Chapter 82

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.

82.20 History History: 1991 a. 316; 1999 a. 97; 2003 a. 214 ss. 77 to 79; Stats. 2003 s. 82.20.

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

subch. III of ch. 82 SUBCHAPTER III

SPECIAL PROCEDURES

82.21 82.21 Highways on and across town and municipal lines.

82.21(1) (1) Initiating the procedure. The procedure to lay out, alter, or discontinue a highway on the line between a town and another town, a city, or a village, or a highway extending from one town into an adjoining town, city, or village, shall begin only when one of the following occurs in each affected municipality:

82.21(1)(a) (a) Six resident freeholders of the town, city, or village deliver an application to lay out, alter, or discontinue a town line highway to the clerk of every town, city, or village that would be affected by the proposal.

82.21(1)(b) (b) The town board, city council, or village board introduces a resolution to lay out, alter, or discontinue a town line highway.

82.21(2) (2) Contents of the application or resolution. An application or resolution under sub. (1) 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. Upon completion of the requirements of sub. (1), the governing bodies of the municipalities, acting together in cooperation, but voting upon applications or resolutions as separate governing bodies, shall proceed under ss. 82.10 to 82.13.

82.21(3) (3) Appointment of city or village commissioners. Upon receipt of an application or introduction of a resolution, the city council or village board may appoint 3 commissioners to act on behalf of the affected city or village in all respects. The commissioners shall be duly sworn to faithfully discharge their duties as commissioners before entering upon those duties.

82.21(4) (4) Apportionment of authority and responsibility.

82.21(4)(a) (a) A highway order issued by 2 towns or by a town and a city or village may designate the part of the highway that each shall construct and repair, and pay the damages for, if any. As to the portion of the highway that the town, city, or village agrees to construct, keep in repair, and pay damages for, the town, city, or village shall have all of the authority and be subject to all of the responsibility in relation to that part of the highway as if that part were wholly located in the town, city, or village.

82.21(4)(b) (b) Two town boards or a town board and a city council or village board, meeting together, may make an order in accordance with par. (a) apportioning or reapportioning the authority and responsibility for a town line highway or any part of a town line highway that they consider advisable, if any of the following conditions exists:

82.21(4)(b)1. 1. No apportionment has been made in a highway order.

82.21(4)(b)2. 2. The highway or part of the highway had its origin in user.

82.21(4)(b)3. 3. In the judgment of the town boards, or the town board and the city council or village board, circumstances have been so altered since the last apportionment of the highway or part of the highway that the current apportionment has been rendered inequitable or impracticable.

82.21(4)(c) (c) An order made under par. (b) shall be filed with the clerk of each affected municipality and shall have the same effect as an apportionment made in connection with the original highway order.

82.21(4)(d) (d) Any written order or agreement made before August 27, 1947, by a majority of the supervisors of each town concerned, acting together, apportioning, or reapportioning a town line highway has the same effect as though made on or after August 27, 1947.

82.21(5) (5) Appeal of apportionment.

82.21(5)(a) (a) If an order laying out or altering a town line highway has not apportioned the authority and responsibility for the highway or if a municipality considers the current apportionment to be inequitable, an affected municipality may apply to the circuit judge of the county in which the affected municipality is located, for the appointment of 3 commissioners to apportion the authority and responsibility between each affected municipality. The municipality filing the application shall serve a copy of the application on the clerk of each municipality to be affected. The circuit judge may set the time and place of the hearing before the commissioners at least 10 days after the application is filed with the judge.

82.21(5)(b) (b) Upon receipt of an application under par. (a), the circuit judge shall appoint 3 residents of the county as commissioners. The commissioners shall, on not less than 10 days’ notice nor more than 60 days’ notice in writing to the clerk of each affected municipality, apportion the authority and responsibility of each affected municipality on account of the highway. The commissioners shall make the determination in writing and shall file the determination with the clerk of each affected municipality. The commissioners’ determination shall have the same effect as an order made under sub. (4).

82.21(6) (6) Where papers filed. All awards, notices, and papers required to be filed shall be filed in the office of the clerk of each affected municipality. Any highway orders issued under this section shall be recorded with the register of deeds for any county in which the highway is or will be located.

82.21 History History: 2003 a. 214 ss. 46 to 53, 58, 60, 169; 2015 a. 11.

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

82.21 Annotation “Acting together” in sub. (2) does not require that separate votes taken by two governing bodies in deciding an application to lay out, alter, or discontinue a public highway on or across municipal lines be counted in the aggregate as if the two bodies voted as one. Approval of both boards is necessary to approve an application. Dawson v. Town of Jackson, 2011 WI 77, 336 Wis. 2d 318, 801 N.W.2d 316, 09-0120.

82.23 82.23 Municipal line bridges. Unless otherwise provided by statute or agreement, every highway bridge on a city, village, or town boundary shall be repaired and maintained by any adjoining municipality in which the bridge is located. The cost of repairs and maintenance shall be paid by the adjoining municipalities in proportion to the last equalized valuation of the property in the adjoining municipalities.

82.23 History History: 2003 a. 214 s. 54.

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

82.25 82.25 Highway taxes for limited-use road. Notwithstanding s. 60.10 (1) (a) and (2) (a), the town board may levy and collect a tax on property located in a recorded and filed plat that existed on January 1, 2003, situated in a town requiring the approval of such town board, and adjoining a private road used by the public located therein, and on property adjoining, where the owner regularly uses such road which is not a portion of any town, county, state, or federal highway system, not exceeding 3 mills for each dollar of assessed valuation thereof. The proceeds of the tax shall be expended for the improvement and maintenance of any private roads used by the public located within the recorded and filed plat. The town board shall not expend any of the funds collected under this section upon a private driveway.

82.25 History History: 1985 a. 29; 1991 a. 316; 1997 a. 35; 1999 a. 96; 2003 a. 214 s. 129.

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

82.27 82.27 Landlocked property and property with insufficient highway access.

82.27(1) (1) Definition. In this section, “advantages” means the greater of the following:

82.27(1)(a) (a) The increase in value of the landlocked property after the highway is laid out or the way or road is widened.

82.27(1)(b) (b) The administrative costs under sub. (5), and the estimated cost of constructing or widening the highway, including both the cost of constructing a turnaround, if one is necessary, and the damages paid to the owner of the land over which the highway is laid out or the way or road is widened.

82.27(2) (2) Application. The owner of real estate located within a town may apply to the town board to have a highway laid out to the owner’s land. Except as provided in sub. (7), the application shall be delivered to the town clerk of the town in which the real estate is located. The application shall contain an affidavit, executed by the applicant, that describes the affected real estate and recites facts that satisfy the board that the circumstances either in par. (a) or in par. (b) exist:

82.27(2)(a) (a) The real estate is shut out from all public highways by being surrounded by real estate owned by other persons, or by real estate owned by other persons and by water, and that the owner is unable to purchase a right-of-way to a public highway from the owners of the adjoining real estate or that such a right-of-way cannot be purchased except at an exorbitant price, which price shall be stated in the affidavit.

82.27(2)(b) (b)

82.27(2)(b)1. 1. The owner is the owner of a private way or road, whose width shall be stated in the affidavit, that leads from the described real estate to a public highway but the way or road is too narrow to afford the owner reasonable access from the described real estate to the public highway; and

82.27(2)(b)2. 2. The owner is unable to purchase a right-of-way from the described real estate to a public highway, or is unable to purchase land on either or both sides of the existing way or road to make the way or road of sufficient width or that the right-of-way or additional land cannot be purchased except at an exorbitant price, which price shall be stated in the affidavit.

82.27(3) (3) Setting the hearing date; notice. Upon receipt of an application under sub. (2), the town board shall set a time and place to conduct a hearing regarding the application. The hearing shall be held after 10 days and within 30 days of the receipt of the application by the town board. Notice of the time and place of the hearing shall be served as required by s. 82.10 and published as a class 2 notice under ch. 985.

82.27(4) (4) Hearing.

82.27(4)(a) (a) The town board shall meet at the time and place stated in the notice and decide, in its discretion, whether to grant the application. The board may grant the application by either laying out a new highway across the surrounding land or by adding land to the existing way or road described in the affidavit. If the board decides to lay out a new highway, the new highway shall be at least 66 feet wide unless the board determines this width to be impracticable. If the board decides to widen an existing way or road, the resulting highway shall not be less than 49.5 feet nor more than 66 feet in width.

82.27(4)(b) (b) The town board shall determine the damages to the owner or owners of the real estate on which the highway shall be laid out or from whom land shall be taken and the advantages to the applicant. The town board may not determine damages in an amount exceeding the price stated in the affidavit of the applicant.

82.27(4)(c) (c) Upon laying out a highway or widening a private way or road, the town board shall issue a highway order. If it is necessary to include a turnaround, the turnaround shall be laid out on the applicant’s land. The applicant shall pay the town treasurer the amount determined as advantages within 30 days of the board’s decision. Within 10 days of payment, the town board shall file the order with the town clerk and record the order with the register of deeds for the county in which the land is located.

82.27(5) (5) Charging costs to the applicant. If the town board grants the application, the items listed in pars. (a) to (d) may be included in the determination of advantages. If the town board denies the application, 50 percent of all of the following may be charged to the applicant as a special charge under s. 66.0627:

82.27(5)(a) (a) Attorney fees reasonably incurred by the town.

82.27(5)(b) (b) The cost of any survey or the fee of any expert on valuation, or both, reasonably incurred by the town.

82.27(5)(c) (c) Administrative costs such as clerical costs and publication costs.

82.27(5)(d) (d) If special meetings are held only for the purpose of considering the application, per diem compensation for the supervisors.