Wisconsin Statutes
Wis. Stat. § 32.10 (2026)
Condemnation proceedings instituted by property owner
✓ current as of July 2026
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32.1032.10 Condemnation proceedings instituted by property owner. If any property has been occupied by a person possessing the power of condemnation and if the person has not exercised the power, the owner, to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced. The petition shall describe the land, state the person against which the condemnation proceedings are instituted and the use to which it has been put or is designed to have been put by the person against which the proceedings are instituted. A copy of the petition shall be served upon the person who has occupied petitioner’s land, or interest in land. The petition shall be filed in the office of the clerk of the circuit court and thereupon the matter shall be deemed an action at law and at issue, with petitioner as plaintiff and the occupying person as defendant. The court shall make a finding of whether the defendant is occupying property of the plaintiff without having the right to do so. If the court determines that the defendant is occupying such property of the plaintiff without having the right to do so, it shall treat the matter in accordance with the provisions of this subchapter assuming the plaintiff has received from the defendant a jurisdictional offer and has failed to accept the same and assuming the plaintiff is not questioning the right of the defendant to condemn the property so occupied.
32.10 HistoryHistory: 1973 c. 170; Sup. Ct. Order, 67 Wis. 2d 575, 749 (1975); 1975 c. 218; 1977 c. 440; 1983 a. 236 s. 12.
32.10 AnnotationA cause of action under this section arises prior to the actual condemnation of the property if the complaint alleges facts that indicate the property owner has been deprived of all, or substantially all, of the beneficial use of the property. Howell Plaza, Inc. v. State Highway Commission, 66 Wis. 2d 720, 226 N.W.2d 185 (1975).
32.10 AnnotationIn order for a petitioner to succeed in the initial stages of an inverse condemnation proceeding, the petitioner must allege facts that, prima facie at least, show there has been either an occupation of the petitioner’s property under this section, or a taking, which must be compensated under the terms of the Wisconsin Constitution. Howell Plaza, Inc. v. State Highway Commission, 66 Wis. 2d 720, 226 N.W.2d 185 (1975).
32.10 AnnotationA landowner’s petition for inverse condemnation, like a municipality’s petition for condemnation, is not subject to demurrer. Revival Center Tabernacle of Battle Creek v. City of Milwaukee, 68 Wis. 2d 94, 227 N.W.2d 694 (1975).
32.10 AnnotationA taking occurred when a city refused to renew a lessee’s theater license because of a proposed renewal project encompassing the theater’s location, not when the city made a jurisdictional offer. Property is valued as of the date of the taking. Maxey v. Redevelopment Authority, 94 Wis. 2d 375, 288 N.W.2d 794 (1980).
32.10 AnnotationThe doctrine of sovereign immunity cannot bar an action for just compensation based on the taking of private property for public use even though the legislature has failed to establish specific provisions for the recovery of just compensation. Zinn v. State, 112 Wis. 2d 417, 334 N.W.2d 67 (1983).
32.10 AnnotationA successful plaintiff in an inverse condemnation action was entitled to litigation expenses, which included expenses related to a direct condemnation action. Expenses related to an allocation proceeding under s. 32.11 were not recoverable. Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 353 N.W.2d 812 (Ct. App. 1984).
32.10 AnnotationThe owner of property at the time of a taking is entitled to bring an action for inverse condemnation and need not own the property at the time of the commencement of the action. Riley v. Town of Hamilton, 153 Wis. 2d 582, 451 N.W.2d 454 (Ct. App. 1989).
32.10 AnnotationA constructive taking occurs when government regulation renders a property useless for all practical purposes. Taking jurisprudence does not allow dividing the property into segments and determining whether rights in a particular segment have been abrogated. Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996), 93-2831.
32.10 AnnotationThis section does not govern inverse condemnation proceedings seeking just compensation for a temporary taking of land for public use. Such takings claims are based directly on article I, section 13, of the Wisconsin Constitution. Andersen v. Village of Little Chute, 201 Wis. 2d 467, 549 N.W.2d 737 (Ct. App. 1996), 95-1677.
32.10 AnnotationThe reversal of an agency decision by a court does not convert an action that might otherwise have been actionable as a taking into one that is not. Once there has been sufficient deprivation of the use of property, there has been a taking even though the property owner regains full use of the land through rescission of the restriction. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609, 595 N.W.2d 730 (1999), 97-2869.
32.10 AnnotationWhen a regulatory taking claim is made, the plaintiff must prove that: 1) a government restriction or regulation is excessive and therefore constitutes a taking; and 2) any proffered compensation is unjust. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609, 595 N.W.2d 730 (1999), 97-2869.
32.10 AnnotationA claimant who asserted ownership of condemned land, compensation for which was awarded to another as owner with the claimant having had full notice of the proceedings, could not institute an inverse condemnation action because the municipality had exercised its power of condemnation. Koskey v. Town of Bergen, 2000 WI App 140, 237 Wis. 2d 284, 614 N.W.2d 845, 99-2192.
32.10 AnnotationThe state holds title to the waters of the state, and any private property interest in constructing facilities in those waters is encumbered by the public trust doctrine. A riparian owner does not have a right to unfettered use of the bed of the waterway or to the issuance of a permit to construct a structure, which weighs against a finding that a riparian owner suffered a compensable regulatory taking as the result of a permit denial. R.W. Docks & Slips v. State, 2001 WI 73, 244 Wis. 2d 497, 628 N.W.2d 781, 99-2904.
32.10 AnnotationTaking jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated but instead focuses on the extent of the interference with rights in the parcel as a whole. R.W. Docks & Slips v. State, 2001 WI 73, 244 Wis. 2d 497, 628 N.W.2d 781, 99-2904.
32.10 AnnotationIn order to state a claim of inverse condemnation under this section, the facts alleged must show either that there was an actual physical occupation by the condemning authority or that a government-imposed restriction deprived the owner of all, or substantially all, of the beneficial use of the owner’s property. E-L Enterprises, Inc. v. Milwaukee Metropolitan Sewerage District, 2010 WI 58, 326 Wis. 2d 82, 785 N.W.2d 409, 08-0921.
32.10 AnnotationA taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner’s property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property. The government airport operator bears responsibility if aircraft are regularly deviating from the Federal Aviation Administration flight patterns and those deviations result in invasions of the superadjacent airspace of neighboring property owners with adverse effects on their properties. Placing the burden on property owners to seek enforcement against individual airlines or pilots would effectively deprive the owners of a remedy for such takings. Brenner v. New Richmond Regional Airport Commission, 2012 WI 98, 343 Wis. 2d 320, 816 N.W.2d 291, 10-0342.
32.10 AnnotationIn order to constitute a taking, the property loss at issue must be the result of government action. The court is not free to disregard this plainly stated rule and search for inaction that might be considered to be the functional equivalent of action, as might be at issue for example in the negligence context. Fromm v. Village of Lake Delton, 2014 WI App 47, 354 Wis. 2d 30, 847 N.W.2d 845, 13-0014.
32.10 AnnotationSection 84.25 (3) authorizes the Department of Transportation to change access to a highway designated as controlled access in whatever way the department deems “necessary or desirable.” In controlled-access highway cases, abutting property owners are precluded from compensation for a change in access under s. 32.09 (6) (b) as a matter of law. However, exercises of the police power cannot deprive the owner of all or substantially all beneficial use of the property without compensation. If the replacement access is so circuitous as to amount to a regulatory taking of the property, compensation is due, and the abutting property owner may bring an inverse condemnation claim under this section. Provision of some access preserves the abutting property owner’s controlled right of access to the property. Reasonableness is not the standard to apply to determine if compensation is due under s. 32.09 (6) (b). Hoffer Properties, LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533, 12-2520.
32.10 AnnotationIt has long been settled that constitutional takings provisions interpose no barrier to the exercise of the police power of the state. Injury to property resulting from the exercise of the police power of the state does not necessitate compensation. A state acts under its police power when it regulates in the interest of public safety, convenience, and the general welfare of the public. The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. Claims for such “regulatory takings” must be brought under this section. Hoffer Properties, LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533, 12-2520.
Notes of Decisions
Cited in 78
cases (10 in the last 5 years), 1921–2026 · leading case: E-L Enter., Inc. v. Milwaukee Metro. Sewerage Dist., 2010 WI 58 (Wis. 2010).
E-L Enter., Inc. v. Milwaukee Metro. Sewerage Dist., 2010 WI 58 (Wis. 2010). “¶ 4 This case presents the following issues: (1) whether the Sewerage District's conduct constituted a taking of E-L's property without just compensation in violation of Article I, Section 13 of the Wisconsin Constitution and the Fifth Amendment of the United States…”
Hoffer Props., LLC v. State of Wisconsin, 2016 WI 5 (Wis. 2016). “Changes in access to a controlled-access highway may support a claim pursuant to Wis. Stat. § 32.10 for a regulatory taking of the property.”
Kohlbeck v. Reliance Const. Co., Inc., 2002 WI App 142 (Wis. Ct. App. 2002). “In addition, the court concluded that the Wis. Stat. § 32.10 claim had been brought in the wrong county, and therefore the court had no jurisdiction over that claim.”
Eberle v. Dane Cnty. Bd. of Adjustment, 595 N.W.2d 730 (Wis. 1999). “First, the court dismissed the Eberles' claim of inverse condemnation under Wis.”
Zinn v. State, 334 N.W.2d 67 (Wis. 1983). “The state contends that the inverse condemnation remedy provided in sec. 32.10, Stats. 1979-80, [7] is unavailable to the plaintiff because the state has not consented to suit under this provision and therefore the plaintiff's claim is barred by the doctrine of sovereign…”
Southport Commons, LLC v. DOT, 2021 WI 52 (Wis. 2021). “87 (2)(c), it determined that "[t]he statute is plain on its face. It does say occurred." Further, the circuit court stated that the damage occurred in 2009 at the latest and that accordingly the notice of claim was not timely filed.”
Vivid, Inc. v. Fiedler, 580 N.W.2d 644 (Wis. 1998). “On October 16, 1989, Vivid filed an action, requesting that inverse condemnation proceedings be commenced pursuant to Wis. Stat. § 32.10 . With this action, Vivid requested just compensation under § 32.”
Maxey v. Redevelopment Auth. of Racine, 288 N.W.2d 794 (Wis. 1980). “On September 21, 1976, Maxey filed a petition for inverse condemnation pursuant to sec. 32.10, Stats. 1975. 1 *381 The circuit court with which Maxey filed his petition for inverse condemnation dismissed Maxey’s action because the court concluded that the condemnor,…”
Warehouse II, LLC v. State Dep't of Transp., 2006 WI 62 (Wis. 2006). “61(3), if the judgment is at least $700 and at least 15% greater than the award made by the city.”
Brenner v. New Richmond Reg'l Airport Comm'n, 2012 WI 98 (Wis. 2012). “To perfect their claim, they filed a verified petition for inverse condemnation, under Wis. Stat. § 32.10 , in June 2008. ¶ 15. After a number of motions and pretrial proceedings designed in part to clarify the issues, the case proceeded to a court trial before Judge Cameron on…”
Scott N. Waller v. Am. Transmission Co., LLC, 2013 WI 77 (Wis. 2013). “ATC, on the other hand, asserts that there is no action for an uneconomic remnant, but if such an action were permitted, the claim should be raised either in a valuation proceeding before the county condemnation commission, or alternatively, in an inverse condemnation proceeding.”
Vivid, Inc. v. Fiedler, 497 N.W.2d 153 (Wis. Ct. App. 1993). “, began this proceeding October 17, 1989, against the Wisconsin Department of Transportation under sec. 32.10, Stats., to recover compensation for the alleged taking of two of its outdoor advertising signs located adjacent to Interstate Highway 90 approximately one mile south of…”
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