82.19 Discontinuance of highways.

(1) An unrecorded highway, or any part of an unrecorded highway, that has become or is in the process of becoming a public highway by user in any town may be discontinued using the procedures under ss. 82.10 to 82.12. Any proceedings to discontinue an unrecorded highway shall not be evidence of the acceptance at any time by the town of the highway or any part of the highway.

(2)

(a) Every highway shall cease to be a public highway 4 years from the date on which it was laid out, except the parts of the highway that have been opened, traveled, or worked within that time.

(b)

1. In this paragraph, “ vehicular travel" means travel using any motor vehicle required to be registered under ch. 341 or exempt from registration under s. 341.05.

2. Any highway that has been entirely abandoned as a route of vehicular travel, and on which no highway funds have been expended for 5 years, shall be considered discontinued.

(c) This subsection does not apply to state or county trunk highways or to any highway, street, alley, or right-of-way that provides public access to a navigable lake or stream.

History: 2003 a. 214 ss. 83 to 85, 92, 167.

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

Whether a highway has been entirely abandoned for a discontinuation to occur under sub. (2) depends on whether the highway has remained open to all who had occasion to use it. Even if a single family and their guests used the highway, that could be sufficient to keep it from being abandoned. Lange v. Tumm, 2000 WI App 160, 237 Wis. 2d 752, 615 N.W.2d 187, 99-3247.

An owner may not convert a public highway to a private road by taking control of the road and leading others to believe that they need permission to use it, even when the state or local government has discontinued maintenance of the road. A public highway is not entirely abandoned if it is used only by the owner of the land over which the highway lies. Under sub. (2), the identity of the user is irrelevant. Markos v. Schaller, 2003 WI App 174, 266 Wis. 2d 470, 668 N.W.2d 755, 02-1824.

That a roadway was overgrown and difficult or impossible for vehicles to travel without damage and that members of the public sought permission to use the road were considerations that underpinned a finding that the road was not open to all. Povolny v. Totzke, 2003 WI App 184, 266 Wis. 2d 852, 668 N.W.2d 834, 02-3011.

NOTE: The above annotations cite to s. 80.32 (1) or (2), the predecessor statutes to s. 82.19.

To establish abandonment under this section, the higher burden of proof of clear and convincing evidence, rather than the lower preponderance of the evidence standard, must be applied. Town of Schoepke v. Rustick, 2006 WI App 222, 296 Wis. 2d 471, 723 N.W. 2d 770, 05-3183.