Archive for December, 2013

Road Right of Ways in Wisconsin are Presumed to be 66 Feet Wide

Monday, December 30th, 2013

In Wisconsin, by law, the width of a road is presumed to be 66 feet, unless there is evidence to the contrary.  It does not matter how the road came into being.  In fact, although this is often misunderstood by landowners and sometimes by municipal officials, the historical “ownership” of the underlying land is quite often irrelevant to most road matters.  The state, counties and local municipalities have all the normal rights and obligations with respect to roads whether they own the land, or whether they have some kind of granted easement, or whether there is no record at all of how the road was established.  As long as the road has existed and been maintained by the municipality, generally for ten years or more, then the public right of way exists, no matter who thinks they “own” the underlying land.

In a recent case, Village of Brown Deer v. Leland P, the Village of Brown Deer was implementing road projects, and some of the adjoining landowners balked for various reasons.  There was no argument as to how Brown Deer had acquired the right of ways – apparently no one knew for sure.  But everyone agreed that the road had been a public road long enough that it was a public road.  The disagreement was over the width.  In some places, buildings were within the default 66 feet, and in other places the landowners simply wanted to keep the right of way narrower (the court did not give the details of why the residents balked).

To begin with, the court noted that the 66 foot width is the statutory presumption – that means that the law presumes the width is 66 feet.  Thus the burden to prove a right of way is not 66 feet is on the challenger.  A presumption can be overcome by evidence, such as in this case, a building encroaching into the 66 feet for a long enough time.  But without greater evidence to the contrary, the width is 66 feet.