2020 WI 23
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2352
COMPLETE TITLE: DSG Evergreen Family Limited Partnership,
Plaintiff-Appellant-Petitioner,
v.
Town of Perry,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 385 Wis. 2d 514,925 N.W.2d 782
(2019 – unpublished)
OPINION FILED: February 27, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 4, 2019
SOURCE OF APPEAL:
COURT: Circuit Court
COUNTY: Dane
JUDGE: Richard G. Niess
JUSTICES:
KELLY, J., delivered the majority opinion for a unanimous Court.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Matthew J. Fleming and Murphy Desmond S.C., Madison. There
was an oral argument by Matthew J. Fleming.
For the defendant-respondent, there were briefs filed by Mark
J. Steichen and Boardman & Clark LLP, Madison. There was an oral
argument by Mark J. Steichen.
2020 WI 23
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2352
(L.C. No. 2015CV65)
STATE OF WISCONSIN : IN SUPREME COURT
DSG Evergreen Family Limited Partnership,
Plaintiff-Appellant-Petitioner,
FILED
v. FEB 27, 2020
Town of Perry, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
KELLY, J., delivered the majority opinion for a unanimous Court.
REVIEW of a decision of the Court of Appeals. Reversed and
remanded for further proceedings consistent with this opinion.
¶1 DANIEL KELLY, J. The Town of Perry (the "Town")
acquired a portion of property belonging to DSG Evergreen Family
Limited Partnership ("DSG") through its power of eminent domain.
In exercising that power, the Town committed itself to building a
replacement road over part of the acquired property. DSG says the
Town failed to build the road to the standards required by either
the condemnation petition or Wis. Stat. § 82.50(1) (2017-18),1
1All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
No. 2017AP2352
which applies to the construction of town roads. It seeks a
declaratory judgment establishing the Town's road-building
obligations or, in the alternative, damages sufficient to allow it
to build the promised road. The Town says the claim preclusion
doctrine bars DSG from raising its claims in this case. It also
says that, in any event, DSG lacks a cognizable claim because the
statutes on which it relies do not create a private cause of
action.
¶2 We conclude that claim preclusion does not bar DSG's
claim that the Town did not build the replacement road to the
standards required by the condemnation petition. However, we also
conclude that Wis. Stat. § 82.50(1) does not impose obligations on
the Town that are susceptible to a declaration of rights, nor does
it create a private cause of action by which DSG can recover
damages for the alleged failure to construct a proper road.
Therefore, we reverse the decision of the court of appeals and
remand to the circuit court for further proceedings on this claim.2
I. BACKGROUND
¶3 DSG used to own approximately 92 acres of land in the
Town of Perry. Now it owns just over 80 acres because the Town
used its condemnation power to take the difference (12.13 acres)
to create what came to be known as the Hauge Log Church Historic
District Park (the "Park"). Prior to the condemnation, County
2 This is a review of an unpublished decision of the court of
appeals, DSG Evergreen Family Ltd. P'Ship v. Town of Perry, No.
2017AP2352, unpublished slip op. (Wis. Ct. App. Dec. 20, 2018),
which affirmed the judgment of the Dane County Circuit Court, the
Honorable Richard G. Niess presided.
2
No. 2017AP2352
Highway Z ran along the eastern edge of DSG's property. DSG had
built a field road off of Highway Z to access its land for
agricultural purposes and, eventually, to reach a residence and
farm building it anticipated building.3 This was the only means
of accessing the property. Now, after the condemnation, the Park
runs along the eastern edge of DSG's property instead of County
Highway Z. To prevent DSG's property from being landlocked, the
Town's condemnation petition promised to grant DSG a permanent
access easement over a new field road it committed itself to
building over the northern-most part of the Park. Specifically,
the condemnation petition said:
The Town will replace the existing field road on the
12.13 acre parcel to be acquired with a new field road
from [the county highway] along the northern boundary of
the Hauge Church Park boundary to the western boundary
of the proposed Park in order to provide access to the
Owner's other lands in the Town of Perry and for park-
related purposes subject to the Hauge Church Park
Regulations. This field road will be built to the same
construction standards as the existing field road.
(Emphasis added.)
¶4 The Town's efforts to obtain DSG's property spawned a
significant amount of litigation. To identify the issues already
litigated and——by process of elimination——the issues still
potentially subject to litigation, we must survey each of the cases
3 Several years before the present proceedings, DSG obtained
an "Agricultural Non-Controlled Access" permit which allowed it to
access the parcel for agricultural purposes. Shortly afterwards
it applied for and obtained a "Residential (single-family) Non-
controlled Access" permit, allowing DSG to access the parcel from
the county highway for residential purposes. At the time of the
condemnation, DSG used the road only for agricultural purposes.
3
No. 2017AP2352
between the Town and DSG related to the acquisition of this
property.
A. The Right-to-Take Case
¶5 The Town attempted to negotiate a voluntary sale of DSG's
property, as required by statute, but was unsuccessful. See Wis.
Stat. § 32.06(2a). So the Town took the next step in the exercise
of its eminent domain power——it served on DSG a "jurisdictional
offer." § 32.06(3). A jurisdictional offer describes, amongst
other subjects, the property the authority intends to acquire, the
amount of compensation the authority is offering for the
acquisition, and the owner's right to challenge both the exercise
of eminent domain and the amount of compensation. See Wis. Stat.
§§ 32.06(3) and 32.05(3).
¶6 After receiving a jurisdictional offer, the owner may
bring suit in circuit court challenging the condemnor's right to
acquire his property. Wis. Stat. § 32.06(5). DSG exercised this
right, claiming a discrepancy between the legal description in the
jurisdictional offer and the statutorily-required appraisal upon
which the offer must be based (the "Right-to-Take Case").4
§ 32.06(2)(b). The circuit court dismissed DSG's claim, and the
court of appeals affirmed. See Town of Perry v. DSG Evergreen
Family Ltd. P'Ship, No. 2008AP163, unpublished slip op. (Wis. Ct.
App. Apr. 23, 2008).
4 The jurisdictional offer DSG challenged was actually the
"Fourth Amended Jurisdictional Offer," but because the prior
offers are immaterial to this case, we will make no distinction
between them.
4
No. 2017AP2352
¶7 The Town and DSG were still at loggerheads after
resolution of the Right-to-Take Case with respect to the amount to
be paid for the property. Because DSG would not accept the amount
indicated in the jurisdictional offer, the Town commenced suit to
authoritatively establish the amount due to DSG for acquisition of
the property, an amount known as "just compensation" (the "Just
Compensation Case"). Wis. Const. art. I, § 13 ("The property of
no person shall be taken for public use without just compensation
therefor."). The matter proceeded to a jury trial. In the present
case, the parties stipulated that the only issue presented to the
jury in the Just Compensation Case was the amount owed to DSG for
the property rights the Town was acquiring:
The essential issue tried in the just compensation
trial was the determination of the fair market value of
the entirety of DSG's property before the Taking and the
fair market value of DSG's property after the Taking
assuming completion of the project for which the Taking
occurred, including the construction of the new field
road under the terms of the Petition.[5]
¶8 In establishing the just compensation due to DSG, the
jury had to assume, as a practical matter, that the Town would
5 This is the calculation prescribed by Wis. Stat. § 32.09(6):
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[.]
5
No. 2017AP2352
complete the new field road as described in the condemnation
petition because the Town could not start its construction until
after the trial was over and the required compensation paid.6
Nevertheless, DSG expressed doubt about the Town's ability to build
the new field road as indicated in the condemnation petition. It
introduced an engineering report to that effect, which said:
Neither a public road nor a private driveway meeting all
applicable Town, County, State and Federal requirements
can be constructed entirely within the easement. In
addition, a private driveway constructed within the
easement is not equivalent to the existing farm road
because of inferior intersection sight distance and
maximum slope characteristics.
DSG did not, however, offer any testimony with respect to the
report's contents, nor did the report go to the jury.
¶9 The jury returned a verdict favorable to DSG, awarding
it compensation greater than the Town's jurisdictional offer.7 The
Town then obtained title to the property by paying DSG the required
amount and recording the award with the register of deeds.
B. The Present Case
¶10 The Town started work on the promised road after
obtaining title to the property. Almost immediately after it was
6 Wisconsin Stat. § 32.06(9)(b) (The condemnor "shall within
70 days after the date of filing of the commission's award, pay
the amount of the award . . . to the owner and take and file the
owner's receipt therefor with the clerk of the circuit
court . . . . Title to the property taken shall vest in the
condemnor upon the filing of such receipt or the making of such
payment.").
7 The court of appeals affirmed the jury's verdict. See DSG
Evergreen Family Ltd. P'Ship v. Town of Perry, No. 2011AP492,
unpublished slip op. (Wis. Ct. App. Dec. 6, 2012).
6
No. 2017AP2352
done, DSG notified the Town that it was not suitable for heavy
farm machinery. So the Town performed some remedial work on the
road and brought it into compliance with the standards described
in the Town's Driveway Ordinance. See Perry, Wisconsin, Driveway
Ordinance (2000). The Town subsequently adopted a resolution
establishing the road as the Hauge Parkway (the "Parkway") and
declaring the road open for the "the benefit of the public,
adjacent property owners and for park related purposes" (the
"Resolution").
¶11 But DSG claims the road still does not meet the standards
to which the Town committed itself. The condemnation petition
says the new field road would be "built to the same construction
standards as the existing field road." DSG says it built its field
road to meet town road standards (as described in Wis. Stat.
§ 82.50), standards it says the new road doesn't meet because it
is too narrow, too steeply sloped, lacks an emergency turn-out,
lacks a storm-water retention pond, and lacks a place to turn
around.
¶12 Because of the road's perceived inadequacies, DSG took
the Town back to the circuit court. Its complaint sought a
judgment declaring that the Town "is obligated to improve and
maintain [the new field road] to County and Town standards for a
Town road." Alternatively, it requested over $288,000 so that it
could improve the new field road to the standards it claims the
Town promised to satisfy.
¶13 DSG asked for summary judgment, arguing (in part) that
by adopting the Resolution, the Town became subject to Wis. Stat.
7
No. 2017AP2352
§ 82.03,8 thereby imposing on it an obligation to improve the
Parkway to the town road standards described by Wis. Stat. § 82.50.
The Town responded with a summary judgment motion of its own in
which it sought a ruling that, regardless of what §§ 82.03 or 82.50
might require, they do not create a private cause of action
enforceable by DSG. The circuit court agreed with the Town, and
so granted judgment against DSG on that issue.
¶14 The case continued with respect to the scope of the
Town's road-building obligations imposed by the jurisdictional
offer. It ended when the circuit court concluded that claim
preclusion barred DSG's claim. It said "the before-and-after just
compensation analysis necessarily placed the issue of construction
standards for the new field road front and center in the prior
action." Therefore, it concluded that "DSG could have vigorously
contested the replacement road promised by the Town" in the Just
Compensation Case, but didn't. The court of appeals affirmed. It
reasoned that "DSG knew before and at the time of the condemnation
trial that the Town could not comply with the interpretation of
the condemnation petition that DSG advocates in this lawsuit."
DSG Evergreen Family Ltd. P'Ship v. Town of Perry, No. 2017AP2352,
unpublished slip op., ¶42 (Wis. Ct. App. Dec. 20, 2018).
Therefore, the court of appeals concluded that "[u]nder claim
preclusion principles, DSG cannot now request relief that the Town
is not complying with the condemnation petition when DSG failed to
8 Wisconsin Stat. § 82.03(1)(a) provides, in relevant part,
that: "[t]he town board shall have the care and supervision of
all highways under the town's jurisdiction[.]"
8
No. 2017AP2352
raise that issue in the previous lawsuit." Id. We granted DSG's
petition for review.
II. STANDARD OF REVIEW
¶15 We review the circuit court's grant of partial summary
judgment de novo. Leicht Transfer & Storage Co. v. Pallet Cent.
Enterprises, Inc., 2019 WI 61, ¶8, 387 Wis. 2d 95, 928 N.W.2d 534
("We review the disposition of a motion for summary judgment de
novo, applying the same methodology the circuit courts apply."
(cited source omitted)). While our review is independent from the
circuit court and court of appeals, we benefit from their analyses.
See Preisler v. Gen. Cas. Ins. Co., 2014 WI 135, ¶16, 360
Wis. 2d 129, 857 N.W.2d 136. Summary judgment is appropriate only
"if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law." Wis.
Stat. § 802.08(2); see also Columbia Propane, L.P. v. Wis. Gas
Co., 2003 WI 38, ¶11, 261 Wis. 2d 70, 661 N.W.2d 776 (quoting and
applying Wis. Stat. § 802.08(2) (2001-02)).
¶16 We also review the circuit court's decision with respect
to claim preclusion de novo. "Whether claim preclusion applies
under a given factual scenario is a question of law we review
independently of the determinations rendered by the circuit court
and court of appeals." Teske v. Wilson Mut. Ins. Co., 2019 WI 62,
¶20, 387 Wis. 2d 213, 928 N.W.2d 555 (cited source omitted).
III. ANALYSIS
9
No. 2017AP2352
¶17 DSG asks us to send this case back to the circuit court
so that it may continue litigating the three claims described in
its Complaint. The claims include two requests for a declaration
of rights and one alternative claim for damages. The first
declaration DSG seeks is that the condemnation petition requires
the Town to upgrade the Parkway to meet the standards to which DSG
had built its original field road (the "Petition Standard Claim").
DSG also requests a declaration that Wis. Stat. § 82.50 requires
the Town of Perry to upgrade the Parkway to the standards of a
town road (the "Town Road Claim"). As an alternative to
declaratory relief, DSG asks for damages sufficient to allow it to
satisfy the Town's obligation to improve the Parkway (the "Damages
Claim"). The Town says the doctrine of claim preclusion bars us
from entertaining DSG's case at all.9 It also denies that § 82.50
creates a private cause of action enforceable against the Town.
We conclude that claim preclusion does not bar any of DSG's claims.
However, we also hold that DSG is not entitled to declaratory
relief with respect to the Town Road Claim, and that § 82.50 does
not create a private cause of action capable of supporting the
Damages Claim. Therefore, we reverse the decision of the court of
appeals and remand the matter to the circuit court for further
proceedings on DSG's Petition Standards Claim. We will address
Some of our older decisions refer to the doctrine of claim
9
preclusion as res judicata. The concepts are the same, but "[t]he
term claim preclusion replaces res judicata" in our more recent
decisions. N. States Power Co. v. Bugher, 189 Wis. 2d 541, 550,
525 N.W.2d 723 (1995).
10
No. 2017AP2352
claim preclusion first, and then the Town's argument that § 82.50
cannot support DSG's Town Road Claim or its Damages Claim.
A. Claim Preclusion
¶18 The claim preclusion doctrine ensures that parties do
not continue litigating claims that a court has already
authoritatively resolved. Kruckenberg v. Harvey, 2005 WI 43, ¶19,
279 Wis. 2d 520, 694 N.W.2d 879 ("The doctrine of claim preclusion
provides that a final judgment on the merits in one action bars
parties from relitigating any claim that arises out of the same
relevant facts, transactions, or occurrences." (cited sources
omitted)). This doctrine applies upon satisfaction of the
following elements:
(1) identity between the parties or their privies in the
prior and present suits; (2) prior litigation
result[ing] in a final judgment on the merits by a court
with jurisdiction; and (3) identity of the causes of
action in the two suits.
Id., ¶21 (quoted source omitted). The rule applies even if the
claim was not actually litigated, so long as the party could have
raised it. Teske, 387 Wis. 2d 213, ¶43 (The preclusive effect
applies to matters "which might have been litigated in the former
proceedings." (quoted source omitted)). The doctrine developed
because we recognize that "endless litigation leads to chaos; that
certainty in legal relations must be maintained; that after a party
has had his day in court, justice, expediency, and the preservation
of the public tranquility requires that the matter be at an end."
Kruckenberg, 279 Wis. 2d 520, ¶20 (quoted source omitted).
11
No. 2017AP2352
¶19 DSG agrees that its circumstances satisfy the first two
elements of the claim preclusion test,10 so the only issue here is
whether the third element of the claim preclusion test is
satisfied——to wit, whether there is an "identity of the causes of
action" between this case and a prior case. See Kruckenberg, 279
Wis. 2d 520, ¶24. Therefore, our analysis must compare DSG's road-
related claims in this case against those it either actually
litigated, or could have litigated, during the Right-to-Take Case
or the Just Compensation Case. We conclude that there is no
"identity of the causes of action" between the claims in this case
and those that were, or could have been, litigated in either of
the prior cases.
¶20 We analyze claim preclusion issues using the
transactional approach, which "reflects the expectation that
parties who are given the capacity to present their entire
controversies shall in fact do so." Teske, 387 Wis. 2d 213, ¶31.
This requires that "all claims arising out of one transaction or
factual situation are treated as being part of a single cause of
action and they are required to be litigated together." Id.
(quoting A.B.C.G. Enters., Inc. v. First Bank Se., N.A., 184
Wis. 2d 465, 480-81, 515 N.W.2d 904 (1994)); see also N. States
Power Co. v. Bugher, 189 Wis. 2d 541, 555, 525 N.W.2d 723 (1995)
(The "number of substantive theories that may be available to the
10That is, DSG agrees there is an identity of parties between
this case and both the Right-To-Take Case and the Just Compensation
Case, and it agrees the two prior cases concluded with judgments
on the merits.
12
No. 2017AP2352
plaintiff is immaterial——if they all arise from the same factual
underpinnings they must all be brought in the same action or be
barred from future consideration."). The operative question,
therefore, is whether the Town's compliance with the road-building
obligations imposed by the condemnation petition or state statutes
was part of the same "transaction or factual situation" presented
in the Just Compensation Trial.
¶21 Because we look at the "transaction or factual
situation" of the prior cases, our analysis is necessarily context
specific. When the allegedly claim-precluding case was part of a
municipality's acquisition of property through its power of
eminent domain, context becomes especially important. Typically,
we expect parties to raise all claims arising out of the same
"transaction or factual situation" in the same lawsuit because
they are masters of their own pleadings and are free to draft an
all-encompassing pleading. But parties to condemnation
proceedings do not have the same degree of freedom, and that
affects the types of claims a condemnation case may subsequently
preclude. So we must examine the types of issues a property owner
may raise in eminent domain-related litigation. Discerning the
scope of those issues will inform our analysis of the preclusive
effect of the Right-to-Take Case and the Just Compensation Case.
We will address each case in turn.
1. The Right-to-Take Case
¶22 A right-to-take case is a limited purpose action. As
its name implies, such a case addresses issues related to the
condemnor's right to acquire the property:
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No. 2017AP2352
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.
Wis. Stat. § 32.06(5). This type of action does not reach the
amount of compensation owed to the property owner if the condemning
authority is successful. But it is the only opportunity to raise
an objection to the authority's right to acquire the property.
Id. ("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.").
¶23 The Town argues that DSG could have asserted its claim
regarding the sufficiency of the new field road in the Right-to-
Take case. Specifically, it says:
If at the time of the condemnation proceedings DSG had
truly believed the promise [to build the new field road
to the standards of the old field road] to be the vague,
nebulous formulation . . . that DSG now contends, then
DSG could have sought to have the Fourth Amended
Jurisdictional Offer on which the petition is based
declared void in part or in whole.
But DSG does not claim the Town's road-building obligation is vague
or nebulous. To the contrary, it says the obligation "is
unambiguous in that the 'standard' by which the new field road was
to be measured is expressly identified as being the 'existing field
road.'" Even if the Town had correctly characterized DSG's
argument, it has provided no argument and cited no authority to
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No. 2017AP2352
suggest that this is the type of issue a property owner must raise
in a right-to-take case. And as the party advancing the claim
preclusion argument, it is the Town's burden to prove its
applicability. State ex rel. Barksdale v. Litscher, 2004
WI App 130, ¶13, 275 Wis. 2d 493, 685 N.W.2d 801 ("The burden of
proving claim preclusion is upon the party asserting its
applicability." (citing Alexopoulos v. Dakouras, 48 Wis. 2d 32,
37, 179 N.W.2d 836 (1970))).
¶24 The court of appeals' opinion provides no guidance on
this question either. In fact, it did not substantively analyze
the question at all because, it says, it accepted the Town's
argument that DSG had conceded that it should have litigated the
Town's road-building obligations in the Right-to-Take Case. But
that is not actually what the Town argued, either in the court of
appeals or here. The Town's argument is that DSG conceded that
"if it was going to challenge the validity of the promise, a right-
to-take challenge would have been the proper remedy." The
statement of law lying at the heart of this alleged concession may
or may not be correct, but it has nothing to do with this case.
DSG is not challenging the validity of the Town's promise as
contained in the jurisdictional offer. To the contrary, DSG
affirmatively asserts its validity. Indeed, the whole point of
this case is to compel the Town to make good on what DSG says is
a valid and unambiguous promise——the construction of a replacement
road in accordance with the standards identified in the petition
(or, alternatively, to pay for the privilege of not doing so).
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No. 2017AP2352
¶25 So the court of appeals' conclusion that DSG conceded it
could have litigated its current issues in the Right-To-Take Case
is incorrect. DSG conceded only that, if it were to have
challenged the validity of the promise, it could have done so in
the Right-To-Take case——an issue not raised in this case. And
neither the Town nor the court of appeals has provided any
authority or reasoning to suggest DSG could have litigated its
current issues in the Right-to-Take Case (a necessary potentiality
if the litigation is to have claim-preclusive effects). We will
not develop the argument on the Town's behalf. State ex rel. Flynn
v. Kemper Ctr., Inc., 2019 WI App 6 ¶30 n.12, 385 Wis. 2d 811, 924
N.W.2d 218 ("We will not abandon our neutrality to develop
arguments for a party."). Consequently, the Town has failed to
establish that the Right-to-Take Case bars DSG's current claim
that the Town has not honored its road-building obligations.
2. The Just Compensation Case
¶26 The Town offers the Just Compensation Case as the second
candidate for a bar against DSG's current claims. The issues a
party may present in this type of case are even more constricted
than that available in a right-to-take case. Consequently, so is
its potential preclusive power. The condemnor pursues such a case
when the owner does not accept the amount specified in the
jurisdictional offer. It commences when the condemnor files a
verified condemnation petition in the circuit court. Wis. Stat.
§ 32.06(7). The circuit court then assigns the matter to the
chairperson of the county condemnation commissioners (the
"Chairperson"). Id. The Chairperson selects three commissioners
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No. 2017AP2352
whose task it is to "serve as a commission to ascertain the
compensation to be made for the taking of the property or rights
in property sought to be condemned . . . ." Wis. Stat. § 32.08(5).
The statutes do not confer on the Commission authority to address
any issue other than compensation. Upon the conclusion of its
proceedings, the Commission "file[s] its award with the clerk of
the circuit court, specifying therein the property or interests
therein taken and the compensation allowed the owner . . . ."
§ 32.06(8). If either party is dissatisfied with the award, it
may appeal the Commission's decision to the circuit court.
§ 32.06(10).
¶27 As with a right-to-take case (described above), the
scope of this litigation is limited by statute. The case
"proceed[s] as an action in said court subject to all the
provisions of law relating to actions brought therein, but the
only issues to be tried shall be questions of title, if any, as
provided by ss. 32.11 and 32.12 and the amount of just compensation
to be paid by condemnor . . . ." Wis. Stat. § 32.06(10).
According to the statutes, therefore, the only issues the parties
may litigate in a just compensation case are matters of title and
the amount of money to be paid to the property owner.
¶28 But within that already narrow litigative universe, the
statutes narrow the available issues even further by defining how
the court (and the Commission) calculates the compensation due to
the owner when, as here, there is a partial taking of property:
In the case of a partial taking of property other
than an easement, the compensation to be paid by the
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No. 2017AP2352
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 . . . .
Wis. Stat. § 32.09(6) (emphasis added). So not only must the
circuit court follow a statutorily-prescribed method of
calculating just compensation, it must also assume the completion
of the public improvement when doing so.
¶29 Here, part of the public improvement was a new field
road built to the same construction standards as the old field
road. The condemnation petition says:
The Town will replace the existing field road on the
12.13 acre parcel to be acquired with a new field road
from Highway Z along the northern boundary of the Hauge
Church Park boundary to the western boundary of the
proposed Park in order to provide access to the Owner's
other lands in the Town of Perry and for park-related
purposes subject to the Hauge Church Park Regulations.
This field road will be built to the same construction
standards as the existing field road.[11]
The purpose of the road was not just to provide DSG access to its
remaining land. It was also to serve the Park, as provided by the
Hauge Church Park Regulations. This had been the plan from the
beginning of the project, as the Town made clear when it adopted
the Resolution dedicating the new field road as the "Hauge
Parkway." The Resolution recites that "the Town has acquired real
estate necessary for the Park, and the Plan provides for the
establishment of a Town Park Road . . . ." It goes on to say that
11This language is identical to the jurisdictional offer the
Town presented to DSG before commencing the Just Compensation Case.
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No. 2017AP2352
it constructed the Parkway "to provide access to the Park from
County Highway Z for the benefit of the public, adjacent property
owners and for park related purposes . . . ." The recitals
conclude with the observation that "the final task is to formally
dedicate the Parkway to establish a permanent right of way as
contemplated by the Plan . . . ." The operative part of the
Resolution said "Hauge Parkway shall hereby be dedicated to the
public as a public Parkway and Town Park Road, with all rights of
use to the public and the owners of the real estate contiguous to
the Park, subject to the Town's regulation of establishment of
driveways."
¶30 Based on this record, there can be no doubt that
construction of the new field road——now known as the Hauge Parkway—
—was part of the public improvements anticipated by the
condemnation petition. The parties' stipulation also bears
witness to this conclusion. They agreed that "[t]he essential
issue tried in the just compensation trial . . . assum[ed]
completion of the project for which the Taking occurred, including
the construction of the new field road under the terms of the
Petition." (Emphasis added.) Therefore, Wis. Stat. § 32.09(6)
required the circuit court to assume the new road would be
constructed as provided by the condemnation petition. That is to
say, even if DSG were convinced the Town would renege on its road-
building obligation, or perform it inadequately or short of the
required standards, it could not have litigated that issue in the
Just Compensation Case, even had it so desired. As a matter of
law, the court must assume that after completion of the public
19
No. 2017AP2352
improvements, DSG would have access to its property over a field
road "built to the same construction standards as the existing
field road."
¶31 That statutorily required assumption draws a sharp
divide between claims DSG could and could not present in the Just
Compensation Case. If DSG were to claim that the new field road—
—constructed to the same standards as the old field road——would
diminish the value of its remaining property, it would have to
pursue that claim in the Just Compensation Case. Calculating
compensation for the diminished value of the owner's remaining
property is the core purpose of such cases. The Just Compensation
Case, therefore, would bar a claim based on the diminished value
of the remaining property here.
¶32 But that is not DSG's claim. In this case, DSG does not
claim that a road built to the standards required by the
condemnation petition would diminish the value of its remaining
property. Instead, it assumes the Just Compensation Case properly
calculated the value of the property rights it lost——assuming the
Town builds the required road.12 Its claim here is that the Town
12In the Just Compensation Case, the Town argued on appeal
that DSG's claim for increased compensation "was premised on its
loss of reasonable access from County Highway Z to its remaining
property after the partial taking . . . ." DSG Evergreen Family
Ltd. P'ship, No. 2011AP492, unpublished slip op., ¶9. The court
of appeals, however, said the Town "does not have a meritorious
argument to present." Id., ¶14. The court of appeals recognized
that DSG's actual argument was that its loss of frontage on a town
road eliminated its ability to develop residential lots on the
remainder of its property. Specifically, the court of appeals
said:
20
No. 2017AP2352
failed to build the required road. The purpose of this case is to
compel the Town to fulfill the obligations that the circuit court,
as a matter of law, had to assume the Town would honor when it
calculated its award of just compensation.
¶33 With that understanding, the Town's argument that DSG
already litigated the Town's faithfulness to its road-building
obligation, or at least attempted to do so, in the Just
Compensation Case does not follow either as a matter of logic or
of law. The Town's argument in this regard depends on the
significance of the engineering report DSG introduced in the Just
Compensation Case. The Town paid particular attention to the
report's introduction, which describes the scope of the ensuing
analysis. In relevant part it says:
DSG responds on this issue that at trial it was
DSG's theory, which DSG asserts appears to have been
accepted by the jury, that through the partial taking
the Town took title to all of DSG's frontage property
along public roads, thereby depriving DSG of the
valuable opportunity to create up to six residential
lots on its property, due to Dane County zoning
requirements for public road frontage to support
residential lots. DSG points to testimony from its
engineer "that a town road meeting the required [county
zoning] standards would not fit within the footprint
of the easement given by the Petition." Thus, DSG
argues, authority cited by the Town regarding the
quality and nature of changed access in eminent domain
cases is irrelevant to this case, because DSG rested its
claim on its alleged loss of the ability to use the
remainder parcel for residential, as opposed to
agricultural, purposes due to the alleged loss of road
frontage as a result of the partial taking.
Id., ¶15.
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No. 2017AP2352
The Town of Perry has proposed that the existing
farm road be abandoned and a new access be constructed
within the limits of a proposed 66' wide easement as
located by the Town of Perry. Per the Town, the new
access could consist of either a public road or a private
driveway.
A public road was preliminarily designed to meet
the applicable minimum standards. A private driveway was
also preliminarily designed to meet applicable
standards. The public road and private driveway designs
were compared to the applicable Town, County, State and
Federal standards. The private driveway was also
compared to the existing farm road to see if it would
provide an equivalent access.
The intent of this report is to provide details of
the analyses performed and to show how the designs either
met or failed to meet the required standards.
The report concludes that:
Neither a public road nor a private driveway
meeting all applicable Town, County, State and Federal
requirements can be constructed entirely within the
easement. In addition, a private driveway constructed
within the easement is not equivalent to the existing
farm road because of inferior intersection sight
distance and maximum slope characteristics.
The Town concludes that, because the report took issue with the
Town's ability to build the road described in the condemnation
petition, DSG actually litigated, or at least attempted to
litigate, that issue.
¶34 What the engineering report actually did was opine on an
issue the circuit court could not entertain. The report called
into question whether the Town could build either a public road or
a private driveway on the easement described in the condemnation
petition that would conform to all applicable rules and
22
No. 2017AP2352
regulations.13 But that question, as a matter of law, was beyond
the circuit court's authority to hear. Wisconsin Stat. § 32.09(6)
says the circuit court had to assume, contrary to the report's
conclusion, that the Town could and would provide the road as
described. That is to say, § 32.09(6) precluded DSG from
litigating the question raised by the engineering report in the
Just Compensation Case.14 Even if submission of the report
represents an attempt to do so, the claim preclusion doctrine does
not recognize attempts at litigation. Instead, it asks only
whether the final judgment in the Just Compensation Case actually
adjudicated the claim, or could have adjudicated it had it been
raised. See Teske, 387 Wis. 2d 213, ¶23. The Town does not argue
the former, and the circuit court could not have done the latter
without going beyond the boundaries set by § 32.09(6). Therefore,
DSG's attempt to litigate an issue the circuit court was forbidden
from entertaining (if that is what submission of the engineering
report represents) cannot engage the claim preclusion doctrine.
The report said the required road could not meet all of the
13
applicable public road standards without "impacting area outside
of the easement." That was problematic, the report reasoned,
because "the area outside of the easement is not within the control
of [DSG] and [DSG] does not have permission to use lands beyond
the easement." The report concluded that building a private
driveway was problematic for the same reasons.
This is not to say
14 that the circuit court could not have
considered the engineering report as part of the Just Compensation
Case. The report could have provided, for example, evidence
bearing on the decreased value of DSG's remaining property——a
proper consideration for a just compensation trial.
23
No. 2017AP2352
¶35 We conclude that neither the Right-to-Take Case nor the
Just Compensation Case bars DSG's Petition Standards Claim, its
Town Road Claim, or its Damages Claim.15 But that is all we decide
in this portion of our opinion. We note that the Town dedicated
a significant amount of its brief to the construction standards
required by the condemnation petition and how the new field road
satisfies them. But that was the subject of the litigation the
circuit court prematurely ended with its ruling on claim
preclusion. Therefore, we express no opinion on the construction
standards required by the condemnation petition, nor the current
field road's compliance with them. We are simply concluding that
claim preclusion does not serve as a bar to DSG's complaint.16
B. Declaration/Private Cause of Action
¶36 As an alternative to its claim that the Town failed to
construct the new field road to the standards required by the
condemnation petition (the Petition Standards Claim), DSG says the
Town took on a statutorily-imposed obligation to improve the field
road to town road standards when it dedicated it as the "Hauge
Parkway" (the Town Road Claim). Specifically, it says this
15Because we hold that claim preclusion does not apply here,
we need not reach DSG's alternative argument that we should create
an exception to the claim preclusion doctrine for use in eminent
domain cases.
16The Town says we can affirm the decision of the court of
appeals on the basis that it satisfied its obligation to construct
the new field road, arguing that this leaves nothing further to
litigate. We disagree. To be sure, the Town did build a new field
road, but whether that road satisfies the standards required by
the condemnation petition is another question entirely.
24
No. 2017AP2352
obligation arises when a town "formally declares that a town road
exists and improves that road, opening it for public
travel . . . ." So it asked for a declaration that the Town must
comply with its statutory obligation or, in the alternative, an
award of damages sufficient to allow DSG to perform the
construction the Town has refused to do. The Town says DSG is
entitled to neither form of relief because it dedicated the Hauge
Parkway as a "town parkway," not a "town road," so the standards
applicable to town roads have no applicability. In any event, it
says, the statute on which DSG relies creates no private cause of
action against the Town.
¶37 As a preliminary matter, we must address some lack of
precision in the way the parties have addressed this issue. The
parties both bundled together DSG's alternative claims for relief
and analyzed the resulting package according to a single rubric.
They each used a different rubric, but neither of them accounted
for the essential differences between the two types of claims.
DSG, for example, says it may pursue declaratory judgment as well
as its alternative demand for damages pursuant to the long-
recognized right to compel a municipal entity or officer to perform
its mandatory duties. Typically, such relief is available through
a writ of mandamus. See Voces De La Frontera, Inc. v. Clarke,
2017 WI 16, ¶11, 373 Wis. 2d 348, 891 N.W.2d 803 ("Mandamus is a
remedy that can be used 'to compel a public officer to perform a
duty of his office presently due to be performed.'" State ex rel.
Marberry v. Macht, 2003 WI 79, ¶27, 262 Wis. 2d 720, 665
N.W.2d 155."); Beres v. City of New Berlin, 34 Wis. 2d 229, 232,
25
No. 2017AP2352
148 N.W.2d 653 (1967) ("However, this court has taken the position
that a writ of mandamus will issue to enforce the performance of
plain imperative duties of a ministerial character imposed on a
public body such as a city council."); State v. City of Madison,
170 Wis. 133, 136, 174 N.W. 471 (1919) ("Where there is a plain
duty, as here involved, it is a well-recognized and long-
established doctrine that compliance therewith may be enforced by
mandamus."). The Town on the other hand, says DSG is not entitled
to either a declaration of rights or damages because the statutes
on which it relies do not create a private cause of action. Neither
of these analytical rubrics is capable of properly addressing both
of DSG's claims.
¶38 So we must analyze DSG's declaratory judgment claim
separately from its claim for damages. After identifying the
claimed deficiencies in the new field road, DSG's complaint
"demands judgment against the [Town] declaring that the [Town] is
obligated to improve and maintain all portions of the park road
declared to exist by the Town of Perry Resolution, dated October
17, 2011, to County and Town standards for a Town road." DSG's
request for damages, on the other hand, has nothing to do with
declaring rights, but concentrates entirely on whether the
municipality's failure to comply with a statutory obligation
imposes civil liability in favor of a specific party. Therefore,
we will address DSG's Town Road Claim as a request for a
declaration of rights, and the alternative demand for damages as
an assertion of a "private cause of action" against the Town.
1. Declaratory Judgment
26
No. 2017AP2352
¶39 A plaintiff may demand a declaration of rights pursuant
to Wis. Stat. § 806.04(2), which says:
Any person . . . whose rights, status or other legal
relations are affected by a statute . . . may have
determined any question of construction or validity
arising under the . . . statute . . . and obtain a
declaration of rights, status or other legal relations
thereunder.
We said in Tooley v. O'Connell that a declaration of rights is
available only if the plaintiff satisfies the following four
conditions:
(1) There must exist a justiciable controversy that is
to say, a controversy in which a claim of right is
asserted against one who has an interest in contesting
it.
(2) The controversy must be between persons whose
interests are adverse.
(3) The party seeking declaratory relief must have a
legal interest in the controversy that is to say, a
legally protectible interest.
(4) The issue involved in the controversy must be ripe
for judicial determination . . . .
77 Wis. 2d 422, 433-34, 253 N.W.2d 335 (quoted source omitted;
ellipses in original).
¶40 DSG says we must declare that the Town has a duty to
improve the Parkway to town road standards because of the
provisions of Wis. Stat. § 82.50(1). This statutory subsection
says that "[t]he following minimum geometric design standards are
established for improvements on town roads . . . ." The balance
of the subsection describes the design standards applicable to
27
No. 2017AP2352
roads of varying traffic loads. Id.17 DSG argues that this must
assuredly impose on the Town an affirmative obligation with respect
to the Parkway because the identified standards are "minimums."
If the road falls below this standard, DSG says, it must
necessarily violate the statute. And if there is no affirmative
obligation to comply with the statute, DSG concludes, there would
have been no point in enacting it in the first place.
¶41 We conclude that DSG's Town Road Claim does not satisfy
Tooley's first or fourth requirements. That is, DSG does not have
a "claim of right" in how the Town chooses to exercise its
discretion under the terms of Wis. Stat. § 82.50. And although
the Town's exercise of discretion may eventually resolve to a
particular course of action, that undecided course of action cannot
be ripe for adjudication at this time.
¶42 The same statute establishing the minimum standards for
town roads vests in the Town a certain degree of discretion with
respect to complying with them. Specifically, it provides that
"[t]he department [of transportation] may approve deviations from
the minimum standards in special cases where the strict application
of the standards is impractical and where such deviation is not
contrary to the public interest and safety and the intent of this
section." Wis. Stat. § 82.50(2). Before the department can
17The statute provides different standards for local service
roads, roads with intermittent traffic, roads with less than 100
daily cars, roads with 100-250 daily cars, roads with 251-400 daily
cars, roads with 401-1000 daily cars, roads with 1001-2400 daily
cars, and roads with over 2400 daily cars. See Wis. Stat.
§ 82.50(1).
28
No. 2017AP2352
approve a deviation, of course, there must be a request to deviate.
Nothing in the statutes controls the circumstances in which the
Town may apply for such a deviation, which indicates the
application is left to its discretion. This is consistent with
the broader statutory framework relating to town roads, in which
the legislature has decreed that "[t]he town board shall have the
care and supervision of all highways under the town's
jurisdiction . . . ." Wis. Stat. § 82.03(1)(a); see also
§ 82.03(4) ("The town board shall direct when and where all highway
funds shall be expended."). So if the Town can apply to the
department of administration for relief from the standards imposed
by § 82.50, then compliance with those standards is subject to at
least some cognizable amount of discretion. And in the presence
of such discretion, declaratory relief is inappropriate because
the rights are not yet fixed: "Courts will not declare rights
until they have become fixed under an existing state of
facts . . . ." Voight v. Walters, 262 Wis. 356, 359, 55 N.W.2d 399
(1952); see also Olson v. Town of Cottage Grove, 2008 WI 51, ¶43,
309 Wis. 2d 365, 749 N.W.2d 211 ("The facts on which the court is
asked to make a judgment should not be contingent or
uncertain . . . ."); Wis. Stat. § 806.04(6) ("The court may refuse
to render or enter a declaratory judgment or decree where such
judgment or decree, if rendered or entered, would not terminate
the uncertainty or controversy giving rise to the proceeding.").
¶43 Notwithstanding these principles, DSG says, we have
previously enforced a town's road-related obligations.
Specifically, it refers us to State ex rel. Cabott, Inc. v. Wojcik,
29
No. 2017AP2352
47 Wis. 2d 759, 177 N.W.2d 828 (1970), and State ex rel. Wollner
v. Schloemer, 200 Wis. 350, 228 N.W. 487 (1930). It says this
brace of cases establishes that "Wisconsin law has long recognized
that a private cause of action for mandamus may be stated when a
town violates clear duties imposed upon it by law with regard to
highways and other plain statutory duties."
¶44 But neither Cabott nor Wollner suggests there is a
cognizable claim in the way a town exercises its discretionary
road-related responsibilities. In Cabott, we addressed a statute
that required towns to "keep [highways] passable at all times,"
and further required that "[w]hen any highway under [the town's]
charge becomes impassable [it] shall put the same in passable
condition as soon as practicable." Wis. Stat. § 81.03 (1969-70).
We said the statutory command to keep the highways passable was
"mandatory and unequivocal," even if the manner of making it
passable was subject to the town's discretion. Cabott, 47
Wis. 2d at 768. There is no comparable duty under Wis. Stat.
§ 82.50. The Town's ability to apply for a deviation from the
standards contained in that statute mean we cannot consider them
"mandatory and unequivocal." Similarly, in Wollner we considered
a statute that said "no town board shall discontinue . . . any
highway when such discontinuance would deprive the owner of lands
of access therefrom to the public highway." 200 Wis. at 352
(quoting Wis. Stat. § 80.02 (1929-30)). The duty not to
discontinue in such circumstances was mandatory and unequivocal.
The ensuing writ of mandamus commanded the town to reopen the
30
No. 2017AP2352
highway, but did not specify the manner of doing so inasmuch as
that was left to the town's discretion. Wollner, 200 Wis. at 352.
¶45 Our opinion in State ex rel. Wisniewski v. Rossier, 205
Wis. 634, 238 N.W. 825 (1931), reinforces the lesson that we lack
the authority to direct the Town's exercise of its discretionary
authority. There, we said the "crucial question . . . [was]
whether a town, or its officers, may be compelled by mandamus to
repair and maintain a highway in a safe condition." Id. at 635.
Referring to our decision in Wollner, we said we "never intended
to hold that mandamus may be invoked in this state to compel a
town board to repair or to maintain a highway." Id. at 637.
¶46 Although Wisniewski, Cabott, and Wollner addressed the
significance of a town's discretion in the context of a writ of
mandamus,18 we think the lesson is no less important in determining
whether a person has a "claim of right" in how a town exercises
its discretion (the first Tooley prerequisite to a declaration of
rights). Although we may review a town's exercise of discretion
to ensure it stays within proper parameters, it is not for the
judiciary to tell the town how to exercise its discretion in the
18State ex rel. Althouse v. City of Madison, 79 Wis. 2d 97,
106, 255 N.W.2d 449 (1977) ("[W]hen the action sought to be
compelled is discretionary, mandamus will not lie."); State ex
rel. Thomas v. State, 55 Wis. 2d 343, 349, 198 N.W.2d 675 (1972)
("[M]andamus will not lie to control the manner in which a
governmental body or officer exercises his statutorily-conferred
discretion.").
31
No. 2017AP2352
first instance.19 Because Wis. Stat. § 82.50 does not impose on
the Town a mandatory and non-discretionary obligation to improve
the Parkway to town road standards, DSG can have no cognizable
claim of right until, at the earliest, the town's discretionary
authority resolves to a particular course of action. And because
that has not yet occurred, DSG's Town Road Claim is also not ripe
for review.
2. Damages
¶47 There are instances in which private parties may sue
public officers for damages based on their failure to comply with
statutory obligations. But as the Town observes, "a private right
of action is created only when (1) the language or the form of the
statute evinces the legislature's intent to create a private right
of action, and (2) the statute establishes private civil liability
rather than merely providing for protection of the public." Grube
v. Daun, 210 Wis. 2d 681, 689, 563 N.W.2d 523 (1997). The first
element of the analysis focuses on the legislature's intent, which
we find in the statute's language. State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681
N.W.2d 110 ("We assume that the legislature's intent is expressed
in the statutory language."). The second element reflects the
19See, e.g., Nowell v. City of Wausau, 2013 WI 88, ¶24, 351
Wis. 2d 1, 838 N.W.2d 852 ("Thus, the scope of certiorari review
is limited to: (1) whether the [municipality] kept within its
jurisdiction; (2) whether it acted according to law; (3) whether
its action was arbitrary, oppressive or unreasonable and
represented its will and not its judgment; and (4) whether the
evidence was such that it might reasonably make the order or
determination in question." (alteration in original)).
32
No. 2017AP2352
general rule "'that a statute which does not purport to establish
a civil liability, but merely makes provision to secure the safety
or welfare of the public as an entity, is not subject to a
construction establishing a civil liability.'" McNeill v.
Jacobson, 55 Wis. 2d 254, 259, 198 N.W.2d 611 (1972). Nor will a
cause of action "be implied to protect an interest other than the
one specifically protected by the statute." Id.
¶48 DSG says "Wisconsin law, has long recognized that a
private cause of action . . . may be stated when a town violates
clear duties imposed upon it by law with regard to highways[.]"
But the balance of its argument makes it clear that it was
addressing not a right to seek damages, but its ability to seek
relief in the form of a declaration of rights or writ of mandamus
(which we addressed above). Nothing in its briefs describes how
we could understand Wis. Stat. §§ 82.03 or 82.50 as making the
Town answerable to DSG in damages for failure to improve the
Parkway to town road standards.
¶49 Our review of these statutes confirms that it contains
no language evidencing a "clear expression of intent to create a
private right of action" for a town's failure to comply with its
standards. Kranzush v. Badger State Mut. Cas. Co., 103 Wis. 2d 56,
81, 307 N.W.2d 256 (1981). Nor does any provision in the statutes
suggest its terms exist to protect a private interest rather than
"providing for protection of the public." Grube, 210 Wis. 2d at
689. We conclude that Wis. Stat. § 82.50(1) does not create a
private cause of action.
33
No. 2017AP2352
IV. CONCLUSION
¶50 We hold that neither the Right-to-Take Case nor the Just
Compensation Case bars DSG's claims in this case. However, we
also hold that Wis. Stat. § 82.50(1) does not impose road-building
obligations on the Town that are susceptible to a declaration of
rights, nor does it create a private cause of action by which DSG
can recover damages for the failure to improve the Parkway to town
road standards. Therefore, we reverse the decision of the court
of appeals and remand to the circuit court for further proceedings
on the Petition Standards Claim.
By the Court.—The decision of the court of appeals is reversed
and the cause is remanded to the circuit court for further
proceedings consistent with this opinion.
34
No. 2017AP2352
1