1999 Wisconsin Act 97

97,26 Section 26. 80.24 (5) (b) and (c) of the statutes are repealed.

97,27 Section 27. 80.25 of the statutes is renumbered 80.25 (1) and amended to read:

80.25 (1) 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 from the laying out, alteration or discontinuation, may appeal, within 30 days after the award or agreement determining the damages has been filed with the town, city or village municipal clerk, appeal to the circuit judge 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.

(2) 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 in case he or she does not appeal from all. The appellant shall serve written notice of the appeal 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 that is responsible for paying the damages and upon the persons whose awards are appealed from,.

(3) The notice under sub. (2) shall be served at least 6 days before making the appellant makes the application, a notice in writing specifying therein for the jury to assess damages. The notice shall state the name of the judge to whom and who will hear the application and the time and place appellant will apply for the selection of the jury hearing.

Note: Subdivides provision, reorders and replaces language for greater readability and conformity with current style and consistency with s. 80.24. See the previous section of this bill.

97,28 Section 28. 80.26 of the statutes is amended to read:

80.26 Appeal bond. The appellant under s. 80.24 or 80.25 shall execute to the proper town, city or village and file with the judge circuit court a bond with one or more sureties to be approved by such judge the circuit court. In case the appeal is by a landowner, the bond shall be conditioned to pay all costs arising from such the appeal if the jury shall does not award the appellant an increase of damages. In case of an appeal by a taxpayer as such under s. 80.25, the bond shall be conditioned that the appellant shall pay all costs arising from such the appeal if the amount of damages in the aggregate of the items appealed from shall is not be diminished upon as a result of the appeal.

Note: Inserts cross-references and replaces language for greater clarity and conformity with current style.

97,29 Section 29. 80.27 of the statutes is renumbered 80.27 (1) (intro.) and amended to read:

80.27 (1) (intro.) Upon the filing of the bond required under s. 80.26 and notice of the appeal with proof of service thereof of the notice, the jury shall be selected and summoned in the following manner:

(a) 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.

(b) Each party in turn shall strike 5 persons from such the 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 any missing party.

(c) The judge shall thereupon issue an order to the sheriff or some a constable of the county to summon the 5 persons named in such list and whose names were not stricken off to under par. (b) to meet at a time and place to be specified in such the order to appraise the damages, the award of which has been appealed from.

(2) In case any juror fails to appear at the time and place fixed for their the meeting under sub. (1) (c), the judge shall summon another juror shall be summoned in the missing juror's place.

(3) Any juror may be excused for good cause, and if any. Any juror duly who is summoned and under sub. (1) (c), is not excused and 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 resulting from the juror's failure to serve.

Note: Subdivides provision, inserts cross-references and replaces language for greater clarity and conformity with current style.

97,30 Section 30. 80.28 of the statutes renumbered 80.28 (1) and is amended to read:

80.28 (1) The jury selected under s. 80.27 shall be sworn by the judge to justly and impartially to make such appraisal, and appraise the damages, the award of which is appealed from. The jury shall proceed to view such the highway, subject to the appealed order, and hear the statements and proofs of the parties, and such. The jury may increase or diminish decrease the amount awarded, and they shall make sign and return of their the jury's appraisal to the judge signed by them; and in.

(2) (a) In case of appeal by a landowner if the jury shall increase the award under s. 80.24, the costs and expenses of the proceedings 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 if the jury increases the amount awarded or by the appellant if the jury does not increase the amount awarded.

(b) In case of an appeal by a taxpayer if the award appealed from is diminished, the costs and expenses of the proceedings shall be paid by the town, city or village, otherwise if the jury decreases the amount awarded or by the appellant if the jury does not decrease the amount awarded.

(c) In case of cross-appeals if the damages involved therein are unchanged, each appellant shall pay half 50% of said the costs and expenses of the proceedings.

(3) If the jury shall fail fails to agree and be is discharged by the judge for that reason, the judge shall immediately proceed to make select another list of such freeholders, jury under this section and s. 80.27 (1) and further proceedings shall be had thereon on the appeal under s. 80.27 and this section in all respects as in the case of a first jury.

(4) (a) When the jury shall have made a return of their has returned its appraisal to the judge, the judge shall adjust the costs and expenses of such the proceedings, and within 10 days thereafter return such the appraisal to the town clerk, together with all the other following, which shall be filed by the clerk:

1. All papers relating to such the appeal, a.

2. A statement of the proceedings had before the judge, and.

3. A detailed statement of the cost and expenses in detail, duly of the proceedings certified by the judge, which shall be forthwith filed by the clerk; and if two.

(b) If 2 towns or a town and a city or village be are interested, the judge shall make and file a certified copy of the appraisal papers and statements with the clerk of such other each interested town, city or village.

Note: Subdivides provision, inserts cross-references, replaces word form of number with digits and replaces language for greater clarity and conformity with current style.

97,31 Section 31. 80.29 of the statutes is amended to read:

80.29 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 to be are a charge against the party finally liable for the costs of the proceeding.

Note: Inserts cross-reference for greater clarity.

97,32 Section 32. 80.32 (4) of the statutes is renumbered 80.32 (4) (a) (intro.) and amended to read:

80.32 (4) (a) (intro.) Whenever any public highway or public ground has been vacated or discontinued the , 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 in and relating to any underground or overground structures, improvements or services and all rights of entrance, maintenance, construction and repair of the same structures, improvements or services shall continue, unless one of the following applies:

1. The owner of the easements and incidental rights gives written consent to the discontinuance of such the easements and rights by the owner thereof is as 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 refers to the owner's written consent.

2. The owner of the easements and incidental rights fails to use the same easements and rights 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

(b) (intro.) The easements and incidental rights or upon refusal of the owner of such easements and rights to give written consent to the discontinuance thereof, such easements and rights described in par. (a) may be discontinued in the vacation or discontinuance proceedings in any case where benefits or damages are to be assessed as herein provided. in par. (c), if one of the following applies:

(c) Damages for the discontinuance of such the easements and rights, in the 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 thereon value of the removed or abandoned property, or in such any other amount as that 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 the easements and incidental rights, upon application to the treasurer and upon furnishing satisfactory proof shall be entitled to any payments of or upon such the assessment of damages.

(d) Any person aggrieved by such the assessment of damages under this subsection may appeal therefrom 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.

Note: Subdivides provision, repositions text and deletes redundant and outdated language for greater readability and conformity with current style.

97,33 Section 33. 80.32 (4) (b) 1. and 2. of the statutes are created to read:

80.32 (4) (b) 1. The interested parties fail to reach an agreement permitting discontinuance of the easements and incidental rights.

2. The owner of the easements and incidental rights refuses to give written consent to their discontinuance.

Note: Recreates language to reposition text in s. 80.32 (4). See the previous section of this bill.

97,34 Section 34. 80.37 of the statutes is renumbered 80.37 (1) and amended to read:

80.37 (1) Whenever the record of the laying out of any highway has been or shall be is lost or destroyed, the supervisors of the town in which such the highway is situated located, upon notice being served on all interested parties in accordance with s. 80.05, 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 of the highway. The notice and shall fix therein a the time when and place at which they where the supervisors will meet and decide upon the same, which making the new record. The notice shall specify as near as may be the highway as to for which they propose to make such the proposed record. Such notice shall be served as provided by s. 80.05; but notice will be made. Notice need not be given to such persons as who waive the same notice or consent to the making of the order either before or after it is entered.

(2) 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 thereupon decide make a new record as they deem consider proper. They 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 they the supervisors find that the highway is a legal one highway the record whereof of which is lost or destroyed, they shall make an a written order determining such stating those facts and specifying the course, width and other pertinent description of the highway, and such. The order shall be filed and recorded in the office of the town clerk, who shall note the time of recording it the order in the record. Any number of highways may be included in one such notice or order, and a under this section. A failure or refusal to make a new record for any highway shall does not preclude a subsequent proceeding for that purpose.

(3) Any person through whose land such a highway shall pass described in an order entered under sub. (2) passes may appeal from such the order on the ground that the highway described therein in the order was not theretofore a legal highway in fact. The appeal shall be made 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 on the appeal as in case of appeals from such orders. The laying out highways. No person may call into question the regularity of such proceedings shall not be called in question by any person under this section except owners of land on whom such notice should have been served but on whom it was not in fact served, was not and persons claiming under such those owners.

Note: Subdivides provision, repositions text, inserts specific references and cross-references and deletes redundant and outdated language for greater readability and conformity with current style.

97,35 Section 35. 80.48 (3) of the statutes is renumbered 80.48 (3) (a) and amended to read:

80.48 (3) (a) At the time and place specified in the notice given under sub. (2), the circuit judge of the county, the president of the village or the chairperson of the town in which the land sought to be taken lies shall issue a precept directed to the sheriff of the county or to any constable, naming the sheriff or constable, which . The precept shall direct the officer to write sheriff or constable to make a written list containing the names of 36 freeholders of the county who are qualified to serve as jurors in the circuit court and to return the list. After being sworn to perform the duties required to the best of his or her ability, without partiality, the officer sheriff or constable shall immediately write the names make and deliver the list thereof to the officer who issued the precept; and from.

(b) From the list made under par. (a), each party, in person or by an agent or attorney, commencing with the petitioner, shall in turn strike out alternately, a name from the list until each has stricken 12 names, and if . If either party is absent or refuses to strike out the names, the officer who issued the precept shall appoint some person to strike 12 names for the absent or nonparticipating person. The officer shall then summon the 12 persons whose names remain on the list in the manner prescribed under s. 756.05 to appear at the time and place mentioned in the summons for the purpose of determining the necessity of taking for the public use the land described in the petition; if. If any of the persons summoned fail to attend others may be selected in the same mode manner to fill the vacancy, and for that purpose the proceedings may be adjourned from time to time.

(c) When 12 persons are thus have been secured in accordance with par. (b), they shall be sworn by the officer who issued the precept to faithfully and impartially discharge the duties imposed upon them, which. The oath shall be filed with the city, village or town clerk.

(d) The number of persons listed and summoned shall be proportionately reduced if the jury is to consist of a number less than 12.

Note: Subdivides provision, shortens sentences, reorders text, inserts cross-references, and replaces language for greater readability and conformity with current style.

97,36 Section 36. 80.48 (4) of the statutes is renumbered 80.48 (4) (a) and amended to read:

80.48 (4) (a) After the jurors selected under sub. (3) are sworn, the circuit or municipal judge, president or chairperson shall issue his or her precept directed to them and requiring that within 10 days they shall view the land specified therein and make return to him or her under their hands in the precept and issue a decision, signed by each juror, as to whether it is necessary to take it the land for public use as described in the petition; the. The jurors shall, at a time to be fixed by them, view the premises; the. The parties interested shall have notice of the time of, and may offer to the jury any evidence pertinent to, the inquiry; after. After viewing the premises and hearing the evidence the jury shall determine whether a necessity exists for taking the land and shall return their its verdict to the officer who issued the precept.

(b) On the receipt thereof of the jury's verdict, the officer shall, as soon as may be possible, submit the same verdict to the council, trustees or supervisors, and for that purpose may call a meeting of either body and deliver the verdict to them; the. The body to which it the verdict is so delivered shall, if in their its judgment the public good requires it, immediately make an order laying out a street or highway from the nearest street or highway which can be used as a convenient means of approach to the cemetery, fairground or land used for industrial expositions. The street or highway so laid shall not be less than 3 49.5 feet nor more than 4 rods 66 feet in width, and.

(c) The body issuing the order under par. (b) shall, in the order they shall, appoint 3 disinterested residents of the county as commissioners who. The commissioners shall, after notice to the owners or occupants of the land and after being sworn to support the U.S. constitution of the United States and the constitution of this state and faithfully discharge their duties to the best of their ability, assess adequate damages to the owners of the land through which the street or highway is laid. The award of damages shall be signed by the commissioners and be returned to the city, village or town clerk.

Note: Subdivides provision, shortens sentences, inserts cross-references, replaces "rods" with a more common unit of measurement and replaces other language for greater readability and conformity with current style.

97,37 Section 37. 80.48 (5) of the statutes is amended to read:

80.48 (5) Opening highway. The street commissioner of such the city or village or the superintendent of highways of such the town, after who made the order under sub. (4) laying out such the street or highway has been filed, upon the filing of the order with the city, village or town clerk, shall forthwith immediately open the street or highway so laid, provided that the petitioner shall have paid to the city, village or town treasurer the damages awarded.

Note: Replaces language and inserts a cross-reference for greater readability and conformity with current style.

97,38 Section 38. 80.48 (6) of the statutes is renumbered 80.48 (6) (a) and amended to read:

80.48 (6) (a) If any Any person through whose land such a street or highway is laid or the petitioner shall be may, if dissatisfied with the damages awarded either may under this section, appeal to the circuit court of the county in which the land is situated located. The appeal is commenced by serving a notice of appeal and undertaking upon the opposite party, with at least two 2 sureties, conditioned for the payment of all costs and damages which may be incurred if the appellant shall does not succeed; such. The notice and undertaking shall be filed with the city, village or town clerk, who shall be entitled to receive two dollars $2 for fees in making return to the clerk of the circuit court as hereinafter required; provided, that such appeal shall under par. (b). An appeal made under this paragraph does not impair the right of the public to use such the street or highway for the purpose of travel.

(b) Within ten 10 days after such papers the notice and undertaking are filed and such payment of the fees is made, the clerk with whom they the notice and undertaking are filed shall transmit the papers pertaining to the subject matter of the appeal to the clerk of the circuit court, who shall file them in the clerk of court's office, and upon such. Upon filing with the clerk of circuit court, the appeal shall be is considered an action pending in such the circuit court, subject to a change of the place of trial and an appeal to the supreme court as in other actions. The appeal shall be entered upon the records by making the party who took it appellant the plaintiff and the other party the defendant; it.

(c) The appeal shall be tried by a jury unless such mode of trial the jury is waived, and costs.

(d) Costs shall be allowed to the successful party, and if. If the landowner is the successful party shall be, the landowner costs shall be added to the judgment, and if. If the petitioner is the successful party, the costs shall be petitioner be deducted therefrom from the judgment.

Note: Subdivides provision, shortens sentences, replaces word form of numbers with digits and replaces language for greater readability and conformity with current style.