Sojenhomer, LLC owned and operated a pub near the intersection of County Highway G and State Highway 42 in the Village of Egg Harbor, Wisconsin.[1] After numerous residents voiced concerns about potential safety risks driving and walking along the intersection, the Village of Egg Harbor condemned a .009-acre strip of land on Sojenhomer’s property that Sojenhomer used for parking.[2] The village’s purpose was to build a sidewalk along County Highway G, providing a “safe place for pedestrians to walk” near the intersection.[3]

Sojenhomer objected to the condemnation.[4] In a lawsuit brought in Door County Circuit Court, Sojenhomer argued that the village violated Wisconsin Statute § 32.015, which prohibits the use of condemnation to acquire property to establish or extend “a pedestrian way.”[5]

The Door County Circuit Court disagreed, finding that because a sidewalk is not a “pedestrian way” as defined in Wis. Stat. § 346.02(8)(a).[6] The Court of Appeals of Wisconsin, agreeing with Sojenhomer that “the general definition of a pedestrian way. . . plainly includes sidewalks,” reversed the Door County Circuit Court.[7] Thus, the question for the Wisconsin Supreme Court was straightforward: is a sidewalk a “pedestrian way” as the term is defined in § 346.02(8)(a)?

In an opinion authored by Justice Rebecca Dallet, the court answered in the negative.[9] The court determined that, “[w]hen read in context, the definition of pedestrian way in § 346.02(8)(a) does not include sidewalks,” and therefore that §§ 32.015 and 61.34(3)(b) did not prohibit the village from condemning Sojenhomer’s property.[10]

The majority began with the text of § 346.02(8), the statute that defines “pedestrian way” as the term is used in §§ 32.015 and 61.34(3)(b).[11] Section 346.02(8) provides:

(8) Applicability to pedestrian ways

(a) All of the applicable provisions of this chapter pertaining to highways, streets, alleys, roadways and sidewalks also apply to pedestrian ways. A pedestrian way means a walk designated for the use of pedestrian travel.

(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.[12]

According to the majority, several context clues indicate that the term “pedestrian way” does not include sidewalks.[13] First, § 346.08(b) states that a pedestrian way may be “made therefor as if such pedestrian way were a highway, street, alley, roadway or sidewalk.”[14] Per the majority, the use of “as if” “signals that one category (pedestrian ways) should receive the same treatment as a different category (sidewalks).”[15] This suggests that pedestrian ways and sidewalks are not the same.[16]

Second, § 346.02(8)(a) states that “all of the applicable provisions” of chapter 346 “pertaining to . . . sidewalks also apply to pedestrian ways.”[17] “But if sidewalks are pedestrian ways,” the majority reasoned, “then the rules of the road applicable to sidewalks would already apply to pedestrian ways.”[18] The circuit court had applied the surplusage canon to reach the same conclusion.[19] While the majority agreed with the circuit court’s conclusion, it held that use of the surplusage canon was not necessary “because the text itself indicates that these terms have separate, non-overlapping meanings.”[20]

Third, the majority reasoned that statutory history and the broader statutory context suggest that sidewalks are not “pedestrian ways.”[21] At the time the legislature introduced the term “pedestrian way,” which it defined as “a walk designated for the use of pedestrian travel,” the legislature had already adopted a definition of “sidewalk.”[22] A sidewalk was defined as “[t]hat portion of a highway between the curb lines and the adjacent property lines, unless local authorities designate otherwise.”[23] According to the majority, this history demonstrates that the legislature has always treated sidewalks and pedestrian ways as different concepts.[24] Notwithstanding its ordinary meaning, the term “‘sidewalk’ has—from the beginning—been a term of art whose meaning differs dramatically from the ordinary meaning of that word.”[25]

Moreover, over the years, the legislature largely refrained from using the term “pedestrian way,” suggesting that the legislature did not intend for the term to have the “broad” meaning Sojenhomer proposed.[26]

Finally, the majority attached significance to the legislature’s choice to omit sidewalks from the limitations on condemnation in §§ 32.015 and 61.34(3)(b).[27] Both statutes prohibit condemnation to establish or extend “a recreational trail,” a “bicycle way,” a “bicycle lane,” or a “pedestrian way.”[28] Sidewalks are a “ubiquitous feature of road projects across the state.”[29] “If the legislature wanted to prohibit the use of condemnation to build sidewalks anywhere in the state, then they could have done so clearly.”[30]

In a dissent joined by Justice Rebecca Bradley and Justice Brian Hagedorn, Chief Justice Annette Kingsland Ziegler disagreed with the majority’s interpretation.[31]

“Under a straightforward reading of the plain text of Wis. Stat. § 346.02(8),” the dissent explained, “sidewalks are a subset of pedestrian ways.”[32] The statute defines a “pedestrian way” as “a walk designated for the use of pedestrian travel.”[33] When the legislature enacted § 346.02(8), the term “walk” meant “[a] place laid out or set apart for walking, or resorted to by those who walk.”[34] Because a sidewalk is a “place laid out or set apart for walking,” it is a “pedestrian way.”[35]

The dissent argued that all sidewalks are “pedestrian ways,” but not all “pedestrian ways” are sidewalks.[36] Rather, a sidewalk is a type of pedestrian way.[37] Thus, the majority was wrong to suggest that the use of “sidewalk” and “pedestrian way” as separate terms implies that the terms have wholly distinct meanings.[38] An equally plausible explanation, the dissenters posited, is that “[a] sidewalk is always a pedestrian way, but the term ‘pedestrian way’ is broader than solely being a sidewalk.”[39]

Finally, the dissent criticized the majority’s characterization of the wider statutory context.[40] The fact that the legislature chose to omit “sidewalks” was tangential because “‘sidewalks’ are already incorporated by reference” through the term “pedestrian way.”[41]

Absent from the dissent was any discussion of statutory history.  The dissent, citing Wisconsin precedent, argued that “there is no need to consult extrinsic sources of interpretation, such as legislative history” when “statutory language is unambiguous.”[42]

Conclusion

While the debate among the justices focused on the meaning of a statute, Sojenhomer principally concerns the contours and limits of the government’s condemnation power. For some, whether a “sidewalk” is a “pedestrian way” might appear straightforward. But, as Sojenhomer demonstrates, emphasis on different interpretive tools—such as ordinary meaning, context, and canons of construction—can produce dramatically different interpretations. For Wisconsin property owners, these interpretations can have significant consequences.

 

[1] Sojenhomer LLC v. Village of Egg Harbor, 7 N.W.3d 455, 457 (Wis. 2024).

[2] Id. at 456-57.

[3] Id. at 456.

[4] Id. at 457.

[5] Id. at 457-58 n.5; Wis. Stat. § 32.015 (2024).

[6] Sojenhomer, 7 N.W.3d at 458.

[7] Id.; Sojenhomer LLC v. Vill. of Egg Harbor, 990 N.W.2d 267 (Wis. Ct. App. 2023), review granted, 4 N.W.3d 902, rev’d, 7 N.W.3d 455.

[8] Sojenhomer, 7 N.W.3d at 458-59 (“The issue in this case is whether sidewalks are ‘pedestrian ways’ as that term is defined in Wis. Stat. § 346.02(8)(a).”).

[9] Id. at 456.

[10] Id.

[11] Id. at 459.

[12] Wis. Stat. § 346.02(8).

[13] Sojenhomer, 7 N.W.3d at 460.

[14] Wis. Stat. § 346.02(8).

[15] Sojenhomer, 7 N.W.3d at 460.

[16] Id.

[17] Id.; Wis. Stat. § 346.02(8).

[18] Sojenhomer, 7 N.W.3d at 460.

[19] Id. at 458.

[20] Id. at 461.

[21] Id.

[22] Id.

[23] Id. (quoting Wis. Stat. § 85.10(24) (1949)).

[24] Id. at 462.

[25] Id.

[26] Id. at 462-63.

[27] Id. at 463.

[28] See Wis. Stat. §§ 32.015, 61.34(3)(b).

[29] Sojenhomer, 7 N.W.3d at 463.

[30] Id.

[31] Id. at 464 (Ziegler, C.J., dissenting).

[32] Id. at 468.

[33] Wis. Stat. § 346.02(8)(a) (emphasis added).

[34] Sojenhomer LLC, 7 N.W.3d at 468 (quoting Walk, Funk & Wagnalls New Standard Dictionary of the English Language 2671 (Medallion ed. 1940)).

[35] Id. at 468-69.

[36] Id. at 469.

[37] Id. (“A sidewalk—that portion of the highway created for the travel of persons on foot—is

clearly a subset of pedestrian ways . . . .”).

[38] Id. at 471.

[39] Id. (footnote omitted).

[40] Id. at 472-73.

[41] Id. at 473.

[42] See id. at 467 (quoting State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 681 N.W.2d 110, 124 (Wis. 2004)); id. at 474 (“Because the statute is neither ambiguous nor is there surplusage, we do not need to consult extrinsic sources to confirm statutory meaning.”).

 

 

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