COURT OF APPEALS

DECISION

DATED AND FILED

January 30, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1931 Cir. Ct. No. 2017CV125

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

JOSEPH TAGGART AND KARLA TAGGART,

 PLAINTIFFS-RESPONDENTS,

 V.

TOWN OF LITTLE WOLF,

 DEFENDANT-APPELLANT,

DAVID BREE, MARGARET BREE,

WAYNE GIERACH AND BONNIE GIERACH,

 DEFENDANTS-RESPONDENTS,

MARK VAN LINN, KEVIN HANDRICH 

AND MARGIE HANDRICH,

 DEFENDANTS.
No. 2018AP1931

2

APPEAL from a judgment of the circuit court for Waupaca County: 

TROY L. NIELSEN, Judge. Modified and, as modified, affirmed. 

Before Blanchard, Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. The Town of Little Wolf appeals the judgment of 

the circuit court declaring that a 1/4-mile segment of a road near property owned 

by Joseph and Karla Taggart became a town highway after it was laid out by order 

of the Town in 1898 as part of a 11⁄2-mile town highway, and that the 1/4-mile 

segment remains part of a town highway.

1

 The circuit court determined on 

summary judgment that there is no genuine issue of material fact that the disputed 

1/4-mile segment now qualifies as being part of a town highway, as opposed to 

either always having been a private road or to having reverted to the status of a 

private road. Stated in statutory terms, the court determined that there are no 

genuine issues of material fact about whether the disputed segment became a 

“legal highway” pursuant to WIS. STAT. § 82.31(1) (2017-18),

2

and also no 

genuine issues of material fact about whether the disputed portion was 

 

1

 For ease of reference we use the present tense (the Taggarts “own” the parcel) but the 

past tense would be more accurate. At oral argument and in subsequent letter briefing to this 

court, we learned that the Taggarts sold the parcel at issue in May 2019, the same month that the 

Town filed its reply brief in this appeal. However, when we asked about potential mootness or 

standing concerns, both sides have taken the position that the Taggarts may continue to pursue 

this appeal. 

2

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 
No. 2018AP1931

3

“discontinued” as a “public highway” pursuant to WIS. STAT. § 82.19(2).3 We 

agree with the Taggarts that the circuit court’s declaration regarding the disputed 

segment is proper based on the evidence submitted by the parties, applying 

interpretations of the applicable statutes that the Town either advances or does not 

dispute.

¶2 In what amounts to a sub-issue, the Town contends that the circuit 

court erroneously designated as part of the town highway a 332-foot portion that 

extends beyond the disputed 1/4-mile segment, because there is no evidence to 

support declaring the 332-foot portion part of the town highway. As the Taggarts 

acknowledge on appeal, they conceded the point in the circuit court, forfeiting the

issue for purposes of this litigation.

 

3

 WISCONSIN STAT. § 82.31(1), entitled “Validation of highways,” provides in pertinent 

part:

(1) RECORDED HIGHWAYS. Any recorded highway that 

has been laid out under this chapter is a legal highway only to 

the extent that it has been opened and worked for 3 years.

WISCONSIN STAT. § 82.19 is entitled “Discontinuation of highways,” and in subsection 

(2) provides in pertinent part:

(a) Every highway shall cease to be a public highway 4 

years from the date on which it was laid out, except the parts of 

the highway that have been opened, traveled, or worked within 

that time.

(b)1. In this paragraph, “vehicular travel” means travel 

using any motor vehicle required to be registered under ch. 341 

or exempt from registration under s. 341.05.

2. Any highway that has been entirely abandoned as a 

route of vehicular travel, and on which no highway funds have 

been expended for 5 years, shall be considered discontinued.
No. 2018AP1931

4

¶3 Accordingly, we direct that the judgment be modified to account for 

the 332-foot portion, but affirm the judgment as modified. 

BACKGROUND

¶4 The Taggarts commenced this action in May 2017, in pertinent part 

seeking a declaration that a portion of a road now referred to as Swamp Road is “a 

public right-of-way.”

4

 Allegations in the subsequently filed amended complaint 

include the following. 

¶5 On October 4, 1898, the amended complaint alleges, Town 

representatives 

laid out a 66 foot wide public right-of-way known as 

“Swamp Road” from the Quarter line between Sections 8 

and 17 (at [County Highway] N), for a distance [running 

westward] of one and one half miles between Sections 8 

and 27 to the common line between the Town of Little 

Wolf and [the Town of] St. Lawrence. 

This describes a 11⁄2-mile town highway, running east-west, laid out from, on its 

east end, County Highway N, to, on its west end, the Township line with the Town 

of St. Lawrence. Attached to the amended complaint is a copy of a Town order

dated October 4, 1898, corresponding to this allegation. 

 

4

 The complaint contains an alternative request for relief, namely, an award of 

compensatory damages for “the taking of the property right of public access without due 

process.” However, neither side suggests that we need to address the topic of a potential taking if 

we affirm the judgment as modified, and we address this topic no further.

Separately, for ease of reference, we use the term “Swamp Road” to refer to all or any 

part of the 11⁄2-mile highway laid out by the Town in 1898, recognizing that the parties disagree 

about whether particular portions of the 11⁄2-mile Swamp Road qualify as being part of a town 

highway. 
No. 2018AP1931

5

¶6 We pause to note that the Town does not dispute that the Taggarts 

have established that the entire 11⁄2-mile length of Swamp Road was properly “laid 

out” by the Town in October 1898, as the phrase “laid out” is used in WIS. STAT.

§ 82.19(2)(a). 

¶7 Returning to the amended complaint, it alleges that after the Town 

issued its 1898 lay-out order, the eastern-most one-mile segment (that is, the first 

mile running west from County Highway N) “has been opened, travelled[,] and 

worked as a Town highway.” At the same time, according to the amended 

complaint, the remaining “[a]pproximately ... [w]est 1/2 mile” of Swamp Road

“has not been opened or worked.” However, the amended complaint continues, 

this west 1/2 mile “has been used as a way of travel by the ... Taggart[s] and the 

public.” 

¶8 The amended complaint further alleges that property owned by the 

Taggarts, as well as property owned by four other sets of owners identified in the 

complaint (the Brees, the Gieraches, Van Linn, and the Handriches, collectively, 

“the other Swamp Road owners”), are all adjacent to Swamp Road, and that 

Swamp Road “provides direct public access” to these properties.5 The amended 

complaint states that “[t]he Swamp Road public right-of-way has been used by 

[the Taggarts and the other Swamp Road owners] along with the public as a way 

of travel.” 

 

5

 A word on the parties. After we solicited responses regarding party status and interest 

from the other Swamp Road owners, who were originally listed as defendants in this case, we 

ordered that the caption of this appeal be amended to remove the respondent designation from the 

Van Linn and Handrich defendants, and we noted that the Bree and Gierach defendants indicated

that they are aligned with the Taggarts. Only the Taggarts and the Town have filed appellate 

briefs and participated in oral argument. 
No. 2018AP1931

6

¶9 According to the amended complaint, “the Swamp Road public 

right-of-way,” presumably meaning the entire 11⁄2 miles, “has never been 

discontinued by” the Town and “has never been entirely abandoned as a route of 

travel.” 

¶10 The amended complaint further alleges that Swamp Road-abutting 

properties owned by the Taggarts and the other Swamp Road owners “are either 

benefitted or burdened by private easements which lie within the public right-ofway laid out by [the Town]. The private easements were created after the [Town] 

laid out the public right-of-way.”

¶11 The Town has consistently acknowledged that the east 3/4 mile of 

Swamp Road is a town highway and has challenged only the proposition that the 

west 3/4 mile, including the disputed 1/4-mile segment, is a town highway. The 

Taggarts have been less consistent.

¶12 In the circuit court, the Taggarts first argued that the entire west 3/4 

mile should be declared a town highway. However, as the Taggarts’ appellate 

counsel acknowledged at oral argument, during the course of the litigation in the 

circuit court, the Taggarts’ position shifted. They ultimately asked the circuit 

court to determine, in the words of one pleading they filed late in the circuit court 

litigation process, only that “Swamp Road is a public road” from County Highway 

N, running west “to the Bree property,” meaning to the eastern edge of the Bree 

property at Swamp Road. (Emphasis added.) The parties agree that the disputed 

1/4-mile segment of Swamp Road extends to the eastern edge of the Bree 

property.

¶13 As we discuss below, this reference to the Bree property is 

significant on the 332-foot portion issue, because the following facts are 
No. 2018AP1931

7

undisputed. The Bree parcel lies on the north side of Swamp Road, generally 

north of the Taggart parcel, which is on the south side of Swamp Road. But the 

boundaries of the Taggart and Bree parcels are not completely aligned, one on top 

of the other. While the western edges of the Bree and Taggart parcels are aligned, 

the eastern edge of the 40-acre Bree parcel is approximately 332 feet to the east of 

the eastern edge of the 30-acre Taggart property. Thus, extending the town 

highway to the eastern edge of the Bree parcel leaves a 332-foot gap between the 

west end of the disputed 1/4-mile segment and the eastern edge of the Taggart 

parcel. 

¶14 After extensive briefing and argument to the circuit court, the court 

made the following determinations in granting summary judgment to the Taggarts: 

the contested portion of Swamp Road is the 1/4-mile segment “that leads to the 

Bree property” from the east; the evidence establishes that “the right-of-way 

historically served as the only public access to two farms in the SW 1/4 of Section 

7 that included what is now the Bree property” and “Swamp Road was shown 

running to what is now the Bree property in a 1923 Waupaca County Atlas”; the 

contested 1/4-mile segment was “historically” a log road6and the Town contracted 

with the county to remove the log base; “the only reasonable inference from the 

evidentiary facts is that the contested portion of the right-of-way was necessary for 

public access for a number of parcels and was therefore opened, travelled[,] or 

worked within four years of the Town laying out the highway”; the evidence 

“establishes that the contested segment has never been entirely abandoned as a 

route of travel,” with “consistent[]” use by “adjacent property owners” and 

 

6

 A log, or corduroy, road is created by placing logs perpendicular to the direction of the 

road, typically over a low or swampy area. 
No. 2018AP1931

8

“undisputed evidence of some historical use by the public as well”; and “[t]here is 

no evidence that any part of the contested segment was difficult or impossible” for 

“vehicular travel” and the contested segment “remains in use for vehicular travel 

at the present time.” The court concluded that Swamp Road “from the Quarter 

Line between Sections 8 and 17, westerly continuing to the Taggart property” is “a 

public highway,” and accordingly issued declaratory judgment stating the same. 

The Town appeals. 

DISCUSSION

¶15 Summary judgment is appropriate when there are no material facts 

in dispute and the moving party is entitled to judgment as a matter of law. See

WIS. STAT. § 802.08(2). We review a grant of summary judgment de novo, 

applying the same methodology as the circuit court. Belding v. Demoulin, 2014 

WI 8, ¶13, 352 Wis. 2d 359, 843 N.W.2d 373.

¶16 Under the standard methodology, we determine whether the 

Taggarts have presented a prima facie case for summary judgment, and if so, then 

we examine the Town’s opposing proof “to discern whether there ‘exist disputed 

material facts, or undisputed material facts from which reasonable alternative 

inferences may be drawn, sufficient to entitle [the Town] to a trial.’” See Swatek 

v. County of Dane, 192 Wis. 2d 47, 61-62, 531 N.W.2d 45 (1995) (quoted source 

omitted).

332-foot portion

¶17 We briefly address the 332-foot portion sub-issue and explain why 

we conclude that the judgment must be modified to declare that the town highway 

extends to the Bree parcel, not to the Taggart parcel. 
No. 2018AP1931

9

¶18 As summarized above, the Taggarts argued in the circuit court that 

the town highway runs only “to the Bree property.” Further, as counsel 

acknowledged at oral argument, the primary evidence that the Taggarts provided 

to the circuit court on summary judgment (the affidavit of Wayne Gierach, which 

is discussed below), could have supported at most a determination that the town 

highway runs to the edge of the Bree parcel and not the additional 332 feet to the

edge of the Taggart parcel. 

¶19 We cannot readily discern what caused the circuit court to first make 

a determination that there is no genuine dispute that the end point is the Bree 

parcel, but then to order that the end point is the Taggart parcel. In any case, 

however, the Taggarts acknowledge that their ultimate argument in the circuit 

court assumed that the town highway did not extend to the eastern edge of their 

parcel, but only to the eastern edge of the Bree parcel. The Taggarts have 

forfeited this issue; they cannot prevail on an issue that they failed to present to the 

circuit court. See Gruber v. Village of North Fond du Lac, 2003 WI App 217, 

¶27, 267 Wis. 2d 368, 671 N.W.2d 692 (“Although this court engages in summary 

judgment review de novo, we nonetheless may apply [forfeiture] to arguments 

presented for the first time on appeal.”); see also Hopper v. City of Madison, 79 

Wis. 2d 120, 137, 256 N.W.2d 139 (1977) (“It is the practice of this court not to 

consider issues raised for the first time on appeal since the trial court has had no 

opportunity to pass upon them.”). 

¶20 As noted in Gruber, “[a]pplication of the [forfeiture] rule is 

appropriate where a [forfeited] argument could have been rebutted with factual 

information,” see Gruber, 267 Wis. 2d 368, ¶27, and that fits the circumstances 

here. By conceding the point in the circuit court, the Taggarts failed to alert the 
No. 2018AP1931

10

Town of the need to present evidence on this point. This forfeiture resolves the 

332-foot sub-issue for purposes of this litigation.

Disputed 1/4-Mile Segment

¶21 Turning to the more general summary judgment issues, we conclude 

that the Taggarts have presented a prima facie case for summary judgment 

regarding the disputed 1/4-mile segment and that the Town fails to present 

opposing proof sufficient to entitle it to a trial. We reach this conclusion in large 

part because we reject the Town’s main argument, which is to challenge the

Gierach affidavit that was submitted by the Taggarts on summary judgment. The 

Town effectively argues that the Taggarts fail to present a prima facie case 

because we should ignore the Gierach affidavit, which provides support for the 

Taggarts’ summary judgment motion.

WISCONSIN STAT. § 82.31(1): Valid Highway

¶22 In effect, the first set of issues presented by the parties is whether the 

Taggarts have presented evidence sufficient to support a prima facie case for a 

declaration that the disputed 1/4-mile segment of Swamp Road became a valid 

town highway under WISCONSIN STAT. § 82.31(1) after the 11⁄2-mile town highway

was laid out, and if so whether the Town has rebutted that case, requiring a trial. 

We conclude that the Taggarts have established a prima facie case that the Town 

fails to rebut.

¶23 As mentioned above, the parties agree that there is no issue of fact 

about whether the disputed 1/4-mile segment was part of a recorded highway that 

was properly laid out by the Town in 1898, and it therefore began as a “recorded 

highway” for purposes of WIS. STAT. § 82.31(1). The issue under § 82.31(1) is 
No. 2018AP1931

11

whether the Taggarts have offered proof that the recorded highway “has been 

opened and worked for 3 years.” See § 82.31(1).

¶24 While the Taggarts cite statutory definitions and some case law, 

neither side provides us with a consistent argument that is based on a clearly 

articulated definition of the phrase “opened and worked for 3 years.” In particular, 

the Town’s brief-in-chief makes no serious effort to interpret pertinent terms of 

WIS. STAT. § 82.31(1). When questioned at oral argument, the Town cited the 

following statutory definitions: WISCONSIN STAT. § 82.01(7) defines “opened” to 

mean “the completion of work on a highway that places the highway in a 

condition ready for public use”; § 82.01(11) defines “worked” to mean “action of 

the town in regularly maintaining a highway for public use, including hauling 

gravel, grading, clearing or plowing, and any other maintenance by or on behalf of 

the town on the road.” However, the Town has taken a pass on attempting to 

apply these or any other statutory or case law definitions to activities and road 

conditions along any part of what is now Swamp Road during the period 1898-

1901. 

¶25 In any case, solely for purposes of resolving this appeal, we accept 

one set of positions that the Town took at oral argument, which is that a recorded 

highway is “opened and worked” under WIS. STAT. § 82.31(1) when it is

“passable,” “welcome[s] the public,” and has been “brought to a condition in 

which it’s ready for public use.” Under this standard, the Taggarts would prevail 

on this issue if they could prove that the disputed 1/4-mile segment was, between 

1898 and 1901, passable, welcoming, and in a condition ready for public use. 

¶26 As mentioned, an important element in the Taggarts’ prima facie 

case is the Gierach affidavit. We now summarize the Gierach affidavit and
No. 2018AP1931

12

explain why we conclude that it contributes to a prima facie case that the disputed 

1/4-mile segment was “opened and worked for 3 years” after it was laid out, 

pursuant to WIS. STAT. § 82.31(1), and why we reject the arguments that the Town 

makes about the affidavit. Then we turn to other evidence offered by the Taggarts, 

in addition to the Gierach affidavit, in support of their prima facie case. 

¶27 Gierach averred that he owns property on the north and south sides

of Swamp Road, near to and just east of the Taggart and Bree parcels. Gierach has 

“lived and farmed along Swamp Road for 38 years (since 1980).” When Gierach

first started living along Swamp Road, he “believed it was a public road.” Gierach 

further averred that “[i]t is historically known that Swamp Road was opened, 

traveled[,] or worked up to what is now the Bree property.” At the Bree property, 

“a private road ran to the north and served two farms.” “Swamp Road provided 

public access.” 

¶28 Gierach further averred that he could not say when Swamp Road 

“was first worked other than to say it has been opened and worked for a very long 

time. Part of Swamp Road was a log road where logs were laid over low spots.”

¶29 Gierach further averred that his understandings about the history 

summarized above are confirmed in a 1923 Waupaca County Atlas, one page of 

which is attached to his affidavit.7 The 1923 atlas page, for “Township 23 North, 

Range 13 East of the 4th [Principle Meridian],” appears to show a road that travels 

from the east to what is now the Bree parcel and then takes a right-angle turn to 

 

7

 While the Town raises what it submits is an interpretation issue regarding the 1923 

atlas, which we address in the discussion below, the Town does not argue that the pertinent page 

from the atlas could not be authenticated and admitted as substantive evidence at a trial. 
No. 2018AP1931

13

the north. The 1923 atlas page further shows that, after turning north, the apparent 

road passes by two 40-acre parcels and dead ends at two other 40-acre parcels.

¶30 Gierach also averred that the Town “maintained Swamp Road to the 

Bree property from 2002 until 2014.” 

¶31 The Gierach affidavit and its attachments do not offer a lot in the 

way of concrete examples and detail backing up the “it is historically known” 

concept. If a trial were held, Gierach might be subject to cross examination

rendering his statements to be of less probative force. At the same time, however, 

we conclude that the substance of the affidavit and its attachments could provide a 

reasonable basis for a fact finder at trial to draw reasonable inferences about 

activity along what is now Swamp Road beginning in 1898, continuing to 1923, 

and on to 1980 and the present day, when considered in the context of other 

evidence, as we discuss further below. The Town fails to support its position that 

the Gierach affidavit and its attachments are inadmissible or lack any probative 

force such that they do not support the Taggarts’ prima facie case for summary 

judgment.

¶32 We now address in turn each of the challenges that the Town makes 

to the Gierach affidavit. The first is based on the so-called sham affidavit rule. 

“[F]or purposes of evaluating motions for summary judgment pursuant to WIS.

STAT. § 802.08, an affidavit that directly contradicts prior deposition testimony is 

generally insufficient to create a genuine issue of fact for trial, unless the 

contradiction is adequately explained.” Yahnke v. Carson, 2000 WI 74, ¶21, 236 

Wis. 2d 257, 613 N.W.2d 102. The Town’s argument is that we should ignore the 

Gierach affidavit because it contradicts deposition testimony that Gierach gave in 
No. 2018AP1931

14

litigation separate from this case in 2003. We now explain why we reject this first 

challenge to the affidavit.

¶33 The Town points to two, non-sequential pages from a longer 

deposition that Gierach gave in the 2003 litigation. The Town argues that these 

two pages “illustrate[]” Gierach’s “belief that he had the authority to control 

access to and block the [disputed segment] and it was not open to the public,” and 

also show that Gierach “recognized the private property rights of the others along 

the [disputed segment], like the Handriches, who placed a gate across their portion 

of the gravel drive, to exclude the public.” However, the two non-sequential pages 

of deposition testimony that the Town relies on do not establish Gierach’s clear 

belief on any point that matters. These isolated snippets of testimony leave 

completely unanswered critical contextual points that include, but are not limited 

to, the location and duration of alleged activity that Gierach was asked to address

in this testimony. And, the Town fails to cite to record evidence that could 

provide meaningful context for these snippets. The 2003 litigation was a separate 

action from this one, and our obligation here is to resolve the current arguments of 

the parties based on the summary judgment record submitted to the circuit court in 

this action. We ignore arguments by the Town that are not properly tied to 

relevant and admissible evidence that was submitted to the circuit court in this 

action, and the out-of-context deposition snippets do not establish the existence of 

the direct contradiction of the type required under Yahnke.

8

 

 

8

 We observe that this is one example of a general problem with the Town’s briefing. 

The Town repeatedly makes assertions of fact that are not accompanied by any citation to 

evidence in the record or that are accompanied by a citation that does not direct us to admissible, 

relevant evidence. 
No. 2018AP1931

15

¶34 The Town’s second challenge to the Gierach affidavit is that it 

consists only of “inadmissible hearsay” and is not based on personal knowledge, 

because “Mr. Gierach has no personal knowledge as to the ‘facts’ he alleges in the 

affidavit.” At oral argument, counsel for the Taggarts countered that the Gierach 

averments were based on what was historically “common knowledge” in 

Gierach’s view, which are averments covered by “the hearsay exceptions, it’s 

reputation.” We construe the Taggarts to effectively argue that Gierach’s 

testimony about his understanding of the history of Swamp Road is admissible 

under WIS. STAT. § 908.03(20). This exception to the hearsay rule provides that 

evidence of “[r]eputation in a community, arising before the controversy, as to ... 

customs affecting lands in the community, and reputation as to events of general 

history important to the community ... in which located[,]” is not excluded by the 

rule. The Town fails to advance an argument that would undermine application of 

§ 908.03(20) here, and we agree that the limited hearsay and lack-of-personal 

knowledge objections raised by the Town are refuted by this hearsay exception. 

¶35 The Town’s third challenge to the Gierach affidavit is to briefly 

suggest that various of its averments are “misleading.” We understand the Town 

to mean that some averments are insufficiently precise to stand as proof of any 

relevant proposition. However, as we have noted, while the Gierach affidavit is 

light on details, it has some potential probative force.

¶36 In sum, we reject the Town’s challenges to the Gierach affidavit as 

evidence supporting a prima facie case. As we now discuss, the Town also fails to 

demonstrate that other evidence offered by the Taggarts does not support their

prima facie case that the disputed 1/4-mile segment was “opened and worked for 3 

years” after it was laid out, pursuant to WIS. STAT. § 82.31(1). 
No. 2018AP1931

16

¶37 Notably, this evidence includes what Joseph Taggart avers is an 

accurate, contemporary depiction of Swamp Road and parcels along it, which has 

the appearance of an annotated plat map, to which the Town poses no objection 

based on authentication or admissibility. This depiction can be compared, sideby-side, with the 1923 atlas page in a manner that supports the Taggarts’ 

arguments. 

¶38 In addition, the Town acknowledged at oral argument that the 

Taggarts have established for purposes of summary judgment that, in 1898, six 

owners of parcels abutting what is now Swamp Road applied to lay out a 11⁄2-mile 

town highway. It is at least one reasonable inference that these applicants were 

farmers with parcels along the road who were eager for there to be public use of 

this highway to allow general public access to their farms. And, as already 

referenced, the evidence includes an attachment to the complaint of a copy of the 

“Record of the Boundaries of Road Districts” reflecting the laying out of the entire 

11⁄2-mile highway by the Town on October 4, 1898. This document states that 

Town representatives had “proceed[ed] to examine personally said highway” and 

were of the “opinion that the public good will” “be promoted” by the existence of 

the town highway. This language may be somewhat ambiguous, but it could be 

interpreted to suggest either an intention of Town officials to take near-term steps 

to render the laid out highway available for public use or an opinion that little or 

nothing further needed to be done to render it available for public use, given turnof-the-last-century modes of travel. 

¶39 We conclude that all of this evidence gives rise to a possibly weak, 

but nonetheless reasonable, inference that the disputed 1/4-mile segment—up to 

the point of what is now the Bree parcel—was between 1898 and 1901 passable, 

welcoming, and in a condition ready for public use, satisfying the prima facie case 
No. 2018AP1931

17

under WIS. STAT. § 82.31(1). In particular, it is at least a reasonable inference that 

what is reflected in the 1923 atlas page and what Gierach understood starting in 

1980 were the product of activity between 1898 and 1901 that rendered the 

highway, up to what is now the Bree parcel, passable, welcoming, and in a 

condition ready for public use. The reasonable inference is that the highway was 

“opened and worked” to this point, even if the strongest inference might be that 

public use would have consisted primarily if not entirely of farm families and their 

visitors coming and going from farms located around the current location of the 

eastern edge of the Bree parcel. 

¶40 We now address what is, so far as we can discern, the only 

additional argument that the Town makes opposing Taggart’s prima facie case 

under WIS. STAT. § 82.31(1). The Town argues that the 1923 atlas page “makes 

no distinction between any public road running east and west and a private road 

running north and south.” We take this to be the following argument: the 1923 

atlas page must be ignored as inaccurate because it fails to indicate, at the 

southeast corner of what is now the Bree parcel, an ending point for an east-west 

laid-out town highway and a beginning point of what is indisputably a private 

drive running to the north. We fail to see the value in this point. What matters in 

this dispute is evidence bearing on, or raising reasonable inferences regarding,

turn-of-the-last-century conditions and uses of the highway up to the point of what 

is now the eastern edge of the Bree parcel. So far as the Town explains its 

argument, failure of the 1923 atlas page to characterize the road that is shown 

heading north as public or private is beside the point. Indeed, if anything, the 

existence of a private driveway that connects to the laid-out Swamp Road only 

further reinforces the idea that area residents were regularly traveling on Swamp 

Road to that point.
No. 2018AP1931

18

¶41 Having rejected the Town’s arguments effectively challenging 

whether the Taggarts have made a prima facie case under WIS. STAT. § 82.31(1), 

we note that the Town fails to identify any competing inference from the evidence 

offered by the Taggarts that would defeat summary judgment. The Town fails to 

address how a reasonable inference can be drawn from this evidence that whatever 

interest there was in petitioning for a road extending the full length of current-day 

Swamp Road in 1898 was simply not followed up with travel by at least the land 

owners on the road itself, during the period between the road’s laying out pursuant 

to the petition and the reasonably inferable travel along the road from 1923 and 

beyond.

¶42 Further, as we now address, we understand the Town to offer only 

one series of purported evidentiary bases to rebut the prima facie case. The Town 

states, without further explanation, that “[v]arious plat maps throughout the years 

have shown the road ending at different places,” and provides citations to two sets 

of maps that were attached to affidavits submitted to the circuit court. We reject 

this “at different places” argument based on a lack of development. A generalized 

reference to “different” things being shown on “various plat maps” is not 

sufficient to describe evidence that rebuts the prima facie case. See State v. 

Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999) (“A party must 

do more than simply toss a bunch of concepts into the air with the hope that either 

the ... court or the opposing party will arrange them into viable and fact-supported 

legal theories.”). Further, as we now explain, even if the Town had attempted to 

develop an argument along these lines, we would not be persuaded that the maps 

could reasonably serve to rebut the Taggart’s prima facie case. 

¶43 One set of maps, attached to an affidavit of counsel for the Taggarts,

appears to add nothing to the analysis that would not support the Taggarts’ prima 
No. 2018AP1931

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facie case, because lines on the maps appear to indicate road use that would favor 

the Taggarts’ arguments. 

¶44 The other set of maps could in theory be relevant to support the 

Town’s attempt to rebut the prima facie case. However, as we now explain, the 

Town fails to provide a basis to treat the second set as admissible and relevant to 

rebut the prima facie case. These maps are attached to an affidavit of the person 

who was the Town clerk in November 2017. The clerk avers that the maps are 

1951, 1955, and 1980 highway maps “maintained and utilized by the County of 

Waupaca and the State of Wisconsin Department of Transportation—Division of 

Highways.” The Town appears to rely on the clerk’s affidavit and these highway 

maps because notations on the maps purport to indicate that the “town road” 

occupying the current Swamp Road location extended only about 3/4-mile west of 

County Highway N (two maps state “.75” and the other states “.28” plus “.48”). 

¶45 However, the clerk does not explain how either or both of the two 

separate agencies (the county and the state department of transportation) 

maintained and used each map, or who created any of them or for what purposes, 

using what criteria. Nor does the clerk provide an evidentiary basis to conclude 

that the clerk (or any other person for that matter) could testify to the sources and 

intended meanings of the notations. 

¶46 Further, unlike the maps presented by the Taggarts for the purpose 

of merely demonstrating the existence of a physical, traveled road, regardless of 

legal status, the meanings of the maps attached to the clerk affidavit are not selfevident. There is no indication from the clerk’s averments or on the maps 

themselves how “town road” might have been defined for purposes of creating any 

of these maps. As a consequence of these failures, the Town provides insufficient
No. 2018AP1931

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basis to conclude that the clerk’s averments regarding the maps represents

relevant, admissible evidence. 

¶47 The clerk’s affidavit references the maps in a conclusory manner. 

The clerk asserts, apparently based entirely on the notations themselves, that “[a]t 

some point in time between the [1898] laying out order and 1951[,] the Town” had 

“construct[ed] and open[ed] Swamp Road” from County Highway N west “for a 

distance of approximately 3/4 of a mile.” Further, however, the clerk avers that, 

“[f]or an undetermined amount of time, Waupaca County, at the request of the 

Town of Little Wolf, did add gravel to and plow an additional stretch of gravel 

lane from the [east] end of Swamp Road to the eastern property line of the Bree 

[parcel]. This practice ended at some point prior to May 15, 2012.” (Emphasis 

added.) 

¶48 For all of these reasons, even if the Town had developed an 

argument on this point, we see no reason to think that the averments of the clerk, 

referencing the maps, could represent admissible and relevant evidence serving to 

rebut the Taggart’s prima facie case: that the disputed 1/4-mile segment—up to 

the point of what is now the Bree parcel—was between 1898 and 1901 passable, 

welcoming, and in a condition ready for public use, satisfying the prima facie case 

under WIS. STAT. § 82.31(1).

¶49 In sum, the Town’s only efforts to rebut the Taggarts’ prima facie 

case are to challenge one piece of evidence (the Gierach affidavit), to fail to 

address other evidence, and to point to maps of undeveloped evidentiary 

importance. In making only these arguments, the Town fails to identify 

reasonable inferences from any admissible evidence that the disputed portion of 

Swamp Road did not become a valid highway. 
No. 2018AP1931

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WISCONSIN STAT. § 82.19(2): Discontinued Highway

¶50 The second set of issues presented by the parties is whether there is a 

genuine issue of material fact about whether the disputed 1/4-mile segment has 

been discontinued as a public highway under WIS. STAT. § 82.19(2). The issue 

under § 82.19(2) is whether the Taggarts have established that the Town presents 

insufficient evidence that the disputed segment has not “cease[d] to be a public 

highway 4 years from the date on which it was laid out” because it was not

“opened, traveled, or worked within that time,” and that it has not been “entirely 

abandoned as a route of vehicular travel.” See § 82.19(2).9

¶51 In seeking a declaration on this issue, the Taggarts have the benefit 

of the rule that a party arguing that a highway has been discontinued under WIS.

STAT. § 82.19 (here, the Town) faces the higher civil burden of proof, which 

requires evidentiary proof to a reasonable certainty by evidence that is clear and 

convincing. See Town of Schoepke v. Rustick, 2006 WI App 222, ¶¶11-14, 296 

Wis. 2d 471, 723 N.W.2d 770. “[A]pplying the higher burden of proof is 

consistent with Wisconsin case law addressing property rights; in particular, the 

public’s right to use roadways.” Id., ¶12. 

¶52 The parties here have made insufficient attempts in their briefing and 

at oral argument to provide arguments based on supported, clear definitions for 

pertinent terms in WIS. STAT. § 82.19(2). In particular, at oral argument both sides 

 

9

 We need not, and do not, address the clause in WIS. STAT. § 82.19(2)(b)2., addressing 

the situation in which “no highway funds have been expended for 5 years.” This issue is resolved 

against discontinuance of the town highway if the highway has not “been entirely abandoned as a 

route of vehicular travel,” and we explain in the text why we conclude that the Taggarts prevail 

on the entirely abandoned travel issue.
No. 2018AP1931

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struggled to harmonize WIS. STAT. §§ 82.31(1) and 82.19(2). In any case, 

however, even beyond all related arguments of the Town that we have already 

rejected above, we conclude that there are two reasons that the Town cannot show 

to a reasonable certainty by evidence that is clear and convincing that the disputed 

segment ceased to be a public highway four years from the date on which it was 

laid out and that it has been entirely abandoned as a route of vehicular travel. 

First, the Town’s argument appears to read the term “traveled” entirely out of 

§ 82.19(2)(a). Second, the Town fails to point to evidence rebutting the prima 

facie case by the Taggarts that the disputed segment has not been “entirely 

abandoned as a route of vehicular travel,” as that phrase is used in § 82.19(2)(b).

¶53 On the first point, to repeat, WIS. STAT. § 82.19(2)(a) provides that 

highways cease to be public four years from the date of being laid out “except the 

parts of the highway that have been opened, traveled, or worked.” (Emphasis 

added.) We repeatedly pressed counsel for the Town at oral argument for any 

evidence that could undermine the ability of the Taggarts to show that the laid out 

highway was “traveled” before 1902, and for that matter has been “traveled” 

routinely ever since. However, we failed to discern a coherent answer that we 

have not rejected above, separate from the second point that we now address. 

¶54 On the second point, the Town does not argue that the Taggarts 

cannot prove regular vehicular travel on the disputed segment. Instead, the Town

suggests that this could not count for purposes of WIS. STAT. § 82.19(2)(b), 

because “[t]he vast majority of vehicular travel ... has been permissive in nature 

and consistent with either fee interest in ... property or an easement, such as the 

deeded easement owned by the Taggarts.” Assuming without deciding that this 

assertion, if based on proper evidentiary submissions, could properly be used to 

rebut the Taggarts’ proof of regular vehicular travel, the Town fails to point to 
No. 2018AP1931

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specific evidence in the summary judgment record to support the assertion. That 

is, assuming that case law interpreting § 82.19(2)(b) could support the Town’s 

argument, the Town’s briefing does not contain a citation to any admissible 

evidence submitted to the circuit court to support the factual assertion on which 

the argument depends. 

CONCLUSION

¶55 For all these reasons, the Taggarts have forfeited the argument 

regarding the 332-foot portion, but have shown that there is no genuine issue of 

material fact regarding the disputed 1/4-mile segment. We modify the judgment 

to state that the town highway extends to the eastern edge of the Bree parcel, not 

to the eastern edge of the Taggart parcel, and affirm the judgment as modified. 

By the Court.—Judgment modified and, as modified, affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.