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MAY v. TRI-COUNTY TRAILS COMMISSION

No. 97-0588.

220 Wis.2d 729 (1998)

583 N.W.2d 878

Paul J. MAY, Lucille C. May, Hubert Byrne, Dennis G. Crist, Sherry L. Crist, James J. McDonald, Janet L. McDonald, Walter Paul Leu, Shirley M. Leu, Donald P. Wedig, Cyrilla J. Wedig, Gordon A. Smith, Kathleen C. Smith, Ronald L. Bader, Robert J. Crist, and others similarly situated, Plaintiffs-Respondents, v. TRI-COUNTY TRAILS COMMISSION, Defendant-Appellant.

Court of Appeals of Wisconsin.

Decided June 25, 1998.

Attorney(s) appearing for the Case

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert Horowitz of Stafford, Rosenbaum, Rieser & Hansen of Madison.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of John F. Jenswold of Jenswold, Studt & Hanson of Madison.

Brief of nonparty was filed by Waltraud A. Arts of Quarles & Brady of Madison, on behalf of Rails-to-Trails Conservancy.

Before Eich, C.J., Dykman, P.J., and Roggensack, J.

ROGGENSACK, J.

Tri-County Trails Commission appeals a declaratory judgment which concluded that § 192.33, STATS., requires Tri-County Trails to fence the recreational trial which it maintains on a railroad right-of-way adjacent to Plaintiff's properties. Because we conclude that the plain meaning of § 192.33 requires fencing only when one is "operating" a railroad, and because there is no evidence that Tri-County Trails is doing so, we reverse the order...

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