The Wisconsin Supreme Court recently accepted five new cases. Of note:

United America, LLC v. DOT (2018AP2383) – Nonstructural Damages in DOT Takings)

In this case, the Court of Appeals District III held that nonstructural damages to private property are not compensable when the Department of Transportation (DOT) makes a change of grade to an abutting street.

The Supreme Court will determine whether the interpretation and scope of the statutory language in Wis. Stats. § 32.18 includes “any damages to said lands.” 

More about the case.

 

Southport Commons, LLC v. DOT (2019AP130) – Inverse Condemnation

In this case, the Court of Appeals District II held that claimants must file against the Department of Transportation (DOT) within three years after damage from DOT construction occurs, not after damage is discovered, according to Wis. Stat. § 88.87(2)(c).

The issue before the court: should it grant review of the Court of Appeals’ decision because it misconstrued Wis. Stat. § 88.87(2)(c)?

More about the case.

In Koenig v. Aldrich (2019AP242), the Wisconsin Court of Appeals (District III) held that intrusion into the immediate airspace of a property counted as trespass and that an L-shaped fence did not did not constitute a nuisance pursuant to WIS. STAT. § 844.10 (2017-18).   

Facts

Koenig owns a parcel of property that checkerboards with three other parcels—in other words, the parcels are four squares with corners that meet at a point. Of the three other properties, the county owns the property diagonal and it is available to the public. The Aldriches own the two properties adjacent to Koenig’s. 

Koenig used to access the diagonal public property by simply stepping over the checkerboard from his property to the public property. In the process, he passed through the air space of the Aldriches’ two properties. 

The Aldriches erected an approximately eight-foot-high, L-shaped fence extending approximately ten feet in both directions at the subject corner. (It later dropped the fence to six feet.) Koenig sued to remove the fence, calling it a private nuisance. The Aldriches counter-sued and sought to restrain Koenig from trespassing on their property

Decision 

Koenig argued that briefly passing over the airspace of someone else’s property should not amount to trespass, citing the statutory exception for airplanes passing over property. The Court of Appeals disagreed, holding the exception (and ensuing caselaw) inapplicable to Koenig’s actions. 

The court also ruled against his private nuisance claim. WISCONSIN STAT. § 844.10 provides:

Any fence, hedge or other structure in the nature of a fence unnecessarily exceeding 6 feet in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance… 

The court held that the statue did not apply since the Aldriches dropped the fence to six feet, the fence “did not interfere with Koenig’s use or enjoyment of his own property,” and it was not evidently “maliciously erected or otherwise maintained to annoy Koenig.”

 

 

After two years of study, the Justice Department announced Thursday that Yale University violated federal civil-rights law by making race and national origin the determinative factor in its admissions process. 

On July 30th, the Wisconsin Civil Justice Council signed on in support with the U.S. Chamber of Commerce urging Congress to create COVID-19 liability protections for businesses and schools who comply with applicable government health and safety standards. You can read the full letter of support here.

As the letter noted: “These crucial protections would safeguard healthcare workers, providers, and facilities, as well as businesses, non-profit organizations, and educational institutions against unfair lawsuits so they can continue to contribute to a safe and effective economic recovery from the COVID-19 pandemic.”

The bill is being pushed by U.S. Senate Majority Leader Mitch McConnell for inclusion in the next round of federal COVID-19 legislation.

The Wisconsin Supreme Court accepted three new cases this past week. Of particular note: Stroede v. Society Insurance and Village of Slinger v. Polk Props., LLC.

In Stroede v. Society Insurance (2018AP1880/2018AP2371), the Court of Appeals, District I found the defendant immune from liability for a trespasser’s injury because the defendant was a “lawful occupant” on the premises where the incident occurred. The Supreme Court will address the issue of the meaning of “lawful occupant” as used in Wis. Stat. § 895.529, Civil liability limitation; duty of care owed to trespassers.

Meanwhile, in Village of Slinger v. Polk Properties, LLC (2017AP2244), the Court of Appeals District II held that agricultural use of a residentially zoned property was not a legal nonconforming use, so the village was entitled to recover daily forfeitures and the value of residential taxes on the land. The case arises from the same underlying facts addressed in the 2018 Supreme Court decision Thoma v. Village of Slinger. 

In this case, the Supreme Court will address whether Polk affirmatively abandoned the the right to a non-conforming land use on the property and whether the trial court could require a reassessment of property taxes as damages, among other possible errors.