COURT OF APPEALS

DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 14, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1589 Cir. Ct. No. 2020CV101

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

SOJENHOMER LLC,

PLAINTIFF-APPELLANT,

V.

VILLAGE OF EGG HARBOR,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Door County:

DAVID L. WEBER, Judge. Reversed and cause remanded for further
proceedings.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 HRUZ, J. Sojenhomer LLC, appeals an order granting the Village

of Egg Harbor’s motion for summary judgment on Sojenhomer’s claim pursuant
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to WIS. STAT. § 32.015 (2021-22).1 That statute provides that property may not be
acquired by condemnation to establish, among other things, a “pedestrian way.”
See id. WISCONSIN STAT. § 61.34(3)(b) similarly states that a village board may
not use the power of condemnation to acquire property for the purpose of
establishing a “pedestrian way.”

¶2 The Village sought to condemn part of Sojenhomer’s property to

establish a sidewalk, and the circuit court concluded, as a matter of law, that WIS.
STAT. § 32.015 did not prohibit the Village from doing so. In reaching that
conclusion, the court interpreted the definition of “pedestrian way” in WIS. STAT.
§ 346.02(8)(a), and it determined that a “pedestrian way” is distinct from a
“sidewalk” because the two terms are used together in both § 346.02(8)(a) and (b);
thus, the terms must be interpreted to have different meanings in order to avoid
surplusage.

¶3 Sojenhomer argues on appeal that a sidewalk is a “pedestrian way”

as that term is used in WIS. STAT. §§ 32.015 and 61.34(3)(b). We agree. The
general definition of a pedestrian way in WIS. STAT. § 346.02(8)(a) is broad and
plainly includes sidewalks because a sidewalk is a “walk designated for the use of
pedestrian travel.” See id. Although the term sidewalk and the term pedestrian
way are used together in both § 346.02(8)(a) and (b), we conclude that the two
terms do not create surplusage in the statutes because each term has a textual
function and neither term could be omitted without changing the meaning of those
provisions.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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¶4 We also conclude that the undisputed facts demonstrate that the

Village used the power of condemnation to establish a pedestrian way, in violation
of WIS. STAT. §§ 32.015 and 61.34(3)(b). Indeed, the Village condemned part of
Sojenhomer’s property with a plan to construct a sidewalk—designated for
pedestrian travel—on that property. The Village’s installation of a street light on
the condemned property and the Village’s desire to address safety concerns by
installing a sidewalk do not provide a basis for the Village to condemn
Sojenhomer’s property in violation of §§ 32.015 and 61.34(3)(b). We therefore
reverse the circuit court’s grant of summary judgment to the Village and remand
for further proceedings consistent with this opinion.

BACKGROUND

¶5 Sojenhomer owns a parcel of real property nestled between County

Highway G and State Highway 42 where the two roads converge in the Village of
Egg Harbor. Sojenhomer’s property is home to the Shipwrecked Brew Pub and
Restaurant. Beginning in about 2015, the Village began to discuss improving the
safety of Highway G, which largely focused on “installing a sidewalk.” The
Village had received numerous complaints regarding the road, including that the
road “was too narrow” and lacked both adequate parking and “a safe place for
pedestrians to walk.” In particular, pedestrians traveling by foot were “forced to
utilize the road” where Highway G abutted the west side of Sojenhomer’s
property.

¶6 The Village subsequently retained McMahon Associates to

determine what improvements could be made to Highway G and Highway 42.
Michael Simon, a civil engineer with McMahon Associates, summarized “several
deficiencies” with Highway G in a 2016 email to a senior executive with

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Wisconsin Public Service. Simon noted that the then-existing road had “no
discernable ditches or storm sewer,” which “results in on-street flooding during
large rain events as well as icing issues in the winter months.” Simon also noted
that “[t]here is no continuous sidewalk for pedestrians” and that pedestrians must
share the road with motor vehicles and bicycles. “During peak season,” Simon
explained, “the effective width of the roadway is narrowed due to parking on both
sides of the roadway which further reduces the area available for pedestrians.” In
addition, Simon stated that “[p]edestrians primarily utilize the west side” of
Highway G, and, in order to access the nearby “Bird Trail,” they must cross
Highway G at a curve in the road where both pedestrians and vehicles have limited
visibility. Simon said all of these concerns were “safety issue[s]” that the Village
wanted to correct.

¶7 The Village, in conjunction with McMahon Associates, developed a

plan to address these deficiencies. The plan proposed that Highway G be
“urbanized with [a] storm sewer,” that parking be limited to one side of the road,
that a sidewalk be constructed on the east side of the road—the side on which
Sojenhomer’s property sits—and that decorative street lighting be installed on
both sides of the road. The Village eventually reached an agreement with Door
County to share some of the costs of the proposed project on Highway G.
Although the County had planned to mill and resurface Highway G in 2018 or
2019, the County delayed those improvements to coincide with the Village’s
reconstruction of the road. The Village subsequently issued a relocation order
pursuant to WIS. STAT. § 32.05, authorizing the Village to acquire certain real
estate to complete the proposed improvements.

¶8 In February 2020, the Village sent Sojenhomer a “written offer to

purchase fee title to 0.009 acres of additional right of way and a temporary limited

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easement of 0.071 acres of [Sojenhomer’s property].” The offer explained that the
land was “needed for [the] Village[’s] … right of way reconstruction of
[Highway G].” In response, Sojenhomer obtained an appraisal of the Village’s
proposed acquisition and temporary limited easement, which valued Sojenhomer’s
loss at nearly three times the amount offered by the Village. Sojenhomer then sent
that appraisal to the Village. The Village, in turn, served Sojenhomer a
jurisdictional offer nearly doubling the amount of money originally offered, but
Sojenhomer rejected that offer. See WIS. STAT. § 32.05(3).

¶9 In August 2020, Sojenhomer filed this action seeking to enjoin the

Village from acquiring the desired portion of Sojenhomer’s property through
condemnation.2 Sojenhomer alleged that the Village was seeking to condemn its
property to construct a sidewalk on the east side of Highway G. Sojenhomer
further alleged that “[t]he Village’s condemnation of [its] property is only
necessary to construct a sidewalk,” and, therefore, the Village’s condemnation “is
in violation of WIS. STAT. § 32.015.”

¶10 The Village filed an answer to Sojenhomer’s complaint and then

immediately filed a motion for judgment on the pleadings. The Village argued,
among other things, that WIS. STAT. § 32.015 does not prohibit a municipality
from condemning property to install a sidewalk because a sidewalk is not a
“pedestrian way,” as that term is used in § 32.015. In response, Sojenhomer filed
a motion requesting that the circuit court strike both the Village’s answer and its

2
Although not explicitly alleged in the complaint or discussed by the parties in their
appellate briefing, Sojenhomer’s complaint appears to fall under WIS. STAT. § 32.05(5), which
allows a property owner to commence an action “contest[ing] the right of the condemnor to
condemn the property described in the jurisdictional offer.” See id.

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motion for judgment on the pleadings and that the court enter a default judgment,
arguing that the Village had failed to file its answer within the statutory deadline.

¶11 The circuit court held a hearing on the motions and concluded that
the Village had not filed a timely answer. Nonetheless, the court determined that
it could not enter a default judgment unless Sojenhomer’s complaint had stated a
claim upon which relief could be granted. See Davis v. City of Elkhorn, 132
Wis. 2d 394, 398-99, 393 N.W.2d 95 (Ct. App. 1986).

¶12 When considering whether Sojenhomer’s complaint had properly

stated a claim, the circuit court recognized that the pertinent issue, as framed by
the parties, was whether a “sidewalk” constitutes a “pedestrian way” for purposes
of applying WIS. STAT. § 32.015. The court noted that a sidewalk is considered
part of a highway or street under WIS. STAT. §§ 340.01(58) and 66.0907,
respectively, and that a sidewalk is “within the road right of way.” In contrast, the
court observed that a pedestrian way “is a walk for pedestrians, but it is not part of
any highway or street.” The court therefore determined that “no sidewalks are
pedestrian ways and no pedestrian ways are sidewalks. This is true even though
both sidewalks and pedestrian ways are walks for use of pedestrian travel.”

¶13 The circuit court further explained that it had

to construe statutes to not render any part of them

superfluous. To conclude that sidewalks are mere subsets
of pedestrian[] ways would be to render the language about
sidewalks in [WIS. STAT. §] 346.02(8)(a)—and (b), by the
way—superfluous. The fact that this section uses the term
“sidewalks” and “pedestrian ways” implies that one is not
simply a subset of the other, but that the two are
qualitatively different from one another. If they were the
same, there would be no reason to mention the word

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“[sidewalks]” at all.[3] They could have just mentioned

pedestrian ways.

The court concluded that WIS. STAT. § 32.015 “does not prohibit condemnation
under the undisputed facts” nor does it “prohibit a Village from acquiring land to
expand a highway,” including one that will contain a sidewalk. Thereafter, the
court allowed the parties to submit further briefing on the procedural posture of
the case, but the court later concluded that Sojenhomer’s complaint must be
dismissed for failing to state a claim upon which relief could be granted.

¶14 Before the circuit court entered an order dismissing Sojenhomer’s

complaint, Sojenhomer filed an amended complaint. The court, in turn, ordered
the Village to file an answer to the amended complaint and set a deadline for
dispositive motions. The Village subsequently filed an answer, and the parties
commenced discovery.

¶15 As part of that discovery, Sojenhomer deposed Simon. Simon

testified that “the primary reason for” the Highway G project was to improve
“[w]alkability,” but the project also attempted to address “drain problems and
other issues.” Using a map that depicted the Village’s plans for the Highway G
project, Simon described some of the intended improvements around
Sojenhomer’s property. In particular, Simon explained that the yellow
highlighting on the map depicted the part of the proposed sidewalk located “within
the existing right-of-way.” Simon noted that the edge of the yellow highlighting
“would be the back of [the] curb” and that none of the condemned property

3
The circuit court actually said “streets” in this sentence, but it appears to have
misspoken in this regard. Based on the context of the court’s discussion, we believe the court
intended to say “sidewalks.”

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contained any part of the curb or gutter. Simon further testified that the pink
highlighting on the map represented “the part of the sidewalk that is on the
condemned property” and that the green highlighting on the map represented the
part of the condemned property “needed” to install street lighting and a conduit for
the electrical wires to those lights. Finally, Simon stated that the orange
highlighting on the map was a temporary limited easement “between the proposed
sidewalk and the existing building” that would be “5-inch concrete sidewalk.”4

¶16 When asked whether there were any “highway purposes” for
acquiring the green highlighted area—other than for the street lighting—Simon
stated, “There’s a little more room for snow to go, I guess. That would be about
the only other reason for it.” Simon immediately acknowledged, however, that
Sojenhomer’s property was not being condemned to increase the available space
for snow. Simon also testified that the location of the street light in the green
highlighted area was influenced by the need to create sufficient space for
pedestrians to walk on the sidewalk. Simon conceded that “[i]f not for the
sidewalk, … the Village would not have needed to condemn … the property for
the light pole” and that the Village “would have designed around the available
right-of-way.” After summarizing Simon’s testimony, Sojenhomer’s counsel
asked Simon whether there were “[a]ny other highway purposes for which this
property was condemned[.]” Simon responded: “No, just a little more room for
pedestrians to walk.”

4
For reference, the yellow highlighted area is the closest to Highway G, followed by the
pink, green and orange highlighted areas, respectively. As noted, the yellow highlighted area was
already part of the existing right-of-way, but the pink, green and orange highlighted areas make
up the portion of land that the Village acquired through condemnation.

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¶17 The parties later filed cross-motions for summary judgment, and, in
an oral ruling, the circuit court granted the Village’s motion. The court again
recognized that the relevant issue was whether a sidewalk constitutes a pedestrian
way. The court stated that “if [a sidewalk] is [a pedestrian way], then the Village
may not obtain the Sojenhomer property by eminent domain because there’s really
no question that the area that they took from Sojenhomer was used for a
sidewalk.” The court nevertheless concluded—“for the same reasons” discussed
in its prior oral ruling—that “a sidewalk is not a pedestrian way,” and, therefore,
WIS. STAT. § 32.015 did not prohibit the Village from condemning Sojenhomer’s
property.

¶18 Sojenhomer now appeals. Additional facts will be provided as

necessary below.

DISCUSSION

¶19 We review a circuit court’s decision to grant a motion for summary

judgment de novo, applying the same methodology as the circuit court. See Quick
Charge Kiosk LLC v. Kaul, 2020 WI 54, ¶9, 392 Wis. 2d 35, 944 N.W.2d 598.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2).

¶20 This appeal presents an issue of first impression. Specifically, we

must determine whether a sidewalk is a “pedestrian way,” as that term is used in
WIS. STAT. §§ 32.015 and 61.34(3)(b) and as it is defined in WIS. STAT.

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§ 346.02(8)(a).5 To date, no Wisconsin appellate court has interpreted or applied

the meaning of the term “pedestrian way” in any of these three statutes.6 The
interpretation and application of a statute are questions of law that we review
de novo. Quick Charge Kiosk, 392 Wis. 2d 35, ¶9.

¶21 When interpreting condemnation statutes, such as WIS. STAT.

§§ 32.015 and 61.34(3), we strictly construe the condemnor’s power and the
exercise thereof because the power of eminent domain is “extraordinary.”
Standard Theatres v. DOT, 118 Wis. 2d 730, 742-43, 349 N.W.2d 661 (1984)
(citation omitted); see also Spiegelberg v. State, 2006 WI 75, ¶31, 291 Wis. 2d
601, 717 N.W.2d 641. “[T]he rule of strict construction is intended to benefit the
owner whose property is taken against his or her will.” Standard Theatres, 118
Wis. 2d at 743. To that end, statutory provisions favoring the property owner are
liberally construed. Id.

¶22 “[S]tatutory interpretation ‘begins with the language of the statute.’”

State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110 (citation omitted). “We give statutory language ‘its
common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or special definitional
meaning.’” Town of Rib Mt. v. Marathon County, 2019 WI 50, ¶9, 386 Wis. 2d
632, 926 N.W.2d 731 (citation omitted). We also interpret statutory language “in

5
Several other statutes contain similar language restricting condemnation to establish or
extend a pedestrian way. See WIS. STAT. §§ 27.01(2)(a), 27.019(10), 27.05(3), 27.065(1)(a),
27.08(2)(b)-(c), 59.52(6)(a), 60.782(2)(d), 62.22(1)(b), 62.23(17)(am), 85.09(2)(a).
6
WISCONSIN STAT. § 32.015 along with the analogous language in other statutory
provisions, see supra note 5, were enacted in 2017. See 2017 Wis. Act 59.

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the context in which it is used; not in isolation but as part of a whole; in relation to
the language of surrounding or closely-related statutes; and reasonably, to avoid
absurd or unreasonable results.” Id. (citation omitted). Where possible, we
interpret statutory language in such a manner “to give reasonable effect to every
word, in order to avoid surplusage.” Kalal, 271 Wis. 2d 633, ¶46.

¶23 If the meaning of the statutory language is plain and unambiguous,

our inquiry ordinarily ends, and “we need not ‘consult extrinsic sources of
interpretation, such as legislative history.’” Milwaukee Dist. Council 48 v.
Milwaukee County, 2019 WI 24, ¶11, 385 Wis. 2d 748, 924 N.W.2d 153 (citation
omitted). A statute is not ambiguous simply because “there is a disagreement
about the statutory meaning.” Kalal, 271 Wis. 2d 633, ¶47. Rather, a statute is
ambiguous if its “language reasonably gives rise to different meanings.” Id.
(citation omitted).

I. The meaning of “pedestrian way” in WIS. STAT. §§ 32.015 and 61.34(3)(b)

¶24 A village board has the authority to acquire property through

condemnation to construct and establish streets. See WIS. STAT. § 61.34(3)(a)
(“Condemnation shall be as provided by [WIS. STAT.] ch. 32.”). A village board’s
ability to acquire property through condemnation, however, is subject to several
limitations. See, e.g., WIS. STAT. §§ 32.015, 61.34(3)(b). In particular, § 32.015
provides that “[p]roperty may not be acquired by condemnation to establish or
extend a recreational trail; a bicycle way, as defined in [WIS. STAT. §] 340.01(5s);
a bicycle lane, as defined in [§] 340.01(5e); or a pedestrian way, as defined in
[WIS. STAT. §] 346.02(8)(a).” Likewise, § 61.34(3)(b) imposes similar limitations
directly on a village board’s condemnation powers, including its power to acquire

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property for streets. See § 61.34(3)(a) (“Except as provided in par. (b), the village
board may acquire property … for … streets ….” (emphasis added)).

¶25 As noted earlier, the primary issue in this case is whether a sidewalk
is a “pedestrian way” as that term is used in both WIS. STAT. §§ 32.015 and
61.34(3)(b). Because both of those statutes employ the definition of “pedestrian
way” provided in WIS. STAT. § 346.02(8)(a), we shift our focus to that statute.

¶26 WISCONSIN STAT. § 346.02(8)(a) defines a “pedestrian way” as “a

walk designated for the use of pedestrian travel.” This plain language is both
simple and broad, and it does not place any limitations on where such “a walk” for
“pedestrian travel” might be located. Thus, a sidewalk appears to fall within this
general definition because a sidewalk is a “walk” designated for “pedestrian
travel.” See WIS. STAT. § 340.01(58) (“‘Sidewalk’ means that portion of a
highway between the curb lines, or the lateral lines of a roadway, and the adjacent
property lines, constructed for use of pedestrians.”); WIS. STAT. § 66.0907(1)
(“[A] sidewalk [may be placed] on either or both sides of [a] street. The sidewalk
shall be for the use of persons on foot ….”); Sidewalk, WEBSTER’S THIRD NEW
INT’L DICTIONARY (unabr. 1993) (defining “sidewalk” as “a walk for foot
passengers usu[ally] at the side of a street or roadway”).

¶27 The Village nevertheless argues—consistent with the circuit court’s

decision—that a sidewalk cannot constitute a pedestrian way because such an
interpretation would create surplusage in WIS. STAT. § 346.02(8). The Village
points out that § 346.02(8)(a) contains more language than simply the general
definition of “pedestrian way” and that this other language references both
“sidewalks” and “pedestrian ways.” Based on those references, the Village insists
that a sidewalk must be different from a pedestrian way because “[t]here is no way

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to reconcile the use of both terms within [§ 346.02(8)] without creating

surplusage.”

¶28 WISCONSIN STAT. § 346.02(8) provides in relevant part:

(a) All of the applicable provisions of this chapter

pertaining to highways, streets, alleys, roadways and
sidewalks also apply to pedestrian ways.…

(b) Public 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.

(Emphasis added.) Thus, the Village is correct that § 346.02(8) employs both the
term “sidewalk” and the term “pedestrian way” in two separate sentences and in
close proximity to one another.7 Although, in certain circumstances, the use of
two similar terms in the same sentence might suggest the terms have wholly
distinct meanings, we conclude that these provisions contain no surplusage if the
term pedestrian way is interpreted to include sidewalks.

¶29 As Sojenhomer correctly observes, the general definition of

pedestrian way in WIS. STAT. § 346.02(8)(a) is broader than the definition of a
sidewalk because a pedestrian way can—but need not—be adjacent to a roadway.
In other words, the term pedestrian way includes both: (1) sidewalks—i.e., walks

7
Sojenhomer argues that the first sentence of WIS. STAT. § 346.02(8)(a) “cannot be
imposed onto [WIS. STAT. §] 32.015” because the first sentence applies only within WIS. STAT.
ch. 346. In other words, Sojenhomer suggests that we cannot consider the first sentence of
§ 346.02(8)(a) when interpreting the meaning of “pedestrian way.” We disagree. Although the
first sentence of § 346.02(8)(a) refers to “provisions of this chapter,” nothing in that sentence
limits our ability to consider it when interpreting the term “pedestrian way.” Furthermore, we
must interpret “pedestrian way” in the context in which it is used. See Town of Rib Mt. v.
Marathon County, 2019 WI 50, ¶9, 386 Wis. 2d 632, 926 N.W.2d 731. Both the first sentence of
§ 346.02(8)(a) as well as § 346.02(8)(b) provide relevant context for determining the meaning of
“pedestrian way.”

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adjacent to roadway for the use of pedestrian travel, see WIS. STAT. § 340.01(58);
and (2) all other walks designated for pedestrian travel that are not adjacent to a
roadway, such as a walking path through a parcel of property.

¶30 With this understanding in mind, it becomes clear that interpreting

the term “pedestrian way” to include a “sidewalk” does not create surplusage in
WIS. STAT. § 346.02(8)(a). Section 346.02(8)(a) provides in plain terms that “[a]ll
of the applicable provisions of [WIS. STAT. ch. 346] pertaining to highways,
streets, alleys, roadways and sidewalks also apply to pedestrian ways.” Thus,
under para. (a), provisions pertaining to sidewalks in ch. 346 also apply to all
pedestrian ways.8 Because the term pedestrian ways is broader than the term
sidewalks, the inclusion of the term sidewalks in para. (a) makes the provisions
pertaining to sidewalks in ch. 346 applicable to all pedestrian ways that are not
sidewalks. Put differently, if the word “sidewalks” were omitted from para. (a),
then the provisions pertaining to sidewalks in ch. 346 would not apply to
pedestrian ways that are not sidewalks. Accordingly, the term “sidewalks” still
serves a necessary function even though the term “pedestrian ways” includes
sidewalks.

¶31 For similar reasons, interpreting the term pedestrian ways to include
sidewalks does not create surplusage in WIS. STAT. § 346.02(8)(b).
Section 346.02(8)(b) states that “[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.” Paragraph (b)

8
We note that WIS. STAT. ch. 346 contains several provisions that specifically pertain to
sidewalks. See, e.g., WIS. STAT. §§ 346.804, 346.805, 346.807.

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therefore allows assessments to be made for the purpose of installing public

utilities above or below a pedestrian way as if the pedestrian way were a sidewalk.
Again, because the term pedestrian way is broader than the term sidewalk, the
term sidewalk in para. (b) serves the purpose of permitting a pedestrian way that is
not a sidewalk to be treated as if it were sidewalk for assessment purposes. Like
para. (a), the term sidewalk in para. (b) could not be omitted without changing the
meaning of the statutory language.

¶32 Of course, we recognize that there is some overlap in WIS. STAT.

§ 346.02(8) by interpreting the term pedestrian way to include sidewalks, but such
overlap does not create surplusage or render any language meaningless.9 See State
v. Derenne, 102 Wis. 2d 38, 46-47, 306 N.W.2d 12 (1981) (concluding that
although the court’s “construction of [the terms ‘marijuana’ and
‘tetrahydrocannabinols’ in WIS. STAT. §] 161.14(4) … results in some ‘statutory
overlap,’” the court’s “construction does not render the term ‘marijuana’
meaningless”). Indeed, as just explained, neither the term “sidewalk” nor the term
“pedestrian way” could be omitted from the first sentence of § 346.02(8)(a) or
from para. (b) without changing the meaning of those provisions. Accordingly,
each term has a textual function in those sentences, such that neither term is mere

9
One need look no further than WIS. STAT. § 346.02(8) to see that statutes sometimes
contain terms that, by definition, overlap in some manner. Both § 346.02(8)(a) and (b) use the
terms “highway,” “street” and “alley” in the same sentence. A “highway” is defined as “all
public ways and thoroughfares and bridges on the same.” WIS. STAT. § 340.01(22). “Street,” in
turn, is defined as “every highway within the corporate limits of a city or village except alleys.”
Sec. 340.01(64) (emphasis added). Likewise, “alley” is defined as “every highway within the
corporate limits of a city, village or town primarily intended to provide access to the rear of
property fronting upon another highway and not for the use of through traffic.” Sec. 340.01(2)
(emphasis added). Therefore, both a “street” and an “alley” are a “highway.”

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surplusage.10 See Milwaukee Dist. Council 48, 385 Wis. 2d 748, ¶17 (“Neither
[term] is left without a textual function and every word is given meaning.”).

¶33 The Village also argues that if the legislature had intended to
prohibit the use of condemnation for acquiring property to establish or extend a
sidewalk, it would have explicitly included the term sidewalk in WIS. STAT.
§ 32.015. We disagree. As noted earlier, the general definition of “pedestrian
way” is broad and plainly includes sidewalks. The legislature therefore had no
need to include the term sidewalk in § 32.015 because the inclusion of the term
pedestrian way already made § 32.015 applicable to sidewalks.11

¶34 Moreover, the Village provides no basis for us to “assume” the

legislature would have explicitly included the term sidewalk in WIS. STAT.
§ 32.015 if it intended to impose § 32.015 on sidewalks. Importantly, such an
assumption is contrary to our interpretative rules for a condemnation statute. In
particular, we must strictly construe a condemnor’s power, and we must liberally
construe condemnation statutes that favor landowners. See Standard Theatres,
118 Wis. 2d at 742-43. Here, § 32.015 favors landowners because it prohibits the

10
The Village’s interpretation of “pedestrian way” suggests that a pedestrian way can
never be adjacent to a highway because it would then be a “sidewalk.” This interpretation,
however, appears to conflict with another statute that employs WIS. STAT. § 346.02(8)(a)’s
definition of “pedestrian way” in the context of highway construction. See WIS. STAT.
§ 84.01(35)(a)2., (b). Pursuant to § 84.01(35)(b), the Department of Transportation must, except
in certain circumstances, “give due consideration to establishing bikeways and pedestrian ways in
all new highway construction and reconstruction projects funded in whole or in part from state
funds or federal funds appropriated under [WIS. STAT. §] 20.395 or 20.866.” The use of the term
“pedestrian way” in this statute suggests that a pedestrian way can be part of a highway.
11
We recognize that some of the enumerated items in WIS. STAT. § 32.015 could
conceivably overlap. For instance, certain walking paths might meet the definition of both a
“recreational trail” and a “pedestrian way.” Unlike sidewalks, however, nothing in the statutory
language suggests that all recreational trails would qualify as a “pedestrian way.”

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use of condemnation for acquiring a landowner’s property to establish or extend

certain physical conditions, such as pedestrian ways. See § 32.015. We must
therefore liberally construe, albeit within reason, the meaning of the term
“pedestrian way” in that statute. See Standard Theatres, 118 Wis. 2d at 743.

¶35 The Village also appears to argue that because a sidewalk is, by
statutory definition, part of a highway, WIS. STAT. § 32.015 does not prohibit the
use of condemnation to establish or extend a sidewalk because the sidewalk
would, by definition, widen the existing highway, which is generally permissible.
See WIS. STAT. §§ 32.05 and 61.34(3)(a). The Village therefore suggests that it
could use the power of condemnation to expand Highway G and include a
sidewalk in that expansion.

¶36 To the extent the Village is attempting to argue that its power of
condemnation for highways and streets is unconstrained by WIS. STAT. §§ 32.015
and 61.34(3)(b), we disagree. As we explained earlier, a village board’s power to
use condemnation to establish a street or a highway is limited by both of those
statutes. See § 61.34(3)(a) (“Except as provided in par. (b), the village board may
acquire property, real or personal, within or outside the village,
for … streets …. Condemnation shall be as provided by [WIS. STAT.] ch. 32.”
(emphasis added)).

¶37 Furthermore, if the Village were correct and WIS. STAT. §§ 32.015
and 61.34(3)(b) did not constrain a village board’s condemnation powers with
regard to some highways and streets, then at least part of those statutes would be
rendered superfluous. Sections 32.015 and 61.34(3)(b) prohibit a village board
from using the power of condemnation to establish “a bicycle lane, as defined in
[WIS. STAT. §] 340.01(5e).” A bicycle lane is defined as “that portion of a

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roadway set aside by the governing body of any … village … for the exclusive use
of bicycles … and so designated by appropriate signs and pavement markings.”
Sec. 340.01(5e). A bicycle lane is therefore always a part of a roadway, which is
always part of a highway. See § 340.01(54) (“‘Roadway’ means that portion of a
highway between the regularly established curb lines or that portion which is
improved, designed or ordinarily used for vehicular travel, excluding the berm or
shoulder.” (emphasis added)). Although the width of a highway would increase if
a bicycle lane were established or extended on the highway, §§ 32.015 and
61.34(3)(b) plainly prohibit a village board from doing so. Accordingly, we reject
the Village’s suggestion that its condemnation powers are not limited under
§ 32.015 or § 61.34(3)(b) if the village is “widening” a highway or street.

¶38 In sum, we conclude that the term “pedestrian ways” in WIS. STAT.
§ 32.015 includes sidewalks because a sidewalk is a walk designated for
pedestrian travel, see WIS. STAT. §§ 340.01(58) and 66.0907(1), and it therefore
falls within the general definition of “pedestrian way” in WIS. STAT.
§ 346.02(8)(a).12 Such an interpretation does not create surplusage in either

12
Sojenhomer argues that WIS. STAT. § 32.015’s legislative history also supports its
interpretation of that statute. Sojenhomer points out that there were bills introduced into both the
assembly and senate recommending that § 32.015 (and all other statutes with analogous language)
be amended to remove the prohibition against using condemnation to establish or extend a bicycle
lane and to exclude sidewalks from the definition of pedestrian ways:

32.015 Limitations. Property may not be acquired by

condemnation to establish or extend a recreational trail; a bicycle
way, as defined in s. 340.01(5s); a bicycle lane, as defined in
s. 340.01(5e); or a pedestrian way, as defined in s. 346.02(8)(a),
that is not a sidewalk, as defined in s. 340.01(58).

(continued)

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§ 346.02(8)(a) or (b)—even though those provisions reference both sidewalks and

pedestrian ways—because neither term could be omitted without changing the
meaning of para. (a) or (b). Our interpretation of “pedestrian ways” in § 32.015 is
further buttressed by the rule that we must liberally construe condemnation
statutes that favor property owners.13

2017 A.B. 967; 2017 S.B. 794. Sojenhomer further observes that the Legislative Reference
Bureau explained the amendments as “eliminat[ing] the prohibition against certain entities, such
as a county board, a village board, or the Department of Transportation, using the power of
condemnation to acquire land or interests in land for the purpose of establishing or extending
bicycle lanes or certain pedestrian ways.” Id. (emphasis added). Although those amendments
were never enacted, Sojenhomer nevertheless argues that they show the legislature recognized
that the term pedestrian ways includes sidewalks.

The circuit court rejected this argument, concluding that multiple inferences could be
drawn from the proposed legislation that had never been enacted. We agree that this legislative
history could be interpreted in favor of either party’s interpretation. On the one hand, such a
proposal could suggest that the legislature interpreted the term “pedestrian ways” to include
sidewalks and that it intended that result by refusing to enact the amendments. On the other hand,
the failed amendments could suggest that the legislature believed the term “pedestrian ways” did
not include sidewalks, and, thus, the amendments were unnecessary. Accordingly, we do not rely
on these proposed amendments to support our interpretation of WIS. STAT. § 32.015.

Regardless, we have concluded that the meaning of “pedestrian ways” in WIS. STAT.
§§ 32.015 and 61.34(3)(b) is unambiguous because one could not reasonably interpret the general
definition of pedestrian ways in WIS. STAT. § 346.02(8)(a) as not including sidewalks. See State
ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶47, 271 Wis. 2d 633, 681 N.W.2d 110
(a statute is ambiguous if its “language reasonably gives rise to different meanings”). Thus, we
need not consult extrinsic sources of interpretation, such as legislative history. See id., ¶46.
13
Sojenhomer makes an alternative argument that WIS. STAT. § 32.015 prohibits the
Village from condemning the property because the Village seeks to extend “a recreational trail
and/or a pedestrian way” located nearby and known as Bird Trail. We need not reach this issue,
however, because we conclude WIS. STAT. §§ 32.015 and 61.34(3)(b) prohibit the Village from
acquiring Sojenhomer’s property to establish a pedestrian way. See Turner v. Taylor, 2003 WI
App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court of appeals need not address all issues
raised by the parties if one is dispositive).

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II. Application of WIS. STAT. §§ 32.015 and 61.34(3)(b) to the undisputed

facts of this case

¶39 The Village argues that even if a sidewalk is a pedestrian way under
WIS. STAT. §§ 32.015 and 61.34(3)(b), the circuit court properly granted summary
judgment in its favor because the undisputed facts show that the Village did not
acquire Sojenhomer’s property “only for” establishing a sidewalk. The Village
observes that the improvements to Highway G included: “a reconstructed
roadway, on-street parking, installation of improved crosswalks, a new
channelizing island at the State Highway 42 intersection, buried utilities, street
lighting, curb, gutter and sidewalk.” The Village argues that it has the power to
acquire property for these roadway purposes.

¶40 In response, Sojenhomer argues that Simon’s deposition testimony

refutes the Village’s claims that acquisition of Sojenhomer’s property was
necessary to accommodate all of the improvements to Highway G. Sojenhomer
points out that Simon testified that the only highway purpose for acquiring
Sojenhomer’s property through condemnation was to establish a sidewalk and that
if not for the sidewalk, the Village would have placed the street lighting
elsewhere.

¶41 As an initial matter, we recognize that the parties each seem to frame
the relevant inquiry—i.e., the purpose for which Sojenhomer’s property was
acquired by condemnation—in a different manner. The Village appears to suggest
that we may consider all of the improvements to the highway reconstruction
project, regardless of whether Sojenhomer’s property was needed for those
improvements. In contrast, Sojenhomer seems to argue that we should consider
only the Village’s reasons for acquiring Sojenhomer’s property. Neither party

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provides an explanation for its respective position; therefore, we turn to the

relevant statutes for guidance.

¶42 As discussed earlier, WIS. STAT. § 32.015 provides, in relevant part,

that “[p]roperty may not be acquired by condemnation to establish or extend … a
pedestrian way.” Likewise, WIS. STAT. § 61.34(3)(b) employs similar
language: “The village board may not use the power of condemnation to acquire
property for the purpose of establishing or extending … a pedestrian way ….”
Based on the language of these statutes, we agree with Sojenhomer’s approach
that the relevant inquiry is whether the Village is “us[ing] the power of
condemnation to acquire [Sojenhomer’s] property for the purpose of establishing
or extending … a pedestrian way.” See § 61.34(3)(b); see also § 32.015.

¶43 Here, the undisputed facts demonstrate that before the Village began
the process of condemning Sojenhomer’s property, the Village planned to
establish a sidewalk on the east side of Highway G, including on Sojenhomer’s
property. Simon stated in a 2016 email that

[t]here is no continuous sidewalk for pedestrians.

Currently pedestrians need to share the roadway with
motorized vehicles and bicycles. During peak season the
effective width of the roadway is narrowed due to parking
on both sides of the roadway which further reduces the area
available for pedestrians. This is a safety issue that the
Village is looking to correct with the project.

Simon confirmed in his deposition that the Village planned to establish a sidewalk,
explaining that a sidewalk was to be installed on the east side of Highway G from
Bird Trail until Highway 42. He also confirmed that one of the primary reasons
for the project was to improve “walkability” and that the sidewalk would be for
pedestrian travel. Thus, the undisputed facts show that the Village was seeking to

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establish a “pedestrian way” on the east side of Highway G. See WIS. STAT.
§§ 32.015, 61.34(3)(b), 346.02(8)(a).

¶44 The undisputed facts also demonstrate that the Village was seeking
to acquire Sojenhomer’s property through condemnation for the purpose of
establishing this pedestrian way. Simon explained in his deposition that a portion
of the planned sidewalk would be on the property acquired from Sojenhomer. He
also confirmed that the Village sought to acquire the property to create “a little
more room for pedestrians to walk.” Given these facts, no reasonable fact finder
could find or infer that the Village did not use the power of condemnation to
acquire Sojenhomer’s property for the purpose of establishing a pedestrian way.
See WIS. STAT. § 61.34(3)(b); see also WIS. STAT. § 32.015.

¶45 The Village’s focus on all of the improvements to Highway G is

misplaced. The plain language of WIS. STAT. § 32.015 prohibits the condemnation
of property “to establish … a pedestrian way.” See id. Although the Village’s
acquisition of Sojenhomer’s property might have been part of a broader
reconstruction project to Highway G, the undisputed facts show that, regardless of
the constellation of improvements made to Highway G, the Village still acquired
Sojenhomer’s property through condemnation “to establish” a pedestrian way.
Such an acquisition violates the plain language of WIS. STAT. §§ 32.015 and
61.34(3)(b).

¶46 The Village also argues that the condemnation of Sojenhomer’s

property cannot be invalidated because the Village was seeking to address
numerous safety concerns and “the Village would still need to establish some
other safety mechanism or barrier to separate vehicular and pedestrian traffic.”
We have no reason to doubt this assertion or the efficacy of the project. We are

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tasked, however, only with determining whether the condemnation of

Sojenhomer’s property, under the facts here, violated Wisconsin law, and the
Village fails to cite any legal authority supporting an argument that its safety
assertion is relevant to that analysis. See State v. Pettit, 171 Wis. 2d 627, 646-47,
492 N.W.2d 633 (Ct. App. 1992) (we need not address an argument that is
unsupported by legal authority). In any event, we note that neither WIS. STAT.
§ 32.015 nor WIS. STAT. § 61.34(3)(b) create any exceptions, much less an
exception for safety concerns.14 Thus, we reject the Village’s suggestion that it
had the right to condemn Sojenhomer’s property despite that action violating
§§ 32.015 and 61.34(3)(b).

CONCLUSION

¶47 We conclude that the circuit court erred by granting summary

judgment in favor of the Village. The undisputed facts demonstrate that the
Village used the power of condemnation to acquire Sojenhomer’s property to
establish a pedestrian way in violation of WIS. STAT. §§ 32.015 and 61.34(3)(b).
Summary judgment should have therefore been granted in Sojenhomer’s favor.
We reverse and remand for further proceedings consistent with this opinion.15

14
We recognize that some might disagree with the policy behind prohibiting the use of
condemnation to establish pedestrian ways. Nonetheless, we must “defer to the policy choices of
the legislature[,] and we assume that the legislature’s intent is expressed in the statutory language
it chose.” Warehouse II, LLC v. DOT, 2006 WI 62, ¶14, 291 Wis. 2d 80, 715 N.W.2d 213.
Because the plain language of WIS. STAT. §§ 32.015 and 61.34(3)(b) prohibit the condemnation
at issue in this case, we must enforce those statutes as written.
15
Neither party discusses the remedy for a violation of WIS. STAT. § 32.015, either
generally or in the context of this case; therefore, we do not address or express an opinion on that
issue.

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By the Court.—Order reversed and cause remanded for further

proceedings.

Recommended for publication in the official reports.

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