2024 WI 25

SUPREME COURT OF WISCONSIN

CASE NO.: 2021AP1589

COMPLETE TITLE: Sojenhomer LLC,

 Plaintiff-Appellant,

 v.

Village of Egg Harbor,

 Defendant-Respondent-Petitioner..

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 407 Wis. 2d 587, 990 N.W.2d 267

(2023 - published)

OPINION FILED: June 19, 2024 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: December 19, 2024 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Door 

JUDGE: David L. Weber 

JUSTICES:

DALLET, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, KAROFSKY, and PROTASIEWICZ, JJ., 

joined. ZIEGLER, C.J., filed a dissenting opinion, in which 

REBECCA GRASSL BRADLEY and HAGEDORN, JJ., joined.

NOT PARTICIPATING:

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs 

filed by Richard J. Carlson, Ashley C. Lehocky and Town Counsel 

Law & Litigation, LLC, Kaukauna. There was an oral argument by 

Ashley C. Lehocky. 

For the plaintiff-appellant, there was a brief filed by 

Tyler D. Pluff, Jon R. Pinkert, and Pinkert Law Firm LLP, 

Sturgeon Bay. There was an oral argument by Tyler D. Pluff. 
2

An amicus curiae brief was filed by Clayton P. Kawski,

assistant attorney general, with whom on the brief was Joshua L. 

Kaul, attorney general, on behalf of Wisconsin Department of 

Transportation. There was an oral argument by Clayton P. Kawski, 

assistant attorney general. 

An amicus curiae brief was filed by Ryan Sendelbach, Claire 

Silverman, and League of Wisconsin Municipalities, Madison, on 

behalf of League of Wisconsin Municipalities. 
2024 WI 25

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2021AP1589

(L.C. No. 2020CV101)

STATE OF WISCONSIN : IN SUPREME COURT

Sojenhomer LLC,

 Plaintiff-Appellant,

 v.

Village of Egg Harbor,

 Defendant-Respondent-Petitioner.

FILED

JUN 19, 2024

Samuel A. Christensen

Clerk of Supreme Court

DALLET, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, KAROFSKY, and PROTASIEWICZ, JJ., 

joined. ZIEGLER, C.J., filed a dissenting opinion, in which 

REBECCA GRASSL BRADLEY and HAGEDORN, JJ., joined.

REVIEW of a decision of the Court of Appeals. Reversed. 

¶1 REBECCA FRANK DALLET, J. The Village of Egg Harbor 

had a problem. The busy intersection of County Highway G and 

State Highway 42 was dangerous for both pedestrians and 

motorists. Building a sidewalk along the east side of County 

Highway G would help solve the problem, but it required 

condemnation of .009 acres of property belonging to Sojenhomer 

LLC.
No. 2021AP1589 

2

¶2 Sojenhomer contested the condemnation, arguing that it 

violates Wis. Stat. §§ 32.015 and 61.34(3)(b) (2021-22).1 Those 

statutes provide that property cannot be acquired by 

condemnation to establish or extend a "pedestrian way," a phrase 

that Wis. Stat. § 346.02(8)(a) defines as "a walk designated for 

the use of pedestrian travel." Sojenhomer argues that sidewalks 

are pedestrian ways, and that the Village therefore lacked 

authority to condemn the property to build a sidewalk. 

¶3 We disagree. When read in context, the definition of 

pedestrian way in § 346.02(8)(a) does not include sidewalks. 

Accordingly, we hold that §§ 32.015 and 61.34(3)(b) did not 

prohibit the Village from condemning Sojenhomer's property, and 

reverse the court of appeals' contrary decision. 

I

¶4 The Village began focusing on the safety issues with 

County Highway G around 2015. Residents had voiced numerous 

concerns about the road, including that it was "too narrow" and 

lacked both adequate parking and "a safe place for pedestrians 

to walk." 

¶5 In response to these complaints, the Village retained 

an engineering firm to study the problems and propose solutions. 

An engineer first summarized the issues, noting that the road 

had "no discernable ditches or storm sewer," which led to "onstreet flooding during large rain events as well as icing issues 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2021-22 version unless otherwise indicated.
No. 2021AP1589 

3

in the winter months." He also explained that there was "no 

continuous sidewalk for pedestrians," and that during the peak 

summer 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 was 

particularly problematic since pedestrians often used County 

Highway G to access a nearby trail, and had to cross the road at 

a curve with limited visibility. 

¶6 Together with the engineering firm, the Village 

developed a plan to address these safety concerns. The plan 

included adding storm sewers, buried utility lines, and new 

street lighting; limiting parking to the west side of the road; 

improving crosswalks; and adding a new sidewalk on the east side 

of the road where Sojenhomer's property sits. The Village 

planned to use its condemnation powers under Wis. Stat. §§ 32.05 

and 61.34 to acquire the property necessary for the project, 

including .009 acres that belonged to Sojenhomer.2 It is 

undisputed that the Village's sole reason for acquiring the .009 

acres was to build a sidewalk at that location. 

¶7 Sojenhomer operates the Shipwrecked Brew Pub and 

Restaurant (the dark structure on the right side of the photo 

below) on the property, and previously used the .009 acres for 

parking, as depicted here: 

 

2 The Village simultaneously sought to acquire a temporary 

limited easement over .071 acres of Sojenhomer's property for 

construction purposes. That temporary limited easement is not 

at issue in this case. 
No. 2021AP1589 

4

¶8 Sojenhomer brought suit pursuant to Wis. Stat. 

§ 32.05(5),3 which authorizes a landowner to challenge a 

municipality's right to take the landowner's property "for any 

reason other than that the amount of compensation offered is 

 

3 The court of appeals noted that even though Sojenhomer's 

complaint did not cite § 32.05(5), it "appear[ed] to fall under" 

that statute. See Sojenhomer LLC v. Village of Egg Harbor, 2023 

WI App 20, ¶9 n.2, 407 Wis. 2d 587, 990 N.W.2d 267. In its 

briefing before this court, Sojenhomer confirms that this case 

is a "challenge of [a] taking under Wis. Stat. Sec. 32.05(5)." 
No. 2021AP1589 

5

inadequate."4 Id.; see also Christus Lutheran Church v. DOT, 

2021 WI 30, ¶¶23-24, 396 Wis. 2d 302, 956 N.W.2d 837 (explaining 

that an action pursuant to § 32.05(5) may challenge a 

municipality's statutory authority to condemn the property). In 

its complaint, Sojenhomer contended that the condemnation was 

prohibited by Wis. Stat. § 32.015, which bars the use of 

condemnation to acquire property to establish or extend "a 

pedestrian way . . . ." See also Wis. Stat. § 61.34(3)(b) 

(imposing a similar restriction specifically on villages). 

According to Sojenhomer, sidewalks are pedestrian ways, and as a 

result, the Village may not condemn its property to build a 

sidewalk. 

¶9 The circuit court5 granted summary judgment in the 

Village's favor. As the circuit court explained, Sojenhomer's 

complaint depended on its central contention that sidewalks are 

 

4 The statutory process for condemnation differs depending 

on the reason the municipality wants to condemn the property. 

Here the parties agree that the Village was required to, and 

did, comply with the requirements of Wis. Stat. § 32.05, which 

applies when a village seeks to condemn property for "public

alleys, streets, [or] highways . . . ." Pursuant to the 

requirements of that section, the Village issued a relocation 

order, obtained an appraisal of Sojenhomer's property, provided 

that appraisal to Sojenhomer, and attempted to negotiate a sale. 

See § 32.05(1)(a), (2)(a)-(b), (2a). After Sojenhomer obtained 

a competing appraisal, and the parties were unable to reach a 

negotiated sale of the property, the Village made a 

substantially higher jurisdictional offer pursuant to 

§ 32.05(3). Sojenhomer did not accept the jurisdictional offer, 

and instead brought this case. See § 32.05(5). 

5 The Honorable David L. Weber of the Door County Circuit 

Court presided.
No. 2021AP1589 

6

"pedestrian ways" as defined in Wis. Stat. § 346.02(8)(a). The 

circuit court rejected that contention, however, concluding that 

"no sidewalks are pedestrian ways and no pedestrian ways are 

sidewalks." That conclusion rested on two premises. First, 

that sidewalks are defined by Wis. Stat. § 340.01(58) as part of 

the roadway, and municipalities indisputably may condemn 

property to expand roads. See Wis. Stat. § 32.05. And second, 

that reading "pedestrian way" to include sidewalks would result 

in surplusage, since § 346.02(8)(a) and (b) refer to both 

sidewalks and pedestrian ways. Based on these premises, the 

circuit court held that "a sidewalk is not a pedestrian way," 

and thus that § 32.015 did not prohibit the Village from 

condemning Sojenhomer's property to build the sidewalk. 

¶10 Sojenhomer appealed, and the court of appeals 

reversed. Like the circuit court, the court of appeals framed 

the central question as "whether a sidewalk is a 'pedestrian 

way' as that term is used in both Wis. Stat. §§ 32.015 and 

61.34(3)(b)." Sojenhomer LLC v. Village of Egg Harbor, 2023 WI 

App 20, ¶25, 407 Wis. 2d 587, 990 N.W.2d 267. The court of 

appeals concluded that all sidewalks are pedestrian ways because 

they fall within the "broad" and "general definition" of 

pedestrian way: "[A] walk designated for the use of pedestrian 

travel." Id., ¶26; see also § 346.02(8)(a). Additionally, the 

court of appeals rejected the circuit court's concern that this 

interpretation would result in surplusage in § 346.02(8)(a) and 

(b), because "the term pedestrian ways is broader than the term 

sidewalks." Sojenhomer, 407 Wis. 2d 587, ¶30. For that reason, 
No. 2021AP1589 

7

the court of appeals concluded that these statutes' use of both 

the terms "pedestrian way" and "sidewalk" "still serves a 

necessary function even though the term 'pedestrian ways' 

includes sidewalks." Id.; see also id., ¶31. Therefore, the 

court of appeals reversed the circuit court's decision 

dismissing the case.

II

¶11 This case involves statutory interpretation, which is 

a question of law that we review de novo. See, e.g., Clean 

Wis., Inc. v. DNR, 2021 WI 72, ¶10, 398 Wis. 2d 433, 961 

N.W.2d 611. "When interpreting statutes, we start with the text, 

and if its meaning is plain on its face, we stop there." Id. 

We also consider the broader statutory context, interpreting 

language consistently with how it is used in closely related 

statutes. Id. In doing so, we "generally give words their 

common, everyday meaning, but we give legal terms of art their 

accepted legal meaning." State v. Kizer, 2022 WI 58, ¶6, 403 

Wis. 2d 142, 976 N.W.2d 356 (quoting another source). 

III

¶12 The issue in this case is whether sidewalks are 

"pedestrian ways" as that term is defined in Wis. Stat. 

§ 346.02(8)(a). If sidewalks are pedestrian ways, then the 

parties agree that Wis. Stat. §§ 32.015 and 61.34(3)(b) 

prohibited the Village from acquiring Sojenhomer's property to 

build one. That is because both §§ 32.015 and 61.34(3)(b) 
No. 2021AP1589 

8

prohibit the use of condemnation to acquire property to 

establish or extend "a pedestrian way,"6 and it is undisputed 

that the reason the Village sought to acquire Sojenhomer's 

property was to build a sidewalk as part of its broader 

reconstruction of County Highway G. See §§ 32.015, 61.34(3)(b). 

If sidewalks are not pedestrian ways, however, the condemnation 

was permissible under the Village's general authority to condemn 

property for road projects. See Wis. Stat. § 61.34(3)(a) 

(stating that, except for the purpose of establishing or 

extending pedestrian ways, villages may acquire property by 

condemnation for public purposes, including roads, and that 

condemnation under that subsection "shall be as provided by ch. 

32"). 

¶13 Sojenhomer argues that sidewalks are pedestrian ways. 

It asserts that the definition of "pedestrian way" in 

§ 346.02(8)(a) is broad, and encompasses all "walk[s] designated 

for the use of pedestrian travel" including sidewalks, 

recreational trails, walking paths, and anything else designed 

for use by pedestrians, regardless of location. 

 

6 Section 32.015 states that "[p]roperty may not be acquired 

by condemnation to establish or extend . . . a pedestrian way, 

as defined in s. 346.02(8)(a)." Section 61.34(3)(b) states that 

village boards "may not use the power of condemnation to acquire 

property for the purpose of establishing or extending . . . a 

pedestrian way, as defined in s. 346.02(8)(a)." Neither party 

suggests that the slight differences in wording in these two 

sections (i.e. "to establish or extend" and "for the purpose of 

establishing or extending") is material. 
No. 2021AP1589 

9

¶14 The Village, however, urges a contextual reading of 

the definition of "pedestrian way," emphasizing how the rest of 

§ 346.02(8) and related statutes indicate that sidewalks and 

pedestrian ways are two entirely distinct, non-overlapping 

categories. Thus, the Village argues that the limitations on 

condemnation in §§ 32.015 and 61.34(3)(b) do not apply to 

sidewalks at all. 

¶15 We agree with the Village. The ordinary meaning of a 

statute is dictated by more than the literal meaning of a single 

phrase, read in isolation. Rather, as we have emphasized 

before, statutes must be interpreted in their entirety, and in 

context. See, e.g., Clean Wis., 398 Wis. 2d 433, ¶10. 

Following that directive, we first analyze the text of 

§ 346.02(8) as a whole. Then, we evaluate the statutory history 

and other related statutory provisions, before finally 

addressing the text of the limitations on condemnation contained 

in §§ 32.015 and 61.34(3)(b). With the full statutory context 

in mind, we conclude that the definition of "pedestrian way" in 

§ 346.02(8)(a), and the limitations on condemnation in §§ 32.015 

and 61.34(3)(b), unambiguously exclude sidewalks.7 Accordingly, 

 

7 When a condemnation statute is ambiguous, we "strictly 

construe the condemnor's power . . . while liberally construing 

provisions favoring the landowner . . . ." Waller v. Am. 

Transmission Co., LLC, 2013 WI 77, ¶72, 350 Wis. 2d 242, 833 

N.W.2d 764 (quoting another source). Because the statutes at 

issue are not ambiguous, we do not apply this principle of 

interpretation. See DOJ v. DWD, 2015 WI 114, ¶32, 365 

Wis. 2d 694, 875 N.W.2d 545 ("[A] provision can be construed 

'liberally' as opposed to 'strictly' only when there is some 

ambiguity to construe." (quoting another source)). 
No. 2021AP1589 

10

we hold that §§ 32.015 and 61.34(3)(b) did not prohibit the 

Village from condemning Sojenhomer's property to build a 

sidewalk. 

A

¶16 We begin with the full text of Wis. Stat. § 346.02(8), 

which 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. 

¶17 To summarize, § 346.02(8) does three things. First, 

it defines "pedestrian way" as "a walk designated for the use of 

pedestrian travel." § 346.02(8)(a). Second, it makes clear 

that all of the provisions of Wis. Stat. ch. 346 (titled "Rules 

of the Road") pertaining to highways, streets, alleys, roadways, 

and sidewalks also apply to pedestrian ways. See id. Third, 

and finally, it specifies that utilities may be installed above 

or below pedestrian ways, and assessments may be made for 

pedestrian ways, "as if" the pedestrian way were a sidewalk (or 

a highway, street, alley, or roadway). § 346.02(8)(b).

¶18 Reading the text of this section as a whole, we find 

several indications that the definition of pedestrian way does 
No. 2021AP1589 

11

not include sidewalks. For starters, both § 346.02(8)(a) and 

(b) use the terms "sidewalk" and "pedestrian way" in ways that 

signify that each term has a separate, non-overlapping meaning. 

See Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133, ¶17, 359 

Wis. 2d 385, 856 N.W.2d 874 (explaining that when statutes use 

different terms "we generally consider each [term] separately 

and presume that different words have different meanings" 

(quoting another source)). Section 346.02(8)(b) states that 

pedestrian ways shall be treated "as if" they were sidewalks for 

utility installation and assessment purposes. The phrase "as 

if" signals that one category (pedestrian ways) should receive 

the same treatment as a different category (sidewalks). That is 

the same way the legislature used "as if" in, for example, Wis. 

Stat. § 53.03, which states that Wisconsin courts "may treat a 

foreign country as if it were a state" in guardianship 

proceedings.8 See id. (emphasis added). Just as foreign 

 

8 In numerous other statutes, the legislature used the 

phrase "as if" in this same way. See, e.g., Wis. Stat. § 814.15 

(specifying that non-party assignees of civil causes of action 

are liable for costs "in the same manner as if the [assignee] 

were a party"); Wis. Stat. § 66.1105(5)(bf) (providing that 

specified tax forms and applications filed before May 31, 1999

should be treated "as if the forms and application had been 

filed on or before December 31, 1997"); Wis. Stat. § 815.40(2) 

(stating that heirs, devisees, or grantees who receive title to 

a portion of a lot or parcel may be treated "as if" they 

received title to "the whole lot or parcel" in certain 

instances); Wis. Stat. § 645.63(1) (noting that one type of 

contingent insurance claim "shall be considered and allowed as 

if there were no such contingency"). Each time, the meaning is 

the same: Something outside a specified category should be 

treated as if it falls within that category. 
No. 2021AP1589 

12

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. 

¶19 The language of § 346.02(8)(a) also suggests that 

sidewalks are not pedestrian ways. That paragraph makes the 

rules of the road pertaining to sidewalks also applicable to 

pedestrian ways. But if sidewalks are pedestrian ways, then the 

rules of the road applicable to sidewalks would already apply to 

pedestrian ways. The point here, to be clear, is not that 

reading the term "pedestrian way" to include sidewalks would 

result in surplusage. Although the court of appeals, the 

circuit court, and the parties all devoted substantial attention 

to whether the side-by-side references to sidewalks and 

pedestrian ways in § 346.02(8)(a) result in surplusage, we do 

not rely on the surplusage canon. See State v. Rector, 2023 WI 

41, ¶19, 407 Wis. 2d 321, 990 N.W.2d 213 ("[S]tatuory language 

is read where possible to give reasonable effect to every word, 

in order to avoid surplusage." (quoting another source)). 

Rather, we rely on the side-by-side references to sidewalks and 

pedestrian ways in § 346.02(8) simply because the text itself 

indicates that these terms have separate, non-overlapping 

meanings. 

¶20 Additionally, interpreting the definition of 

"pedestrian way" to include all sidewalks requires us to read 

additional language into § 346.02(8)(a) and (b). If Sojenhomer 

were right, and sidewalks are pedestrian ways, then we have to 
No. 2021AP1589 

13

read § 346.02(8)(a) and (b) as follows, with the additional 

language underlined:

a) All of the applicable provisions of this 

chapter pertaining to highways, streets, 

alleys, roadways and sidewalks also apply to 

pedestrian ways that are not sidewalks. 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 that is not a sidewalk were a 

highway, street, alley, roadway or sidewalk. 

As we have often said, we interpret the statutory language the 

legislature enacted, and will not read into a statute language 

that it does not contain or reasonably imply. See, e.g., State 

v. Hinkle, 2019 WI 96, ¶18, 389 Wis. 2d 1, 935 N.W.2d 271; State 

v. Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165. 

When we interpret the words the legislature enacted, without 

adding any additional language, it is apparent that 

§ 346.02(8)(a) and (b) simply clarify that a set of rules that 

would not otherwise apply to pedestrian ways (the rules of the 

road, utility-installation, and assessment provisions governing 

highways, streets, alleys, roadways, and sidewalks) are 

applicable. 

B

¶21 Statutory history and the broader statutory context 

lend further support to our conclusion that sidewalks fall 

outside the definition of pedestrian way. The phrase 

"pedestrian way" first entered the statutes in 1949, when the 
No. 2021AP1589 

14

legislature adopted Wis. Stat. § 85.10(21)(g) (1949-50), and had 

the same definition as it does today: "[A] walk designated for 

the use of pedestrian travel." Id.9 That same section, § 85.10 

(1949-50), already contained a definition of "sidewalk": "That 

portion of a highway between the curb lines and the adjacent 

property lines, unless local authorities designate otherwise." 

Wis. Stat. § 85.10(24) (1949-50). This definition of sidewalk 

was subsequently modified to the one in force today, "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."10 See Wis. Stat. § 340.01(58) (1957-

58). As this history demonstrates, the legislature has always 

treated sidewalks and pedestrian ways as different things, with 

separate statutory definitions. 

¶22 Additionally, this history shows that "sidewalk" has——

from the beginning——been a term of art whose meaning differs 

dramatically from the ordinary meaning of that 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. 

 

9 Additionally, the two other provisions relating to 

pedestrian ways in today's § 346.02(8)(a) and (b) also existed 

in substantially similar form in 1949. 

10 This modification clarified that sidewalks were not every 

portion of a highway between the curb lines and adjacent 

property lines, but only included such areas "constructed for 

use of pedestrians." See Wis. Stat. § 340.01(58) (1957-58); see 

also 1957 Senate Bill 99, explanatory note.
No. 2021AP1589 

15

Compare Wis. Stat. § 340.01(58), with Merriam-Webster, Sidewalk, 

https://www.merriam-webster.com/dictionary/sidewalk ("[A] 

usually paved walk for pedestrians at the side of a street."). 

Both "highway" and "roadway" are defined terms as well, meaning 

"all public ways and thoroughfares and bridges on the same" and 

"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." Wis. Stat. § 340.01(22), (54). Because these terms 

are statutorily defined, their ordinary, dictionary definitions 

are irrelevant. See Rector, 407 Wis. 2d 321, ¶10 ("In 

discerning plain meaning, we . . . give 'technical or speciallydefined words or phrases' their 'technical or special 

definitional meaning.'" (quoting another source)). 

¶23 The operative verbs in the separate statutory 

definitions of "pedestrian way" and "sidewalk" further 

demonstrate that these terms refer to different, distinct 

things. Pedestrian ways are "walk[s] designated for the use of 

pedestrian travel," while sidewalks are a portion of the 

adjoining highway or roadway "constructed for use of 

pedestrians." See §§ 346.02(8)(a), 340.01(58) (emphasis added). 

Whereas sidewalks are and always must be part of the adjoining 

highway, a pedestrian way may be created by designating a path 

or road as such. Indeed, the first time the legislature used 

the term pedestrian way (other than in § 85.10(21)(g) (1949-

50)), it did so in this manner. In that statute, Wis. Stat. 

§ 83.42(6) (1973-74), the legislature authorized county highway 
No. 2021AP1589 

16

committees (with the approval of the Department of 

Transportation's rustic roads board) to "[d]esignate a rustic 

road or portion thereof as a pedestrian way or bicycle way or 

both." See also 1983 Wis. Act 55 (repealing § 83.42(6) (1981-

82)). This too suggests that pedestrian way refers to something 

narrower and more specific than all sidewalks. 

¶24 If Sojenhomer's broad reading were nevertheless 

correct, then we might expect to find evidence of that expansive 

meaning in other statutes referring to pedestrian ways. But in 

fact, the phrase "pedestrian way" was all but ignored by the 

legislature for decades after it was adopted. Before 1973, the 

only place the statutes referenced pedestrian ways was in the 

statutes defining that term, § 346.02(8) (1971-72) and its 

predecessor, § 85.10(21)(g) (1949-50). And between 1973 (when 

the rustic roads statute we just mentioned was adopted) and 

2009,11 the legislature used the phrase "pedestrian way" just 

 

11 In 2009, the legislature adopted Wis. Stat. § 84.01(35) 

(2009-10), which provided (subject to exceptions identified in 

rules promulgated by the Department of Transportation) that the 

Department "shall ensure that bikeways and pedestrian ways are 

established in all new highway construction and reconstruction 

projects funded in whole or in part from state funds or federal 

funds." Section 84.01(35) was subsequently amended to require 

only that "the department . . . 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." § 84.01(35) (2021-22). 
No. 2021AP1589 

17

once. That reference, defining "skywalk" as "any elevated 

pedestrian way," occurred in an act creating a comprehensive 

statutory scheme authorizing first-class cities to establish 

pedestrian malls. See 1975 Wis. Act 255, § 2, codified at Wis. 

Stat. § 66.610(2)(o) (1975-76) ("'Skywalk' means any elevated 

pedestrian way."). Notably, the legislature did not use the 

phrase "pedestrian way" elsewhere in that same statutory scheme 

even when it would fit. For example, the legislature did not 

refer to pedestrian ways when it defined "pedestrian mall" to 

mean "any street, land or appurtenant fixture designed primarily 

for the movement, safety, convenience and enjoyment of 

pedestrians," even though a pedestrian mall would seemingly fall 

within Sojenhomer's broad reading of the definition of 

pedestrian way. See 1975 Wis. Act 255, § 2, codified at Wis. 

Stat. § 66.610(2)(l) (1975-76). The broader statutory history 

and context thus suggest that the legislature did not share 

Sojenhomer's broad understanding of the definition of pedestrian 

way. 

 

This statute sheds little light on whether sidewalks are

pedestrian ways. To be sure, it suggests there is some 

connection between pedestrian ways and highways. And highways 

can include sidewalks. See Wis. Stat. § 340.01(58). But this 

provision does not say whether a pedestrian way can be a part of 

a highway, let alone that sidewalks are a type of pedestrian 

way. Instead, it simply directs the Department to consider 

establishing pedestrian ways in the context of highway 

construction and reconstruction projects. See § 84.01(35). 
No. 2021AP1589 

18

C

¶25 Finally, we find it significant that the legislature 

chose to omit sidewalks from the limitations on condemnation in 

Wis. Stat. §§ 32.015 and 61.34(3)(b). These provisions both 

state that condemnation may not be used to acquire property 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)." 

See §§ 32.015; 61.34(3)(b). This list is specific and, notably, 

identifies both bicycle lanes——which, like sidewalks, are 

statutorily defined as part of a highway or roadway, see Wis. 

Stat. § 340.01(5e)——and bicycle ways. In other words, by using 

both the terms "bicycle way" and "bicycle lane," the legislature 

made particularly clear in both §§ 32.015 and 61.34(3)(b) that 

establishing or expanding on-road or off-road bicycle access 

through condemnation was not permitted. But when it came to 

pedestrian access, the legislature used only the terms 

"recreational trail" and "pedestrian way," neither of which 

expressly include sidewalks or any other part of a highway or 

roadway. See Wis. Stat. § 340.01(58). 

¶26 Sidewalks are not unusual or unfamiliar. Rather, they 

are a ubiquitous feature of road projects across the state. If 

the legislature wanted to prohibit the use of condemnation to 

build sidewalks anywhere in the state, then they could have done 

so clearly. And it would have been easy to do so, either by 

specifically referencing sidewalks in §§ 32.015 and 61.34(3)(b), 

or by adding them to the definition of pedestrian way in Wis. 
No. 2021AP1589 

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Stat. § 346.02(8)(a). But they did not. Instead, they 

incorporated a seldom-used phrase, "pedestrian way," which 

context and history indicate does not include sidewalks. Given 

that, we conclude that the definition of "pedestrian way" in 

§ 346.02(8)(a) does not include sidewalks, and accordingly hold 

that the limitations on condemnation in §§ 32.015 and 

61.34(3)(b) did not prohibit the Village from condemning 

Sojenhomer's property to build a sidewalk. 

By the Court.—the decision of the court of appeals is 

reversed.
No. 2021AP1589.akz

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¶27 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). 

Wisconsin Statutes provide that a village may not acquire 

private property by condemnation to establish a "pedestrian 

way."1 The Village of Egg Harbor ("Village") condemned part of 

Sojenhomer LLC's ("Sojenhomer") property to establish a 

sidewalk. Whether a sidewalk is a "pedestrian way" is the issue 

before our court. The trial court said "no." The court of 

appeals said "yes." I agree with the court of appeals. 

¶28 I agree with the analysis of the court of appeals, 

which held that the Village improperly used the power of 

condemnation to acquire Sojenhomer's property to build a 

sidewalk. The plain language of the statute demonstrates that 

the term "pedestrian way" is broadly defined, and includes 

sidewalks. A sidewalk——that portion of the highway created for 

the travel of persons on foot——is clearly a subset of pedestrian 

ways——walks set apart or assigned for the use of pedestrian 

travel. It is a straightforward, common sense 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." The Village exceeded its condemnation 

authority when it acquired Sojenhomer's property through 

condemnation to construct a sidewalk. In other words, a closer 

look at the plain meaning of the statutes reveals that all 

sidewalks are pedestrian ways, but that not all pedestrian ways 

are sidewalks. As a result, the Village cannot condemn this 

 

1 Wis. Stat. § 32.015; Wis. Stat. § 61.34(3)(b). 
No. 2021AP1589.akz

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property. I would affirm the decision of the court of appeals. 

Accordingly, I dissent. 

I

¶29 It is undisputed that pursuant to its eminent domain 

authority, the Village condemned Sojenhomer's property to build 

a sidewalk as part of its plan to reconstruct portions of County 

Highway G. Sojenhomer brought suit against the Village, arguing 

that the Village violated Wis. Stat. § 32.015's and Wis. Stat. 

§ 61.34(3)(b)'s prohibitions against villages using their 

condemnation powers for the purposes of establishing or 

extending a pedestrian way. Sojenhomer argues that the 

statutory definition of a pedestrian way is broad enough to 

include a sidewalk. Thus, as Sojenhomer argues, the Village 

violated the statute when it condemned and acquired his property 

to construct a sidewalk, as a sidewalk is a subset of a 

pedestrian way. 

¶30 The Village argues that it took Sojenhomer's property 

to construct a sidewalk, not a pedestrian way, and so the taking 

was justified pursuant to their condemnation powers. In other 

words, the Village argues that the two terms have no overlap and 

a sidewalk is not a pedestrian way. 

¶31 The parties filed cross-motions for summary judgment. 

The circuit court denied Sojenhomer's motion for summary 

judgment. The circuit court agreed with the Village that 

pedestrian ways and sidewalks are two distinct terms and granted 

the Village's summary judgment motion. In its accompanying 

order, the circuit court concluded that as a matter of law, the 
No. 2021AP1589.akz

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Village did not exceed Wis. Stat. § 32.015's restrictions on its 

condemnation authority when the Village condemned Sojenhomer's 

property to, among other things, construct a sidewalk. The 

circuit court interpreted Wis. Stat. § 346.02(8)(a)'s 

"pedestrian way" as separate and distinct from its definition of 

a sidewalk, based at least in part on the fact that both terms 

appear in the statute, so the Legislature would have intended 

the terms to have different and distinct meanings to avoid 

surplusage. The circuit court treated pedestrian ways as 

separate and distinct from sidewalks. 

¶32 Sojenhomer appealed. The court of appeals reversed 

the circuit court's grant of summary judgment to the Village. 

Agreeing with Sojenhomer, the court of appeals held the general 

definition of a pedestrian way in Wis. Stat. § 346.02(8)(a) is 

"broad" enough that a pedestrian way "plainly" includes 

sidewalks. Sojenhomer LLC v. Village of Egg Harbor, 2023 WI App 

20, ¶2, 407 Wis. 2d 587, 990 N.W.2d 267. The court of appeals 

continued:

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 adjacent to a 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. 

Id., ¶29.

¶33 The court of appeals determined that interpreting 

pedestrian ways in this way would not create surplusage in Wis. 
No. 2021AP1589.akz

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Stat. § 346.02(8)(a). "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." Sojenhomer, 407 Wis. 2d 587, ¶30. The court of 

appeals also determined that interpreting pedestrian ways in 

this way would not create surplusage in Wis. Stat. 

§ 346.02(8)(b) either. "[B]ecause 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 a sidewalk for assessment 

purposes." Id., ¶31. The court of appeals concluded 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.

. . .

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.

. . .

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.

Id., ¶¶3, 30, 32.

¶34 Hence, all sidewalks are a type of the broader defined 

pedestrian way. But not all pedestrian ways are sidewalks. 
No. 2021AP1589.akz

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Accordingly, the court of appeals held that for purposes of 

interpreting and applying Wis. Stat. § 32.015 and Wis. Stat. 

§ 61.34(3)(b), a sidewalk is a pedestrian way, so "the Village 

used the power of condemnation to establish a pedestrian way, in 

violation of [§ ]32.015 and [§ ]61.34(3)(b)." Id., ¶4. 

¶35 The court of appeals also considered the Village's 

public safety concerns and concluded neither Wis. Stat. § 32.015 

nor Wis. Stat. § 61.34(3)(b) "create any exceptions, much less 

an exception for safety concerns." Id., ¶46. Thus, the court 

of appeals reasoned that when the Village used its powers of 

condemnation to acquire Sojenhomer's property to construct a 

sidewalk, the Village violated § 32.015's and § 61.34(3)(b)'s 

prohibitions against a village acquiring property through its 

condemnation authority to establish or extend a pedestrian way. 

¶36 Unlike my colleagues, I would affirm the decision of 

the court of appeals. Sound statutory construction principles 

dictate that a sidewalk is a pedestrian way, but a pedestrian 

way need not be limited to a sidewalk. It is the Legislature 
No. 2021AP1589.akz

6

that legislates policy choices, not the court.2 So, we must 

analyze the plain language of the statutes to find the statute's 

plain meaning.

II

¶37 This case requires us to interpret and consider the 

term "pedestrian way" in Wis. Stat. § 32.015 (and its corollary 

Wis. Stat. § 61.34(3)(b)).3 More specifically, if a "sidewalk" 

is a "pedestrian way," then the Village is statutorily forbidden 

from seizing Sojenhomer's private property via condemnation in 

order to construct a sidewalk. If a "sidewalk" is not a 

 

2 "Judicial deference to the policy choices enacted into law 

by the legislature requires that statutory interpretation focus 

primarily on the language of the statute." State ex rel. Kalal 

v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 

681 N.W.2d 110. "In construing or interpreting a statute the 

court is not at liberty to disregard the plain, clear words of 

the statute." Id., ¶46 (quoting State v. Pratt, 36 Wis. 2d 312, 

317, 153 N.W.2d 18 (1967)). "We assume that the legislature's 

intent is expressed in the statutory language." Id., ¶44. We 

assume this because "[i]t is the enacted law, not the unenacted 

intent, that is binding on the public." Id.; see also Antonin 

Scalia, A Matter of Interpretation 17 (1997) ("It is the law 

that governs, not the intent of the lawgiver . . . . Men may 

intend what they will; but it is only the laws that they enact 

which bind us."). "Therefore, the purpose of statutory 

interpretation is to determine what the statute means so that it 

may be given its full, proper, and intended effect." Kalal, 271 

Wis. 2d 633, ¶44.

3 See Wis. Stat. § 32.015 ("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)."); Wis. Stat. § 61.34(3)(b) ("The village board 

may not use the power of condemnation to acquire property for 

the purpose of establishing or extending 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).").
No. 2021AP1589.akz

7

pedestrian way, then the Village is within its right to seize 

private property to construct or expand an existing roadway. 

¶38 "[S]tatutory interpretation begins with the language 

of the statute." State ex rel. Kalal v. Cir. Ct. for Dane 

Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 

(internal quotation marks omitted). "Statutory language is 

given its common, ordinary, and accepted meaning, except that 

technical or specially-defined words or phrases are given their 

technical or special definitional meaning." Id.; Bruno v. 

Milwaukee Cnty., 2003 WI 28, ¶8, 260 Wis. 2d 633, 660 N.W.2d 656 

("We have long recognized that when a court construes . . . [a] 

statute, words must be given their common meaning.'"). 

"[S]tatutory language is interpreted in the context in which it 

is used; not in isolation but as part of a whole . . . and 

reasonably, to avoid absurd or unreasonable results." Kalal, 

271 Wis. 2d 633, ¶46. "Statutory language is read where 

possible to give effect to every word, in order to avoid 

surplusage." Id.; see also State v. Martin, 162 Wis. 2d 883, 

894, 470 N.W.2d 900 (1991); Bruno, 260 Wis. 2d 633, ¶24; Crown 

Castle USA, Inc., v. Orion Constr. Grp. LLC, 2012 WI 29, ¶13, 

339 Wis. 2d 252, 811 N.W.2d 332. In determining meaning, "the 

context and structure of the statute[s] are important, and we 

interpret the statute[s] in light of 'surrounding or closelyrelated statutes.'" Masri v. LIRC, 2014 WI 81, ¶30, 356 

Wis. 2d 405, 850 N.W.2d 298 (quoting Kalal, 271 Wis. 2d 633, 

¶46); see also Aero Auto Parts, Inc. v. DOT, 78 Wis. 2d 235, 

239, 253 N.W.2d 896 (1977) (citation omitted) ("A statutory 
No. 2021AP1589.akz

8

subsection may not be considered in a vacuum, but must be 

considered in reference to the statute as a whole and in 

reference to statutes dealing with the same general subject 

matter.); Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, 

¶11, 400 Wis. 2d 417, 970 N.W.2d 1 ("A statute's context and 

structure are critical to a proper plain-meaning analysis.") 

¶39 "'If this process of ascertainment yields a plain, 

clear statutory meaning, then there is no ambiguity, and the 

statute is applied according to this ascertainment of its 

meaning.'" Kalal, 271 Wis. 2d 633, ¶46 (quoting Bruno, 260 

Wis. 2d 633, ¶20). If the meaning of the statute is plain, we 

ordinarily stop the inquiry. Id., ¶45. "Where statutory 

language is unambiguous, there is no need to consult extrinsic 

sources of interpretation, such as legislative history." Id., 

¶46. "[A] statute is ambiguous if it is capable of being 

understood by reasonably well-informed persons in two or more 

senses." Id., ¶47. The test is reasonableness: whether, in 

examining the language of the statute, "'well-informed persons 

should have become confused,' that is, whether the 

statutory . . . language reasonably gives rise to different 

meanings." Id. (quoting Bruno, 260 Wis. 2d 633, ¶21) (emphases 

in original). Thus, conducting a statutory interpretation 

analysis "involves the ascertainment of meaning, not a search 

for ambiguity." Id.

¶40 Canons of statutory construction, like dictionaries, 

aid courts in determining the common and approved usage of words 

in the statute to ascertain their plain meaning. Swatek v. 
No. 2021AP1589.akz

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Cnty. of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995); Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 140 (2012) ("Grammar Canon") ("Words are to be given 

the meaning that proper grammar and usage would assign them."); 

Scalia & Garner, supra at 56 ("Supremacy of Text Principle") 

("Of course, words are given meaning by their context, and 

context includes the purpose of the text."); see also Scalia & 

Garner, supra at 167 ("The Whole Text Canon") ("Context is a 

primary determinant of meaning."). 

¶41 Let's take a closer look at the statutory text. 

Wisconsin Stat. § 32.015 limits a village's power of 

condemnation and states: 

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).

(Emphasis added.)

¶42 Wisconsin Stat. § 61.34 echoes the same limitation on 

a village's condemnation power and addresses powers of village 

boards. This statute contains "express language"4 which limits a 

village's condemnation power:

The village board may not use the power of 

condemnation to acquire property for the purpose of 

establishing or extending 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).

 

4 See Wis. Stat. § 61.34(1) ("The powers hereby conferred 

shall be in addition to all other grants and shall be limited 

only by express language.").
No. 2021AP1589.akz

10

§ 61.34(3)(b) (emphasis added).

¶43 The crux of the issue is whether a sidewalk is a 

pedestrian way. Both Wis. Stat. § 32.015 and Wis. Stat. § 61.34 

note that the term "pedestrian way" is defined in Wis. Stat. 

§ 346.02(8)(a). We look next to the language of § 346.02(8), 

"Applicability to Pedestrian Ways," which provides: 

(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.

(Emphasis added). 

¶44 Under a straightforward reading of the plain text of 

Wis. Stat. § 346.02(8), sidewalks are a subset of pedestrian 

ways. A "pedestrian way" is statutorily defined as a walk 

designated for the use of pedestrian travel. Dictionaries from 

the time of § 346.08(a)'s adoption5 define a "walk" as:

A place laid out or set apart for walking, or resorted 

to by those who walk; a path, avenue, sidewalk, or 

promenade for pedestrians.

A place prepared or set apart for walking; a way for 

foot-passengers at the side of a street or road, or a 

sidewalk; a public promenade.

A place designed for walking; a path specially 

arranged or paved for walking; as a graveled walk in a 

 

5 The term "pedestrian way" first appeared in 1949, in Wis. 

Stat. § 85.10(21)(g). See 1949 Wis. Act 135, Laws of 1949. It 

was later renumbered, but the substance of the law has remained 

the same.
No. 2021AP1589.akz

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garden; sometimes, a sidewalk; an avenue for 

promenading, a promenade.

Walk, Funk & Wagnalls New Standard Dictionary of the English 

Language (Medallion ed. 1940) 2671; walk, The New Century 

Dictionary of the English Language 2168-69 (1952); walk, 

Webster's Second New Int'l Dictionary of the English Language

2867 (unabr. 1934). "Designated" means "to mark or point out; 

appoint; assign; set apart." Designate, The New Century 

Dictionary of the English Language 405 (1952); see also

designate, Funk & Wagnalls New Standard Dictionary of the 

English Language 688 (Medallion ed. 1940) ("[t]o mark out or 

name for a specific purpose"); designate, Webster's Second New 

Int'l Dictionary of the English Language 708 (unabr. 1934) 

("[t]o indicate or set apart for a purpose or duty."). Finally, 

"pedestrian" means "characterized by or connected with walking; 

of or belonging to movement on foot." Pedestrian, Funk & 

Wagnalls New Standard Dictionary of the English Language 1821 

(Medallion ed. 1940); see also pedestrian, Webster's Second New 

Int'l Dictionary of the English Language 1802-03 (unabr. 1934) 

("[o]f, or pertaining to, walking"); pedestrian, The New Century 

Dictionary of the English Language 1269-70 (1952) ("[g]oing or 

performed on foot; walking; pertaining to walking"). 

¶45 A sidewalk is evidently "a place laid out or set apart 

or designed for walking," a "way for foot-passengers at the side 

of a street or road," and "a path specially arranged or paved 

for walking." This understanding is reflected in the statutory 

definition of a sidewalk. "'Sidewalk' means that portion of a 

highway between the curb lines, or the lateral lines of a 
No. 2021AP1589.akz

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roadway, and the adjacent property lines, constructed for use of 

pedestrians." Wis. Stat. § 340.01(58). Wisconsin Stat. 

§ 66.0907(1) ("Sidewalks") further defines a sidewalk by its 

location and its purpose. A sidewalk is located "on either or 

both sides of the street" and "for the use of persons on foot." 

Reiterating a sidewalk's purpose again, § 66.0907(1) states,

"The sidewalk shall be kept clear for the use of persons on 

foot." See also 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").

¶46 Thus, a sidewalk——that portion of the highway created 

for the travel of persons on foot——is clearly a subset of

pedestrian ways——walks set apart or assigned for the use of 

pedestrian travel. It is a straightforward, common sense 

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." 

¶47 Furthermore, this plain meaning analysis yields the 

understanding that all sidewalks are pedestrian ways, but not 

all pedestrian ways are sidewalks. The statute defining a 

pedestrian way is broad, placing no limitations on where such a 

"walk designated for the use of pedestrian travel" may be 

located. It includes walks designated for the use of pedestrian 

travel whether or not that pedestrian way is located within a

highway, or whether it is a skywalk,6 or a walking path in a 

 

6 Wis. Stat. § 62.71(2)(o) ("'Skywalk'" means any elevated 

pedestrian way.").
No. 2021AP1589.akz

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public park not adjacent to the highway. In contradistinction, 

sidewalks are narrowly defined and constrained by their 

location. Sidewalks are that "portion of a highway between the 

curb lines, or the lateral lines of a roadway, and the adjacent 

property line . . . ." Wis. Stat. § 340.01(58). All sidewalks 

then are pedestrian ways. But pedestrian ways, which are not 

located within the highway right-of-way, like skyways or walking 

paths, are not sidewalks.

¶48 I return to the crux of the issue. A closer look at 

the plain meaning of the statutes reveals that all sidewalks are 

pedestrian ways, but that not all pedestrian ways are sidewalks. 

Because all sidewalks are pedestrian ways, the Village is 

statutorily forbidden from seizing Sojenhomer's private property 

via condemnation in order to construct a sidewalk.

III

¶49 The majority appears to concede that the statutory 

definition of a pedestrian way, "a walk designated for the use 

of pedestrian travel," Wis. Stat. § 346.02(8), would include 

sidewalks if not for "context."7 The majority skips right over 

the plain language of the statutes and their common sense 

 

7 See majority op., ¶3 ("When read in context, the 

definition of pedestrian way in § 346.02(8)(a) does not include 

sidewalks."); id., ¶15 ("The ordinary meaning of a statute is 

dictated by more than the literal meaning of a single phrase, 

read in isolation.") The Village also appears to have made this 

concession, that the statutorily defined term "pedestrian way" 

would normally include sidewalks, requesting this court hold

"the term 'pedestrian way' is not [a] broad term meant to 

encompass all walks designated for pedestrian travel . . . ." 

Elsewhere, the Village asserts "[s]idewalks[] . . . are designed 

solely for the purpose of pedestrian travel."
No. 2021AP1589.akz

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interpretation. Instead, the majority fixates on invented 

context. But the context it invents does not alter the common 

sense conclusion that the statutory definitions lead 

to: Sidewalks are pedestrian ways. The majority, starting at 

the wrong location, unsurprisingly arrives at the wrong 

destination. 

¶50 The meaning of these statutes is plain and 

unambiguous. Sidewalks are pedestrian ways. And, as it should, 

our interpretation of these statutes "involves the ascertainment 

of meaning, not a search for ambiguity." Bruno, 260 

Wis. 2d 633, ¶25. But, citing to Wis. Stat. § 346.02(8)(a), the 

majority rejects this plain meaning of the text. In its stead, 

the majority inserts its invented contextual meaning. 

¶51 Both Wis. Stat. § 32.015 and Wis. Stat. § 61.34(3)(b) 

use "pedestrian way" which is defined in Wis. Stat. 

§ 346.02(8)(a). Section 346.02(8)(a) broadly defines a 

"pedestrian way" as "a walk designated for the use of pedestrian 

travel." As the court of appeals rightly pointed out, "This 

plain language is both simple and broad"; it simply defines a 

pedestrian way, while not "plac[ing] any limitations on where 

such 'a walk' for 'pedestrian travel' might be located." 

Sojenhomer, 407 Wis. 2d 587, ¶26. 

¶52 Where a sidewalk is intended for the use of persons or 

pedestrians traveling on foot, a pedestrian way is "a walk 

designated for the use of pedestrian travel." Wis. Stat. 

§ 346.02(8)(a). While at first blush these definitions might 
No. 2021AP1589.akz

15

seem distinct, a thorough examination of the statutes reveals 

that these definitions meaningfully coexist statutorily. 

¶53 The majority nonetheless adopts the Village's argument 

that a sidewalk and a pedestrian way must be two distinct, nonoverlapping or nested terms because sidewalk and pedestrian way 

are listed independently, in close proximity, and in separate 

subsections of Wis. Stat. § 346.02(8). It rather simply 

concludes that because the two terms are listed independently, 

then they must be intended to be interpreted differently and can 

have no commonality nor overlapping meaning.8 Majority op., 

¶¶18-19. 

¶54 While we interpret statutes so as to avoid surplusage,9

when ascertaining statutory meaning, "surplusage is not to be 

 

8 The majority explicitly states it is not relying on the 

surplusage canon, as the lower courts did, in interpreting 

sidewalks and pedestrian ways to have "separate, non-overlapping 

meanings." Majority op., ¶19. However, the majority 

nonetheless appears to be implicitly relying on the surplusage 

canon. The majority argues that in interpreting Wis. Stat. 

§ 346.02(8)(a) and (b), if "sidewalks are pedestrian ways, then 

the rules of the road applicable to sidewalks would already 

apply to pedestrian ways" which would render language in para. 

(a) duplicative and unnecessary. Id. Presumably to avoid this 

duplicative result, the majority argues the terms "pedestrian 

way" and "sidewalk" must be absolutely distinct from each other. 

It is difficult to see how this argument does not reflect at 

least an implicit reliance on the surplusage canon. See Kalal, 

271 Wis. 2d 633, ¶46 ("Statutory language is read where possible 

to give reasonable effect to every word, in order to avoid 

surplusage." (quoting another source)); Antonin Scalia & Bryan 

A. Garner, Reading Law: The Interpretation of Legal Texts 174 

(2012) ("Surplusage canon") ("If possible, every word and every 

provision is to be given effect. None should be ignored. None 

should needlessly be given an interpretation that causes it to 

duplicate another provision or to have no consequence.").

9 See Kalal, 271 Wis. 2d 633, ¶46; Bruno v. Milwaukee Cnty., 

2003 WI 28, ¶24, 260 Wis. 2d 633, 660 N.W.2d 656. 
No. 2021AP1589.akz

16

assumed merely because the legislature has used a broad term." 

Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶150, 382 Wis. 2d 496, 

914 N.W.2d 21 (Ziegler, J., concurring). This is especially so 

where statutorily-provided definitions overlap because one 

statutorily-defined term (pedestrian way) is broadly defined, 

while the other statutorily-defined term (sidewalk) is more 

narrowly defined. See id., ¶149 (Ziegler, J., concurring) 

(determining that it "may not be possible to avoid complete 

overlap" among statutorily-defined terms where "the ordinary 

meaning" of one of them "is so broad"). Sometimes the 

legislature, as here, "deliberately paints with a very 

broad . . . brush." Georgina G. v. Terry M., 184 Wis. 2d 492, 

540, 516 N.W.2d 678 (1994) (Bablitch, J., dissenting). 

¶55 I acknowledge that Wis. Stat. § 346.02(8) employs both 

the term "sidewalk" and the term "pedestrian way" in two 

separate sentences, in close proximity. And under some 

circumstances, these things might suggest that the terms have 

wholly distinct meanings. But a logical answer exists to this 

assumption: A sidewalk is always a pedestrian way, but the term 

"pedestrian way" is broader than solely being a sidewalk.10 

 

10 An even closer inspection of the statutes also supports 

the interpretation I adopt. Consider that Wis. Stat. 

§ 346.02(8)(a) provides "[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. 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" was 

omitted from para. (a), then the provisions pertaining to 
No. 2021AP1589.akz

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¶56 The majority also surmises that the "as if" language 

in Wis. Stat. § 346.02(8)(b) supports its conclusion that a 

sidewalk and pedestrian way are entirely distinct concepts. It 

opines that a sidewalk——statutorily defined as that portion of 

the highway constructed for use of pedestrians——and a pedestrian 

way——statutorily defined as a walk designated for the use of 

pedestrian travel——are distinct because of the statutory 

language "as if." The majority relies on § 346.02(8)(b), which 

states, "Public utilities may be installed either above or below 

a pedestrian way, and assessments may be made therefore as if 

such pedestrian way that is not a sidewalk were a highway, 

street, alley, roadway or sidewalk" (emphasis added). According 

to the majority, if a pedestrian way could be treated "as if" it 

was a sidewalk, then a pedestrian way cannot be understood to 

include a sidewalk: the one term is entirely separate and 

distinct from the other. Majority op., ¶18. This is because 

"[t]he ordinary meaning of a statute is dictated by more than 

the literal meaning of a single phrase, read in isolation." 

 

sidewalks in ch. 346 would not apply to pedestrian ways that are 

not sidewalks. Sojenhomer LLC v. Village of Egg Harbor, 2023 WI 

App 20, ¶30, 407 Wis. 2d 587, 990 N.W.2d 267. Accordingly, 

under this statute, the term "sidewalks" still serves a 

necessary function even though the term "pedestrian ways" 

includes sidewalks.

Like para. (a), the term sidewalk in para. (b) could not be 

omitted without changing the meaning of the statutory language. 

So, neither sidewalk nor pedestrian way lose their individuality 

under my statutory interpretation analysis. Each maintains its 

individual purpose, because while all sidewalks are pedestrian 

ways, not all pedestrian ways are sidewalks. The statutory 

meaning is plain. 
No. 2021AP1589.akz

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Id., ¶15. But then the majority proceeds to do what it decries. 

It reads a single phrase——"as if"——in isolation, rather than in 

context. It is more sensible to conclude that sometimes a 

pedestrian way is not a sidewalk and the "as if" language 

recognizes this fact. With this reading, the statute has 

meaning.11 

¶57 The majority argues that if sidewalks are pedestrian 

ways, then we have to read the additional language "that are not 

sidewalks" into Wis. Stat. § 346.02(8)(a) and (b). Majority 

op., ¶20. According to the majority, § 346.02(8)(a) and (b) 

would then be read to include the underlined language:

(a) All of the applicable provisions of this 

chapter pertaining to highways, streets, alleys, 

roadways and sidewalks also apply to pedestrian ways 

that are not sidewalks. 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 that is not 

a sidewalk were a highway, street, alley, roadway or 

sidewalk.

Majority op., ¶20. But understanding sidewalks are pedestrian 

ways does not "read additional language into § 346.02(8)(a) and 

(b)." The plain text defines a pedestrian way as being broader 

than solely sidewalks, but all sidewalks are pedestrian ways. 

So, by definition, it is understood that a pedestrian way 

 

11 The majority's framing of the "as if" modifier

"torture[s] ordinary words until they confess to ambiguity." W. 

States Ins. Co. v. Wis. Wholesale Tire, Inc., 184 F.3d 699, 702 

(7th Cir. 1999). And we know that "[s]tatutory interpretation 

involves the ascertainment of meaning, not a search for 

ambiguity." Bruno, 260 Wis. 2d 633, ¶25.
No. 2021AP1589.akz

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contains all sidewalks but also non-sidewalks. Thus, when the 

statute says that pedestrian ways may be treated "as if" they 

are sidewalks, the words "pedestrian ways that are not 

sidewalks" have not been added. Rather, it is simply what the 

text reasonably implies.

¶58 The court of appeals agreed with Sojenhomer's 

observation that: 

[T]he 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 adjacent to a 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.

Sojenhomer, 407 Wis. 2d 587, ¶29. Thus, interpreting the term 

"pedestrian way" to include a "sidewalk" does not require 

reading words into the text. In fact, the majority's attack can 

be turned around on itself. It could be said the majority's 

interpretation reads words into the statute: "A pedestrian way 

means a walk designated for the use of pedestrian travel, 

excluding sidewalks."

¶59 This interpretation, that sometimes a pedestrian way 

is a sidewalk, forecloses the majority's concern that the 

legislature "chose to omit sidewalks from the limitations on 

condemnation in Wis. Stat. §§ 32.015 and 61.34(3)(b)" even 

though the term is "not unusual or unfamiliar." Majority op., 

¶26. First, this concern has no bearing on the question 

presented in this case, whether sidewalks are pedestrian ways. 
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Second, the statutory limitations on the use of condemned 

property include, among other things, a pedestrian way. Since 

these statutes are understood to broadly define pedestrian ways 

as including all sidewalks, the legislature necessarily also 

expressly limited village boards' condemnation powers to acquire 

property to construct a sidewalk when it expressly limited the 

village boards' condemnation powers to acquire property to 

construct a pedestrian way.12 The fact that the term "sidewalk" 

does not appear in the condemnation statutes is 

tangential: "sidewalks" are already incorporated by reference 

in Wis. Stat. § 32.015 and Wis. Stat. § 61.34(3)(b) through the 

term "pedestrian way." 

¶60 The majority concludes "that the definition of 

'pedestrian way' in [Wis. Stat.] § 346.02(8)(a), and the 

limitations on condemnation" in Wis. Stat. § 32.015 and Wis. 

Stat. § 61.34(3)(b), "unambiguously exclude sidewalks." 

Majority op., ¶15. The majority's conclusion is incorrect. 

Section 32.015, and its corollary section 61.34(3)(b), limits 

condemnation powers from being used to establish or extend a 

pedestrian way, and pedestrian ways include all sidewalks. 

Section 32.015 also limits condemnation powers from being used 

to establish or extend a bicycle way. A bicycle way is defined 

 

12 The majority's reliance on statutory history likewise 

fails at this juncture. Majority op., ¶¶21-23. Even assuming 

the majority is correct that the statutory history shows that 

sidewalks and pedestrian ways have been defined separately, all 

that would prove is that the terms have been defined separately. 

It would not prove that sidewalks and pedestrian ways do not 

have overlapping meanings such that sidewalks are a type of 

pedestrian way.
No. 2021AP1589.akz

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as "any path or sidewalk or portion thereof designated for the 

use of bicycles, electric scooters, and electric personal 

assistive mobility devices by the governing body of any city, 

town, village, or county." Wis. Stat. § 340.01(5s) (emphasis 

added). Accordingly, the condemnation statutes limit the 

Village's condemnation of Sojenhomer's property to build a 

sidewalk under any reading of the statute. Given that 

pedestrian ways already include sidewalks, had sidewalks been 

listed in the statute it would have been redundant.13 

¶61 The majority also claims the term pedestrian way 

"refers to something narrower and more specific than all 

sidewalks." Majority op., ¶23. The majority makes its

unfounded claim without ever having established or defined what 

a pedestrian way is. Had the majority conducted a plain meaning 

analysis on the statutory text, it would have concluded that the 

opposite is, in fact, true. Pedestrian ways are broadly 

 

13 These condemnation statutes together demonstrate that 

while a village's powers are often broad——including, among other 

things, the power to manage village property, highways, streets, 

and the power to act for public health, safety, and welfare——

that power is not limitless. But the majority repeatedly 

references the Village's public safety concerns as a basis for 

seizing Sojenhomer's property, seemingly justifying the 

Village's violation of the statutes limiting their condemnation 

power. While Wis. Stat. § 61.34(1) recognizes the broad powers 

village boards may have to govern, including power to act on 

behalf of public safety, the statute also says these broad 

powers are conferred "[e]xcept as otherwise provided by law" and 

"[t]he powers . . . shall be limited only by express language." 

The statutes, by "express language," § 61.34(1), limit a 

village's power to condemn and acquire property. No such 

exception for public safety concerns exists in either statute. 
No. 2021AP1589.akz

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defined, such that all sidewalks are pedestrian ways, but not 

all pedestrian ways are sidewalks.14

¶62 In sum, a pedestrian way is defined as a "walk 

designated for the use of pedestrian travel." Wis. Stat. 

§ 346.02(8)(a). A sidewalk is more narrowly defined as "that 

portion of a highway . . . constructed for use of pedestrians" 

and "for the use of persons on foot." Wis. Stat. § 340.01(58); 

Wis. Stat. § 66.0907(1). Were the majority correct, then a 

sidewalk could never be a walk designated for pedestrian travel.

This strained interpretation is untethered from the plain 

meaning of the statutory language. 

¶63 Conducting a plain meaning analysis on the language of 

these varied statutes reveals that this statutory scheme is 

unambiguous and there is no surplusage under my interpretation 

of the statutes. Simply, Wis. Stat. § 32.015 and Wis. Stat. 

§ 61.34(3)(b) limit a village's ability to use its condemnation 

powers to acquire property to establish or extend a pedestrian 

way. A sidewalk is a pedestrian way. I conclude that these 

statutes are internally consistent and comport with common sense 

as sidewalks are included within the term "pedestrian ways," but 

not all pedestrian ways are sidewalks. Because the statute is 

 

14 In another place, the majority infers that since the 

legislature has rarely used the term "pedestrian way" after 

first placing it in the statutes, the legislature likely 

intended pedestrian way to have a narrow meaning. Majority op., 

¶¶23-24. This too, fails to disprove that pedestrian ways are 

not broadly defined so as to include all sidewalks. The 

opposite inference can likewise be made: The legislature rarely 

used the term after its initial use because the term is broadly 

defined.
No. 2021AP1589.akz

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neither ambiguous nor is there surplusage, we do not need to 

consult extrinsic sources to confirm statutory meaning. Thus, a 

sidewalk is a pedestrian way for purposes of applying the 

limitation of § 32.015, and the Village is precluded from 

obtaining this property through condemnation. 

¶64 As an aside, the Village was likely not without 

recourse. It could potentially obtain property through other 

means, including paying the landowner a fair price. What the 

Village could not do was use its power of condemnation to 

acquire Sojenhomer's property to construct a sidewalk. 

IV

¶65 In condemning and acquiring Sojenhomer's property for 

the purpose of constructing a sidewalk, the Village violated 

Wis. Stat. § 32.015's and Wis. Stat. § 61.34(3)(b)'s express 

limitations on its condemnation power.

¶66 For the foregoing reasons, I respectfully dissent.

¶67 I am authorized to state that Justices REBECCA GRASSL 

BRADLEY and BRIAN HAGEDORN join this dissent.
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