Anna Heise Revocable Trust v. Village of Pewaukee

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.
June 17, 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. 2024AP958 Cir. Ct. No. 2021CV305

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

ANNA HEISE REVOCABLE TRUST,

PLAINTIFF-APPELLANT,

V.

VILLAGE OF PEWAUKEE AND WISCONSIN DEPARTMENT OF
TRANSPORTATION,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL P. MAXWELL, Judge. Affirmed.

Before Neubauer, P.J., Gundrum, and Grogan, 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).
No. 2024AP958

¶1 PER CURIAM. Anna Heise Revocable Trust (Heise) appeals from
the circuit court’s order granting summary judgment to the Village of Pewaukee
(Village) and the Wisconsin Department of Transportation (DOT). Heise
contends that a taking of its private property occurred when an entrance onto a
Village highway was closed and replaced with a sidewalk and other improvements
as part of a railroad safety project. We affirm because the summary judgment
record supports the court’s decision holding that Heise failed to show that the
Village or the DOT physically occupied private property owned by Heise.

¶2 The area at issue is shown in a Waukesha County GIS mapping
system aerial photo that was reproduced, marked up, and referred to by both
parties in their briefs. The photo is in color and does not clarify the area in dispute
when printed in black and white. However, for informational purposes we have
included the web address for the Waukesha County GIS mapping system in which
a photo can be accessed.1

¶3 Heise contends that an entrance onto Oakton Avenue from Oakton
Court was taken. The Village and the DOT contest that contention.2 We refer to
the entrance as the Oakton connector.

1
This website, https://www.waukeshacounty.gov/parks-and-land-use/land-information-
system/interactive-map/ (last visited June 13, 2026), provides a visual aid to show the
configuration of the roads. (In order to access the photo, click on the “I Accept These Terms”
blue box, click the “I Accept These Terms” white box that pops up, click on the “Search” option,
click on the “Address” bubble, start to type “440 OAKTON AVE” until is appears in the drop-
down box and select it, and then click the “Submit” box.) We do not attribute accuracy to the
designation of Oakton Court as a private road. As Waukesha County makes clear, the
information is provided for informational purposes only. See id.
2
Based on the DOT’s description of the area, we provide the following information:

Oakton Avenue: Oakton Avenue runs west to east. Oakton Avenue is a Village
highway that turns into Capitol Drive after the railroad crossing.
(continued)

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¶4 Wisconsin received a grant from the Federal Railroad
Administration to fund safety improvement projects at various railroad crossings
in Waukesha County. The DOT prepared the designs for the Oakton Avenue
crossing. The DOT and the Village worked together to implement the project.3

¶5 The layout of the plan was designed to meet the requirements of the
federal grant, which required that driveways and road connections within 60 feet
of a railroad crossing be removed or relocated, if possible. The Oakton connector
was removed because it was within 60 feet of the railroad crossing and did not
meet the sealed corridor requirements.

¶6 Heise filed a complaint alleging that the actions of the Village and
the DOT in removing the highway connection onto Oakton Avenue constituted:
(1) a taking without just compensation under WIS. STAT. § 32.10 (2023-24)4

Oakton Court: Oakton Court is the road that Heise alleged is their private road
and is running northwest to southeast. Without the highway entrance, Oakton
Court still connects to Oakton Avenue and Clark Street.

Canadian Pacific Railway Tracks: The railway tracks run north of and parallel
to Oakton Court. The railroad crossing involves the railway tracks intersecting
with Oakton Avenue at a diagonal angle.

Oakton Connector: Oakton connector refers to the short section of Oakton Court
that was closed as part of the railroad crossing safety project at issue.
3
While the Village contends that its role was subservient and that the DOT would be
solely liable as a condemner if the property had been condemned, because we determine that the
disputed Oakton connector is a public highway, we need not address the relative specifics of their
roles. See Lake Delavan Prop. Co. v. City of Delavan, 2014 WI App 35, ¶14, 353 Wis. 2d 173,
844 N.W.2d 632 (court need not address other issues when one is dispositive).
4
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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(inverse condemnation),5 and (2) a taking without just compensation under the
Wisconsin and United States Constitutions.6 Heise sought an order requiring that
the Oakton connector be returned to its prior condition.

¶7 The circuit court denied summary judgment to Heise, and granted in
part and denied in part summary judgment to the Village and the DOT. The court
granted summary judgment as to Heise’s first cause of action alleging inverse
condemnation, and denied summary judgment as to Heise’s second cause of action
alleging an unconstitutional taking without just compensation under WIS. STAT.
§ 66.1035. The parties then stipulated to dismiss with prejudice Heise’s second
cause of action, and the court entered an order dismissing that claim.

¶8 Heise appeals.

¶9 On appeal, Heise contends that the circuit court erred in granting
summary judgment to the Village and the DOT. Heise continues to argue that the
closure of the Oakton connector constituted a taking of its private property.

¶10 Summary judgment is appropriate “when there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law.”
State Farm Mut. Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶12, 275 Wis. 2d 35,
683 N.W.2d 75. We review a grant of summary judgment de novo, benefitting

5
WISCONSIN STAT. § 32.10 is a procedural statute through which landowners may
pursue a claim that a taking has occurred where the condemner has not proceeded through
condemnation statutes.
6
Heise also alleged claims against the Village for trespass and nuisance but does not
pursue those claims on appeal. We deem these claims abandoned. See A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (issue not raised on
appeal is deemed abandoned).

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from the circuit court’s analysis. See id. We interpret statutes de novo. American
Fam. Mut. Ins. Co. v. Haas, 2017 WI App 83, ¶4, 379 Wis. 2d 336, 904 N.W.2d
830.

¶11 To succeed on an inverse condemnation claim, a property owner
must establish that there is a “‘taking’ of private property for public use,” be it
either a “regulatory taking” by an onerous regulation or an “actual physical
occupation” of the property. E-L Enters., Inc. v. Milwaukee Metro. Sewerage
Dist., 2010 WI 58, ¶¶21, 22, 37, 326 Wis. 2d 82, 785 N.W.2d 409. Whether
government conduct constitutes a taking is a question of law that we review de
novo. Id., ¶20.7 “A taking must occur before a viable claim for compensation can
arise.” Hoffer Props., LLC v. DOT, 2016 WI 5, ¶31, 366 Wis. 2d 372, 874
N.W.2d 533. Heise has the burden to prove that a taking of its property occurred
by clear and convincing evidence. See Baerwolf v. Wisconsin River Power Co.,
198 Wis. 112, 113, 223 N.W. 571 (1929); Town of Schoepke v. Rustick, 2006 WI
App 222, ¶14, 296 Wis. 2d 471, 723 N.W.2d 770.

¶12 While the circuit court granted summary judgment to the Village and
the DOT on several grounds, we affirm on the ground that Oakton Court,

7
The first scenario, in which the condemner has not physically taken property but has,
through its actions, deprived the owner of all or substantially all beneficial use of its property, is a
regulatory taking. Hoffer Props., LLC v. DOT, 2016 WI 5, ¶32, 366 Wis. 2d 372, 874 N.W.2d
533. Heise disavowed making any regulatory takings claim before the circuit court. Heise also
forfeited any temporary taking argument it now raises by failing to develop it in any meaningful
way in the circuit court, either in its pleadings or on summary judgment. “Arguments raised for
the first time on appeal are generally deemed forfeited[.]” State Farm Mut. Auto Ins. Co. v.
Hunt, 2014 WI App 115, ¶32, 358 Wis. 2d 379, 856 N.W.2d 633 (citation omitted). While Heise
contends that it did not forfeit this issue, it does not develop any meaningful argument, and thus,
we decline to address this issue. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992) (we need not consider arguments that are undeveloped or unsupported by legal
authority).

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No. 2024AP958

including the prior Oakton connector entrance onto Oakton Avenue, constitutes an
unrecorded public highway. Under WIS. STAT. § 82.31(2)(a), with exceptions not
at issue here, “any unrecorded highway that has been worked as a public highway
for 10 years or more is a public highway and is presumed to be 66 feet wide.”
“Worked” means that it has been “regularly maintain[ed]” as a highway, including
through “hauling gravel, grading, clearing or plowing, and any other
maintenance[.]” WIS. STAT. § 82.01(11).

¶13 It is undisputed that the Village constructed Oakton Court and the
Oakton connector and maintained it for more than ten years. The Village created
Oakton Court approximately 60 years ago and has since identified it as a public
road on its maps, including on a street map from 1979. Since 2007, the Village
has been publicly certifying Oakton Court as a public highway pursuant to the
Village’s obligations under WIS. STAT. § 86.302(1g) to certify its inventory of
roads open to and used for travel.

¶14 Since the 1960s, the Village has maintained Oakton Court as part of
its road system, including but not limited to, annually—snowplowing, pothole
repair, crack filling, signage as needed, and roadway improvements. Heise’s
representative conceded that the Village snowplowed the area and maintained the
small piece of grass that was there, and Heise never complained about that or
placed signage or fencing around the area to indicate that it was a private road.

¶15 Heise points to a 1991 quitclaim deed and other documents to
contend that it is the owner of the Oakton connector, but as the circuit court
pointed out, a quitclaim deed only passes the interest that the grantor could
lawfully convey. See WIS. STAT. § 706.10(4). Heise takes the land subject to the
operation of the same statutory provision—that the Oakton Court and connector is,

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No. 2024AP958

and was, a public highway under WIS. STAT. § 82.31(2). None of the documents
Heise provides disputes the facts showing that the Village has been treating this
area as a public highway for decades.

¶16 Heise argues that WIS. STAT. § 82.31(2) does not apply to the
Village because it only applies to towns. This argument was rejected in Affeldt v.
Green Lake County, 2011 WI 56, 335 Wis. 2d 104, 803 N.W.2d 56. In that case,
our supreme court explained that WIS. STAT. ch. 82 is the “result of the
legislature’s significant reorganization of WIS. STAT. chs. 80 and 81”—chapters
which “dated back to the 1800s and had been updated piecemeal, without regard to
internal organization.” Affeldt, 335 Wis. 2d 104, ¶35 n.4. However, it is “clear
that substantive changes were not intended unless specifically noted in the Act.”
Id.

¶17 The supreme court held that WIS. STAT. “§ 82.31, in particular, is a
recodification of WIS. STAT. § 80.01(1m)–(2) (2001–02). WIS. ACT 214, §§ 21–
23. Former [WIS. STAT.] chapter 80 was entitled generally ‘Laying Highways’
and was not limited in scope to town highways.” Affeldt, 335 Wis. 2d 104, ¶35
n.4. The reorganization act “does not indicate a substantive change between …
§ 82.31 and … § 80.01(1m)–(2) (2001-02).” Affeldt, 335 Wis. 2d 104, ¶35 n.4.;
see also Village of Brown Deer v. Balisterri, 2013 WI App 137, ¶1, 351 Wis. 2d
665, 841 N.W.2d 59 (applying § 82.31(2) to streets worked by a village). We are
bound by the supreme court’s conclusion that § 82.31 is not limited to towns.

¶18 Lastly, Heise argues that even if WIS. STAT. § 82.31(2) applies, such
that the Oakton Court and Oakton connector are public highways, the Village only
obtained an easement for highway purposes when it replaced the highway entrance
with a sidewalk. Heise points to International Paper Co. v. City of Fond du Lac,

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No. 2024AP958

50 Wis. 2d 529, 532–33, 184 N.W.2d 834 (1971) for its contention that when a
city or village holds a highway easement for the benefit of the public, if the road is
vacated, the land will revert to the landowner. We reject this argument.

¶19 Even if the Village held an easement, Oakton Court remains a public
highway—contrary to Heise’s contention, it has not been vacated. Likewise, the
Oakton connector has not been vacated. The sidewalk extension is a “highway.”
A “highway” within WIS. STAT. § 82.31(2) includes all public ways, “includ[ing]
roads, streets, bridges, sidewalks, driveway aprons and shoulders of the highway.”
Village of Brown Deer, 351 Wis. 2d 665, ¶14 (quoting Ellerman v. City of
Manitowoc, 2003 WI App 216, ¶7, 267 Wis. 2d 480, 671 N.W.2d 366).

¶20 Heise does not address that the continued use of the connector with
the sidewalk extension is a highway, and it could not make any argument that the
project was not for the purpose of improving safety at the railroad crossing for the
benefit of the public.8 Thus, Heise’s reliance on International Paper Co., 50
Wis. 2d at 532–33 is inapt. Likewise, Heise’s contention that WIS. STAT.
§ 66.1003(2) applies because the Oakton connector has been discontinued as a
public highway, and title to the unrecorded highway lands would revert to the
respective owners under WIS. STAT. § 66.1005 is equally unavailing, because
Oakton Court and the connector have not been discontinued.

8
We need not detail the ample undisputed evidence in the record showing that the safety
improvements benefit the public.

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¶21 For these reasons, we conclude that the circuit court did not err in
granting summary judgment to the Village and the DOT, dismissing Heise’s
taking claim.9

By the Court.—Order affirmed.

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

9
While our determination that the property at issue is a public highway is dispositive, we
do note that the supreme court, in Sojenhomer LLC v. Village of Egg Harbor, 2024 WI 25, ¶26,
412 Wis. 2d 244, 7 N.W.3d 455, directly rejected Heise’s additional argument that condemnation
was improper because the Oakton connector project extended a sidewalk. The supreme court
held that “the limitations on condemnation in [WIS. STAT. §] 32.015,” which prohibit
condemnation to establish or extend a “pedestrian way,” do not prohibit condemnation to build a
sidewalk, because the definition of “pedestrian way” “does not include sidewalks.” Id. (citing
WIS. STAT. § 346.02(8)(a)).

Beyond that, because we conclude that Heise failed to show that the Oakton connector is
its private property, we need not consider the parties’ additional arguments including, but not
limited to, the Village’s waiver, laches and estoppel arguments, and its contention that it was not
a condemning authority, and the DOT’s arguments that the Village had the power to condemn
under its police powers, and that the Oakton connector was within the Oakton Avenue right-of-
way and the right-of-way of the railroad. See Lake Delavan Prop. Co., 353 Wis. 2d 173, ¶14
(court need not address other issues when one is dispositive).

9