January/February 2019 Issue

Also in this issue: New Supreme Court Case Expands the Known Danger Exception to Governmental Immunity     |     Do Wedding Barns Need Alcohol Licenses? Conflicting Analyses at Issue in Lawsuit

Towns Are Not Obligated to Construct Roads to Standards Set Out in Wis. Stat. §82.50

02.06.19

The Wisconsin Court of Appeals recently held that towns are not required to build all roads to the construction standards for ​“town roads” that are set forth in section 82.50, Wis. Stats. DSG Evergreen Family Limited Partnership v. Town of Perry, 2017 AP 2352 (Dec. 20, 2018). 

The case arose out of a complex and lengthy history of litigation involving the town’s acquisition of part of DSG’s agricultural property by eminent domain for a park. Prior to the taking, DSG’s access from a county highway was through an approximately 20-foot wide gravel ​“field road,” a term defined in the town’s ordinance as a private road used only for agricultural purposes. The town took the portion of the property on which the field road was located. To ensure DSG’s access to its remaining property after the taking, the town promised in the petition for condemnation proceedings to construct a replacement ​“field road” on town land ​“to the same construction standards as the old field road,” which would also serve as access to the new park. DSG argued on appeal that it understood this language to mean that the new field road would be the ​“substantial equivalent” of the old road in all respects. At trial in the compensation proceedings, DSG introduced an engineering a report stating that a field road constructed in the location designated by the town would, by physical necessity, be steeper, narrower and have poorer sight distances than the old road. 

The town constructed the new field road after a judgment was entered in the compensation proceedings. DSG brought a new lawsuit complaining that the new field road was not the substantial equivalent of the old road in many respects including that it was steeper and narrower than the old road. DSG made two claims. First, it sought an order compelling the town to reconstruct the road to the ​“town road” standards in section 82.50, including a 66-foot right-of-way, and requiring that it be paved in accordance with the standards in the town’s ​“town road ordinance.” Second, in the alternative, DSG sought damages due to the difference in physical characteristics of the old and new field roads. The circuit court dismissed both claims on summary judgment. The Court of Appeals affirmed.

With respect to the first claim, the court of appeals held that there is nothing in section 82.50, or more broadly Chapter 82, imposing an obligation on towns to build all roads to the standards in section 82.50. Nor was there any language in the town’s ordinance compelling all roads to be constructed to ordinance standards for ​“town roads.” Consequently, neither the statutes nor the ordinance created a private right of action that could be enforced by private parties.

The court held that the second claim was barred by the doctrine of claim preclusion. DSG was aware at the time of trial in the compensation proceedings that the new field road could not be equivalent to the old road in all respects. Accordingly, it could have sought damages attributable to the different physical characteristics. The doctrine of claim preclusion precludes a party from asserting a claim in a subsequent lawsuit that could have been made in an earlier case. It was irrelevant whether DSG actually asserted the claim in the first case, because it had knowledge of the facts and the ability to do so.