80.01 History
History: 1999 a. 97.
80.01 Annotation
When a governmental unit shows public use of a road for 20 years or public maintenance for 10 years, a landowner claiming that the road is private has the burden of proving permissive use. Ruchti v. Monroe,
83 Wis. 2d 551,
266 N.W.2d 309 (1978).
80.01 Annotation
Municipalities may incur liability under sub. (3) for failure to trim vegetation obstructing the view at an intersection. Walker v. Bignell,
100 Wis. 2d 256,
301 N.W.2d 447 (1981).
80.01 Annotation
When a highway was established by user, the existence of ancient fences within 2 rods of either side of the center of the highway was sufficient to rebut the sub. (2) presumption that the highway was 4 rods in width. Threlfall v. Town of Muscoda,
190 Wis. 2d 121,
527 N.W.2d 367 (Ct. App. 1994).
80.01 Annotation
The test under sub. (2) for whether a highway has been "worked" is whether the work demonstrates the public's ownership of the road so that the public use of the road is not merely permissive. Continuous work on a road by a public entity is more likely to demonstrate ownership than sporadic work. County of Langlade v. Kaster,
202 Wis. 2d 449,
550 N.W.2d 722 (Ct. App. 1996).
80.01 Annotation
When documents indicate an intent to dedicate roadways to the public, in the absence of official acceptance by the municipality, prior acceptance by the general public users prevents revocation of the offer to dedicate. Nothing prevents the acceptance of the ongoing offer by a municipality. Upon formal acceptance the municipality becomes liable for maintenance and for damages that might result from defects. Cohn v. Town of Randall, 2001 WI App 176,
247 Wis. 2d 118,
633 N.W.2d 674.
80.01 Annotation
Although sub. (3) mandates that governmental authorities "remove, cut or trim or consent to the removing, cutting or removal of any tree, shrub or vegetation in order to provide safety to users of the highway," it has not also created a private cause of action for damages caused by a failure to comply with that mandate. Estate of Wagoner v. City of Milwaukee, 2001 WI App 292,
249 N.W.2d 306,
638 N.W.2d 382.
80.01 Annotation
Rights-of-way boundaries of nondedicated roads are discussed. 69 Atty. Gen. 87.
80.02
80.02
Town highways; petition to lay, alter or discontinue. When 6 or more resident freeholders wish to have a highway laid out, widened, altered or discontinued in their town, they may make application in writing to the supervisors of said town for that purpose. The application may be delivered to any supervisor or to the town clerk. In case the application is for the discontinuance of all or of a part of any highway, and it is desired, as permitted by
s. 80.05, to omit from the notice the description of the lands abutting upon such highway which will be benefited, injured or damaged by the discontinuance of such highway or any part thereof, the application shall contain the description of the lands abutting upon such highway which will be benefited, injured or damaged by the discontinuance of such highway or any part thereof and shall be delivered to the town clerk with a request in writing that such application remain on file with the clerk until the time set for hearing for reference and inspection by any parties concerned. When all the owners of lands abutting on the part of a highway sought to be altered, desire such alteration, and the supervisors are of the opinion that the public will not be materially affected by such alteration, the board may make the same, and may take into consideration donations of money, land or services for the making of such alterations. When the laying out of a highway would require the construction of a bridge costing more than $1,000, exclusive of donations, the order of the supervisors laying out such highway shall not be effective unless approved by the electors of the town, and an estimate by the department of transportation shall be conclusive of the cost of such bridge for the purposes of this section. No town board shall discontinue any part of a state trunk or county trunk highway, nor discontinue any highway when such discontinuance would deprive the owner of lands of access therefrom to a highway.
80.025
80.025
Highways abutted by state park lands; discontinuance or relocation. Any part of a highway lying wholly within state park lands may be discontinued or relocated by the state agency having jurisdiction over such abutting lands by filing written notice of such discontinuance or relocation with the town clerk or county clerk and upon approval by the supervisors after holding a hearing as provided in
s. 80.05 unless such discontinuance or relocation would deprive any other owner of lands access thereto from a highway. This section does not apply to state trunk highways or connecting highways.
80.025 History
History: 1977 c. 29 s.
1654 (3).
80.03
80.03
Restrictions on condemning for town highways. 80.03(1)(1) No town highway shall be laid out through or upon any cemetery without the consent of those having the control of the cemetery; or through or upon any structure, yard or enclosure used for educational or charitable purposes.
80.03(2)
(2) Without the consent of the owner no town highway shall be laid out through or upon any garden or orchard or any building or fixture used for trade or manufacture or any other building or fixture or the yard or enclosure necessary to the use thereof, when the damage thereby caused thereto, exclusive of the damage to the land, exceeds $300.
80.03(4)
(4) The limitations in this section upon the power to condemn for highway purposes applies solely to highways laid out by town authority pursuant to this chapter.
80.04
80.04
When supervisor disqualified; vacancies. 80.04(1)(1) No supervisor may act in laying out, altering, widening or discontinuing any highway in which the supervisor may be personally interested. If one supervisor is interested the other 2 supervisors shall act. If 2 supervisors are interested the 3rd supervisor shall act in the matter.
80.04(2)
(2) Whenever there are fewer than 2 supervisors in a town, the application authorized by
s. 80.02 may be made to the county board, which shall promptly appoint a committee of 3 of its members. The committee shall act upon the application in the same manner and with the same powers in every respect as the supervisors of the town might do.
80.04 History
History: 1991 a. 316;
1999 a. 97.
80.05
80.05
Notice of meeting; service and publication. 80.05(1)(1) On application made to supervisors for laying out, widening, altering or discontinuing any highway the supervisors shall prepare a notice fixing therein a time and place at which they will meet and decide upon the application. The notice shall specify, as near as practicable, the highway proposed to be laid out, widened, altered or discontinued and the tracts of land through which the highway passes or, if the application is for discontinuing the whole or any portion of the highway, the tracts of land abutting on the highway which will be benefited or injured by such discontinuance. When the description in the aggregate exceeds 200 words in length, the notice may state that such descriptions are contained in the application as provided in
s. 80.02, and shall give the name and address of the town clerk to whom the application has been delivered.
80.05(2)(a)
(a) At least 10 days prior to the date of hearing give notice by registered mail to all occupants and owners of record of lands through which the highway may pass or, if the application is for discontinuance, to the occupants and to the owners of record of all lands abutting on the highway.
80.05(2)(b)
(b) Give notice by registered mail to the department of natural resources and to the county land conservation committee in each county through which the highway may pass.
80.06
80.06
Proceedings after notice. The supervisors shall meet at the time and place stated in their notice, and upon being satisfied that the notices required in
s. 80.05 have been duly given, proof of which may be shown by affidavit or otherwise as they may require, shall proceed to examine personally such highway, and shall hear any reason that may be offered for or against laying out, widening, altering or discontinuing the same, and shall decide upon the application and shall grant or refuse the same as they shall deem best for the public good; and they may adjourn from time to time, not exceeding in all 30 days from the time of the first meeting, giving public notice of the time and place of such adjournment when made, and by forthwith filing notice of such adjournment in the office of the town clerk.
80.07
80.07
Order; survey; award; recording; presumptions. 80.07(1)(1) When the supervisors lay out, alter, widen or discontinue any highway they shall make and sign an order therefor, incorporating therein a description of the highway and cause survey thereof to be made when necessary. The order shall be filed and recorded in the office of the town clerk, who shall note in the record the time of recording. The order together with the award of damages shall be so filed within 10 days after the date fixed by their notice or adjournment for deciding upon the application. In case the supervisors fail to file the order and award within the 10 days aforesaid they shall be deemed to have decided against the application. When an order has been filed for more than 30 years and no award of damages or agreement or release has been filed and when the highway, or a part thereof, has been used by the public and public money has been expended thereon, for at least 5 years, it shall be presumed that a release was given by the owners of the lands over which the highway was laid out and the public shall be entitled to use the full width of the highway, as laid out, without further compensation.
80.07(2)
(2) Whenever the supervisors lay out, alter or discontinue any highway the town clerk shall transmit a certified copy of the order therefor to the county highway commissioner.
80.08
80.08
Width of highways. Except as provided in
s. 80.13, highways shall be laid out at least 49.5 feet wide, and when no width is specified in the order the highway shall be 66 feet wide.
80.08 History
History: 1999 a. 97.
80.09
80.09
Damages; agreement, award. The damages sustained by any person upon whose land any highway shall be laid out, widened, altered or discontinued may be fixed by an agreement signed by the owner and the supervisors and be filed in the town clerk's office. Such agreement and every release of damages given shall bar any further claim for damages by the owner and all persons claiming under the owner. If any owner, other than this state or the United States, does not so agree with the supervisors as to damages or does not deliver to the supervisors a written release of all claims for damages, the supervisors shall, at the time of making the highway order, assess the damages which the owner will sustain by reason of laying out, widening, altering or discontinuing the highway and shall make a written award specifying the sum awarded by them to each owner; and if any owner of land is unknown, the supervisors shall specify the damages awarded to the owner, and describe the owner's land in their award. The award shall be signed by the supervisors and be filed in the town clerk's office with the order laying out, widening, altering or discontinuing the highway.
80.09 History
History: 1991 a. 316.
80.10
80.10
Considerations affecting damages. If any part of a highway is discontinued at the time a new or altered highway is laid out, the benefits which any landowner derives from the discontinuance may be considered in fixing the damages sustained by the landowner in laying out the new or altered highway; and in fixing the damages sustained by any person in laying out, altering, widening or discontinuing any highway the benefits which the person receives thereby shall be taken into consideration.
80.10 History
History: 1991 a. 316.
80.11
80.11
Highways on and across town lines. 80.11(1)
(1) Whenever it is considered necessary to lay out, alter, widen or discontinue a highway upon the line between 2 towns, or extending from one town into an adjoining town, it shall be done by the supervisors of the 2 towns acting together. If the highway is laid out or altered it may be either upon or as near to the town line as the situation of the ground will admit. The supervisors of the 2 towns acting together may vary the location on either side of the town line as they consider to be necessary.
80.11(2)(a)(a) An application under
sub. (1) shall be all of the following:
80.11(2)(a)3.
3. Signed by at least 6 resident freeholders in each town.
80.11(2)(a)4.
4. Delivered to a supervisor or the clerk of each town.
80.11(2)(b)
(b) Upon receipt of an application under
par. (a), the supervisors shall promptly fix, and give notice of, the time when and place where the application will be decided. The notice shall be all of the following:
80.11(2)(b)1.
1. Signed by a majority of the supervisors of each town.
80.11(2)(b)2.
2. Published as a class 2 notice, under
ch. 985, in each of the towns.
80.11(2)(c)
(c) A majority of the supervisors of each town shall meet jointly at the time and place named in the notice under
par. (b) to decide upon the application and to sign the order and the award of damages. The proceedings shall be the same as in laying out, altering, widening or discontinuing highways located wholly within one town. The orders, awards, notices and all papers shall be in duplicate, and one duplicate of each shall be filed with each town clerk. The order shall be recorded in each town clerk's office.
80.11(3)(a)(a) The order under
sub. (2) (c) may designate the part of the highway that shall be made and kept in repair by each town, and the share of the damages, if any, that shall be paid by each town. Each town shall have all of the rights and be subject to the liabilities in relation to the part of the highway to be made or repaired by it as if it were wholly located in that town.
80.11(3)(b)1.1. A majority of the supervisors of each town, meeting together, may make an order in accordance with
par. (a) apportioning or reapportioning a town line highway or any part of the highway that they consider advisable, if any of the following conditions exists:
80.11(3)(b)1.a.
a. No apportionment has been made in an order laying out, altering or widening the highway or a part of the highway.
80.11(3)(b)1.b.
b. The highway or a part of the highway had its origin in user.
80.11(3)(b)1.c.
c. In the judgment of the supervisors circumstances have been so altered since the last apportionment of the highway or part of the highway that the apportionment or reapportionment has been rendered inequitable or impracticable.
80.11(3)(b)2.
2. An order made under this paragraph shall be filed as provided in
sub. (2) (c) and shall have the same effect as an order made in connection with the original laying out of the highway.
80.11(3)(c)
(c) Any written order or agreement made before August 27, 1947, by a majority of the supervisors of each town concerned, acting together, apportioning or reapportioning a town line highway has the same effect as though made on or after August 27, 1947.
80.11(4)(a)(a) The part of an order fixing the liabilities of towns in regard to a town line highway is vacated if any of the following occurs:
80.11(4)(a)1.
1. The territory of either town is increased or diminished by a change of the boundaries of either town including a change caused by flowage.
80.11(4)(a)2.
2. A portion of the town line highway is taken over by the state or county under the state or county highway system.
80.11(4)(a)3.
3. A new town or village is formed out of a part of the territory of either or both of the towns, having a portion of the town line highway within its borders.
80.11(4)(a)4.
4. A portion of a town line highway is crossed and covered by flowage.
80.11(4)(b)1.1. In the event that an order or part of an order is vacated under
par. (a) 1.,
2. or
4., a majority of the supervisors of each town that is party to the order shall, before the time for making the next tax roll, meet together and attempt to make a new order apportioning the liabilities on account of the highway, which shall be filed as provided in
sub. (2) (c).
80.11(4)(b)2.
2. In the event that an order or part of an order is vacated under
par. (a) 3., a majority of the supervisors of each town that is party to the order shall, before the time for making the next tax roll, meet together with a majority of the supervisors of the new town or with the president of the new village and attempt to make a new order apportioning the liabilities on account of the highway, which shall be filed as provided in
sub. (2) (c).
80.11(5)
(5) If no agreement is reached under
sub. (4) (b), or if an order laying out, altering or widening a town line highway has not apportioned the liability of the towns or village on account of the highway, the supervisors of an affected town or the president of an affected village, after 10 days' notice of the time and place of hearing served on the clerk of each town and village to be affected, may apply to the circuit judge of the county in which the affected town or village is located, for the appointment of 3 commissioners to apportion the liabilities of each affected town and village on account of the town line highway.
80.11(6)
(6) Upon application under
sub. (5), the circuit judge shall appoint 3 residents of the county as commissioners. The commissioners shall, on not less than 5 days' notice in writing to the clerk of each town and village affected, apportion the liabilities of each affected town and village on account of the highway. The commissioners shall make the determination in writing and shall file the determination with the clerk of each town and village affected. The commissioners' determination has the same effect as an order made under
sub. (2),
(3) or
(4).
80.11(7)
(7) Any bridge on a highway that became a highway under
s. 80.01 (2) as a result of having been worked, that is between 2 towns, or between a town on one side and a village or a town and village on the other side, and that has not been assigned to either of the adjoining towns or village, shall be repaired and maintained by the adjoining towns and village. The cost of repairs and maintenance shall be paid by the adjoining towns and village in proportion to the valuation of the property in the adjoining towns and village as equalized by the county board or boards at the last equalization.
80.11(8)(a)(a) Except as provided in
par. (b) and
sub. (7) or unless otherwise provided by statute or agreement, every highway bridge on a town, village or city boundary shall be maintained by the municipalities in which the bridge is located, each contributing to the expenses thereof in proportion to the last assessment of taxable property therein.
80.11(8)(b)
(b) Any bridge over any stream or river forming the boundary between 2 counties erected or maintained solely by one of the adjoining municipalities may be closed or discontinued by the municipality maintaining the bridge if the other adjoining municipality fails to contribute towards the maintenance of the bridge in the following proportion:
80.11(8)(b)1.
1. In proportion to the amount of the cost of erecting the bridge borne by the adjoining municipality that does not maintain the bridge, if the bridge was erected at the joint expense of the 2 adjoining municipalities.
80.11(8)(b)2.
2. In the proportion of one-half the cost of maintenance, if the bridge was not erected at joint expense.
80.11 History
History: 1999 a. 97.
80.12
80.12
Highways on and across town and municipal boundaries. 80.12(1)(1) Whenever it is considered necessary to lay out, alter, widen or discontinue a highway upon the line between a town and city or village or to lay out, alter, widen or discontinue a highway or any part of a highway extending from a town to a city or village, the proceedings therefor may be had under
s. 80.11. The application to lay out, alter, widen or discontinue the highway or any part of the highway shall be in duplicate, addressed to the supervisors of the town and the common council of the city or the board of trustees of the village, and be signed by at least 6 freeholders of the town and 6 freeholders of the city or village.
80.12(2)
(2) Upon receipt of an application under
sub. (1), the common council or board of trustees shall appoint 3 commissioners on the part of the affected city or village. The commissioners shall be duly sworn to faithfully discharge their duties as commissioners before entering upon those duties. The commissioners and town supervisors shall then give notice and proceed in all respects as provided in
s. 80.11.
80.12(3)
(3) The city or village shall be responsible for that part of the affected highway that, under
s. 80.11 (3 (a) shall be made and kept in repair by the city or village and for the share of damages assigned to the city or village under
s. 80.11 (3) (a). The cost of repairs, improvement and maintenance of any highway laid out on a line between a city and a town or village or located on one or the other side of the line may be at the expense of the adjoining municipalities and the apportionment may be made as provided in
s. 80.11 (3) to
(6).
80.12(4)
(4) The town board and village board or city council may cause any highway or part of a highway subject to the provisions of this section, which is not less than 264 feet in length, to be graded, paved, macadamized or otherwise improved, including the establishment of the grade, construction of curbs and gutters and installation of water and sewer mains and service pipes. The town board and village board or city council may levy special assessments for the whole or any part of the cost of the improvements as a tax upon the property that they determine is especially benefited by the improvements, in the manner provided in
s. 66.0703.
80.12(5)
(5) All proceedings and orders required to be filed and recorded shall be filed and recorded in the office of the clerk of the affected city, village or town.
80.125
80.125
Highways and bridges on state boundaries. A town or county board of any town or county bounded in part by a river, or by a highway, either of which is also a state boundary line may enter into agreement with the adjoining municipality in such other state for the maintenance and construction of boundary line bridges and for the maintenance and reconstruction of any boundary line highway including its bridges, by appropriation therefor not exceeding 50% of the total costs assignable to the boundary line facility.
80.13
80.13
Land excluded from highway. 80.13(1)
(1) When any person presents the town board with an affidavit that meets the requirements under
sub. (1m), the town board shall set a time and place to conduct a hearing regarding the laying out or widening of a highway. The hearing shall be held after 10 days and within 30 days of the receipt of the affidavit by the town board. Notice of the time and place of the hearing shall be served as required by
s. 80.05 and published as a class 2 notice under
ch. 985.
80.13(1m)
(1m) The affidavit required under
sub. (1) shall be executed by the owner or lessee of real estate located within the town, shall contain a description of the affected real estate and shall contain facts that satisfy the supervisors that any of the following circumstances exists:
80.13(1m)(a)
(a) The real estate described in the affidavit is shut out from all public highways by being surrounded on all sides by real estate owned by other persons, or by real estate owned by other persons and by water, and that the owner or lessee is unable to purchase a right-of-way to a public highway from the owners of the adjoining real estate or that such a right-of-way cannot be purchased except at an exorbitant price, which price shall be stated in the affidavit.
