32.18 Damage caused by change of grade of street or highway where no land is taken; claim; right of action. Where a street or highway improvement project undertaken by the department of transportation, a county, city, town or village, causes a change of the grade of such street or highway in cases where such grade was not previously fixed by city, village or town ordinance, but does not require a taking of any abutting lands, the owner of such lands at the date of such change of grade may file with the department of transportation in the case of state trunk highways, a county in the case of county highways or the city, town or village, causing such change of grade to be effected, whichever has jurisdiction over the street or highway, a claim for any damages to said lands occasioned by such change of grade. Special benefits may be offset against any claims for damages under this section. Such claim shall be filed within 90 days following the completion of said project; if allowed, it shall be paid in the case of the department of transportation, out of the state highway funds, otherwise, out of the funds of the respective county, city, village or town against which the claim is made as the case may be. If it is not allowed within 90 days after such date of filing it shall be deemed denied. Thereupon such owner may within 90 days following such denial commence an action against the department of transportation, the city, county, village or town as the case may be, to recover any damages to the lands shown to have resulted from such change of grade. Any judgment recovered against the department of transportation shall be paid out of the state highway funds, otherwise out of the funds of city, county, village or town against which the judgment is recovered. Where a grade has been established by ordinance, the property owner's remedy shall be as provided by municipal law. This section shall in no way contravene, limit or restrict s. 88.87.
History: 1977 c. 29 s. 1654 (8) (c); 1977 c. 273.
A municipality may not initiate the running of the second 90-day period by affirmatively denying a claim within the first 90-day period. A claimant has 180 days from the filing of the original claim to commence legal action. Johnson v. City of Onalaska, 153 Wis. 2d 611, 451 N.W.2d 466 (Ct. App. 1989).
The state was not a proper party for claims against the Department of Transportation as the two are distinct legal entities. Service on the state of a summons and complaint that named the state and not the DOT as a party does not constitute service on the DOT necessary to establish personal jurisdiction over the DOT. Hoops Enterprises, III, LLC v. Super Western, Inc. 2013 WI App 7, 345 Wis. 2d 733, 827 N.W.2d 120, 12-0062.
The diminution in property value occasioned by a change in an abutting highway's grade is not an injury compensable under this section because such damages are not “damages to the lands." United America, LLC v. DOT, 2021 WI 44, 397 Wis. 2d 42, 959 N.W.2d 317, 18-2383.
Structure Wisconsin Statutes & Annotations
Wisconsin Statutes & Annotations
32.02 - Who may condemn; purposes.
32.03 - When condemnation not to be exercised.
32.035 - Agricultural impact statement.
32.04 - Procedure in condemnation.
32.05 - Condemnation for sewers and transportation facilities.
32.06 - Condemnation procedure in other than transportation matters.
32.07 - Necessity, determination of.
32.075 - Use after condemnation.
32.08 - Commissioner of condemnation.
32.09 - Rules governing determination of just compensation.
32.10 - Condemnation proceedings instituted by property owner.
32.12 - Proceedings to perfect title.
32.13 - Proceedings when land mortgaged.
32.15 - How title in trustee acquired.
32.16 - Abandonment of easements for public use.
32.19 - Additional items payable.
32.195 - Expenses incidental to transfer of property.
32.196 - Relocation payments not taxable.
32.197 - Waiver of relocation assistance.
32.20 - Procedure for collection of itemized items of compensation.
32.21 - Emergency condemnation.
32.22 - Special procedure for immediate condemnation.
32.25 - Relocation payment plan and assistance services.
32.26 - Authority of the department of administration.
32.27 - Records to be kept by condemnor.
32.29 - False statements prohibited.
32.51 - Exercise of eminent domain.
32.53 - Resolution of necessity.
32.54 - Report and tentative plan of improvement.
32.55 - Hearing on the report and tentative plan of improvement.
32.56 - Altering the plan of improvement.
32.57 - Determining benefits and damages.
32.58 - Benefit assessment payments.
32.61 - Appeal to circuit court.
32.63 - Completing certain improvements.
32.67 - Special improvement bonds.
32.69 - Alternative financing by general obligation bonds, taxation or anticipation notes.