Appeal costs; jurors' fees.
Highway damages; when payable, referendum to town meeting.
Unclaimed awards; mortgage and lien interest.
Discontinuance of highways; reversion of title.
Highway papers, where filed.
Highway orders; presumptions; limitation of actions.
Lost records; how restored; effect.
Changing streets into highways.
County board power to lay, alter and discontinue town highways.
Control of highways laid by county.
Discontinuing ways to waters.
Rights of abutting owners.
Highways and streets to cemeteries and fairgrounds.
Widening of highways; establishment of excess widths.
Creation, alteration and validation of highways. 80.01(1)(1)
Validation of highways, recording.
All highways laid out by the town supervisors, the county board or by a committee of the board, or by commissioners appointed by the legislature, or by any other authority, and recorded, any portion of which has been opened and worked for 3 years are legal highways so far as they have been so opened and worked. The filing of an order laying out any highway or a certified copy thereof in the office of the clerk of the town or the county in which the highway is situated is a recording of such highway within the meaning of this section.
(2) Unrecorded highways validated, exception; grants for highway purposes, presumptive width.
All highways not recorded which have been worked as public highways 10 years or more are public highways, and are presumed to be 4 rods wide, except that roads and bridges built upon the bottoms and sloughs of the Mississippi river by citizens or municipalities of any other state shall not become legal highways or a charge upon the town in which they are situated unless upon petition they are legally laid out by the town supervisors; nor shall any grant of lands for highway purposes, which has not become a legal highway prior to the first day of July, 1913, become effective for such purposes, unless the grant is accepted by the town board or by the town meeting of the town wherein the lands and proposed highway are situated, and until a resolution of such acceptance is recorded in the office of the town clerk; and in case any such laid out highways have not been fully and sufficiently described or recorded or if the records have been lost or destroyed the presumption shall be that they were laid 4 rods wide.
(3) Beautification and protection.
No lands abutting on any highway, and acquired or held for highway purposes, shall be deemed discontinued for such purpose so long as they abut on any highway. All lands acquired for highway purposes after June 23, 1931 may be used for any purpose that the public authorities in control of such highway shall deem to conduce to the public use and enjoyment thereof. Such authorities may improve such lands by suitable planting, to prevent the erosion of the soil or to beautify the highway. The right to protect and to plant vegetation in any highway laid out prior to said date may be acquired in any manner that lands may be acquired for highway purposes. It shall be unlawful for any person to injure any tree or shrub, or cut or trim any vegetation, or make any excavation in any highway laid out after said date or where the right to protect vegetation has been acquired, without the consent of the highway authorities and under their direction but such authorities shall remove, cut or trim or consent to the removing, cutting or removal of any tree, shrub or vegetation in order to provide safety to users of the highway.
(4) Highways, streets and alleys, piers, plats, curative provisions.
Every street, highway and alley, pier and slip, dedicated or attempted and intended to be dedicated in any plat or laid out, altered, vacated or discontinued, or attempted or intended to be laid out, altered, vacated or discontinued by the authorities of any county, town, city or village shall be held to have been lawfully so dedicated, laid out, altered, vacated or discontinued from and after the expiration of 5 years from the date of the deed, instrument, plat, order, resolution or other final proceeding had or taken to effectuate such purpose. No defect, omission or informality in the execution of any plat or deed of dedication or in any proceedings, order or resolution on the part of such authorities for the purposes aforesaid shall affect or invalidate such plat, deed, order or resolution or proceeding, after the expiration of 5 years from the date of the plat, deed, proceeding, order or resolution; provided, the street or alley laid out, or altered by such defective, or informal plat, deed, proceeding, order or resolution, shall be limited in length to the portion actually worked and used thereunder.
(5) Effect of reservation or exception in conveyance.
Whenever a deed, land contract or mortgage of lands abutting on an existing public street, highway or alley or a projected extension thereof hereafter executed and recorded contains language reserving or excepting certain lands for street, highway or alley purposes, such reservation or exception shall constitute a dedication for such purpose to the public body having jurisdiction over such highway, street, alley or projected extension thereof, unless the language of such reservation or exception plainly indicates an intent to create a private way. Such dedication may be accepted by resolution of the governing body having jurisdiction over such street, highway, alley or projected extension thereof.
Where government unit shows public use of road for 20 years or public maintenance for 10 years, landowner claiming that road is private has burden of proving permissive use. Ruchti v. Monroe, 83 W (2d) 551, 266 NW (2d) 309 (1978).
Municipalities may incur liability under (3) for failure to trim vegetation obstructing view at intersection. Walker v. Bignell, 100 W (2d) 256, 301 NW (2d) 447 (1981).
If a highway was established by user, the existence of ancient fences within 2 rods either side of the center of the highway is sufficient to rebut the sub. (2) presumption that the highway is 4 rods in width. Threlfall v. Town of Muscoda, 190 W (2d) 121, 527 NW (2d) 367 (Ct. App. 1994).
The test for whether a highway has been "worked" under sub. (2) 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 W (2d) 449, 550 NW (2d) 722 (Ct. App. 1996).
Rights-of-way boundaries of nondedicated roads discussed. 69 Atty. Gen. 87.
Town highways; petition to lay, alter or discontinue.
When 6 or more resident freeholders wish to have a highway laid out, widened, altered or discontinued in their town, they may make application in writing to the supervisors of said town for that purpose. The application may be delivered to any supervisor or to the town clerk. In case the application is for the discontinuance of all or of a part of any highway, and it is desired, as permitted by s. 80.05
, to omit from the notice the description of the lands abutting upon such highway which will be benefited, injured or damaged by the discontinuance of such highway or any part thereof, the application shall contain the description of the lands abutting upon such highway which will be benefited, injured or damaged by the discontinuance of such highway or any part thereof and shall be delivered to the town clerk with a request in writing that such application remain on file with the clerk until the time set for hearing for reference and inspection by any parties concerned. When all the owners of lands abutting on the part of a highway sought to be altered, desire such alteration, and the supervisors are of the opinion that the public will not be materially affected by such alteration, the board may make the same, and may take into consideration donations of money, land or services for the making of such alterations. When the laying out of a highway would require the construction of a bridge costing more than $1,000, exclusive of donations, the order of the supervisors laying out such highway shall not be effective unless approved by the electors of the town, and an estimate by the department of transportation shall be conclusive of the cost of such bridge for the purposes of this section. No town board shall discontinue any part of a state trunk or county trunk highway, nor discontinue any highway when such discontinuance would deprive the owner of lands of access therefrom to a highway.
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 such abutting lands by filing written notice of such discontinuance or relocation with the town clerk or county clerk and upon approval by the supervisors after holding a hearing as provided in s. 80.05
unless such discontinuance or relocation would deprive any other owner of lands access thereto from a highway. This section does not apply to state trunk highways or connecting highways.
History: 1977 c. 29
s. 1654 (3)
Restrictions on condemning for town highways. 80.03(1)(1)
No town highway shall be laid out through or upon any cemetery without the consent of those having the control of the cemetery; or through or upon any structure, yard or enclosure used for educational or charitable purposes.
Without the consent of the owner no town highway shall be laid out through or upon any garden or orchard or any building or fixture used for trade or manufacture or any other building or fixture or the yard or enclosure necessary to the use thereof, when the damage thereby caused thereto, exclusive of the damage to the land, exceeds $300.
The limitations in this section upon the power to condemn for highway purposes applies solely to highways laid out by town authority pursuant to this chapter.
When supervisor disqualified; vacancies. 80.04(1)(1)
No supervisor shall act in laying out, altering, widening or discontinuing any highway in which the supervisor may be personally interested. If one supervisor is interested the other two shall act; if two are interested the third supervisor shall act in the matter.
Whenever there shall be less than two supervisors in any town, the petition authorized by s. 80.02
may be made to the county board, which shall thereupon appoint a committee of three of its members. Said committee shall proceed and act upon such petition in the same manner and with the same powers in every respect as the supervisors of such town might do.
History: 1991 a. 316
Notice of meeting; service and publication. 80.05(1)(1)
On application made to supervisors for laying out, widening, altering or discontinuing any highway the supervisors shall prepare a notice fixing therein a time and place at which they will meet and decide upon the application. The notice shall specify, as near as practicable, the highway proposed to be laid out, widened, altered or discontinued and the tracts of land through which the highway passes or, if the application is for discontinuing the whole or any portion of the highway, the tracts of land abutting on the highway which will be benefited or injured by such discontinuance. When the description in the aggregate exceeds 200 words in length, the notice may state that such descriptions are contained in the application as provided in s. 80.02
, and shall give the name and address of the town clerk to whom the application has been delivered.
At least 10 days prior to the date of hearing give notice by registered mail to all occupants and owners of record of lands through which the highway may pass or, if the application is for discontinuance, to the occupants and to the owners of record of all lands abutting on the highway.
Give notice by registered mail to the department of natural resources and to the county land conservation committee in each county through which the highway may pass.
Proceedings after notice.
The supervisors shall meet at the time and place stated in their notice, and upon being satisfied that the notices required in s. 80.05
have been duly given, proof of which may be shown by affidavit or otherwise as they may require, shall proceed to examine personally such highway, and shall hear any reason that may be offered for or against laying out, widening, altering or discontinuing the same, and shall decide upon the application and shall grant or refuse the same as they shall deem best for the public good; and they may adjourn from time to time, not exceeding in all 30 days from the time of the first meeting, giving public notice of the time and place of such adjournment when made, and by forthwith filing notice of such adjournment in the office of the town clerk.
Order; survey; award; recording; presumptions. 80.07(1)(1)
When the supervisors lay out, alter, widen or discontinue any highway they shall make and sign an order therefor, incorporating therein a description of the highway and cause survey thereof to be made when necessary. The order shall be filed and recorded in the office of the town clerk, who shall note in the record the time of recording. The order together with the award of damages shall be so filed within 10 days after the date fixed by their notice or adjournment for deciding upon the application. In case the supervisors fail to file the order and award within the 10 days aforesaid they shall be deemed to have decided against the application. When an order has been filed for more than 30 years and no award of damages or agreement or release has been filed and when the highway, or a part thereof, has been used by the public and public money has been expended thereon, for at least 5 years, 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.
Whenever the supervisors lay out, alter or discontinue any highway the town clerk shall transmit a certified copy of the order therefor to the county highway commissioner.
Width of highways.
Except as otherwise expressly provided by s. 80.13
, highways shall be laid out at least three rods wide, and when no width is specified in the order the highway shall be 4 rods wide.
Damages; agreement, award.
The damages sustained by any person upon whose land any highway shall be laid out, widened, altered or discontinued may be fixed by an agreement signed by the owner and the supervisors and be filed in the town clerk's office. Such agreement and every release of damages given shall bar any further claim for damages by the owner and all persons claiming under the owner. If any owner, other than this state or the United States, does not so agree with the supervisors as to damages or does not deliver to the supervisors a written release of all claims for damages, the supervisors shall, at the time of making the highway order, assess the damages which the owner will sustain by reason of laying out, widening, altering or discontinuing the highway and shall make a written award specifying the sum awarded by them to each owner; and if any owner of land is unknown, the supervisors shall specify the damages awarded to the owner, and describe the owner's land in their award. The award shall be signed by the supervisors and be filed in the town clerk's office with the order laying out, widening, altering or discontinuing the highway.
History: 1991 a. 316
Considerations affecting damages.
If any part of a highway is discontinued at the time a new or altered highway is laid out, the benefits which any landowner derives from the discontinuance may be considered in fixing the damages sustained by the landowner in laying out the new or altered highway; and in fixing the damages sustained by any person in laying out, altering, widening or discontinuing any highway the benefits which the person receives thereby shall be taken into consideration.
History: 1991 a. 316
Highways on and across town lines. 80.11(1)
Whenever it shall be deemed necessary to lay out, alter, widen or discontinue a highway upon the line between two towns, or extending from one town into an adjoining town, it shall be done by the supervisors of said towns acting together, and if such highway is laid out or altered it may be either upon the town line or as near thereto as the situation of the ground will admit; and they may vary the same either on one side or the other of such line as they may deem necessary.
The application therefor shall be in duplicate, addressed to the supervisors of both towns, and be signed by at least 6 resident freeholders in each town; and be delivered to a supervisor or the clerk of each town. Upon receipt of such application the supervisors shall promptly fix a time and place for deciding thereon, and give notice thereof. The notices of the time and place of meeting shall be signed by a majority of the supervisors of each town, and published as a class 2 notice, under ch. 985
, in said towns, and served as required by s. 80.05
. A majority of the supervisors of each town shall meet jointly at the time and place named in the notice to decide upon such application and sign the order and the award of damages, and in all other things the proceedings shall be the same as are required by law in laying out, altering, widening or discontinuing highways wholly within a town. The orders, awards, notices and all papers shall be in duplicate, and one duplicate shall be filed with each town clerk, and the order shall be recorded in each town clerk's office.
The said supervisors, upon laying out, altering or widening such highway may determine, in the order, what part of such highway shall be made and kept in repair by each town, and what share of the damages, if any, shall be paid by each; and each town shall have all the rights and be subject to the liabilities in relation to the part of such highway to be made or repaired by it as if it were wholly located in such town. If no such apportionment shall have been made in the order laying out, altering or widening such highway or any part thereof; or if such highway or any part thereof shall have had its origin in user; or if in the judgment of said supervisors circumstances have so altered since the last previous apportionment or reapportionment of such highway or any part thereof as to render the same inequitable or impracticable, a majority of the supervisors of each town, meeting together, may make such order apportioning or reapportioning such highway or any part thereof as they may deem advisable, which order shall be filed as hereinbefore provided. When so made such order shall be of the same force and effect as an order made in connection with the original laying out of such highway. Any written order or agreement before August 27, 1947 made by a majority of the supervisors of each town concerned, acting together, apportioning or reapportioning a town line highway is hereby validated and shall be of the same force and effect as though made after said date. Where flowage crosses and covers a portion of a town line road, then that part of such order which previously fixed their respective liabilities shall be deemed vacated.
If by any change of the boundaries of either or both such towns including that caused by flowage the territory of either shall be increased or diminished, or in the event a portion of said town line highway is or has been taken over by the state or county under the state or county highway system, or if a new town or village be formed out of a part of the territory of either or both of said towns, having a portion of such town line highway within its borders or if a portion of a town line road is crossed and covered by flowage, that part of such order fixing their liabilities shall be deemed vacated, and a majority of the supervisors of each such town shall, before the time for making the next tax roll, meet together with a majority of the supervisors of such new town or with the president of such village, and all of them when so convened shall, if they can agree, make a new order apportioning the liabilities on account of such highway, which shall be filed as hereinbefore provided.
If they fail to make such order, or if the order laying out, altering or widening such highway shall not have apportioned the liability of the towns or village on account of such highway, the supervisors of either town or the president of said village, after ten days' notice of the time and place of so doing served on the clerk of each town and village to be affected, may apply to the circuit judge of the county in which such towns and village or the town or village on whose behalf such notice is given, for the appointment of three commissioners to apportion the liabilities of such towns and village on account of such highway.
Upon proper application such judge shall appoint three residents of such county as commissioners. They shall proceed, on not less than five days' notice in writing to the town and village clerks, to make such apportionment, and their determination shall be made in writing and filed with the clerk of each town and village affected, and shall have the same force and effect as an order of the supervisors, and the village president.
Any bridge on a highway between two towns, or between a town on one side and a village or a town and village on the other side, which highway has become such by reason of having been used and worked as provided in s. 80.01 (2)
, which bridge has not been assigned to either of the adjoining towns or village, shall be repaired and maintained by such towns and village, and the cost of repairs and maintenance shall be paid by them in proportion to the valuation of the property therein as equalized by the county board or boards at the last equalization.
Unless otherwise provided by statute or agreement every highway bridge on a town, village or city boundary shall be maintained by the municipalities in which it is located, each contributing to the expenses thereof in proportion to the last assessment of taxable property therein. Provided, however, that any bridge, or bridges, over any stream or river forming the boundary line between two counties erected or maintained solely by one of the adjoining municipalities, may be closed or discontinued by such municipality so maintaining the same when such adjoining municipality shall fail to cooperate in such maintenance in proportion to the amount of the cost thereof borne by said municipality, if erected at the joint expense of the two adjoining municipalities; or, if not so erected, then in the proportion of one-half the cost of such maintenance.
Highways on and across town and municipal boundaries.
Whenever it is deemed necessary to lay out, alter, widen or discontinue a highway upon the line between a town and city or village or lay out, alter, widen or discontinue a highway or any part thereof extending from a town to a city or village proceedings therefor may be had under s. 80.11
. The application therefor shall be in duplicate, addressed to the supervisors of the town and the common council of the city or the board of trustees of the village, and be signed by at least 6 freeholders of the town and 6 freeholders of the city or village. Thereupon such common council or board of trustees shall appoint 3 commissioners on the part of such city or village, who shall be duly sworn to faithfully discharge their duties as such commissioners before entering on the same. Such commissioners and town supervisors shall then give notice and proceed in all respects as provided in s. 80.11
; and such city or village shall be in like manner as a town responsible for that part of such highway determined to be made and kept in repair by the same and for the share of damages assigned to the same. The cost of repairs, improvement and maintenance of any highway laid out on a line between a city and a town or village or located on one or the other side of the line may be at the expense of such adjoining municipalities and the apportionment may be made as provided in s. 80.11 (3)
. The town board, village board and city council may cause any such highway or any part of such highway not less than 16 rods in length to be graded, paved, macadamized or otherwise improved, including the establishment of the grade and the construction of the curbs and gutters, and installation of water and sewer mains and service pipes, or either, and may levy special assessments for the whole or any part of the cost thereof as a tax upon such property as they shall determine as especially benefited thereby, in the manner provided in s. 66.60
. All proceedings and orders required to be filed and recorded shall be filed and recorded in the office of the city or village clerk as well as in the office of the town clerk.
History: 1991 a. 32
Highways and bridges on state boundaries.
A town or county board of any town or county bounded in part by a river, or by a highway, either of which is also a state boundary line may enter into agreement with the adjoining municipality in such other state for the maintenance and construction of boundary line bridges and for the maintenance and reconstruction of any boundary line highway including its bridges, by appropriation therefor not exceeding 50% of the total costs assignable to the boundary line facility.
Land excluded from highway. 80.13(1)
When any person shall present to the supervisors of any town an affidavit satisfying them that that person is the owner or lessee of real estate (describing the same) within said town, and that the same is shut out from all public highways, other than a waterway, by being surrounded on all sides by real estate belonging to other persons, or by such real estate and by water, or that that person is the owner or lessee of real estate (describing the same) and of a private way or road leading from said real estate to a public highway but that such road or way is too narrow, giving its width, to afford that person reasonable access to and from said real estate to said public highway, that that person is unable to purchase from any of said persons the right-of-way over or through the same to a public highway, or that that person is unable to purchase from the owner or owners of land on either or both sides of that person's way or road land to make such way or road of sufficient width, or that it cannot be purchased except at an exorbitant price, stating the lowest price for which the same can be purchased, the said supervisors shall appoint a time and place for hearing said matter, which hearing shall be after ten days and within thirty days of the receipt of said affidavit.
Notice of the time and place of meeting shall be served as required by s. 80.05
and published as a class 2 notice under ch. 985
The supervisors shall meet at the appointed time and place and shall then in their discretion proceed to lay out such highway of not more than three nor less than two rods in width to such real estate, or shall add enough land to its width to make it not less than two nor more than three rods in width, and shall assess the damages to the owner or owners of the real estate over or through which the same shall be laid or from whom land shall be taken and the advantages to the applicant.
But the damages assessed by the supervisors shall in no case exceed the price stated in the affidavit of the applicant; upon laying out such highway, or in adding to the width of a former private way or road, they shall make and sign an order describing the same and file the same with the town clerk together with their award of damages, which order shall be recorded by said clerk; provided, that the amount assessed as advantages to the applicant shall be paid to the town treasurer before the order laying out such highway shall be filed.
The following costs may be assessed to the applicant:
The cost of any survey or fee of any expert on valuation, or both, reasonably incurred by the town under subs. (3)
Whenever land in any town which is accessible, or provided with a right-of-way to a public highway, is subdivided and the owner thereof sells and transfers a part thereof or sells a parcel of said land by metes and bounds, which part or parcel would otherwise be landlocked and shut out from all public highways other than a waterway, by reason of being surrounded on all sides by real estate belonging to other persons or by such real estate and by water without an adequate right-of-way to a public highway, the seller shall in so subdividing said land or a part thereof or in selling a parcel of said land by metes and bounds provide a cleared right-of-way at least 50 feet in width which shall be continuous from the highway to each part, parcel, lot or subdivision sold. In case the seller fails to do so the town board may, pursuant to proceedings under this section, lay out a road from such inaccessible land to the public highway over the remaining lands of the seller without assessment to the latter of damages or compensation therefor.
A board loses jurisdiction to order the laying out of a highway when it orders damages to be paid in 60 days, because 80.07 requires the order and award to be filed in 10 days and under 80.13 (4) the damages must be paid before the order is filed. Northern States P. Co. v. Hunter Bd. of Supv. 57 W (2d) 118, 203 NW (2d) 878.
Town board of supervisors both lost jurisdiction to hear application under 80.13 (1) and was deemed to have denied same by adjourning for more than 30 days in contravention of 80.06. Trial court properly refused to review merits on certiorari under 80.34. Aggrieved party's proper remedy was appeal for appointment of reviewing commissioners under 80.17. Berschens v. Town of Prairie du Sac, 76 W (2d) 115, 250 NW (2d) 369.
When town board chooses to act on petition under (1), it need not lay road over land of seller under (5) but may lay road over land of another under (3). Gaethke v. Town Board, Town of Clay Banks, 86 W (2d) 495, 273 NW (2d) 764 (1979).
Highway from shut-off land through adjoining town.
When the owner of land that is shut out from all highways by being surrounded by lands belonging to other persons, and it is impracticable to lay out a road from that owner's land to a public highway in the town where the land is situated, and it is practicable to lay out a highway from said land to a highway in an adjoining town, that owner may execute an affidavit in duplicate and present one copy to a supervisor of the town where the land is situated and one copy to a supervisor of the town where the proposed highway is to be laid out. The affidavit shall set forth the facts above stated, together with the facts required in the affidavit provided under s. 80.13
. The supervisors of the 2 towns shall proceed as provided under said s. 80.13
, except that all orders and notices shall be signed by the supervisors of both and all papers required to be filed shall be made in duplicate and filed with each town clerk. The amount assessed as advantages to the applicant shall be paid by the applicant to the town treasurer of the town where the applicant's land is situated before the order laying out the highway is filed, and all damages assessed shall be paid by the town where the land of the applicant is situated.
History: 1991 a. 316
Highway to islands in Mississippi river.
The owner of an island in the bottoms of the Mississippi river which is shut out from the bank of said river and from a highway by islands and sloughs and by the lands of others, and a right-of-way through the same cannot be purchased at a reasonable price, may present to the supervisors of the town an affidavit setting forth such facts and describing that owner's land. The said supervisors shall then proceed according to the provisions of s. 80.13
and the provisions of said section shall apply to proceedings under this section. The town shall not be liable for want of repair or for defects in any highway laid out pursuant to this section nor for any accident or injury thereon.
History: 1991 a. 316
; 1993 a. 490
Shut-off school buildings; how laid.
Whenever a public school in any town is shut off from all public highways, the supervisors of the town shall lay out a highway to the site thereof. No application for such highway shall be necessary, but in every other respect the procedure for laying out an ordinary town highway shall be pursued. No highway shall be discontinued when the effect of such discontinuance shall be to exclude a public school from access to the public highways. Section 80.22
shall not apply to proceedings under this section.
Appeal from highway order.
Any order of the town supervisors laying out, altering, widening or discontinuing any highway, or refusing so to do, is subject to judicial review under s. 68.13
, except that only a person aggrieved by the order or determination may seek review. Failure of the supervisors to file their decision upon any application to lay out, alter, widen or discontinue any highway within 60 days after the application is made shall be deemed a refusal of the application. In case of highways upon a line between 2 counties the appeal may be made to the circuit court of either county.
History: 1977 c. 449
; 1995 a. 186
Entry of judgment was beyond circuit judge's jurisdiction under this section. Town Board of Town of Taycheedah v. Webb, 118 W (2d) 362, 348 NW (2d) 591 (Ct. App. 1984).