Michael Ostlie v. St. Croix County

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 7, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2199 Cir. Ct. No. 2024CV78

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

MICHAEL OSTLIE AND JOY OSTLIE,

PLAINTIFFS-APPELLANTS,

V.

ST. CROIX COUNTY,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for St. Croix County:
SCOTT R. NEEDHAM, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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. Michael and Joy Ostlie appeal from a circuit court
order granting St. Croix County’s motion to dismiss their lawsuit seeking a
No. 2024AP2199

declaration of interest in a portion of the Wildwood Trail. The circuit court
concluded that the Ostlies had failed to comply with the notice of claim statute,
WIS. STAT. § 893.80(1d) (2023-24).1 For the following reasons, we affirm.

BACKGROUND

¶2 This lawsuit concerns the rightful owner of the portion (hereinafter,
“the disputed portion”) of the Wildwood Trail (hereinafter, “the Trail”) running
through the Ostlies’ property.2 The Trail is a seven-mile recreational trail located
in St. Croix County that is open to the public year-round. A portion of the Trail
runs through the Ostlies’ property, which they have owned since 1996. It is
undisputed that the County purchased the property that the Trail is now located on
from a railroad company in 1970, and, since 1971, the County has signed,
groomed, fenced, maintained, and promoted the Trail, including the disputed
portion.

¶3 On May 18, 2022, Dennis Merkel, a community development parks
administrator for the County, sent a letter to all property owners “[n]ear” the Trail,
including the Ostlies. In the letter, Merkel described the County’s ownership and
maintenance history of the Trail and discussed the unauthorized use of ATVs on
the Trail. The letter further recounted that to prevent the continued unauthorized
use of ATVs on the Trail, County staff had begun blocking access points to the

1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.
2
Based upon the record, it appears that the disputed portion of the Trail is the entire
portion of the Trail that runs through the Ostlies’ property.

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No. 2024AP2199

Trail where the County’s “property line fence has been cut and peeled back to
make an access” to private property.

¶4 Thereafter, the Ostlies and the County exchanged numerous
correspondences regarding the ownership of the disputed portion of the Trail. The
Ostlies stated, through their attorney, in a December 2022 letter to the County that
they were “in receipt of the materials you sent on August 2, 2022[,] regarding the
County’s asserted ownership interest in the” disputed portion of the Trail. The
Ostlies stated that they were not disputing that the County “has been maintaining
the Trail for many decades” and that they were not seeking “to interrupt or
interfere with the public’s use” of the Trail. That said, the Ostlies objected “to any
change in their use of the Trail” that “they have enjoyed since the Trail’s
creation,” and they alleged that they lawfully owned the disputed portion of the
Trail.

¶5 According to the Ostlies, the Trail was conveyed to the railroad
company in 1883 by the owner of what is now their property on the condition that
the Trail be used only for railroad purposes. The Ostlies alleged that the
conveyance dictated that if the Trail were no longer used for railroad purposes, the
Trail would “revert to first parties their heirs or assigns.” (Formatting altered.)
The Ostlies further claimed that the 1970 conveyance to the County “only
transferred whatever rights the [r]ailroad had to” the Trail, subject to the 1883
conveyance. As successors-in-title to the original grantor, the Ostlies argued that
the disputed portion of the Trail was lawfully owned by them pursuant to the
conveyance because “railroad use was abandoned” on the Trail once the County
purchased it in 1970.

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¶6 The communications between the parties also concerned the
County’s confiscation of the Ostlies’ signs—which stated that the Ostlies owned
the disputed portion of the Trail—and trail cameras along the disputed portion of
the Trail. In a letter to the Ostlies dated August 14, 2023, the County stated that it
understood that the Ostlies did not agree “with the position that [the County] owns
the Wildwood Trail” but that “placing signs on the Wildwood Trail indicating that
citizens cannot walk on the trail and that County staff cannot access the trail is not
the proper way to address your concerns.” The County also stated that it was
willing to meet with the Ostlies to discuss their “concerns.”

¶7 One day later, the County sent another letter to the Ostlies
addressing the Ostlies’ placement of more signs on the disputed portion of the
Trail.3 The County stated that it would not return the signs and that the Ostlies
“may commence legal action against the County to seek return of the signs.” In
addition, the County stated, “If you believe that you own a portion of the
Wildwood Trail, the appropriate remedy is to commence legal action against the
County to address the issue.”

¶8 On September 7, 2023, the Ostlies filed a notice of claim pursuant to
WIS. STAT. § 893.80, informing the County that the Ostlies claimed ownership of
the disputed portion of the Trail and demanding a return of the signs and trail
cameras. After they did not receive a formal response from the County, the

3
The August letters were attached as exhibits to the Ostlies’ summons and complaint.

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Ostlies brought this declaration of interest action in February 2024.4 The Ostlies
alleged that they are the lawful owners of the disputed portion of the Trail based
on their analysis of the Trail’s history and their use of the disputed portion “for
walks, biking and other outdoor activities normally performed on a trail.”

¶9 The County moved to dismiss the lawsuit on the basis that the
Ostlies failed to comply with WIS. STAT. § 893.80. The County argued that the
Ostlies did not serve the County with a formal notice of injury “[w]ithin 120 days
after the happening of the event giving rise to the claim.” See § 893.80(1d)(a).
According to the County, the Ostlies “have known about” the County’s
decades-long “establishment and maintenance” of the Trail, including the disputed
portion, since they purchased their property in 1996. The County argued that the
Ostlies’ knowledge of the County’s ownership of the disputed portion is evidenced
by their December 2022 letter. Thus, the County asserted that the happening of
the event giving rise to the injury occurred either in 1971 or 1996.

¶10 Likewise, the County asserted that the Ostlies had failed to satisfy
WIS. STAT. § 893.80 because the Ostlies could not prove that the County had
actual notice of the Ostlies’ declaration of interest claim and because the County
was prejudiced by the delay or failure to give the requisite formal notice of injury.

4
The Ostlies additionally alleged conversion and civil trespass claims against the
County, claiming that the County unlawfully entered the disputed portion of the Trail and
confiscated the signs and trail cameras. The circuit court ultimately granted the County’s motion
to dismiss the Ostlies’ claims for conversion and trespass, concluding that the claims were
precluded by governmental immunity under WIS. STAT. § 893.80(4). The Ostlies do not
challenge this ruling on appeal, and we will not consider these claims further. See A.O. Smith
Corp. v. Allstate Ins., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised
in the trial court, but not raised on appeal, is deemed abandoned.”).

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No. 2024AP2199

See § 893.80(1d)(a). In addition, the County argued that the Ostlies had failed to
properly serve the County pursuant to § 893.80(1d)(a).

¶11 In response, the Ostlies argued that the 120-day deadline under the
formal notice requirement in WIS. STAT. § 893.80(1d)(a) “does not commence
until the parties actually dispute something” and that because “there was no
dispute as to ownership” of the disputed portion of the Trail “until recently, the
event giving rise certainly did not occur” in 1971. The Ostlies claimed that the
happening of the event giving rise to the claim occurred when the County
“actually took [the Ostlies’] trail cameras and signage.” In the alternative, the
Ostlies argued that the County had actual notice of their claim given the
communications between the County and the Ostlies prior to September 2023 and
that any delay did not prejudice the County.

¶12 The circuit court granted the County’s motion to dismiss in a written
decision. The court concluded that the Ostlies’ September 2023 formal notice was
untimely under WIS. STAT. § 893.80 because the County had unquestionably
maintained and exerted control over the disputed portion of the Trail since 1971,
making the Ostlies’ “claim over [50] years late.” Moreover, the court rejected the
Ostlies’ assertion that the event giving rise to the dispute did not occur until 2023
when the County “actually took [their] trail cameras and signage.” The court
declared that the Ostlies’ argument was directly contradicted by their December
2022 letter, in which they stated they did not dispute that the County had been
maintaining the Trail “for many decades.”

¶13 The circuit court similarly rejected the Ostlies’ argument that the
County had actual notice of their declaration of interest claim and that any delay in
providing notice did not prejudice the County. The court determined that the

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No. 2024AP2199

County had, at most, “mere knowledge” of the circumstances that may have later
given rise to the Ostlies’ claim, which is insufficient to constitute actual notice.
Likewise, the court concluded that “[p]rejudice can almost certainly be found in
the over five decades delay in notice during which [the County] has budgeted,
expended resources, and coordinated public services for the maintenance of the
Trail.” Lastly, the court concluded that the Ostlies failed to properly serve the
County pursuant to WIS. STAT. § 893.80(1d)(a).

¶14 The Ostlies now appeal.

DISCUSSION

¶15 “A motion to dismiss for failure to state a claim tests the legal
sufficiency of the complaint.”5 Data Key Partners v. Permira Advisers LLC,

5
In deciding the County’s motion to dismiss, the circuit court considered the pleadings,
the Merkel letter, and the Ostlies’ December 2022 letter to the County. The Ostlies had requested
that the court either disregard the letters in reaching its decision or convert the County’s motion to
dismiss into a motion for summary judgment and permit the Ostlies a reasonable opportunity to
present all material made pertinent under WIS. STAT. § 802.08. The court determined that it
could consider the letters under the incorporation-by-reference doctrine without converting the
motion into one for summary judgment. Under that doctrine, the court concluded that the Ostlies
failed to dispute that the letters were referenced in their complaint; that the information contained
in the letters is central to the timeliness of the Ostlies’ lawsuit; and that the Ostlies failed to
challenge the authenticity of the letters. See Soderlund v. Zibolski, 2016 WI App 6, ¶37, 366
Wis. 2d 579, 874 N.W.2d 561 (2015).

The Ostlies, for the first time in this lawsuit, contend in their reply brief that the Merkel
letter is “entirely hearsay” and cannot be relied upon in assessing the merits of the County’s
motion to dismiss. (Formatting altered.) To the extent the Ostlies challenge the court’s
application of the incorporation-by-reference doctrine by claiming that the Merkel letter is
hearsay, we conclude that they have forfeited this argument by not raising it in the circuit court.
See Tatera v. FMC Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810
(“Arguments raised for the first time on appeal are generally deemed forfeited.”). Similarly, we
will not address the Ostlies’ hearsay argument on the merits because they raised it for the first
time in their reply brief. See A.O. Smith Corp., 222 Wis. 2d at 492 (“It is inherently unfair for an
appellant to withhold an argument from its main brief and argue it in its reply brief because such
conduct would prevent any response from the opposing party.”).

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No. 2024AP2199

2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693 (citation omitted). On review
of a motion to dismiss, an appellate court accepts as true all factual allegations in a
complaint. Id., ¶18. “However, legal conclusions asserted in a complaint are not
accepted, and legal conclusions are insufficient to withstand a motion to dismiss.”
Id. We independently review a circuit court’s decision to dismiss a complaint for
failure to state a claim, while benefiting from the court’s analysis. Id., ¶17.

¶16 Plaintiffs filing suit against certain government entities and their
employees must comply with the notice of claim statute, WIS. STAT. § 893.80(1d).
Yacht Club at Sister Bay Condo. Ass’n v. Village of Sister Bay, 2019 WI 4,
¶¶19-20, 385 Wis. 2d 158, 922 N.W.2d 95. The notice of claim statute has two
notice requirements: notice of injury under § 893.80(1d)(a), and notice of claim
under § 893.80(1d)(b). Yacht Club, 385 Wis. 2d 158, ¶20. Here, the Ostlies’
failure to comply with the notice of injury requirement is dispositive of the
§ 893.80(1d) issue.

¶17 The notice of injury requirement may be satisfied in one of two
ways. First, a plaintiff may provide “formal notice of injury” to the defendant,
which requires serving the defendant with “written notice of the circumstances of
the claim” “[w]ithin 120 days after the happening of the event giving rise to the
claim.” Clark v. League of Wis. Muns. Mut. Ins., 2021 WI App 21, ¶13, 397
Wis. 2d 220, 959 N.W.2d 648 (quoting WIS. STAT. § 893.80(1d)(a)).

¶18 Second, the notice of injury requirement may be satisfied under the
“savings clause” in WIS. STAT. § 893.80(1d)(a). See Clark, 397 Wis. 2d 220, ¶14
(citation omitted). The savings clause “allows for substantial compliance,
excusing the plaintiff’s failure to provide formal notice where: (1) the defendant
‘had actual notice of the claim,’ and (2) the plaintiff ‘shows to the satisfaction of

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No. 2024AP2199

the court that the delay or failure to give the requisite [formal] notice has not been
prejudicial.’” Id. (alteration in original; quoting § 893.80(1d)(a)). Actual notice
must be “‘of the claim,’ rather than of the mere ‘circumstances’ that may later give
rise to a claim.” Id. (quoting § 893.80(1d)(a)). However, “actual notice is not
limited to a particular timeframe and may occur outside the 120 days following the
injury-causing event.” Id.

¶19 “The plaintiff has the burden of proving the giving of notice or
actual notice and the nonexistence of prejudice.” Elkhorn Area Sch. Dist. v. East
Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 5, 327 N.W.2d 206 (Ct. App. 1982).
Whether a plaintiff has satisfied the notice of injury requirement, “either through
formal notice or substantial compliance, is ultimately a question of law.” Clark,
397 Wis. 2d 220, ¶16.

I. Formal notice of injury

¶20 The Ostlies assert that the circuit court erred by concluding that they
failed to provide a timely formal notice of injury. According to the Ostlies, their
September 2023 formal notice was timely because the event giving rise to their
claim occurred when the Ostlies’ “legal assertion that they owned the Disputed
Area contradicted” the County’s claimed ownership of the disputed portion “in
recent years.” (Formatting altered.) They further allege that the event giving rise
to their claim occurred when “the County actually took the Ostlies’ trail cameras
and signage.” (Formatting altered.) The Ostlies argue that until the County
confiscated their personal property, they had no “reason to believe the Disputed

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Area was not legally theirs … since no one ever told them to stop maintaining the
Disputed Area.”6 (Formatting altered.)

¶21 Conversely, the County claims that the happening of the event
giving rise to the Ostlies’ declaration of interest claim occurred in 1971 when the
County began asserting ownership, maintenance, and control over the Trail. In
support of this argument, the County asserts that it is undisputed that the County
has been continuously maintaining the Trail, including the disputed portion, since
1971 and that the Ostlies failed to “make any claim that they were previously
somehow unable to ‘discover’ the County’s recorded deed or the County’s actions
that were ongoing during the Ostlies’ ownership” of their property.

¶22 We conclude that the happening of the event giving rise to the
Ostlies’ declaration of interest claim would have occurred when they purchased
their property in 1996. At that point, the County “claim[ed] a conflicting interest”
over the disputed portion of the Trail, see WIS. STAT. § 841.01(1), and the Ostlies
either knew of this claimed interest or with reasonable diligence should have
discovered the claimed interest.

¶23 The Ostlies conceded in their December 2022 letter that they were
“in receipt of the materials you sent on August 2, 2022[,] regarding the County’s
asserted ownership interest in the” disputed portion of the Trail, that the County

6
The Ostlies also argue that the circuit court erred by concluding that their
September 2023 formal notice was “over [50] years late” because the Ostlies did not own their
property until 1996. Because we decide this case on other grounds, we need not address whether
the 120-day deadline under WIS. STAT. § 893.80(1d)(a) could have started prior to the Ostlies’
purchase of their property in such a manner that would make their present claim untimely.
See Barrows v. American Fam. Ins., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508
(2013) (“An appellate court need not address every issue raised by the parties when one issue is
dispositive.”).

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No. 2024AP2199

“has been maintaining the Trail for many decades,” and that they were not seeking
“to interrupt or interfere with the public’s use” of the Trail. Moreover, in the
Merkel letter, Merkel stated that the County “has signed, groomed, fenced,
trimmed trees and brush, replaced culverts, installed surfacing, expanded, and
controlled usage, promoted, and maintained the trail” “[s]ince 1971.” The Ostlies
never disputed Merkel’s assertions regarding the County’s maintenance and
governance of the Trail in their corresponding communications. In other words,
the Ostlies acknowledged, both explicitly and implicitly, that the County has
openly claimed an interest in the Trail, including the disputed portion, through
maintenance and operation and recorded deed for over 50 years. Given this
concession, the Ostlies knew in 1996, or should have known then, that the County
claimed a conflicting interest over the disputed portion of the Trail.

¶24 The Ostlies argue that they did not concede in their December 2022
letter that the County had been maintaining the disputed portion of the Trail for
decades. Rather, they argue that they conceded in their December 2022 letter that
the County had maintained the “overall Trail” and that there “is a difference
between the overall Trail and the” disputed portion. (Formatting altered.) We
reject this argument. By its plain language, the December 2022 letter clearly
demonstrates that the Ostlies had knowledge of the County’s claimed interest in
the disputed portion of the Trail since they purchased their property in 1996. The
December 2022 letter refers to the “Trail” as being the entire Wildwood Trail and
distinguishes the “Trail” from that “portion of the Wildwood Trail that runs
through [the Ostlies’] property.” As the County contends, the December 2022
letter does not state, for example, that the County had been maintaining the Trail
except for the disputed portion.

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No. 2024AP2199

¶25 The Ostlies further contend that “[t]here is no evidence in the record
that the County actually performed work on the Disputed Area since 1996,
whereas the Ostlies stated they most certainly have, treating it as part of their
[p]roperty.” Again, however, the Ostlies’ December 2022 letter states otherwise
wherein they concede that the County “has been maintaining the Trail for many
decades.”

¶26 We are likewise unconvinced by the Ostlies’ argument that the
happening of the event giving rise to their claim occurred when the County took
possession of their trail cameras and signage. As we have explained, the Ostlies
knew, or should have known, of the County’s claimed interest in the disputed
portion of the Trail in 1996.

¶27 Without citation to legal authority, the Ostlies argue that WIS. STAT.
§ 893.80(1d)(a) “encompasses all claims brought by the Ostlies,” not just their
declaration of interest claim. (Formatting altered.) Stated differently, the Ostlies
appear to contend that the relevant time period for the happening of the event
giving rise to their tort claims applies equally to their declaration of interest claim,
even if the happening of the event giving rise to their declaration of interest claim
occurred in 1996. Because the Ostlies do not support their argument with any
references to legal authority, we will not consider it further. See State v. Pettit,
171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported
by references to legal authority will not be considered.”).

¶28 In short, and based on the allegations in the complaint and the
contents of the letters, the event giving rise to the Ostlies’ declaration of interest
claim would have occurred in 1996 when the Ostlies purchased their property
because, at that time, the County was openly claiming a conflicting interest over

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No. 2024AP2199

the disputed portion of the Trail. The Ostlies have therefore failed to meet their
burden of proving the timeliness of their formal notice.7

II. Actual notice

¶29 The Ostlies further contend that the circuit court erred by concluding
that they failed to satisfy the savings clause standard because the County had
actual notice of their declaration of interest claim given the “constant contact” they
had with the County “for over a year concerning the Disputed Area and its
ownership position.” (Formatting altered.) In particular, the Ostlies claim that
their December 2022 letter “and subsequent numerous other
communications … certainly put the County on actual notice of the Ostlies’
ownership position in the Disputed Property.”

¶30 As the County argues, however, “notice of a claimant’s ‘position’ on
an issue is not the same as actual notice of a claim,” which is the requirement the
Ostlies had to meet to comply with the savings clause. See Clark, 397 Wis. 2d
220, ¶14 (stating that actual notice must be “‘of the claim,’ rather than of the mere
‘circumstances’ that may later give rise to a claim” (quoting WIS. STAT.
§ 893.80(1d)(a))). We conclude that the Ostlies failed to provide actual notice of
their declaration of interest claim.

¶31 Three cases cited and relied on by the parties guide our analysis.
First, in Clark, a city employee was injured while working in October 2015.

7
Our conclusion that the Ostlies failed to timely comply with the formal notice of injury
requirement would be the same even if, as the Ostlies argue, their December 2022 letter
constituted formal notice because, in any event, the 120-day deadline to file the notice would
have run by the time they sent the letter.

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No. 2024AP2199

See id., ¶3. On the date of the injury, the employee’s supervisor completed an
“injury form” that detailed the specifics of the employee’s injury and the events
surrounding it. Id., ¶4. Shortly thereafter, a risk management officer investigated
the employee’s injury by examining the location where the injury occurred and
interviewing individuals pertinent to the injury. Id., ¶6. The employee filed a
notice of claim form with the city in April 2018 and, afterward, a personal injury
lawsuit against the city. Id., ¶¶7-8.

¶32 On appeal, we concluded that the city did not have actual notice of
the employee’s personal injury claim by virtue of the injury form or the risk
management officer’s investigation. Id., ¶21. We stated that “actual notice must
apprise the defendant of the injured party’s claim” and that the “early
communications—focused as they were solely on the cause of [the employee’s]
injury—did not meet the actual notice requirement.”8 Id.

8
Despite concluding that the city did not have actual notice of the employee’s personal
injury claim by virtue of the injury form or the risk management officer’s investigation, we
determined that the city undoubtedly had actual notice of the employee’s personal injury claim
when, in April 2018, it received the employee’s notice of claim form because that form “apprised
the City of both [the employee’s] injury and her claim for reimbursement for medical expenses.”
Clark v. League of Wis. Muns. Mut. Ins., 2021 WI App 21, ¶22, 397 Wis. 2d 220, 959 N.W.2d
648.

The Ostlies claim that even if their December 2022 letter did not provide actual notice of
their claim to the County, Clark dictates that their September 2023 formal, albeit untimely, notice
provided the County actual notice of their declaration of interest claim. The County responds by
arguing that the September 2023 notice could not have provided actual notice because it was
improperly served. We need not reach either of these arguments, however, because the Ostlies
did not claim before the circuit court that the September 2023 formal notice, if untimely,
nevertheless provided actual notice. See Schonscheck v. Paccar, Inc., 2003 WI App 79, ¶11,
261 Wis. 2d 769, 661 N.W.2d 476 (“A fundamental appellate precept is that we ‘will
not … blindside trial courts with reversals based on theories which did not originate in their
forum.’” (citation omitted)).

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No. 2024AP2199

¶33 Second, in Olsen v. Spooner Township, 133 Wis. 2d 371, 373, 395
N.W.2d 808 (Ct. App. 1986), a property owner filed a lawsuit against a township
three years after the township “alter[ed]” parts of the owner’s property while
improving a road. On appeal, we concluded that the property owner had failed to
prove that the township had actual notice because “although governmental
officials knew of the construction project” and that it would entail altering some of
the property owner’s property, “they had no actual notice of [the property
owner’s] claim until [he] filed his inverse condemnation action three years after
the improvements’ completion.” Id. at 377-78. This conclusion was true despite
the fact that the property owner conversed “with someone at the county highway
department about the removal of trees and fences.” Id. at 378. We stated,
“Although governmental officials may have been able to hypothesize from their
knowledge of the project that [the property owner] might have a claim for
damages, we cannot impute such knowledge from the instant facts.” Id.

¶34 Third, in Ecker Brothers v. Calumet County, 2009 WI App 112, ¶2,
321 Wis. 2d 51, 772 N.W.2d 240, farmers sought a grant to build additional wind
turbines on their property. The grant required an acknowledgement letter from
Calumet County stating that the farmers did not need a permit to build the wind
turbines. Id. The farmers “repeatedly requested” that the county provide an
acknowledgement, but, in response, the county passed a moratorium and
ordinance on further wind turbines. Id., ¶¶2, 9. Under the new ordinance, the
farmers “had to apply for a permit and their proposed wind turbines had to meet
the ordinance’s restrictions.” Id., ¶2.

¶35 Afterward, the farmers sent multiple letters to the county explaining
that they thought the ordinance was unlawful under WIS. STAT. § 66.0401
(2007-08) and that the ordinance’s restrictions would make wind projects

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No. 2024AP2199

impossible. Ecker Bros., 321 Wis. 2d 51, ¶8. “At that point, the [farmers] had
already installed a test turbine, completed percolation tests, and requested
permission to dig test holes.” Id. The farmers then filed a declaratory judgment
action claiming that the county had exceeded its statutory authority by restricting
the wind turbines. Id., ¶2. On appeal, this court concluded that the county had
actual notice of the farmers’ declaratory judgment action, given the farmers’
repeated requests to the county for an acknowledgment letter, the farmers’
additional letters to the county identifying the specific statute that they believed
the county had violated, and the farmers’ request for permission to dig test holes.
Id., ¶8.

¶36 Like the plaintiffs’ discussions held with governmental officials
before filing claims in Clark and Olsen, the Ostlies’ December 2022 letter to the
County regarding their position with respect to the disputed portion of the Trail
did not provide the County with actual notice of their declaration of interest claim.
As the County argues, the December 2022 letter “contains no indication that the
Ostlies were intending or even contemplating a lawsuit against the County,” much
less asserting a declaration of interest claim over the disputed portion of the Trail.
Rather, the letter simply stated the circumstances of the Ostlies’ claim to
ownership of the disputed portion of the Trail and asked the County if it was
interested in further discussions that “would clean up” any perceived issues as to
ownership and maintenance of the Trail.

¶37 Stated differently, the December 2022 letter gives no indication that
the Ostlies intended to file a declaration of interest claim against the County,
which falls short of the actual notice requirement. The fact that the County did not
have actual notice of the Ostlies’ intent to file a declaration of interest claim is

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No. 2024AP2199

further demonstrated by the August 14, 2023 letter to the Ostlies. In that letter, the
County invited the Ostlies to meet with the County “to discuss your concerns.”

¶38 Moreover, the Ostlies’ December 2022 letter to the County differs
from the communications in Ecker Brothers. While the Ostlies provided the
County with their historical and legal analysis supporting their belief that they
owned the disputed portion of the Trail, the County continued to maintain the
disputed portion even after the Ostlies initiated communication regarding
ownership. Significantly, the Ostlies’ December 2022 letter conceded that the
County “has been maintaining the Trail for many decades” and that the Ostlies
were not seeking “to interrupt or interfere with the public’s use” of the Trail.
Although the Ostlies’ December 2022 letter and other communications with the
County may have permitted the County to “hypothesize” that the Ostlies might file
a challenge regarding the ownership of the disputed portion of the Trail in court,
“we cannot impute such knowledge from the instant facts,” particularly given the
Ostlies’ statements in the December 2022 letter that they were not seeking to
interrupt or interfere with the public’s use of the Trail and that they were interested
in negotiating an agreement. See Olsen, 133 Wis. 2d at 378.

¶39 In sum, we conclude that the Ostlies failed to comply with the
formal notice of injury requirement in WIS. STAT. § 893.80(1d)(a) and that the
County did not have actual notice of the Ostlies’ claimed ownership over the
disputed portion of the Trail. Accordingly, we need not determine whether the
County was prejudiced by the Ostlies’ failure to comply with the notice of injury
requirement or whether the Ostlies complied with the notice of claim requirement.
See Barrows v. American Fam. Ins., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842
N.W.2d 508 (2013).

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No. 2024AP2199

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

18