Chapter 86

86.04 History History: 1977 c. 29 s. 1654 (8) (c); 1977 c. 273; 1987 a. 137 s. 6; 1991 a. 316; 1993 a. 490; 1995 a. 225.

86.04 Cross-reference Cross-reference: For highway obstructions see s. 86.022.

86.04 Annotation Adverse possession is a defense to an encroachment action under this section. DOT v. Black Angus Steak House, 111 Wis. 2d 342, 330 N.W.2d 240 (Ct. App. 1983).

86.05 86.05 Entrances to highways restored. Whenever it is necessary, in making any highway improvement to cut or fill or otherwise grade the highway in front of any entrance to abutting premises, a suitable entrance to the premises shall be constructed as a part of the improvements; and if the premises are divided by the highway, then one such entrance shall be constructed on each side of the highway. Thereafter each entrance shall be maintained by the owner of the premises. During the time the highway is under construction, the state, county, city, village or town shall not be responsible for any damage that may be sustained through the absence of an entrance to any such premises.

86.06 86.06 Highways closed to travel; penalties.

86.06(1) (1) Whenever any highway is impassable or unsafe for travel or during the construction or repair of any such highway and until it is ready for traffic the authorities in charge of the maintenance or construction thereof may keep it closed by maintaining barriers at each end of the closed portion. The barriers shall be of such material and construction and so placed as to indicate that the highway is closed and shall conform to the standards for traffic control devices in the manual adopted by the department of transportation under s. 84.02 (4) (e).

86.06(2) (2) Any person who, without lawful authority, removes, takes down, alters the position of, destroys, passes over or beyond any barrier so erected, or travels with any vehicle upon any portion of a highway closed by barriers as in this section provided, or walks or travels in any manner upon the materials placed thereon as part of the repair or construction work, shall be liable to a fine of not less than $10 nor more than $100, or to imprisonment not less than 10 nor more than 60 days, or both, and in addition thereto shall be liable for all damages done to the highway, said damages to be recovered by such governmental agency.

86.06 Annotation If a county has a contract to maintain state trunk highways, the county highway commissioner can temporarily close a highway in case of emergency. 67 Atty. Gen. 335.

86.06 History History: 2011 a. 246.

86.07 86.07 Digging in highways or using bridges for advertising.

86.07(1) (1) Any person who draws, paints, prints or pastes upon any culvert, bridge or guard rail on any highway shall be fined not less than $10 nor more than $200 or imprisoned for not more than 30 days or both.

86.07(2) (2) 

86.07(2)(a) (a) Subject to par. (b) and s. 86.16 (1m) (a) 2. and (c) and (6), no person shall make any excavation or fill or install any culvert or make any other alteration in any highway or in any manner disturb any highway or bridge without a permit therefor from the highway authority maintaining the highway. Such permit shall contain the statement and be subject to the condition that the work shall be constructed subject to such rules and regulations as may be prescribed by said authority and be performed and completed to its satisfaction, and in the case of temporary alterations that the highway or bridge shall be restored to its former condition, and that the permittee shall be liable to the town or county or state, as the case may be, for all damages which occur during the progress of said work or as a result thereof. Nothing herein shall abridge the right of the department, the county board or its highway committee, or any other local authority to make such additional rules, regulations and conditions not inconsistent herewith as may be deemed necessary and proper for the preservation of highways, or for the safety of the public, and to make the granting of any such permit conditional thereon. If any culvert is installed or any excavation or fill or any other alteration is made in violation of the provisions of this paragraph, the highway or bridge may be restored to its former condition by the highway authority in charge of the maintenance thereof at the expense of the violator; and any person who violates this paragraph shall be punished by a fine of not less than $50 nor more than $500, or by imprisonment not exceeding 6 months, or both.

86.07(2)(b) (b)

86.07(2)(b)1. 1. In this paragraph:

86.07(2)(b)1.a. a. “Manure hose” means any hose, pipeline, or other conduit, whether temporary or permanent in nature, for the transmission of liquid manure within or across the right-of-way of a highway to a destination for spreading in a farm field or for storage.

86.07(2)(b)1.b. b. “State trunk highway” has the meaning given in s. 340.01 (60).

86.07(2)(b)1.c. c. “Support structure” means a bridge, a box culvert, or any other structure that is less than 20 feet in length and capable of supporting a manure hose.

86.07(2)(b)2. 2. A permit may not be issued by a local highway authority under par. (a) for a manure hose that is subterranean. Section 86.16 applies with respect to any manure hose that is subterranean and that is laid out or installed within or across the right-of-way of a highway maintained by the local highway authority.

86.07(2)(b)3. 3. For a manure hose that is not subterranean and is not laid out or installed within or across the right-of-way of a state trunk highway, a permit issued under par. (a) that authorizes the permittee to lay out or install the manure hose within or across the right-of-way of a highway may also authorize the permittee to temporarily affix to a support structure under the jurisdiction of the local highway authority issuing the permit hooks, flanges, fasteners, or other devices to or by which a manure hose may be attached or supported. The local highway authority may require the applicant for the permit to submit with the application, for the local highway authority’s approval, a plan specifying how the manure hose would be attached to or supported by the support structure. The permit may impose reasonable conditions related to the authorization under this subdivision, including any of the following:

86.07(2)(b)3.a. a. Requiring removal of the hooks, flanges, fasteners, or other devices, at the permittee’s expense, at any time, or under any circumstances, specified in the permit.

86.07(2)(b)3.b. b. Making the permittee liable to the issuing authority for any damage caused to the support structure by the installation or removal of the hooks, flanges, fasteners, or other devices.

86.07(2a) (2a) The restriction or depriving of used access to highways from abutting lands through the use of posts under any program to delineate driveways is prohibited.

86.07(3) (3) The prohibitions in this section do not apply to highway authorities in the performance of their duties.

86.07 History History: 1977 c. 29 s. 1654 (8) (c); 1987 a. 137 s. 6; 1989 a. 335; 2015 a. 231; 2017 a. 59.

86.07 Cross-reference Cross-reference: See also chs. Trans 231 and 401, Wis. adm. code.

86.07 Annotation An existing right of access in s. 32.09 (6) (b) includes the right of an abutting property owner to gain ingress and egress, subject to criteria for granting permits for access points under s. 86.07 (2). Restriction of access was a compensable taking. Narloch v. DOT, 115 Wis. 2d 419, 340 N.W.2d 542 (1983).

86.07 Annotation Sub. (2) is not a broad grant of authority to promulgate regulations for the preservation of highways or for the safety of the public. It is a statement that the legislature does not intend in sub. (2) to limit the authority the Department of Transportation has independent of this section to impose conditions or promulgate rules regarding excavations, fill, culverts, or other alterations or disturbances to a highway as long as the conditions and rules are consistent with sub. (2). Sub. (2) does not authorize the department to regulate land divisions that are not subdivisions within the meaning of s. 236.02 (12). Wisconsin Builders Association v. DOT, 2005 WI App 160, 285 Wis. 2d 472, 702 N.W.2d 433, 04-2388.

86.07 Annotation If the Department of Transportation (DOT) confirms a district office’s decision to revoke a permit under s. 86.073 (3), DOT must “notify the applicant of a right to hearing before the division of hearings and appeals.” This language, while not explicit, very clearly implies a right to revoke driveway permits and the only reasonable reading of the relevant statutes is that they allow DOT to revoke a driveway permit. J & E Investments LLC v. Division of Hearings and Appeals, 2013 WI App 90, 349 Wis. 2d 497, 835 N.W.2d 271, 12-2081.

86.073 86.073 Review of denial of permit.

86.073(1) (1) If a district office of the department denies a request for a permit under s. 86.07 (2) (a) to construct an entrance to a state trunk highway from abutting premises or revokes a permit issued under s. 86.07 (2) (a), the department shall, upon written request by the applicant within 30 days after the denial, review the decision of the district office.

86.073(2) (2) After review, the department may reverse, confirm or modify the decision of the district office.

86.073(3) (3) If the department confirms or modifies the decision of the district office, the department shall notify the applicant of the action and the grounds for the action and shall also notify the applicant of a right to a hearing before the division of hearings and appeals. Upon written request by the applicant within 30 days after the notice is mailed to the applicant, the division of hearings and appeals shall schedule a hearing to be held within 60 days after receipt of the request.

86.073 History History: 1983 a. 177; 1993 a. 16; 2015 a. 231.

86.073 Annotation If the Department of Transportation (DOT) confirms a district office’s decision to revoke a permit under sub. (3), DOT must “notify the applicant of a right to hearing before the division of hearings and appeals.” This language, while not explicit, very clearly implies a right to revoke driveway permits and the only reasonable reading of the relevant statutes is that they allow DOT to revoke a driveway permit. J & E Investments LLC v. Division of Hearings and Appeals, 2013 WI App 90, 349 Wis. 2d 497, 835 N.W.2d 271, 12-2081.

86.074 86.074 Highway setback areas.

86.074(1) (1) In this section:

86.074(1)(a) (a) “Highway setback area” means an area abutting a highway in which the construction or placement of structures and improvements is prohibited without a special exception permit issued by the department consistent with the terms of sub. (2).

86.074(1)(b) (b) “Improvement” means any permanent addition to or betterment of real property that involves the expenditure of labor or money to make the property more useful or valuable. “Improvement” includes parking lots, parallel driveways, surface or sub-surface utility structures, storm water facilities, loading docks, in-ground swimming pools, wells, septic systems, retaining walls, signs, buildings, building appendages such as porches, and drainage facilities. “Improvement” does not include terraces, patios, landscaping, or open fences.

86.074(1)(c) (c) “Special exception” means a special exception permit or waiver of requirement relating to placement of a structure or improvement in a highway setback area.

86.074(1)(d) (d) “Structure” includes a temporary or permanent addition to or betterment of real property that is not portable in nature, but that adversely affects the safety of entrance upon or departure from state trunk or connecting highways or the preservation of public interest and investment in those highways, as determined by the department in its reasonable discretion. “Structure” does not include items such as portable swing sets, movable lawn sheds without pads or footings, above ground swimming pools without decks, sidewalks, bike paths, or natural features, including landscaping or berms.

86.074(1)(e) (e) “Substantial evidence” means facts and information, other than merely personal preferences or speculation, directly pertaining to public safety or the preservation of public interest and investment in state trunk or connecting highways, and directly pertaining to or the requirements and conditions an owner must meet to obtain a special exception and that reasonable persons would accept in support of a conclusion.

86.074(2) (2) All of the following apply to any highway setback area maintained by the department:

86.074(2)(a) (a) A highway setback area established after March 23, 2024, shall extend not more than 50 feet from the right-of-way line of the highway.

86.074(2)(b) (b) Any setback requirement imposed by the department under this section may regulate only structures and improvements that adversely affect the safety of entrance upon or departure from state trunk or connecting highways or the preservation of public interest and investment in those highways, as determined by the department in its reasonable discretion.

86.074(2)(c) (c) Notwithstanding par. (b), the department may prohibit the placement of any structure or improvement in the highway setback area only if the structure or improvement adversely affects the safety of the entrance upon or departure from the state trunk or connecting highways, or the preservation of the public interest and investment in those highways, as determined by the department in its reasonable discretion. The department may order the removal, at the owner’s expense, of any structure or improvement located in a highway setback area unless the owner demonstrates that the structure or improvement was placed prior to establishing the highway setback area or a special exception is granted for the structure or improvement.

86.074(2)(d) (d) The department shall establish a special exception process to allow an owner to obtain a special exception to the requirements of par. (b) or (c).

86.074(2)(e) (e) The requirements imposed by the department under this section relating to the placement of a structure or improvement in a highway setback area shall include a procedure by which an owner of the property subject to a highway setback area may request a special exception to a requirement. The special exception procedure under this paragraph applies to a person affected by a highway setback area, whenever the highway setback area requirement was established by the department. The procedure shall adhere to and include all of the following:

86.074(2)(e)1. 1. The department may not deny a special exception request due to a risk to public safety or to the preservation of the public interest and investment in the highway unless the department finds that substantial evidence demonstrates the risk.

86.074(2)(e)2. 2. The department may impose on an owner only the requirements and conditions consistent with par. (b) or (c). Any requirement or condition imposed under this subdivision shall be related to the purpose of the highway setback area, based on substantial evidence, reasonable, and, to the extent practicable, measurable. The department shall require as a condition of a special exception that the owner waive any claim or right to compensation related to any structure or improvement constructed or placed in the highway setback area if any portion of the highway setback area is used for highway purposes within 20 years of the date of issuance of the special exception. If the department has any projects planned within the improvement program or has documented future plans for corridor or spot location improvement, the department may record a renewal of a waiver under this subdivision one time for up to another 20 years from the date of expiration of the original special exception. The department shall record a document notarized with the owner and department representative’s signature in the property subject to the special exception’s chain of title setting forth the owner’s waiver under this subdivision for the period set forth in this subdivision. The recorded document shall state that the waiver under this subdivision waives any right to compensation, relocation assistance, or damages associated with the department’s acquisition of the structure or improvement for a transportation improvement, including any damage to property outside the setback caused by removal of the structure or improvement in the setback that was allowed by special exception and that the waiver is binding upon future owners of the property and runs with the land. All costs of recording shall be paid by the owner. The department may not pay damages for any structure or improvement that is subject to a valid special exception and waiver under this subdivision.

86.074(2)(e)3. 3. If an owner demonstrates by substantial evidence that the application and all requirements and conditions imposed under subd. 2. are or shall be satisfied, the department shall grant the special exception.

86.074(2)(e)4. 4. An owner shall file an application for a special exception in the regional office of the department in which the property is located. If a regional office of the department denies a request for a special exception or revokes a special exception, the department shall, upon written request by the owner within 30 days after the denial, review the decision of the regional office. After review, the department may reverse, confirm, or modify the decision of the regional office. If the department confirms or modifies the decision of the regional office, the department shall notify the owner of the action and the grounds for the action and shall also notify the owner of a right to a hearing before the division of hearings and appeals. Upon written request by the owner within 30 days after the notice is mailed to the owner, the division of hearings and appeals shall schedule a hearing to be held within 60 days after receipt of the request.

86.074(2)(f) (f) The department shall provide accurate and current information about the special exception process on the department’s website.

86.074 History History: 2023 a. 157.

86.075 86.075 Highway authorities to notify drainage board of highway construction. Whenever a highway crossing any draining ditch of a drainage district governed by ch. 88 is being constructed or reconstructed or a culvert in any such ditch is being replaced, the highway authority in charge of such work shall consult with the drainage board having jurisdiction of such district for the purpose of determining the depth at which such drainage ditch was laid out. If any culvert or similar opening in a highway is installed at a grade higher than the depth at which such drainage ditch was laid out, the expenses involved in any future lowering of the culvert pursuant to s. 88.68 (4) shall be borne by the unit of government in charge of maintenance of the highway unless the highway authority in charge of the installation was misled by the drainage board as to the proper grade at which to install the culvert. This section applies only to work done after January 1, 1965.

86.08 86.08 Dust-free surfacing at licensed dairy or meat packing plants.

86.08(1) (1) The duly constituted authority charged with the maintenance of any highway not having a dust-free surface shall cause the main traveled portion thereof within 400 feet of any licensed dairy or meat packing plant to be rendered dust-free by palliative treatment or an improved surface approved by the department. The cost of such treatment or surface shall be paid from the funds for maintenance or improvement of highways which shall be made available by the division of government responsible for the highway.

86.08(2) (2) If such treatment or surface is not applied by the division of government responsible on or before June 1 of any year, the county shall cause the work to be done. It shall keep an accurate account of the cost of such work and the county clerk shall, on or before November 1 of each year, certify to the department the cost of such work. The amount so certified shall be credited to the county in its allotment and deducted from the allotment to the division of government responsible.

86.08 History History: 1977 c. 29 s. 1654 (8) (c); 1987 a. 137 s. 6.

86.09 86.09 Access to cemetery preserved. In all cases where the paving, improvement, change of grade or any other change in the condition of any street or highway in this state shall operate to cut off, impede or obstruct the access or approach from such highway to a cemetery, it shall be the duty of the local or state authorities in charge of such paving, improvement or change to include in such work provisions for and to effect such grading and improvement of the access and approach to such cemetery as shall be necessary to preserve such access or approach in an equal degree of usability. And whenever in any city, village or town such paving, improvement or change of grade or condition heretofore made has operated so as to cut off, impede or obstruct the access or approach from such highway to a cemetery, it shall be the duty of the council or board of such city, village or town upon the request of any person to restore such access or approach to its former condition of usefulness, and to provide for such work in the same way that street or highway improvements are provided.

86.10 86.10 Salvage in highway construction. Materials removed from a highway incident to its improvement or maintenance which are suitable for reuse or have a market value, and which are not used in or disposed of under the contract for the work, shall become the property of the duly constituted authority maintaining the highway from which the material was removed and may be used or disposed of by such authority in the manner as in its judgment is for the best interest of the public, and any money received for such material shall be paid into the maintenance fund.

86.105 86.105 Snow removal in private driveways. The governing body of any county, town, city or village may enter into contracts to remove snow from private roads and driveways.

86.105 Annotation This section must be construed narrowly. Plowing of private parking lots is not authorized. Only in exceptional circumstances would plowing private driveways be permissible. 67 Atty. Gen. 304.

86.11 86.11 Highways; railroad crossings; grade separation. Whenever any highway crosses a railroad at grade and the town, village or county board or the city council or city commissioners other than in a city of the first class, as the case may be, shall deem it for the best interest of the public that said highway and railroad shall cross at separate grades, and when an agreement can be made between such board and the railroad company as to the manner of constructing of such separated grade crossing and doing the necessary work they may contract therefor; and such board shall after entering into such contract levy a tax sufficient to raise the money required to carry out such contract on its part, which tax shall be collected at the time and in the manner as other taxes are, and when collected shall be set aside as a special fund and used for said purpose. The plans for such grade separation shall have the approval of the department before the contract shall be binding or the change shall be made.

86.11 History History: 1977 c. 29 s. 1654 (10) (e).

86.12 86.12 Highway railroad grade crossings; construction and repair.

86.12(1) (1) All railroad companies owning or operating tracks crossing streets or highways at grade shall keep the surface of the crossings between the tracks and rails and extending 4 feet on either side of the outside rails, in good condition and repair for highway travel. The county board or the common council, village board or town board of the municipality in which the crossing is located may, by resolution, require any such railroad company to pave, plank, repair, change or otherwise improve the crossings, as the needs require. The clerk of the county, city, village or town shall serve a copy of the resolution upon the local agent of the railroad company.

86.12(2) (2) If a railroad company fails to comply with the resolution in sub. (1) within 30 days after service of the resolution, the county board, common council, village board or town board may file a complaint with the office alleging the failure. The office shall investigate and determine the matter in controversy as provided in ch. 195. An order issued by the office under this subsection has the same effect as an order in a proceeding brought under ch. 195.

86.12 History History: 1977 c. 29 s. 1654 (10) (b); 1977 c. 72; 1985 a. 29; 1993 a. 16, 123.

86.13 86.13 Railroads to maintain highway crossings.

86.13(1) (1) When any street or highway crosses any railroad track at grade, the company owning or operating the railroad shall grade, construct and maintain in good and safe condition for public travel the portion of such street or highway extending across said track. When such street or highway shall be or is about to be paved, surfaced or otherwise improved, the railway company shall improve, pave or surface such crossing between the tracks and rails and extending 4 feet beyond the outside rails on its right-of-way in substantially the same manner as the adjacent highway and with substantially the same materials, but this provision applies in cities only when the work is under ch. 83 or 84. This section shall not restrict the application of s. 66.0727 relating to special assessments against railroads for street improvements.

86.13(2) (2) The public board, committee or officer in charge of an improvement of a portion of a street or highway adjacent to a railroad crossing shall notify the railway company of the company’s responsibility to make the improvement in sub. (1). The notice to the company shall be in writing and shall specify with reasonable certainty the work to be done by the company and may be served on any station agent of the company in this state. But failure to give such notice shall not prevent a recovery from the company of such sum as may be equitably due for the performance of a duty imposed by this section upon the company.

86.13(3) (3) If any railroad company fails to grade, construct, pave, surface or otherwise improve or maintain in good and safe condition for public travel as required by this section any street or highway crossing after having been notified so to do by the officer in charge thereof or of the highway improvement for 30 days after such notification, the highway authorities may file a complaint with the office. The office shall investigate and determine the matter in controversy as provided in ch. 195. An order issued by the office under this subsection has the same effect as an order in a proceeding brought under ch. 195.

86.13(5) (5) Any railroad company that receives notice from the department under this section with respect to a state trunk highway may file a claim for reimbursement with the department. The department shall reimburse claimants for 85 percent of the eligible costs incurred in the repair of a highway grade crossing. No claim for reimbursement may be paid by the department under this subsection unless the department approved the plans and estimated cost of the project prior to the start of the project. The department may inspect each completed project to verify the amount of the claim for reimbursement. The department shall create a procedure for establishing the priority for projects with respect to state trunk highways under this section for the purpose of programming reimbursements.

86.13 History History: 1977 c. 29; 1979 c. 34; 1981 c. 20; 1985 a. 29; 1987 a. 137 s. 6; 1993 a. 16, 123, 490; 1999 a. 150 s. 672.

86.135 86.135 Railroad highway crossings; traffic control. All railroad companies, and their officers, agents, and employees, constructing, maintaining, or repairing railroad highway crossings shall comply with the traffic control provisions directed to the safe and expeditious movement of traffic through construction and maintenance zones and to the safety of the work force performing these operations contained in the manual establishing a uniform system of traffic control as adopted by the department under s. 84.02 (4) (e).

86.135 History History: 1983 a. 27; 1987 a. 137 s. 6.

86.14 86.14 Strength of bridges.

86.14(1) (1) After July 1, 1943, no bridge or culvert shall be constructed in any highway unless it shall be designed to have sufficient strength to carry at least 15 ton truck loading in accordance with standard specifications covering design for structures as adopted by the department and in force at the time of design. Repairs to any bridge or culvert shall be of substantial character, strengthening same as much as practical.

86.14(2) (2) Any person who subjects any bridge or culvert to a load in excess of maximum limitations on weight of vehicles on highways imposed by law or regulations thereunder or limitation as to gross weight of vehicles as posted on or at any such bridge or culvert shall be liable for double the amount of damages that may be caused thereby. There shall be no recovery for any injury to that person or to the property in that person’s keeping.

86.14(3) (3) Every person who willfully injures any highway structure shall be liable for treble damages to the subdivision of the state chargeable with the maintenance or repair of such structure.

86.14 History History: 1977 c. 29 s. 1654 (8) (c); 1987 a. 137 s. 6; 1991 a. 316.

86.14 Annotation The value of a bridge is its value to its owner. Determinative factors include opinion evidence, cost, use, cost of restoration, ease or likelihood of repair, continued usefulness, and the age and condition of the bridge. Town of Fifield v. State Farm Insurance Co. 119 Wis. 2d 220, 349 N.W.2d 684 (1984).

86.15 86.15 Donations of highway aid to adjoining municipalities.

86.15(1) (1) Any town, city or village to which is or has been bequeathed or donated money or other property for the construction of a proposed highway or the improvement of an existing highway, either or both of the terminals or any part of which highway are outside the limits of such town, city or village, may accept such bequest or donation, and with the consent of the councils of the cities, the boards of the towns and villages and the boards or other bodies in control of any state lands, through or into which such proposed highway may be constructed or such existing highway may be improved, which permission said councils and boards are hereby authorized to grant, may enter such towns, cities, villages, and state land, and may do all other things necessary for the purpose of carrying out the terms and conditions of such bequest or donation.

86.15(2) (2) Any city, of the fourth class, however organized, may appropriate a sum not to exceed one-fourth of one mill on each dollar of the assessed valuation of such city, according to the last preceding assessment therein, for the purpose of aiding any adjoining town, city or village in the construction or improvement of any highway or part thereof in accordance with the terms and conditions of any bequest or donation to such adjoining town, city or village, and any part of such moneys so appropriated may be expended within or without the corporate limits of such city.

86.16 86.16 Utility lines on highways; place of poles; penalty.

86.16(1) (1) Any person, firm, or corporation, including any foreign corporation authorized to transact business in this state, may, subject to ss. 30.44 (3m), 30.45 and 196.491 (3) (d) 3m., with the written consent of the department with respect to state trunk highways, and with the written consent of local authorities with respect to highways under their jurisdiction, including connecting highways, construct and operate lines, wires, or fiber for telecommunications service, as defined in s. 182.017 (1g) (cq), telegraph, telephone, or electric lines, or pipes or pipelines, for the purpose of transmitting voice, video, data, messages, water, liquid manure, heat, light, or power along, across, under, or within the limits of the highway.

86.16(1m) (1m)