Eminent Domain/Condemnation FAQ

THE QUESTIONS AND ANSWERS BELOW AIM TO COMMUNICATE GENERAL INFORMATION TO HELP LANDOWNERS UNDERSTAND AND CONSIDER THEIR OPTIONS WHEN THEIR LAND IS SUBJECT TO EMINENT DOMAIN AND CONDEMNATION.   IT INCORPORATES OUR GENERAL OPINIONS, AND SUMMARY INFORMATION, BUT (AND THIS IS A BIG BUT) IT IS NOT SPECIFIC LEGAL ADVICE ON YOUR SITUATION, AND IT IS NOT COMPLETE.  LASTLY, SOME INFORMATION MAY BE, OR MAY BECOME, OUTDATED BEFORE WE GET A CHANCE TO REVISE IT. 

How can they force me to give over my land? 
 

What, exactly, can I be required to turn over to the utility Company when it puts through a power line?
 
What am I supposed to receive in exchange for turning over my land for a power line easement?

How can they force me to give over my land?

Property rights are constitutional rights, and these rights are fundamental to the way our society operates.  It can be quite shocking to realize, first hand, that private property can be taken away from you and dedicated to other uses.  This can be especially disturbing if your property is taken from you so that a private company, such as a profit-making utility, can use it in a profit-making operation.  

The basic justification for taking away private property rights is that the private property is needed to serve the public, so private property rights have to give way.

In Wisconsin, most power line decisions are made through the Public Service Commission, which is a government agency made up of three appointed persons whose job includes regulating and overseeing the power industry.  Once a utility has the approval of the Public Service Commission, it can condemn and take away private property, even though condemnation is a power usually available only to the government itself.

You can reach the Public Service Commission’s website here. 

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What, exactly, can I be required to turn over to the utility Company when it puts through a power line?

You have to give up an easement.  An easement is a right to use and control a strip of your property in order to construct, maintain, protect, and replace the power line.   You retain ownership, and if the power line is abandoned, you get it all back, free and clear.  However, the chances of abandonment are slim, while the chance of having more facilities added to the easement is great.

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What am I supposed to receive in exchange for turning over my land for a power line easement?

You are supposed to receive “just compensation” for the diminished fair market value of your land.  You are also entitled to some other damages, although these have proven difficult to recover.

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How can a power line easement drive down property value?   

There are three basic ways that power line easements drive down property values.

First, they severely limit and control the uses of the strip of land that constitutes the actual power line easement.

Second, they reduce the value of land adjacent to the easement strip itself because potential buyers find the transmission towers and wires to be visually repugnant.

Third, they frighten potential buyers who are concerned about the impacts associated with electric power lines, such as electromagnetic fields (EMF) and stray voltage.

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How can I increase my chances of getting a fair price?

The answer to this question varies.  What we have seen is that landowners represented by experienced and credible attorneys and using experienced and credible experts end up receiving higher compensation.   Individual circumstances may vary, but, historically, this is the general rule we have seen.

The basic reason that competent professional help is valuable in this situation is that, for most persons, it is so far outside of your normal experience. 

For a landowner, getting dragged into an eminent domain situation means having to make judgments about complicated legal, factual, and strategic factors.  The information about how best to make those decisions, however, is outside the experience of most landowners, who tend to be people who were just “minding their own business.”

The utility, by way of contrast, is already quite sophisticated in the issues involved because acquiring property is a regular part of its business.

Unless the landowner gets the help necessary to sort through the issues involved, the advantage tends to favor the utility.

Below is a chart showing some of the benefit that has been gained from professional help in another matter.   The amounts of utility “jurisdictional offers” (black) are compared to the amounts ultimately paid over (yellow) to clients for the first half of 2006.

 In addition to the payments above, further and additional payments were recovered to reimburse the landowners’ litigation costs.  The yellow bars represent the landowners’ net recovery.

As with any information about trends, there is no guarantee that the trend represented above will continue.    It is, however, consistent with previous experience, and also consistent the experience of other competent lawyers and experts.

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What should I expect first?

Expect to be contacted by a utility company representative, who will talk to you about acquiring rights to your land.   The representative from the utility is supposed to provide you information from the State of Wisconsin about your rights as a landowner.  Some representatives may try to get landowners to sign over their rights for a specific payment without taking time to review the landowner rights materials.

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How do they come up with the amount they offer to me?

The utility is supposed to do an appraisal in order to develop an offer on your property.  

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What’s an appraisal?

According to the Wisconsin Department of Commerce, an appraisal is:

“A detailed and comprehensive description of the process an appraiser uses in regard to a certain property to reach an opinion of its fair market value. The opinion must contain the appraiser's rationale for determining value and be documented by market data which supports the appraiser's rationale.”

Appraisals are done by professionals who compile their findings, usually in the form of a small bound booklet.  This booklet contains a description of your property, pictures, a discussion of its features and the applicable zoning, and asserts an opinion as to how much the value of your property will be reduced by the taking of some of the property for the power line.  To come up with a number, the appraisal considers other properties that the appraiser asserts are like your property, and thus a good basis for judgment.

The utility is supposed to consult with you when they do their appraisal, if they can (some landowners don’t want to talk to the utility at all).  A consultation will usually be sought by the utility’s appraiser, who is the person actually putting together the appraisal.

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What if I want to get a second opinion?

You are entitled to a second opinion by your own appraiser.  The utility is required to pay the “reasonable costs” of a second opinion.  To get the utility to pay for it you have to get them a copy of the appraisal you have done for you within 60 days of when you receive the utility’s appraisal.

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I am not in the real estate business.  How am I supposed to know where to go to get a reliable second opinion?

This is a good question.  As noted, landowners who get dragged into this process against their will are not in the business of knowing about appraisers, lawyers, eminent domain procedures, condemnation rights, the legal language of easements, etc., etc.  This is one (but only one) of the reasons why the process feels so unfair. 

One company that has done a lot of work for landowners on the devaluation experienced when properties are burdened with transmission line easements is Appraisal Group One in Oshkosh.  Our law firm, Progressive Law Group, has done a lot of work with this Company and we have found them to have a well-developed understanding of the issues involved in devaluation associated with a power line.  You can reach their website here: Appraisal Group One

You may also have qualified local appraisers who could do the job and who have great familiarity with the local real estate market and market trends. You could inquire with a real estate agent that you trust as to who they think could do a good job, and you could then interview that person.   

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Is it worth the trouble of getting a second opinion?

We think it is worth getting a second opinion in all but the most unusual circumstances.  The normal situation in eminent domain, where property is being taken against the landowner’s will, is that the utility’s and the landowner’s appraisers’ estimates of the amount of value lost differ dramatically from each other.  

The landowner’s appraisal will often find three to six times as much loss as the utility’s appraisal.   Unless the overall loss is very small, this is information a landowner is likely to find useful. 

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How could there be such a huge discrepancy between appraisals?

We think that appraisers working for utilities have generally undervalued the loss from having a power line on property. 

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Once I get my second opinion, what can I do with it?

You can use the second opinion to attempt to negotiate with the utility over the price, and you can also use it in future litigation if you proceed into court.

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Will the utility increase its price after I get my appraisal?  

This is hard to predict.  Over the last couple of years we have seen utilities increasing their offers about 10% to about 25% over their previous offers, but this is still usually less than 1/3 of what the landowner appraiser believes the property to be worth.   The green bars in the chart presented earlier represent the utility offers after they have been increased.  For these situations, even the increased amounts - - the green bars - - end up being far less than what the utility ended up paying represented clients.

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Is the price the only thing I need to worry about?

Unfortunately, the easement price is not the only thing you need to worry about.    Even if you reach a price agreement, the utility will present you, most likely, with a standard form easement document that reflects what the utility would like, which is usually more than it is strictly entitled to under the law.  Easements can also include some tricky language that can create problems later on.   

You need to pay attention to those terms because this easement is going to become part of your property and part of the deed to your land.  Unfortunately, but understandably, easement terms are usually set out in legalistic language.

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If I negotiate the price that I want, do I have to accept the other terms of the easement the utility offers to me?

No.  The easement document you are asked to accept might be written in such a way that you would give up certain landowner rights that would otherwise be preserved for you under the law. 

It is a bad idea for landowners to give up any rights they don’t have to give up unless they are getting enough extra payment for doing so and they have considered what giving up those rights could mean the in the future.  Keep in mind that the easement document is going to be recorded with the deed to your property and can be reviewed by any future potential buyer.  This easement will, almost certainly, become a permanent feature of the land. 

It is probably usually worth it to get some experienced legal advice on the contents of the document that will become your easement.  You should keep this in mind when you are negotiating how much money you might accept.

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What if I were to change my mind?

If you have, before the filing of a “jurisdictional offer,” arrived at a negotiated price and an easement that you will accept, the utility is required to file the easement and give you, and other persons with an “interest” in your property (these are typically lenders) a notice that tells you that you can appeal the price within six months.  If you decide to appeal the price, you will be in a process much like the one that is followed when you don’t reach agreement with the utility.

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What happens if I don’t come to an agreement with the utility?

This is often the case.   If the landowner and the utility don’t agree, then the utility makes an official “final offer” which is called a “jurisdictional offer.”   If you don’t accept this offer within 20 days, the utility files a legal action asking for the value of the “taking” to be determined by the Condemnation Commission for your County. 

At this point, you are in a lawsuit. 

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What is the Condemnation Commission?

The Condemnation Commission is a group of people who are appointed in your county to decide how much landowners should be awarded when land is taken against their will.

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How long should the Condemnation Commission process take?

It is supposed to be completed within a couple of months after the landowner rejects the “jurisdictional offer.”  However, in practice, it sometimes takes much, much longer. 

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What’s the process by which the Condemnation Commission decides the value of the land taken?

The Chair of the Commission appoints three Commissioners.  They visit the land, and then hold a “hearing.”  The hearing is not as formal as a jury trial, but it is still fairly complicated. Witnesses are required to take an oath, and expert testimony is taken. The landowner is also allowed to testify as to her or his opinion of the value of their property.  Some complicated strategic decisions need to be made for this stage.

The law requires the Commission to issue a decision on its “award” within 10 days of the hearing.

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What if I feel like the award decided by the Condemnation Commission is too low?

This is not unusual.  Luckily, the Condemnation Commission’s decision is not necessarily the “last word” on the matter. You (or the utility) have the right to have a jury independently decide the amount by which the value of your property was reduced.    If you want to exercise that right, you have to appeal from the Condemnation Commission award within 60 days of the award.  

If you decide on a jury trial, your case is supposed to be given scheduling priority.   As a practical matter this priority may not mean much in terms of getting your case heard quickly.

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How do I recover the costs of battling with the utility over just compensation?

The risks of litigation cannot be avoided, but they can be managed. 

Landowners who achieve certain benchmarks, usually (in our cases) through an award that exceeds their best offer prior to the “jurisdictional offer” by at least $700 or 15% (whichever is greater) are entitled to recover their reasonable “litigation costs.”    Litigation costs are also typically recovered when a settlement is negotiated.  

Every Progressive Law Group condemnation client thus far has fully recovered its out-of-pocket payments for fees and experts.   As noted, these are separate from the amounts depicted in the chart embedded above.

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How many eminent domain or condemnation matters has Progressive Law Group handled recently? 

Progressive Law Group has handled, or is in the process of handling, 36 cases associated with the Arrowhead to Weston Transmission Line Project. 

 Landowners and persons assisting them are authorized to make ONE copy of the text on this page for their own use.

The law is complicated, both in its substance and in its procedure.  The information and material on this website are not legal advice! Reading the information here or sending us an email does not create an attorney-client relationship.   We provide the materials on this site for informational purposes only.  Though we try to be accurate and keep up to date, we cannot guarantee the information you read this site to be correct, complete, or up-to-date. If you have a specific problem that you think involves legal issues, nothing can substitute for a personal conference with a qualified lawyer.  When you have that discussion (with us or with another lawyer), be sure to be ready to discuss your case from all angles (a good lawyer will help you do this), and bring your documents!

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