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Supervisor Patrick Miles <br />December 19, 2013 <br />The diminishing asset rule was first adopted in Wisconsin by the Court of Appeals in <br />Sturgis v. Winnebago County Board ofAdjustment, 141 Wis.2d 149 (Ct. App. 1987). The court <br />specifically quoted the rationale of the Illinois Supreme Court: <br />This is not the usual case of a business conducted within buildings, nor is the land <br />held merely as a site or location whereon the enterprise can be conducted <br />indefinitely with existing facilities. In a quarrying business the land itself is a <br />mineral or resource. It constitutes a diminishing asset and is consumed in the <br />very process of use. Under such facts the ordinary concept of use, as applied in <br />determining the existence of a nonconforming use, must yield to the realities of <br />the business in question and the nature of its operations. We think that in cases of <br />a diminishing asset the enterprise is `using' all that land which contains the <br />particular asset and which constitutes an integral part of the operation, <br />notwithstanding the fact that a particular portion may not yet be under actual <br />excavation. It is in the very nature of such business that reserve areas be <br />maintained which are left vacant or devoted to incidental uses until they are <br />needed. Obviously, it cannot operate over the entire tract at once. <br />County of Du Page v. Elmhurst -Chicago Stone Co., 18 Ill.2d 479,165 N.E.2d 310, 313 (1960) <br />(emphasis added) The express language of the Illinois court has highlighted with bolding clearly <br />indicated that excavation must in fact be occurring on a portion of the tract of land before the <br />diminishing asset rule applies. <br />The Wisconsin court in Sturgis noted that the relevant inquiry is the owner's intent and <br />ownership of the property coupled with the unique use of mineral extraction. Sturgis, 141 Wis.2d <br />at 152. Based upon that, the courtheld "that when contiguous parcels are owned by the same <br />entity and excavation operations are in existence on part of the land, all land constituting an <br />integral part of the operation maybe deemed `in use."' Id.,. at 151. The court discussed the . <br />meaning of the term "existing use" and rejected that the argument that the use must be "active" <br />as -opposed to "intended." But in making that the determination the Court of Appeals relied upon <br />the statement of the trial court that "You can't dig on all the forty acres atone. time." This again <br />implies that the operator must be digging on a portion of the land. The court's rejection of the <br />term "active" applied to land sought to be expanded to. There still must be current excavation on <br />a portion of the tract, which is crucial to establishing the intent to use all of the diminishing asset. <br />The diminishing asset rule has subsequently been applied by the Wisconsin Supreme <br />Court in Smart v. Dane County Board ofAdjustment, 177 Wis.2d 445 (1993) and the Courtof <br />Appeals in Schroeder v. Dane County Board ofAdjustment, 228 Wis.2d 324 (Ct. App.. 1999). <br />Both of those cases simply applied the holding of Sturgis and the Elmhurst -Chicago Stone Co. <br />case. The important and controlling fact of all of those cases is that there was an current'accive <br />mineral extraction operation on a portion of the land under consideration. Because of that current <br />use, the courts allowed the extraction to be expanded to contiguous land under common <br />ownership. <br />2 <br />