Chapter 82

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.

82.27(6) (6) Real estate landlocked by sale. In a town, if the owner of land that is accessible or that is provided with an easement to a public highway subdivides and transfers any part of the land, the owner shall provide a cleared easement at least 66 feet in width that shall be continuous from the highway to the part of the subdivision sold. If the seller fails to provide the required easement, the town board may, pursuant to proceedings under this section, lay out a road at least 66 feet wide from the inaccessible land to the public highway over the remaining lands of the seller without assessment of damages or compensation to the seller.

82.27(7) (7) Laying out a highway to an adjoining town. If it is impracticable to lay out a highway to an existing highway that is in the town where the land is situated, a landowner may apply to have a highway laid out to a highway in an adjoining town. The application shall comply with the requirements of sub. (2), except that the affidavit shall also state that it is impracticable to lay out a new highway to an existing highway in the town where the land is located and that it is practicable to lay out a highway to an existing highway in the adjoining town. The owner shall execute the application in duplicate and present one copy to the clerk of the town where the land is located and one copy to the clerk of the town where the proposed highway is to be laid out. The town boards shall proceed as provided in this section, except that all orders and notices shall be signed by both boards, and all papers required to be filed shall be made in duplicate and filed with each town clerk. The applicant shall pay the amount determined as advantages to the treasurer of the town in which the applicant’s land is situated within 30 days of the decision. The order shall be recorded within 10 days of payment. All damages assessed shall be paid by the town where the applicant’s land is situated.

82.27(8) (8) Highway to islands in Mississippi River.

82.27(8)(a) (a) The owner of an island in the bottoms of the Mississippi River may submit an application under this section if the island is shut out from the bank of the river and from all highway access by islands, sloughs, and the lands of others, and the owner cannot purchase any highway access at a reasonable price.

82.27(8)(b) (b) The application shall describe the affected land and shall contain an affidavit that recites the facts in par. (a).

82.27(8)(c) (c) The town shall not be liable for lack of repair or for defects in a highway laid out pursuant to this subsection, nor shall the town be liable for any accident or injury on a highway laid out under this subsection.

82.27(9) (9) Limit on applications. The determination to deny an application under this section shall be final for the term of 3 years. No application to lay out a highway to the same property shall be considered within 3 years from the date of the refusal.

82.27(10) (10) Highway to remain public for at least 2 years. A highway laid out under this section shall be a public road and shall remain and be maintained as a public road for at least 2 years from the date of the order.

82.27 History History: 2003 a. 214 ss. 63 to 71, 170.

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

82.27 Annotation A town board need not lay the road over land of the seller under s. 80.13 (5) [now sub. (6)] but may lay the road over land of another under s. 80.13 (3) [now sub. (4)]. Gaethke v. Town Board, 86 Wis. 2d 495, 273 N.W.2d 764 (1979).

82.27 Annotation In the exercise of the discretion provided for under s. 80.13 (3) [now sub. (4)], the town board may elect not to lay out a town road at all. Tagatz v. Township of Crystal Lake, 2001 WI App 80, 243 Wis. 2d 108, 626 N.W.2d 23, 00-1035.

82.28 82.28 Highways and bridges on state boundaries. The board of any town or county that is bounded in part by a river or a highway that is also a state boundary line may enter into an agreement with any adjoining municipality or county in the other state for the maintenance, construction, and reconstruction of boundary line highways and bridges. The costs shall be apportioned by agreement.

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:

- See PDF for table

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