A recent appellate court decision has determined that a downtown pedestrian railroad crossing does not qualify as public, impacting local oversight and regulatory authority for safety improvements at the site. The ruling addresses whether a pedestrian footpath, used by residents and workers for decades, remains under public control or is subject to private ownership rights that can restrict access.
The City of Middleton filed an appeal in Dane County against the Office of Commissioner of Railroads (OCR) after OCR concluded that the Aurora Street pedestrian railroad crossing was private. The case, Appeal No. 2024AP2222, centers on whether the city retained sufficient rights to keep the crossing open to the public after selling adjacent land to private developers in the 1980s.
According to court documents, for many years both vehicles and pedestrians crossed railroad tracks at Aurora Street. In 1981, as part of a downtown redevelopment plan, Middleton closed portions of Aurora Street to vehicles but maintained a pedestrian path across the tracks. The city later sold land on either side of this crossing without attaching deed restrictions ensuring continued public access. While development plans referenced ongoing pedestrian access and utility easements, no separate or clearly defined pedestrian easement was recorded at that time.
Pedestrian use continued from the 1980s through 2021, with pathways providing access between parking lots and businesses across the tracks. In 2020, Wisconsin & Southern Railroad contacted OCR seeking clarification on whether this crossing remained public since adjacent land was privately owned and there appeared to be no clear easement guaranteeing public passage. OCR determined that when Middleton sold these properties without reserving explicit public rights, control shifted from public to private by operation of law.
The city was not notified about this determination until months later and responded by entering into an Access Easement Agreement with property owners in late 2020—later amended—to grant a ten-foot-wide permanent right-of-way for pedestrian passage across the tracks. This agreement included several restrictions: it barred access between 11:00 p.m. and 4:00 a.m., prohibited loitering or camping, allowed temporary closures for emergencies or restaurant seating (with alternate routes provided), and gave property owners unilateral authority to revoke access if they deemed public use a nuisance.
When OCR declined to revisit its decision without further hearing, Middleton filed two petitions for judicial review—one challenging procedural deficiencies due to lack of notice or hearing before reclassification; another contesting OCR’s substantive conclusion about the crossing’s status. These cases were consolidated in circuit court.
The circuit court initially sided with Middleton on procedural grounds, finding that OCR failed to follow required procedures under Wisconsin Statute §195.29(1) before changing the classification from public to private. Following this order, OCR held a fact-finding hearing where Middleton argued that its new easement agreement restored public status and cited historical zoning powers and redevelopment plans as evidence of intended ongoing public use.
After reviewing testimony and documentation—including references to federal regulations defining “public crossings”—OCR reaffirmed its position that despite long-term use by pedestrians and references in planning documents, actual legal control had shifted due to sale terms and subsequent agreements with private owners. Specifically, OCR found that because property owners could unilaterally revoke access under certain conditions outlined in the easement agreement with Middleton—even though labeled permanent—the arrangement lacked sufficient permanence or certainty required for designation as a “public way” under state law.
Middleton appealed again; however, appellate judges reviewed only agency decisions rather than lower court findings per standard procedure under Wisconsin law. The appellate opinion emphasized longstanding legal principles: for an area to be considered a “public highway” or “public way,” it must be open for travel without arbitrary restriction except those serving general benefit; it must also have some guaranteed term or permanence beyond mere permission revocable at will by private parties.
While acknowledging most restrictions in Middleton’s easement were reasonable (such as overnight closure mirroring park rules), judges concluded that allowing property owners sole discretion to terminate access rendered any claim of permanence invalid: “The Easement exists forever unless and until it does not,” wrote Judge Geenen for the panel.
Arguments based on zoning authority or alleged common-law dedication were also rejected because any such prior rights had been superseded by contractual terms agreed upon in recent years between city officials and current landowners.
As a result of this decision—which reverses earlier circuit court findings—the Aurora Street pedestrian railroad crossing is officially classified as private under Wisconsin statutes §§195.28(1) and 195.29(1). This means neither OCR nor municipal authorities may require upgrades or improvements related to safety at this location unless future agreements alter its legal status.
Attorneys’ names are not specified within available documentation; Circuit Court Judge Rhonda L. Lanford presided over earlier proceedings before reversal by appellate Judges White (Chief Judge), Colon (Presiding Judge), and Geenen (authoring judge). The case is identified as Appeal No. 2024AP2222.
