Partial vs. Total Taking Not Relevant

In a recent Appeals Court case, Gaborsky v. Zerkwekh and the City of Delafield, the court upheld the general notion that for a taking by government to occur, there “must be either a physical occupation or the deprivation of all or substantially all of the beneficial use of the taken property.”  In this case, a property owner, Zerkwekh, and the DNR had determined to remove a dam.  The dam had created a mill pond on which the plaintiff’s properties were situated.  In addition, tests of the sediment which was exposed by the draw down of the dam showed signs of contamination.  The plaintiffs argued that the contamination was caused by the City of Delafield, and that a partial taking had occurred.

The plaintiffs tried to distinguish between a partial and total taking, arguing that somehow the bar was lowered for a partial taking – apparently they argued that the “substantially all” portion was somehow not applicable in a partial taking.  But the court noted that the parties had not been physically deprived of their property, nor had they been deprived of “all or substantially all” beneficial use.  If anything, only a portion of their property had been affected by the alleged government action, and not to the “substantially all” extent.  The court affirmed the lower court ruling that it doesn’t matter whether the alleged taking is partial or total, that the test for a taking is either “physical occupation” or “deprivation of all or substantially all of the beneficial use” of the taken property.  The court held that no taking occurred, partial or otherwise.

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