Can you inadvertently give away your land? The Wisconsin Court of Appeals recently addressed that issue in Somers USA, LLC v. State DOT, 2015 WI App 33 (ordered published). The case arose out of the State’s attempt to avoid paying just compensation to Somers on a portion of land Somers owned. The State’s logic was this: the State did not owe compensation for the parcel because Somers had recorded a certified survey map (“CSM”) dedicating that parcel to the State. Specifically, on the CSM Somers had recorded, a notation described the parcel as a “Road Dedication for Future Highway Purposes….”
Back in November 2007, Somers planned to invest in a truck stop next to I-94. To that end, Somers purchased 46.646 acres and hired an engineering firm to draw up plans, which included a CSM.
After getting those plans approved by the county, Somers had the CSM recorded with the register of deeds. Here is the problem: The CSM that Somers recorded included a notation that a 9.464-acre parcel was a “Road Dedication for Future Highway Purposes.” No one knew how that language ended up on the CSM. So when DOT built an on-ramp and frontage road over Somers’ land, the DOT said that they owned Somers nothing for the “Taking”– Somers had already dedicated it to them.
Somers went to court, seeking just compensation. There, in the circuit court, the State conceded that it appeared Somers had not intended to dedicate the land. Later the State conceded that the “dedication” designation was no doubt an error and that Somers had not intended to dedicate the land. Even so, argued the State, the State was entitled to rely on the CSM as Somers had recorded it. The circuit court concluded the State had taken Somers’ land without paying just compensation.
The State appealed – arguing that under Wis. Stat. § 236.29(1), recording a CSM showing a dedication is sufficient to convey interest in land for public use.
The Court of Appeals found two problems with the State’s reasoning. First, to properly dedicate the parcel under the statute, the government needed to “accept” the dedication listed on the CSM. Wis. Stat. § 236.34(1m)(e). No government approved any dedication listed in the CSM. Thus, there had been no dedication. Second, for the dedication to have been valid, Somers needed to intend to dedicate the land. See Vande Zande v. Town of Marquette, 2008 WI App 144, ¶8 314 Wis. 2d 143, 758 N.W.2d 187. There was no evidence of intent to dedicate here. Again, there had been no dedication.
This case shows how the skill of an eminent domain attorney can protect a landowner’s investment. Looking back, this case required the landowner’s attorney to overcome tough evidence – a recorded document, which has given away the owner’s land. But with skill and investigation, counsel was able to show that the government had not accepted any dedication and that the landowner did not intend to make a dedication. Thus, the landowner owned his land and was entitled to just compensation.