Eminent-domain case questions reconstruction of Dane County road

A Dane County agricultural company is arguing it’s owed public compensation because a town that seized its land using eminent domain didn’t keep its promise to build it a usable road.

In 2015, DSG Evergreen sued the town of Perry, southwest of Madison, over the construction of a field road. The suit was over the town’s use of eminent domain to condemn about 12 acres of DSG’s land to build a park. In return, DSG received $312,500 for the land and a promise that the town would build a new field road equivalent to the old one. The new road was meant to ensure DSG had access to the rest of its 80 acres from the county highway.

During the trial that had been held to decide what DSG should receive in return for its land, an engineering report had been introduced noting that the new road would fall short of the old one in several ways. Namely, it would be narrower, steeper and be less visible at a key intersection.

Yet despite knowing of those shortfalls, DSG didn’t raise objections during the compensation trial. It was only after the town had told DSG that work on the project had been completed that DSG complained about the road’s steeper slope, narrowness, turn-around limitations and drainage deficiencies. DSG sued in 2015 to no avail. Its claim that the road was not in compliance with construction standards was dismissed in court, and an appeals court went on to uphold that decision in 2018.

The Wisconsin Supreme Court heard arguments about the case on Monday. Matthew Fleming, who is representing DSG, said company officials had been aware of the construction deficiencies before the compensation trial but didn’t think they had the facts needed to support their claims.

“We would effectively accept Perry’s promise that we’d get a road built to the same standards as our old field road,” Fleming said.

Judge Rebecca Dallet asked if the company had been under an obligation at the time of the compensation trial to raise its objections then. Fleming once again said company officials did not think they were in a position yet to support their arguments.

“Every effort you make at the front end to challenge and litigate costs the property owner money, and the property owner may never get that money back,” Fleming said.

Fleming said the town owned the land surrounding the easement and could have taken steps to make sure the new road had a slope and width that were at least similar to the old one’s.

The town, meanwhile, said it had fulfilled its promise and built a road up to standards. Mark Steichen, the attorney representing the town, argued DSG knew during the compensation trial that the new field road wasn’t going to be equivalent to the old one.

“If, at the time, DSG really had thought it meant the same physical characteristics, the engineering report wouldn’t have had to address the driveway standards or the county ordinance standards at all,” said Steichen.