Clearing the Right of Way

Municipal Law Alert, May 2010

A common issue raised in municipalities involves trees and other vegetation in the right of way. Who is responsible? Can municipal employees trim? Do they need the owners’ consent? This article summarizes the law on clearing the right of way of vegetation, but does not cover snow or ice removal, or the repair or maintenance of highways and sidewalks.

Before discussing clearing the right of way, it may be useful to ask, just what is the “right of way”? Although there is no single statutory definition of right of way in Wisconsin, the term is widely used in the statutes and in case law. In general, it appears to mean any “way” that the public has a right to travel over. Thus, it means any kind of road and also includes alleys, sidewalks, and public parking lots. It also can include the area under and over the surface of the right of way, which is often used for utilities. It includes not just the actual portion of the “way” that is generally traveled upon, but encompasses all of the land controlled by the state or municipal authority which has responsibility for that right of way. Accordingly, it includes the shoulders of roads and any adjacent land on either side of the road out to the boundary of municipal control over that right of way. Municipal control over the right of way may even apply to privately owned land that happens to be a public right of way.

While there is no explicit mandate to mow the lawn or trim or remove trees and shrubs from the right of way, municipalities are under a general duty to keep the rights of way under their control safe. A municipality “shall remove, cut, or trim or consent to the removing, cutting, or trimming of any tree, shrub, or vegetation in order to provide safety to users of the highway.” Wis. Stat. § 66.1037(1). Towns are also specifically held “responsible for the destruction of all noxious weeds on the town highways.” Wis. Stat. § 66.0407.

Furthermore, a municipality may be responsible for trimming trees that are not in the right of way. In Physicians Plus Ins. Corp. v. Midwest Mut. Ins., Wisconsin’s Supreme Court held that the property owner, the county and the local town could all be held liable for failing to clear vegetation from the right of way. In this case a tree, which was not in the right of way, had branched out over the right of way and obscured a stop sign. On the other hand, in Estridge v. City of Eau Claire, the city was immune from damages when a bicyclist was injured by a shrub overhanging a sidewalk.

In Physicians, the court focused on the fact that a stop sign at an intersection was obscured and found a duty to keep the signs clear of obstruction. In Estridge, the court held that there was no specific liability arising from the general duty to keep the right of way safe, and it would be unreasonably expensive and probably impossible to expect a municipality to always keep all branches cleared from all rights of way. While these cases may seem to conflict, or at least leave a grey area, if a municipality has notice that overgrown vegetation is creating a potentially unsafe condition in a right of way, it should take action to clear the vegetation.

The Physicians case notwithstanding, there is fairly strong municipal immunity from liability for failing to clear vegetation and mow shoulders based on public policy. As the Wisconsin Supreme Court held, “To require [municipalities] to do battle with roadside vegetation under penalty of liability for common law negligence would be to place upon them a burden they should not be made to bear.” Walker v. Bignell. (See also Estate of Wagoner v. City of Milwaukee.) Immunity is not, however, a certainty in any given situation. Municipalities should consider available funds and prioritize areas of concern, especially when safety is a factor, when deciding what vegetation to clear from the rights of way under their control.

A municipality may cut trees and clear other vegetation to keep a highway safe, and a private citizen may have a duty to trim a tree or other vegetation on their private property if it interferes with a right of way. However, no one except the municipality may cut, trim or in any way harm trees, shrubs, or hedges within the right of way without permission of the municipality if the tree is on public land. If the tree is on private land, but within the right of way, the owner may also trim, cut and remove the tree. Under most circumstances, the owner may also mow the grass in the right of way abutting his or her property, but is not required to do so.

If a tree falls from private property onto a public right of way, the property owner has a duty to remove the tree. This does not, however, alleviate a municipality’s duty to remove the tree from the public right of way. When a municipality removes a tree, what may it do with the downed tree? If the tree is growing on municipally-owned land, the municipality owns the tree. However, if the right of way is on private land, the landowner owns the tree. No matter who actually owns the tree, landowners often assume they own the tree, and may feel very strongly about any damage done to “their” trees. While there is no question that a municipality has a responsibility to maintain the right of way for the safety of the public, when that involves removing trees it is always a good idea to give the adjacent landowner notice prior to trimming or removing trees.

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