
    Robert E. Toombs and Betty J. Toombs, husband and wife, Plaintiffs-Respondents, v. Washburn County, a body politic, and Eugene Anderson, Washburn County Highway Commissioner, as agent for Washburn County, Defendants-Appellants.
    Court of Appeals
    
      No. 83-1882.
    
      Submitted on briefs April 2, 1984.
    
      Decided May 15, 1984.
    
    For the appellants the cause was submitted on the briefs of Edwin W. Fischer, district attorney.
    For the respondents the cause was submitted on the brief of Eugene D. Harrington of Spooner.
    Before Foley, P.J., Dean and Cane, JJ.
   CANE, J.

Robert and Betty Toombs successfully challenged Washburn County’s attempt to condemn their property. The county and its highway commissioner appeal that part of a judgment awarding the Toombses litigation expenses under sec. 32.28(3) (b), Stats. They argue that the trial court based the award on its erroneous conclusion that the county had no right to condemn. Because the court also determined that the county failed to establish a necessity for taking the Toombses’ property, we affirm the judgment.

The county sought some of the Toombses’ property to construct improvements to a county highway. When the Toombses refused to sell, the county began condemnation proceedings by filing a relocation order and map. The Toombses sought an injunction, alleging that the relocation order was invalid. See sec. 32.05(5), Stats. The trial court agreed, granted the injunction, and awarded litigation expenses including attorney and appraiser fees.

Section 32.28(3) (b) requires the trial court to award litigation expenses to the condemnee if “the court determines that the condemnor does not have the right to condemn part or all of the property described in the jurisdictional offer or there is no necessity for its taking.” A county may condemn property “for any lawful purpose,” sec. 32.02(1), Stats., including the improvement of transportation facilities, see sec. 32.05, Stats. The first step in condemnation for this purpose is the adoption of a relocation order under sec. 32.05(1), Stats. Wisconsin Town House Builders, Inc. v. City of Madison, 37 Wis. 2d 44, 52, 154 N.W.2d 232, 235 (1967). The relocation order takes the place of and constitutes a determination of necessity. Id. Therefore, until the county produces a valid relocation order, it has failed to establish the necessity for taking the land it seeks to condemn.

The trial court granted the Toombses summary judgment based on its conclusion that the county’s relocation order was invalid. The county does not challenge that conclusion. It argues, however, that the trial court’s failure to expressly consider the issue of the necessity for taking in its decision on the motion for summary judgment means that the court awarded litigation expenses based solely on its conclusion that the county had no right to condemn. We disagree. The trial court’s statement that “the issues . . . are limited to the right of the defendants to condemnation” was intended merely to limit the decision to the Toombses’ first cause of action that was based on the invalidity of the relocation order. A valid relocation order is required to establish the necessity for condemnation under sec. 32.05 and, because the county failed to produce a valid relocation order as required by statute, the Toombses were entitled to litigation expenses under sec. 32.28(3) (b).

In deciding the county’s motion to review costs, the trial court made it clear that it awarded litigation expenses under sec. 32.28(3) (b) because it concluded both that there was no necessity for taking and that the county had no right to condemn. Relying on Wisconsin Town House Builders, the court stated, “the relocation order being void, the court concludes that there was no determination of the necessity for the taking.” We agree with the trial court’s conclusion and note that, even in condemnation proceedings not requiring a relocation order, the condemnor is required to establish the necessity of the taking in addition to having a right to condemn. See secs. 32.06(1), 32.07(2), and 32.28(3) (b), Stats.. Since the county’s failure to produce a valid relocation order is sufficient to support the judgment, we need not consider the trial court’s conclusion that the county had no right to condemn.

Wieczorek v. City of Franklin, 82 Wis. 2d 19, 260 N.W.2d 650 (1978), does not require a different result. In that case, the condemnees were not entitled to attorney fees under sec. 32.05(5) Stats. (1971), for successfully challenging a city’s defective jurisdictional offer. Wieczorek, 82 Wis. 2d at 25-26, 260 N.W.2d at 653. The jurisdictional offer is a jurisdictional requisite to condemnation, sec. 32.05(4), Stats., a matter independent of whether the condemnor has proved there is a necessity for the taking.

Likewise, our decision will not require local governments to pay the litigation expenses of all who can find a correctable procedural flaw in condemnation proceedings. Section 32.28(3) (b) does not enable a condemnee to recover litigation expenses from a condemnor who has a right to condemn and who shows a necessity for taking as directed by statute.

By the Court. — Judgment affirmed. 
      
       The trial court stated, “the court concludes that the issues in the present action are limited to the right of the defendants to condemnation, and the causes of action alleged by the •plaintiffs in addition to that issue [bad faith, insufficient jurisdictional offer and various damages] are dismissed.” [Emphasis added.]
     