CHAPTER 81
TOWN HIGHWAYS
81.01 Highways; duties of town board.
81.02 Superintendent; appointment; compensation; bond; highway districts.
81.03 Superintendent of highways; duties.
81.04 Highway funds disbursed.
81.05 Waterways; maintenance by towns.
81.06 Entry on lands; purposes; road materials in highways.
81.07 Entry on lands; appraisal of damages; appeals therefrom.
81.08 Temporary highways and detours; damages.
81.11 Highway taxes; assessment; amount.
81.12 Town highway tax; emergency levy; limit of; anticipation and collection.
81.14 Highways; refusal of town to open; appeal to county board; cost of opening.
81.15 Damages caused by highway defects; liability of town and county.
81.17 Highway defects; liability of wrongdoer; procedure.
81.35 Tunnel under highway by landowner.
81.36 Engines upon highways; regulations; damages.
81.38 Town bridges or culverts; construction and repair; county aid.
81.39 Special town tax for repair of bridges.
81.42 Dams used for bridges.
81.01
81.01
Highways; duties of town board. The town board shall have the care and supervision of all highways in the town, except as otherwise provided. The town board shall:
81.01(1)
(1) Appoint in writing if it deems advisable a superintendent of highways to supervise, under the direction of the board, the construction and repair of said highways and bridges and fix the compensation and the amount of the bond of such superintendent. Where no superintendent of highways is appointed, it shall be the duty of the town board to perform all the duties that are prescribed by law for the superintendent of highways to perform.
81.01(2)
(2) Provide the superintendent of highways with necessary forms and books made in compliance with standards prescribed by the department of transportation.
81.01(3)
(3) Provide machinery, implements, material, and equipment needed to construct, maintain, and repair said highways and bridges, and for that purpose may acquire by purchase or by condemnation in the manner provided by
ch. 32 gravel pits and stone quarries, but the total sum spent under this subsection in any year for construction, maintenance, and repair of highways and bridges may not exceed the product of $5,000 multiplied by the miles of highway under the jurisdiction of the town measured by the most recent highway mileage for the town, as determined under
s. 86.302, unless one of the following occurs:
81.01(3)(a)
(a) A greater sum is authorized by the town meeting.
81.01(3)(b)
(b) The town board, by resolution, submits to the electors of the town as a referendum at a general or special town election the question of exceeding the limit set under this subsection. A copy of the resolution shall be filed as provided in
s. 8.37. The board shall abide by the majority vote of the electors of the town on the question. The question shall read as follows:
Shall the town of .... spend $.... over the annual limit of the product of $5,000 multiplied by the miles of highway under the jurisdiction of the town measured by the most recent highway mileage for the town, as determined under section 86.302 of the Wisconsin Statutes, for the construction, maintenance, and repair of its highways and bridges?
FOR SPENDING⍽ AGAINST SPENDING⍽
81.01(4)
(4) Compel the superintendent of highways from time to time to perform the superintendent's official duties.
81.01(5)
(5) Erect and repair guideboards where deemed necessary on main traveled highways.
81.01(6)
(6) Assess the highway taxes in their town in each year.
81.01(7)
(7) Expend for highway purposes so much of the income taxes of the town as the board shall deem best.
81.01(8)
(8) Direct when and where all town moneys received from highway taxes and other available highway funds shall be expended.
81.01(9)
(9) Designate highways that shall be known as dragged roads, and divide the same into sections, and to appoint draggers for each section whose duty it shall be to drag that section under the direction of the town board, or to contract to have any section dragged, and fix the compensation therefor, preference to be given to occupants of lands abutting such road.
81.01(10)
(10) Enter any private lands with their employees and agents for the purposes of removing weeds and brush and of erecting or removing such fences as may be necessary to keep highways reasonably free from snow and open for travel during the winter season.
81.01(11)
(11) By ordinance, assign a name to each of the roads in the town under town board jurisdiction. No road name may be used on more than one road within the jurisdiction of the town.
81.01 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).
81.02
81.02
Superintendent; appointment; compensation; bond; highway districts. The town board may appoint more than one superintendent of highways. If more than one is appointed the town board shall divide the town into as many districts as there are superintendents. The districts shall be numbered and a superintendent shall be assigned to each district. The term of office of highway superintendents shall be one year from the date of their appointment. A superintendent of highways may be compensated by a regular salary or by a per diem allowance, to be paid out of the highway fund or out of the general fund of the town. In addition to a salary or per diem compensation the superintendent may be paid out of either of said funds a stated amount for the maintenance and upkeep of a horse or automobile or motor truck. Such superintendent before entering upon the duties of superintendent shall execute an official bond in such sum as the town board shall require, with sureties to be approved by the board, and file said bond with the town clerk.
81.02 History
History: 1991 a. 316.
81.03
81.03
Superintendent of highways; duties. The superintendent of highways shall supervise the construction and maintenance of all highways in the superintendent's district required to be maintained by the town, and keep them passable at all times, and perform such other services in connection with said highways as the town board requires, and keep a full account of all the superintendent's receipts and disbursements. The superintendent may make such arrangement for the prosecution of the highway work as the superintendent deems necessary and appoint such supervisors as the highway work requires. When any highway under the superintendent's charge becomes impassable the superintendent shall put the same in passable condition as soon as practicable. The superintendent shall make a complete and full report of all funds received and disbursed by the superintendent whenever requested so to do by the town board, and shall also make a complete and full report to each annual town meeting. The superintendent, and in the superintendent's absence the town board, shall immediately upon notice of its existence fill or remove any depression, ditch, hump or embankment which impedes the use of any highway in the superintendent's district.
81.03 History
History: 1991 a. 316.
81.03 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).
81.04
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.
81.12
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 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).
