Section 192.33. Fences, cattle guards, crossings.

 

(1)  Subject to s. 190.09 , every corporation operating any railroad shall erect and maintain on both sides of its railroad, depot grounds excepted, sufficient fences with openings or gates or bars therein, and suitable and convenient farm crossings for the use of the occupants of the lands adjoining and shall maintain cattle guards at all highway crossings, outside of municipalities, and connect their fences therewith. This section shall not apply to that part of the railroad where sidetracks or switch tracks are used in cities of the 1st class.

(2)  All fences and cattle guards required under sub. (1) shall be made within one month from the time of commencing to operate the railroad right-of-way, so far as operated. Until the required fences and cattle guards are made, the railroad corporation owning or operating the right-of-way shall be liable for all damages done to domestic animals, or persons on the right-of-way, occasioned in any manner, in whole or in part, by the want of the required fences or cattle guards. After the required fences and cattle guards are constructed the railroad conformations liability shall not extend to damages occasioned in part by contributory negligence, nor to defects existing without negligence on the part of the corporation or its agents.

(3)  The sufficiency of fences shall be determined according to ch. 90 ; but nothing in this section shall render any fence insufficient which was a legal or sufficient fence when built.

(4)  No fence shall be required in places where ponds, lakes, watercourses, ditches, hills, embankments or other sufficient protection renders a fence unnecessary to prevent domestic animals from straying upon the right-of-way.

(5)  The maintenance of cattle guards may be omitted by the railroad company with the written consent of the office specifying the particular crossings.

1981 c. 347 s. 80 (1) ; 1993 a. 16 , 123 , 490 ; 1997 a. 254 ; 2005 a. 179 . A trespasser was not a member of the class protected by this section. Anderson v. Green Bay & Western Railroad, 99 Wis. 2d 514 , 299 N.W.2d 615 (Ct. App. 1980). "Farm crossings" are not limited to farms, but are all crossings used by occupants of land rather than highway crossings and entail limited private use for which safeguards are unnecessary. Sixmile Creek Associates Inc. v. Chicago & North Western Transportation Co. 178 Wis. 2d 237 , 504 N.W.2d 348 (Ct. App. 1993). There is no obligation to maintain a fence on a railroad right-of-way when it is being used as a recreational trail and not to operate a railroad. May v. Tri-County Trails Commission, 220 Wis. 2d 729 , 583 N.W.2d 878 (Ct. App. 1998), 97-0588 .