Property — takings

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Wisconsin Court of Appeals

Civil

Property — takings

Even though a road was never recorded, where it was in use for more than years, the property owners no longer own the property.

“Although the Residents contend that many municipalities have deliberately eschewed sidewalks as a matter of policy, a community’s aesthetic political decisions do not trump the statutes we have here. The Residents also argue that a road is merely an ‘easement’ and cite cases that support that contention, at least in some respects. See Walker v. County of Green Lake, 269 Wis. 103, 111, 69 N.W.2d 252, 257 (1955) (‘“In the absence of a statute expressly providing for the acquisition of the fee, or of a deed from the owner expressly conveying the fee, when a highway is established by dedication or prescription, or by the direct action of the public authorities, the public acquires merely an easement of passage, the fee title remaining in the landowners.”’) (quoted source omitted); Berger v. Town of New Denmark, 2012 WI App 26, ¶13, 339 Wis. 2d 336, 342, 810 N.W.2d 833, 836 (‘Absent express language to the contrary, our courts presume that the grantor of land to be used for roadways intended to convey only an easement.’). This case, however, does not concern either the grant of a fee or of an easement because irrespective of how the street came to be as a laid road (and not a user-created road), WIS. STAT. § 82.31(2)(a)’s presumptive-width mandate governs.”

Affirmed.

Recommended for publication in the official reports.

2013AP748 Village of Brown Deer v. Balisterri

Dist. I, Milwaukee County, Sankovitz, J., Fine, J.

Attorneys: For Appellant: Braun, Hugh R., Milwaukee; DiUlio, Nicholas Robert, Milwaukee; For Respondent: Marcuvitz, Alan, Milwaukee; Roschke, Andrea H., Milwaukee