In Somers USA, LLC v. Wisconsin Department of Transportation, 2014AP1092 (recommended for publication), the Wisconsin Court of Appeals recently held that the State could not rely on a scrivener’s error on a certified survey map (CSM) in order to take private property without paying just compensation. Somers purchased land abutting Interstate 94 in Kenosha County with the intention of building a truck stop. Somers also knew that the State had a highway project planned that would result in taking 9.464 acres of the land for a frontage road and 2.996 acres for an on-ramp. Somers hired an engineering firm to assist with the construction planning, including approval of the CSM. There were various revisions to the CSM, but the Kenosha County Land Use Committee approved a CSM with conditions, none of which required Somers to dedicate any portion of its property for public use. The version of the CSM that was recorded referred to the 2.996-acre parcel as “a road reservation for potential future state highway purposes” and the 9.464-acre parcel as “Road Dedication for Future Highway Purposes (Right-of-Way Width Varies).” It is undisputed that Somers did not intend to dedicate any portion of its property. Nonetheless, the State took the two parcels without compensation to Somers based on the terms “reservation” and “dedication” in the CSM.
Interestingly, in the circuit court proceedings, the State conceded that Kenosha County, which had been included as a party, could be dismissed because the State would have no claim against the County based on a defective dedication. The State also conceded that a reservation did not convey title to the 2.996-acre parcel, and any dedication of the 9.464-acre parcel was obviously in error. Apparently after realizing the trial court would rule against it, the State agreed forego additional hearings, and the court found the State improperly took both parcels without just compensation. The parties stipulated that Somers were entitled to $500,000 plus attorney fees and costs.
On appeal, the State argued Somers conveyed an interest in the property at the time the CSM was recorded. The court of appeals, however, noted that a transfer by CSM requires compliance with the procedure set forth in § 236.34(1m)(e), which did not occur in this case. Also, there must be intent to dedicate the property, which Somers undisputedly did not have. Finally, the appeals court rejected the State’s claim for equitable estoppel, explaining that the State could not prove reasonable reliance. Specifically, there were real questions regarding the intent and validity of the dedication, and really no explanation by the State why it treated the parcel identified as a “reservation” the same as it did the parcel identified as a “dedication.” Because there was no conveyance of the property to the State, the Court found that the State owes the Somers just compensation for taking its property.
While relatively straight forward in its analysis, this case once again demonstrates how litigation can easily result from an accidental or mistaken use of the wrong word.