Wisconsin landowner not permitted to contest presumption of highway ROW width

by Melanie Thwing

Joyce Affeldt, et. al. v. Green Lake County
(Wisconsin Court of Appeals, July 28, 2010)

Since the 1920’s, the Affeldts have owned, and resided in two farms in Green Lake County, Wisconsin. Highway B runs along the property line of these farms, a highway that has existed and has been maintained by the County for more than 20 years. In 2008, the county scheduled a project to increase Highway B to the full right-of-way width of four rods (sixty-six feet). During this time, all property owners along the line of the Highway were allowed to discuss the project. All approved except the Affeldts.  The Affeldts repeatedly notified the County that the fence line and trees that were on the Affeldts’ property were not in the right-of-way and could not be removed.  The Affeldts claimed that any removal, cutting, damaging, or destroying of the fence line or trees on the property would violate their rights as landowners.

The Affeldts, in Circuit Court, filed a temporary restraining order and permanent injunction, arguing if the project continued it would be an, “unconstitutional taking of their property without compensation.” The County countered that because Highway B is a public highway, and that they had the authority to maintain it, it can be increased to the standard of a full sixty-six feet. During this discussion a land surveyor was brought to the Court and testified that Highway B has been a major road way since the 1800’s, and that “the best determination” of the right-of-way was four rods, because the ‘ancient fences’ were inconsistent with a three-rod road.” The trial court ultimately ruled for the continuation of the project on Highway B, stating that if every property owner had a different fence line, the highway system would end in chaos.

The Affeldts then appealed to the Court of Appeals. The question under review was whether Highway B constituted a recorded highway, which if it did, would allow for a four-rod right-of-way. 

 Wis. Stat. § 82.50(1) defines a recorded highway as:
A highway for which the order laying out or altering the highway… has been recorded in the office of the register of deeds in the county in which the highway is situated or, for highways that were laid out or altered before January 1, 2005, in the office of the clerk of the town or the county in which the highway is situated.

Using this standard, the Court of Appeals refers to County Resolution No. 38, passed in 1939, which states the exact location of Highway B and certifies it as a recorded highway.

The Affeldts nevertheless contended that Wis. Stat. § 82.31(2) creates rebuttable presumption of a four-rod right of way.  The Court of Appeals agreed that Wis. Stat. § 82.31(2) creates rebuttable presumption of a four-rod right of way, but pointed out that that code provision addressed unrecorded highways only.  Given that Highway B is a recorded highway, the Affeldts have no ground to rebut the presumption of a four-rod wide road that § 82.50(1) provides. The Court of Appeals affirmed the decision of the circuit court.





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