Taking without compensation cannot be based on inadvertant mistake.

In the recent case of Somers USA, LLC v. Wisconsin Department of Transportation, a company purchased approximately 46 acres near I-94 in Kenosha County, to build a truck stop.  About the same time, the DOT was implementing plans to rebuild the interchange.  At some point, the company recorded a certified survey map which showed a portion of its land as “reserved” for highway purposes, and a portion as “dedicated” for highway purposes.  These two words may be similar in some respects, but there is a fundamental different.  Land “reserved” for highway purposes is not a transfer of ownership.  However, when a private party, like Somers, “dedicates” land for highway purposes, this may well be a transfer of ownership.  That is, apparently, how the DOT saw it.  But Somers made clear that the word “dedicate” on the CSM was a mistake and Somers never intended to transfer ownership to the State for free. Somers was willing to work with the DOT on the land needed for highway purposes, but not without compensation.

Since the land was “dedicated,” the DOT assumed ownership and went ahead and rebuilt the intersection without paying Somers for the land.  Somers sued, and the circuit court held it was a taking.  Both the U.S. and the Wisconsin Constitutions require a government entity, like the DOT, to pay compensation for a taking.

Although there were some complicated legal maneuverings, in the end the appeals court upheld the circuit court decision that a dedication of land to the government cannot be based on a simple drafting mistake. The court held that …”a governmental body cannot rely upon a known, material mistake as a basis upon which to take private property without paying just compensation.”

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