June 24, 2024 – Statutes that bar municipalities from condemning land for pedestrian walkways do not apply to sidewalks, the Wisconsin Supreme Court has held (4-3) in Sojenhomer LLC v. Village of Egg Harbor, 2024 WI 25 (June 19, 2024).

Justice Dallet wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Jill Karofsky, and Justice Janet Protasiewicz. Chief Justice Annette Ziegler dissented, joined by Justice Rebecca Grassl Bradley and Justice Brian Hagedorn.

Narrow Road

Sojenhomer LLC (Sojenhomer) owns a piece of land located between County Road G and State Highway 42 in the Village of Egg Harbor (Village), near where the roads converge.

People complained that County Road G was too narrow and there wasn’t room to park or walk along the side of the road.

The Village and an engineering firm created a plan to address the road’s deficiencies. The plan called for a sidewalk on the east side of County Road G – the side that abuts Sojenhomer’s land.

The Village issued a relocation order under Wis. Stat. section 32.05, which authorized the Village to buy land for the sidewalk and to make other improvements called for in the plan.

In February 2020, the Village offered to buy .009 acres of Sojenhomer’s land to expand the road’s right of way and pay for a temporary easement of .071 acres. The Village later doubled its offer, but Sojenhomer rejected it.

Landowner Files Lawsuit

Sojenhomer sued the Village in Door County Circuit Court in August 2020, to enjoin it from obtaining the land by condemnation.

Sojenhomer argued that the Village wanted to condemn the property to build a sidewalk on the east side of County Road G, and the condemnation ran afoul of section 32.015.

That statute prohibits a municipality from using condemnation to acquire property to create or extend “a pedestrian way.”

But the circuit court concluded that a sidewalk is not a “pedestrian way” as defined in section 346.02(8)(a) and granted summary judgment for the Village. Sojenhomer appealed.

The Wisconsin Court of Appeals reversed, holding that statutes that bar municipalities from condemning land for pedestrian walkways apply to sidewalks. The Village appealed.

Context is Key  

On appeal, Sojenhomer argued the definition of “pedestrian way” in section 346.02(8)(a) included any type of walk designated for use by pedestrians.

But Justice Dallet began her opinion for the majority by explaining that a statute’s plain and ordinary meaning comes down to more than the literal meaning of a single phrase viewed in isolation.

“Rather, as we have emphasized before, statutes must be interpreted in their entirety, and in context,” Dallet wrote.

Justice Dallet noted that section 346.02(8)(a) specifies that all the applicable provisions of Ch. 346 apply to “highways, streets, alleys, roadways and sidewalks also apply to pedestrian ways.”

She also noted that under section 346.02(8)(b), “[p]ublic utilities may be installed either above or below a pedestrian way, and assessments may be made therefor as if such pedestrian way were a highway, street, alley, roadway or sidewalk.”

Dallet reasoned that the two subsections use “sidewalk” and “pedestrian way” in a way that compels a conclusion that each term “has a separate, non-overlapping meaning.”

Justice Dallet also pointed out that section 346.02(8)(b) used the term “as if” in the same way as section 53.03, which says that a Wisconsin court “may treat a foreign country as if it were a state.”

“Just as foreign countries are not states but should be treated as if they were for guardianship purposes, pedestrian ways are not sidewalks, but should be treated as if they were for utility-installation and assessment purposes,” Dallet wrote.

Separate Definitions

Justice Dallet also noted that the legislature first used “pedestrian way” in 1949, when it added the term to a statute that already contained a separate definition of “sidewalk.”

“As this history demonstrates, the legislature has always treated sidewalks and pedestrian ways as different things, with separate statutory definitions,” Dallet wrote.

Justice Dallet also concluded that the legislative history showed that the legislature has always defined “sidewalk” differently than the ordinary meaning of the word.

“Although one might ordinarily think of a sidewalk as separate from the highway, street, or alley it adjoins, the statutes have long defined sidewalks as part of that adjoining highway or roadway,” Justice Dallet wrote. “Because these terms are statutorily defined, their ordinary, dictionary definitions are irrelevant.”

Dallet noted that section 346.02(8)(a) defines “pedestrian way” as “a walk designated for the use of pedestrian travel,” while section 340.01(58) defines “sidewalk” as “that portion of a highway between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, construction for use of pedestrians.”

Dissent: Majority Ignores Common Sense

Chief Justice Ziegler argued in her dissent that, given the dictionary meanings of the nouns “walk” and “pedestrian,” it was clear that a “sidewalk” was a “pedestrian way” for purposes of section 346.02(8).

“It is a straightforward, commonsense interpretation of the statutory language that a ‘walk designated for the use of pedestrian travel’ necessarily includes that part of the highway ‘constructed for the use of pedestrians’ and ‘intended for the use of persons on foot,’” Ziegler wrote.

Chief Justice Ziegler argued that the majority’s focus on the context of section 346.02(8) was misplaced.

“The context it invents does not alter the commonsense conclusion that the statutory definitions lead to: Sidewalks are pedestrian ways,” Ziegler wrote. “The majority, starting at the wrong location, unsurprisingly arrives at the wrong destination.”

Chief Justice Ziegler also argued that the majority’s focus on the term “as if” in section 346.02(08)(b) was contrary to its stated intent to rely on context.

“It reads a single phrase … in isolation, rather than in context,” Ziegler wrote. “It is more sensible to conclude that sometimes a pedestrian way is not a sidewalk and the ‘as if’ language recognizes this fact.”