Chapter 86

86.025 86.025 Camping on highways. It shall be unlawful for any person or persons to camp in wagons, tent or otherwise on the public highways or lands adjacent thereto, after a notice to remove therefrom by the owners of such adjacent lands, or the owner of land abutting on the highway, or by a member of the board of supervisors or any trustee of any town or village where such camping place is made. Any person or persons violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not exceeding $10, or imprisoned in the county jail not exceeding 30 days, or both.

86.03 86.03 Trees on and adjacent to highway.

86.03(1) (1) Removal of fallen trees. If any tree falls from adjacent land into any highway, the owner or occupant of the land shall immediately remove the tree from the highway. It shall be the duty of every highway patrolman, street commissioner, or other officer in charge of the maintenance of streets or highways, to remove from any highway any fallen tree or trees therein.

86.03(2) (2) Ownership. All trees on land over which any highway is laid out shall be for the use of the owner of the land or person otherwise entitled thereto, except trees that have been acquired by and for the public in the acquisition of the highway right-of-way and except such trees within the highway as may be requisite to make or repair the highways on the land or within one mile of the same; but no trees reserved for shade or ornament, unless acquired by the public, shall be used for such purpose.

86.03(3) (3) Planting trees and shrubs in highway.

86.03(3)(a) (a) Any person owning or occupying land adjoining any highway may, with the approval of the public authority maintaining the highway, plant, cultivate and maintain trees, shrubs or hedges on the side of the highway contiguous to and within 10 feet of that person’s land. Such trees, shrubs or hedges shall be cut or removed only by the owner or occupant of the abutting land or by the public authority having control of the highway.

86.03(3)(b) (b) Notwithstanding par. (a), if the person who owns or occupies the land that adjoins a highway is a town, the town may, with the approval of the public authority that maintains the highway, authorize another person to plant trees, shrubs, or hedges on the land. If the public authority maintaining the highway is a county, the town may request approval under this paragraph from the county on behalf of the person to be authorized.

86.03(4) (4) Cutting or injuring trees on highway. No person shall cut down, break, girdle, bruise the bark, or in any other manner injure, or allow any animal under that person’s control to injure, any public or private trees, shrubs, or hedges growing within the highway, except as the owner thereof or the public authority maintaining the highway may cut down, trim and remove trees, shrubs, and hedges for the purpose of and conducing to the benefit and improvement of the owner’s land or the highway facility, subject to sub. (7).

86.03(5) (5) Mutilation of trees. It shall be unlawful for any person to injure, mutilate, cut down, or destroy any shade tree growing on or within any street or highway in any village in this state, unless express permission to do so has been granted by the village’s board of trustees.

86.03(6) (6) Fines. Except as provided in sub. (7), any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed $25 for each tree or shrub damaged, felled or destroyed.

86.03(7) (7) Cutting of veterans memorial trees; penalty. No person may cut or trim any tree planted along any federal or state trunk highway as a memorial to the men and women who served in the armed forces of the United States in time of war, without the written permission of the department. Violations of this section shall be punishable by a fine of not less than $10 nor more than $200 or by imprisonment for not more than 30 days or both. Nothing in this section shall interfere with the rights of abutting property owners in those trees.

86.03 History History: 1991 a. 316; 1993 a. 490; 2001 a. 107; 2005 a. 22, 253; 2015 a. 236.

86.04 86.04 Highway encroachments.

86.04(1) (1) Order for removal. If any highway right-of-way shall be encroached upon, under or over by any fence, stand, building or any other structure or object, and including encroachments caused by acquisition by the public of new or increased widths of highway right-of-way, the department, in case of a state trunk highway, the county highway committee, in case of a county trunk highway, or the city council, village or town board, in case of a street or highway maintained by or under the authority of any city, village or town, may order the occupant or owner of the land through or by which the highway runs, and to which the encroachment shall be appurtenant, to remove the encroachment beyond the limits of the highway within 30 days. The order shall specify the extent and location of the encroachment with reasonable certainty, and shall be served upon the occupant or owner of the land through or by which the highway runs, and to which the encroachment shall be appurtenant.

86.04(2) (2) Nonremoval. If the occupant or owner upon whom the order is served shall not deny such encroachment, under sub. (3), and the encroachment is not removed within 30 days after the service of such order, the occupant or owner shall forfeit $1 for every day after the expiration of that time during which the encroachment continues. An action to recover such penalty may be brought in any court of record in the county. In all cases where a judgment is rendered, the judgment shall order that the occupant or owner remove the encroachment within the time fixed by the judgment, and upon failure to obey the order, the department, county highway committee, or city council, village or town board, as appropriate, may remove the encroachment and recover from the occupant or owner the cost thereof.

86.04(3) (3) Denial of encroachment, procedure. If, within 30 days after being served with the order issued under sub. (1), the owner or occupant delivers a denial in writing of the alleged encroachment to the ordering body, or fails to make a denial, the ordering body may commence an action to remove the encroachment in a court of record in the county where the property is located.

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

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

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

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

86.06 86.06 Highways closed to travel; penalties.

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

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

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

86.06 History History: 2011 a. 246.

86.07 86.07 Digging in highways or using bridges for advertising.

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

86.07(2) (2) 

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

86.07(2)(b) (b)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

86.073 86.073 Review of denial of permit.

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

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

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

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

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

86.074 86.074 Highway setback areas.

86.074(1) (1) In this section:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

86.074 History History: 2023 a. 157.

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

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

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

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

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

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

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

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

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

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

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

86.12 86.12 Highway railroad grade crossings; construction and repair.

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

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

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

86.13 86.13 Railroads to maintain highway crossings.

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

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

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