Chapter 88

88.01(8m) (8m) “Duck Creek Drainage District” has the meaning given in s. 30.01 (1nm).

88.01(9) (9) “Interested person” includes the state or any agency or subdivision thereof.

88.01(10) (10) “Judge” means the judge of the circuit court having jurisdiction of the proceedings of any drainage district, or the person sitting for the judge.

88.01(11) (11) “Land” or “lands” means any real property or interest therein, whether privately or publicly owned, including railroad rights-of-way, public highways, streets and alleys.

88.01(12) (12) “Mortgagee” means every person holding a mortgage or an assignment of a mortgage against lands within a drainage district or proposed drainage district whose name and post-office address is known to the board or whose mortgage or assignment is legally recorded and contains the post-office address of such mortgagee or assignee.

88.01 History History: 1977 c. 449 ss. 193 to 195, 497; 1983 a. 189; 1989 a. 31; 1993 a. 456, 490; 1999 a. 9; 2005 a. 253.

88.02 88.02 Outstanding securities and contracts not affected. Nothing in this chapter may render more difficult the collection of outstanding bonds or notes of any drainage organization or impair the obligation of any contract made by the organization or defeat any vested property right of the organization. No assessment of supplemental benefits nor any reassessment of benefits may disturb any previous assessment for the cost of construction while bonds or notes based on the construction are unpaid. Assessments shall remain liens upon the same lands and claims against the same corporations in the same amounts as when first assessed and recorded, until the bonds and notes based on the construction are paid or refunded.

88.02 History History: 1993 a. 456.

88.03 88.03 Drainage proceedings equitable in nature. All court proceedings under this chapter are equitable in nature. The court may in any proceeding bring in new parties as if they were original parties to the proceeding.

88.03 History History: 1977 c. 449; 1993 a. 456.

88.032 88.032 Amendment of documents.

88.032(1) (1) Any document or paper filed or entered in a proceeding before the court may at any time be amended, modified or corrected by the court as the facts warrant and upon such notice as the court orders.

88.032(2) (2) Any document or paper filed or entered in a proceeding before the drainage board may at any time be amended, modified or corrected by the drainage board as the facts warrant and upon such notice as the drainage board orders, except that no amendment, modification or correction of any assessment may be made after the issuance of money obligations based on the assessment if the result of the amendment, modification or correction would be to render the obligations more difficult to collect.

88.032 History History: 1993 a. 456 ss. 10, 11.

88.04 88.04 General rules relating to signatures on petitions.

88.04(1) (1) Any person entitled to sign a petition to the court or the drainage board under this chapter may sign through an agent. The authority of the agent shall be in writing and shall be filed with the drainage board but need not be acknowledged, sealed or witnessed.

88.04(2) (2) If any minor or individual adjudicated incompetent owns land in a drainage district or proposed drainage district or proposed annex to a drainage district, the guardian or next of kin of the minor or individual may sign petitions under this chapter for and on behalf of the minor or incompetent.

88.04 History History: 1991 a. 316; 1993 a. 456; 2005 a. 387.

88.05 88.05 General rules applicable to notices of hearings. If a hearing is required on a petition or report filed with the court or a petition filed with the drainage board under this chapter, the following rules apply unless some different procedure is expressly provided under this chapter:

88.05(1) (1) In the case of a court hearing:

88.05(1)(a) (a) The order fixing the time and place of the hearing shall be made by the court.

88.05(1)(b) (b) The notice of hearing is sufficient in form and substance if it recites all of the following:

88.05(1)(b)1. 1. That a particular petition or report has been filed.

88.05(1)(b)2. 2. The place of filing.

88.05(1)(b)3. 3. That it is subject to the inspection of all interested persons.

88.05(1)(b)4. 4. If a petition, the request for relief, or the substance of the request.

88.05(1)(b)5. 5. The time and place of the hearing.

88.05(1)(b)6. 6. That all objections to the jurisdiction of the court or to the sufficiency or legality of any petition or report shall be filed with the clerk of court in writing before the hearing and that the objections must be set forth clearly and in detail.

88.05(2) (2) In the case of a drainage board hearing:

88.05(2)(a) (a) The order fixing the time and place of the hearing shall be made by the drainage board.

88.05(2)(b) (b) The notice of hearing is sufficient in form and substance if it recites all of the following:

88.05(2)(b)1. 1. That a particular petition or report has been filed.

88.05(2)(b)2. 2. The place of filing.

88.05(2)(b)3. 3. That it is subject to the inspection of all interested persons.

88.05(2)(b)4. 4. If a petition, the request for relief, or the substance of the request.

88.05(2)(b)5. 5. The time and place of the hearing.

88.05(2)(b)6. 6. That all objections to the jurisdiction of the drainage board or to the sufficiency or legality of any petition, report or assessment or to the equity of any assessment or award of damages shall be filed with the drainage board in writing before the hearing and that the objections shall be set forth clearly and in detail.

88.05(3) (3) Notice of hearing shall be given by both mailing and publication, as follows:

88.05(3)(a) (a) The notice shall be mailed, at least 20 days before the date set for hearing, to those persons designated by the applicable section as entitled to receive notice. Ordinary mail may be used.

88.05(3)(b) (b) The notice shall be published as a class 3 notice, under ch. 985, in the affected area. The last insertion shall be not more than 20 days before the hearing.

88.05(4) (4) For the purpose of convenience of cross reference, persons commonly designated by specific sections of this chapter as entitled to receive notice are grouped as follows:

88.05(4)(a) (a) The chairperson of the county highway committee except in a county with a highway commissioner appointed under s. 83.01 (1) (c), the highway commissioner; the chairperson of the county land conservation committee in the county involved; the secretary of natural resources; the state drainage engineer; and, where a railroad company is involved, the person specified in sub. (6).

88.05(4)(b) (b) The persons enumerated in par. (a) and all owners of record whose lands may be affected.

88.05(4)(c) (c) The persons enumerated in par. (a) and all owners and mortgagees of lands affected whose names and post-office addresses are known or can with reasonable diligence be ascertained.

88.05(5) (5) In the case of a court hearing, in lieu of the service by mail specified in sub. (3), the notice of hearing may be served as provided in s. 801.11 for the service of a summons, at least 20 days before the time fixed for hearing. The service is sufficient to give the court complete jurisdiction over the parties and their lands without any other service.

88.05(6) (6) Railroad companies shall file with the department of financial institutions a document stating the name and post-office address of the person upon whom any notice required by this chapter may be served.

88.05(7) (7) In the case of a court hearing, the board shall file with the court proof of publication and service of the notice required by this section. The certificate or affidavit of the person who made the service, publication or mailing, or who knows the facts, is sufficient proof of service, publication or mailing.

88.05(8) (8) Failure to give notice as provided by this section or to announce any adjournment does not defeat the jurisdiction of either the court or the drainage board. If a failure to give legal notice to any person entitled to notice is discovered before an order is entered, the court or drainage board shall adjourn the hearing and direct the giving of proper notice. If a failure to give the notice is discovered after the order is entered, the court or drainage board may order the person not served with notice to show cause why that person should not be bound by the order already entered. In any case, notice may be waived by appearance or by a written waiver filed with the court or drainage board.

88.05 History History: Sup. Ct. Order, 67 Wis. 2d 585, 773 (1975); 1977 c. 449; 1981 c. 346 s. 38; 1985 a. 29; 1991 a. 316; 1993 a. 184, 456, 491; 1995 a. 27.

88.06 88.06 General procedure for obtaining consent or approval of the court in drainage proceedings. Whenever any action by the drainage board requires the consent or approval of the court and no other procedure is expressly provided, the procedure in this section applies:

88.06(1) (1) The board shall file with the clerk of court a petition asking the court’s consent to or approval of the particular action that the board proposes to take.

88.06(2) (2) Upon receipt of the petition the court shall fix the time and place of the hearing on the petition and shall order the board to give notice of the hearing as provided in s. 88.05 (1) (b) to the persons specified in s. 88.05 (4) (b).

88.06(3) (3) At the hearing any interested person may appear and testify either for or against the petition, subject to the requirements of s. 88.07 (1). If the court is satisfied that the board’s proposed action will be in the best interests of the districts involved, it shall grant the petition and approve the report, subject to the changes and conditions that it considers advisable. Otherwise, the court shall dismiss the petition.

88.06(4) (4) If a petition, which is basically the same in substance as a petition which has been decided or dismissed, is filed within 3 years after the dismissal, the court may refuse to order a hearing on the petition or to take any other action with respect to it.

88.06 History History: 1977 c. 135 s. 19; 1993 a. 456.

88.065 88.065 General procedure for drainage board hearings. If this chapter requires the drainage board to conduct a hearing before issuing an order and no other procedure is expressly provided, the following procedure applies:

88.065(1) (1) Upon receipt of the petition, the drainage board shall fix a time and place of hearing on the petition and shall give notice of the hearing as provided in s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (b).

88.065(2) (2) At the hearing, any interested person may appear and testify either for or against the petition or object to the report assessing costs. If the drainage board is satisfied that the proposed action will be in the best interests of the districts involved, the board shall grant the petition and issue the order, subject to the changes and conditions that the board considers advisable. Otherwise, the drainage board shall dismiss the petition.

88.065(3) (3) If a petition, which is basically the same in substance as a petition which has been decided or dismissed, is filed within 3 years after the dismissal, the drainage board may refuse to order a hearing on the petition or to take any other action with respect to the petition.

88.065(4) (4) Except as provided in sub. (5), all meetings of the drainage board are subject to subch. V of ch. 19.

88.065(5) (5) 

88.065(5)(a) (a) A gathering of drainage board members solely for one or more of the following purposes is not a meeting, as defined in s. 19.82 (2):

88.065(5)(a)1. 1. Observing, supervising or undertaking the construction, maintenance or improvement of drains.

88.065(5)(a)2. 2. Observing, supervising or undertaking the construction or maintenance of highways, railroads, bridges, utilities or other similar structures that may affect drains in any drainage district.

88.065(5)(a)3. 3. Collecting information by observation, survey or measurement or by discussions with an affected landowner at the site of a drainage ditch or a proposed drainage ditch.

88.065(5)(a)4. 4. Responding to natural disasters affecting a drain.

88.065(5)(b) (b) Any action taken by a drainage board under par. (a) shall be reported by the board’s secretary at the next meeting of the drainage board for inclusion in the board’s minutes.

88.065(5)(c) (c) A drainage board may not take any action at a gathering under par. (a) if the action will result in an increase in the assessment against any property in the drainage district.

88.065 History History: 1993 a. 456.

88.065 Note NOTE: 1993 Wis. Act 456, which created this section, contains extensive explanatory notes.

88.07 88.07 General rules; drainage proceedings in court.

88.07(1) (1) All objections made to the jurisdiction of the court or to the sufficiency or legality of any petition or report shall be in writing. The objections shall be set forth clearly and in detail and shall be filed with the clerk of court before the hearing.

88.07(2) (2) Several petitions may be filed in any proceeding. At any time before the sufficiency of the signers of the petitions has been adjudicated, additional signers may be added to the petitions with like effect as if they had signed the original petition.

88.07(3) (3) At any time before but not after the hearing has begun on any petition filed under this chapter, any petitioner may withdraw his or her name from the petition upon filing in court an undertaking with sufficient sureties to be approved by the court. The undertaking shall be conditioned that if the withdrawal of names reduces the number of signers below the number required by the section under which the petition is filed and thereby deprives the court of jurisdiction, the withdrawing petitioner will pay into court the costs of the drainage proceeding incurred prior to and including the making and entry of the order denying the relief requested in the petition and will pay into court the expenses incurred on the petition before his or her withdrawal.

88.07(4) (4) For satisfactory cause the court may adjourn any hearing for a period of not more than one month at any one adjournment. The adjournment of any meeting or hearing beyond the time, or failure to act within the time, provided in this chapter does not affect the jurisdiction of either the court or the drainage board, but a subsequent hearing shall be had and notice of the time and place thereof shall be given.

88.07(5) (5) Any hearing under this chapter may be adjourned by the court or presiding judge or, in his or her absence, by the clerk of court.

88.07 History History: 1977 c. 135, 449; 1993 a. 456.

88.08 88.08 Costs in drainage proceedings.

88.08(1) (1) In all proceedings under this chapter involving a petition to the court, the court shall by order tax the taxable costs of the proceeding. If costs are taxed against the drainage board, they shall not go against the board members personally but shall be paid out of the district funds or from funds received from the petitioners unless the court orders otherwise.

88.08(2) (2) If a petition for organization of a drainage district is dismissed before the appointment of a drainage board in the county, the order taxing costs shall be entered against the petitioners and in favor of any person who advanced moneys, rendered services or incurred other liabilities in prosecuting or contesting such proceedings, for the amount of such moneys, services and incurred liabilities.

88.08(3) (3) If proceedings are dismissed in any case where a drainage board has been appointed in the county, the order taxing costs shall be entered against the petitioners and in favor of the board for all costs, expenses and liabilities incurred by the board or by any other person in prosecuting or contesting such proceedings and for the benefit of those who have rendered services or advanced or loaned money in prosecuting or contesting such proceedings.

88.08(4) (4) Before any order taxing costs is entered, a petitioner or the board or a person contesting the proceedings shall file with the clerk of the court a duly verified itemized statement of all costs, attorney fees, and other liabilities incurred in prosecuting or contesting such proceedings, upon which an order shall be issued requiring the petitioners to show cause why an order taxing costs should not be entered against them for the amount of costs, attorneys’ fees and other liabilities. Notice of hearing of such order to show cause shall be given to the petitioners as provided in s. 88.05 (3). Such order need not contain an itemized statement of such account, but shall state where such account is filed.

88.08(5) (5) The petitioners shall, between themselves, contribute to the payment of such costs in proportion to the number of acres of land owned by them within the boundaries of the district or proposed district at the time of filing the petition.

88.08 History History: 1977 c. 449; 2005 a. 253.

88.09 88.09 Certiorari; drainage board decisions. Any person subject to an order or rule of the drainage board may, within 30 days after publication of the order or rule, commence an action seeking the remedy available by certiorari. The court may not stay proceedings involving the order or rule when an action is commenced, but may, on application, on notice to the board and for cause, grant a restraining order. The board is not required to return the original papers acted upon by it, but may return certified or sworn copies of the papers. If necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take evidence and report findings of fact and conclusions of law as the court directs, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify, the order or rule brought up for review.

88.09 History History: 1977 c. 187 s. 134; 1983 a. 219; 1993 a. 456.

88.10 88.10 Guardian ad litem; failure to appoint. Failure to appoint a guardian ad litem in a proceeding under this chapter is not jurisdictional, but when the failure is discovered a guardian ad litem shall be appointed and an order served upon the guardian ad litem to show cause why the minor or individual adjudicated incompetent should not be bound by all prior proceedings pertaining to the drainage district. On such a hearing the court shall enter such order or judgment as the facts warrant.

88.10 History History: 1991 a. 316; 1993 a. 456; 1999 a. 83; 2005 a. 387.

88.11 88.11 Assistance to drainage districts.