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
Highways and streets to cemeteries and fairgrounds. 80.48(1)(a)(a)
Any cemetery, agricultural or industrial association owning land to which there is no laid out street or highway giving access to the land may file a petition with the clerk of the city, village or town where the land is located, praying that the city, village or town lay out a street or highway to the association's land from the nearest street or highway which can be used as a convenient means of approach.
Be signed by the managing officers, board of trustees or directors of the association.
The association owns land in the city, village or town which is used or intended to be used by a cemetery association for the burial of the dead or by an agricultural or industrial association for fairgrounds or industrial expositions; and
There is no laid out street or highway giving access to the association's land.
Whenever a petition is filed under par. (a)
the common council, trustees or supervisors of the city, village or town so petitioned shall make out a notice which shall be served on the owner or occupant of the land through which the proposed street or highway is to be laid. The notice shall be published as provided in s. 80.05
. The notice shall contain a copy of the petition and state the time when and place where the council, trustees or supervisors will meet to take action upon the petition, which time shall be within 10 days after the notice is served.
If at the meeting to take action on the petition the proper council, trustees or supervisors shall find the recitals in the petition to be true, they shall, within 5 days after the meeting, make an order for the impaneling of a jury to pass upon the necessity of taking for the public use the land through which the proposed street or highway is to be laid.
(2) Deposit of funds; notice of hearing. 80.48(2)(a)(a)
An order made under sub. (1) (c)
shall require the petitioners to deposit with the treasurer of the proper municipality such sum as the authorities who made the order consider necessary to pay the costs and expenses of the proceedings to be held pursuant to the order. No further action shall be had on the petition until the deposit is made. When the deposit is made, the common council, trustees or supervisors shall make a further order fixing the time, not less than 10 days thereafter, when and place where a jury will be selected to pass upon the necessity for taking the land through which the proposed street or highway is to be laid.
Notice of the time and place the jury will be selected shall be served upon the occupants of the land through which the proposed street or highway is to be laid, if any, as provided in s. 80.05
not less than 6 days before the time so fixed. If any portion of the land through which the proposed street or highway is to be laid is not actually occupied, the notice shall be published as a class 2 notice, under ch. 985
, in the city, village or town where the land is located. The notice shall contain a description, as near as may be, of the premises to be taken and state that at the time and place named in the notice a jury will be selected for the purpose of passing upon the necessity for taking for the public use the land described therein.
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. The precept shall direct the 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 sheriff or constable shall immediately make and deliver the list to the officer who issued the precept.
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 a name from the list until each has stricken 12 names. 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 any of the persons summoned fail to attend others may be selected in the same manner to fill the vacancy, and for that purpose the proceedings may be adjourned from time to time.
When 12 persons 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. The oath shall be filed with the city, village or town clerk.
The number of persons listed and summoned shall be proportionately reduced if the jury is to consist of a number less than 12.
(4) Finding as to necessity of taking; damages. 80.48(4)(a)(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 in the precept and issue a decision, signed by each juror, as to whether it is necessary to take the land for public use as described in the petition. The jurors shall, at a time to be fixed by them, view the premises. The parties interested shall have notice of the time of, and may offer to the jury any evidence pertinent to, the inquiry. After viewing the premises and hearing the evidence the jury shall determine whether a necessity exists for taking the land and shall return its verdict to the officer who issued the precept.
On receipt of the jury's verdict, the officer shall, as soon as possible, submit the 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 body to which the verdict is delivered shall, if in 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 49.5 feet nor more than 66 feet in width.
The body issuing the order under par. (b)
shall, in the order, appoint 3 disinterested residents of the county as commissioners. The commissioners shall, after notice to the owners or occupants of the land and after being sworn to support the U.S. constitution
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.
(5) Opening highway.
The street commissioner of the city or village or the superintendent of highways of the town who made the order under sub. (4)
laying out the street or highway, upon the filing of the order with the city, village or town clerk, shall immediately open the street or highway, provided that the petitioner shall have paid to the city, village or town treasurer the damages awarded.
Any person through whose land a street or highway is laid or the petitioner may, if dissatisfied with the damages awarded under this section, appeal to the circuit court of the county in which the land is located. The appeal is commenced by serving a notice of appeal and undertaking upon the opposite party, with at least 2 sureties, conditioned for the payment of all costs and damages which may be incurred if the appellant does not succeed. The notice and undertaking shall be filed with the city, village or town clerk, who shall be entitled to receive $2 for fees in making return to the clerk of the circuit court as required under par. (b)
. An appeal made under this paragraph does not impair the right of the public to use the street or highway for the purpose of travel.
Within 10 days after the notice and undertaking are filed and payment of the fees is made, the clerk with whom 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. Upon filing with the clerk of circuit court, the appeal is considered an action pending in 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 appellant the plaintiff and the other party the defendant.
The appeal shall be tried by a jury unless the jury is waived.
Costs shall be allowed to the successful party. If the landowner is the successful party, the costs shall be added to the judgment. If the petitioner is the successful party, the costs shall be deducted from the judgment.
Widening of highways; establishment of excess widths. 80.64(1)(1)
With the approval of the governing body of the municipality in which a street or highway or part thereof is located, the county board, to promote the general welfare, may establish street and highway widths in excess of the widths in use and adopt plans showing the location and width proposed for any future street or highway, which shall not be subject to s. 80.32 (2)
. Streets or highways or plans therefor established or adopted under this section shall be shown on a map showing present and proposed street or highway lines and, except in counties having a population of 500,000 or more, property lines and owners. The map shall be recorded in the office of the register of deeds. Notice of the recording shall be published as a class 1 notice, under ch. 985
, in the territory in which the affected streets or highways are located. The notice shall briefly set forth the action of the county board. The county board, upon like approval, publication and notice, may from time to time supplement or change the same, and such supplements or changes shall be similarly recorded in the office of the register of deeds.
The excess width for streets or highways in use for the right-of-way required for those planned, may be acquired at any time either in whole or in part by the state or county or municipality in which located; but no part shall be acquired in less than the full extent, in width, of the excess width to be made up of land on the same side of the street or highway, nor for less than the full length of such excess width lying within contiguous land owned by the same owner. Any land so acquired, whether the excess width is acquired for the full length of the street or highway or not, shall at once become available for highway purposes. The power to acquire such right-of-way or additional width in portions as provided herein may be exercised to acquire the land on advantageous terms.
In counties containing a population of 500,000 or more if, subsequent to the establishment of widths on streets or highways by a county board with the approval of the governing body of the municipality in which the streets or highways lie, in conformity with this section or s. 59.69
, any area embracing a street or highway upon which a width has been established under this section is annexed to a city or village or becomes a city or village by incorporation, the city or village shall thereafter adhere to the established width, and shall not, subsequent to any annexation or incorporation, except with the approval of the county board, do any of the following:
Permit or sanction any construction or development which will interfere with, prevent or jeopardize the obtaining of the necessary right-of-way to such established width.
Waste on highways.
Persons owning or leasing lands abutting on any state, county or town highway, and operating thereon ice cream or custard stands or other like types of business, as a result of which operation the highway is cluttered and strewn with waste materials such as paper napkins, cups and the like, may be required by ordinance of the town or county having jurisdiction to maintain the highway, to keep such business location clear of such wastes and to clean up such wastes on the highways within 250 feet of such lands, as appear to result from customer use of such lands. Such ordinance may provide a penalty of not to exceed $200 and costs for each day's violation of the ordinance or imprisonment for not more than 30 days or both. Such ordinance shall be enforced by the county highway commissioner or town superintendent of highways.