Chapter 82

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.

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

82.18 82.18 Width of highways. Except as otherwise provided in this chapter, highways laid out under this chapter shall be laid out at least 66 feet wide unless, in the town board’s discretion, that width is impractical. If the town board determines that a 66-foot width is impractical, the width shall be determined by the town board but shall be at least 49.5 feet in width. When no width is specified in the highway order, the highway shall be 66 feet wide.

82.18 History History: 1999 a. 97; 2003 a. 214 s. 43; Stats. 2003 s. 82.18.

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

82.19 82.19 Discontinuance of highways.

82.19(1) (1) An unrecorded highway, or any part of an unrecorded highway, that has become or is in the process of becoming a public highway by user in any town may be discontinued using the procedures under ss. 82.10 to 82.12. Any proceedings to discontinue an unrecorded highway shall not be evidence of the acceptance at any time by the town of the highway or any part of the highway.

82.19(2) (2) 

82.19(2)(a) (a) Every highway shall cease to be a public highway 4 years from the date on which it was laid out, except the parts of the highway that have been opened, traveled, or worked within that time.

82.19(2)(b) (b)

82.19(2)(b)1. 1. In this paragraph, “vehicular travel” means travel using any motor vehicle required to be registered under ch. 341 or exempt from registration under s. 341.05.

82.19(2)(b)2. 2. Any highway that has been entirely abandoned as a route of vehicular travel, and on which no highway funds have been expended for 5 years, shall be considered discontinued.

82.19(2)(c) (c) This subsection does not apply to state or county trunk highways or to any highway, street, alley, or right-of-way that provides public access to a navigable lake or stream.

82.19 History History: 2003 a. 214 ss. 83 to 85, 92, 167.

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

82.19 Annotation Whether a highway has been entirely abandoned for a discontinuation to occur under sub. (2) depends on whether the highway has remained open to all who had occasion to use it. Even if a single family and their guests used the highway, that could be sufficient to keep it from being abandoned. Lange v. Tumm, 2000 WI App 160, 237 Wis. 2d 752, 615 N.W.2d 187, 99-3247.

82.19 Annotation An owner may not convert a public highway to a private road by taking control of the road and leading others to believe that they need permission to use it, even when the state or local government has discontinued maintenance of the road. A public highway is not entirely abandoned if it is used only by the owner of the land over which the highway lies. Under sub. (2), the identity of the user is irrelevant. Markos v. Schaller, 2003 WI App 174, 266 Wis. 2d 470, 668 N.W.2d 755, 02-1824.

82.19 Annotation That a roadway was overgrown and difficult or impossible for vehicles to travel without damage and that members of the public sought permission to use the road were considerations that underpinned a finding that the road was not open to all. Povolny v. Totzke, 2003 WI App 184, 266 Wis. 2d 852, 668 N.W.2d 834, 02-3011.

82.19 Note NOTE: The above annotations cite to s. 80.32 (1) or (2), the predecessor statutes to this section.

82.19 Annotation To establish abandonment under this section, the higher burden of proof of clear and convincing evidence, rather than the lower preponderance of the evidence standard, must be applied. Town of Schoepke v. Rustick, 2006 WI App 222, 296 Wis. 2d 471, 723 N.W.2d 770, 05-3183.

82.20 82.20 Removal of fences from highway; notice.

82.20(1) (1) If the town board issues an order to lay out or alter a highway through enclosed, cultivated, or improved lands, the town board or highway superintendent shall give the owner or occupant of the lands through which the proposed highway will pass written notice of its, his, or her intent to remove the fences in the path of the new or altered highway. The notice shall state when the town board or highway superintendent intends to remove the fences, which shall not be less than 30 days from the date on which the notice was given to the owner or occupant. If the owner or occupant does not remove the fences before the time stated in the notice, the town board or highway superintendent shall remove the fences and may charge the landowner for the costs of the removal under s. 66.0627.

82.20(2) (2) The notice under sub. (1) shall not be sent until the time for filing an appeal under s. 82.15 has expired and no appeal was taken or until all appeals under s. 82.15 have been brought to a final determination.

82.20(3) (3) This section does not authorize the opening of a highway through enclosed, cultivated, or improved lands or the removal of fences between May 15 and September 15, except in cases of emergency to be determined by the town board.