Chapter 82

82.05(3) (3) When any highway under the superintendent’s charge becomes impassable, the superintendent shall put the highway in passable condition as soon as practicable. Upon actual notice of the existence of any depression, ditch, hump, or embankment that impedes the use of any highway under the superintendent’s charge, the superintendent, or in the absence of a superintendent the chairperson of the town board, shall as soon as practicable take action to make the highway safe for travel, which may include closing the highway.

82.05(4) (4) The superintendent shall routinely notify the town board of all highway work.

82.05 History History: 1991 a. 316; 2003 a. 214 ss. 117, 118, 157, 158; Stats. 2003 s. 82.05.

82.05 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

82.05 Annotation The duty to keep highways passable is made mandatory by ss. 81.01 and 81.03 [now this section and s. 82.03], when read together. State ex rel. Cabott, Inc. v. Wojcik, 47 Wis. 2d 759, 177 N.W.2d 828 (1970).

82.08 82.08 Town bridges or culverts; construction and repair; county aid.

82.08(1) (1) Petitions. A town that has voted to construct or repair any bridge or culvert that is on, or that after the construction will be connected to, an existing highway maintained by the town may file a petition for county aid with the county highway commissioner. The petition shall describe the location and size of the bridge or culvert and shall contain a statement that the town has provided the funds required by sub. (3).

82.08(2) (2) Funding requirements.

82.08(2)(a) (a) Except as provided in par. (b), upon receipt of a petition for a bridge or culvert with a 36-inch or greater span, or a structure of equivalent capacity to carry water, the county board shall appropriate the sum required by sub. (3) and shall levy a tax therefor. The tax, when collected, shall be held in a separate account administered by the county highway committee.

82.08(2)(b) (b) If on January 1, 2003, a county has a policy of providing funding only for bridges and culverts larger than the requirement of par. (a), the county may refuse to fund bridges and culverts that do not meet the minimum requirements of that policy. The minimum size bridge or culvert that a county is required to fund under this section may be raised, but not lowered, by the affirmative vote of a majority of the towns in the county. The county board of any county that has never granted aid under this section may, in its discretion, refuse all petitions under sub. (1).

82.08(3) (3) Shared cost. The town and county shall each pay one-half of the cost of construction or repair. In determining the cost of construction or repair of any bridge or culvert, the cost of constructing or repairing any approach not exceeding 100 feet in length shall be included.

82.08(4) (4) Emergency petition. Whenever the construction or repair of any bridge or culvert must be made without delay, the town board may file its petition with the county clerk and the county highway committee, explaining the necessity for immediate construction or repairs. It shall then be the duty of the town board and the county highway committee to construct or repair the bridge or culvert as soon as practicable. The construction or repair of a bridge or culvert undertaken pursuant to this subsection shall entitle the town to the same county aid that the town would have been entitled to had it filed its petition with the county board as provided in sub. (1).

82.08(5) (5) Supervision over design, construction, and cost.

82.08(5)(a) (a) Except as provided under par. (b), the county highway committee and the town board shall have full charge of design, sizing, letting, inspecting, and accepting the construction or repair, but the town board may leave the matter entirely in the hands of the county highway committee. The county highway committee and the town board must agree on the cost of the project and must consult each other during construction.

82.08(5)(b) (b) For a project receiving funds under s. 84.18, supervision and control of construction of the project shall be as provided under s. 84.18 (6).

82.08(6) (6) Construction requirements. No county order may be drawn under sub. (2) for the construction of a bridge or culvert unless the design and construction comply with requirements under s. 84.01 (23).

82.08(7) (7) No tax. Except as provided in ss. 61.48 and 84.14 (3), nothing contained in this section shall authorize the levy of a tax upon the property in any city or village that is required to maintain its own bridges.

82.08(8) (8) Administration charge. The county may charge the towns that apply for aid under this section an administration charge. The administration charge shall be fixed as a percentage of the total costs of administering aid under this section and the percentage shall be no more than the percentage that the county charges the state for records and reports.

82.08 History History: 1977 c. 190; 1981 c. 296; 1983 a. 192 s. 303 (2); 1983 a. 532; 2003 a. 214 ss. 140 to 145, 147, 159; Stats. 2003 s. 82.08; 2013 a. 152; 2023 a. 162.

82.08 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

82.08 Annotation The county is obligated to pay its half of the cost of construction or repair of a bridge even if the final cost exceeds the amount the town requested in the petition. An estimate is sufficient in a petition for aid. Costs need not be determined exactly. Town of Grand Chute v. Outagamie County, 2004 WI App 35, 269 Wis. 2d 657, 676 N.W.2d 540, 03-1897.

82.08 Annotation The bridge at issue in this case was not a “bridge on a highway maintainable by the town” under s. 81.38 [now this section] because the bridge aid petition did not request funding to help connect the bridge to a highway maintainable by the town, there was no existing highway extending to the planned bridge site at the time of the petition, and the bridge was not connected to a highway maintainable by the town upon completion. Section 81.38 requires funding for only those bridges built on highways in existence at the time of a bridge’s construction. Town of Madison v. County of Dane, 2008 WI 83, 311 Wis. 2d 402, 752 N.W.2d 260, 06-2554.

82.08 Annotation Although a 2003 act changed the phrase “highway maintainable” to “highway maintained,” this amendment did not change the substantive meaning of the statute. Town of Madison v. County of Dane, 2008 WI 83, 311 Wis. 2d 402, 752 N.W.2d 260, 06-2554.

82.08 Note NOTE: The above annotations cite to s. 81.38, the predecessor statute to this section.

82.09 82.09 County aid for dams used for bridges. A town board may file a petition with the county board stating that the town board has voted to acquire the right to use a roadway on a dam. The petition shall contain a legal description and scale map of the dam and roadway, and shall state the amount agreed to be paid to the owner for the use of the roadway. Upon receipt of a petition, the county board shall appropriate a sum equal to 50 percent of the amount agreed to be paid for the use. The county board shall, on the order of the chairperson of the county board and county clerk, cause such sum to be paid to the treasurer of the town whenever the town board notifies the county highway commissioner that a contract for the use of the roadway has been executed.

82.09 History History: 2003 a. 214 s. 151.

82.09 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

subch. II of ch. 82 SUBCHAPTER II

BASIC PROCEDURES

82.10 82.10 Initiation of procedures.

82.10(1) (1) Application for highway changes. Six or more resident freeholders may apply to the town board to have a highway laid out, altered, or discontinued. The application shall be in writing and shall be delivered to the town clerk. The application shall contain all of the following:

82.10(1)(a) (a) A legal description of the highway to be discontinued or of the proposed highway to be laid out or altered.

82.10(1)(b) (b) A scale map of the land that would be affected by the application.

82.10(2) (2) Resolution. Notwithstanding sub. (1), the town board may initiate the process of laying out, altering, or discontinuing a town highway by the introduction of a resolution. The resolution shall contain all of the following:

82.10(2)(a) (a) A legal description of the highway to be discontinued or of the proposed highway to be laid out or altered.

82.10(2)(b) (b) A scale map of the land that would be affected by the resolution.

82.10(3) (3) Notice requirements. Upon receipt of an application under sub. (1) or the introduction of a resolution under sub. (2), the board shall provide notice of the time that and the place where it will meet to consider the application or resolution. The notice shall contain a legal description of the highway to be discontinued or of the proposed highway to be laid out or altered and a scale map of the land that would be affected by the application or resolution.

82.10(4) (4) Notice recipients.

82.10(4)(a) (a) The town board or, at the town board’s direction, the applicants shall publish a class 3 notice under ch. 985 and shall, at least 30 days before the hearing, give notice by registered mail to all of the following:

82.10(4)(a)1. 1. The owners of record of lands through which the highway may pass.

82.10(4)(a)2. 2. The owners of record of all lands abutting the highway.

82.10(4)(a)3. 3. The department of natural resources.

82.10(4)(a)4. 4. The county land conservation committee in each county through which the highway may pass.

82.10(4)(a)5. 5. The secretary of transportation, if the highway that is the subject of the application or resolution is located within one-quarter mile of a state trunk highway or connecting highway.

82.10(4)(a)6. 6. The commissioner of railroads, if there is a railroad highway crossing, within the portion of the highway that is the subject of the application or resolution.

82.10(4)(b) (b) If procedures are begun under sub. (1), the applicants shall bear the cost of publication. If the procedures are begun under sub. (2), the town shall bear the cost of publication.

82.10(5) (5) Lis pendens. In the case of an application under sub. (1), the applicant shall file a lis pendens under s. 840.11. In the case of a resolution under sub. (2), the board shall file a lis pendens within 10 days of the introduction of the resolution.

82.10 History History: 2003 a. 214 ss. 29, 34 to 38, 161; 2009 a. 107, 223.

82.10 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

82.11 82.11 Meeting.

82.11(1) (1) The town supervisors shall personally examine the highway or proposed highway that is the subject of an application or resolution under s. 82.10. At the time and place stated in the notice under s. 82.10, the town board shall hold a public hearing to decide, in its discretion, whether granting the application or resolution is in the public interest. Before the town board holds a public hearing on or takes any action on the application or resolution, the town board must be satisfied, by affidavit of the applicant or otherwise, that the notices in s. 82.10 (4) have been given.

82.11(2) (2) 

82.11(2)(a) (a) No town official may act in laying out, altering, or discontinuing a highway if acting would result in a violation of the code of ethics under s. 19.59 or of a local ordinance enacted under s. 19.59 (1m). If a town official is prevented from acting, the remaining town officials shall act.

82.11(2)(b) (b) Every town shall have a written policy on how the town board will act on an application or resolution when there are fewer than 2 supervisors in the town who are able to act on the application or resolution. In the absence of a policy, the town clerk may act. If the town clerk is prevented from acting, the treasurer may act.

82.11 History History: 2003 a. 214 ss. 33, 40, 162.

82.11 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

82.12 82.12 Highway order.

82.12(1) (1) A town board shall make a determination upon any application or resolution to lay out, alter, or discontinue any highway within 90 days after receipt of the application or introduction of a resolution.

82.12(2) (2) If the board determines under sub. (1) to lay out, alter, or discontinue any highway, it shall issue a highway order. The highway order shall be recorded with the register of deeds for the county in which the highway is or will be located and shall be filed with the town clerk. The town clerk shall submit a certified copy of the order to the county highway commissioner. If the town has an official map, the order shall be incorporated into the official map.

82.12(3) (3) The determination not to issue a highway order shall be final for one year. No application to lay out, alter, or discontinue a highway shall be filed within one year from the date of a determination not to issue a highway order covering the highway or portion of the highway covered in the refused application.

82.12 History History: 2003 a. 214 ss. 42, 74, 76, 163.

82.12 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

82.13 82.13 Highways to school buildings. Upon being notified that a public school in a town lacks highway access, the town board shall lay out a highway to the public school, using the procedures in this subchapter. No application for the highway shall be necessary. Section 82.12 (3) shall not apply to proceedings under this section.

82.13 History History: 2003 a. 214 s. 72; Stats. 2003 s. 82.13.

82.13 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

82.14 82.14 Acquiring rights to land; damages from discontinuance.

82.14(1) (1) Unless the acquisition can be made by mutual agreement, the town board shall utilize the procedures under s. 32.05 to acquire rights to land for the purpose of laying out or altering a town highway.

82.14(2) (2) If lands acquired by contract for highway purposes are encumbered, and the owners of the fee and of the encumbrance do not agree on the allocation of any damages to be paid due to the taking, the damages may be paid to the clerk of the circuit court of the county in which the land is located. Upon the application of any interested party and upon not less than 5 days’ written notice to the other party, the court may apportion the damages paid to the clerk among the parties.

82.14(3) (3) An owner of property abutting on a discontinued highway whose property is damaged by the discontinuance may recover damages as provided in ch. 32.

82.14 History History: 2003 a. 214 ss. 82, 164.

82.14 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

82.15 82.15 Appeal of a highway order. Any person aggrieved by a highway order, or a refusal to issue such an order, may seek judicial review under s. 68.13. If the highway is on the line between 2 counties, the appeal may be in the circuit court of either county.

82.15 History History: 2003 a. 214.

82.15 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

82.15 Annotation The judge’s role is administrative and not judicial. Entry of judgment is beyond a circuit judge’s jurisdiction under this section. Town Board v. Webb, 118 Wis. 2d 362, 348 N.W.2d 591 (Ct. App. 1984).

82.15 Note NOTE: The above annotation cites to s. 80.17, the predecessor statute to this section.

82.15 Annotation This section contemplates certiorari review under s. 68.13 as the prescribed method for review of a highway order or of a refusal to issue such an order. Section 68.13 establishes both the procedure and a time limit for seeking review of a highway order under most circumstances. Inasmuch as the plaintiffs were seeking a determination that the town’s refusal to issue a highway order was not in accordance with law, they should have proceeded under s. 68.13. Dawson v. Town of Jackson, 2011 WI 77, 336 Wis. 2d 318, 801 N.W.2d 316, 09-0120.

82.15 Annotation The 30-day period during which certiorari review is available for a town board’s highway order to lay out, alter, or discontinue a highway begins to run on the date that the highway order is recorded by the register of deeds. Pulera v. Town of Richmond, 2017 WI 61, 375 Wis. 2d 676, 896 N.W.2d 342, 15-1016.

82.16 82.16 Highway orders; presumptions.

82.16(1) (1) Every order laying out, altering, or discontinuing a highway under this chapter, and any order restoring the record of a highway, shall be presumptive evidence of the facts therein stated and of the regularity of all the proceedings prior to the making of the order.

82.16(2) (2) The validity of an order described in sub. (1), if fair on its face, is not open to collateral attack, but may be challenged in an action brought under s. 82.15.

82.16(3) (3) It shall be presumed that a release was given by the owners of the lands over which the highway was laid out and the public shall be entitled to use the full width of the highway, as laid out, without further compensation if all of the following apply:

82.16(3)(a) (a) An order laying out the highway has been filed for more than 30 years.

82.16(3)(b) (b) No award of damages or agreement or release has been filed.

82.16(3)(c) (c) The highway, or a part of the highway, has been used by the public and public money has been expended on the highway for at least 5 years.

82.16 History History: 1979 c. 323; 2003 a. 214 ss. 94 to 96, 166; Stats. 2003 s. 82.16; 2003 a. 327.

82.16 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

82.17 82.17 Highway papers, where filed. All applications, orders, awards, bonds, and other papers relating to the laying out, altering, or discontinuing of highways under this chapter shall be promptly filed in the office of the town, city, or village clerk where the highway is located, except as otherwise specifically provided in this chapter.

82.17 History History: 2003 a. 214 s. 93; Stats. 2003 s. 82.17.