Pop. 600. That’s Prentice, Wisconsin — a village so small that when the village supervisor calls to tell you to come to the next board meeting as we need to talk about tearing down your awning, there’s no city department, no written procedure, no formal notice. Just a phone call. The steel beams holding up the awning go two and a half feet into the public right-of-way, and the village needs those two and a half feet to replace a water line. So the awning has to go.
The building owner can’t physically remove the awning himself. He can’t afford to hire someone. He went to the village board for help. The board said no.
Under Wisconsin law, the village almost certainly has the authority to demand removal. Statute § 86.04 gives the authority to order removal to whichever body maintains the road — the DOT for state trunk highways, the county highway committee for county trunk highways, and the city council, village board, or town board for local streets and highways. In Prentice, that’s the village board. But the same statute requires written notice and a chance to be heard , and that’s the part Prentice appears to have skipped.
What Wisconsin Statute § 86.04 Actually Says
Last updated: June 2026
Wisconsin § 86.04 governs what the state calls “encroachments” on public highways. In plain terms: if you build something that sticks into the public right-of-way , an awning, a sign, a support post, a staircase . WisDOT’s encroachment page lists dozens of examples including decks, porches, retaining walls, flagpoles, raised garden beds, wells, septic systems, and even roadside memorials , the municipality can order you to remove it. This isn’t obscure legal theory. Municipalities across Wisconsin invoke § 86.04 dozens of times a year to clear sidewalks, terraces, and rights-of-way before infrastructure projects.
The statute gives local governments the power to serve written notice on the property owner demanding removal. If the owner doesn’t comply within a set timeframe , typically 30 days, though municipalities can set their own deadline , the municipality can remove the structure and recover the cost from the property owner. Under § 86.02, willful obstruction of a highway can result in treble (triple) damages , but this applies to actual highway injury (obstructing, diverting water, dragging logs, or any other act that damages the road), not merely having a structure in the right-of-way.
But here’s the part that matters in Prentice: the statute requires written notice. Not a phone call. Not a verbal heads-up from the village supervisor at a board meeting. Written notice served to the property owner, with a specific compliance deadline. The official Form 86.04 for removal orders calls for service with the same specificity as a civil action, and Wisconsin courts have consistently required formal written service for encroachment orders.
The “Terrace” . That Strip of Land You Think Is Yours
In Wisconsin, the area between the curb (or edge of the road) and the sidewalk is called the terrace. You mow it. You shovel it. You might plant flowers on it. But you don’t own it , at least not in a way that lets you build on it.
Under § 86.04 and related municipal code provisions, the village controls the terrace. If your awning’s steel beams extend two feet past the sidewalk into the terrace, the village has legal authority to tell you to remove them. That’s the law. And under Wisconsin law, when no government records establish the width of a highway, the default presumption under § 86.01 is 4 rods (66 feet) for town highways, or 3 rods (49.5 feet) for older highways , which means the right-of-way can extend well past what most property owners realize.
Having the authority to do something and doing it properly are two different things. In villages like Prentice (pop. 568 as of the 2020 census), formal procedures sometimes give way to phone calls and board meeting votes. That’s how small towns operate , until someone pushes back.
What Happened in Prentice
Construction on water line replacements started about a week ago in Prentice. When crews reached a particular building, they found they needed to go roughly two to three feet past the sidewalk to access the water line. That two to three feet is occupied by an awning , a structure with steel beams anchored deep into the concrete.
The building owner received a phone call from the village supervisor. Not a letter. Not a formal notice. Not a document citing the relevant statute or explaining his rights. A phone call telling him the awning needs to come down.
The owner went to the village board to ask for help. He can’t physically remove the awning himself, and he can’t afford to hire a contractor. The board denied the request.
So now he’s in a position where the village is demanding he remove a structure from the public right-of-way , which it has the legal authority to do , but without following the law’s own requirements for notice, and without providing any accommodation for a resident who can’t do the work himself.
What the Law Actually Requires
Wisconsin even provides an official form for this. Form 86.04: “Order for the removal of obstruction in case of encroachment” requires a description of the encroachment, the land where it’s located, the name of the occupant, and a description “with such precision and certainty as will enable the party upon whom it is served to go upon the ground and fix the place and extent of the encroachment with accuracy.” A survey or plat should be attached showing the encroachment and the true right-of-way line.
Under § 86.04, before a municipality can force removal of an encroachment, it must:
- Serve written notice on the property owner specifying the encroachment and requiring its removal within a set timeframe
- Allow the owner a reasonable period to comply , this isn’t “tear it down by Thursday because we’re already digging”
- If the owner doesn’t comply, the municipality can remove the structure and recover the cost from the owner. Under § 86.04(2), the owner also forfeits $1 per day for every day the encroachment continues after the 30-day deadline passes.
But the statute also gives the property owner a critical right most people don’t know about. Under § 86.04(3), the owner can file a written denial of the encroachment within 30 days of being served. If they do, the municipality can’t just remove the structure , it has to file a court action to remove it. This means the property owner gets their day in court before anything can be torn down. If the owner doesn’t file a denial within 30 days, the municipality can proceed with removal and recover costs.
The Adverse Possession Defense
Here’s something most property owners don’t know: if that awning has been there for 20 years or more, you might have a legal defense against removal. In DOT v. Black Angus Steak House, Inc. (111 Wis. 2d 342, 1983), the Wisconsin Court of Appeals ruled that adverse possession is a valid defense against a § 86.04 encroachment action. The court held that the state and its subdivisions are not immune from adverse possession claims on highway rights-of-way under Wis. Stat. § 893.07.
Adverse possession means you’ve used that piece of the right-of-way openly, continuously, and without permission for at least 20 years. If the awning’s steel beams have been in that concrete footing since before 2006, the property owner may have a legitimate claim that the village can’t simply order them removed.
There’s another defense worth knowing about. In Town of Lyndon v. Oines (2003 WI App 184), the Court of Appeals ruled that municipalities can’t simply order removal of every structure within a setback area. Structures that existed before the relevant ordinance was enacted may be lawful nonconforming uses that can’t be ordered removed without compensation. The Oines case also makes a broader point: municipalities must prove their case. They can’t rubber-stamp removal orders. The scope of removal must be specific and supported by evidence, not a blanket order to clear everything within X feet of the road.
Wisconsin due process requirements under the 14th Amendment and state constitutional law add another layer: the property owner is entitled to notice and an opportunity to be heard before the government takes action that affects their property. This isn’t optional. It’s a constitutional requirement that applies even when the municipality has the statutory authority to act.
The Due Process Problem
A phone call doesn’t cut it. Wisconsin courts have consistently held that due process requires written notice that is:
- Served on the property owner (not just left at the property)
- Specific about what needs to be removed and why
- Clear about the deadline for compliance
- Informative about the owner’s right to contest the order
The board’s denial of the owner’s request for assistance, combined with the lack of proper notice, creates a situation where:
- The village is asserting its § 86.04 authority to demand removal
- It hasn’t followed the statute’s own notice requirements
- It hasn’t offered any accommodation for a resident who physically and financially cannot comply
- The owner had no meaningful opportunity to be heard before the demand was made
A village of 568 people has no full-time attorney on staff. The board members are neighbors and volunteers. The Wisconsin Court of Appeals confirmed in DOT v. Black Angus Steak House (1983) that adverse possession is a valid defense against § 86.04 actions, and in Town of Lyndon v. Oines (2003) that municipalities must prove their case and cannot issue blanket removal orders. The court also recognized that structures predating a relevant ordinance may be lawful nonconforming uses , they can’t simply be ordered removed without compensation. In Prentice, the owner may not have the resources to fight it , which is exactly what makes it newsworthy.
How Small Towns Actually Use § 86.04
In practice, § 86.04 gets invoked most often when:
- Infrastructure projects , water lines, sewer lines, road reconstruction , require access to the terrace that’s blocked by private structures
- Safety enforcement , awnings, signs, or awning supports that are deteriorating or obstructing sight lines
- Streetscaping or sidewalk replacement , when a village is upgrading sidewalks and existing encroachments conflict with the new design
The Town of Forest, which borders Price County, directly references § 86.04 on its website: “The procedures for this board process is here: 86.04 . Highway encroachments. As you can see, this is serious business.” The Town of Washington in Vilas County enacted an entire Right of Way Ordinance (Chapter 20) citing § 86.04 and § 86.022 as its authority. Brown County publishes a Right of Way Handbook that quotes the 30-day removal requirement verbatim. La Crosse County includes § 86.04 enforcement procedures in its Highway Department Policies and Procedures Manual.
Most small Wisconsin villages handle encroachments informally first. A village clerk calls the property owner, explains the situation, and works out a timeline. The formal written notice under § 86.04 is supposed to be the next step , the legal backstop when informal cooperation doesn’t work. But when a village skips straight to demanding removal without following the process, it creates legal exposure for the municipality and denies the property owner their statutory rights.
Special Assessments: Who Pays?
There’s another angle worth understanding. Under Wisconsin § 66.0621, municipalities can levy special assessments , charges against specific properties that benefit from public improvements. The special assessment process requires a public hearing and gives property owners the right to object. Under § 86.04, the village can also simply recover removal costs from the owner without going through the special assessment process. If the awning removal cost goes through the special assessment route, it would appear on the property tax bill.
The irony: the water line replacement benefits the entire village, but the cost of removing an awning that’s in the way could fall entirely on one property owner , the same person who never received proper notice that his structure was in the way of a public project he didn’t request.
What Should Happen Next
The Prentice building owner has a few options:
- Demand proper written notice . He’s entitled to it under § 86.04. Until he receives it, the village’s demand isn’t legally enforceable.
- File a written denial within 30 days . Under § 86.04(3), the owner can file a written denial of the encroachment. This forces the municipality to file a court action, giving the owner a full hearing before anything can be torn down.
- Request a hearing . Due process gives him the right to be heard before the village takes action on his property. A hearing would also create a public record of the board’s decision.
- Negotiate a timeline and cost-sharing . In many municipalities, infrastructure projects that require removal of private encroachments include some form of cost assistance, especially when the encroachment predated the project.
- Consult an attorney . Given the due process concerns and the potential cost of removal, this is a situation where legal advice could make a real difference.
Why This Matters Beyond Prentice
Prentice isn’t the only small Wisconsin village dealing with aging water infrastructure and encroaching private structures. According to the EPA, Wisconsin has over 1,200 small community water systems, many serving villages of fewer than 1,000 people. As water lines, sewer systems, and sidewalks reach the end of their useful life across rural Wisconsin, more property owners will find themselves in this exact position , told to move or remove something they’ve had for years, with little notice and less support.
The statute gives municipalities the power. The constitution gives property owners rights. What happens when a village exercises the power without respecting the rights is a story that writes itself. Right now, in a village of 568 people about 10 miles south of Phillips, a building owner is being told to tear down his awning , with a phone call, not the written notice the law requires, and with no help from the board that demanded it.
See also: our guide to free camping in Wisconsin and what makes Price County communities special
See also: our guide to every town in Price County
FAQ
What is Wisconsin Statute § 86.04?
It’s the state law that gives municipalities the authority to order property owners to remove structures that encroach on public rights-of-way, including the terrace (the area between the curb and the sidewalk). The village can remove the structure and charge the owner if they don’t comply, but it must serve written notice first.
What is a “terrace” in Wisconsin law?
The terrace is the area between the curb (or edge of the road) and the sidewalk. Even though the property owner maintains it , mowing, shoveling, planting , the municipality controls what can be built on it. Awnings, signs, support posts, and other structures that extend into this area are encroachments under § 86.04.
Does a village have to give written notice before requiring structure removal?
Yes. Under § 86.04, the municipality must serve written notice on the property owner specifying the encroachment and requiring removal within a set timeframe. A phone call or verbal notice at a board meeting does not satisfy the statute’s requirements.
Can a village charge a property owner for removing an encroachment?
Yes. If the property owner doesn’t remove the encroachment within the specified timeframe, the municipality can remove it and recover the cost from the owner. Under § 66.0621, a municipality may also use the special assessment process, which requires a public hearing and appears on the property tax bill.
What happens if the village doesn’t give proper notice?
If a municipality fails to give proper written notice as required by § 86.04, the removal order is void. The 30-day clock never started. If the village removes the structure anyway, the property owner can sue for trespass, conversion, and damages, including the cost of the structure and any consequential harm. The municipality has no legal authority to act until proper notice is served.
What due process rights does a property owner have?
Under both the U.S. and Wisconsin constitutions, property owners are entitled to notice and an opportunity to be heard before the government takes action that affects their property. This means written notice, a clear explanation of what needs to be done, and a chance to contest the order before removal occurs. The 30-day period under § 86.04 provides an opportunity to seek judicial review before removal occurs.