Background
Wisconsin received a federal Railroad Administration grant to fund safety improvements at railroad crossings in Waukesha County. The Wisconsin Department of Transportation and the Village of Pewaukee jointly implemented a project at the Oakton Avenue railroad crossing. As required by the federal grant, driveways and road connections within 60 feet of the crossing had to be removed or relocated. The project closed a short section of Oakton Court — referred to as the “Oakton connector” — that had previously provided a direct entrance onto Oakton Avenue, and replaced it with a sidewalk extension and other safety improvements.
The Anna Heise Revocable Trust, which held a 1991 quitclaim deed to property in the area, claimed ownership of the Oakton connector and filed suit alleging that closing it constituted a compensable taking without just compensation under Wisconsin’s inverse condemnation statute (Wis. Stat. § 32.10) and under both the Wisconsin and U.S. Constitutions. The Trust sought an order requiring restoration of the connector to its prior condition. The Village and DOT moved for summary judgment, arguing that the connector had always been a public highway, not private property.
The Waukesha County Circuit Court granted summary judgment to the Village and DOT on the inverse condemnation claim. The parties then stipulated to dismiss the constitutional taking claim with prejudice, and the Trust appealed the dismissal of its inverse condemnation cause of action.
The Court’s Holding
The Court of Appeals affirmed summary judgment for the Village and DOT, holding that the Oakton connector — and Oakton Court more broadly — constitutes an unrecorded public highway under Wis. Stat. § 82.31(2)(a). That statute provides that any unrecorded highway worked as a public highway for ten or more years is deemed a public highway. The undisputed record showed that the Village constructed Oakton Court approximately 60 years ago, continuously maintained it (including annual snowplowing, pothole repair, and signage), certified it as a public road since 2007, and identified it as a public road on maps dating to at least 1979. Because the connector was public, Heise could not establish the threshold element of an inverse condemnation claim — that a taking of private property occurred.
The court rejected Heise’s argument that § 82.31(2) applies only to towns and not villages, citing the Wisconsin Supreme Court’s holding in Affeldt v. Green Lake County that the statute is a recodification of former provisions that were never limited to towns, and a Court of Appeals decision expressly applying the statute to a village. The court also rejected Heise’s fallback argument that, even if § 82.31(2) applied, the Village held only a highway easement that was extinguished when the road entrance was replaced by a sidewalk. The court held the connector had not been vacated or discontinued; a sidewalk qualifies as a “highway” under Wisconsin law, and the connector remained in continuous public use for the railroad safety project.
Because Heise failed to demonstrate that the Oakton connector was private property in the first instance, the court found it unnecessary to address numerous other arguments raised by the parties, including the Village’s waiver, laches, and estoppel defenses, and the DOT’s arguments regarding condemnation authority and right-of-way boundaries.
Key Takeaways
- Under Wis. Stat. § 82.31(2)(a), a road worked and maintained as a public highway for ten or more years becomes a public highway by operation of law, regardless of whether it is recorded — and this rule applies to villages as well as towns.
- A quitclaim deed conveys only the interest the grantor could lawfully convey; a grantee takes property subject to any existing public highway status, meaning private deed documents cannot defeat a statutory public highway designation.
- Replacing a road entrance with a sidewalk does not vacate or discontinue the public highway: sidewalks are included within the statutory definition of “highway,” so the public character of the connector was uninterrupted.
- An inverse condemnation claimant bears the burden of proving, by clear and convincing evidence, that the property at issue was private property — a burden Heise could not meet given the decades of undisputed public maintenance.
Why It Matters
This decision reinforces how Wisconsin’s unrecorded highway statute can quietly convert what a landowner believes is private property into a public highway, with significant consequences for takings claims. Property owners who tolerate decades of municipal maintenance — snowplowing, pothole repair, public road certifications — risk losing the ability to later assert private ownership, even if they hold recorded deed instruments. The case serves as a reminder that title documents alone do not settle public highway questions in Wisconsin.
The ruling also confirms that federal grant-driven safety projects that reconfigure road connections near railroad crossings are unlikely to give rise to inverse condemnation liability where the affected infrastructure was already public. For municipalities and state DOTs undertaking similar sealed-corridor railroad safety improvements, the decision offers a useful roadmap: establish the public highway character of the affected connections early, and the taking claim fails at the threshold.