 1999)); see also City of Janesville v. CC

Midwest,      Inc.,    2007     WI    93,    ¶101       n.11,       302    Wis. 2d 599,          734

N.W.2d 428 (Prosser, J., dissenting); Aero Auto Parts, Inc. v.

DOT, 78 Wis. 2d 235, 241, 253 N.W.2d 896 (1977).

        ¶73    The     uneconomic            remnant          statute,            Wis.         Stat.

§ 32.06(3m), became law more than 35 years ago.                                  § 5, ch. 440,

Laws     of    1977.         The     legislation         was        the    product        of     the

legislature's         Special      Committee        on    Eminent           Domain       (Special

Committee),      under      the      auspices      of    the     Wisconsin         Legislative
                                              29
                                                               No.      2012AP805 & 2012AP840



Council.        Summary of Proceedings, Spec. Comm. on Eminent Domain,

Wis. Leg. Council, Madison, Wis. (Sept. 9, 1977) [hereinafter

Spec. Comm. Summary of Proceedings].

        ¶74     At the September 9, 1977, proceeding of the Special

Committee,          members    considered      separate          draft      legislation       on

various       topics    that    would    eventually            lead    to   several       bills,

including 1977 Assembly Bill 1077, enacted as Chapter 440 of the

Laws of 1977.          See ch. 440, Laws of 1977; Wis. Leg. Council Rep.

No. 28 to the 1977 Legislature, Legislation Relating to Eminent

Domain,        at    3–4,     Wis.    Leg.     Council,          Madison,     Wis.        (1977)

[hereinafter          Rep.    No.    28].       One       of     the    pieces      of     draft

legislation discussed at the September 9 proceeding addressed

"uneconomic           remnant,"       creating        the        current       Wis.        Stat.

§ 32.06(3m).           The    summary    of    proceedings            indicates     that     the

draft         legislation      would        "allow[]        condemnors         to        acquire

uneconomic remnants" and that the draft was based on Section 208

of the Uniform Eminent Domain Code.                            Spec. Comm. Summary of

Proceedings at 5.21

        ¶75     The National         Conference      of    Commissioners         on      Uniform

State        Laws   approved    the    Model       Eminent       Domain     Code    in    1974.

Model Eminent Domain Code, Prefatory Note, 13 U.L.A. 3 (2002).

Section 208, titled "Offer to Acquire Uneconomic Remnant," reads

as follows:


        21
        The National Conference of Commissioners on Uniform State
Laws officially changed the Uniform Eminent Domain Code to a
Model Act in 1984.      Model Eminent Domain Code, 13 U.L.A. 1
(2002).

                                              30
                                                      No.       2012AP805 & 2012AP840


          (a) If the acquisition of only part of a
     property would leave its owner with an uneconomic
     remnant, the condemnor shall offer to acquire the
     remnant concurrently and may acquire it by purchase or
     by condemnation if the owner consents.

         (b) "Uneconomic remnant" as used in this section
    means a remainder following a partial taking of
    property, of such size, shape, or condition as to be
    of little value or that gives rise to a substantial
    risk that the condemnor will be required to pay in
    compensation   for   the   part    taken   an   amount
    substantially equivalent to the amount that would be
    required to be paid if it and the remainder were taken
    as a whole.
Model     Eminent   Domain       Code     § 208,    13      U.L.A.    22–23     (2002)

(emphasis    added).       The    Special      Committee     replaced     the   above

emphasized language with the more succinct phrase "substantially

impaired     economic      viability."             Spec.      Comm.     Summary     of

Proceedings at 5.

     ¶76    The Comment to subsection (b) of § 208 of the Model

Eminent    Domain   Code   lists        several    examples    of     "physical"   or

"financial" remnants after partial takings that would qualify as

uneconomic remnants:

    Remnants that are totally "landlocked" so that no
    physical use of the property is practicable; remnants
    reduced below minimum zoning area requirements where
    there is no reasonable possibility of a zoning change;
    remnants in such physical condition as to preclude
    economically   practicable  use   for  any   plausible
    application; and remnants that are of significant
    potential value only to one or a few persons (e.g.,
    adjoining landowners).




                                          31
                                                       No.        2012AP805 & 2012AP840



Model        Eminent   Domain    Code    § 208     cmt.,     13   U.L.A.   23       (2002)

(citations omitted).22

        ¶77     ATC    asserts   that    this     legislative       history    confirms

that the decision to acquire an uneconomic remnant should be

determined by the condemnor, and thus, property owners do not

have a cause of action for an uneconomic remnant.                       In our view,

the legislative history does not support this theory.                           On the

contrary,       the    legislative      history    shows     that    condemnors       were

given        authority    to     acquire   uneconomic         remnants,       not    sole

authority to determine whether an uneconomic remnant exists.                           If

a condemnor fails to acknowledge the existence of an uneconomic

remnant by describing it and including an offer for it in the

jurisdictional offer——concurrent with its offer for a taking of

other property——the condemnee must have some recourse to assert

and prove the uneconomic remnant claim.

        22
       The various examples of uneconomic remnants in the
Comment to § 208 indicate that landlocked parcels are but one of
many possible uneconomic remnants. In their brief, ATC implies
that landlocked parcels resulting from partial takings were the
impetus behind the wording substitution "substantially impaired
economic viability." We do not agree.

     The Summary of Proceedings for the September 9, 1977,
meeting of the Special Committee records a single spectator "who
referred to a remnant of 30 acres to which there was no access."
Summary of Proceedings, Spec. Comm. on Eminent Domain, at 5,
Wis. Leg. Council, Madison, Wis. (Sept. 9, 1977). The spectator
asserted that this type of property should also be taken.    Id.
While the Summary of Proceedings then shows the committee
amended the draft legislation to include the phrase "or of
substantially impaired economic viability," we do not agree with
ATC's conclusion that the amendment was in reaction to the
comments of the spectator in particular, or to landlocked
remnants in general.

                                           32
                                                   No.     2012AP805 & 2012AP840



     ¶78    A Wisconsin Legislative Council report on the Special

Committee's work bears this out.            The report states that, with

regard to the uneconomic remnant proposal, "[the legislation]

provides landowners with a means of disposing of portions of

their property which would be substantially reduced in value by

a condemnation project."        Rep. No. 28 at 4 (emphasis added).23

     ¶79    A   logical    argument   can     be    made   that      the   county

condemnation commission is the place to consider compensation

for an     uneconomic    remnant if the      existence     of   an    uneconomic

remnant has been acknowledged by the condemnor and the condemnor

has included an offer to acquire the uneconomic remnant as part

of the jurisdictional offer.          But ATC's position is that the

condemnor    alone   decides     whether    to     recognize    an    uneconomic

remnant and that the parties simply fight over the amount of

compensation    before    the   county     condemnation    commission.        We

disagree with that analysis.

     ¶80    Having recognized a property owner's right to bring an

uneconomic remnant claim, we turn to the question of when in the

condemnation process a property owner should bring that claim.
     ¶81    We look first to Wis. Stat. § 32.06(3m) to see if it

yields any direction or clues:

     23
       The Comment to § 208 of the Model Eminent Domain Code
also provides foundation for the assertion of a claim by the
owner of an alleged uneconomic remnant: "[I]f the owner is
prepared to sell, but is not willing to agree to the amount of
compensation offered, this section authorizes the parties to
agree to its acquisition by condemnation proceedings, so that
the compensation may be ascertained by the trier of fact."  13
U.L.A. 23, § 208 cmt. (2002).

                                      33
                                                      No.         2012AP805 & 2012AP840


            Definition.     In   this   section,  "uneconomic
       remnant" means the property remaining after a partial
       taking of property, if the property remaining is of
       such size, shape or condition as to be of little value
       or of substantially impaired economic viability.    If
       acquisition of only part of a property would leave its
       owner with an uneconomic remnant, the condemnor shall
       offer to acquire the remnant concurrently and may
       acquire it by purchase or by condemnation if the owner
       consents.
       ¶82    The key phrase in this subsection is "the condemnor

shall offer to acquire," and the key word is "concurrently."                           If

the parties have agreed that there is an uneconomic remnant,
that   the    condemnor    will    acquire     it,   and     that      the   amount    of

compensation offered is acceptable, there is no dispute.                            Where

there is a dispute, the nature of the dispute is exposed in the

jurisdictional       offer.       If   the    condemnor      makes      an   offer     to

acquire      the   uneconomic     remnant     as   well     as    an   offer   on     the

property sought, the condemnor is conceding that an uneconomic

remnant exists, and the dispute is confined to the amount of

compensation.        If the condemnor fails to include an offer to

acquire the uneconomic remnant in the jurisdictional offer, it

is disputing that an uneconomic remnant exists, and the property

owner must have a place to raise the issue.

       ¶83    Wisconsin Stat. § 32.06(5), the right-to-take statute,

reads in part: "When an owner desires to contest the right of

the    condemnor      to   condemn     the     property          described     in     the

jurisdictional offer for any reason other than that the amount

of     compensation        offered       is        inadequate,          such        owner

may . . . commence an action in the circuit court . . . naming

the condemnor as defendant."            (Emphasis added.)              Subsection (5)

                                        34
                                                       No.      2012AP805 & 2012AP840



continues: "Such an action shall be the only manner in which any

issue other than the amount of just compensation or other than

proceedings to perfect title . . . may be raised pertaining to

the condemnation of the property described in the jurisdictional

offer."     Wis. Stat. § 32.06(5) (emphasis added).

     ¶84    If subsection (5) contained only the first sentence

quoted    above,    there    might   be    reason     to     resist    including    an

uneconomic remnant claim in a right-to-take action.                          But the

second     sentence     refers       to    "any       issue,"        and   when    the

jurisdictional offer fails to include an offer to acquire the

alleged uneconomic remnant, it creates an "issue other than the

amount of just compensation."24

     ¶85    Asking the county condemnation commission to order the

condemnor    to    acquire   property      beyond     what     the    condemnor    has

sought to take in the jurisdictional offer and beyond what the

circuit court has already approved is asking the commission to

exceed its statutory authority.                Moreover, if the commission did

not exceed its statutory authority, the condemnee arguably would
not be able to appeal the uneconomic remnant issue because of

the statutory limit on issues that may be appealed.                         See Wis.

Stat. § 32.06(10).

     ¶86     The   amicus    brief    filed      by   the    Wisconsin     Utilities

Association remarks that:


     24
       The "any issue" language quoted above was part of the
Wisconsin Statutes before the enactment of the "uneconomic
remnant" provision in 1978.  See Wis. Stat. § 32.06(5) (1975–
76).

                                          35
                                                         No.      2012AP805 & 2012AP840


        There is simply no reason for issues concerning
        uneconomic remnants to ever be raised in a right-to-
        take proceeding.     Even if a landowner brought a
        challenge to a condemnation under § 32.06(5) on the
        grounds that an uneconomic remnant existed because the
        condemnor took a wider right-of-way than needed, the
        inquiry would be how wide an easement was needed for
        utility purposes, not      whether a   wider easement
        produced an uneconomic remnant.
The Wisconsin Utilities Association's hypothetical suggests that

even though the issue of "uneconomic remnant" might well come up

in a right-to-take hearing, the parties would battle over such

questions as the necessity of taking so large an easement.                            We

think the existence or non-existence of an "uneconomic remnant"

would     be       integral      to    the    discussion.         The   present      case

represents the flip side of the hypothetical: the condemnor,

allegedly, has so failed to account for the full impact of its

taking        of   easements      on    the    condemnee's      property      that   the

condemnee seeks to require the condemnor to acquire more than

the condemnor would like to take.                   If the condemnee succeeds,

the     condemnor         also   may    be    required    to    pay     the   condemnee

relocation expenses.             Surely these are "issues."
      ¶87      ATC's position is that any question about uneconomic

remnants should be decided by the county condemnation commission
irrespective         of    whether      the   condemnor     has    acknowledged      the

existence of an uneconomic remnant.

        ¶88    The Wallers' position is that the condemnor must take

the uneconomic remnant and pay for it.                    Wisconsin Stat. § 32.07

is entitled "Necessity, determination of."                     It reads in part:

             The necessity of the taking shall be determined
        as follows:

                                              36
                                                             No.        2012AP805 & 2012AP840


           (1) A certificate of public convenience and
      necessity issued under s. 196.491(3) shall constitute
      the determination of the necessity of the taking for
      any lands or interests described in the certificate.

                          . . . .

           (3) In    all  other                   cases,         the    judge        shall
      determine the necessity.
Wis. Stat. § 32.07(1) and (3).

      ¶89    We think it is unlikely that the PSC would decide on

the necessity of taking an individual uneconomic remnant when it

authorizes        a       major     utility      project.          Thus,       the    task     of

determining the existence of an uneconomic remnant will fall to

the circuit court.

      ¶90    ATC argues that an uneconomic remnant claim should be

brought      in       a    condemnation         hearing     on     valuation,        but     this

argument     misconstrues            the    inherent       dispute     in   an       uneconomic

remnant case.              While determining whether an uneconomic remnant

exists undoubtedly is related to the total amount owed to a

condemnee, it is fundamentally different from a calculation of

the   fair        market      value        of    an   easement         under     Wis.      Stat.

§ 32.09(6g).          As Wis. Stat. § 32.06(3m) implies, the question in
an uneconomic remnant claim is the extent of the property the

condemnor has the right or obligation to acquire.                                Indeed, if a

court finds that a property would become an uneconomic remnant

if the condemnor took an easement, the condemnor might not have

a right to take the easement without offering to purchase the

entire      property.             See   Wis.      Stat.     § 32.06(3m).             Thus,     an

uneconomic        remnant         determination       is    essential       in    deciding      a

right to a partial taking like an easement and should, whenever

                                                 37
                                                                No.         2012AP805 & 2012AP840



reasonably possible, precede valuation questions. See Arrowhead

Farms, Inc. v. Dodge Cnty., 21 Wis. 2d 647, 651, 124 N.W.2d 631

(1963) (stating that under Wis. Stat. § 32.05, procedural issues

must be resolved before the matter of just compensation).

       ¶91    While an uneconomic remnant claim may, arguably, be

brought in some cases in an inverse condemnation action, such a

process is "unusual."              W. Va. Dep't. of Transp. v. Dodson Mobile

Homes    Sales       &    Servs.,       624    S.E.2d      468,       473     (W.     Va.   2005).

Further,      a   property        owner       may    bring      an    inverse       condemnation

action under Wisconsin law only if the property in question "has

been occupied by a person possessing the power of condemnation

and if the person has not exercised the power."                                       Wis. Stat.

§ 32.10; Kohlbeck v. Reliance Constr. Co., 2002 WI App 142, ¶22,

256    Wis. 2d 235,         647    N.W.2d 277.             In    this       case,     an    inverse

condemnation action would be inappropriate because the Wallers

never claimed that ATC was occupying their entire property; they

retained      ownership         interest       in    the     property.           Instead,         the

Wallers      argue       that   ATC's     easement         substantially            impaired      the

economic viability of their property.

       ¶92    It is important to stress that the two tracks——the

right-to-take        action       and    the    valuation            proceeding       before      the

county condemnation commission——can proceed simultaneously, and

nothing should stop a utility like ATC from getting easements so

that    projects         can    move     forward,       so      long     as     the    right       of

condemnation is not being directly contested.                                 Wisconsin Stat.

§ 32.06(5)        specifically         provides       that      the    commencement          of    an

action under that section "shall not prevent a condemnor from
                                                38
                                                          No.         2012AP805 & 2012AP840



filing the [condemnation] petition provided for in [subsection]

(7) and proceeding thereon."                 Utilities like ATC are entitled to

an   efficient,        cost-effective,         and   timely     resolution          of     their

proposed takings.                In that vein, a motion for injunctive relief

to halt a           condemnation proceeding,           like     the    one     the    Wallers

proposed here, is counterproductive and contrary to the intent

and spirit of the statutes.

              C. Is the Waller Property an Uneconomic Remnant?

        ¶93    This brings us to the question of whether ATC's taking

of   the      two    easements        left   the     Wallers    with      an    uneconomic

remnant,       that        is,     "property . . . of      such        size,        shape    or

condition as to be of little value or of substantially impaired

economic viability."               Wis. Stat. § 32.06(3m).             In our view, the

circuit court was correct in its determination that the Wallers

were left with an uneconomic remnant.

        ¶94    Considerable          factual       findings     support         the        trial

court's conclusion that ATC's easements substantially impaired

the economic viability of the Waller property.
        ¶95    The    circuit       court    described    the    damage        to    property

value      that      was    recognized       in    both   appraisals         and      in    the
jurisdictional offer.                 Rolling's appraisal noted nearly a 57

percent loss in value, while Group One's appraisal determined
that the Waller property sustained an 88 percent loss of value.

The jurisdictional offer acknowledged a 76 percent decrease in




                                              39
                                                         No.        2012AP805 & 2012AP840



value        from    the    taking.         These    numbers    are     indicative      of

substantial economic impairment to the Wallers' small property.25

       ¶96     Other conclusions in both appraisals create a bleak

picture.           Rolling's appraisal for ATC noted that the Wallers'

property will have major transmission lines along two of its

three sides; that the transmission lines will be within 60 feet

of the house; and that substantial landscaping will have been

lost in the easement area.                    Rolling's appraisal acknowledged

that     the        property    was    already      transitioning       from       improved

residential use to vacant industrial use; the installation of

the transmission line pole and the lines themselves would tip

the    property        to   light     industrial,     rendering       the    residential

improvements "totally obsolete."

       ¶97     The     Group    One    appraisal     also   considered       the    Waller

property to have its highest and best use——after the taking——as

"vacant for industrial purposes."                   Group One also noted that the

Wisconsin          Department    of    Transportation,         in   its     Real    Estate

Manual       for     contractors      and   local    governments,      indicates      that
when a partial taking changes a property's highest and best use,

the change provides a basis for determining that the property
has become an uneconomic remnant.

       ¶98     However, even for industrial purposes, Group One noted
that the property's triangular shape and small size "negatively

        25
        The existence of an uneconomic remnant will not always
turn on the percentage of land or the percentage of value taken
by the condemnor. The existence of an uneconomic remnant almost
always turns on the economic viability of what is left after the
taking.

                                             40
                                                              No.      2012AP805 & 2012AP840



impact[ed] its desirability as an industrial site at this time."

Furthermore,        the    lack     of    municipal          sewer    and    water      on    the

remaining property is a detriment to any potential industrial

buyer, and as the court of appeals in Waller II noted, it would

cost approximately $41,000 to install the sewer and water——more

than the $38,000 in value for the remaining property.

      ¶99    In      either       case,        the     two     45-foot-wide           easements

restrict     the     property's          use     for    industrial          or   residential

purposes.

      ¶100 In conjunction, the two appraisals reveal a picture of

a property so dramatically affected by the easements that it has

limited residential and industrial use after the taking.                                       In

addition,      a    reduced     sound      barrier       between      the    residence        and

Interstate     43    and     perceived         electromagnetic         disturbances          that

would likely rattle any potential buyer, further diminish the

attractiveness and usability of the property.                            In other words,

the size, shape, and condition of the Waller property is of

substantially            impaired        economic          viability        as     either      a

residential or a light industrial parcel, and it is therefore an
uneconomic remnant.

      ¶101 These         factual    findings         are     not    "clearly     erroneous."
See   Waller       II,    334   Wis. 2d 740,           ¶15    ("Whether      the   remaining

property after a partial taking has 'little value' or is 'of

substantially impaired economic viability' is a factual question

for the circuit court to resolve.").

      ¶102 ATC       claims       that     the       Wallers'       property     is     not    an

uneconomic remnant because the Wallers could still live on the
                                                41
                                                          No.            2012AP805 & 2012AP840



property with the addition of the new high-voltage transmission

lines and that they in fact did live on the property even after

the    transmission        lines    were       fully    energized.            However,       ATC

confuses       habitability        with       substantial       economic          impairment.

Although       it    may   be    objectively          possible      to      remain    on     the

property and continue to live with the new transmission lines,

this    does       not   overcome       the    fact    that     the      property     lost    a

significant amount of its desirability and value and could no

longer sustain its previous use as a residential property.

       ¶103 ATC       argues     that    the    property       is     not    an    uneconomic

remnant because the existence of a habitable home negates the

possibility that the property is valueless.                               To support this

proposition, ATC cites Lake Oswego v. Babson, 776 P.2d 870 (Or.

Ct.    App.     1989)      and   Spotsylvania          County       v.    Mineral     Springs

Homeowners Ass'n, No. CL02-391, 2003 WL 21904116 (Va. Cir. Ct.

July 18, 2003).            However, these cases are distinguishable from

the Wallers' situation.                 In both cases, the court relied on

statutes      or    regulations      that      defined    "uneconomic             remnant"    as

land with no practical value or utility.                         See Lake Oswego, 776

P.2d    at     872-73;      Mineral       Springs,      2003     WL       21904116     at     *3

(defining       uneconomic         remnant      as     "unusable").                Thus,     the

determinative question in these cases was limited to whether a

property was valueless.                 By contrast, Wis. Stat. § 32.06(3m)

designates property as an uneconomic remnant if its economic

viability       has      been    substantially          impaired.             This    broader

definition allows for the conclusion that the Wallers' property


                                               42
                                                       No.       2012AP805 & 2012AP840



constitutes     an     uneconomic        remnant     even     though     it    is     not

valueless.

        ¶104 In addition, Mineral Springs and another case cited by

ATC, New Mexico ex rel. New Mexico State Highway Department v.

United States, 665 F.2d 1023 (Ct. Cl. 1981) (per curiam), are

factually distinct from the present case in that the property

owners themselves objected to the compelled takings and asserted

that their remaining properties were not uneconomic remnants.

These      distinctions          are     material       because——unlike             broad

constructions favoring landowners——courts interpret the power of

condemnors narrowly, especially when a taking goes beyond what

is needed for public use.              TFJ Nominee Trust, 244 Wis. 2d 242,
¶10; Mitton v. DOT, 184 Wis. 2d 738, 748, 516 N.W.2d 709 (1994)

(quoting Falkner, 75 Wis. 2d at 139) ("[N]o more property can be

taken than the public use requires.").

        ¶105 Based on the factual findings, we conclude that it was

not clearly erroneous for the circuit court to conclude that

ATC's     easements     have      substantially        impaired        the     economic

viability of the Waller property and that it is an uneconomic

remnant.

          D. Are the Wallers Entitled To Litigation Expenses?

        ¶106 Whether     the      Wallers      are    entitled      to       litigation

expenses turns on an application of Wis. Stat. § 32.28(3)(b),

which    provides,     in   relevant      part,      that    "litigation      expenses

shall     be   awarded      to     the     condemnee         if . . . [t]he         court

determines that the condemnor does not have the right to condemn


                                          43
                                                                  No.         2012AP805 & 2012AP840



part or        all    of    the    property         described       in    the     jurisdictional

offer."

        ¶107 By the plain language of the statute, if the court

determines that the condemnor does not have the right to condemn

part or all of the property, then litigation expenses shall be

awarded to the condemnee under Wis. Stat. § 32.28(3)(b).                                             The

circuit    court       concluded             that   ATC     had    to    acquire          the    entire

property if it wanted to condemn the land for the easements.

The court held that ATC did not have the right to condemn only

the     part     of    the        property          "sought       to     be     taken"          in   the

jurisdictional         offer           because      that    would       leave     an      uneconomic

remnant.        Given this antecedent determination by the court, it

was not error for the court to conclude that the Wallers are

entitled to litigation expenses.

      ¶108 This conclusion finds support in Warehouse II.                                             In

Warehouse       II,        this    court        held     that     an     owner       of    condemned

property was entitled to litigation expenses under the "right to

condemn"       language           of     Wis.       Stat.    § 32.28(3)(b),               where      the

condemnor had not negotiated its jurisdictional offer in good

faith.     This court found the statutory language ambiguous, and

"liberally            construe[d]               statutory          provisions              regarding

compensation for eminent domain takings to favor the property

owner     whose       property          is     taken      against       his     or     her       will."

Warehouse II, 291 Wis. 2d 80, ¶32.                          Awarding litigation expenses

under those circumstances furthered the statutory purposes "to

provide    more       specific          and     concrete        opportunities             to    recover

litigation expenses for condemnees with legitimate challenges to
                                                    44
                                                           No.          2012AP805 & 2012AP840



the actions of condemnors" and "to discourage a condemnor from

making a low-ball offer to save money."                          Id., ¶¶33–34.           Here,

like the plaintiffs in Warehouse II, the Wallers seek to recover

litigation       expenses       under     Wis.        Stat.      § 32.28(3)(b)          for    a

legitimate challenge to the condemnation actions of ATC.                                      The

statute should be liberally construed in the same manner, and

the Wallers are entitled to litigation expenses.

       ¶109 ATC argues that no statutory basis exists to award

litigation expenses because ATC negotiated in good faith.                                 Even

if     "good   faith      negotiation"             would   preclude         an    award       of

litigation expenses——which was not the holding of Warehouse II——
whether ATC negotiated in good faith is a factual issue best

addressed by the circuit court.                     It should be noted, however,

that    although    ATC     did    offer       to    acquire      the     Wallers'      entire

property for the full amount of the Wallers' appraisal, that

offer was conditioned upon the Wallers' waiver of relocation

benefits,      which    the     Wallers        successfully        sought        in    circuit

court.      Moreover, the offer was not included as part of the

jurisdictional offer.             These facts weigh against a finding that

ATC negotiated in good faith.

       ¶110 ATC argues also that awarding litigation expenses does

not    advance    the   purposes         of    Wis.    Stat.      § 32.28(3)(b).              ATC

correctly points out that the purpose of the statute is to make

the     landowner       whole      and        to     discourage         condemnors        from

shortchanging landowners.                ATC claims that the Wallers would

have    been     made   more      than    whole       by   accepting        its       offer   of

$132,000 for the whole property or the jurisdictional offer for
                                              45
                                                     No.      2012AP805 & 2012AP840



the easement for $99,500.            However, this claim ignores the fact

that ATC's offer for the entire property was conditioned on the

Wallers' waiver of relocation benefits, to which the circuit

court held the Wallers are entitled.                Because the Wallers could

have    been     made    whole   only    by    a   jurisdictional    offer    that

included relocation benefits, accepting ATC's offer would have

shortchanged       the    Wallers,      and    awarding     litigation   expenses

furthers the purposes of the statute.26

            E. Are the Wallers "Displaced Persons" and Entitled

                           to Relocation Benefits?

       ¶111 Wisconsin       Stat.    § 32.19,      titled    "Additional     items

payable," provides for payments to persons displaced by public

projects.       The declaration of purpose in Wis. Stat. § 32.19(1)

provides, in part, that:

       The legislature declares that it is in the public
       interest that persons displaced by any public project
       be fairly compensated by payment for the property
       acquired and other losses hereinafter described and

       26
       The dissent professes fidelity to the text of the
condemnation statute, see Dissent, ¶162, without acknowledging
the usual disparity in resources between the condemnor and
condemnee and the broad policy contained in the condemnation
statute to ameliorate this disparity.

     A condemnee is entitled to just compensation. A condemnee
will not be made whole if the condemnee is forced to litigate
the issue of just compensation at great expense and then
subtract his or her attorney fees from an award of full value.
See Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 744, 349
N.W.2d 661 (1984). A condemnor has no incentive to reach a fair
settlement with a condemnee if the condemnor is convinced that
it can prevail by outspending and outlasting the weaker
adversary.   Wisconsin Stat. § 32.28(3) exists to address this
imbalance of power between the condemnor and the condemnee.

                                          46
                                                        No.      2012AP805 & 2012AP840


      suffered as the result of programs designed for the
      benefit of the public as a whole; and the legislature
      further finds and declares that, notwithstanding
      subch. II, or any other provision of law, payment of
      such relocation assistance and assistance in the
      acquisition of replacement housing are proper costs of
      the construction of public improvements.
      ¶112 Wisconsin Stat. § 32.19(3) provides that a condemnor

shall make relocation benefit payments to "displaced persons."

A displaced person is:

      [A]ny person who moves from real property or who moves
      his or her personal property from real property:

           a.   As a direct result of a written notice of
      intent to acquire or the acquisition of the real
      property, in whole or in part or subsequent to the
      issuance   of  a   jurisdictional   offer under this
      subchapter, for public purposes; or

           b.   As a result of rehabilitation, demolition or
      other displacing activity, as determined by the
      department of administration, if the person is a
      tenant-occupant of a dwelling, business or farm
      operation and the displacement if permanent.
Wis. Stat. § 32.19(2)(e)1.          Disputes about relocation benefits

must be brought in separate actions under Wis. Stat. § 32.20.

      ¶113 Because      the   Wallers     did     not    move     as    a   result    of

"rehabilitation,     demolition,     or        other    displacing      activity"     as

articulated   in    subparagraph         b.,     the    Wallers       are   "displaced

persons"   only    if    they    moved     "as    a     direct    result"      of    the

jurisdictional offer under subd. para. a.

      ¶114 Determining whether a person moved from real property

"as a direct result" of a written notice of the acquisition——

i.e., a jurisdictional offer——requires a factual inquiry into

the   cause   of        the     person's        move.           See     Wis.    Stat.


                                         47
                                                         No.          2012AP805 & 2012AP840



§ 32.19(2)(e)(1)a.          Factual       findings      will     be     affirmed     unless

clearly erroneous.           Wis.    Stat.      § 805.17        (2);    Emp'rs     Ins.    of

Wausau v. Jackson, 190 Wis. 2d 597, 613, 527 N.W.2d 681 (1995).

     ¶115 The      Wallers    lived       on    their    property        for    almost     20

years before ATC made its jurisdictional offer in March 2008.

Though ATC offered to purchase the Wallers' entire property for

$132,000——approximately            the     full        amount     of      the      Wallers'

appraisal——the      Wallers        refused       that     offer        because     it     was

conditioned on a waiver of their relocation benefits.                              Although

the Wallers had listed their house for sale in 2005, there is no

evidence that the Wallers conducted a search for replacement

property until Spring 2008, when ATC made its jurisdictional

offer.     Based on these facts, Judge Carlson's finding that the

Wallers' move was a "direct result . . . in whole or in part"

because of ATC's jurisdictional offer is not clearly erroneous.

     ¶116 ATC      argues     that       the     Wallers        are     not     "displaced

persons" because they chose to move voluntarily and were not

"forced" to move.       The Wallers do not dispute that they could

have continued to live on the property after the installation of
the transmission line or that they decided to move before they

received    Rolling's       2007     appraisal.              However,       the    statute
contains no explicit requirement that a person's move must be

"forced"    or     involuntary       in        order    to      render      that    person
"displaced."

     ¶117 If the legislature intended to provide for relocation

benefits only for persons who were "forced" to move, it could

have done    so.     Indeed, the          second       alternative        definition       of
                                           48
                                                          No.       2012AP805 & 2012AP840



"displaced person" in Wis. Stat. § 32.19(2)(e)(1)b. explicitly

provides that a "displaced person" is one whose move is prompted

by "rehabilitation, demolition, or other displacing activity."

This definition of "displaced person" is an alternative to subd.

para. a., which contains no reference to the physical condition

or habitability of the condemned property, and instead defines

"displaced person" in terms of "direct" causation.

                                   IV. CONCLUSION

        ¶118 We      conclude      the   following.             First,       Wis.    Stat.

§ 32.06(5), the "right-to-take" provision, sets out the proper

and exclusive way for a property owner to raise a claim that the

owner will be left with an uneconomic remnant after a partial

taking by the condemnor.             An uneconomic remnant claim should be

brought under § 32.06(5) because the condemnor has failed to

include       an   offer   to     acquire   any        uneconomic     remnant       in   the

condemnor's jurisdictional offer.                  The inclusion of an offer to

acquire an uneconomic remnant acknowledges the existence of the

uneconomic remnant.              The exclusion of such an offer indicates
that    the     condemnor    disputes       the    existence      of    an    uneconomic

remnant.        A right-to-take action must be decided promptly by the
court     and      shall   not    prevent        the    condemnor      from    filing     a

simultaneous valuation petition, proceeding thereon, and taking
any property interest whose condemnation is not being directly

contested by the owner.            A right-to-take action on an uneconomic
remnant claim is designed to protect an owner's right to fair

compensation to avoid economic hardship, not to paralyze public

interest takings under eminent domain.
                                            49
                                                            No.         2012AP805 & 2012AP840



       ¶119 Second,      the    Wallers'        property,         after       ATC    took    two

easements      for    transmission    lines,           is    an        uneconomic      remnant

because it is of such size, shape, and condition as to be of

substantially         impaired     economic            viability             as     either     a

residential or an industrial parcel.                         The taking of the two

easements      drastically       reduced     the       portion          of    the     Wallers'

property not subject to a servitude.                        The easements themselves

not only restricted the Wallers' activity in the easement area

but     also         substantially         diminished              the        desirability,

practicality, and value of the Wallers' property for either a

residential or industrial user.

       ¶120 Third,      the    Wallers      prevailed             on    their       uneconomic

remnant claim brought under Wis. Stat. § 32.06(5)——the right-to-

take    statute——and,         therefore,        were        entitled         to     litigation

expenses under Wis. Stat. § 32.28.

       ¶121 Finally, the Wallers were displaced persons under Wis.

Stat. § 32.19(2)(e)1.a. because they moved "as a direct result"

of ATC's jurisdictional offer, and the circuit court's findings
of fact on this issue are not clearly erroneous.



       By   the   Court.—The      judgments        of       the        circuit      court    are

affirmed.
       ¶122 MICHAEL J. GABLEMAN, J., did not participate.




                                           50
                                                  No.    2012AP805 & 2012AP840.awb




     ¶123 ANN WALSH BRADLEY,          J.     (dissenting).          The    majority

has transformed what should be a case of minor statewide impact

involving    only    a   small    amount    of   money     into     a    case   with

significant ramifications and costly consequences for ratepayers

and taxpayers who end up paying the bills.

     ¶124 The       ramifications    will    affect      how     all     condemnors

throughout the state proceed with the taking of property for

projects, large and small.1

     ¶125 Because        the   majority     rewrites       and    broadens      the

statutory definition of an uneconomic remnant, condemnors may

now be required to take an increased amount of property that

they do not want or need for their projects.                Increased costs to

ratepayers    and     taxpayers     will    accompany       these       unnecessary

takings because now condemnors can be required to pay for the



     1
       As ATC warned before the circuit court, the ramifications
of this case extend far beyond this relatively small dispute.
The importance of this case was described by ATC's attorney on
the record:

     The value is small in this case. But the implications
     of it are enormous not just for ATC but for the
     Department of Transportation and every other condemnor
     in the state . . . if there were a finding that this
     small amount of visual and noise w[as] enough to
     render this an     uneconomic remnant,    you'll have
     uneconomic remnants in all sorts of cases.      You'll
     have to buy the entire property, you'll have to
     provide all the relocation benefits, and we don't
     think that's anything like what the legislature
     intended.

     In essence, this case has the potential to spawn a cottage
industry of uneconomic remnants.

                                       1
                                                   No.     2012AP805 & 2012AP840.awb


entire property, together with relocation benefits, rather than

paying for the taking of only an easement.

       ¶126 In concluding that the right-to-take proceeding is the

only way to bring an uneconomic               remnant      claim,       the   majority

rewrites another statute.        Rather than following the clear words

of the right-to-take statute, the majority creates a process

with concurrent dual proceedings which has the potential for

conflicting valuations and procedural quagmires.                    The majority's

process of dual proceedings contravenes the legislative purpose

of    the   condemnation    statutory       scheme,      which     is    to    promote

efficient and cost-effective condemnation procedures.

      ¶127 Likewise,       because    the    majority        rewrites         what   it

initially acknowledges as the clear language of a third statute,

the   litigation     expense   statute,      it   awards       out-of-proportion

litigation expenses of $211,261.64 for a case involving only a

few thousand dollars difference in value.

      ¶128 Our task when interpreting statutes is to discern the

statute's meaning, which we presume is expressed in the language

of the legislature.        Richards v. Badger Mut. Ins. Co., 2008 WI

52, ¶20, 309 Wis. 2d 541, 749 N.W.2d 581.                In applying the words

of the statutes written by the legislature, I conclude that a

valuation proceeding under Wis. Stat. § 32.06(7) is the proper

proceeding to bring an uneconomic remnant claim.                    Furthermore, I

determine     that   the   Wallers'     property      is     not    an    uneconomic

remnant as it is defined by Wis. Stat. § 32.06(3m) and that the

Wallers are not entitled to litigation expenses or relocation

benefits.     Accordingly, I respectfully dissent.

                                        2
                                                                No.    2012AP805 & 2012AP840.awb


                                                   I

  A. The       majority            rewrites        Wis.        Stat.        § 32.06(3m),            the

        uneconomic remnant statute.

        ¶129 The majority rewrites the statutory definition of an

uneconomic       remnant.            It    describes          the     remnant     here        as    "the

Wallers' property," leaving the impression that the remnant is

the     entire      property        rather     than       a     remaining         piece       of    the

property.      Majority op., ¶7.

        ¶130 Basing its analysis on a percentage formula (57%, 88%,

and 76%), the             majority        opines       that    the    percentage         losses      in

value     illustrate             "substantial          economic        impairment"            to    the

property.        Id., ¶95.          In addition to considering the percentage

losses    to     the      property's         value,       it    states        that      the    Waller

property       is      an        uneconomic        remnant          because       the    easements

"diminished         the     desirability,          practicality,            and    value       of    the

Wallers' property."               Id., ¶7.

        ¶131 Such         an      analysis    rewrites          the      uneconomic           remnant

statute.       The text of Wis. Stat. § 32.06(3m), which sets forth a
definition of an uneconomic remnant, provides in relevant part:

        (3m) Definition. In this section, "uneconomic remnant"
        means the property remaining after a partial taking of
        property, if the property remaining is of such size,
        shape or condition as to be of little value or of
        substantially impaired economic viability.
        ¶132 The majority rewrites Wis. Stat. § 32.06(3m) in two

ways.      First,           it    appears     to       rewrite        the    statutory         phrase

"property remaining" to mean an entire property.                                        Second, it

rewrites the statutory phrase "substantially impaired economic



                                                   3
                                                             No.   2012AP805 & 2012AP840.awb


viability" to mean "diminished desirability, practicality, and

value."

       ¶133 In       essence,     to     fit    the        facts    of    this   case,      the

majority rewrites Wis. Stat. § 32.06(3m) as follows:

       (3m) Definition. In this section, "uneconomic remnant"
       means the entire property remaining after a partial
       taking of property, if the property remaining is of
       such size, shape or condition as to be of little value
       or   of  substantially   impaired  economic   viability
       diminished desirability, practicality, and value.
(additions are in bold, deletions have been struck.)

       ¶134 The       majority's         revision           not     only      changes       the

legislature's        explicit     statutory         language        defining     a   remnant,

but    it    also    flies   in    the       face   of      common       sense——the    entire

property       cannot      constitute        only      a     remaining       part     of    the

property.       Throughout its opinion, the majority describes the

relevant remnant in this case as "the Wallers' property."                                   See
majority op., ¶¶7, 102, 103, 119.                          If the majority is indeed

defining an uneconomic remnant as the entire property, it makes

no sense because a remnant necessarily means something that is

remaining or left over.

       ¶135 The common and ordinary meaning of the word "remnant"

is "[s]omething left over; a remainder."                           The American Heritage

Dictionary,         1527   (3d    ed.    1992).            Likewise,       the   common      and

ordinary meaning of the statutory word "remaining" contemplates

that    some    property      will      be     "left       after    the     removal,       loss,

passage, or destruction of others."                    Id. at 1525.          The "remnant"

or     the   "property       remaining"         cannot       mean     the    whole     Waller




                                               4
                                                 No.   2012AP805 & 2012AP840.awb


property——there nothing that is "left over" because the entire

property is still intact.

     ¶136 If the remnant were the entire property, condemnors

would be put in the absurd position of having to buy entire

properties when the taking leaves the property wholly intact and

retaining an economic viability.          It substantially inflates the

scope of takings required for projects where only easements are

necessary, such as the installation of power lines, water or gas

pipelines, and the like.       In setting forth a definition of an

uneconomic remnant, the legislature cannot have intended that a

utility company would be forced to buy a whole property in order

to install power lines on otherwise existing highway and utility

easements.

     ¶137 Arguably     the     majority      embraces         its     strained

"whole=left over part" analysis because under the facts of this

case it also makes no sense that the remnant is the remaining

part of the property which is unencumbered by easements.                    The

following    illustration,   which   is    not    to    scale,   depicts    the

previously existing highway and utility easements together with

the ATC easements superimposed on top of them:




                                     5
                                                         No.   2012AP805 & 2012AP840.awb




The   legislature   likewise       cannot         have    envisioned       that    public

utilities   would   be    forced    to   take        fee       simple    title     to   the

interior    part   of    property   as       an    "uneconomic          remnant"    while

leaving the property owner fee simple title subject to easements

in the borders of the property.2             It would be absurd.


      2
       The north side of the triangle is abutted by Mound Road.
It was previously subject to a 20-foot easement and a 25-foot
highway   setback.     ATC's  proposed  easement  expanded  the
encumbered area by 25 feet, and would create a 45-foot wide
strip of land along Mound Road.

     The east side of the triangle abuts Interstate 43 and was
previously subject to a 50-foot highway setback. ATC's proposed
easement would create a 45-foot wide strip of encumbered
property within the existing setback area.

     A smaller triangle of land remains unencumbered by
easements or setback restrictions after the partial taking. The
residence is located on the smaller triangle.

                                         6
                                                         No.    2012AP805 & 2012AP840.awb


       ¶138 The       second    way    in     which   the      majority    rewrites        the

statutory    definition         of     the     remnant      also    leads      to    absurd

results.    The statute sets forth the "size, shape and condition"

test   to   be    applied       when       determining      "substantially          impaired

economic    viability."              Wis.     Stat.   § 32.06(3m).             Instead      of

focusing on the statutory test, the majority makes up its own.

It   interprets       "substantially          impaired      economic      viability"        to

mean "diminished . . . desirability, practicality, and value."

Majority    op.,      ¶7.      The     majority's     emphasis      on     desirability,

practicality, and value causes it to employ a percentage formula

in   determining       whether       the     Waller   property      is    an   uneconomic

remnant that at first appears compelling, but ultimately the use

of a percentage formula can lead to absurd results.                                 Majority

op., ¶85.

       ¶139 The       absurdity       is    illustrated      in    the    taking      of    an

easement    on    a    highly     valued      piece    of      property.        Take,      for

example, a $6 million parcel of land:

       ¶140 If the value of the property after the partial taking

decreases by 57%, as Rolling's appraisal indicated, then the

value of the remaining property is $2,580,000.

       ¶141 If     the      jurisdictional         offer's        estimation        of     the

decrease in value is used and the $6 million parcel loses 76% of

its value, the remaining property is worth $1,440,000.

       ¶142 If     the      Group      One     appraisal's        estimation        of     the

decrease in value is used and the $6 million parcel loses 88% of

its value, the remaining property is worth $1,320,000.



                                               7
                                                     No.   2012AP805 & 2012AP840.awb


            ¶143 Few would argue that a property with an after-taking

value of $2,580,000, $1,440,000, or $1,320,000 is an uneconomic

remnant of "substantially impaired economic viability," except

perhaps       in    the   extreme   circumstance      where    there    are   other

compelling         factors   present   in   the   facts.      Does   the   majority

really mean to employ an analysis that could declare a multi-

million dollar property an uneconomic remnant?

     ¶144 Rather than rewrite Wis. Stat. § 32.06(3m) to fit the

Wallers' situation, the majority should stick to applying the

words chosen by the legislature.                  Such a practice would avoid

the absurd results described above.

  B. The majority rewrites Wis. Stat. § 32.06(5), the right-to-

    take statute.

    ¶145 The majority tackles the issue of what condemnation

proceeding should be used to raise an uneconomic remnant claim——

a valuation proceeding3 under Wis. Stat. § 32.06(7)4 or a right-

        3
       The majority refers to the proceeding set forth in Wis.
Stat. § 32.06(7) in various ways.       At times it calls the
proceeding a "valuation proceeding."    Majority op., ¶¶70, 92.
Other times, it calls the proceeding a "condemnation hearing on
valuation."   Id., ¶90.   In yet other places, it refers to the
proceeding as a "just compensation proceeding." Id., ¶67. This
opinion refers to such a proceeding as a "valuation proceeding."
        4
            Wisconsin Stat. § 32.06(7) states as follows, in relevant
part:

    (7) Petition for condemnation proceedings. If the
    jurisdictional offer is not accepted within the
    periods limited in sub. (6) or the owner fails to
    consummate an acceptance as provided in sub. (6), the
    condemnor may present a verified petition to the
    circuit court for the county in which the property to
    be taken is located, for proceedings to determine the
    necessity of taking, where such determination is
    required, and the amount of just compensation. . . .
                              8
                                                       No.   2012AP805 & 2012AP840.awb


to-take proceeding under Wis. Stat. § 32.06(5).                        Majority op.,

¶68.       Citing    to   Wis.     Stat.        § 32.06(5),     the     right-to-take

statute, it concludes that an uneconomic remnant claim can be

maintained only in a right-to-take proceeding.                   Id., ¶92.

       ¶146 In     reaching   this     conclusion,       however,       the    majority

rewrites the right-to-take statute.                    As the legislature wrote

the statute, it provides, in relevant part:

       (5) Court action to contest right of condemnation.
       When an owner desires to contest the right of the
       condemnor to condemn the property described in the
       jurisdictional offer for any reason other than that
       the amount of compensation offered is inadequate, such
       owner may . . . commence an action in the circuit
       court of the county wherein the property is located,
       naming the condemnor as defendant. Such action shall
       be the only manner in which any issue other than the
       amount of just compensation or other than proceedings
       to perfect title under ss. 32.11 and 32.12 may be
       raised pertaining to the condemnation of the property
       described in the jurisdictional offer.
Wis. Stat. § 32.06(5) (emphasis supplied).

       ¶147 The     Wallers   are     not       contesting     the     right    of     the

condemnor    to     condemn——quite      the       opposite.           They    want     the

condmenor    to     condemn   even    more       property.       In    an     effort    to

shoehorn     the     facts    of     this       case   into    the      right-to-take




       If the petitioner is entitled to condemn the property
       or any portion of it, the judge immediately shall
       assign the matter to the chairperson of the county
       condemnation commissioners for hearing under s. 32.08.
       An order by the judge determining that the petitioner
       does not have the right to condemn or refusing to
       assign the matter to the chairperson of the county
       condemnation commissioners may be appealed directly to
       the court of appeals.

                                            9
                                                        No.   2012AP805 & 2012AP840.awb


proceeding, the majority rewrites the statute by ignoring part

of the statutory language.

      ¶148 The        majority      erases        the   portion       of    Wis.        Stat.

§ 32.06(5) stating that the proceeding is to be maintained when

"an   owner    desires      to    contest    the    right     of    the    condemnor       to

condemn       the      property      described          in      the       jurisdictional

offer . . . ."            Wis.    Stat.   § 32.06(5).           Despite      that       clear

statement of purpose in the statute, the majority directs future

litigants like the Wallers, who do not in any way contest the

condemnor's         right    to    take     the    property        described       in    the

jurisdictional offer, to bring uneconomic remnant claims under

Wis. Stat. § 32.06(3m) in a right-to-take proceeding.5

      ¶149 All       of     the   legislature's         words      must    be   accorded

meaning, and here the legislature has stated that a right-to-

take proceeding is to be maintained when an owner contests the

right of the condemnor to take the property described in the

jurisdictional offer.             However, the majority appears to delete

that language from Wis. Stat. § 32.06(5) in characterizing the

right-to-take proceeding as a catchall proceeding for uneconomic

remnant claims.



      5
       The Wallers' attorney stated on the record that there is
no challenge to ATC's right to take the property described in
the jurisdictional offer:

      In this case . . . this is a case in which we are not
      challenging their right to take.      The only reason
      we're in that statute [Wis. Stat. § 32.06(5)] is
      because the statute says the only reason——the only way
      you can enforce (3m) is under this provision. This is
      really not a challenge action.

                                            10
                                                      No.    2012AP805 & 2012AP840.awb


       ¶150 Additionally, Wis. Stat. § 32.06(5) is rewritten when

the majority leaves out other statutory words from its analysis.

It emphasizes "any issue," but the statute states in full "any

issue other than the amount of just compensation . . . ."                                 By

emphasizing "any issue," the majority implicitly holds that an

uneconomic remnant claim is not really one of just compensation.

       ¶151 However,      just   compensation         is    at    the    heart     of    the

uneconomic remnant claim here.            The owners want more money.

       ¶152 Misinterpreting        an   uneconomic          remnant        claim   as     an

issue of the right to take rather than an issue of how much

compensation      a     property      owner     should           receive       creates     a

procedural quagmire.         Because the majority contemplates that a

right-to-take      case     proceeds      concurrently            with     a    valuation

proceeding,      see    majority   op.,       ¶¶92,    what        happens      when     the

answers reached in each proceeding conflict with each other?

Both proceedings require a fact finder to determine the before

and after value of the property at issue.                          When they are in

conflict, which valuation trumps the other?
       ¶153 If    the     valuation     in    the     right-to-take            proceeding

trumps the valuation in the valuation proceeding, how does that

affect the statutory right to a jury trial in the valuation

proceeding?      Wisconsin Stat. § 32.06(10) expressly sets forth a

statutory right to a jury in a valuation proceeding.                            It states

that   a   valuation      proceeding    on    appeal        to    the    circuit       court

"shall be tried by a jury unless waived by both plaintiff and

defendant."      Id.     Is such a statutory right now to be subsumed



                                         11
                                                                  No.    2012AP805 & 2012AP840.awb


in favor a judge's determination of value in a right-to-take

proceeding?

        ¶154 Here,         the    court      of    appeals          held       that     the    jury's

verdict       in   the     valuation         proceeding           must    be     vacated      if    the

circuit court determined——as it did——that the taking resulted in

an uneconomic remnant.                   Waller v. American Transmission Co.,

LLC, 2011 WI App 91, ¶17, 334 Wis. 2d 740, 799 N.W.2d 487.

Because there is a statutory right to a trial by jury in a

valuation proceeding and the jury's verdict is now vacated, does

that mean that the valuation proceeding must be retried?

        ¶155 Is the circuit court's determination on the issue of

value    in    the       right-to-take        proceeding           subject       to    a    claim    of

issue preclusion in the valuation proceeding?                                     If so, is the

denial of the statutory right to a jury trial implicated?

       ¶156 The          condemnation           statutory               scheme     strives          for

proceedings          which       are     both      efficient             and     cost-effective.

Pulvermacher Enterprises, Inc. v. Wisconsin DOT, 166 Wis. 2d

234,    241,       479    N.W.2d       217   (Ct.          App.   1991).         The       majority's
conclusion that an uneconomic remnant claim can be brought only

in a right-to-take proceeding is contrary to those purposes and

potentially creates the procedural quagmire described above.

       ¶157 This          case     provides            a     textbook          example        of    the

inefficiencies likely to result from the majority's procedures.

Here, the same evidence is so essential to both the question of

just compensation and the uneconomic remnant determination that

the circuit court incorporated the record and the jury's verdict

setting       forth       before       and    after         values       from     the      valuation

                                                  12
                                                     No.    2012AP805 & 2012AP840.awb


proceeding into the right-to-take case.                See majority op., ¶36.

After the court of appeals reversed the circuit court a second

time,    concluding     that   a   hearing     was    necessary        to      determine

whether an uneconomic remnant exists, the same witnesses who

testified in      the   valuation    trial     were    called.           They    offered

essentially the same testimony.            See majority op., ¶41.

        ¶158 Condemnation      proceedings     are     designed        not      only   to

provide     for   an    efficient        resolution        to    the     question      of

compensation, but also to provide a cost-effective method of

taking property.        Pulvermacher Enterprises, Inc., 166 Wis. 2d at

241.     In Falkner v. Northern States Power Co., 75 Wis. 2d 116,

248 N.W.2d 885 (1977), even as this court recognized that a

right-to-take      proceeding       is     independent          from     a     valuation

proceeding, it also observed that "[d]uplication of effort and

expense may result if separate trials are held."                             Falkner, 75

Wis. 2d at 135 n.9.        The Falkner court therefore recognized that

the    condemnation     statutes    are    designed        to    avoid       unnecessary

expense incurred by concurrent proceedings.
       ¶159 In    an     amicus     brief,      the         Wisconsin          Utilities

Association provides examples of the added expense that will

likely arise due to the condemnation procedures adopted by the

majority.     It advances that the added expense will ultimately

appear in Wisconsin residents' utility bills:

       For example, Wisconsin utilities . . . depend on
       efficient condemnation procedures to allow them to
       quickly construct new power lines, gas pipes, and
       water pipes to meet Wisconsin's growing utility
       needs. . . .   The financial expenses associated with
       the eminent domain process [] directly impact[s]
       Wisconsin residents, as the costs of doing business as
                                          13
                                                       No.    2012AP805 & 2012AP840.awb

       a utility are largely passed on to customers through
       rates.
In rewriting Wis. Stat. § 32.06(5), the majority has left in its

wake       inefficient      condemnation          proceedings        that      are     more

expensive to maintain.             The costs of the majority's procedures

will be passed on to rate-payers and taxpayers alike.6

  C. The         majority     rewrites      Wis.    Stat.      § 32.28(2)(b),             the

       litigation expenses statute.

       ¶160 The litigation expenses awarded by the circuit court

total $211,261.74.            Majority op., ¶44.             In its discussion of

litigation        expenses,      the    majority   does      not    even     mention      the

amount awarded by the circuit court.                      It nevertheless, without

analysis of the amount, affirms the entire award as reasonable.

Id., ¶¶106-110.

       ¶161 The        error       of      the      majority's         sub         silencio

reasonableness        determination        is    compounded        because    it    has    to

rewrite      a   statute    in    order    to    affirm    this     award     of   out-of-

proportion litigation expenses.                  Wisconsin Stat. § 32.28(3)(b),

the litigation expenses statute,                 provides in relevant part:

       (3) In lieu of costs under ch. 814, litigation
       expenses shall be awarded to the condemnee if:

       . . . .

       6
       The Wisconsin Utilities Association further argues that
the provision of utility services such as electricity, gas, and
water are "a quintessential public good at stake in the exercise
of eminent domain."    It advances that "[r]esidents throughout
Wisconsin depend on" condemnor-utilities for their utility
services, and observes that this court's decision "not only
affects the [utilities], it also affects their customers'
interests in reasonably priced utility services and sufficient
electric, gas, and water distribution infrastructure to support
economic development and growth throughout Wisconsin."

                                            14
                                                                  No.    2012AP805 & 2012AP840.awb

      (b) The court determines that the condemnor does not
      have the right to condemn part or all of the property
      described in the jurisdictional offer or there is no
      necessity for its taking . . . .
      ¶162 The majority initially                         accepts       point-blank            that      the

"plain language" of the statute does not allow the majority to

award litigation expenses here.                          Majority op., ¶107.                  The plain

language allows litigation expenses only if "the condemnor does

not   have      the      right       to     condemn       part    or    all     of      the        property

described           in        the     jurisdictional              offer."                   Wis.        Stat.

§ 32.28(3)(b).            Nevertheless, the majority seemingly ignores the
plain language and rewrites the statute by awarding litigation

expenses in a case where all agree that ATC has the right to

condemn        part       or        all     of     the     property        described               in     the

jurisdictional offer.                 Id.

        ¶163    An       award        of        litigation        expenses         is        ordinarily

authorized by statute and must fit within the relevant statutory

grant    of     authority            to     justify       an     award     in      a    given           case.

Shifting litigation expenses under Chapter 32 is no different——

it    "is      a      matter          of        policy     to     be     determined                by    the
legislature . . . ."                  Wieczorek v. City of Franklin, 82 Wis. 2d

19,     23,    260       N.W.2d           650    (1978).         By     applying            Wis.        Stat.

§ 32.28(3)(b)            to    these       facts,        the    majority      is       rewriting          the

words    of     the       statute          and     granting       an     award         of    litigation

expenses that the legislature did not authorize.

      ¶164 Ultimately, the ramifications of rewriting Wis. Stat.

§ 32.28(3)(b) to fit this fact pattern will be felt by the rate-

paying public.                It is not really ATC that is on the hook for

paying        the        Wallers'           disproportionately                large          litigation

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expenses.        Rather,     it    is    those     Wisconsin        residents      who   use

electricity that will pay the $211,261.74 bill.

        ¶165 The amounts in dispute in this case are dwarfed by the

Wallers' litigation expenses.                 Here, ATC offered to purchase the

easements for $99,500 in a consensual sale.                        That offer exceeded

the awards of both the compensation commission, which awarded

$90,000 for the easements, and the jury, which awarded $94,000

for     the    easements.         In    the    alternative,         ATC     conditionally

offered to buy the Wallers' entire property for $132,000——the

same valuation that the jury ultimately proffered for the Waller

property.

        ¶166 The Wallers rejected ATC's offers.                     Instead, they took

ATC to court.          They chose to litigate until the case had seen

three circuit judges, the condemnation commission, two panels at

the court of appeals, and now the Wisconsin Supreme Court.

        ¶167 In the end, a jury awarded the Wallers $5,500 less for

the easements than what ATC offered to pay in a consensual sale.

        ¶168 The       Wallers'         attorneys      have         without        question

vigorously      and    diligently        advanced     their        clients'      interests.

However, a litigation expenses award of $211,261.74 in a matter

where    the    just    compensation          award    was     less       than   what    was

initially       offered     in    a     consensual      sale        and    where    it    is

undisputed that the condemnor has a right to take the easements

at    issue    is   wholly   out       of   proportion        to    the    scale    of   the

dispute.

       ¶169 The law requires that an award of litigation expenses

must be reasonable and necessary.                     Standard Theatres, Inc. v.

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Wisconsin DOT, 118 Wis. 2d 730, 741, 349 N.W.2d 661 (1984).                             In

evaluating the reasonableness of proposed litigation expenses,

this court has in past cases utilized SCR 20:1.5 as a useful

guide.     Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112,

¶24, 275 Wis. 2d 1, 683 N.W.2d 58.                One factor to consider under

SCR 20:1.5 is "the amount involved and the results obtained."

Such an out-of-proportion award is not reasonable under these

circumstances,       given     the   "amount      involved"     and      the      "results

obtained."

     ¶170 By affirming an award of $211,261.74 in litigation

expenses     here,    the    majority     is    sending      the     wrong     message.

Litigants may have little incentive to avoid dragging out small

disputes about uneconomic remnants, hoping that future courts

will likewise shoehorn their circumstance into the words of the

statute and award out-of-proportion litigation expenses.

                                          II

     ¶171 Our task when interpreting statutes is to discern the

statute's meaning, which we presume is expressed in the language

of the legislature.           Richards, 309 Wis. 2d 541, ¶20.                     For the

reasons    set   forth      above,   I    conclude     that     the      right-to-take

procedure is ill-fitted for an uneconomic remnant determination.

It   would    require       rewriting     of   the    statute      and     results      in

concurrent, costly, and potentially conflicting procedures.

     ¶172 The        uneconomic         remnant      determination           is     about

compensation, not        the    right    to    condemn.       That    is     especially

evident in this case.           The Wallers do not challenge ATC's right



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to condemn.        Rather, they seek additional compensation based on

the nature of ATC's taking.

      ¶173 In applying the words of the statutes as written by

the   legislature,        I    conclude         that     Wis.       Stat.      § 32.06(7)      sets

forth the correct procedure because it focuses on valuation and

compensation.           Wisconsin Stat. § 32.06(7) requires that if the

condemnor is "entitled to condemn the property or any portion of

it,   the   judge        immediately        shall        assign       the      matter     to    the

chairperson of the county condemnation commissioners for hearing

under s. 32.08."              Such a proceeding may be commenced in the

circuit court by verified petition "for proceedings to determine

the necessity of taking, where such determination is required,

and the amount of just compensation."7                        Id.

      ¶174 Thus, even if an uneconomic remnant claim implicates

issues    related        to    the   necessity           of   the     taking,       Wis.       Stat.

§ 32.06(7) allows for the resolution of those uneconomic remnant

claims.     Under        the    statute,         the     circuit         court    is    expressly

empowered     to      determine       the       necessity       of       the     taking    before
referring the matter to the condemnation commission.                                   Wis. Stat.

§ 32.06(7);        see    also       Wis.        Stat.    § 32.07(3)             (allowing      the

necessity   of      a    taking      to     be    determined          by    the    court).        A

"proceeding      to      determine        the     necessity         of     taking"      naturally

      7
       Upon resolution of questions regarding the necessity of a
taking, the statute directs the circuit court to refer the
valuation question to the condemnation commission.    Wis. Stat.
§ 32.06(7).    The condemnation commission is authorized by
statute to "ascertain the compensation to be made for the taking
of property or rights in property sought to be condemned," but
is not otherwise empowered to determine the necessity of the
proposed taking. Wis. Stat. § 32.08(5).

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encompasses      uneconomic      remnant       arguments     that   implicate    the

scope of a taking.

       ¶175 The legislative purpose of the condemnation statutory

scheme supports my conclusion.                 The purpose "is to provide an

efficient,      final     resolution      to    the    compensation      question."

Pulvermacher Enterprises, 166 Wis. 2d at 241.

       ¶176 Bringing an uneconomic remnant claim in a valuation

proceeding avoids the procedural quagmire identified above.                       It

will encourage questions such as the ones presented here, where

the    Wallers    do      not   dispute    the     taking     but    instead    seek

additional compensation, to be resolved quickly and efficiently

so that just compensation may be addressed with a measure of

finality.

       ¶177 Having determined that a valuation proceeding is the

correct way to raise an uneconomic remnant claim, I turn to

address whether the Wallers' remaining property after the taking

is an uneconomic remnant.              Wisconsin Stat. § 32.06(3m) states

that a parcel is an uneconomic remnant under two circumstances——

when the remnant is of such size, shape or condition so as to be

of    "little    value"    or   is   of   "substantially       impaired    economic

viability."

       ¶178 No one argues on review that the Waller property is of

"little value," and because the Waller property has $38,000 in

value after the taking, such an argument would be difficult to

successfully advance under these facts.                     Ultimately, the real

question is whether the Wallers' remaining property is of such



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"size,     shape    or   condition"        so     as     to       be    of    "substantially

impaired economic viability."              Wis. Stat. § 32.06(3m).

        ¶179 Here, the "size, shape or condition" of the Waller

property    before the taking            indicates          that       it    was     a    property

subject to substantial restrictions.                    It was a small triangle of

land with a residence subject to substantial easements for power

lines and setback restrictions, which is situated next to an

industrial park and a major interstate highway.

        ¶180 ATC    proposed       to    take     only       easements,            leaving        the

Wallers with a fee simple title to the entire parcel.                                             The

easements expand upon already-existing easements, and most of

the new easements are within an area already subject to setback

restrictions.

        ¶181 Given the nature of the taking in this case and the

$38,000 in value left over after the taking, the Wallers have

failed to establish that the size, shape or condition of the

property     remaining       after      the     taking        is       of     "substantially

impaired economic viability."                 Wis. Stat. § 32.06(3m).                           Under

these circumstances, I conclude that after the partial taking,

there is no uneconomic remnant.

        ¶182 Because     I   determine          that        there      is     no     uneconomic

remnant    in    this    case,     I    further    conclude            that     an       award    of

litigation       expenses    and    relocation         benefits         is     not       justified

here.     With regard to litigation expenses, the plain text of

Wis.     Stat.     § 32.28(3)(b)         allows        an     award          only        when    the

"condemnor does not have the right to condemn part or all of the

property described in the jurisdictional offer or there is no

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necessity for its taking."         That circumstance is not present in

this case.

       ¶183 Likewise, relocation       benefits     are     available     only   if

the    Wallers    meet   the   statutory    definition       of   a   "displaced

person" under Wis. Stat. § 32.19(2)(e).8                That statute requires

the Wallers to show that they moved "as a direct result of a

written notice of intent to acquire or the acquisition of the

real       property . . . subsequent        to     the      issuance       of    a

jurisdictional      offer."      See   also      Wis.    Admin.    Code    § Adm.

       8
           Wisconsin Stat. § 32.19(2)(e) provides as follows:

       (e)1. "Displaced person" means, except as provided
       under subd. 2., any person who moves from real
       property or who moves his or her personal property
       from real property:

       a. As a direct result of a written notice of intent to
       acquire or the acquisition of the real property, in
       whole or in part or subsequent to the issuance of a
       jurisdictional offer under this subchapter, for public
       purposes; or

       b. As a result of rehabilitation, demolition or other
       displacing activity, as determined by the department
       of administration, if the person is a tenant-occupant
       of a dwelling, business or farm operation and the
       displacement is permanent.

       2. "Displaced person" does not include:

       a. Any person determined to be unlawfully occupying
       the property or to have occupied the property solely
       for the purpose of obtaining assistance under ss.
       32.19 to 32.27; or

       b. Any person, other than a person who is an occupant
       of the property at the time it is acquired, who
       occupies the property on a rental basis for a short
       term or a period subject to termination when the
       property is needed for the program or project for
       which it is being acquired.

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92.01(14)     (further        defining    "displaced       person");     City      of

Milwaukee v. Roadster LLC, 2003 WI App 131, ¶¶13, 18, 265 Wis.

2d 518, 666 N.W.2d 524 (a lessee was a "displaced person" when

it was "forced" to give up its leasehold interest and "forced"

to relocate); C. Coakley Relocation Systems, Inc. v. City of

Milwaukee, 2008 WI 68, ¶19, 310 Wis. 2d 456, 750 N.W.2d 900

(describing the language in Wis. Stat. § 32.19(2)(e) as applying

to a "person displaced by a condemnation").

     ¶184 The Wallers listed their house for sale in February

2005, one year before they learned of ATC's transmission-line

project.     Additionally, they lived in their residence for about

one year after the upgraded transmission line was installed.

Ultimately, I conclude that they do not satisfy the statutory

definition    of    a   "displaced      person"   under    these     circumstances

because    they    have   failed   to    establish   that     they    moved   as   a

"direct result" of a "written notice of intent to acquire," an

"acquisition,"       or   a     "jurisdictional      offer."          Wis.    Stat.

§ 32.19(2)(e).

     ¶185 Accordingly, I respectfully dissent.

     ¶186 I am authorized to state that Chief Justice Shirley S.

Abrahamson joins this dissent.




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