In Klemm v. American Transmission Co., No. 2009AP2784 (Aug. 10, 2010), the Wisconsin Court of Appeals held that in order to obtain litigation expenses under a state statute which provides that a property owner may recover expenses if a condemnation award exceeds the “jurisdictional offer” by at least $700 and at least 15%, there must be a “jurisdictional offer” made. Seems simple enough, right?
The property owner and the trial court didn’t think so, and here’s why: ATC wanted to place an electricity transmission line across the Klemm’s land. Rather than fight the taking, the Klemms “agreed to the $7,750 compensation ATC offered in negotiations, with the understanding they had the right to appeal the amount.” Slip op. at 1. They did, and the condemnation commission awarded them $10,000. They asked for, and were awarded, litigation expenses pursuant to a statute which provides that litigation expenses shall be awarded if:
[t]he award of the condemnation commission under … [Wis. Stat. §] 32.06(8) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%
Wis. Stat. § 32.28(3)(d). Wisconsin eminent domain procedure has a two-fold path, one of which results in a “jurisdictional offer,” and the other a negotiated settlement. Either path can end up before the condemnation commission. The trial court concluded that “because either route leads to a commission hearing,” if the property owner is successful in obtaining more compensation from the commission even though no jurisdictional offer was made, “the phrase ‘the highest written offer prior to the jurisdictional offer’ does not require that a jurisdictional offer actually be made.” Slip op. at 5.
No dice, held the court of appeals, the statute’s requirement of a “jurisdictional offer” means just that: a jurisdictional offer must be made, and if the path chosen does not include such, the property owners are not entitled to litigation expenses.