|DOT trying to put square peg in round hole|
Letter to the Editor:
Oneida County Judge Patrick O’Melia has refused to dismiss a right of way case against the Department of Transportation (DOT). Meanwhile, we have been trying to fight a proposed snowmobile trail on the Highway 155 right of way in front of our home since 2011.The DOT granted a connection permit to the Vilas County Forestry Department. The DOT admits that there are a few minor corridors in the state that are still easements.
The Highway 155 right of way in front of our home is one of them. Our 1935 conveyance is “for highway purposes as long as so used.” DOT attorney, James Thiel, has said “a highway easement is a right of way over a strip of land, it is not a conveyance of the strip of land itself.”
A 2012 Wisconsin Supreme Court case, Berger vs. Town of New Denmark, found that with a highway easement, the underlying landowner holds fee title to the land. Judge O’Melia has said, “there is no section of the law or the rule that grants the department authority to simply issue permits without a property owner applicant — indeed, no such grant of authority seems to exist anywhere.”
The Vilas County Forestry Department is not the property owner, we are. Judge O’Melia also explained that the applicant must represent all parties involved. Vilas County Forestry Department does not represent us, the underlying property owners, it represents the Bo-Boen Snowmobile Club.
Besides the fact that they are trying to issue permits that are invalid, Wisconsin law clearly states that the DOT has the authority to approve snowmobile trails near or crossing highways, but not on highways. That is because Wisconsin law just as clearly states that snowmobile trails are excluded from highways, where a highway is defined as from boundary line to boundary line, which would include the Highway 155 right of way in front of our home.
How can a snowmobile trail be a “highway purpose,” as expressed in our conveyance when snowmobile trails are excluded from highways? Does the DOT think that it is above the law? Does the DOT think that property rights don’t matter?
Wisconsin law also states that in order to grant money to a county for a new snowmobile trail, the county must show either fee title to the land, or an easement or lease to the land. As the underlying landowner, I have given none of those.
Judge O’Melia also has stated that an agency (the DOT) can only exercise those powers expressly given or fairly implied in the statutes. In our case with this snowmobile trail, it is like the DOT is trying to put a square peg into a round hole. Not only is the DOT trying to use powers that are not expressly given, they are trying to violate statutes that expressly prohibit a snowmobile trail on the Highway 155 right of way.
Thomas E. Martens
|Tuesday, July 23, 2013 5:11 PM|