Chapter 82

82.28 History History: 2003 a. 214.

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

82.29 82.29 Highways abutted by state park lands; discontinuance or relocation. Any part of a highway lying wholly within state park lands may be discontinued or relocated by the state agency having jurisdiction over the state park by filing written notice of the discontinuance or relocation with the clerk of the municipality that has jurisdiction over the highway and upon approval by the municipality after holding a hearing as provided in s. 82.10. No discontinuance or relocation under this section may deprive a landowner of all highway access. This section does not apply to state trunk highways or connecting highways.

82.29 History History: 1977 c. 29 s. 1654 (3); 2003 a. 214 s. 30; Stats. 2003 s. 82.29.

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

subch. IV of ch. 82 SUBCHAPTER IV

EXISTING HIGHWAYS

82.31 82.31 Validation of highways.

82.31(1) (1) Recorded highways. Any recorded highway that has been laid out under this chapter is a legal highway only to the extent that it has been opened and worked for 3 years. Any laid out highway that has not been fully and sufficiently described or recorded or for which the records have been lost or destroyed is presumed to be 66 feet wide.

82.31(2) (2) Unrecorded highways.

82.31(2)(a) (a) Except as provided in pars. (b) and (c), any unrecorded highway that has been worked as a public highway for 10 years or more is a public highway and is presumed to be 66 feet wide.

82.31(2)(b) (b) No road or bridge built upon the bottoms and sloughs of the Mississippi River by citizens or a municipality of any other state shall become a legal highway or a charge upon the town in which the road is located unless upon petition the highway is legally laid out by the town board.

82.31(2)(c) (c) No lands granted for highway purposes that did not become a legal highway prior to July 1, 1913, shall become a legal highway unless the grant is accepted by the town board or by the town meeting of the town where the lands and proposed highway are located, and until a resolution of acceptance of the grant is recorded in the office of the town clerk.

82.31 History History: 2003 a. 214 ss. 21 to 23.

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

82.31 Annotation When a governmental unit shows public use of a road for 20 years or public maintenance for ten years, a landowner claiming that the road is private has the burden of proving permissive use. Ruchti v. Monroe, 83 Wis. 2d 551, 266 N.W.2d 309 (1978).

82.31 Annotation When a highway was established by user, the existence of ancient fences within two rods of either side of the center of the highway was sufficient to rebut the sub. (2) presumption that the highway was four rods in width. Threlfall v. Town of Muscoda, 190 Wis. 2d 121, 527 N.W.2d 367 (Ct. App. 1994).

82.31 Annotation The test under sub. (2) for whether a highway has been “worked” is whether the work demonstrates the public’s ownership of the road so that the public use of the road is not merely permissive. Continuous work on a road by a public entity is more likely to demonstrate ownership than sporadic work. County of Langlade v. Kaster, 202 Wis. 2d 448, 550 N.W.2d 722 (Ct. App. 1996), 95-2694.

82.31 Annotation When documents indicate an intent to dedicate roadways to the public, in the absence of official acceptance by the municipality, prior acceptance by the general public users prevents revocation of the offer to dedicate. Nothing prevents the acceptance of the ongoing offer by a municipality. Upon formal acceptance the municipality becomes liable for maintenance and for damages that might result from defects. Cohn v. Town of Randall, 2001 WI App 176, 247 Wis. 2d 118, 633 N.W.2d 674, 00-2176.

82.31 Annotation A street is presumed to be 66 feet wide unless rebutted, by a preponderance of the evidence, by those contending that the street is some other width. Village of Brown Deer v. Balisterri, 2013 WI App 137, 351 Wis. 2d 665, 841 N.W.2d 59, 13-0748.

82.31 Annotation The general definition of highway in s. 990.01 (12) governs and does not have any limitation restricting the definition to vehicular traffic. Case law has extended the definition of highway to include roads, streets, bridges, sidewalks, driveway aprons, and shoulders of the highway. Village of Brown Deer v. Balisterri, 2013 WI App 137, 351 Wis. 2d 665, 841 N.W.2d 59, 13-0748.

82.31 Annotation Discussing rights-of-way boundaries of nondedicated roads. 69 Atty. Gen. 87.

82.31 Note NOTE: The above annotations cite to s. 80.01 (1) or (2), the predecessor statutes to this section.

82.33 82.33 Lost records; how restored; effect.

82.33(1) (1) Whenever the record of the laying out of any highway has been lost or destroyed, the board of the town in which the highway is located, upon notice being served in accordance with s. 82.10 (4), may make a new record of the highway. The notice shall state the time when and the place where the board will decide whether to make the new record. The notice shall contain a legal description of the highway for which the proposed record will be made and a scale map of the land that would be affected. Notice need not be given to persons who waive the notice or consent to the issuance of the order.

82.33(2) (2) At the time and place stated in the notice, the town board shall hold a public hearing regarding the proposed new record, and shall make a new record as it considers proper. If the board finds that the highway is a legal highway, the record of which has been lost or destroyed, the board shall issue a written order stating those facts and specifying the course, width, and other pertinent description of the highway. The order shall be filed with the town clerk and recorded in the office of the register of deeds for the county in which the highway is located. Any number of highways may be included in one notice or order under this section. A failure or refusal to make a new record for any highway does not preclude a subsequent proceeding for that purpose.

82.33(3) (3) Any person through whose land a highway described in an order filed under sub. (2) passes may appeal under s. 82.15 on the grounds that the highway described in the order was not a legal highway in fact. No person may call into question the regularity of proceedings under this section except owners of land on whom notice should have been served but in fact was not and persons claiming under those owners.

82.33 History History: 1999 a. 97; 2003 a. 214 s. 98; Stats. 2003 s. 82.33.

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

82.35 82.35 Temporary highways and detours; damages.

82.35(1) (1) The town board, upon its own motion, may lay out and open temporary highways through any lands in the following situations:

82.35(1)(a) (a) When any highway is practically impassable or dangerous to travel.

82.35(1)(b) (b) When the town board considers it necessary to suspend travel on a highway or on any part of a highway due to construction, repair, or other reasons.

82.35(2) (2) 

82.35(2)(a) (a) The board may contract in writing with the owner or lessee of any land through which it proposes to lay out a temporary highway, as to the location of the highway, and the damages that the owner or lessee is to receive. The contract shall be filed with the town clerk.

82.35(2)(b) (b) In the absence of a contract under par. (a), the board shall determine the location of the temporary highway and the award of damages. Unless an emergency exists, the board shall serve the landowner with notice of the location of the highway and the award of damages and shall provide the landowner with 48 hours to object. The town board shall file a written order with the town clerk specifying the location of the temporary highway and the damages awarded.

82.35(2)(c) (c) The owner or occupant of any land occupied by a temporary highway may, at any time after it is opened and within 30 days after it is vacated or discontinued, apply to the town board to determine the owner’s or occupant’s damages.

82.35(3) (3) If a temporary highway is opened in connection with or on account of road or bridge construction, the damages agreed upon or awarded pursuant to this section may be treated as part of the construction cost and paid out of the construction funds.

82.35(4) (4) A temporary highway shall exist only so long as needed and shall be considered vacated and discontinued when the permanent highway is again opened for public travel.

82.35 History History: 1991 a. 316; 2003 a. 214 ss. 124 to 127, 172; Stats. 2003 s. 82.35.

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

82.37 82.37 Tunnel under highway by landowner. The owner of land on both sides of a town highway may construct a tunnel under the highway, and may erect fences that are necessary for the use of the tunnel. The tunnel shall not interfere with or endanger travel on the highway. The owner shall maintain the tunnel and shall be liable for all damages that occur as a result of the failure to keep the tunnel in repair. Unless authorized by a town meeting, the tunnel shall not be less than 25 feet in length. The electors of the town at an annual town meeting may authorize the construction of a tunnel that is less than 25 feet, but at least 16 feet in length.

82.37 History History: 1989 a. 56, 359; 2003 a. 214 s. 138; Stats. 2003 s. 82.37.

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

82.50 82.50 Town road standards.

82.50(1) (1) The following minimum geometric design standards are established for improvements on town roads:

82.50(1)(a) (a) Local service, intermittent traffic

82.50(1)(a)1. 1. Right-of-way   3 rods

82.50(1)(a)2. 2. Roadway width   20 feet

82.50(1)(a)3. 3. Surface width   16 feet

82.50(1)(b) (b) Under 100 ADT

82.50(1)(b)1. 1. Right-of-way   3 rods

82.50(1)(b)2. 2. Roadway width   24 feet

82.50(1)(b)3. 3. Surface width   18 feet

82.50(1)(b)4. 4. Maximum grades   9 percent-11 percent

82.50(1)(c) (c) 100 to 250 ADT

82.50(1)(c)1. 1. Right-of-way   4 rods

82.50(1)(c)2. 2. Roadway width   26 feet

82.50(1)(c)3. 3. Surface width   20 feet

82.50(1)(c)4. 4. Maximum grades   8 percent-11 percent

82.50(1)(d) (d) 251 to 400 ADT

82.50(1)(d)1. 1. Right-of-way   4 rods

82.50(1)(d)2. 2. Roadway width   32 feet

82.50(1)(d)3. 3. Surface width   22 feet

82.50(1)(d)4. 4. Maximum grades   6 percent-8 percent

82.50(1)(d)5. 5. Curvature   6°-12.5°

82.50(1)(e) (e) 401 to 1,000 ADT

82.50(1)(e)1. 1. Right-of-way   4 rods

82.50(1)(e)2. 2. Roadway width   34 feet

82.50(1)(e)3. 3. Surface width   22 feet

82.50(1)(e)4. 4. Maximum grades   5 percent-8 percent

82.50(1)(e)5. 5. Curvature   5°-12.5°

82.50(1)(f) (f) 1,001 to 2,400 ADT

82.50(1)(f)1. 1. Right-of-way   4 rods

82.50(1)(f)2. 2. Roadway width   44 feet

82.50(1)(f)3. 3. Surface width   24 feet

82.50(1)(f)4. 4. Maximum grades   5 percent-7 percent

82.50(1)(f)5. 5. Curvature   4.5°-7.5°

82.50(1)(g) (g) Over 2,400     State trunk standards

82.50(2) (2) The department may approve deviations from the minimum standards in special cases where the strict application of the standards is impractical and where such deviation is not contrary to the public interest and safety and the intent of this section.

82.50(3) (3) This section does not apply to improvements on town roads existing on October 1, 1992.

82.50 History History: 1981 c. 20; 1987 a. 137 s. 6; 1989 a. 56; 1991 a. 39; 1993 a. 490; 1999 a. 85; 2003 a. 214 s. 182; Stats. 2003 s. 82.50.

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

82.50 Annotation This section vests in a town a certain degree of discretion with respect to complying with minimum standards for town roads. Nothing in the statutes controls the circumstances in which a town may apply for a deviation under sub. (2), which indicates that the application is left to the town’s discretion. DSG Evergreen Family Limited Partnership v. Town of Perry, 2020 WI 23, 390 Wis. 2d 533, 939 N.W.2d 564, 17-2352.

82.50 Annotation Sub. (1) does not impose obligations on a town that are susceptible to a declaration of rights, nor does it create a private cause of action by which a plaintiff can recover damages for an alleged failure to construct a proper road. DSG Evergreen Family Limited Partnership v. Town of Perry, 2020 WI 23, 390 Wis. 2d 533, 939 N.W.2d 564, 17-2352.

82.51 82.51 Rules for town road bridge standards. The department shall establish by rule uniform minimum design standards for the improvement of town road bridges.

82.51 History History: 1981 c. 20; 1987 a. 137 s. 6; 2003 a. 214 s. 83; Stats. 2003 s. 82.51.

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

82.52 82.52 Rules for town road standards. The department shall establish by rule uniform minimum geometric standards for the improvement of existing town roads.