82.31 Validation of highways.

(1) Recorded highways. Any recorded highway that has been laid out under this chapter is a legal highway only to the extent that it has been opened and worked for 3 years. Any laid out highway that has not been fully and sufficiently described or recorded or for which the records have been lost or destroyed is presumed to be 66 feet wide.

(2) Unrecorded highways.

(a) Except as provided in pars. (b) and (c), any unrecorded highway that has been worked as a public highway for 10 years or more is a public highway and is presumed to be 66 feet wide.

(b) No road or bridge built upon the bottoms and sloughs of the Mississippi River by citizens or a municipality of any other state shall become a legal highway or a charge upon the town in which the road is located unless upon petition the highway is legally laid out by the town board.

(c) No lands granted for highway purposes that did not become a legal highway prior to July 1, 1913, shall become a legal highway unless the grant is accepted by the town board or by the town meeting of the town where the lands and proposed highway are located, and until a resolution of acceptance of the grant is recorded in the office of the town clerk.

History: 2003 a. 214 ss. 21 to 23.

NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

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).

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).

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 448, 550 N.W.2d 722 (Ct. App. 1996), 95-2694.

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, 00-2176.

A street is presumed to be 66 feet wide unless rebutted, by a preponderance of the evidence, by those contending that the street is some other width. Village of Brown Deer v. Balisterri, 2013 WI App 137, 351 Wis. 2d 665, 841 N.W.2d 59, 13-0748.

The general definition of highway in s. 990.01 (12) governs and does not have any limitation restricting the definition to vehicular traffic. Case law has extended the definition of highway to include roads, streets, bridges, sidewalks, driveway aprons, and shoulders of the highway. Village of Brown Deer v. Balisterri, 2013 WI App 137, 351 Wis. 2d 665, 841 N.W.2d 59, 13-0748.

Rights-of-way boundaries of nondedicated roads are discussed. 69 Atty. Gen. 87.

NOTE: The above annotations cite to s. 80.01 (1) or (2), the predecessor statutes to s. 82.31.