Justia.com Opinion Summary: Appellants David, Joyce, and Alan Affeldt objected to the county's removal of trees and fences along their farm property on a county highway. Appellants sought a judgment declaring that the trees and fences were not within the county's four rod right-of-way and enjoining their removal. The circuit court granted the county's motion for summary judgment, finding that appellants failed to set forth sufficient evidence to rebut the presumption under Wis. Stat. 82.31(1) that the county highway was laid out four rods wide. On appeal, the court of appeals affirmed, but on the grounds that it was an undisputed fact that the highway was a recorded, laid out highway and hence had a four rod right-of-way as a matter of law. On review, the Supreme Court reversed the decision of the court of appeals, holding that appellants set forth sufficient evidence to raise a genuine issue of material fact concerning the width of the county highway and whether the highway was laid out or instead was created by user.
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2011 WI 56
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2009AP2315
David Affeldt, Joyce Affeldt and Walter Alan
Affeldt,
Plaintiffs-Appellants-Petitioners,
v.
Green Lake County,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 329 Wis. 2d 271, 789 N.W. 2d 755
(Ct. App. 2010-Unpublished)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
July 6, 2011
March 2, 2011
CIRCUIT COURT
GREEN LAKE
WILLIAM M. MCMONIGAL
ABRAHAMSON, C. J. dissents (Opinion filed).
BRADLEY, J. joins dissent.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners there were briefs
by Attorney Kristine A. Snow, Todd A. Snow, and GRANT, SNOW,
SNOW, S.C., Waupun, and oral argument by Ms. Snow.
For the defendant-respondent there was a brief and oral
argument by John B. Selsing, Corporation Counsel, Berlin.
2011 WI 56
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2009AP2315
(L.C. No.
2008CV92)
STATE OF WISCONSIN
:
IN SUPREME COURT
David Affeldt, Joyce Affeldt and Walter Alan
Affeldt,
FILED
Plaintiffs-Appellants-Petitioners,
JUL 6, 2011
v.
Green Lake County,
A. John Voelker
Acting Clerk of Supreme
Court
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals.
Reversed and
cause remanded.
¶1
ANNETTE KINGSLAND ZIEGLER, J.
This is a review of an
unpublished decision of the court of appeals, Affeldt v. Green
Lake County, No. 2009AP2315, unpublished slip op. (Wis. Ct. App.
July 28, 2010), that affirmed an order of the Green Lake County
Circuit Court1 granting summary judgment in favor of Green Lake
County (the County).
¶2
David Affeldt, Joyce Affeldt, and W. Alan Affeldt (the
Affeldts) objected to the County's removal of trees and fences
1
The Honorable William M. McMonigal presided.
No.
2009AP2315
along their farm property on County Highway B (Highway B) in the
township
of
Green
Lake.
The
Affeldts
sought
a
judgment
declaring that the trees and fences are not within the County's
right-of-way and enjoining their removal.
The County moved for
summary judgment, and the circuit court granted the County's
motion.
The circuit court determined that the Affeldts failed
to set forth sufficient evidence to rebut the presumption under
Wis. Stat. § 82.31(2)(a) (2007-08)2 that Highway B is 66 feet
(four rods) wide.
¶3
The
Affeldts
appealed,
and
the
court
of
appeals
affirmed, though on different grounds.
¶4
accepted.
The Affeldts petitioned this court for review, and we
We now reverse the decision of the court of appeals
and remand to the circuit court for further proceedings.
¶5
the
The central issue presented in this case is whether
Affeldts
have
set
forth
sufficient
evidence
to
raise
a
genuine issue of material fact concerning the width of Highway
B.
More specifically:
(1)
Have
the
Affeldts
demonstrating
that
set
there
forth
is
a
sufficient
genuine
evidence
issue
as
to
whether Highway B is a recorded highway that has been
laid out?
(2)
Assuming Highway B has been laid out but not recorded,
have
the
Affeldts
set
2
forth
sufficient
evidence
to
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
2
No.
2009AP2315
rebut the presumption under Wis. Stat. § 82.31(1) that
Highway B was laid out four rods wide?
(3)
Assuming Highway B has not been laid out and instead
was
created
sufficient
by
user,
evidence
have
to
the
rebut
Affeldts
the
set
forth
presumption
under
Wis. Stat. § 82.31(2)(a) that Highway B is four rods
wide?
¶6
Alternatively, if we conclude that the Affeldts failed
to set forth sufficient evidence to rebut the presumption that
Highway B is four rods wide, the Affeldts ask us to decide
whether the presumption's retroactive application to Highway B
constitutes
a
taking
of
the
Affeldts'
property
without
just
compensation in violation of the Fifth Amendment of the United
States Constitution and Article I, Section 13 of the Wisconsin
Constitution.
¶7
We conclude that the circuit court improperly granted
summary judgment to the County.
The Affeldts have set forth
sufficient evidence to raise a genuine issue of material fact
concerning the width of Highway B.
Specifically, the Affeldts
have set forth specific facts showing that there is a genuine
issue as to whether Highway B is a recorded highway that has
been laid out.
Moreover, assuming Highway B has been laid out
but not recorded, the Affeldts have set forth specific facts
that, if proven, are sufficient to rebut the presumption that
Highway
B
was
laid
out
four
rods
wide.
Finally,
assuming
Highway B has not been laid out and instead was created by user,
the Affeldts have set forth specific facts that, if proven, are
3
No.
2009AP2315
sufficient to rebut the presumption that Highway B is four rods
wide.
¶8
Because we conclude that the Affeldts have set forth
sufficient evidence to rebut the presumption that Highway B is
four rods wide, we do not reach the question of whether the
presumption's retroactive application to Highway B amounts to an
unconstitutional taking of the Affeldts' property.
I. FACTUAL BACKGROUND
¶9
The Affeldts own two farms in the township of Green
Lake, on opposite sides of Highway B.3
W. Alan Affeldt and his
wife, Joyce Affeldt, live on the north side of Highway B in a
farmhouse built by his grandparents in the early 1920s.
In
2005, their son, David Affeldt, purchased a farm on the south
side of Highway B.
in
its
same
It is undisputed that Highway B has existed
location
since
the
late
1800s.
It
is
further
undisputed that the County has maintained Highway B for at least
the past ten years.
¶10
In
January
2008,
the
Green
Lake
County
Highway
Department scheduled a reconstruction and maintenance project on
Highway B.
The project consisted of the resurfacing of the
road, the clearing of ditches, and the laying of underground
utilities.
In
order
to
accomplish
its
project,
the
County
deemed it necessary to remove all trees, fence line, and other
encroachments within the County's right-of-way.
3
Highway B to the west of the Affeldts' property lies in
the township of Marquette.
4
No.
¶11
Affeldts
2009AP2315
The parties dispute the time and manner in which the
received
notice
of
the
reconstruction
project.
Nevertheless, in early 2008, the Affeldts became aware of the
County's intent to remove trees and fence line from along the
sides of Highway B.
removal,
contending
The Affeldts repeatedly objected to the
that
the
trees
and
fences
along
properties were not within the County's right-of-way.
to the County,
the Affeldts
were
the
only
their
According
affected
property
owners on Highway B whom did not approve of the removal of the
trees and fences.
II. PROCEDURAL POSTURE
¶12
On
April
15,
2008,
the
Affeldts
filed
a
complaint
against the County, seeking a judgment declaring that the trees
along Highway B are not within the County's right-of-way.
Affeldts
requested
the
circuit
court
to
enjoin
the
The
County's
removal of the trees, alleging that such removal would amount to
an unconstitutional taking of the Affeldts' property.
¶13
On
that
same
date,
the
Affeldts
moved
the
circuit
court for an order temporarily restraining and enjoining the
County from removing, cutting, damaging, or destroying any trees
on
the
Affeldts'
Affeldts'
motions,
property.
and
The
the
circuit
County
court
proceeded
denied
the
with
its
reconstruction project as scheduled.
¶14
In its answer to the Affeldts' complaint, the County
denied that the trees were the Affeldts' property and requested
the circuit court to dismiss the complaint.
5
No.
¶15
On
November
6,
2008,
the
County
moved
2009AP2315
for
summary
judgment, arguing that the removal of trees, fences, and other
encroachments along Highway B lies entirely within the County's
presumed
four
rod
right-of-way.
Pursuant
to
Wis.
Stat.
§§ 83.01(7)(a) and (b) and 86.04(1), respectively, the County
asserted it has the duty to maintain Highway B and the authority
to remove any encroachments within its right-of-way.
The County
further maintained that the Affeldts are unable to present any
documentation or facts that would rebut the presumption that
Highway B is four rods wide.
¶16
The County supported its motion for summary judgment
with affidavits by Duane Prachel (Prachel), the Superintendent
of the Green Lake County Highway Department, and Jason Ingram
(Ingram),
a
registered
land
surveyor.
Prachel
averred
that
Highway B has existed and been maintained by the County as a
four rod right-of-way for at least 20 years.
Consistent with
the County's established policy and practice, Prachel asserted,
all obstacles have to be removed from the right-of-way in order
for
the
County
to
carry
out
Highway
B's
reconstruction
and
maintenance.
¶17
Ingram reported on and prepared a survey of Highway B
and expressed his opinion that Highway B's existence dates back
to the late 1800s.
Based upon his review of the statutes and
various documents from the Green Lake County Highway Department,
the Green Lake County Surveyor, Green Lake Register of Deeds
Office, and the townships of Marquette and Green Lake, Ingram
further averred that Highway B is presumptively four rods wide.
6
No.
¶18
In
his
report
attached
to
his
2009AP2315
affidavit,
Ingram
acknowledged "not finding any written record of [Highway B's]
location or width" but nevertheless opined that a four rod width
is the "best fit" for Highway B: "[T]he fact that this was a
'major' roadway in the mid 1800's leads us to presume that 4
rods
is
the
best
width . . . ."
determination
of
the
right
of
way
Ingram recognized that "ancient fences" along
the south side of Highway B varied from zero to six feet north
of the four rod right-of-way but dismissed the value of such
information, explaining that the location of Highway B's fence
line lacked consistency.
¶19
On December 11, 2008, the Affeldts filed a brief in
opposition to the County's motion for summary judgment.
The
Affeldts argued that summary judgment is inappropriate because
genuine issues of material fact preclude the circuit court from
being able to determine, as a matter of law, that Highway B is
four rods wide.
the
application
constitutes
a
compensation
In the alternative, the Affeldts argued that
of
the
taking
in
of
four
the
rod
presumption
Affeldts'
violation
of
to
property
the
federal
Highway
B
without
just
and
state
constitutions.
¶20
The
Affeldts
attached
several
affidavits
to
their
brief in opposition to the County's motion for summary judgment,
including one by Dennis Steinkraus (Steinkraus), a licensed land
surveyor,
and
one
by
each
of
the
three
Affeldt
plaintiffs.
Steinkraus reviewed Ingram's survey map and then prepared one of
his own, in which he illustrated the fence line and several
7
No.
2009AP2315
trees and tree stumps along Highway B that exist within the
County's alleged four rod right-of-way.
¶21
In his affidavit, W. Alan Affeldt stated that he has
lived in the same farmhouse on Highway B since he was born on
December
7,
1946.
He
averred
that
the
trees
and
fences
identified in Steinkraus' survey map have existed in the same
location for as long as he can remember.
In support, W. Alan
attached to his affidavit an outdoor photograph of himself as a
baby and another taken in 1962, both of which reveal full-grown
trees bordering Highway B.
affidavit
an
aerial
In addition, W. Alan attached to his
photograph
allegedly
taken
in
the
late
1940s, which shows a fence line and several trees on either side
of Highway B.
W. Alan averred that that particular fence line
was the same one that existed at the time this lawsuit began.
¶22
W.
Alan
also
explained
that
as
early
as
1954,
a
machine shed had been located on his property, 26 feet from the
centerline of Highway B.
In 1992, he replaced that shed with a
new one which he asserts lies 32 feet from the centerline.
¶23
Finally, W. Alan averred that his family has always
mowed its lawn up to the gravel shoulder of Highway B and that
in the 62 years he has lived at his property, he has never seen
the County maintain the trees or fence line along Highway B, nor
mow the lawn or plow snow to its full alleged four rod right-ofway.
¶24
In her affidavit, Joyce Affeldt echoed many of her
husband's statements.
was never laid out.
In addition, Joyce opined that Highway B
In support, she attached to her affidavit a
8
No.
2009AP2315
copy of the Green Lake County Board proceedings from November
21, 1939, which purportedly reveals the adoption of a resolution
to add Highway B to the system of town roads maintained by the
County.
¶25
David
Affeldt
similarly
averred
that
during
his
lifetime, he has never seen the County maintain Highway B beyond
the shoulders of the highway, other than mowing the grass on the
south
side
up
to
the
fence
line.
David
attached
to
his
affidavit a photograph from January 2008 which, according to
David, shows that the County plowed snow only seven or eight
feet beyond the paved portion of Highway B.
¶26
After
arguments,
on
ordering
July
22,
supplemental
2009,
the
briefs
circuit
County's motion for summary judgment.
and
court
hearing
granted
the
Finding that Highway B,
"a significant cross-county thoroughfare, has long since left
the appearance of rural, has been paved for a long, long time
and has been maintained by the [C]ounty on some basis," the
circuit
court applied
to
Highway
B
the
four
rod
presumption
under Wis. Stat. § 82.31(2)(a).
Distinguishing these facts from
those in Threlfall v.
Muscoda,
Town
of
190
Wis. 2d 121, 527
N.W.2d 367 (Ct. App. 1994), the circuit court determined that
the Affeldts failed to set forth sufficient evidence to rebut
the presumption that Highway B is four rods wide.
¶27
In
acknowledged
making
that
it
its
was
determination,
"going,
to
the
some
circuit
degree,
outside the bounds of summary judgement . . . ."
court
slightly
In particular,
the circuit court noted the possible existence of ancient fence
9
No.
lines
along
Highway
B
but
concluded
that
2009AP2315
"those
lines
of
demarcation, whatever form that they come in, fences or tree
lines, are not sufficiently consistent."
persuaded
that
the
four
rod
The circuit court was
presumption
promotes
safety
and
standardized highway maintenance:
The court believes that there is merit to the
[C]ounty's position that every 100 foot property owner
cannot have a different fence line[;] otherwise the
highway system would result in chaos and not enhance
management but undermine proper management from both
road maintenance and safety for those who use it, so
even though the court may be venturing slightly
outside of the bounds, the court believes that
granting the summary judgement is appropriate in favor
of the [C]ounty.
¶28
The
Affeldts
appealed,
and
affirmed, though on different grounds.
the
court
of
appeals
Affeldt, No. 2009AP2315,
unpublished slip op.
The court of appeals concluded that the
County
to
is
entitled
summary
judgment
based
upon
the
"undisputed" fact that Highway B is a recorded, laid out highway
and hence has a four rod right-of-way as a matter of law.
¶¶13-15.
Id.,
According to the court of appeals, "[t]he evidence
demonstrating that Highway B is recorded and laid out derives
directly from Resolution No. 38 of the Green Lake County Board
minutes dated November 21, 1939," id., ¶12, the same resolution
relied upon by Joyce Affeldt in her affidavit, id., ¶13.
In a
footnote, the court of appeals acknowledged, but then dismissed,
the Affeldts' argument that the resolution is insufficient to
establish
that
Highway
B
was
10
laid
out.
Id.,
¶13
n.4
No.
(distinguishing
the
resolution
in
this
case
2009AP2315
from
that
in
Muehrcke v. Behrens, 43 Wis. 2d 1, 169 N.W.2d 86 (1969)).
¶29
The court of appeals reasoned that because Highway B
is indisputably a recorded, laid out highway, it conclusively
has a four rod right-of-way pursuant to Wis. Stat. § 82.50(1).
Affeldt, No. 2009AP2315, unpublished slip op., ¶15.
the
court
of
appeals
determined,
the
Therefore,
rebuttable
four
rod
presumption in Wis. Stat. § 82.31 is not even triggered:
We
acknowledge
that
in
some
circumstances,
a
rebuttable
presumption
exists.
However,
the
circumstances giving rise to a presumption are not
present here.
The legislature provided for the
presumption in cases where records were unavailable to
show the road was recorded and laid out, see
§ 82.31(1), or where the road is an unrecorded
highway, see § 82.31(2). Here, a record exists of the
resolution
to
create
Highway
B,
including
a
description of its location, the vote count, passage,
and adoption of Highway B as a town highway.
Id., ¶14.
¶30
The Affeldts petitioned this court for review, which
we accepted on October 27, 2010.
We now reverse the decision of
the court of appeals and remand to the circuit court for further
proceedings.
III. STANDARD OF REVIEW
¶31
the
This case comes to us on summary judgment.
circuit
court
properly
granted
summary
judgment
Whether
to
the
County is a question of law that we review de novo, applying the
same standards used by the circuit court and set forth in Wis.
Stat. § 802.08.
See Konneker v. Romano, 2010 WI 65, ¶22, 326
11
No.
2009AP2315
Wis. 2d 268, 785 N.W.2d 432; Racine Cnty. v. Oracular Milwaukee,
Inc., 2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d 88.
¶32
This case also requires us to consider the interplay
between the modern highway statutes and those that existed at
the
time
a
highway
interpretation
was
presents
purportedly
a
question
laid
of
out.
law
Statutory
that
we
review
independently while benefitting from the lower courts' analyses.
Konneker, 326 Wis. 2d 268, ¶24.
IV. ANALYSIS
¶33
We conclude that the County is not entitled to summary
judgment because the Affeldts have set forth sufficient evidence
to raise a genuine issue of material fact concerning the width
of Highway B.
We begin our analysis by outlining the statutory
framework for determining the width of Highway B.
We then apply
the summary judgment methodology to that framework.
A. Statutory Framework for Determining
the Width of Highway B
¶34
As
the County
points
out,
and
the Affeldts do
dispute, the County has the duty to maintain Highway B.
Wis. Stat. § 83.01(7)(a), (b).
not
See
Furthermore, the County has the
authority to remove any encroachment upon Highway B's right-ofway.
See Wis. Stat. § 86.04(1).
The central issue in this case
is the width of Highway B's right-of-way.
If Highway B is a
full four rods wide, as the County contends, then the County was
within its authority to remove the trees and fence line along
the Affeldts' property.
1. Wisconsin Stat. § 82.31
12
No.
¶35
Wisconsin
Stat.
§ 82.31
width of existing highways.4
sets
forth
the
2009AP2315
presumptive
Section 82.31 distinguishes between
"Recorded Highways" in subsection (1) and "Unrecorded Highways"
in subsection (2).
¶36
Wisconsin
We examine these subsections in turn.
Stat.
§ 82.31(1),
"Recorded
Highways,"
provides:
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.
Hence, the relevant determination under § 82.31(1) is whether
the highway is (1) a "recorded highway that has been laid out"
or (2) laid out but not "fully and sufficiently described or
4
Wisconsin Stat. ch. 82 is entitled "Town Highways," but
the legislative history informs us that § 82.31 should not be
limited in scope to town highways.
Wisconsin Stat. ch. 82 is the result of the legislature's
significant reorganization of Wis. Stat. chs. 80 and 81 (200102).
See 2003 Wis. Act 214, prefatory note. As recognized by
the
Joint
Legislative
Council's
Special
Committee
on
Recodification of Town Highway Statutes, former chapters 80 and
81 dated back to the 1800s and had been updated piecemeal,
without regard to internal organization.
Id.
The legislature
organized former chapters 80 and 81 by moving most of their
provisions into a new chapter 82.
Id.
In doing so, the
committee made clear that substantive changes were not intended
unless specifically noted in the Act. Id.
Wisconsin Stat. § 82.31, in particular, is a recodification
of Wis. Stat. § 80.01(1m)-(2) (2001-02).
2003 Wis. Act 214,
§§ 21-23.
Former chapter 80 was entitled generally "Laying
Highways" and was not limited in scope to town highways.
2003
Wis. Act 214 does not indicate a substantive change between Wis.
Stat. § 82.31 and Wis. Stat. § 80.01(1m)-(2) (2001-02). See id.
13
No.
2009AP2315
recorded" or laid out but the records for which "have been lost
or destroyed."
In the second instance, the laid out highway is
presumed to be 66 feet (four rods) wide.
¶37
Wisconsin
Highways"
and
Stat.
states,
§ 82.31(1).
§ 82.31(2)
in
governs
relevant
part:
"Unrecorded
"(a) . . . 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."
Hence,
the
relevant
determination
under
§ 82.31(2)(a) is whether the highway is unrecorded but "has been
worked as a public highway for 10 years or more."
highway
is
presumed
to
be
66
feet
(four
If so, the
rods)
wide.
§ 82.31(2)(a).
¶38
Accordingly, in applying Wis. Stat. § 82.31 to Highway
B, the analysis proceeds as follows:
(1)
Is Highway B a "recorded highway that has been laid
out"?
(2)
See § 82.31(1).
Is Highway B a "laid out highway" but not "fully and
sufficiently described or recorded" or the records for
which "have been lost or destroyed"?
See § 82.31(1).
If so, Highway B is presumed to be four rods wide.
See id.
(3)
Is
Highway
worked
as
B
an
"unrecorded
a
public
highway
highway
that
for
years"?
10
has
been
See
§ 82.31(2)(a).
four rods wide.
¶39
If so, Highway B is presumed to be
See id.
Wisconsin
aforementioned
Stat.
terms,
ch.
including
14
82
defines
"[l]aid
several
out,"
of
the
§ 82.01(4),
No.
"[r]ecorded
highway,"
§ 82.01(10).
§ 82.01(8),
and
2009AP2315
"[u]nrecorded
highway,"
Chapter 82 then outlines the procedure for laying
out, altering, or discontinuing any highway, and then recording
the
resulting
order,
see
§§ 82.10-82.29.
That
procedure,
however, is not determinative in cases like this, in which the
highway at issue was purportedly laid out decades or even a
century earlier.
In this case, in order to determine whether
Highway B is recorded, laid out, both, or neither, we must look
to Wis. Stat. ch. 80 (1939), the statutory procedure that was in
force
on
November
21,
1939,
the
date
on
purportedly resolved to lay out Highway B.
which
the
County
See Jacobosky v.
Town of Ahnapee, 244 Wis. 640, 643, 645, 13 N.W.2d 72 (1944)
(applying Wis. Stat. ch. 152 (1869) to a May 4, 1871, order that
laid out the highway at issue); Town of Buchanan v. Wolfinger,
237 Wis. 652, 656, 298 N.W. 176 (1941) (applying Wis. Stat. ch.
19 (1858) to a May 29, 1858, order that purportedly laid out the
highway at issue).
2. Wisconsin Stat. ch. 80 (1939)
¶40
Wisconsin Stat. § 80.01 (1939) is an early predecessor
of Wis. Stat. § 82.31.
See supra note 4.
Wisconsin Stat.
§ 80.01(1) (1939) explained what the legislature considered to
be a recorded, laid out highway in 1939:
All highways which shall have been laid out by
the supervisors of any town, the board of supervisors
of any county, or by a committee thereof, or by
commissioners appointed by the legislature, or by any
other duly constituted authority, and recorded, any
portion of which shall have been opened and worked for
the term of three years shall be deemed to be and are
15
No.
2009AP2315
hereby declared to be legal highways so far as they
have been so opened and worked, notwithstanding the
law may not have been in all respects complied with in
laying out the same.
The making of an order laying
out any highway by the proper officers and filing the
same or a certified copy thereof in the office of the
town clerk of the town in which such road is situated
shall be deemed a recording of such highway within the
meaning of this section.
The
first
sentence
of
§ 80.01(1)
(1939)
is
substantively
identical to the first sentence of Wis. Stat. § 82.31(1); under
both, any recorded highway that has been laid out is deemed a
legal highway to the extent that it has been opened and worked
for three years.
Wisconsin Stat. § 80.01(1) (1939), however,
went further and defined a recorded highway as "[t]he making of
an
order
laying
out
any
highway
by
the
proper
officers
and
filing the same or a certified copy thereof in the office of the
town clerk of the town in which such road is situated . . . ."
¶41
The order referenced in Wis. Stat. § 80.01(1) (1939)
was further defined by Wis. Stat. § 80.07 (1939), which governed
highways laid out by the supervisors of a town, and Wis. Stat.
§ 80.41 (1939), which governed highways laid out by the board of
supervisors
of
a
county.
Wisconsin
Stat.
§ 80.07
(1939)
provided, in relevant part:
Whenever the supervisors shall lay out . . . any
highway they shall make and sign an order therefor,
incorporating therein a description of the highway so
laid out . . . , and shall cause an accurate survey
thereof to be made when necessary; and such order
shall be filed and recorded in the office of the town
clerk, who shall note the time of recording the same
in the record.
Such order . . . shall be so filed
within ten days after the day fixed by their notice or
adjournment for deciding upon such application; and in
case said supervisors shall fail to file such
16
No.
2009AP2315
order . . . within the ten days aforesaid they shall
be deemed to have decided against such application.
Similarly, Wis. Stat. § 80.41 (1939) provided that when a county
board of supervisors lays out a highway, "they shall make an
order laying out . . . such highway or refusing so to do, which
shall be signed by the chairman and county clerk and filed and
recorded
in
the
county
clerk's
office."
The
order
must
incorporate a description of the highway and an accurate survey
thereof, when necessary.
Id.
Notably, the county board of
supervisors "shall also cause a copy of such order to be filed
in the office of the town clerk of each town in which any part
of the highway laid out . . . lies within ten days after the
making of such order."
¶42
Id.
Wisconsin Stat. §§ 80.01(1), 80.07, and 80.41 (1939)
teach us that in 1939, a highway was recorded and laid out when
the order laying out the highway, or a certified copy thereof,
was filed in the office of the town clerk of the town or towns
in which the road was situated.
Furthermore, the order laying
out the highway had to be signed by the town supervisors, Wis.
Stat. § 80.07 (1939), or by the chairman of the county board of
supervisors and the county clerk, Wis. Stat. § 80.41 (1939).
In
either case, whether the highway was laid out by the supervisors
of a town or the board of supervisors of a county, the order
laying out such highway had to incorporate a description of the
highway and an accurate survey thereof when necessary.
Stat. §§ 80.07, 80.41 (1939).
17
Wis.
No.
¶43
Finally,
relevant
to
this
case,
Wis.
2009AP2315
Stat.
§ 80.08
(1939) set forth the minimum width of highways laid out in 1939:
"[H]ighways shall be laid out at least three rods wide, and when
no width is specified in the order the highway shall be four
rods wide."
¶44
Accordingly, to determine the proper width of Highway
B, we now apply the legislative directives for highways laid out
and recorded in 1939 to the framework articulated by Wis. Stat.
§ 82.31.
(1)
The analysis proceeds as follows:
Is Highway B a "recorded highway that has been laid
out"?
See § 82.31(1).
That is, was an order laying
out Highway B, or a certified copy thereof, filed in
the office of the town clerk of the towns in which
Highway
B
is
situated?
See
Wis.
Stat.
§ 80.01(1)
(1939).
Furthermore, was the order signed by the town
supervisors or, alternatively, by the chairman of the
county board of supervisors and the county clerk, and
did the order incorporate a description of Highway B
and an accurate survey thereof if necessary?
Stat. §§ 80.07, 80.41 (1939).
See Wis.
If all of the above is
answered affirmatively, then the width of Highway B is
the width specified in the order and, in any case,
18
No.
must be at least three rods.5
(1939).
See Wis. Stat. § 80.08
If no width is specified in the order, then
the width of Highway B is four rods.
(2)
2009AP2315
See id.
Is Highway B a "laid out highway" but not "fully and
sufficiently described or recorded" or the records for
which "have been lost or destroyed"?
See § 82.31(1).
If so, Highway B is presumed to be four rods wide.
See id.
(3)
Is
Highway
worked
as
B
an
"unrecorded
a
public
highway
highway
that
for
years"?
10
has
been
See
§ 82.31(2)(a).
four rods wide.
¶45
If so, Highway B is presumed to be
See id.
Still, as the Affeldts point out, the analysis does
not necessarily end there.
Stat. § 82.31(1)
The four rod presumptions under Wis.
and (2)(a)
are
rebuttable.
See
Barrows v.
Kenosha Cnty., 8 Wis. 2d 58, 62-63, 69, 98 N.W.2d 461 (1959);
5
Finding that Highway B is indisputably a recorded, laid
out highway, the court of appeals concluded that Highway B, as a
matter of law, has a four rod right-of-way pursuant to Wis.
Stat. § 82.50(1). Affeldt v. Green Lake Cnty., No. 2009AP2315,
unpublished slip op., ¶15 (Wis. Ct. App. July 28, 2010).
The
court of appeals' application of § 82.50(1) is in error.
Even
assuming for the sake of argument that Highway B constitutes a
town road, by the statute's plain language, § 82.50 does not
apply to town roads existing on October 1, 1992.
§ 82.50(3);
see also 1999 Wis. Act 85, § 5 (designating October 1, 1992, as
the effective date of rules establishing the minimum geometric
standards for the improvement of existing town roads under Wis.
Stat. § 86.266 (1997-98), the predecessor to Wis. Stat. § 82.52,
see 2003 Wis. Act 214, § 184). It is undisputed that Highway B
has been in existence since the late 1800s, and thus, Wis. Stat.
§ 82.50 does not apply in this case.
19
No.
Threlfall, 190 Wis. 2d at 128-32.
2009AP2315
Accordingly, in this case, if
either (2) or (3) of the above framework applies, then Highway B
is only presumed to be four rods wide, and the Affeldts bear the
burden of proving otherwise.
3. The rebuttable presumptions under
Wis. Stat. § 82.31(1) and (2)(a)
¶46
As previously described, Wis. Stat. § 82.31 sets forth
two presumptions as to the width of highways, both providing for
a width of 66 feet (four rods).
The first stated four rod
presumption applies to all laid out highways that are not "fully
and sufficiently described or recorded or for which the records
have been lost or destroyed . . . ."
§ 82.31(1).
This first
stated presumption has existed in the statutes since 1885.
See
§ 1, ch. 102, Laws of 1885; Barrows, 8 Wis. 2d at 62.
¶47
The second stated four rod presumption applies to "any
unrecorded highway that has been worked as a public highway for
10 years or more . . . ."
Wis. Stat. § 82.31(2)(a).
In other
words, the second stated presumption applies to all highways,
including those created by user, see Barrows, 8 Wis. 2d at 62,
so long as the highway has been "worked" as a public highway,
that is, regularly maintained for public use,6 for a period of at
least ten years.
§ 82.31(2)(a).
was enacted in 1951.
This second stated presumption
See ch. 380, Laws of 1951; Barrows, 8
6
For purposes of Wis. Stat. ch. 82, § 82.01(11) defines the
term "worked" as "action of the town in regularly maintaining a
highway for public use, including hauling gravel, grading,
clearing or plowing, and any other maintenance by or on behalf
of the town on the road."
20
No.
Wis. 2d at 62; Threlfall, 190 Wis. 2d at 128.
2009AP2315
Prior to 1951,
the conclusive width of a highway created by user was determined
by the limits of the user.
See Nicolai v. Wis. Power & Light
Co., 227 Wis. 83, 89, 277 N.W. 674 (1938); Stricker v. Town of
Reedsburg, 101 Wis. 457, 462, 77 N.W. 897 (1899); Threlfall, 190
Wis. 2d at 128.
¶48
of
In Barrows, this court provided insight into the type
evidence
that
is
sufficient
to
rebut
the
four
presumptions under Wis. Stat. § 82.31(1) and (2)(a).
rod
In that
case, landowners, the Barrows, instituted inverse condemnation
proceedings against Kenosha County to recover damages for an
alleged taking of their property as a result of the county's
Barrows, 8 Wis. 2d at 60.
improvement of Wood Road.
County
denied
that
the
Wood
Road
improvement
Kenosha
resulted
in
a
taking of the Barrows' property, contending that Wood Road was
four rods wide, and
the
acreage
within that four rod width.
allegedly
Id. at 60-61.
taken
was
located
The circuit court
conducted a bench trial and found that Wood Road was a highway
created by user, and thus, under Wis. Stat. § 80.01(2) (1959),7
its width was only presumed to be four rods.
See id. at 61-62.
The
the
circuit
court
further
determined
that
sufficiently rebutted the four rod presumption.
63.
Barrows
had
See id. at 62-
Kenosha County appealed, and this court reversed.
Id. at
61, 72.
7
Wisconsin Stat. § 80.01(2) (1959) is an early predecessor
to Wis. Stat. § 82.31(2)(a). See supra note 4.
21
No.
¶49
2009AP2315
As a preliminary matter, this court agreed with the
circuit court that if Wood Road was in fact created by user,
then the Barrows sufficiently rebutted the four rod presumption.
Id. at 63.
Specifically, at trial, the Barrows testified that
for at least the preceding 45 years, a barbed wire fence had
existed
along
property
and
Wood
that
Road
such
on
the
fence
west
line
side
established
rather than four rod, width of Wood Road.
This
court
was
satisfied
that
if
of
Wood
the
a
Barrows'
three
rod,
See id. at 62-63.
Road
was
actually
a
highway created by user, as found by the circuit court, then the
Barrows' testimony as to the fence line would be sufficient to
rebut the presumption under Wis. Stat. § 80.01(2) (1959) that
Wood Road was four rods wide.
¶50
Id. at 63.
However, this court concluded that the circuit court
erred when it found that Wood Road was created by user, as
opposed to laid out.
Id. at 69.
The court relied on several
surveys kept by Kenosha County, some dating back to the late
1800s, of
land on
Wood
Road
to
the
Barrows' property.
See id. at 64-65.
Wood
four
Road
to
be
rods
wide.
north
and
south
of
the
All of the surveys showed
See
id.
Noting
that
continuously since 1885 a statutory presumption has existed that
all laid roads are four rods wide, the court could find "no
logical explanation . . . which would account for the surveyors
in 1899 and 1909 showing Wood Road to be 4 rods wide other than
they must have considered it to be a laid road."
Id. at 67.
Furthermore, the court explained, if Wood Road was laid out to
the north and south of the Barrows' property, then there was a
22
No.
2009AP2315
strong inference that the entire length of Wood Road was laid
out: "There is every indication that [Wood Road] was created as
a unit and not piecemeal as would be the case if part had been
created by user and the other part by the town's laying it out."
Id.
¶51
Finding
that
Wood
Road
was
a
laid
out highway for
which no town records existed, see id. at 63, this court applied
the alternative four rod presumption in Wis. Stat. § 80.01(2)
(1959) for laid out highways, the records for which "have been
lost or destroyed . . . ."
See id. at 69.
The court then
concluded that the Barrows failed to produce sufficient evidence
to overcome that presumption.
See id. at 69-71.
The court
acknowledged that the evidence of the barbed wire fence line,
standing by itself, would indicate the width of Wood Road to be
three
rods
Nevertheless,
along
the
the
court
Barrows'
concluded
property.
that
such
Id.
at
69.
evidence
was
insufficient to overcome the presumption that Wood Road was laid
out to be four rods wide:
The record is barren of any evidence which would
offer any explanation as to why the town authorities
may have laid out the highway so as to be four rods in
width both to the north and south of the Barrows'
property, but have laid it out as a three-rod width
opposite the Barrows' parcel.
All of the evidence
must be viewed as a whole in determining whether the
existence of the fence line, or lines, at and opposite
the Barrows' property, raise a reasonable inference
that Wood road was there laid out at a three-rod
width. We do not believe that it does and, therefore,
the statutory presumption has not been rebutted.
Id. at 70-71.
23
No.
¶52
More
recently,
in
Threlfall,
the
court
2009AP2315
of
appeals
applied the four-rod presumption to an unrecorded highway and
concluded that evidence of ancient fences within the four-rod
width rebutted the presumption.
190 Wis. 2d at 126-27, 131.
In
that case, the Town of Muscoda cut down trees and shrubs along
Sand Branch Road, a gravel road that bisected the property of
the plaintiffs, the Baums.
Id. at 125.
The Baums filed a
complaint against the town, alleging that the town trespassed on
their land and unlawfully cut down their trees and shrubs.
at 125-26.
Id.
Much like the Affeldts in this case, the Baums
sought a judgment declaring the proper width of Sand Branch Road
and
enjoining
the
town
from
further
cutting
down
trees
and
shrubs or altering fences on the Baums' property.
Id. at 126.
The
restraining
circuit
order.
Id.
court
granted
the
Baums
a
temporary
However, after a bench trial, the circuit court
concluded that the Baums failed to rebut the presumption under
Wis.
Stat.
unrecorded
§ 80.01(2)
highway,
(1993-94)8
was
four
that
rods
Sand
wide.
Branch
Id.
Road,
The
an
Baums
appealed, id., and the court of appeals reversed, id. at 138.
¶53
There was
no
dispute
that
Sand
Branch
Road
was an
unrecorded highway that had been used by the public and worked
by the Town of Muscoda for more than 20 years.
Id. at 126-27.
Thus, Sand Branch Road was presumed to be four rods wide.
at 128 (citing Wis. Stat. § 80.01(2) (1993-94)).
Id.
Relying on
this court's decision in Barrows, the court of appeals concluded
8
See supra note 4.
24
No.
2009AP2315
that the existence of ancient fences within two rods of either
side of Sand Branch Road's centerline was sufficient to rebut
the presumption that the road was four rods wide.
Id. at 129-31
(citing Barrows, 8 Wis. 2d at 63).
¶54
Specifically, at trial, the Baums introduced a survey
showing that fences ran along the north and south sides of Sand
Branch Road and that the distance between the fences was less
than four rods.
to
the
Baums
Id. at 129-30.
testified
that
Moreover, landowners previous
the
fence
line
had
existed
substantially the same location as of the mid-1900s.
130-31.
in
Id. at
The court of appeals acknowledged that the fence width
varied at different points along Sand Branch Road but rejected
the circuit court's finding that such evidence precluded the
establishment of a boundary line:
The fence is there, and it ranges between 17.9 and
19.0 feet south of the center line. Given the old age
of the fences, the widest possible width of the road
is determined by the location of the ancient fences
immediately north and south of the road. The boundary
lines of the road can be determined by a survey on the
basis of those locations.
Id. at 132.
¶55
Hence, in concluding that the Baums rebutted the four-
rod presumption, the court of appeals determined that the widest
possible
width
of
Sand
fences.
See id. at 132.
the limits of the user.
Branch
Road
was
that
of
the
ancient
The ancient fences, in turn, marked
Id.; see also id. at 128 & n.6 (stating
that the Nicolai rule——the width of a highway created by user is
determined
by
the
limits
of
the
25
user——still
applies
when
a
No.
2009AP2315
landowner rebuts the presumption that an unrecorded highway is
four rods).
¶56
In
summary,
Barrows
and
Threlfall
teach
us
that
evidence of ancient fences within a four rod width is sufficient
to rebut the
presumption
under
Wis.
Stat.
§ 82.31(2)
highway created by user is four rods wide.
Wis. 2d at
63;
Threlfall,
190
Wis. 2d at
that
a
See Barrows, 8
129,
131.
If
a
landowner rebuts the presumption that a highway created by user
is four rods wide, then the highway's width is determined by the
limits of the user.
227 Wis. at 89.
See Threlfall, 190 Wis. 2d at 132; Nicolai,
At the same time, that same evidence of ancient
fences may not be sufficient to rebut the presumption under Wis.
Stat. § 82.31(1) that a laid out highway is four rods wide.
See
Barrows, 8 Wis. 2d at 69-71.
¶57
Turning to the case now before this court, we are not
yet concerned with the actual width of Highway B or even whether
a presumptive width is rebutted.
Barrows
and
judgment.
Threlfall,
the
Accordingly,
Unlike the appeal postures of
posture
in
this
of
case,
this
we
case
must
is
summary
decide
only
whether the Affeldts have set forth sufficient evidence to raise
a genuine issue of material fact concerning the width of Highway
B.
We conclude that they have.
B. Application of the Summary Judgment Methodology
¶58
Summary
The principles of summary judgment are well-defined.
judgment
shall
be
granted
"if
the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
26
No.
2009AP2315
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."
§ 802.08(2).
Wis. Stat.
Stated conversely, summary judgment should not be
granted "unless the facts presented conclusively show that the
plaintiff's
action
has
no
merit
and
cannot
be
maintained."
Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶14, 281 Wis. 2d 448,
699 N.W.2d 54 (internal quotations omitted).
¶59
In determining whether to grant summary judgment, "the
court decides whether there is a genuine issue of material fact;
Oracular Milwaukee, 323
the court does not decide the fact."
Wis. 2d 682,
¶25.
The
moving
party
bears
the
burden
of
establishing the absence of a genuine, that is, disputed, issue
of material fact.
¶21,
308
AccuWeb, Inc. v. Foley & Lardner, 2008 WI 24,
Wis. 2d 258,
Wis. 2d 332,
338,
294
746
N.W.2d 447;
N.W.2d 473
Grams
(1980).
v.
Boss,
Moreover,
we
97
view
summary judgment materials in the light most favorable to the
non-moving party.
AccuWeb, 308 Wis. 2d 258, ¶21.
As we have
often stated, "summary judgment should not be granted unless the
moving
party
demonstrates
a
right
to
a
judgment
clarity as to leave no room for controversy."
at
338;
see
also
Konneker,
326
with
such
Grams, 97 Wis. 2d
Wis. 2d 268,
¶22;
Oracular
Milwaukee, 323 Wis. 2d 682, ¶25; Energy Complexes, Inc. v. Eau
Claire
Poynter
Cnty.,
v.
152
Wis. 2d 453,
Johnston,
114
462,
449
Wis. 2d 439,
N.W.2d 35
446,
338
(1989);
N.W.2d 484
(1983).
¶60
In
this
case,
we
conclude
that
the
improperly granted summary judgment to the County.
27
circuit
court
The Affeldts
No.
2009AP2315
have set forth sufficient evidence to raise a genuine issue of
material fact concerning the width of Highway B.
1. Recorded highway that has been laid out
¶61
The
Affeldts
have
set
forth
specific
facts
showing
that there is a genuine issue as to whether Highway B is a
recorded highway that has been laid out.
Attached to Joyce
Affeldt's affidavit was a copy of the Green Lake County Board
proceedings from November 21, 1939, which purportedly reveals
the adoption of Resolution No. 38, a resolution to add Highway B
to the system of town roads maintained by the County.
The
resolution states the following:
BE IT RESOLVED by the County Board of Supervisors
of Green Lake County duly assembled in regular session
begun November 14th, 1939,
THAT the following described road lying wholly in
the Towns of Green Lake and Marquette be added to the
System of Town Roads maintained by the County:
Beginning at the center of the East
one-half of Section 27 at its junction of
State Highway 73 and extending west through
Section 27, 28 to its junction to what is
known
as
the
"Danze's
Tavern
Road"——a
distance of approximately one mile."
The resolution then provides that it was "[p]assed and adopted
this 21st day of November, 1939" and attested to by a named
"Chairman" and a named "County Clerk."
¶62
The
Affeldts
do
not
dispute
that
the
description
contained in Resolution No. 38 refers to Highway B.
However, as
the Affeldts correctly point out, there is a genuine issue of
material fact concerning whether Resolution No. 38 constitutes
28
No.
2009AP2315
an "order" laying out Highway B for purposes of satisfying Wis.
Stat. § 80.01(1) (1939).
Indeed, the County has presented no
evidence that Resolution No. 38, or a certified copy thereof,
was filed in the office of the Green Lake or Marquette town
clerk.
See
(concluding
signed
by
§ 80.01(1)
that
the
even
town
an
clerk
(1939);
entry
fell
Muehrcke,
in
the
"far
43
town
short
Wis. 2d at
record
of
the
book
7
and
procedural
requirements for laying out public highways"); Wolfinger, 237
Wis. at 656 (concluding that the town board's order purportedly
laying out a road was deficient because it was not filed with
the town clerk as required by statute).
¶63
Moreover, there is a genuine issue of material fact
concerning whether Highway B was laid out by the supervisors of
the
town
of
Green
Lake
or
Marquette,
such
that
Wis.
Stat.
§ 80.07 (1939) governed, or whether Highway B was laid out by
the board of supervisors of the County, such that Wis. Stat.
29
No.
§ 80.41 (1939) governed.9
2009AP2315
Resolution No. 38 was not signed by
any town supervisor, see Wis. Stat. § 80.07 (1939), and it was
attested to, but not signed by, the chairman of the county board
of supervisors
and the
county
clerk,
see
Wis.
Stat.
§ 80.41
(1939).10
9
The dissent's analysis is based entirely upon an
assumption that Resolution No. 38 qualifies as an "order" of the
County's board of supervisors laying out Highway B for purposes
of satisfying Wis. Stat. § 80.41 (1939).
See dissent, ¶78
("Green Lake County, through its board of supervisors, attempted
to lay out the highway."); dissent, ¶79 ("[Resolution No. 38]
expresses the intent of the county board of supervisors to
locate and lay out CTH B . . . ."); dissent, ¶88 ("In the
present case, Green Lake County, not a town, laid out CTH B in
1939, adhering to Wis. Stat. § 80.41 (1939)."); dissent, ¶89
("Here, the Green Lake County Board laid out Highway B on its
own initiative."). That the dissent is based upon an assumption
of facts is itself indicative of why summary judgment is
inappropriate in this case. "On summary judgment the court does
not decide the issue of fact; it decides whether there is a
genuine issue of fact." Grams v. Boss, 97 Wis. 2d 332, 338, 294
N.W.2d 473 (1980); see also Racine Cnty. v. Oracular Milwaukee,
Inc., 2010 WI 25, ¶25, 323 Wis. 2d 682, 781 N.W.2d 88.
10
The dissent acknowledges that "not all of the procedural
steps required by the 1939 statutes were precisely followed" in
the alleged laying out of Highway B, see dissent, ¶82, but yet
declines to grant the Affeldts their day in court, reasoning
that any such defects were cured after the expiration of five
years. Dissent, ¶91. At no point in these proceedings have the
Affeldts or the County raised the issue of whether a curative
statute applies in this case. See State v. Carter, 2010 WI 77,
¶56 n.38, 327 Wis. 2d 1, 785 N.W.2d 516.
Nevertheless, we are
cognizant of the fact that in 1943, the legislature enacted a
curative provision that served to validate an otherwise
defective resolution or order after the expiration of five
years.
Wisconsin Stat. § 80.01(4) (1943) provided, in relevant
part:
Every street, highway and alley . . . attempted
or intended to be laid out . . . by the authorities of
any county, town, city or village shall be held to
have been lawfully so . . . laid out . . . from and
30
No.
¶64
Because
there
is
a
genuine
issue
as
to
2009AP2315
whether
Resolution No. 38 constitutes an "order" laying out Highway B,
after the expiration of 5 years from the date of the
deed, instrument, plat, order, resolution or other
final proceeding had or taken to effectuate such
purpose.
No defect, omission or informality in the
execution of any plat or deed of dedication or in any
proceedings, order or resolution on the part of such
authorities for the purposes aforesaid shall affect or
invalidate such plat, deed, order or resolution or
proceeding, after the expiration of 5 years from the
date
of
the
plat,
deed,
proceeding,
order
or
resolution; provided, the street or alley laid out, or
altered by such defective, or informal plat, deed,
proceeding, order or resolution, shall be limited in
length to the portion actually worked and used
thereunder.
However, in light of Wis. Stat. § 80.07 (1943), we question
whether Wis. Stat. § 80.01(4) (1943) can cure the seemingly
fatal defect of failing to file an order in the office of the
town clerk.
Wisconsin Stat. § 80.07 (1943) retained the
provision that "[i]n case the supervisors fail to file the
order . . . within the 10 days aforesaid they shall be deemed to
have decided against the application [to lay out a highway]."
Deeming the supervisors to have decided against an application
to lay out a highway is inherently inconsistent with the
requirement in Wis. Stat. § 80.01(4) (1943) that the highway be
one that the authorities "intended to" lay out.
See Beard v.
Lee Enters., Inc., 225 Wis. 2d 1, 15, 591 N.W.2d 156 (1999)
("Apparently conflicting provisions of law should be construed
so as to harmonize them and thus give effect to the leading idea
behind the law.").
In support of its position, the dissent cites Jacobosky v.
Town of Ahnapee, 244 Wis. 640, 643, 13 N.W.2d 72 (1944), and
Zblewski v. Town of New Hope, 242 Wis. 451, 455, 8 N.W.2d 365
(1943). Dissent, ¶87 n.10. However, neither case supports the
proposition that Wis. Stat. § 80.01(4) (1943) can cure the
defect of failing to file an order in the office of the town
clerk. Indeed, in both cases, the order laying out the road in
question was filed with the town clerk.
See Jacobosky, 244
Wis. at 641, 643; Zblewski, 242 Wis. at 453.
31
No.
2009AP2315
there is likewise a genuine issue as to whether Highway B is
four rods wide as provided in Wis. Stat. § 80.08 (1939).
2. Highway that has been laid out but not recorded
¶65
Assuming Highway B has been laid out but not recorded,
the Affeldts have set forth specific facts that, if proven, are
sufficient to rebut the presumption under Wis. Stat. § 82.31(1)
that Highway B was laid out four rods wide.
Resolution
No.
38
laid
out
Highway
B,
it
Even assuming that
is
possible
Highway B was laid out as narrow as three rods wide.
Stat. § 80.08 (1939).
show otherwise.
that
See Wis.
The County has introduced no evidence to
To the contrary, in a report offered by the
County, Ingram acknowledged not finding any written record of
Highway B's width.
¶66
The Affeldts, on the other hand, set forth specific
facts that, if proven, would demonstrate that Highway B was laid
out less than four rods wide.
Attached to W. Alan Affeldt's
affidavit was an aerial photograph purportedly depicting a fence
line and several full-grown trees that existed along Highway B
as early as the 1940s.
Steinkraus' survey map supported W.
Alan's averment that the fence line and trees existed within a
four
rod
width
of
Highway
B.
Indeed,
even
Ingram's
report
recognized that "ancient fences" along the south side of Highway
B varied from zero to six feet north of the four rod right-ofway.
Viewing these affidavits in the light most favorable to
the Affeldts, there is a genuine issue as to whether Highway B
was laid out less than four rods wide.
That is, even assuming
Highway B was laid out in 1939, the Affeldts have raised a
32
No.
2009AP2315
reasonable inference that Highway B was laid out at a width
corresponding to that of the ancient fences.
3. Highway created by user
¶67
instead
specific
Finally, assuming Highway B has not been laid out and
was
created
facts
by
that, if
user,
proven,
the
Affeldts
are
have
sufficient
to
set
forth
rebut
the
presumption under Wis. Stat. § 82.31(2) that Highway B is four
rods wide.
The Affeldts set forth an abundance of testimonial
and photographic evidence tending to show that ancient fences,
trees, and a machine shed existed along Highway B within a fourrod width.
W. Alan, who has lived in the same farmhouse on
Highway B since he was born in 1946, averred that the trees and
fences have existed in the same location for as long as he can
remember.
Steinkraus' survey map, aerial photographs, and a
photograph of W. Alan as a child supported W. Alan's averment.
As previously noted, the County, through Ingram, did not dispute
the existence of such ancient fences and instead merely opined
that such evidence was too inconsistent to be of value.
¶68
Assuming it is proven, the evidence of the ancient
fences and trees on either side of Highway B is sufficient to
rebut the presumption that Highway B is four rods wide.
See
Barrows, 8 Wis. 2d at 63; Threlfall, 190 Wis. 2d at 129, 131.
Moreover, contrary to the County's contention, that general rule
is not defeated simply because the distance between the fence
lines may have varied.
See Threlfall, 190 Wis. 2d at 132.
V. CONCLUSION
33
No.
¶69
2009AP2315
We conclude that the circuit court improperly granted
summary judgment to the County.
The Affeldts have set forth
sufficient evidence to raise a genuine issue of material fact
concerning the width of Highway B.
Specifically, the Affeldts
have set forth specific facts showing that there is a genuine
issue as to whether Highway B is a recorded highway that has
been laid out.
Moreover, assuming Highway B has been laid out
but not recorded, the Affeldts have set forth specific facts
that, if proven, are sufficient to rebut the presumption that
Highway
B
was
laid
out
four
rods
wide.
Finally,
assuming
Highway B has not been laid out and instead was created by user,
the Affeldts have set forth specific facts that, if proven, are
sufficient to rebut the presumption that Highway B is four rods
wide.
¶70
Because we conclude that the Affeldts have set forth
sufficient evidence to rebut the presumption that Highway B is
four rods wide, we do not reach the question of whether the
presumption's retroactive application to Highway B amounts to an
unconstitutional taking of the Affeldts' property.
By
the
reversed,
Court.—The
and
the
decision
cause
of
remanded
the
to
court
the
circuit
further proceedings consistent with this opinion.
34
of
appeals
is
court
for
No.
¶71
SHIRLEY S. ABRAHAMSON, C.J.
2009AP2315.ssa
(dissenting).
Using a
confusing step-by-step analysis, the majority opinion concludes
that
a
genuine
issue
of
material
fact
exists
about
whether
County Highway B (CTH B) is a recorded and laid out highway with
a width of four rods.
I conclude, as did the court of appeals,
that CTH B in Green Lake County is a recorded, laid out highway
and as a matter of law "shall" be four rods wide.1
Accordingly,
I would affirm the decision of the court of appeals and hold
that Green Lake County is entitled to summary judgment.
For the
reasons set forth, I dissent.
¶72
Whether CTH B is a recorded, laid out highway centers
on 1939 Resolution No. 38 of the County Board of Supervisors of
Green Lake County.
The resolution undisputedly describes CTH B
and resolves that CTH B be added to the system of town roads
maintained by the County.
Resolution No. 38 was included in the
county board proceedings, which stated the resolution was passed
and adopted on November 21, 1939, and was attested to by the
chairman of the Green Lake County Board of Supervisors and the
county clerk.
¶73
To determine whether CTH B is a "recorded, laid out"
highway, I must first decide what statutes govern the issue.
1
Affeldt v. Green Lake County, 2009AP2315, unpublished slip
op., ¶14 (Wis. Ct. App. July 28, 2010).
I also agree with the circuit court that "there is merit to
the county's position that every 100 foot property owner cannot
have a different fence line[;] otherwise the highway system
would result in chaos and not enhance management but undermine
proper management from both road maintenance and safety for
those who use it . . . ."
1
No.
¶74
Under
the
current
statutes,
Wis.
Stat.
2009AP2315.ssa
§ 82.01(8)
(2007-08), the definition of "recorded highway"——which relates
to highways laid out before January 1, 2005——provides that the
order must be recorded in the office of the clerk of the town or
the county in which the highway is situated:
"Recorded highway" means a highway for which the order
laying out or altering the highway, or a certified
copy of the order, 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 (emphasis added).
¶75
Again, according to the current statutes, Wis. Stat.
§ 82.01(4) (2007-08), the phrase "laid out" is defined as "any
formal act or process by which a municipality determines the
location of a highway."2
¶76
CTH B was not laid out or recorded under the current
statutes.
It was laid out, that is, located, by Green Lake
County Board Resolution 38, adopted in 1939.
¶77
I
therefore
look
to
the
1939
laws
to
resolve
the
issues presented in this case.
¶78
CTH B is a highway that extends through Green Lake
County and two townships, Green Lake and Marquette.
Green Lake
County, through its board of supervisors, attempted to lay out
the highway.
The 1939 procedures pertinent for a county to lay
out and record a highway are set forth in Wis. Stat. § 80.41
(1939).
Under that statute, when a county acts, as it did in
2
The 1939 statutes, the operative statutes when Green Lake
County acted, did not define the phrase "laid out."
2
No.
2009AP2315.ssa
the present case, in contrast with the 1939 statutes governing
when a town acts (Wis. Stat. § 80.07 (1939)), the County Board
of Supervisors
shall make an order laying out, altering, widening or
discontinuing such highway or refusing so to do, which
shall be signed by the chairman and county clerk and
filed and recorded in the county clerk's office. When
they shall lay out, alter, widen or discontinue a
highway they shall incorporate in the order a
description thereof and may cause, when necessary, an
accurate survey to be made for that purpose, and shall
also cause a copy of such order to be filed in the
office of the town clerk of each town in which any
part of the highway laid out, altered, widened, or
discontinued lies within ten days after the making of
such order.
Wis. Stat. § 80.41 (1939) (emphasis added).3
¶79
Resolution No. 38 was a resolution of the county board
rather than an order.
It expresses the intent of the county
board of supervisors to locate and lay out CTH B and incorporate
CTH B into the system of town roads maintained by the County.
The resolution, rather than an order, was attested to by the
chairman
of
clerk.
The
the
County
applicable
Board
of
procedures
3
Supervisors
for
a
and
county
the
county
locating
a
The majority seems to conclude that there is a genuine
issue of material fact as to whether CTH B was laid out by the
supervisors of either the Town of Green Lake or the Town of
Marquette, or whether CTH B was laid out by the board of
supervisors of Green Lake County.
Majority op., ¶63.
The
majority points to no evidence in the record that supports a
dispute on this issue.
I rely on Resolution No. 38, in which
the board of supervisors of Green Lake County explicitly located
and expressed its intent to add CTH B to the system of town
roads maintained by the County.
Whether one of the towns
subsequently also attempted to lay out CTH B does not create a
genuine issue of material fact as to whether the County laid out
CTH B in Resolution No. 38 in 1939.
3
No.
highway
do
not
call
for
the
signatures
2009AP2315.ssa
of
the
representatives or a committee of the County Board.
op., ¶62.
town
Majority
Resolution No. 38 was filed in the county clerk's
proceedings.
¶80
There is, however, nothing in the record to show that
a copy of Resolution 38 was filed in the office of the town
clerk of each town in which any part of the highway lies, as the
1939 statute requires.4
¶81
No
survey
appears
in
the
record,
but
none
is
statutorily required.
It is undisputed that CTH B has been
publicly
worked
traveled
and
over
the
same
track
since
the
1800s, and so it is reasonable to conclude that no survey was
necessary to describe the highway in the resolution.
¶82
It
is
clear
and
undisputed
that
not
all
of
the
procedural steps required by the 1939 statutes were precisely
followed by the Green Lake County Board of Supervisors in laying
out CTH B.
The majority opinion suggests that the failure to
file a copy of Resolution 38 in the offices of the town clerks
4
Plaintiff Joyce Affeldt averred that after diligent review
of the records of Green Lake County, the Town of Green Lake, the
Town of Marquette, and the Green Lake Historical Society, she
discovered three documents between 1930 and 1940 that she
believed referenced CTH B. One of these records was Resolution
38, and another was minutes of the Town of Green Lake board from
1930, in which a motion for a road (purportedly a portion of CTH
B) was read and was voted down.
The third exhibit is the
minutes of the annual town meeting of the Town of Marquette from
1940, in which a motion was carried to "use some of the highway
fund to grade and gravel the highway . . . and file petition
with the county to the effect that said highway be placed under
county highway supervision . . . ."
Joyce Affeldt averred that
the description of the highway in that motion coincides with CTH
B.
4
No.
2009AP2315.ssa
is fatal to Green Lake County's attempt to lay out CTH B.5
I
disagree.
¶83
highway
Procedural
do
not
failures
laying
defeat
necessarily
in
the
County to lay out the highway.
curative
statutes.
The
out
or
intended
recording
goal
of
a
the
The legislature has adopted
legislature
has
declared
that
any
defects, irregularities, omissions, or informalities are cured
after
the
expiration
irregularities,
of
five
omissions,
or
years
and
informalities
that
no
shall
defects,
affect
or
invalidate the order or resolution after the expiration of five
years
from
the
date
of
an
order
or
resolution.
Indeed,
a
curative statute, in one form or another, has been continuously
a
part
of
the
statutory
scheme
for
governmental
actions
on
highways since at least 1869.6
¶84
A curative statute, Wis. Stat. § 80.63 (1939), was in
effect in 1939 when Green Lake County resolved to include CTH B
within the system of town roads maintained by the county.7
A
5
The majority cites to Muehrcke v. Behrens, 43 Wis. 2d 1,
169 N.W.2d 86 (1969) and Town of Buchanan v. Wolfinger, 237
Wis. 652, 298 N.W. 176 (1941), to support its conclusion that
failing to file a certified copy of Resolution No. 38 with the
clerks of the Town of Green Lake and Town of Marquette was a
fatal procedural misstep by the County in laying out CTH B.
Both of those cases, however, presented distinct legal questions
and
addressed
town
board
procedures,
and
neither
case
acknowledged the curative statutes, much less addressed the
applicability of the curative statutes to resolve the unique
questions presented.
6
Jacobosky v. Town of Ahnapee, 244 Wis. 640, 13 N.W.2d 72
(1944).
7
Wisconsin Stat. § 80.63 (1939)stated in part:
5
No.
2009AP2315.ssa
similar curative statute, Wis. Stat. § 80.01(4) (1943), was in
effect at the expiration of five years from Green Lake County's
laying out and recording CTH B.8
And a similar curative statute
80.63
Highways;
streets
and
alleys;
curative
provisions. (1) Any and every street, highway and
alley,
pier
and
slip,
heretofore
or
hereafter
dedicated or attempted and intended to be dedicated in
any plat by any person, or laid out, altered, changed,
vacated or discontinued, or attempted or intended to
be laid out, altered, changed, vacated or discontinued
by the authorities of any county, town, city or
village in this state, shall be taken and held to have
been
lawfully so dedicated,
laid out,
altered,
changed, vacated or discontinued, as the case may be,
from and after the expiration of five years from the
date of the deed, instrument, plat, order, resolution
or other final proceeding had or taken to effectuate
such purpose.
(2) No defect, irregularity, omission or informality
in the execution of any plat or deed of dedication or
in any proceedings, order or resolution on the part of
the authorities of any county, town, city or village,
whether formal or jurisdictional, for the purposes
aforesaid, heretofore made or taken or hereafter to be
made or taken, shall affect or invalidate such plat,
deed, proceeding, order or resolution; provided,
however, that the street or alley laid out, altered or
changed by such defective, irregular or informal plat,
deed, proceeding, order or resolution, shall be
limited in length to the portion actually worked and
used thereunder.
8
Wisconsin Stat. § 80.01(4) (1943) provides as follows:
Highways, Streets and Alleys, Piers, Plats, Curative
Provisions. Every street, highway and alley, pier and
slip, dedicated or attempted and intended to be
dedicated in any plat or laid out, altered, vacated or
discontinued, or attempted or intended to be laid out,
altered, vacated or discontinued by the authorities of
any county, town, city or village shall be held to
have been lawfully so dedicated, laid out, altered,
vacated or discontinued from and after the expiration
of 5 years from the date of the deed, instrument,
plat, order, resolution, or other final proceeding had
6
No.
is presently in effect.9
2009AP2315.ssa
The Affeldts presented a copy of the
1939 curative statute in their
briefs,
and
the
parties
were
or taken to effectuate such purpose.
No defect,
omission or informality in the execution of any plat
or deed of dedication or in any proceedings, order or
resolution on the part of such authorities for the
purposes aforesaid shall affect or invalidate such
plat, deed, order or resolution or proceeding, after
the expiration of 5 years from the date of the plat,
deed, proceeding, order or resolution; provided, the
street or alley laid out, or altered by such
defective, or informal plat, deed, proceeding, order
or resolution, shall be limited in length to the
portion actually worked and used thereunder.
9
Wisconsin Stat. § 66.1033 (2007-08) provides:
(1) In this section:
(a) "Political subdivision"
town, or county.
means
a
city,
village,
(b) "Public way" means a highway, street, slip, pier,
or alley.
(2) For proceedings taken, or for plats, deeds,
orders, or resolutions executed before January 1,
2005, notwithstanding s. 840.11, no defect, omission
or informality in the proceedings of, or execution of
a plat, deed of dedication, order, or resolution by, a
political subdivision shall affect or invalidate the
proceedings, plat, deed, order, or resolution after 5
years from the date of the proceeding, plat, deed,
order, or resolution. The public way dedicated, laid
out, or altered by a defective or informal proceeding,
plat, deed, order, or resolution shall be limited in
length to the portion actually worked and used.
In explaining the changes to the curative statute in the
recodification of the town highway statutes that occurred in
2003, the Wisconsin Legislative Council stated: "after the
effective date of the act, the new s. 66.1029 [now 66.1033],
would cure all defects except a failure to comply with s.
840.11."
Wisconsin
Legislative
Council
Report
to
the
Legislature: Special Committee on Recodification of Town Highway
Statutes, RL 2003-13, at 7 (Dec. 4, 2003).
Section 840.11 is
not applicable here.
7
No.
2009AP2315.ssa
questioned about the effect of the curative statutes at oral
argument.
¶85
The curative statutes clearly state that no defect,
irregularity, omission, or informality in any proceedings, order
or
resolution
on
the
part
of
a
governmental
entity
for
the
purposes of laying out a highway shall affect or invalidate such
resolution, order or proceeding after the expiration of 5 years.
The
majority
concludes
that
the
failure
of
the
board
of
supervisors of Green Lake County in 1939 to cause a copy of the
order to be filed with the clerks of the Town of Green Lake and
the
Town
of
exception
Marquette
to
this
is
a
defect
explicit
or
omission
statement
of
that
policy
is
by
an
the
legislature.
¶86
in
a
The majority opinion dismisses the curative statutes
footnote.
Majority
op.,
¶63
n.10.
The
majority
"questions" whether the 1943 curative statute can apply because
Wis.
Stat.
§ 80.07
(1943)
provides
that
'[i]n
case
the
supervisors fail to file the order . . . they shall be deemed to
have decided against [the application to lay out a highway].'"
Id.
¶87
The
majority's
footnote
is
in
error.
The
"supervisors" referred to in Wis. Stat. § 80.07 (1943) are town
supervisors
who
are
laying
out
a
highway.
Furthermore, the
court has declared that "[t]he purpose of [§ 80.07] is to compel
the supervisors of the town to act upon petitions for the laying
out of a highway and to avoid a situation where by complete
8
No.
2009AP2315.ssa
inaction an appeal might be defeated[,] . . . not [to] prevent
the operation of [the curative statute]."10
¶88
In the present case, Green Lake County, not a town,
laid out CTH B in 1939, adhering to Wis. Stat. § 80.41 (1939).
Thus, Wis. Stat. § 80.07 (1943), upon which the majority relies
to find the curative statutes ineffective in the present case,
is not applicable here.
¶89
The language in Wis. Stat. § 80.07 (1943) deeming the
authorities "to have decided against such application" applies
when
resident
freeholders
submit
an
application
to
the
town
under § 80.02 and petition the town supervisors to lay out a
highway.
Here, the Green Lake County Board laid out Highway B
on its own initiative.
Accordingly, the curative statute is
applicable in the present case.
¶90
A curative statute fosters stability in the law and
repose of title.
year
period
The legislature has determined that a five-
provides
the
appropriate
balance
for
allowing
aggrieved property owners the ability to challenge defects and
omissions in governmental action in laying out a highway.
The
present case exemplifies the reason the legislature has adopted
five-year
curative
regarding
plats,
statutes
deeds,
to
orders,
repair
procedural
resolutions,
or
missteps
proceedings.
Litigation, such as the present case, that arises 70 years after
the government acts in laying out a highway disturbs the safety
of title and the expectations of property owners and government.
10
Zblewski v. Town of New Hope, 242 Wis. 451, 455, 8
N.W.2d 365 (1943); Jacobosky v. Town of Ahnapee, 244 Wis. 640,
643, 13 N.W.2d 72 (1944) (citing Zblewski).
9
No.
2009AP2315.ssa
Such disturbances are contrary to the public policy adopted by
the legislature.
¶91
Accordingly,
defects,
I
conclude
irregularities,
that
omissions,
although
or
there
were
informalities
in
Resolution 38, any such defects, irregularities, omissions, or
informalities were cured upon the expiration of the statutorily
prescribed
five-year
period.
CTH
B
is,
in
my
opinion,
a
recorded and laid out road pursuant to Resolution 38, adopted by
Green
Lake
County
in
1939.
Any
defects,
irregularities,
omissions, or informalities in Resolution 38 have been cured.
¶92
Having determined that CTH B is a recorded, laid out
highway pursuant to the County Board of Supervisors of Green
Lake County's 1939 Resolution No. 38, I still must address the
central
question
of
this
case:
What
§ 80.08
is
(1939)
the
width
of
the
highway?
¶93
"Except
Wisconsin
as
Stat.
otherwise
expressly
provides
provided
by
the
answer:
section
80.13,
highways shall be laid out at least three rods wide, and when no
width is specified in the order the highway shall be four rods
wide."11
No width for CTH B was specified in Resolution 38.
Thus, by statute, CTH B is four rods wide.
Accordingly, summary
judgment in favor of Green Lake County was appropriate.
¶94
For the foregoing reasons, I dissent.
¶95
I
am
authorized
to
state
that
BRADLEY joins this opinion.
11
See also Wis. Stat. § 80.08 (1943).
10
Justice
ANN
WALSH
No.
1
2009AP2315.ssa
]]>
