County of Langlade v. Kaster

Decision Date07 May 1996
Docket NumberNo. 95-2694,95-2694
Citation550 N.W.2d 722,202 Wis.2d 448
PartiesCOUNTY OF LANGLADE, Plaintiff-Respondent, v. Michael N. KASTER and Jacqueline T. Kaster, husband and wife, Defendants-Appellants.
CourtWisconsin Court of Appeals

On behalf of defendants-appellants, the cause was submitted on the briefs of Thomas J. Nichols and Christopher L. Rexroat of Meissner Tierney Fisher & Nichols S.C. of Milwaukee.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Michael N. and Jacqueline T. Kaster appeal a judgment declaring Langlade County's ownership of a road running through their property as a public highway pursuant to § 80.01(2), STATS., because the County "worked" the road for ten years. We conclude that the evidence is insufficient as a matter of law to show the road has been worked as a public highway for purposes of § 80.01(2). The evidence established only that, over a twenty-five-year period, the County once repaired a bridge on the road to accommodate snowmobilers who used the road with express permission of the landowner, and on three occasions required that loggers using the road restore the road to the condition in which they found it. We reject the County's alternate argument that it gained prescriptive rights for use of the road because the County and the public used the road with permission. Therefore, we reverse the judgment. We express no opinion whether the County obtained the road by common law dedication because the issue was not pleaded or raised at trial.

In the 1920s, the Civilian Conservation Corps developed a fire lane on the property The public has used the road for at least twenty-five years. The unnamed road runs through the property the Kasters purchased from the estate of Peter Rasmussen in 1994. Rasmussen's son testified at trial that his father always intended the public to use the road running through his property as they pleased.

now owned by the Kasters, which remains an unnamed road. Prior owners of the property gave the state an easement for the [202 Wis.2d 452] fire lane in 1938, but the state unconditionally released the easement in 1970. The easement was limited to agents and representatives of the Wisconsin Conservation Commission.

In the late 1980s, at the request of a snowmobile club, the County repaired a bridge on the road running through the Kasters' property. The repairs cost approximately $1,200. The Rasmussens were not given prior notice of the repairs. County forestry employees testified they did not recall ever brushing, grading or graveling the road, and the County never placed culverts on the road.

The road provides the only year-round access to adjoining public lands. On three occasions since 1970, the County has logged the adjoining public land and the loggers have gained access to the public land through use of the road. Under the timber sale contracts, the County required the loggers to restore the road to its condition before logging.

Shortly after the Kasters purchased the property, they erected a gate across the road. The County filed suit seeking a declaration of its ownership rights in the road and an order permanently enjoining the Kasters from excluding the public from using the road. The County sought relief based on two theories: (1) the County worked the road for a period of ten years and therefore it is a public highway pursuant to § 80.01(2), STATS., 1 and (2) the County has obtained an ownership interest in the road through adverse possession under § 893.25, STATS. 2 The parties tried the case to the court. The court concluded that the property owners lost ownership in the road and that it became a public highway because the County had worked the road for a period of ten years. The court did not address the County's adverse possession argument.

The issues presented involve the construction and application of §§ 80.01(2) and 893.28, STATS. Construction of a statute and application to a particular set of facts are questions of law we review de novo. State v. Block Iron & Supply Co., 183 Wis.2d 357, 363, 515 N.W.2d 332, 334 (Ct.App.1994). We affirm the trial court's factual findings unless they are clearly erroneous. Section 805.17(2), STATS.

WHETHER THE ROAD WAS WORKED AS A PUBLIC HIGHWAY

Section 80.01(2), STATS., provides that roads "which have been worked as public highways 10 years or more are public highways...." Whether evidence is sufficient to meet a statutory standard is a question of law. Beacon Bowl, Inc. v. WEPCO, 176 Wis.2d 740, 783, 501 N.W.2d 788, 805 (1993).

The trial court concluded that the County worked the road when it replaced the bridge in approximately 1988 and when, in 1970, 1977 and 1989, it required loggers to restore the road to its condition before logging began on adjacent county land. The Kasters dispute whether the loggers actually worked on the road and, if so, whether the loggers' work constituted County work for the purposes of § 80.01(2), STATS. We do not address those issues because we conclude that even if the loggers' work is attributed to the County for purposes of § 80.01(2), the law requires the public entity to work the road in a manner that demonstrates ownership. As discussed later herein, the County's In Ruchti v. Monroe, 83 Wis.2d 551, 556-57, 266 N.W.2d 309, 313 (1978), our supreme court stated:

motive for requiring the road be restored to its prior condition is ambiguous and therefore insufficient to show it was worked as a "public highway."

Whether based upon a theory of common law prescription by use over 20 years or upon sec. 80.01(2), STATS., by maintenance over 10 years, the town does not acquire prescriptive rights in the road if its use of the road was merely permissive....

Generally, unexplained use of an easement over enclosed, improved or occupied lands for 20 years is presumed to be adverse. Likewise, under sec. 80.01(2), Stats., where work has been done and public money expended on a road under the direction of public officials, there is sufficient public use to establish it as a highway. Thus, upon a showing by the town of use by the public for more than 20 years or maintenance by the town for 10 years, the landowner has the burden of proving permissive use under some license indulgence or special contract. (Emphasis added, citations omitted.)

A use that is permissive in the beginning can be changed into one that is hostile only by the most unequivocal conduct on the part of the user. Lindokken v. Paulson, 224 Wis. 470, 475, 272 N.W. 453, 455 (1937). The trial court found that Rasmussen, the former owner of the Kasters' land, "invited the public to use the road at will." The County's use of the road was originally permissive.

The County did not assert a right to use the road beyond the scope of Rasmussen's permission by repairing the bridge. Rasmussen expressly permitted the public to use the road for snowmobiling. 3 The County repaired the bridge at the request of a snowmobile club. A $1,200 County expenditure to improve the road for snowmobiling is a natural extension of the public's permitted use.

The County also did not assert ownership rights over the road by requiring that the loggers return the road to its preexisting condition. The trial court found that Rasmussen gave the public an open invitation to use the road. This finding is consistent with the inference that Rasmussen was aware neighboring landowners (including the County) may use the road for logging. Rasmussen himself contemplated logging his land. Further, the County's agreement with the loggers is not unequivocal evidence of a claim of ownership on the part of the County. It was in the County's interest to keep a private road in good repair because it had a financial interest in the logging contracts and would benefit from the road repairs. Improving the road to efficiently log these areas and returning the road to its preexisting state is at least as consistent with a permissive use of the road as it is with a hostile claim of ownership.

We conclude that under the facts found by the trial court, the road has not been "worked as a public highway 10 years or more" under § 80.01(2), STATS. The test is whether the work demonstrates the public's ownership of the road so that the public's use of the road is not merely permissive. See Ruchti, 83 Wis.2d at 556, 266 N.W.2d at 313. This test gives the landowner sufficient notice to claim the road as his or her own if a public entity works on the road. Without establishing a bright-line test for the "worked" requirement, we note that continuous work on a road by a public entity is more likely to demonstrate ownership than sporadic work. 4

ACQUISITION BY PRESCRIPTION

Next, the County contends that it acquired the right to use the road by prescription. The County bases its claim on testimony that...

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