The Wisconsin Court of Appeals' decision in Somers USA, LLC v. Wisconsin Dep't of Transportation, No. 2014AP1092 (Mar. 25, 2015), is the second case we're posting today that has us asking -- just what was the government thinking?
This kerfuffle resulted from the DOT trying to take advantage of Somers' scrivener's error, made when Somers recorded a map (known as a "CSM") that stated it was "dedicating" some of its property for a future state highway, rather than merely "reserving" it for highway use. No one disputed that this was an error, and no one doubted that Somers had not intended to donate its property for the highway.
But the DOT said "thank you very much," and it went ahead and built its highway without condemning the land or paying compensation.
Somers' inverse condemnation claim followed, as you might expect. The DOT conceded that the "dedication" language was "no doubt an error" and that Somers had not intended to convey title to the state. The trial court ordered the DOT to pay.
The Wisconsin Court of Appeals affirmed. It rejected the DOT's argument that the mistake conveyed title, and thus the state owned the land in fee simple and didn't need to take it, because when a dedication is recorded, it becomes effective. Not so, held the court. The procedure for actually dedicating property is set out in statutes -- with the critical event being an agency's formal approval of the dedication -- and besides, the donor must have an intent to dedicate, which Somers did not. But the DOT was not through:
Undeterred by the evidence that no dedication was ever intended or approved, the State proffers the absurd argument that it can still take Somers’ property without compensation as it was entitled to rely on an invalid dedication in a CSM. As the circuit court noted, the State’s current position contradicts its earlier statement at the hearing where Kenosha County was dismissed from the case: “If we built erroneously because there was a defective dedication, then we owe” Somers.
Slip op. at 7.
The court rejected the DOT's estoppel argument (we relied on Somers' error to our detriment), holding that the DOT had not shown detrimental reliance, and even if it had, reliance wasn't reasonable "when doubts were raised about the validity of the dedication."
Which takes us back to the question we've been asking today: what is up with these type of arguments, and why did the DOT dig in its heels rather than simply pay for what it was taking?