Any taxpayer of a 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 from the laying out, alteration or discontinuation, may, within 30 days after the award or agreement determining the damages has been filed with the municipal clerk, appeal to the circuit court of the county for a jury to assess the damages sustained by the persons to whom damages were awarded or are to be paid.
The appeal under this section 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, unless appealing from all of the awards, shall specify the particular award from which the taxpayer appeals. The appellant shall serve written notice of the appeal upon 2 of the supervisors of the town or 2 of the commissioners of the city or village that is responsible for paying the damages and upon the persons whose awards are appealed from.
The notice under sub. (2)
shall be served at least 6 days before the appellant makes the application for the jury to assess damages. The notice shall state the name of the judge who will hear the application and the time and place of the hearing.
History: 1977 c. 449
; 1999 a. 97
The appellant under s. 80.24
shall execute to the proper town, city or village and file with the circuit court a bond with one or more sureties to be approved by the circuit court. In case the appeal is by a landowner, the bond shall be conditioned to pay all costs arising from the appeal if the jury does not award the appellant an increase of damages. In case of an appeal by a taxpayer under s. 80.25
, the bond shall be conditioned that the appellant shall pay all costs arising from the appeal if the amount of damages in the aggregate of the items appealed from is not diminished as a result of the appeal.
History: 1991 a. 316
; 1999 a. 97
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 Wis. 2d 617
, 534 N.W.2d 634
(Ct. App. 1995).
Selection of jury; penalty for refusal to serve. 80.27(1)(1)
Upon the filing of the bond required under s. 80.26
and notice of the appeal with proof of service of the notice, the jury shall be selected and summoned in the following manner:
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 in turn shall strike 5 persons from the list, and if none of the proper supervisors or commissioners or other appellee is present, the judge shall strike 5 names for any missing party.
The judge shall issue an order to the sheriff or a constable of the county to summon the 5 persons whose names were not stricken under par. (b)
to meet at a time and place specified in the 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 the meeting under sub. (1) (c)
, the judge shall summon another juror in the missing juror's place.
Any juror may be excused for good cause. Any juror who is summoned under sub. (1) (c)
, is not excused and fails to serve shall forfeit not to exceed $10 and shall be liable to the party having the costs of the appeal to pay for additional costs resulting from the juror's failure to serve.
History: 1991 a. 316
; 1999 a. 97
Proceedings before jury; costs. 80.28(1)
The jury selected under s. 80.27
shall be sworn by the judge to justly and impartially appraise the damages, the award of which is appealed from. The jury shall view the highway, subject to the appealed order, and hear the statements and proofs of the parties. The jury may increase or decrease the amount awarded and shall sign and return the jury's appraisal to the judge.
In case of appeal by a landowner under s. 80.24
, the costs and expenses of the proceedings shall be paid by the proper town, city or village if the jury increases the amount awarded or by the appellant if the jury does not increase the amount awarded.
In case of an appeal by a taxpayer, the costs and expenses of the proceedings shall be paid by the town, city or village if the jury decreases the amount awarded or by the appellant if the jury does not decrease the amount awarded.
In case of cross-appeals if the damages involved are unchanged, each appellant shall pay 50% of the costs and expenses of the proceedings.
If the jury fails to agree and is discharged by the judge for that reason, the judge shall immediately select another jury under this section and s. 80.27 (1)
and further proceedings shall be had on the appeal under s. 80.27
and this section in all respects as in the case of a first jury.
When the jury has returned its appraisal to the judge, the judge shall adjust the costs and expenses of the proceedings, and within 10 days thereafter return the appraisal to the town clerk, together with the following, which shall be filed by the clerk:
A statement of the proceedings had before the judge.
A detailed statement of the cost and expenses of the proceedings certified by the judge.
If 2 towns or a town and a city or village are interested, the judge shall make and file a certified copy of the appraisal papers and statements with the clerk of each interested town, city or village.
History: 1991 a. 316
; 1999 a. 97
Appeal costs; jurors' fees.
Each juror who serves under s. 80.28
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. Costs under this section are payable in advance by the party appealing and are a charge against the party finally liable for the costs of the proceeding.
History: 1991 a. 316
; 1999 a. 97
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, any easements and rights incidental thereto acquired by or belonging to any county, school district, town, village or city or to any utility or person and relating to any underground or overground structures, improvements or services and all rights of entrance, maintenance, construction and repair of the structures, improvements or services shall continue, unless one of the following applies:
The owner of the easements and incidental rights gives written consent to the discontinuance of the easements and rights as a part of the vacation or discontinuance proceedings and the vacation or discontinuance resolution, ordinance or order refers to the owner's written consent.
The owner of the easements and incidental rights fails to use the easements and rights for a period of 4 years from the time that the public highway or public ground was vacated or discontinued.
The easements and incidental rights described in par. (a)
may be discontinued in vacation or discontinuance proceedings in any case where benefits or damages are to be assessed as provided in par. (c)
, if one of the following applies:
The interested parties fail to reach an agreement permitting discontinuance of the easements and incidental rights.
The owner of the easements and incidental rights refuses to give written consent to their discontinuance.
Damages for the discontinuance of the easements and rights described in par. (a)
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 amount of the damages shall be the present value of the property to be removed or abandoned, plus the cost of removal, less the salvage value of the removed or abandoned property, or any other amount that may be agreed upon between the interested parties. The owner of the easements and incidental rights, upon application to the treasurer and upon furnishing satisfactory proof shall be entitled to any payments of or upon the assessment of damages.
Any person aggrieved by the assessment of damages under this subsection may appeal the assessment 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
; 1999 a. 97
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. 80.37(1)
Whenever the record of the laying out of any highway is lost or destroyed, the supervisors of the town in which the highway is located, upon notice being served on all interested parties in accordance with s. 80.05
, may make a new record of the highway. The notice shall fix the time when and place where the supervisors will decide upon making the new record. The notice shall specify as near as may be the highway for which the proposed record will be made. Notice need not be given to persons who waive the notice or consent to the making of the order either before or after it is entered.
The supervisors shall meet pursuant to the notice given under sub. (1)
and hear any arguments or evidence that may be offered for or against the proposed new record and make a new record as they consider proper. The supervisors may adjourn from time to time, and an entry of each adjournment shall be made in the record by the town clerk. If the supervisors find that the highway is a legal highway the record of which is lost or destroyed, they shall make a written order stating those facts and specifying the course, width and other pertinent description of the highway. The order shall be filed and recorded in the office of the town clerk, who shall note the time of recording the order in the record. 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.
Any person through whose land a highway described in an order entered under sub. (2)
passes may appeal from the order on the ground that the highway described in the order was not a legal highway in fact. The appeal shall be made in the time and manner provided for appealing from orders laying out highways, and proceedings shall be had on the appeal as in case of appeals from orders laying out highways. 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.
History: 1999 a. 97
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 filed 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 and filed 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.
Control of highways laid by county.
When the county board lays out, opens, alters or widens a highway, it reverts to the sole control of the town, village or city in which it lies, except county trunk highways, where control shall rest with the county. The town, city or village shall keep the highway in good repair, and, if deemed necessary, the town board, village board or common council may annually levy a special tax sufficient for that purpose, and the town, village or city may alter or discontinue such highway the same as though it had originally laid it out.
Discontinuing ways to waters.
No resolution, ordinance, order or similar action of any town board or county board or committee thereof discontinuing any highway, street, alley or right-of-way that provides public access to any navigable lake or stream shall be effective until such resolution, ordinance, order or similar action is approved by the department of natural resources.
Rights of abutting owners.
The owners of land abutting on any highway, street or alley shall have a common right in the free and unobstructed use thereof to its full width, and no town, village, city, county, company or corporation shall close up, use or obstruct any part of the highway, street or alley so as to materially interfere with its usefulness as a highway or so as to damage property abutting thereon, or permit the same to be done, without due compensation being made for any damage resulting therefrom to the owners of land upon either side of such highway, street or alley. This section does not impose liability for damages to property on both sides of any street, highway or alley arising from the use, maintenance and operation of tracks or other public improvement legally laid down, built or established in any street, highway or alley prior to April 7, 1889. All rights of property which would entitle the owners to damages for injury thereto under the foregoing provisions may be condemned and permanently appropriated by any corporation authorized to use or obstruct any highway, street or alley in the same manner that other property may be condemned and appropriated by such corporation.
This section does not authorize the recovery of damages for a loss of business due to the temporary closing of a street for construction purposes. Weinandt v. Appleton, 58 Wis. 2d 734