Establishing “Public” Highways in Wisconsin
Author: Attorney John R. Orton
There seems to be an increase in litigation, especially in rural areas, regarding roads. More and more people are purchasing or building homes in rural areas without addressing whether their property has access to a “public” road. Many purchasers just assume that if there is a road to their property, it must be a “public” road, which they have the right to use and which will be maintained by the taxpayers. Other purchasers mistakenly rely on title insurance to address access issues, unaware of the standard “Exceptions” which effectively exclude coverage for most access issues.
This article will briefly summarize the legal theories by which a “public” highway may be established, of which there are at least six (6). A public highway may be created,
- By conveyance,
- By plat,
- By highway order,
- By 10 years of work,
- By common law dedication, or
- By prescription or adverse use.
1. By Conveyance: A municipality may establish a public street by obtaining a written conveyance which either conveys fee title or an easement for highway purposes. This is the most straight forward method. It creates the fewest legal problems because it generates a clear chain of title, which owners, lawyers, and title companies understand.
2. By Plat or Certified Survey Map: A municipality may establish a public highway by properly accepting a highway which has been properly dedicated on a recorded plat or certified survey map as a public highway.
For plats, §236.29 Wis. Stats. makes clear that “approval” of a plat by the municipality constitutes “acceptance” of the highways shown thereon, and recording of the plat constitutes a conveyance of the highways to the municipality. This statute is a change in the common law, which previously provided that “approval” of a plat did not constitute “acceptance” by the municipality of the highway shown on the plat. Under common law, something more than approval of the plat itself was needed to establish “acceptance” of the highway. Formal resolution of the municipality, or public use of the road was required in addition to approval of the plat. Hence, just because a road is shown on an old plat does not necessarily mean that it is a public highway. Lawyers dealing with old roads created by old plats need to determine whether the plat in question was created before or after §236.29 altered the common law, because they may be dealing with a platted road that was never formally “accepted” and, therefore, does not legally exist, even though it is clearly shown on an old recorded plat.
For certified survey maps, §236.34(1)(e) Wis. Stats. incorporates §236.29, and so the rules are the same. A CSM which is approved by the municipality and then recorded has the same effect as a plat regarding the creation of public highways identified on the CSM.
3. By Highway Order: A municipality may establish a public highway, pursuant to the procedures contained in §82.10 through §82.17 Wis. Stats., by formally issuing a “highway order” laying out a public street, and by then using its power of eminent domain (32.05 Wis. Stats.) to acquire the right-of-way. This process, once completed, rarely leaves any confusion regarding the existence and location of the public highway.
4. By 10 Years of Work: A public highway may be established by a municipality working a road as a public highway for 10 years, pursuant to the requirements of §82.31(2) Wis. Stats.
82.31 Validation of Highways.
(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…
Under this statute, the central question is whether the road has been “worked” as a “public” highway. The term “worked” is defined by §82.01(11) Wis. Stats.:
(11) “Worked” means action of the Town in regularly maintaining a highway for the public use, including hauling gravel, grading, clearing, or plowing, and any other maintenance by or on behalf of the Town on the road.
Obviously, whether a road has been “worked” is a question of fact. Mushel v. Town of Molitor, 123 Wis.2d 136, 144 (App. Ct. 1985).
Also, whether a road has been worked as a “public” highway is a question of fact. “Work done by a public agency for the benefit of a private party does not constitute work ‘as a public highway’ under §80.01(2) [now 82.31(2)].” Ruchti v. Moore, 83 Wis.2d at 556; Town of Minocqua v. Neuville, 174 Wis. 347 (1921).
In many cases, it is clear that the municipality has “worked” a road for 10 years. Usually the municipality can prove that it has snow plowed, graded, graveled, mowed and/or patrolled the road, on a continuous basis, for at least 10 years. But in other cases, it can be far less clear. For example, many rural roads are ignored, except for irregular snow plowing in the winter. Evidence that a municipality plowed a disputed road will have limited probative value if the municipality also plowed other private roads and driveways, a common practice in rural areas.
5. By Common Law Dedication: The doctrine of “common-law dedication” is well-established in Wisconsin: “The essential requisites of a valid common-law dedication are there must be an intent to dedicate on the part of the owner and an acceptance of the dedication by the proper public authorities or by the general public user.” Nox v. Roehl, 153 Wis. 239, 243 (1913), affirmed by numerous cases, including Galewski v. Noe, 266 Wis. 7, 12 (1954); Gogolewski v. Gust, 16 Wis. 2d 510, 514 (1962); Poynter v. Johnston 114 Wis. 2d, 439, 448 (1983); County of Langlade v. Kaster, 202 Wis. 2d, 448 (Ct. App. 1996); City of Beaver Dam v. Cromheecke, 222 Wis. 2d, 608, 614 (Ct. App. 1998).
“There must be an absolute and complete dedication which means an offer of the land for public use and an acceptance thereof. Poynter v. Johnston, 114 Wis. 2d at 448. “Dedications or offers thereof need not be in writing, nor in any particular form. The intention of the owner to dedicate and acceptance thereof by the public are the essential elements of a complete dedication” Galewski v. Noe, 266 Wis. at 12. The intention to dedicate the land is a question of fact which must be resolved at trial. County of Langlade v. Kaster, 202 Wis.2d 448.
Acceptance of a dedication may be accomplished either by the actions of the proper public authority or by general public user. “The general public itself may accept an offer of dedication by using the offered property for a ‘considerable length of time.’” City of Beaver Dam v. Cromheecke, 222 Wis.2d at 615, quoting Galewski v. Noe, 266 Wis. at 14. The mere approval of a plat by a municipality and the subsequent recording of the plat, does not constitute an acceptance of platted streets as public highways. Gogolewski v. Gust, 16 Wis.2d at 516-517.
Finally, “an offer to dedicate may be withdrawn at any time before it is accepted.” City of Beaver Dam v. Cromheecke, 222 Wis.2d at 614; Galewski v. Noe, 266 Wis. at 14. This language is consistent with numerous cases holding that “until a proprietor’s dedication of a proposed street is accepted in the manner required by law, it is merely an offer which can be withdrawn at any time before acceptance.” In re Vacation of Plat of Garden City, 221 Wis. 134,138-40 (1936).
This theory is most commonly used by private parties, who can prove that a road has been used for many years by the public, but who can not prove that the road was “worked” by a municipality. It is obviously a fact-intensive theory.
6. By Prescription: A public highway may be established by satisfying the common law elements of prescription or adverse use. Establishing a public road “by prescription,” or “by user,” or “by adverse user,” mean the very same thing. State v. Town Board, 192 Wis. 186, 193 (1927). In County of Langlade v. Kaster, 202 Wis.2d, 448, 457 (Ct. App. 1996), the Court recited the test for establishing a public road by prescription or adverse use: “A prescriptive easement requires the following elements: (1) adverse use that is hostile and inconsistent with the exercise of the titleholder’s possessive rights (2) that is visible, open and notorious (3) under an open claim of right (4) and is continuous and uninterrupted for twenty years.
As a matter of public policy, it has always been difficult in Wisconsin to establish a public road by prescription. This public policy was best stated long ago in State v. Town Board, 192 Wis. 186 (1927):
“The law affords ample opportunity for the establishment of highways where needed. It is not necessary to penalize a considerate owner who has permitted travel over his unenclosed lands in order that the neighborhood may have highways. The Town authorities are clothed with power to lay out highways wherever public necessity requires. While it may involve some public expense, moral considerations require that such expense be borne by the public rather than that fanciful considerations be invoked to impose a burden on a landowner by reason merely of his neighborly indulgence.”
State v. Town Board, 192 Wis. at 195.
In conclusion, access issues continue to be a problem, especially in rural areas. A call to the Town clerk is rarely helpful because many Town roads are “unrecorded.” Although the clerk usually has an opinion about whether a road is public, the clerk rarely knows how or why the road is public. Usually the clerk’s opinion is simply based upon the fact that the Town currently “works” the road, and not upon any official record or action of the Town. In this regard, many municipalities would benefit from the passage and recording of an Ordinance which officially identifies and accepts those roads which the municipality considers “public.”