Affeldt v. Green Lake County
2011 WI 56
Wis.2011Background
- Affeldts own farms on opposite sides of Highway B in Green Lake County; County removed trees and fences within Highway B’s right-of-way during a 2008 reconstruction; circuit court granted summary judgment to County arguing Highway B is four rods wide under § 82.31(2)(a); Court of Appeals affirmed on different grounds; Wisconsin Supreme Court reversed, holding genuine issues exist concerning Highway B’s width and its status as recorded/laid out, remanding for proceedings.
- Highway B has existed since the late 1800s and the County has maintained it for at least ten years; plaintiffs allege trees/fences along the road are outside the right-of-way; County cites 1939 resolution and subsequent statutory presumptions to claim four-rod width; Affeldts introduced affidavits and photographs showing ancient fences/trees within less than four rods; majority focuses on framework of Wis. Stat. § 82.31 and related pre-1939/1939 law to determine width.
- The majority refrains from deciding the ultimate width and instead determines there is a genuine issue of material fact as to whether Highway B is a recorded highway laid out under 1939 procedures; it analyzes whether resolution 38 constitutes an order laying out Highway B or whether curative statutes apply to cure defects; it notes disputes over whether width was specified in the 1939 order; it recognizes rebuttable presumptions under § 82.31(1) and (2)(a) may be overcome by evidence.
- The court also discusses whether § 82.50(1) (four-rod width for town highways) applies given Highway B’s long-standing history; it determines curative statutes may apply to cure procedural defects and that summary judgment was inappropriate; it remands for further proceedings consistent with its analysis.
- Highway B’s status is analyzed through modern highway statutes and 1939-era procedures, with focus on whether a valid order or resolution laid out the highway and what width was legally prescribed or presumed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Highway B a recorded highway that has been laid out? | Affeldts contend Resolution No. 38 may show laid out status. | County argues Highway B is recorded and laid out under 1939 procedures. | Issue of fact exists; not conclusively recorded and laid out. |
| If laid out but not recorded, does § 82.31(1) presume four rods width? | Evidence could rebut the four-rod presumption. | Presumption applies unless rebutted by evidence. | Presumption may be rebutted; material facts remain in dispute. |
| If Highway B is unrecorded and created by user, can four-rod width be rebutted under § 82.31(2)(a)? | Ancient fences/trees indicate narrower width may apply. | Road’s history and state practice support four rods. | Evidence may rebut the presumption; requires fact-finding. |
Key Cases Cited
- Barrows v. Kenosha Cnty., 8 Wis. 2d 58 (Wis. 1959) (rebuttable presumption and fences as width evidence when road created by user)
- Threlfall v. Town of Muscoda, 190 Wis. 2d 121 (Wis. Ct. App. 1994) (ancient fences can rebut four-rod presumption for unrecorded highways)
- Muehrcke v. Behrens, 43 Wis.2d 1 (Wis. 1969) (procedural standards for laying out highways and curative considerations)
- Nicolai v. Wis. Power & Light Co., 227 Wis. 83 (Wis. 1938) (limits of width for highway created by user)
- Jacobosky v. Town of Ahnapee, 244 Wis. 640 (Wis. 1944) (early curative/recorded status considerations)
- Zblewski v. Town of New Hope, 242 Wis. 451 (Wis. 1943) (early curative statutory context for highway proceedings)