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Public Highway Determination-Burden of Proof

By: WISCONSIN LAW JOURNAL STAFF//December 19, 2022//

Public Highway Determination-Burden of Proof

By: WISCONSIN LAW JOURNAL STAFF//December 19, 2022//

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WI Court of Appeals – District III

Case Name: Swanke Timberland Limited Partnership v. Town of Wittenberg

Case No.: 2021AP001747

Officials: Stark, P.J., Hruz and Gill, JJ.

Focus: Public Highway Determination-Burden of Proof

Swanke Timberland sought a declaratory judgment that a segment of road (“the disputed segment”) located in the Town of Wittenberg (“the Town”) is a public highway. Following a bench trial, the circuit court determined that Swanke Timberland had failed to meet its burden of proof on that issue.

Swanke Timberland argues that even if the court correctly allocated the burden of proof to Swanke Timberland, the court erred by finding that the disputed segment is not a public highway.

The appeals court concludes that Swanke Timberland forfeited its argument regarding the burden of proof by failing to raise that argument in the circuit court, and further concludes that the court’s finding that the disputed segment is not a public highway is not clearly erroneous.

Affirmed.

Decided 12/13/22

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