                                                                 2014 WI 125

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP2784
COMPLETE TITLE:         118th Street Kenosha, LLC,
                                   Plaintiff-Appellant,
                             v.
                        Wisconsin Department of Transportation,
                                   Defendant-Respondent-Petitioner.



                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 352 Wis. 2d 183, 841 N.W.2d 568)
                                    (Ct. App. 2013 – Published)
                                      PDC No.: 2013 WI App 147

OPINION FILED:          December 10, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 10, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Kenosha
   JUDGE:               Bruce E. Schroeder

JUSTICES:
   CONCURRED:           ABRAHAMSON, C.J., concurs. (Opinion filed.)
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For    the       defendant-respondent-petitioner,   the   cause   was
argued by Abigail C.S. Potts, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.


       For the plaintiff-appellant, there was a brief by Charles
P. Graupner, Susan M. Sager, and Michael Best & Friedrich LLP,
Milwaukee, with oral argument by Charles P. Graupner.
                                                                         2014 WI 125
                                                                    NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.       2012AP2784
(L.C. No.      2011CV212)

STATE OF WISCONSIN                              :             IN SUPREME COURT

118th Street Kenosha, LLC,

               Plaintiff-Appellant,                                    FILED
      v.                                                            DEC 10, 2014
Wisconsin Department of Transportation,                              Diane M. Fremgen
                                                                  Clerk of Supreme Court
               Defendant-Respondent-Petitioner.




      REVIEW of a decision of the Court of Appeals.                    Reversed and

remanded.



      ¶1       ANNETTE KINGSLAND ZIEGLER, J.            This is a review of a

published decision of the court of appeals,1 which reversed the
order     of    the   Kenosha   County   Circuit    Court2     that    granted      the

Wisconsin       Department      of   Transportation's       ("DOT")        motion     in

limine to exclude evidence of diminution in value of commercial

property owned by 118th Street Kenosha, LLC ("the LLC").                              We


      1
       118th St. Kenosha, LLC             v.   DOT,    2013    WI    App     147,   352
Wis. 2d 183, 841 N.W.2d 568.
      2
          The Honorable Bruce E. Schroeder presided.
                                                                             No.   2012AP2784



reverse the court of appeals and remand to the circuit court to

dismiss the action.

       ¶2      The LLC owns commercial property consisting of a four-

store shopping center in the City of Kenosha.                            Before 2010 the

commercial         property     had    direct      access      to    118th     Avenue   by    a

driveway onto 118th Avenue and indirect access to 118th Avenue

by a driveway onto 74th Place, a private road that intersected

with       118th    Avenue.       In    2010       the   DOT    performed       three     acts

relevant to this case: the DOT (1) relocated 118th Avenue to the

east one block, thereby eliminating the commercial property's

direct access to 118th Avenue; (2) acquired a temporary limited

easement3 that authorized the DOT to construct a new double-

throated      driveway     connecting      the       commercial        property    to     74th

Place; and (3) constructed that new driveway onto 74th Place.

After the DOT finished these three acts, the commercial property

had two driveways to 74th Place, indirect access to 118th Avenue

via 74th Place, and no direct access to 118th Avenue.                               The DOT

paid the LLC $21,000 for the temporary limited easement.                                   The
LLC    and         the   DOT     stipulated         that       $21,000       was   adequate

compensation         for   the    temporary         limited         easement    itself.      An

appraiser          determined     that    the       commercial         property's       value


       3
       "An easement provides a nonpossessory right to enter and
use land in the possession of another that obligates the
landowner not to interfere with the uses authorized by the
easement." Savage v. Am. Transmission Co., 2013 WI App 20, ¶1,
346 Wis. 2d 130, 828 N.W.2d 244 (citing Restatement (Third) of
Prop.: Servitudes § 1.2 (2000)).


                                               2
                                                                 No.   2012AP2784



declined    by   $400,000     because   the    relocation   of     118th   Avenue

caused     the   commercial     property      to   lose   direct    access   and

proximity to 118th Avenue.

     ¶3     The LLC now seeks to recover damages under Wis. Stat.

§ 32.09(6g) (2011-12)4 for the commercial property's diminution

in value caused by the relocation of 118th Avenue. Subsection

32.09(6g) provides compensation for diminution in value caused

by "the taking of an easement."               Because the temporary limited

easement and the relocation of 118th Avenue were both part of

the same greater highway reconstruction project, the LLC argues

its award for the temporary limited easement under § 32.09(6g)

should include damages for the commercial property's decline in

value caused by the relocation of 118th Avenue.

     ¶4     This case presents the following three issues:




     4
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Subsection (6g)
was created by § 7, ch. 440, Laws of 1977, and it provides:

          In the case of the taking of an easement, the
     compensation to be paid by the condemnor shall be
     determined by deducting from the fair market value of
     the whole property immediately before the date of
     evaluation, the fair market value of the remainder
     immediately after the date of evaluation, assuming the
     completion of the public improvement and giving
     effect, without allowance of offset for general
     benefits,   and   without    restriction  because   of
     enumeration but without duplication, to the items of
     loss or damage to the property enumerated in sub.
     (6)(a) to (g) where shown to exist.


                                        3
                                                                                 No.    2012AP2784



      (1)       Is a temporary limited easement compensable under Wis.

Stat. § 32.09(6g)?5

      (2)       Assuming       that        a     temporary           limited     easement        is

compensable under Wis. Stat. § 32.09(6g), did the circuit court

appropriately exercise its discretion when it excluded evidence

of   the    commercial         property's            diminution         in   value     from    lost

direct      access      and     proximity            to      118th      Avenue    because       the

temporary limited easement did not cause the loss?

      (3)       Is the LLC barred from recovering compensation for the

commercial property's loss of direct access and proximity to

118th Avenue because the relocation of 118th Avenue was a proper

exercise of the DOT's police power?

      ¶5        The crux of the issue before this court is whether

damages under Wis. Stat. § 32.09(6g) for the temporary limited

easement include the commercial property's diminution in value

caused     by    its    loss    of    direct             access   and    proximity      to    118th

Avenue due to that road's relocation, although the temporary

limited easement did not cause that loss of direct access and
proximity.

      ¶6        For    purposes       of       our       analysis,      we   assume,     without

deciding, that a temporary limited easement is compensable under

Wis. Stat. § 32.09(6g).


      5
       The LLC's claim for compensation for loss of direct access
and proximity to 118th Avenue is based solely on Wis. Stat.
§ 32.09(6g).    The LLC does not ask us to, and we do not,
determine whether the LLC could be entitled to compensation for
that loss under any other claim.


                                                     4
                                                                       No.     2012AP2784



      ¶7    We conclude that the LLC is precluded from seeking

damages    under     Wis.        Stat.   § 32.09(6g)         for     the     commercial

property's diminution in value which resulted from its loss of

direct access and proximity to 118th Avenue due to the 118th

Avenue relocation.          The temporary limited easement did not cause

the commercial property to lose direct access and proximity to

118th Avenue, so damages under § 32.09(6g) for the temporary

limited easement cannot include damages for the loss of direct

access and proximity to 118th Avenue.                       Because the LLC seeks

damages for its loss of direct access and proximity to 118th

Avenue, the circuit court did not err by excluding evidence of

those damages in the § 32.09(6g) claim for taking an easement.

Thus, the LLC improperly seeks compensation under § 32.09(6g)

for the commercial property's diminution in value based on its

lost direct access          and proximity         to 118th Avenue            when 118th

Avenue was relocated.              Because our resolution of the                   narrow

issue presented disposes of the LLC's claim, we need not address

the other issues presented.                 See Maryland Arms Ltd. P'ship v.
Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15.

      ¶8    We     affirm    the    circuit       court's    grant    of     the    DOT's

motion in limine seeking to exclude evidence of damages caused

by   the   LLC's    loss    of     direct    access    and    proximity       to    118th

Avenue.    We    reverse     the    court    of    appeals    and    remand        to   the

circuit court to dismiss the action.

                             I.      FACTUAL BACKGROUND

      ¶9    The LLC owns 1.83 acres or 79,715 square feet of land
("commercial property") that consists of a one-story strip mall
                                            5
                                                                         No.    2012AP2784



with four stores and restaurants.                    The commercial property is

located     at    7300   118th    Avenue   in        the    City   of   Kenosha,      just

northeast of the intersection of Interstate 94 and State Trunk

Highway 50.         Before 2010 the eastern side of the commercial

property abutted 118th Avenue and the southern side abutted 74th

Place, a private road.            A driveway on the northeastern side of

the commercial property provided direct access to 118th Avenue.

An existing single-lane driveway on the southern side of the

commercial property provided direct access to 74th Place.                              The

commercial property had indirect access to 118th Avenue via 74th

Place, which intersected with the western side of 118th Avenue.

      ¶10    On    January   4,    2010,       the    DOT     acquired    a    temporary

limited easement of .262 acres of the commercial property for

the   purpose      of    constructing      a    new        double-throated      driveway

connecting the commercial property to 74th Place.                           Sometime in

2010, the DOT built the new driveway.6                      The DOT awarded the LLC

$21,000 in damages for the temporary limited easement.7                         This new

driveway was located on the southern side of the commercial
property, near the commercial property's existing single-lane

driveway to 74th Place.           Therefore, the double-throated driveway

provided     the    commercial     property      with        two   points      of   direct

      6
       The record indicates that the new driveway was constructed
in 2010 without providing a more specific date.
      7
       The record suggests the $21,000 was for the rental value
of the property encumbered by the temporary limited easement and
for the loss of landscaping that resulted from the temporary
limited easement.


                                           6
                                                                  No.    2012AP2784



access to 74th Place instead of one.                  The DOT acquired this

temporary     limited     easement     as     part   of    a   greater     highway

reconstruction project ("Highway Reconstruction Project").8

     ¶11    Also sometime in 2010, as part of the greater Highway

Reconstruction Project, the DOT vacated and relocated to the

east one block the portion of 118th Avenue that abutted the

LLC's commercial property.             After 118th Avenue was relocated,

the commercial property no longer abutted the Avenue; thus, it

lost direct access to 118th Avenue.              The DOT did not alter 74th

Place or the fact that it connected to 118th Avenue.

     ¶12    On January 24, 2011, the LLC appealed to the circuit

court the DOT's award and sought additional compensation under

Wis. Stat. § 32.09(6g) for the commercial property's decline in

value caused by the loss of direct access and proximity to 118th

Avenue when the Avenue was relocated.                Specifically, the LLC's

expert appraiser determined that the commercial property's "loss

of direct access to [118th Avenue], and the loss of proximity to

[118th     Avenue]"     caused   the    commercial        property's     value   to
decline by $400,000.         The LLC did not allege that $21,000 was

inadequate     compensation      for    the    temporary       limited    easement

itself.     The damages at issue in this appeal instead relate to

the property's diminution in value because it lost direct access




     8
       This project involved the taking of more than 50 temporary
limited easements and more than one dozen permanent easements
from various landowners.


                                        7
                                                                        No.      2012AP2784



and proximity to 118th Avenue due to the Highway Reconstruction

Project.

                             II.    PROCEDURAL POSTURE

       ¶13   On December 27, 2011, the DOT filed a motion in limine

with the circuit court, requesting the court to exclude evidence

of    damages    caused    by    the    LLC's     loss    of     direct    access      and

proximity to 118th Avenue.               On November 5, 2012, the circuit

court granted the DOT's motion in limine.

       ¶14   The circuit court reasoned that Wis. Stat. § 32.09(6g)

allows only damages that result from an easement.                          The circuit

court   stated    that     § 32.09(6g)     "merely        identifies       the    damages

which are allowed if, and only if, caused by a taking by the

state." (Emphasis in original.)                According to the circuit court,

the LLC's loss of direct access and proximity to 118th Avenue

"was caused by the vacation of the street [118th Avenue], not by

the taking of any property from the plaintiff.                             Damages are

allowed under § 32.09(6g), Stats., only for loss which was a

consequence of the particular taking."
       ¶15   On November 9, 2012, the DOT and the LLC entered into

a    stipulated    judgment      that   preserved         each    party's      right    to

appeal the circuit court's ruling on the DOT's motion in limine.

The   parties     agreed    that    $21,000      was     the     fair   value     of   the

temporary limited easement itself.                The DOT already paid the LLC

that amount in damages.

       ¶16   On November 20, 2013, the court of appeals reversed

the    circuit    court's       decision       granting    the     DOT's      motion    in
limine.      118th St. Kenosha, LLC v. DOT, 2013 WI App 147, ¶1, 352
                                           8
                                                                         No.   2012AP2784



Wis. 2d 183, 841 N.W.2d 568.              The court of appeals reasoned that

"the    temporary        easement   was     integrally         connected       with     the

property's loss of direct access and proximity to 118th Avenue."

Id., ¶9.       The court noted that Wis. Stat. § 32.09(6g) requires

that compensation for an easement be determined while "assuming

the completion of the public improvement."                     Id., ¶10.       Based on

the "integral connection" between the temporary limited easement

and the relocation of 118th Avenue, the court of appeals held

that the "public improvement" mentioned in § 32.09(6g) refers to

the relocation of 118th Avenue.                Id.    Thus, the court of appeals

held that the LLC's damages for the temporary limited easement

may include damages under § 32.09(6g) for the LLC's loss of

direct access and proximity to 118th Avenue.                    Id., ¶11.

       ¶17    The    DOT   petitioned      this      court     for   review,      and    we

granted the petition.

                             III. STANDARD OF REVIEW

       ¶18    We must determine whether the circuit court properly

excluded evidence that the LLC's compensation for the temporary
limited       easement     should   include          damages     under     Wis.       Stat.

§ 32.09(6g) for the LLC's loss of direct access and proximity to

118th Avenue. "This court will not disturb a circuit court's

decision to admit or exclude evidence unless the circuit court

erroneously exercised its discretion."                  Weborg v. Jenny, 2012 WI

67,    ¶41,    341    Wis. 2d 668,      816     N.W.2d 191       (citing       State     v.

Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448).                               "A

circuit court erroneously exercises its discretion if it applies
an improper legal standard or makes a decision not reasonably
                                           9
                                                                  No.   2012AP2784



supported by the facts of record."              260 N. 12th St., LLC v. DOT,

2011 WI 103, ¶38, 338 Wis. 2d 34, 808 N.W.2d 372 (citing Ringer,

326 Wis. 2d 351, ¶24).

       ¶19   To    determine   whether     evidence     was    admissible    under

Wis.    Stat.     § 32.09(6g),    we     must      interpret   and   apply     that

statute.          See   id.,   ¶39.        "Statutory     interpretation        and

application present questions of law that we review de novo

while benefiting from the analyses of the court of appeals and

circuit court."         Id.    (citing   E–L Enters., Inc. v. Milwaukee

Metro. Sewerage Dist., 2010 WI 58, ¶20, 326 Wis. 2d 82, 785

N.W.2d 409).

       ¶20   "[S]tatutory interpretation 'begins with the language

of the statute.         If the meaning of the statute is plain, we

ordinarily stop the inquiry.'"             State ex rel. Kalal v. Circuit

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

N.W.2d 110 (citations omitted).            We give statutory language "its

common, ordinary, and accepted meaning, except that technical or

specially-defined words or phrases are given their technical or
special definitional meaning."             Id. (citing Bruno v. Milwaukee

Cnty., 2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660 N.W.2d 656;

Wis. Stat. § 990.01(1)).         We interpret statutory language in the

context of the statute in which it is used and in relation to

closely-related statutes.         Id., ¶46 (citations omitted).              We do

not    consult     extrinsic     sources      of    interpretation,     such    as

legislative history, if the statutory language is unambiguous.

Id. (citations omitted).
                                  IV.    ANALYSIS
                                         10
                                                                         No.   2012AP2784



                                 A. The DOT's Arguments

      ¶21     The DOT argues that the LLC cannot recover damages

under Wis. Stat. § 32.09(6g) for the LLC's loss of direct access

and   proximity      to    118th    Avenue.       First,    the    DOT    argues    that

damages for a temporary limited easement are not compensable

under      § 32.09(6g),     which    the    DOT   argues    is     "ineffective      and

unsuitable"       for     calculating      damages   for    a     temporary     limited

easement.         According to the DOT, a temporary limited easement

often does not affect the value of the subject property, so

damages under § 32.09(6g) would unconstitutionally result in no

compensation for the property owner in many cases.                              The DOT

urges      this    court    to    hold   that     rental-value      damages      for   a

temporary     limited      easement      are    available   under     the      Wisconsin

Constitution's takings clause9 or § 32.09(6).10

      9
       Article I, Section 13 of the Wisconsin Constitution
provides that "[t]he property of no person shall be taken for
public use without just compensation therefor."
      10
           Wisconsin Stat. § 32.09(6) (intro.) provides:

           In the case of a partial taking of property other
      than an easement, the compensation to be paid by the
      condemnor shall be the greater of either the fair
      market value of the property taken as of the date of
      evaluation or the sum determined by deducting from the
      fair market value of the whole property immediately
      before the date of evaluation, the fair market value
      of the remainder immediately after the date of
      evaluation, assuming the completion of the public
      improvement and giving effect, without allowance of
      offset for general benefits, and without restriction
      because of enumeration but without duplication, to the
      following items of loss or damage to the property
      where shown to exist . . . .


                                           11
                                                                          No.     2012AP2784



       ¶22     If this court holds or assumes without deciding that

damages for a temporary limited easement are compensable under

Wis. Stat. § 32.09(6g), the DOT argues that the LLC may not

recover damages under § 32.09(6g) for its loss of direct access

and proximity to 118th Avenue, for two reasons.                          First, the DOT

argues that, under the facts of this case, the LLC's damages

under § 32.09(6g) for the temporary limited easement may not

include       damages     for    the    LLC's     loss      of       direct    access    and

proximity to 118th Avenue because the temporary limited easement

did not cause the LLC to lose direct access and proximity to

118th Avenue.       Instead, according to the DOT, the relocation of

118th Avenue caused the LLC to lose direct access and proximity

to    118th     Avenue.         The    DOT   relies      on      Jantz    v.    State,    63

Wis. 2d 404, 217 N.W.2d 266 (1974), and More-Way North Corp. v.

State Highway Commission, 44 Wis. 2d 165, 170 N.W.2d 749 (1969),

for     the    proposition       that    damages      for        a    temporary    limited

easement may not include damages which were not caused by the

temporary limited easement.
       ¶23     Second, the DOT argues that the LLC's damages for the

temporary limited easement may not include damages under Wis.

Stat.       § 32.09(6g)    for    the    LLC's    loss        of     direct    access    and

proximity to 118th Avenue because the DOT used its police power

to limit the LLC's direct access and proximity to 118th Avenue.11


       11
       At oral argument, the DOT argued that Wis. Stat. § 84.29
gives it a police power to relocate a public road, including
118th Avenue.


                                             12
                                                                        No.    2012AP2784



Relying on      Stefan Auto Body v. State Highway                     Commission, 21

Wis. 2d 363, 124 N.W.2d 319 (1963), and Chicago & Northwestern

Railway Co. v. Railroad Commission of Wisconsin, 178 Wis. 485,

188 N.W. 86 (1922), the DOT argues that relocating a public road

is an exercise of the police power.                     The DOT relies on Surety

Savings     &   Loan      Ass'n    v.    Department        of   Transportation,         54

Wis. 2d 438, 195 N.W.2d 464 (1972), to argue that a landowner

may not recover damages for loss of direct access to a public

road if the State eliminated that direct access under its police

power and if the landowner retained other access to the public

road.     Because the LLC retained indirect access to 118th Avenue

via 74th Place after 118th Avenue was relocated, the DOT argues,

the LLC's damages for the temporary limited easement may not

include damages under § 32.09(6g) for the LLC's loss of direct

access to 118th Avenue.

                               B. The LLC's Arguments

     ¶24     The    LLC    argues    that    its    damages     for   the      temporary

limited      easement      should       include    damages      under      Wis.    Stat.
§ 32.09(6g) for the LLC's loss of direct access and proximity to

118th Avenue.          The LLC notes that § 32.09 (intro.) states:                     "In

all matters involving the determination of just compensation in

eminent      domain      proceedings,       the    following       rules      shall    be

followed . . . ."          The LLC relies on the language of § 32.09(6g)

to   argue      that      § 32.09(6g)      provides      the    proper        method    of

calculating        the     LLC's    damages       for    the    temporary         limited

easement.        Subsection        32.09(6g)      states    that   its     method      for
determining damages applies "[i]n the case of the taking of an
                                            13
                                                                          No.    2012AP2784



easement . . . ."           The LLC argues that this statutory language

does not distinguish between temporary and permanent easements.

According to the LLC, the DOT is asking this court to improperly

insert       the   word     "permanent"          immediately      before        the     word

"easement."

       ¶25    The LLC further argues that, according to the language

of Wis. Stat. § 32.09(6g), the LLC's damages for the temporary

limited      easement     may    include    damages     for    the    LLC's       loss    of

direct access and proximity to 118th Avenue.                     The LLC notes that

§ 32.09(6g) states, by reference to § 32.09(6), that damages for

loss of access and proximity are compensable under § 32.09(6)(b)

and    (6)(e)      "where    shown   to     exist."        The      LLC    argues       that

§ 32.09(6g)'s command to "assum[e] the completion of the public

improvement" when calculating damages for an easement refers to

the relocation of 118th Avenue, not the construction of the

double-throated         driveway.         Specifically,       § 32.09(6g)         provides

compensation "determined by deducting from the fair market value

of the whole property immediately before the date of evaluation,
the fair market value of the remainder immediately after the

date    of    evaluation,       assuming     the     completion      of     the       public

improvement . . . ."            Wis. Stat. § 32.09(6g).

       ¶26    Additionally,       the     LLC     argues   that      it    lost       direct

access to 118th Avenue when 118th Avenue was relocated, and that

a   landowner      is   entitled     to    compensation       for    loss       of    direct

access to a public road abutting the landowner's property.                               The

LLC quotes our prior cases that have stated a right to access a
public road abutting one's property "is a property right, the
                                            14
                                                                            No.    2012AP2784



taking    of    which     requires    compensation,"            Narloch     v.     DOT,    115

Wis. 2d 419, 430, 340 N.W.2d 542 (1983) (citation omitted), and

"the deprivation or restriction of an existing right of access

is    compensable       under      Wis.    Stat.    § 32.09(6)."                Nat'l     Auto

Truckstops, Inc. v. DOT, 2003 WI 95, ¶18, 263 Wis. 2d 649, 665

N.W.2d 198.

      ¶27      The LLC disagrees with the DOT's argument that the

LLC's loss of direct access and proximity to 118th Avenue is

separate and distinct from the temporary limited easement.                                 The

LLC argues that the temporary limited easement was an "integral"

part of the Highway Reconstruction Project, which caused 118th

Avenue to be relocated.                  According to the LLC, 118th Avenue

would not have been relocated if the DOT did not acquire a

temporary limited easement to build the double-throated driveway

that connected the commercial property to 74th Place.                               The LLC

reasons     that    its    appraiser      stated    in     an    affidavit         that    the

commercial property would have had legally insufficient access

for   emergency       vehicles      if    its    only    access       point       were     the
preexisting        single-lane       driveway      connecting             the     commercial

property to 74th Place.             The LLC argues that Jantz and More-Way

North are distinguishable because each of those cases involved a

landowner's        attempt    to    receive      damages    for       a    public       road's

change of grade, whereas the LLC is not seeking damages for

change of grade.

      ¶28      The LLC also disagrees with the DOT's argument that

the   DOT   exercised        its   police     power     when     it   relocated          118th
Avenue.        The LLC argues that the DOT used its eminent domain
                                            15
                                                                              No.    2012AP2784



powers under Wis. Stat. ch. 32 to acquire the temporary limited

easement and used its eminent domain power under Wis. Stat.

§ 84.09     to     relocate      118th      Avenue.          The   LLC     argues     that    in

National       Auto   Truckstops,           263      Wis. 2d 649,        Crown      Zellerbach

Corp.     v.      Department     of      City        Development      of      Milwaukee,      47

Wis. 2d 142, 177 N.W.2d 94 (1970), and Hastings Realty Corp. v.

Texas Co., 28 Wis. 2d 305, 137 N.W.2d 79 (1965), we rejected the

State's attempt to characterize its use of its eminent domain

power as an exercise of its police power.

      ¶29      Finally, the LLC rejects the DOT's assertion that the

LLC   dedicated       to   the      State    its      legal     right    to    access    118th

Avenue.        The LLC argues that the DOT abandoned this assertion

before the circuit court.

                             C. General Legal Principles
      ¶30      Because we decide this case on one narrow ground, we

need not decide the broader issues today.                             Maryland Arms, 326

Wis. 2d 300, ¶48.             We do, however, briefly depart to discuss

pertinent general legal principles.                          "'The right of access to
and   from     a    public     highway       is      one   of   the     incidents      of    the

ownership or occupancy of land abutting thereon.'"                                    Hastings

Realty,      28    Wis. 2d     at     310    (quoting         Royal     Transit,      Inc.    v.

Village     of     West    Milwaukee,        266      Wis.    271,    277,     63    N.W.2d 62

(1954)). "'[H]ighway access rights are but one of a bundle of

rights which appertain to a parcel of real estate.'"                                Id. at 311

(quoting Nick v. State Highway Comm'n, 13 Wis. 2d 511, 517-18,
109 N.W.2d 71 (1961) (Currie, J., concurring)).


                                                16
                                                                            No.      2012AP2784



      ¶31     However, when the government relocates a road, it is

not always required to compensate all who are adversely affected

by the relocation.            Surety Savings & Loan, 54 Wis. 2d at 444.

The   State      may    exercise      its     police       power     to    authorize        the

relocation of a highway.                 Chicago & N.W. Ry. Co., 178 Wis. at

491 ("The state has ample power, in the exercise of the police

power, to authorize the relocation of the highway in order to

protect the public . . . .") (citations omitted).                           "Where access

to a highway is controlled under the exercise of the police

power     and    reasonable         access        remains,     no     compensation          is

required."         Schneider        v.    State,      51     Wis. 2d 458,            462,   187

N.W.2d 172 (1971) (citing Nick, 13 Wis. 2d 511). Eminent domain

can occur contemporaneously with the exercise of police power.

Wis. Stat. § 32.09(4).

      ¶32     In Howell Plaza, Inc. v. State Highway Commission, 92

Wis. 2d 74, 80, 284 N.W.2d 887 (1979), we stated, "there must be

a taking before there can be a claim for just compensation."                                 In

More-Way      North     we   stated,        "[M]ere        consequential          damage     to
property     resulting       from     governmental         action    is     not      a   taking

thereof.         Sec.     13,    art.        I,    Wis.     Const., . . . does              not

undertake, . . . to socialize all losses, but only those which

result    from    a    taking    of      property."         More-Way        N.    Corp.,     44

Wis. 2d     at   170    (quoting      Wis.    Power    &     Light    Co.       v.    Columbia

Cnty., 3 Wis. 2d 1, 6, 87 N.W.2d 279 (1958)) (internal quotation

marks omitted).

      ¶33     Distinct projects are frequently undertaken during a
highway     construction        project,      but    that     does        not    necessarily
                                             17
                                                                     No.    2012AP2784



merge     each    project     into    one        single   compensable      act.      We

explained in Jantz that the fact "[t]hat both undertakings are

related to a single overall highway improvement purpose does not

merge     the    actions     into    a     single     act . . . ."         Jantz,    63

Wis. 2d at 411.       Further, even if a highway construction project

results    in    damages     that    are    compensable      under    a    particular

statute, those damages cannot be recovered in a claim brought

under the wrong statute.            See id. at 411-12.

    ¶34     This discussion begs the question: had the DOT not

undertaken the temporary limited easement project to create the

additional driveway with access to 74th Place, would the LLC

otherwise have a viable claim for the damages it seeks?                             Cf.

DeBruin    v.    Green     Cnty.,    72    Wis. 2d 464,     471,   241     N.W.2d 167

(1976).    We need not endeavor to answer this question today.

                    D. Damages Available for an Easement
                          under Wis. Stat. § 32.09(6g)
    ¶35     The LLC seeks damages under Wis. Stat. § 32.09(6g) for

the commercial property's diminution in value caused by its loss

of direct access and proximity to 118th Avenue.                      The LLC's loss
of direct access and proximity to 118th Avenue was caused by the

relocation of 118th Avenue.               We begin our analysis with a plain

reading of the statute.         Subsection 32.09(6g) provides:

         In the case of the taking of an easement, the
    compensation to be paid by the condemnor shall be
    determined by deducting from the fair market value of
    the whole property immediately before the date of
    evaluation, the fair market value of the remainder
    immediately after the date of evaluation, assuming the
    completion of the public improvement and giving
    effect, without allowance of offset for general

                                            18
                                                                    No.     2012AP2784


     benefits,   and   without    restriction because  of
     enumeration but without duplication, to the items of
     loss or damage to the property enumerated in sub.
     (6)(a) to (g) where shown to exist.
     ¶36    It     is   true   that   Wis.     Stat.    § 32.09(6g)       allows   for

recovery of damages enumerated in § 32.09(6)(a) to (6)(g), but

compensation is due for "the taking of an easement."                         The LLC

argues that, because its commercial property was subject to a

temporary       limited   easement,     § 32.09(6g)        allows     the    LLC    to

recover damages for its loss of direct access and proximity to

118th     Avenue    under      § 32.09(6)(b)      and    (6)(e),    respectively.

However, the LLC falls short of adequately explaining how the

"taking    of    the    easement"     caused    these    damages.         Here,    the

temporary    limited      easement     provided    the    LLC   with      additional

access to 74th Place, but the easement did not cause the LLC to

lose direct access and proximity to 118th Avenue.12

     12
       We note that the plain language of Wis. Stat. § 32.09(6g)
also causes us to pause when considering whether that statutory
subsection is designed to apply to temporary limited easements
in the first instance.    See also More-Way N. Corp. v. State
Highway Comm'n, 44 Wis. 2d 165, 173-75, 170 N.W.2d 749 (1969)
(holding that a temporary limited easement did not effect an
actual permanent taking). First, the plain language of the
statute references easements, not temporary limited easements.
Second, the before and after valuation approach arguably creates
confusion in temporary limited easement cases because it does
not consider the temporary nature of the easement. Third, this
statutory subsection may not apply to a temporary limited
easement because a temporary limited easement often will
terminate upon completion of the project.      Thus, a benefit,
rather than a detriment, may accrue to the property. Thus, the
before and after valuation leaves no room for compensation for
many temporary easements. As a result, Wisconsin Constitution,
Article I, Section 13, and W.H. Pugh Coal Co. v. State, 157
Wis. 2d 620, 631, 460 N.W.2d 787 (Ct. App. 1990), instruct that
rental value may be the appropriate measure, rather than
                                                     (continued)
                                        19
                                                                             No.      2012AP2784



      ¶37    Subsection 32.09(6g) states that compensation for an

easement is calculated by considering the fair market value of

the whole property immediately before and after the "date of

evaluation,"13 which other statutory provisions explain is the

date on which the easement is acquired.                       Wis. Stat. §§ 32.09(1),

32.06(7).14       Thus, the plain purpose of considering the "date of

evaluation" is to determine the damages to the property caused

by   the    taking       of     an    easement.        See      Hoekstra        v.    Guardian

Pipeline,        LLC,    2006    WI    App   245,      ¶13,     298      Wis. 2d 165,       726

N.W.2d 648 (holding that § 32.09(6g) provides compensation for

damages     that        occurred      "'because     of'"      an   easement)          (quoting

Arents      v.    ANR     Pipeline       Co.,     2005     WI      App     61,       ¶14,   281

Wis. 2d 173,       696     N.W.2d 194).           We   conclude          that       § 32.09(6g)

plainly allows compensation for damages caused by the taking of

an easement.        See Kalal, 271 Wis. 2d 633, ¶45.

      ¶38    As     we     assume,      without     deciding,         that      a    temporary

limited easement is compensable under Wis. Stat. § 32.09(6g), we


§ 32.09(6g), when a temporary easement occurs.    The $21,000
awarded in this case seems to compensate for the temporary
limited   easement's rental  value  and  resulting   loss  of
landscaping.
      13
       The "date of evaluation" generally is the date on which
the easement is acquired. Wis. Stat. §§ 32.09(1), 32.06(7); see
also 260 N. 12th St., LLC v. DOT, 2011 WI 103, ¶45, 338
Wis. 2d 34, 808 N.W.2d 372; Fields v. Am. Transmission Co., 2010
WI App 59, ¶13, 324 Wis. 2d 417, 782 N.W.2d 729.
      14
       We may consider closely related statutory provisions.
See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI
58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.


                                             20
                                                                                No.      2012AP2784



proceed to the crux of the issue at hand, which distills into

whether under these facts, damages are properly awarded under

§ 32.09(6g) for the commercial property's diminution in value

caused     by    the       loss    of   direct     access       and    proximity         to       118th

Avenue.

       ¶39      In    so    doing,      we   first      turn    to    case    law       which       has

analyzed how damages for an easement are determined under Wis.

Stat. § 32.09(6g).                Recognizing that More-Way North determined

that   a     temporary        limited        easement     did    not     effect         an    actual

permanent       taking,       we     nonetheless        endeavor       to    further         discuss

§ 32.09(6g) damages for easements.                        See More-Way N. Corp., 44

Wis. 2d at 176.

       ¶40      For example, in Hoekstra, Guardian Pipeline obtained

an easement to install a natural gas transmission pipeline on

the Hoekstras' property.                     Hoekstra, 298 Wis. 2d 165, ¶1.                          At

trial,     the       circuit       court     excluded     evidence          that    prospective

buyers'      fear       of    gas       pipelines       reduced        the    value          of    the

Hoekstras' property.                Id., ¶15.          The court of appeals reversed
because the property's alleged diminution in value was caused by

the easement.           See id., ¶¶17-23.

       ¶41      Similarly,         in   Savage     v.     American       Transmission              Co.,

2013   WI       App    20,     346      Wis. 2d 130,       828        N.W.2d 244,        American

Transmission acquired a new easement to add more wires to an

electricity           transmission         line    that    was        already      on    Savage's

property.        Savage, 346 Wis. 2d 130, ¶4.                     At trial, the circuit

court excluded evidence that the easement precluded Savage from
using the easement property as he could have before.                                     Id., ¶6.
                                                  21
                                                                          No.     2012AP2784



The court of appeals reversed and concluded that because the new

easement precluded Savage from using the property as he could

have before, Savage could introduce evidence of damages caused

by the new easement's restrictions.                Id., ¶¶15-16.

       ¶42     Fields v. American Transmission Co., 2010 WI App 59,

324    Wis. 2d 417,      782    N.W.2d 729,      further      demonstrates         that    a

Wis. Stat. § 32.09(6g) claim for damages is not as sweeping as

the LLC suggests.            American Transmission acquired a new easement

to replace the electricity transmission poles on the Fields'

property.        Fields, 324 Wis. 2d 417, ¶¶5, 6, 11.                           Poles were

previously located on the Fields' property under an existing

easement       from    1948.         Id.,   ¶¶1,     4.          The     Fields     sought

compensation for the new easement.                  Id., ¶1.           In proving their

claim    under       § 32.09(6g),     the    Fields       were    entitled        only    to

damages caused by the new easement, not for the 1948 easement.

Id.

       ¶43     These three court of appeals cases demonstrate that,

even    where    a    more    permanent     easement       taking      occurs,     damages
under Wis. Stat. § 32.09(6g) are limited to those caused by the

easement at issue.            Because the temporary limited easement did

not    cause    the    diminution      in   value     of    the     LLC's       commercial

property, no published Wisconsin case interpreting § 32.09(6g)

allows the LLC to recover damages for its commercial property's

diminution      in    value     as   part   of   the      LLC's     damages       for    the

temporary limited easement.




                                            22
                                                             No.    2012AP2784


   E. May the LLC's Damages under Wis. Stat. § 32.09(6g) Include
     the Commercial Property's Diminution in Value Caused by the
                      Relocation of 118th Avenue?
       ¶44   Our analysis of whether damages are compensable under

Wis. Stat. § 32.09(6g) for the commercial property's diminution

in value caused by the relocation of 118th Avenue is further

guided by precedent which has considered what damages are due

when a taking occurs in a highway relocation project.                 In the

case at issue, it is not disputed that no property was taken

from the LLC and the property's size and boundaries remained
unchanged.      However,   the   LLC    lost   the   commercial    property's

proximity and direct access to 118th Avenue when that road was

relocated.     The following cases, while not § 32.09(6g) easement

cases, inform our analysis.

       ¶45   For example, in Carazalla v. State, 269 Wis. 593, 70

N.W.2d 208 (1955) ("Carazalla I"), the Carazallas' farm abutted

United States Highway 51 in Marathon County.              Carazalla I, 269

Wis. at 595.      The county used eminent domain to acquire 13.05

acres of the Carazallas' farm property, but the property taken

did not include an access point to the highway.            See id. at 595,
597.    Highway 51 was then constructed on the acquired land.             Id.

at 595-97.     At trial over compensation due for the taking, the

circuit court allowed evidence that the relocation of Highway 51

caused the Carazallas' property to become less valuable.              Id. at

597-98.      Initially, in Carazalla I, Justice Currie's unanimous

opinion held that the circuit court did not err by allowing that

evidence.     Id. at 606-08.



                                       23
                                                                              No.       2012AP2784



    ¶46        On rehearing in Carazalla v. State, 269 Wis. 593, 71

N.W.2d 276 (1955) ("Carazalla II"), however, we made clear that

the court erred in admitting such evidence.                              Justice Currie's

unanimous        opinion        thus     concluded           that        in     calculating

compensation due for the partial taking of land, the circuit

court indeed erred when it allowed the jury to consider the

diminution in value caused by the relocation of the highway.

Carazalla II, 269 Wis. at 608c.                   We clarified that Carazalla I

was incorrect to conclude that the partial taking of land and

relocation of the highway "were so interwoven that" the two acts

were "an inseparable whole," because the two acts really were

"separate and distinct."               Id.     In other words, we clarified in

Carazalla      II   that      compensation        for   a     taking      cannot         include

damages for a lost point of access to a highway if the point of

access was lost because of an act separate from the taking, such

as the highway's relocation.

    ¶47        Similarly,       in    Jantz,      Jantz     sought        damages         for    a

partial       taking    of      land    that       occurred         during          a    highway
relocation.         Jantz owned a bar and grill that abutted United

States    Highway       41-45    and    Maple      Road       in    Washington           County.

Jantz,    63    Wis. 2d at       406.        Jantz's      property        had       access      to

Highway 41-45 only via Maple Road.                          See    id.        The DOT used

eminent domain to acquire .38 acres of Jantz's land adjacent to

Highway 41-45.         Id.     The property taken did not include Jantz's

point    of    access    to     the    highway.         See    id.        The       DOT    built

additional highway lanes on the strip of land acquired from
Jantz.    Id.       The DOT also relocated Maple Road.                        Id.        Jantz's
                                             24
                                                                   No.    2012AP2784



property maintained access to Highway 41-45 via Maple Road.                       Id.

Jantz       argued,   however,   that   the    value   of   her   bar    and    grill

declined because the roadway relocation left her with circuitous

access to the highway.15          Id. at 406-07.        At trial, the circuit

court excluded evidence that the circuity of access or change in

grade reduced the value of Jantz's property.                Id. at 407.

       ¶48     On appeal, we upheld the circuit court's exclusion of

that evidence.         Id. at 412.      We reasoned that the relocation of

Maple Road was separate from the partial taking of land.                       Id. at

411.        In other words, damages for the circuitous access to the

relocated highway were not included in the compensation for the

partial taking because those damages were not "a consequence of

the taking of .38 acre of land . . . ."                 Id. at 412.        Even if

the relocation of Maple Road and the partial taking of Jantz's

land        were   somehow   "related     to    a   single    overall      highway

improvement purpose," that fact would not transform the partial




       15
       Jantz also argued that her property's value declined
because of the change of grade of the highway, the right-of-way
due to the change of grade, the loss of view to and from the
property, and loss of income of the bar and grill.     Jantz v.
State, 63 Wis. 2d 404, 406-07, 217 N.W.2d 266 (1974).   The LLC
is incorrect in concluding that Jantz involved only a change in
grade.


                                         25
                                                                        No.    2012AP2784



taking claim into a valid claim for damages based on the highway

project's negative effect on Jantz's business.                      Id. at 411.16

      ¶49     Likewise,      Schneider      v.   State,      51     Wis. 2d 458,     187

N.W.2d 172 (1971), like Carazalla II and Jantz, stands for the

proposition that        even in a        compensation        claim     for a partial

taking of land, the damages due are for the taking rather than

for   a     relocated       highway's    impacts       on     the     property.       In

Schneider, Schneider owned land abutting State Highway 151 and

Thompson Road in Dane County.             Schneider, 51 Wis. 2d at 460.               In

1956 the State of Wisconsin designated State Highway 151 as a

controlled-access       highway.         Id.     Schneider        maintained      direct

access to the highway with a private permit and indirect access

to the highway via Thompson Road.                Id.        In 1968 the State used

eminent domain to acquire 3.29 acres of Schneider's land to

build a frontage road on the acquired land.                     Id.    The land taken

did not include Schneider's access point to the highway.                             See

id.        Rather,   Schneider's     access      to    the    highway    was    reduced

because the State revoked Schneider's private permit to directly
access      the   highway    and   closed      the    Highway     151-Thompson      Road

intersection that Schneider used to access the highway.                              Id.


      16
        We noted that Jantz perhaps may have been entitled to
recover damages under Wis. Stat. § 32.18 for harm to her
property caused by Maple Road's change in grade. Jantz, 63
Wis. 2d at 411.    However, those damages were unavailable in
Jantz's lawsuit because Jantz brought suit under Wis. Stat.
§ 32.09(6) to recover compensation for the partial taking, and
the partial taking did not cause the change in grade.   Id. at
411-12.


                                          26
                                                                          No.    2012AP2784



The new frontage road became Schneider's only access to the

highway.        Id.     at    463.      At        the    trial    on     the    amount     of

compensation owed to Schneider, the jury's award for the partial

taking of land included damages for the property's diminution in

value caused by the property's loss of access to the highway.

See id. at 460-61, 464.              The circuit court later concluded that

it was incorrect to allow evidence of diminution in value that

resulted from loss of access to the highway.                       Id. at 464.

    ¶50     On appeal we affirmed the circuit court's conclusion

that damages for the partial taking of land could not include

damages for the diminution in value of Schneider's land that

resulted from the closing of Thompson Road and the designation

of Highway 151 as a controlled-access highway.                           Id. at 465-66.

We reasoned that the partial taking of Schneider's land was

"separate   and       distinct"      from    Schneider's          loss    of    access    to

Highway 151 and the resulting diminution in value of Schneider's

land.   Id. at 463 (citing Carazalla II, 269 Wis. at 608c).

    ¶51     Not surprisingly, the LLC attempts to distinguish the
above   cases     and    instead      primarily          relies    on     National       Auto

Truckstops,       263        Wis. 2d 649,          for     the      proposition          that

compensation     under       Wis.    Stat.    § 32.09(6g)          for    the    temporary

limited    easement      should      include        damages       for    the    commercial

property's diminution in value caused by the relocation of 118th




                                             27
                                                     No.   2012AP2784



Avenue.17     Notably, National Auto Truckstops neither overruled

nor modified Carazalla II, Jantz, or Schneider.    As a result, we

examine whether these cases can coexist in our jurisprudence.

     ¶52    In National Auto Truckstops the truckstop's strip of

land, which contained the only points of direct access to the

highway, was taken.       Nat'l Auto Truckstops, 263 Wis. 2d 649,

¶¶4-5.     National Auto owned a truckstop near the intersection of

United States Highway 12 and Interstate 94 in St. Croix County.

Id., ¶4.     The DOT used eminent domain to acquire .27 acres from

the truckstop to build a frontage road on the land taken and to

     17
       Relying on National Auto Truckstops, Inc. v. Department
of Transportation, 2003 WI 95, 263 Wis. 2d 649, 665 N.W.2d 198,
Crown Zellerbach Corp. v. Department of City Development of
Milwaukee, 47 Wis. 2d 142, 177 N.W.2d 94 (1970), and Hastings
Realty Corp. v. Texas Co., 28 Wis. 2d 305, 137 N.W.2d 79 (1965),
the LLC argues that the relocation of 118th Avenue was an
exercise of the DOT's eminent domain power rather than police
power and, therefore, the LLC's damages for the temporary
limited easement should include damages that resulted from the
relocation of 118th Avenue.

     However, even if the LLC correctly characterizes the
holdings of these cases, they are distinguishable.     In these
three cases, whether the taking or easement caused the loss of
access to a road was not at issue.     In the present case, by
contrast, the fact that the temporary limited easement did not
cause the LLC's loss of direct access and proximity to 118th
Avenue is fatal to the LLC's Wis. Stat. § 32.09(6g) claim.
Hastings is further distinguishable because the court in that
case did not determine whether the plaintiff was entitled to
compensation for a taking.      Instead, the court determined
whether the plaintiff's lease was terminable under a provision
that allowed for termination of the lease if the State took a
portion of the leased property under eminent domain. Hastings,
28 Wis. 2d at 308-09. We do not consider whether the relocation
of 118th Avenue was an exercise of the police power under these
three cases.


                                 28
                                                                         No.    2012AP2784



widen the highway to four lanes.                  Id.     Because the truckstop's

only two points of direct access to the highway were actually

located      on    the    portion   of    land        taken,   the      partial      taking

resulted     in     the   truckstop      losing    its    only    points       of    direct

access to the highway.          Id., ¶¶4-5.            National Auto's new access

to the highway was via the new frontage road.                            Id., ¶5.        At

trial over compensation due for the partial taking of land, the

circuit court excluded evidence that the truckstop declined in

value because of its loss of two points of direct access to the

highway.      Id., ¶7.

       ¶53    On    appeal,    we     held      the     circuit      court     erred    by

excluding that evidence because at issue was whether the changed

access was reasonable access.                Id., ¶2.      We held that, in order

to award damages to a landowner for loss of access to a road, a

jury    must       determine   that      the      landowner       was    left       without

reasonable access to the road.                  Id.      Thus, we held that if a

jury determined that the changed access was not reasonable, then

just compensation is due for the "deprivation or restriction of
[National Auto's] right of access."                      Id.     The evidence which

related to National Auto's loss of access due to the taking was

admissible insofar that the jury found that the changed access

was unreasonable.          Central to the court's determination that the

evidence was admissible, was the fact that the property taken

contained the access points.               See id., ¶¶17-18.             National Auto

Truckstops does not stand for the proposition that compensation

for an easement includes damages for a commercial property's


                                           29
                                                                             No.    2012AP2784



diminution in value caused by a highway relocation project when

no property was taken.

       ¶54    National          Auto         Truckstops             is       fundamentally

distinguishable         from    the        present       case.       In     National          Auto

Truckstops the parcel of land taken contained the landowner's

only two points of access to a public road.                                In the case at

issue, none of the LLC's land was taken.                                 In National Auto

Truckstops a permanent taking of land occurred which caused the

size and boundaries of National Auto's property to change.                                       In

the    present      case,      the     boundaries          and     size    of      the        LLC's

commercial property are unchanged.

       ¶55    Unlike    the     taking      in     National      Auto     Truckstops,           the

temporary limited easement at issue did not cause the LLC to

lose   direct      access      and    proximity       to    118th        Avenue.         In     the

present case, not only was no land taken, but by providing the

LLC    with    a    permanent        additional          driveway        pursuant        to    the

temporary      limited      easement,        the     LLC    gained       more,     not        less,

access to 74th Place. The temporary limited easement at issue
did not cause the relocation of 118th Avenue nor did the LLC

lose direct access and proximity to 118th Avenue because of the

easement.          Therefore,        compensation          due     for     this     temporary

limited      easement    does        not    properly       include       damages     for       the

commercial     property's        diminution         in     value    based    on     its        lost

direct access and proximity to 118th Avenue, which resulted from

the relocation of 118th Avenue.

       ¶56    Hence,    Carazalla II,            Jantz,     Schneider, and           National
Auto Truckstops         all comport with the plain language of Wis.
                                              30
                                                                            No.    2012AP2784



Stat. § 32.09(6), which allows "compensation" for damages caused

by "a partial taking of property."                       See Wis. Stat. § 32.09(6).

In each case, the allowable damages were caused by the claimed

taking.        These cases, however, do not stand for the proposition

that     the    LLC   may     recover     the      damages      sought      here     when   no

property       was    taken    from     the   LLC,       its    property's        boundaries

remained       intact,      and   its    claim      is    for     "the      taking    of    an

easement."        At its core, this commercial property's diminution

in value resulted from its loss of direct access and proximity

to   a    relocated      road,    not    because         of    the   temporary       limited

easement.        No case supports the notion that the LLC's claim

under § 32.09(6g) for a temporary limited easement would include

the near half million dollar diminution in value which resulted

from 118th Avenue being relocated.

         ¶57   We conclude that Carazalla II, Jantz, Schneider, and

National Auto Truckstops can be reconciled in the present case,

and in fact, produce consistent analyses.                         Carazalla II, Jantz,

and Schneider stand for the principle that damages for a partial
taking cannot include damages for the impact caused by loss of

access to a highway if the loss of access resulted from the

relocation       of    the     highway,       rather       than      from    the     taking.

National Auto Truckstops recognized that there are circumstances

under which damages for loss of direct access to a highway could

be   recoverable.            However,    those      circumstances           are    glaringly

absent in the case at issue.                  Thus, we conclude that Carazalla

II, Jantz, and Schneider are more compelling.                         We agree with the
circuit court that the LLC's loss of direct access and proximity
                                              31
                                                        No.    2012AP2784



to 118th Avenue "was caused by the vacation of the street [118th

Avenue], not by the taking of any property from the plaintiff.

Damages are allowed under § 32.09(6g), Stats., only for loss

which was a consequence of the particular taking."        The circuit

court's analysis is consistent with the case law.       See Jantz, 63

Wis. 2d at 412 (holding that the circuit court correctly limited

damages in a partial taking claim to "damages sustained as a

consequence of the taking").      Contrary to the LLC's suggestion,

an award for a temporary limited easement, such as the one at

issue, cannot serve to bootstrap damages that emanate from this

road relocation, especially when, as here,          no land has been

taken   and   the   property's   boundaries   are   unchanged.       See

Carazalla II, 269 Wis. at 608c (holding that compensation for a

partial taking cannot include damages for "interwoven" loss of

point of access to a road because the taking did not cause the

loss of the access point).

    ¶58   Whether the LLC may recover damages for its loss of

direct access and proximity to 118th Avenue under a different
theory is reserved for another day.      According to the DOT, "No

one disputes that loss of access can be compensable.          It is just

not compensable here."    We agree.    We conclude that the subject

loss is not recoverable under Wis. Stat. § 32.09(6g) because

this temporary limited easement did not cause those damages.

Cf. Jantz, 63 Wis. 2d at 411-12.        Simply stated, under these

facts, the temporary limited easement did not cause the LLC to

lose direct access and proximity to 118th Avenue; therefore, the
LLC's damages for the commercial property's diminution in value
                                  32
                                                                       No.     2012AP2784



are   not    recoverable         in    its       § 32.09(6g)     temporary      limited

easement claim.

      ¶59   Accordingly, we hold that the LLC's claim under Wis.

Stat. § 32.09(6g) for the temporary limited easement may not

include     evidence      of   damages           for    the   commercial     property's

diminution in value caused by the relocation of 118th Avenue.

The   circuit     court    did    not       err    by    excluding    that   evidence.

Because our holding is dispositive, we decline to address the

other issues presented.

                                      V.     CONCLUSION

      ¶60   For     purposes      of       our    analysis,     we   assume,    without

deciding, that a temporary limited easement is compensable under

Wis. Stat. § 32.09(6g).

      ¶61   We conclude that the LLC is precluded from seeking

damages     under    Wis.      Stat.        § 32.09(6g)        for   the     commercial

property's diminution in value which resulted from its loss of

direct access and proximity to 118th Avenue due to the 118th

Avenue relocation.         The temporary limited easement did not cause
the commercial property to lose direct access and proximity to

118th Avenue, so damages under § 32.09(6g) for the temporary

limited easement cannot include damages for the loss of direct

access and proximity to 118th Avenue.                         Because the LLC seeks

damages for its loss of direct access and proximity to 118th

Avenue, the circuit court did not err by excluding evidence of

those damages in the § 32.09(6g) claim for taking an easement.

Thus, the LLC improperly seeks compensation under § 32.09(6g)
for the commercial property's diminution in value based on its
                                             33
                                                                        No.     2012AP2784



lost direct access            and proximity         to 118th Avenue           when 118th

Avenue was relocated.               Because our resolution of the                   narrow

issue presented disposes of the LLC's claim, we need not address

the other issues presented.             See Maryland Arms, 326 Wis. 2d 300,

¶48.

       ¶62    We     affirm   the    circuit       court's     grant   of     the    DOT's

motion in limine seeking to exclude evidence of damages caused

by   the     LLC's    loss    of    direct    access     and    proximity      to    118th

Avenue.      We    reverse    the    court    of    appeals     and    remand       to   the

circuit court to dismiss the action.

       By    the   Court.—The       decision       of   the    court   of     appeals    is

reversed and remanded.




                                             34
                                                                         No.   2012AP2784.ssa




       ¶63        SHIRLEY S. ABRAHAMSON, C.J.                   (concurring).         I agree

with the majority opinion that the circuit court did not err in

granting the Department of Transportation's motion to exclude

evidence of the property's alleged diminution in value resulting

from the relocation of 118th Avenue.

       ¶64        I further agree with the majority opinion that this

case       does    not    present,        and    the    court    does   not    decide,      the

following questions:                whether the LLC suffered a diminution in

property value from the relocation of 118th Avenue, whether the

LLC's loss of direct access to 118th Avenue is compensable in

some       action       unrelated    to    the    damages       award   at    issue    in   the

present case, and whether the LLC's remaining access to 118th

Avenue is reasonable as a matter of fact or law.

       ¶65        The    majority    opinion          assumes    without     deciding       that

temporary          limited    easements          (TLEs)     fall    within      Wis.    Stat.

§ 32.09(6g).             The majority opinion does not resolve the issue

even though the Department is certain to frequently confront the
question          whether     TLEs        are     compensable       under      Wis.     Stat.

§ 32.09(6g) and what the proper compensation is for the taking

of a TLE.1



       1
       Wis. Department of Transportation, Facilities Dev. Manual,
Temporary Limited Easements, ch. 12 § 1-15.5, available at
http://roadwaystandards.dot.wi.gov/standards/fdm/12-01.pdf#fd12-
1 (last visited Dec. 4, 2014).    See also majority op., ¶10 n.8
("This project involved the taking of more than 50 temporary
limited   easements   and   more   than   one   dozen   permanent
easements . . . .").


                                                  1
                                                           No.    2012AP2784.ssa


     ¶66    The majority opinion recites the tools for statutory

interpretation but does not apply them to decide whether TLEs

are compensable under Wis. Stat. § 32.09(6g).             It merely assumes

that § 32.09(6g) applies.

     ¶67    This court is developing the bad habit of assuming

applicable legal principles without deciding the legal issues

that are presented and briefed.2           This habit "has the unfortunate

effect of ducking [] vital issue[s] that should be decided,"3

"fails to provide adequate guidance to litigants, the circuit

courts,    and   the   court   of   appeals,"4   and   flouts    this   court's

"ultimate responsibility for development of the law."5
     2
       See, e.g., State v. Tate, 2014 WI 89, ¶¶59-60, 357
Wis. 2d 172, 849 N.W.2d 798 (Abrahamson, C.J., dissenting)
("This court owes it to law enforcement, lawyers, litigants,
circuit courts, the court of appeals, and the public at large to
provide clarity about when a search has occurred . . . . Rather
than dance around the issue of whether government access to cell
phone location data in the instant cases is a search within the
meaning of the Constitutions, I propose that the court address
it head-on."); State v. Subdiaz-Osorio, 2014 WI 87, ¶159, 357
Wis. 2d 41,   849  N.W.2d 748   (Abrahamson,  C.J.,   dissenting)
("Neither the Tate majority opinion nor Justice Prosser's lead
opinion in Subdiaz–Osorio decides whether the government access
in question constituted a search within the meaning of the
United States and Wisconsin Constitutions. Both opinions assume
that a search occurred."); State v. Nelson, 2014 WI 70, ¶¶63-64,
355 Wis. 2d 722, 849 N.W.2d 317 (Abrahamson, C.J., dissenting)
("The majority opinion assumes that the circuit court erred when
it refused to allow the defendant to tell her side of the
story. . . . I would hold that the circuit court erred.").
     3
       State v. Rocha-Mayo, 2014 WI 57, ¶100, 355 Wis. 2d 85, 848
N.W.2d 832 (Prosser, J., dissenting).
     4
       State v. Magett, 2014 WI 67, ¶96, 355 Wis. 2d 617, 850
N.W.2d 42 (Abrahamson, C.J., dissenting).
     5
       State ex rel. Swan v. Elections Bd., 133 Wis. 2d 87, 108,
394 N.W.2d 732 (1986).

                                       2
                                                         No.   2012AP2784.ssa


       ¶68    I turn to the text of Wis. Stat. § 32.09.

       ¶69    This section sets forth rules for the determination of

just       compensation.      Various     subsections    describe       just

compensation in terms of fair market value, which is calculated

differently     under   varying    circumstances.   Subsection     (6g)    of

Wis. Stat. § 32.09 explicitly governs just compensation for "the

taking of an easement."      It provides as follows:

       In the case of the taking of an easement, the
       compensation to be paid by the condemnor shall be
       determined by deducting from the fair market value of
       the whole property immediately before the date of
       evaluation, the fair market value of the remainder
       immediately after the date of evaluation, assuming the
       completion of the public improvement and giving
       effect, without allowance of offset for general
       benefits,   and   without    restriction  because   of
       enumeration but without duplication, to the items of
       loss or damage to the property enumerated in sub.
       (6)(a) to (g) where shown to exist.

(Emphasis added).
       ¶70    A temporary limited easement (TLE) is, of course, an

easement.6      The text of § 32.09(6g) does not distinguish between

permanent and temporary easements.

       ¶71    That Wis. Stat. § 32.09(6g) governs TLEs is supported

not only by the statutory text but also by the broader statutory

context.       No other statute governs just compensation for the

taking of a TLE or any other particular kind of easement.                  On

the    contrary,    Wis.   Stat.     § 32.09   appears   to    govern     the

determination of just compensation for all takings by eminent


       6
           See generally 9 Nichols on Eminent Domain ch. G32 (3d ed.
2014).


                                      3
                                                                         No.     2012AP2784.ssa


domain.7           It    explicitly        covers       the    determination           of   just

compensation            for   "total"      takings        (Wis.     Stat.        § 32.09(5)),

"partial"         takings     (Wis.      Stat.       § 32.09(6)),      and,       of    course,

takings of an easement (Wis. Stat. § 32.09(6g)).                                   Thus, the

plain reading of § 32.09(6g) is that it applies to TLEs.

       ¶72      Although the majority opinion assumes without deciding

that       Wis.    Stat.      § 32.09(6g)            applies   in    the        present     case

involving the taking of a TLE, it expresses qualms.                                     Lengthy

footnote 12 of the majority opinion explains why the text of

Wis. Stat. § 32.09(6g) "causes us [the majority] to pause when

considering         whether      that    statutory       subsection        is    designed     to

apply to temporary limited easements in the first instance."

       ¶73      Footnote      12    of   the    majority       opinion     offers       various

reasons why           Wis. Stat. § 32.09(6g)              might not apply to TLEs.

Most importantly, the "before and after" fair market value rule

for calculating damages for the taking of an easement does not

fit valuation of a TLE.

       ¶74      The      "before     and       after"     fair      market       value      rule
determines "compensation . . . by deducting from the fair market

value      of     the    whole     property     immediately         before      the    date   of

evaluation, the fair market value of the remainder immediately

after the date of evaluation . . . ."                          Wis. Stat. § 32.09(6g).

Generally, valuing a permanent easement using this calculation

makes sense, but the calculation does not necessarily make sense

when the taking is of a TLE.

       7
       Wisconsin Stat. § 32.09 is                          titled     "Rules          governing
determination of just compensation."


                                                 4
                                                                No.   2012AP2784.ssa


     ¶75     TLEs present significant valuation problems for just

compensation.8       Fair market value is ordinarily established by

comparable sales.        Yet there is generally no market for TLEs.9

In addition, TLEs are partial interests in terms of both space

and duration.10       According to a leading text, the valuation of a

TLE "depends on the nature of the taking."11

     ¶76     Few jurisdictions employ the "before and after" fair

market value calculation to determine just compensation for TLEs

because its application would produce unreasonable results.                       An

important tool of statutory interpretation is that "[w]ords are

given     meaning   to   avoid    absurd,      unreasonable,     or     implausible

results . . . ."12        Thus,    the     text   of   Wis.   Stat.     § 32.09(6g)

should      be     interpreted       reasonably,       to     avoid     absurd    or

unreasonable results.13

     ¶77     The    leading   text    on   eminent     domain    sets    forth   the

following methods used to determine just compensation for the

taking of TLEs:




     8
       W.H. Pugh Coal Co. v. State, 157 Wis. 2d 620, 631, 460
N.W.2d 787 (1990).
     9
       9 Nichols on Eminent Domain, ch. G32, § G32.08[1][a] (3d
ed. 2014).
     10
          Id., § G32.08[7].
     11
          Id., § G32.08[1][a].
     12
       Force ex rel. Welcenbach v. Am. Family Mut. Ins. Co.,
2014 WI 82, ¶30, 356 Wis. 2d 582, 850 N.W.2d 886.
     13
          See id., ¶30.


                                           5
                                                             No.    2012AP2784.ssa

    • Fair and reasonable rental value of the land subject
      to the easement;

    • Loss of use;

    • Diminution of the rental value of                   the      property
      adjacent to the temporary easement;

    • Diminution of the rental value of the property as a
      whole;

    • Diminution of the fair market value of the property
      during the period of the taking; and

    • Fair rate of return.14
    ¶78       "The most widely accepted measure of compensation for

the taking of a temporary easement appears to be the rental

value of the property taken."15             "Overall, the opinions of the

United States Supreme Court support compensation for temporary

takings based on the fair market rental value."16                    The rental

value    is   the   measure    of   compensation   that   was      used   in   the

instant case.        I conclude a reasonable reading of Wis. Stat.

§ 32.09(6g) permits this method of valuation when the taking is

of a TLE.

    ¶79       The   majority   opinion's    assumption    that      the   statute
applies,      alongside    its      assertion   that   the      statute       seems

inapplicable to TLEs, engenders confusion.             I would prefer this

    14
       9 Nichols on Eminent Domain, ch. G32, § G32.08[1][e] (3d
ed. 2014).
    15
         Id., § G32.08[2][a].
    16
       Id., § G32.03[7].    See also W. H. Pugh Coal Co., 157
Wis. 2d at 631 ("With a temporary taking, 'the proper measure of
compensation is the rental [value] that probably could have been
obtained,' in other words, 'the reasonable value of the
property's use.'" (Citations omitted.)).


                                        6
                                                                  No.    2012AP2784.ssa


court address head-on the question of whether and how Wis. Stat.

§ 32.09(6g) applies to TLEs.

      ¶80    Another   point   of    confusion      raised    by        the   majority

opinion is the refrain that "no property was taken" (majority

op., ¶¶44, 53, 56).       The instant case does, in my opinion (and

apparently in most of the court's opinion), involve a taking,

the cornerstone of condemnation proceedings giving rise to a

claim for compensation.17         Thus, if Wis. Stat. § 32.09(6g) does

not   apply,     the   property      owner      must      still     receive        just

compensation     for   the     taking       under   the     United       States     and

Wisconsin Constitutions.18          In determining just compensation for

the taking of TLEs, I wonder whether it makes any difference

whether Wis. Stat. § 32.09(6g) or constitutional principles of

just compensation apply.

      ¶81    In sum, footnote 12 supports the conclusion that Wis.

Stat. § 32.09(6g) does not apply to TLEs in a decision that

contradictorily assumes (without deciding) that the statute does

apply.      This inconsistency in the opinion engenders unnecessary
confusion.

      ¶82    The damages the parties agreed upon subject to review

in this court reflect the rental value of the TLE.                        The result

of the majority opinion is that the rental value is upheld as

      17
       More-Way   N.   Corp.   v.   State                 Highway        Comm'n,     44
Wis. 2d 165, 169, 170 N.W.2d 749 (1969).
      18
       U.S. Const. amend. V ("[N]or shall private property be
taken for public use, without just compensation."); Wis. Const.
art. I, § 13 ("The property of no person shall be taken for
public use without just compensation therefor.").


                                        7
                                                       No.   2012AP2784.ssa


just   compensation   in   the   present   case.   I   agree   with   that

result.

       ¶83   For the reasons set forth, I write separately.




                                    8
    No.   2012AP2784.ssa




1
