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).
Determination final for a year unless appealed.
The determination refusing to lay out, alter, widen or discontinue any highway shall be final, unless appealed from, for the term of one year after the making of such determination; and no other application for laying out, widening, altering or discontinuing any such highway shall be acted upon within said term of one year.
Removal of fences from highway; notice. 80.23(1)(1)
Whenever pursuant to this chapter, any highway is laid out, widened or altered through inclosed, cultivated or improved lands and the determination has not been appealed from, the highway authorities shall give the owner or occupant of such lands notice in writing to remove the fences located thereon within such time as they shall deem reasonable, not less than 30 days after giving such notice; and if the owner or occupant does not remove the fences within the time required in such notice the highway authorities shall cause the fences to be removed and shall direct the highway to be opened; but if the determination has been appealed from, the notice shall be given after the final decision of the appeal.
This section does not authorize the opening of a highway through such lands or the removal of fences between May 15 and September 15, except in cases of emergency to be determined by the highway authorities.
History: 1991 a. 316
Appeal from award of damages by owner. 80.24(1)(1)
Except as provided in sub. (2)
, an owner of lands through which a highway is laid out, widened, altered or discontinued who is not satisfied with the award of damages under s. 80.09
may, within 30 days after the filing of the award, appeal to the circuit judge for a jury to assess the damages.
An owner of lands through which a highway is laid out, widened, altered or discontinued who has appealed under s. 80.17
from the order laying out, widening, altering or discontinuing the highway and who is not satisfied with the award of damages under s. 80.09
may, within 30 days after the entry of a final order on the appeal affirming the order, appeal to the circuit judge for a jury to assess the damages.
An appeal under this section shall be in writing, describing the premises.
An appeal under this section may be joined in by any number of persons claiming damages on account of the highway.
The appellant shall serve on 2 of the supervisors of the town in which the highway is situated, or upon 2 or more of the supervisors or commissioners of the town, city or village who have been assigned the duty of paying the damages for the land, at least 6 days before making the appeal, a notice in writing, specifying the following:
The name of the judge to whom the appeal will be made.
The place where the appeal will be made.
If more than one appeal is taken from the award of damages on account of any highway, the appeals shall be consolidated by the circuit judge, and only one jury shall be selected to reassess the damages.
History: 1977 c. 449
; 1995 a. 225
; Sup. Ct. Order No. 96-08
, 207 W (2d) xv (1997).
Taxpayer may appeal; service of notice.
Any taxpayer of a town or other municipality in which a highway is laid out, altered or discontinued or any part thereof is situated, and which is required to pay damages resulting therefrom, may appeal within 30 days after the award or agreement determining the damages has been filed with the town, city or village clerk, to the circuit judge for a jury to assess the damages sustained by the persons to whom damages were awarded or are to be paid. The appeal shall be in writing, describing the premises and naming the persons to whom damages are to be paid, and the amount awarded to each, and shall specify the particular award from which the taxpayer appeals in case he or she does not appeal from all. The appellant shall serve upon 2 of the supervisors of the town or upon 2 of the commissioners of the city or village to which has been assigned the duty of paying the damages and upon the persons whose awards are appealed from, at least 6 days before making application, a notice in writing specifying therein the name of the judge to whom and the time and place appellant will apply for the selection of the jury.
History: 1977 c. 449
The appellant shall execute to the proper town, city or village and file with the judge a bond with one or more sureties to be approved by such judge. In case the appeal is by a landowner, the bond shall be conditioned to pay all costs arising from such appeal if the jury shall not award the appellant an increase of damages. In case of an appeal by a taxpayer as such, the bond shall be conditioned that the appellant shall pay all costs arising from such appeal if the amount of damages in the aggregate of the items appealed from shall not be diminished upon the appeal.
History: 1991 a. 316
Substantial compliance with this section is not sufficient. Providing a signature bond rather than a surety bond was grounds for dismissal. Breuer v. Town of Addison, 194 W (2d) 617, 534 NW (2d) 634 (Ct. App. 1995).
Selection of jury; penalty for refusal to serve.
Upon filing the bond and notice with proof of service thereof, the judge shall make out a list of 15 disinterested resident freeholders of the county, not of kin to the owner or occupant of the lands. Each party shall strike 5 from such list, and if none of the proper supervisors or commissioners or other appellee is present, the judge shall strike off the 5 names for them, and the judge shall thereupon issue an order to the sheriff or some constable of the county to summon the 5 persons named in such list and not stricken off to meet at a time and place to be specified in such order to appraise the damages, the award of which has been appealed from. In case any juror fails to appear at the time and place fixed for their meeting another juror shall be summoned in the missing juror's place. Any juror may be excused for good cause, and if any juror duly summoned and not excused fails to serve that juror shall forfeit not to exceed $10, and shall be liable to the party having the costs of the appeal to pay for additional costs made in consequence of such failure.
History: 1991 a. 316
Proceedings before jury; costs.
The jury shall be sworn by the judge justly and impartially to make such appraisal, and shall proceed to view such highway, and hear the statements and proofs of the parties, and such jury may increase or diminish the amount awarded, and they shall make return of their appraisal to the judge signed by them; and in case of appeal by a landowner if the jury shall increase the award the costs and expenses shall be paid by the proper town, city or village; but if the jury shall not increase the award the costs and expenses shall be paid by the appellant, and in case of an appeal by a taxpayer if the award appealed from is diminished the costs and expenses shall be paid by the town, city or village, otherwise by the appellant. In case of cross-appeals if the damages involved therein are unchanged each appellant shall pay half of said costs and expenses. If the jury shall fail to agree and be discharged by the judge for that reason the judge shall immediately proceed to make another list of such freeholders, and further proceedings shall be had thereon in all respects as in the case of a first jury. When the jury shall have made a return of their appraisal to the judge, the judge shall adjust the costs and expenses of such proceedings, and within 10 days thereafter return such appraisal to the town clerk, together with all the other papers relating to such appeal, a statement of the proceedings had before the judge, and of the cost and expenses in detail, duly certified by the judge, which shall be forthwith filed by the clerk; and if two towns or a town and city or village be interested the judge shall make and file a certified copy of the appraisal papers and statements with the clerk of such other town, city or village.
History: 1991 a. 316
Appeal costs; jurors' fees.
Each juror shall receive $3 for services and 10 cents a mile for actual and necessary travel in going to and returning from the place of meeting, payable in advance by the party appealing, and to be a charge against the party finally liable for the costs.
History: 1991 a. 316
Highway damages; when payable, referendum to town meeting. 80.30(1)(1)
All damages awarded against a town, city or village upon laying out, widening or altering any highway shall not be paid until the highway is opened by lawful order. No liability for such damages shall exist for any highway discontinued before being opened.
When the total amount of damages chargeable to one town, consequent upon one order laying out, widening or altering a highway, is more than one-tenth of one per cent on the taxable property of the town, as shown by the last assessment, and exceeds $2,000, the highway shall not be opened, widened or altered nor liability for damages exist, unless the order and the award of damages are approved, and the highway is accepted by a majority of the electors of the town voting thereon at the next annual town meeting or some special town meeting sooner called therefor.
All costs and fees and damages for which any town, city or village is liable under this chapter shall be audited and paid and may be sued for and collected as other debts against the town, city or village.
When any order is given pursuant to this section and there is no available money in the treasury to pay the order, the clerk of the municipality shall place the same on the next tax roll with interest thereon from the date of the order in the same manner as a tax to pay a judgment, and the same shall be in like manner collected and paid to the party entitled thereto.
When any damages are awarded, pursuant to an order laying out, widening or altering a highway, lying wholly within a town whose population is 8,000, or over, or wholly within a county having a population of 300,000, or over, the order or award need not be approved or the highway accepted by the electors.
Unclaimed awards; mortgage and lien interest. 80.31(1)(1)
If the damages awarded to an owner of land are not claimed within one year after they become payable, the damages shall be paid by the town, city or village treasurer to the county treasurer who shall provide the town, city or village treasurer with a receipt.
The county treasurer shall report and deliver the unclaimed damage awards as provided under ch. 177
In case any lands taken by contract or condemnation for highway purposes shall be encumbered, and the owners of the fee and of the encumbrance shall not agree upon the division to be made between them of any damages to be paid on account of such taking, said damages may be paid to the clerk of the circuit court of the county, and when so paid may be apportioned among the parties entitled thereto by said court upon the application of any party interested upon not less than 5 days' written notice to the other party.
History: 1983 a. 408
; 1995 a. 225
Discontinuance of highways; reversion of title. 80.32(1)(1)
Any unrecorded road or any part thereof which has become or is in the process of becoming a public highway by user in any town may be discontinued in the manner hereinbefore provided. Any proceedings taken therefor shall not be evidence of the acceptance at any time by the town of such road or any part thereof.
Except as provided in sub. (5)
, every highway shall cease to be a public highway at the expiration of 4 years from the time it was laid out, except such parts thereof as shall have been opened, traveled or worked within such time, and any highway which shall have been entirely abandoned as a route of travel, and on which no highway funds have been expended for 5 years, shall be considered discontinued.
When any highway shall be discontinued the same shall belong to the owner or owners of the adjoining lands; if it shall be located between the lands of different owners it shall be annexed to the lots to which it originally belonged if that can be ascertained; if not it shall be equally divided between the owners of the lands on each side thereof.
Whenever any public highway or public ground has been vacated or discontinued the easements and rights incidental thereto acquired by or belonging to any county, school district, town, village or city or to any utility or person in any underground or overground structures, improvements or services and all rights of entrance, maintenance, construction and repair of the same shall continue, unless written consent to the discontinuance of such easements and rights by the owner thereof is a part of the vacation or discontinuance proceedings and reference thereto is made in the vacation or discontinuance resolution, ordinance or order, or discontinued by failure to use the same for a period of 4 years from the time that the public highway or public ground was vacated or discontinued. Upon the failure of the interested parties to reach an agreement permitting discontinuance of such easements and rights or upon refusal of the owner of such easements and rights to give written consent to the discontinuance thereof, such easements and rights may be discontinued in the vacation or discontinuance proceedings in any case where benefits or damages are to be assessed as herein provided. Damages for the discontinuance of such easements and rights, in the amount of the present value of the property to be removed or abandoned, plus the cost of removal, less the salvage thereon, or in such other amount as may be agreed upon between the interested parties, shall be assessed against the land benefited in the proceedings for assessment of damages or benefits upon the vacation or discontinuance of the public highway or public ground. The owner of such easements and rights, upon application to the treasurer and upon furnishing satisfactory proof shall be entitled to any payments of or upon such assessment of damages. Any person aggrieved by such assessment may appeal therefrom in the same time and manner as is provided for appeals from assessments of damages or benefits in vacation or discontinuance proceedings in the town, village or city.
(5) Subsection (2)
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.
History: 1997 a. 172
Highway papers, where filed.
All applications, orders, awards, bonds and other papers relating to the laying out, altering, widening or discontinuing of highways shall be promptly filed in the office of the town, city or village clerk, except as otherwise specifically provided in this chapter.
Highway orders; presumptions; limitation of actions. 80.34(1)(1)
Every order of the supervisors or the supervisors and commissioners or of the county board or a committee thereof laying out, widening, altering or discontinuing any highway, or restoring the records thereof, and the order of any commissioners reversing or affirming the same on appeal, and the record or certified copy thereof shall be presumptive evidence of the facts therein stated and of the regularity of all the proceedings prior to the making of such order.
The validity of any such order if fair on its face shall not be open to collateral attack, but may be tested by certiorari or other proper action or proceeding brought directly for that purpose if commenced within the time after the order is made provided by s. 893.73 (2)
History: 1979 c. 323
The several supervisors and commissioners authorized to lay out highways are authorized to administer and certify to any oaths or affidavits required by the provisions of this chapter.
Lost records; how restored; effect.
Whenever the record of the laying out of any highway has been or shall be lost or destroyed the supervisors of the town in which such highway is situated may make a new record thereof by a written order, which shall be entered on the town records. Whenever the supervisors shall contemplate making such new record they shall make a notice and fix therein a time and place at which they will meet and decide upon the same, which notice shall specify as near as may be the highway as to which they propose to make such record. Such notice shall be served as provided by s. 80.05
; but notice need not be given to such persons as waive the same or consent to the making of the order either before or after it is entered. The supervisors shall meet pursuant to the notice given and hear any arguments or evidence that may be offered for or against the proposed new record, and thereupon decide as they deem proper. They may adjourn from time to time, and an entry of each adjournment shall be made in the record by the town clerk. If they find that the highway is a legal one the record whereof is lost or destroyed, they shall make an order determining such facts and specifying the course, width and other pertinent description of the highway, and such order shall be filed and recorded in the office of the town clerk, who shall note the time of recording it in the record. Any number of highways may be included in one such notice or order, and a failure or refusal to make a new record for any highway shall not preclude a subsequent proceeding for that purpose. Any person through whose land such highway shall pass may appeal from such order on the ground that the highway described therein was not theretofore a legal highway in fact in the time and manner provided for appealing from orders laying out highways, and like proceedings, as near as may be, shall be had thereon as in case of appeals from such orders. The regularity of such proceedings shall not be called in question by any person except owners of land on whom such notice should have been served but on whom it was not in fact served, and persons claiming under such owners.
Changing streets into highways. 80.38(1)
The town board of any town within which is situated any village or other plat duly certified and recorded and not included within the limits of any incorporated village may make an order to be recorded by the town clerk declaring such streets and alleys in the village or other plat as they deem necessary for the public use to be public highways, without any other survey or description than that made in the recorded plat.
If 6 or more freeholders residing within the limits of the village or other plat wish any streets in the plat to be so declared public highways and opened to public use, they may apply to the town board for that purpose in the manner provided in s. 80.02
. Upon that application, the town board shall make and file an order, within 10 days, declaring the streets to be public highways or refusing so to do. In either case, any person considering himself or herself aggrieved by the order may appeal to the circuit court for the same county by filing with the town clerk a notice of appeal, specifying the grounds of appeal, within 20 days from the filing of the order, together with a written undertaking of the appellant, with one or more sufficient sureties, to be approved by the town clerk for the payment of all costs that may be awarded against the appellant, and paying to the clerk the fee prescribed in s. 814.61 (8) (am) 1.
Within 20 days thereafter the town clerk shall deliver to the clerk of the circuit court all the papers in the case, together with the notice of appeal, with the date of service endorsed thereon, and pay the fee prescribed in s. 814.61 (8) (am) 1.
; whereupon the clerk of the circuit court shall enter an action in the court record in which the appellant is the plaintiff and the town is the defendant. The issues as shown by the papers and the appeal shall be tried without further pleading, the same as in personal actions in circuit court, and judgment rendered and enforced as in other actions in which persons and municipal corporations are parties.
County board power to lay, alter and discontinue town highways. 80.39(1)(a)(a)
The county board may lay out highways in the county, and may widen, alter or discontinue any highway or part thereof laid out by the board upon the petition of not less than 10 resident freeholders of each town in which the highway or any part thereof is proposed to be laid out, widened, altered or discontinued, except that the board may not discontinue any part of a state trunk highway. All the powers herein granted may be exercised by a committee of not less than 3 members of the board. Whenever the supervisors of adjoining towns in different counties cannot agree in laying out a highway extending from one town into the other and the supervisors of one town lay out a highway up to the line of the adjoining town, the county board of the county in which such latter town lies may, upon like petition, lay out such highway in continuation as the public interests may require.
In every county having a population of at least 150,000 the county board, upon a vote of two-thirds of its members, may exercise the powers conferred by this section, without any petition therefor, and shall proceed thereafter in that behalf as in cases of petition duly made.
Upon such petition the county board or the commissioners appointed by the board shall give notice of the time and place they will meet to decide on the petition. The notice shall be published as a class 2 notice, under ch. 985
. The notice shall also be given to the department of natural resources by serving a copy upon the secretary of natural resources either by registered mail or personally. If the board appoints a committee to act, the notice shall state the fact and the notice shall be signed by the commissioners, otherwise by the chairperson of the board.
(3) Proceedings; hearing; orders, filing; appeals.
At the time and place mentioned in the notice and upon proof by affidavit of the publication or posting thereof the board or its committee shall examine the highway and hear any reasons that may be offered by parties interested therein, and for that purpose may adjourn, as town supervisors are authorized to do in similar cases. If a committee acts, it shall report its determination and award of damages. Upon the receipt of the report or, when the board shall act without a committee, upon its determination, it shall make an order laying out, altering, widening or discontinuing such highway or refusing so to do, which order shall be signed by the chairperson and county clerk and filed and recorded in the county clerk's office. The order shall describe any highway which is laid out, altered, widened or discontinued, and when necessary the board may cause a survey to be made for that purpose, and shall also cause a copy of the order to be filed in the office of the town clerk of each town in which any part of the highway laid out, altered, widened or discontinued lies within 10 days after the making of the order. Any person who feels aggrieved by the determination refusing to lay out, alter, widen or discontinue the highway may appeal in the same manner and subsequent proceedings shall be had thereon the same as provided by this chapter in cases where the town board of supervisors refuse to lay out, alter, widen or discontinue any highway.
(4) Damages, how fixed and paid; filing award.
The damages sustained by any person through whose land any such highway is laid out, altered, discontinued or widened may be ascertained by agreement between the county board or its committee and the owner. Every such agreement shall be in writing signed by the owner and the chairperson of the board or by its committee and filed in the office of the county clerk, and shall bar the owner and all persons claiming under the owner from further claim for damages. In case of failure to agree, the damages shall be assessed by the county board or by its committee, and the award shall be filed in like manner. The damages so assessed shall be paid by the town in which the land is situated or by such town and other towns in such proportion as the county board shall direct at the time of making the order laying out, altering, discontinuing or widening the highway if the board shall deem other towns benefited thereby. The county clerk shall make and file a copy of every agreement for damages and of the assessment therefor with the town clerk of each town liable for the payment of the same or any portion thereof within 10 days after the order laying out, altering, discontinuing or widening the highway is made.
(5) Appeal; vote before liability attaches; collection of damages.
Appeals from the award of damages may be taken, heard and conducted in all respects as appeals taken from similar awards by town supervisors; but whenever the total amount of damages chargeable to any town in consequence of any such order shall be $1,500 or more the highway shall not be opened, widened, discontinued or altered unless the order be approved and the highway or the discontinuance thereof be accepted by a majority of the electors of the town liable for such damages voting thereon at the next annual or some special town meeting called therefor. Every town chargeable with such damages or any part thereof shall be liable for payment thereof, and the same shall be collected and paid as provided in s. 80.30
(6) Compensation to county board members.
For services performed in laying out, widening, altering or discontinuing any highway every member of the county board or of its committee shall receive the per diem and mileage allowed them by ss. 59.10
(7) Highway opened.
Highways so laid out by county boards shall be opened and repaired in the respective towns in the same manner as other highways; but if the town board neglects or refuses to open the highway the county board may open the same.
See s. 840.11
, requiring applicant for change in highway to file notice of pendency of the application.