81.04 81.04 Highway funds disbursed. All payments for work performed and materials furnished on town highways and payable out of town funds shall be by order drawn upon the town treasurer and signed by the town clerk and countersigned by the town chairperson, but in a town where there is a superintendent of highways no order shall be drawn until the claim therefor has been certified by the superintendent of highways to be correct and due and has been entered in the books of the superintendent, showing the date, amount and nature of the claim.
81.04 History History: 1989 a. 56 s. 258.
81.05 81.05 Waterways; maintenance by towns. The town board of any town in which there is a waterway suitable for general and useful navigation by watercraft may, by order recorded by the town clerk, designate the waterway as a public waterway of the town. The town board may expend highway funds for the improvement and maintenance of the navigability of the public waterway. No amount in excess of $500 may be expended on a public waterway in any year unless appropriated by the town meeting under s. 60.10 (1) (d). No town is liable for damages resulting from a defect or insufficiency in a waterway designated a public waterway under this section.
81.05 History History: 1983 a. 532.
81.06 81.06 Entry on lands; purposes; road materials in highways. The town board may enter upon any lands near any highway in the town and there construct necessary drains or ditches or embankments for the improvement or protection of the highway; and may enter upon any unimproved lands near any highway in the town and take stone, gravel, sand, clay, earth or trees for the purposes of improving any highway, but shall carefully avoid doing any unnecessary injury to the premises; and may take stone, gravel or other suitable materials within the highway of the town to improve any highway therein. No such material shall be removed from any town without the consent of the town board unless the highway on which the same is found is maintained by the county, in which case the county may use the same for any highway purpose.
81.07 81.07 Entry on lands; appraisal of damages; appeals therefrom. The owner or occupant of lands entered upon or used for any of the purposes mentioned in ss. 81.01 and 81.06 may apply to the town board to appraise the resulting damages, and such damages may be determined by agreement. If they are unable to agree upon the damages the board shall make and file an award of damages, and the owner or occupant may appeal from said award within the time and in the manner provided by s. 80.24, and the proceedings on such appeal shall be governed by ss. 80.24 to 80.29.
81.08 81.08 Temporary highways and detours; damages.
81.08(1)(1) When any highway shall be practically impassable or be dangerous to travel or when it shall be deemed necessary on account of construction or repair work thereon or for other reasons to suspend travel thereon or upon any part of such highway, the town board may upon its own motion lay out and open temporary highways for the accommodation of public travel through any lands. The board may contract in writing with the owner or occupant, or both, of any land through which it proposes to lay out such temporary highways, as to the location of the same, and the damages the owner or occupant is to receive, which contract shall be filed with the town clerk. In the absence of such contract the board shall determine by a written order filed with the town clerk both the location and the damages, and may immediately open such temporary highways. Such highways shall exist only so long as needed and shall be deemed vacated and discontinued when the permanent highway is again opened for public travel.
81.08(2) (2) The owner or occupant of any land occupied by such temporary highway may at any time after it is opened and within 30 days after it is so vacated or discontinued apply to the town board to determine the owner's or occupant's damages; and thereafter the same proceedings may be had as in the case of a claim for damages under s. 81.07.
81.08(3) (3) In case such temporary highway is opened in connection with or on account of road and bridge construction the damages agreed upon or awarded pursuant to this section may be treated as part of the construction cost and paid out of the construction funds in the customary manner of disbursing the same.
81.08 History History: 1991 a. 316.
81.11 81.11 Highway taxes; assessment; amount.
81.11(1) (1) The town board, after each annual town meeting and prior to the first day of November following, shall assess the highway taxes for the ensuing year, and certify the same to the town clerk to be entered by the clerk in the next town tax roll and collected as other town taxes are entered and collected.
81.11(2) (2) In addition to the highway taxes voted by the town meeting, the board may assess a tax on the taxable property of the town.
81.11(3) (3) No town containing less than 500 inhabitants shall levy or collect in any year a highway tax of more than $3,000, exclusive of the amount levied under ss. 83.01 to 83.14; and no town containing 2 congressional townships or more and more than 500 inhabitants a tax of more than $4,000 in any year, exclusive of the amount levied under ss. 83.01 to 83.14 and of the mill taxes levied by the town board, upon its own authority without direction from the town meeting.
81.11(4) (4) No taxes shall be levied pursuant to this section which shall have the effect of increasing the total levy of taxes for all town purposes above the limit of one and one-fourth per cent of the assessed valuation of the town for the preceding year.
81.11(5) (5) The town board, upon its own authority and without direction from the annual town meeting, may levy and collect a tax on property located in a recorded and filed plat situated in a town requiring the approval of such town board, and adjoining a private road used by the public located therein, and on property adjoining, where the owner regularly uses such road which is not a portion of any town, county, state or federal highway system, not exceeding 3 mills for each dollar of assessed valuation thereof. The proceeds of such tax shall be expended for the improvement and maintenance of any private roads used by the public located within such recorded and filed plat. The town board shall not expend any of such funds upon a private driveway.
81.11 History History: 1985 a. 29; 1991 a. 316; 1997 a. 35; 1999 a. 96.
81.12 81.12 Town highway tax; emergency levy; limit of; anticipation and collection.
81.12(1) (1) Whenever the highway funds provided or available therefor are insufficient to keep the highways open and in repair, the town board may levy a special or emergency highway tax and that tax shall be certified and entered in the tax roll and collected and expended as other highway taxes are. Not more than one levy may be made in any year under this section.
81.12(2) (2) To render such tax available and in anticipation of its collection, the town board may either borrow not exceeding the amount of said tax or may issue interest-bearing town orders, and the tax when collected shall constitute a special fund and shall be used so far as needed to pay the debt so incurred or the orders so issued. The total amount borrowed or the total amount of orders issued pursuant to this section shall not exceed the amount of the tax and the rate of interest shall not exceed 8 per cent.
81.12 History History: 1983 a. 532; 1985 a. 29.
81.14 81.14 Highways; refusal of town to open; appeal to county board; cost of opening.
81.14(1) (1) If any town, or towns in case of a town line highway, either by the proper officers, or by a majority vote of the electors voting on such question, refuse, fail or neglect to open and put in reasonable condition for travel a highway, within one year from the date when it was laid out, or refuse, fail or neglect to repair any highway or build or repair any bridge thereon, in such town or towns, any 15 freeholders thereof may appeal to the county board of the county in which the highway or bridge is situated, by notice in writing served on the chairperson or chairpersons of the town or towns. For the purpose of this section all highways on town lines, which shall have been apportioned between towns, shall be considered as wholly within the town to which such part of said highway or bridge is apportioned. In case of town highways which are upon county lines and which have not been apportioned for the purpose of maintenance, the appeal may be made to the county board of either county. When it is appealed to, the county board shall, at the next regular meeting, either by a majority of its members or by a committee of not less than 3, examine such highway or bridge, and if they determine that it ought to be put in reasonable condition for travel or ought to be repaired, the county board shall thereupon appropriate therefor sufficient funds to defray the estimated cost of opening or repairing the highway or building or repairing the bridge, and the chairperson of the county board shall cause the highway to be opened and put in reasonable condition for travel or cause the bridge to be repaired or built, and shall keep an accurate account of the expense thereof, and such expense when audited and allowed by the county board shall be charged to the town and added to the next county tax apportioned thereto and collected therewith.
81.14(2) (2) If any county fails to aid in putting in reasonable condition for travel any county line highway, the adjoining county may, after not less than 20 days' notice in writing given to the county clerk of such county, put such highway in reasonable condition for travel and keep an accurate account of the expense thereof. Such expense when audited and allowed by the county board, shall be prorated and charged to the county whose duty it is to keep the highway in condition for travel. Such county may then charge the expense to the town whose duty it is to keep the highway in repair and add it to the next county tax, apportion it thereto and collect it therewith.
81.14(3) (3) In case the highway was laid out by commissioners upon reversing the decision of supervisors and an appeal is taken as provided in this section, the county board shall at the next regular meeting appropriate sufficient funds to defray the estimated costs and expense, of opening and putting such highway in reasonable condition for travel, and the chairperson of the county board shall immediately after said meeting cause the highway to be put in reasonable condition for travel, keep an accurate account of the expense thereof; and such expense when audited and allowed by the county board, shall be charged to the towns, in such amounts and in such proportion as the county board shall determine and added to the next county tax apportioned thereto and collected therewith. No highway laid out by commissioners, or for which appeal for the opening thereof has been taken to the county board, as provided in this section, shall be discontinued prior to the time said highway is actually opened for public travel.
81.14(4) (4) In case of a county line highway which has not been apportioned between towns for the purpose of maintenance, and where an appeal may be taken to the county board of any county bounded by said highway, the expense incurred in opening and putting in reasonable condition for travel such highway, or in repairing it, or in building or repairing any bridge thereon, shall be paid primarily by the county to which the appeal is taken, and by said county apportioned among all of the counties which are bounded in whole or in part by such highway, and the proportionate share of such costs and expense shall be paid by the other counties to the county to which the appeal is taken, upon presentation of a proper claim therefor, and when such expense has been paid by the counties liable therefor it shall be charged by the respective counties to their proper towns and added to the next county tax apportioned to such towns and collected therewith.
81.14 History History: 1983 a. 192 s. 303 (2); 1993 a. 184.
81.14 Annotation The duty to keep highways passable is made mandatory by ss. 81.01 and 81.03, when read together. Section 81.14 applies to mere repairs that are in the discretion of the board, subject to appeal under that section. State ex rel. Cabott, Inc. v. Wojcik, 47 Wis. 2d 759, 177 N.W.2d 828 (1970).
81.15 81.15 Damages caused by highway defects; liability of town and county. If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city or village. If the damages happen by reason of the insufficiency or want of repairs of a highway which any county by law or by agreement with any town, city or village is bound to keep in repair, or which occupies any land owned and controlled by the county, the county is liable for the damages and the claim for damages shall be against the county. If the damages happen by reason of the insufficiency or want of repairs of a bridge erected or maintained at the expense of 2 or more towns the action shall be brought against all the towns liable for the repairs of the bridge and upon recovery of judgment the damages and costs shall be paid by the towns in the proportion in which they are liable for the repairs; and the court may direct the judgment to be collected from each town for its proportion only. The amount recoverable by any person for any damages so sustained shall not exceed $50,000. The procedures under s. 893.80 shall apply to the commencement of actions brought under this section. No action may be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks.
81.15 History History: 1977 c. 285; 1979 c. 323 s. 33; 1981 c. 63.
81.15 Annotation The plaintiff's oral notice to the chief of police, who said he would file a report, and direct contact and negotiation with the city's insurer, within 120 days, was sufficient compliance to sustain an action for damages against the city. Harte v. City of Eagle River, 45 Wis. 2d 513, 173 N.W.2d 683 (1972).
81.15 Annotation A spouse's action for loss of consortium is separate and has a separate dollar limitation from the injured spouse's claim for damages. Schwartz v. Milwaukee, 54 Wis. 2d 286, 195 N.W.2d 480 (1970).
81.15 Annotation Shoveling snow from a sidewalk to create a mound along the curb does not create an unnatural or artificial accumulation that renders a city liable. Kobelinski v. Milwaukee & Suburban Transport Corp. 56 Wis. 2d 504, 202 N.W.2d 415 (1972).
81.15 Annotation Ice resulting from improper drainage of runoff water is an artificial accumulation outside the 3-week limitation. An insurance policy did not waive the recovery limitation under this section. Sambs v. Brookfield, 66 Wis. 2d 296, 224 N.W.2d 582 (1974).
81.15 Annotation City liability arising from snow and ice on sidewalks is determined under the standard of whether, under all the circumstances, the city was unreasonable in allowing the condition to continue. Circumstances to be considered include location, climactic conditions, accumulation, practicality of removal, traffic on the sidewalk and intended use of the sidewalk by pedestrian. Schattschneider v. Milwaukee & Suburban Transport Corp. 72 Wis. 2d 252, 240 N.W.2d 182 (1976).
81.15 Annotation The allegedly negligent placement of an arterial stop sign by a city does not constitute a highway defect within the meaning of this section. Weiss v. Milwaukee, 79 Wis. 2d 213, 255 N.W.2d 496 (1977).
81.15 Annotation When the plaintiff fell due to a depression in a street enclosed as a temporary sidewalk, the city, not the indemnitor contractor, was primarily liable since the contractor did no excavation in the street and its enclosing of the street did not cause the defect. Webster v. Klug & Smith, 81 Wis. 2d 334, 260 N.W.2d 686 (1978).
81.15 Annotation Failure to warn of a rubble pile beyond the dead end of a road was not actionable under this section. Foss v. Town of Kronenwetter, 87 Wis. 2d 91, 273 N.W.2d 801 (Ct. App. 1978).
81.15 Annotation An insurance policy was construed to waive the recovery limitations this section. Stanhope v. Brown County, 90 Wis. 2d 823, 280 N.W.2d 711 (1979).
81.15 Annotation Recovery limitations under this section are constitutional. Sambs v. City of Brookfield, 97 Wis. 2d 356, 293 N.W.2d 504 (1980).
81.15 Annotation This section does not impose liability for failure to cut roadside vegetation. Estridge v. City of Eau Claire, 166 Wis. 2d 684, 480 N.W.2d 513 (Ct. App. 1991).
81.15 Annotation Immunity under this section does not exist for injuries resulting from ice on a stairway connecting 2 sidewalks. Henderson v. Milwaukee County, 198 Wis. 2d 748, 543 N.W.2d 544 (Ct. App. 1995).
81.15 Annotation If a plaintiff's injuries occurred by reason of insufficiency or want of repairs of any highway, a governmental entity is not afforded immunity under s. 893.80 (4). Morris v. Juneau County, 219 Wis. 2d 543, 579 N.W.2d 690 (1998).
81.15 Annotation As used in this section, "highway" includes the shoulder of the highway. Morris v. Juneau County, 219 Wis. 2d 543, 579 N.W.2d 690 (1998).
81.17 81.17 Highway defects; liability of wrongdoer; procedure. Whenever damages happen to any person or property by reason of any defect in any highway or other public ground, or from any other cause for which any town, city, village or county would be liable, and such damages are caused by, or arise from, the wrong, default or negligence thereof and of any person, or private corporation, such person or private corporation shall be primarily liable therefor; but the town, city, village or county may be sued with the person or private corporation so primarily liable. If the town, city, village or county denies its primary liability and proves upon whom such liability rests the judgment shall be against all the defendants shown by the verdict or finding to be liable for the damages; but judgment against the town, city, village or county shall not be enforceable until execution has been issued against the party found to be primarily liable and returned unsatisfied in whole or in part; on such return being made the defendant town, city, village or county shall be bound by the judgment. The unpaid balance shall be collected in the same way as other judgments.
81.17 Annotation This section must be read in conjunction with s. 81.15 and applies only to highway defects. A tunnel under a street is not a highway defect. Armour v. Wisconsin Gas Co. 54 Wis. 2d 302, 195 N.W.2d 620 (1972).
81.17 Annotation This section creates a secondary liability on a municipality or county for highway defects that cause damage only when the act or default of another tort-feasor also contributes to the creation of the defect. Dickens v. Kensmoe, 61 Wis. 2d 211, 212 N.W.2d 484 (1973).
81.17 Annotation A person other than a municipality with any lability for a defect is primarily liable for the entire resulting judgment. If a contractor settles with the injured party for less than the amount of the ultimate award, the municipality is not liable for the balance. VanCleve v. City of Marinette, 2002 WI App 10, 250 Wis. 2d 121, 639 N.W.2d 792.
81.35 81.35 Tunnel under highway by landowner. The owner of land on both sides of a town highway may construct a tunnel under the highway, and the necessary fences for the passage of stock, and other purposes, in such manner as will not interfere with or endanger travel on the highway. The tunnel shall not be less than 25 feet in length and shall be maintained by the owner. The owner shall be liable for all damages which may be occasioned by failure to keep the tunnel in repair. The electors of the town at an annual town meeting may authorize the construction of any designated tunnel not less than 16 feet in length. The chairperson of the town shall see that all tunnels in the town are made in accordance with this section and that they are kept in good repair.
81.35 History History: 1989 a. 56, 359.
81.36 81.36 Engines upon highways; regulations; damages.
81.36(1)(1) The owner of any engine, or any person who propels or causes such an engine to be propelled or otherwise moved or used along or upon any town highway, shall be liable for all damages that may be caused thereby to such highway, or any sluiceway, culvert or bridge thereon, or to any person or corporation by reason of the propelling or otherwise moving or using the same upon any such highway in the following cases:
81.36(1)(a) (a) When such engine with its equipments and attachments and whatever it may be moving upon the highway shall weigh more than 10 tons.
81.36(1)(b) (b) When any such engine shall be set up or used within the limits of any highway, for any other purpose than to be propelled or otherwise moved along or upon it.
81.36(1)(c) (c) When any such engine shall be left unattended within the limits of any highway.
81.36(1)(d) (d) When any such engine shall be in a highway, whether standing or moving, and the person in charge shall not signal and stop it when it is approached within 15 rods in either direction by any team or any person riding or driving any animal, and desiring to pass such engine, or when the person or persons in charge of such engine shall neglect or refuse to render all proper assistance within their power to enable such team or persons to pass in safety.
81.36(1)(e) (e) When the person in charge of any engine shall neglect to span any bridge or culvert having a plank floor before crossing the same, with hardwood planks, at least 2 inches thick and 12 inches wide, or other sound planks of like width, at least 3 inches thick, so that the engine wheels shall rest thereon in crossing such bridge or culvert.
81.36(2) (2) The amount recovered by any town under the provisions of this section, shall, when collected, be credited to the town highway fund.
81.36(3) (3) Any person in charge of any engine having mud lugs on the drive wheels thereof, who shall neglect to span any bridge or culvert before crossing the same with planks of the kind and in the manner as provided in sub. (1) (e), shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than $5 nor more than $25, or by imprisonment in the county jail not exceeding 20 days.
81.38 81.38 Town bridges or culverts; construction and repair; county aid.
81.38(1)(1) When any town has voted to construct or repair any culvert or bridge on a highway maintainable by the town, and has provided for such portion of the cost of such construction or repair as is required by this section, the town board shall file a petition with the county board setting forth said facts and the location of the culvert or bridge; and the county board, except as herein provided, shall thereupon appropriate such sum as will, with the money provided by the town, be sufficient to defray the expense of constructing or repairing such culvert or bridge, and shall levy a tax therefor, which tax when collected shall be disbursed on the order of the chairperson of the county board and the county clerk, when the town board and county highway committee files a written notice with the clerk that the work has been completed and accepted. The county board of any county which has never granted aid under this section may in its discretion refuse to make any appropriation.
81.38(2) (2) The county shall pay the cost in excess of $750 up to $1,500. The town and county shall each pay one-half of the cost of construction or repair above $1,500. In determining the cost of construction or repair of any culvert or bridge, the cost of constructing or repairing any approach not exceeding 100 feet in length shall be included.
81.38(3) (3) Whenever the construction or repair of any such culvert or bridge must be made without delay, the town board may file its petition with the county clerk and the county highway committee, setting forth the facts respecting the necessity for immediate construction or repairs. It shall then be the duty of the town board and the county highway committee to make such construction or repairs with the least possible delay. The town board is authorized to borrow the entire cost of the work, and to include the town's share of such cost in the next tax levy. The construction or repair of a culvert or bridge performed and accepted pursuant to this subsection shall entitle the town to the same county aid that the town would have been entitled to had it filed its petition with the county board as provided in sub. (1).
81.38(4) (4) The county highway committee and the town board shall have full charge of letting, inspecting and accepting the work, but the town board may leave the matter entirely in the hands of the county highway committee.
81.38(5) (5) No county order may be drawn under sub. (1) for the construction of an arch, culvert or bridge unless it is constructed in a workmanlike manner and built of creosoted wood or timber, steel, stone or concrete or a combination thereof, and the design and construction comply with requirements under s. 84.01 (23).
81.38(6) (6) Any village, by a resolution adopted by a two-thirds majority vote of all members of the village board, may elect to become subject to all of the provisions of this section. Such election shall be effective when a certified copy of such resolution is filed with the county board and approved by a majority vote of the members of the county board representing towns and representing villages which have become subject to the provisions of this section as provided in this subsection; and thereafter, until such village ceases to be subject to the provisions of this section, the words "town" and "town board" as used in this section shall also apply respectively to such village and its village board. A village which has become subject to the provisions of this section as provided in this subsection may cease to be subject to such provisions only by the adoption of a resolution and its approval by the county board in the same manner and by the same procedure by which a village may become subject to such provisions as provided in this subsection.
81.38(7) (7) Except as provided in sub. (6) and s. 84.14 (3), nothing herein contained shall authorize the levy of a tax upon the property in any city or village which is required to maintain its own bridges.
81.38 History History: 1977 c. 190; 1981 c. 296; 1983 a. 192 s. 303 (2); 1983 a. 532.
81.39 81.39 Special town tax for repair of bridges. The town board may levy a tax for the purpose of rebuilding or repairing bridges and culverts which the town is required to maintain and which do not come within s. 81.38. But no such tax shall exceed $300 for any bridge or culvert, and not more than one such tax shall be levied in any year.
81.42 81.42 Dams used for bridges.
81.42(1) (1) The town board may contract with the owner of any dam with a roadway thereon for the use of such roadway for highway purposes for such period of time as the board may determine. The contract shall provide that the roadway shall at all times be kept in repair by the owner.
81.42(2) (2) Whenever any town board shall file its petition with the county board, setting forth the fact that said town board has voted to acquire the right to use any such roadway, designating as near as may be the location of such dam and roadway, and stating the amount agreed to be paid to the owner for the use thereof, the county board shall appropriate a sum equal to one-half the amount so agreed to be paid for such use, and shall cause such sum to be paid to the treasurer of said town on the order of the chairperson of the county board and county clerk whenever the town board shall notify them that a contract for the use of such roadway has been executed.
81.42 History History: 1983 a. 192 s. 303 (2).
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