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COURT OF APPEALS
NOTICE
DECISION
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.
December 6, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                       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.
                                                                                                                                                        Cir. Ct. No.   2002CV296
Appeal No.                                                                             2005AP244
STATE OF WISCONSIN                                                                                                                                      IN COURT OF APPEALS
DISTRICT III
TOWN OF OCONTO,
PLAINTIFF-RESPONDENT,
V.
MICHAEL B. FROST AND KAREN SUE FROST,
DEFENDANTS-APPELLANTS.
APPEAL from a judgment of the circuit court for Oconto County:
LARRY L. JESKE, Judge.  Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1                                                                                     PER  CURIAM.    Michael  and  Karen  Frost  appeal  a  summary
judgment enjoining them from interfering with public access to West Frog Pond
Road based on the court’s conclusion that it is a public road because the Town
worked the road for more than ten years.   Although the Frosts purport to raise nine




No.   2005AP244
issues on appeal, the dispositive issues are whether the trial court appropriately
refused to consider some documents filed by the Frosts and whether the Town
established that there is no genuine issue of material fact so that the Town is
entitled to judgment as a matter of law.1   We affirm the summary judgment.
¶2                                                                                                    In support of its motion for summary judgment, the Town presented
affidavits establishing that it plowed snow and placed gravel on the road for more
than fifty years.   Under WIS. STAT. § 80.01(2),2 unrecorded highways that have
been “worked as public highways ten years or more are public highways….”   The
Frosts responded with affidavits establishing their ownership of the land on which
the  highway  easement  rests.    Approximately  three  hours  before  the  motion
hearing, they also attempted to present letters regarding the property.   The trial
court refused to consider the late submissions and granted the Town’s motion for
summary judgment.
¶3                                                                                                    Much of the Frosts’ brief is devoted to proving their ownership of
the  property.    They  argue  that  the  Town  has  taken  their  property  without
compensation.    Their arguments ignore the effect of WIS. STAT.  § 80.01(2), a
statute of limitations for a land owner to commence an action for ejectment or
compensation.   See Tomlinson v. Wallace, 16 Wis. 224, 233 (1862).   Unless the
Frosts  brought  their  action  within  ten  years  of  the  date  the  Town  began
1  Two of the Frosts’ arguments do not merit individual attention.   Their claim that Judge
Jeske was not licensed to practice law based on their limited definition of “license” has no merit.
Their argument that the court lacked subject matter and personal jurisdiction because the Town
paid the filing fee and service charges with federal reserve notes rather than gold or silver is
frivolous.
2  All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise
noted.
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No.   2005AP244
continuously “working” the highway, issues regarding their ownership of the land
and compensation for the taking are irrelevant because the statute of limitations
expired on these claims.
¶4                                                                                     The Town’s affidavits established that the road had been worked
annually since 1954.   On summary judgment, proof by affidavit is allowed, and
the  Town  is  not  required  to  produce  any  other  evidence.    See  WIS.  STAT.
§ 802.08(3).    The  Frosts’  2002 photograph  showing the road overgrown with
vegetation is not sufficient to defeat summary judgment.   The ten-year statute of
limitations expired long before that photograph was taken and decades before the
Frosts purchased the property.   Because the Frosts presented no evidence that the
road was not worked for any ten-year period commencing in 1954, the Town’s
uncontradicted affidavits establish the factual basis for summary judgment.   See
id.
¶5                                                                                     The court properly refused to consider the Frosts’ late submissions.
They were  not filed  five  days  before  the  hearing as  required  by WIS.  STAT.
§ 802.08(2), were not served on opposing counsel and were not in the form of an
affidavit.   The letters did not constitute evidence that could defeat the Town’s
summary judgment motion.
By the Court.—Judgment affirmed.
                                                                                       This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                              (b)5.
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