Chapter 88

88.81(1)(bm) (bm) Except as provided in par. (bs), the owner of any land in a drainage district may file with the drainage board a petition requesting that the board conduct no further proceedings and incur on behalf of the district no further expense if the petition is filed at least 20 years after the latest assessment for costs against land in the drainage district.

88.81(1)(bs) (bs) A state agency, as defined in s. 16.61 (2) (d), may not petition for the suspension of operations of a drainage district.

88.81(1)(c) (c) Upon receipt of a petition, the drainage board shall fix a time and place of a hearing on the petition and shall cause notice of the hearing to be given under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (b).

88.81(2) (2) If after the hearing the drainage board finds that the petition is signed by the required number of owners, that notice of the hearing was properly given, and that the conditions of sub. (3) have been met, it shall issue an order directing that no more work be done in or expense incurred on behalf of the district. The order does not dissolve the district or in any way affect existing contracts. The district remains liable for all its debts existing at the time of issuance of the drainage board order suspending operations, and the board shall continue to levy such additional assessments for costs as are necessary to meet existing obligations.

88.81(3) (3) As a condition of issuing the order under sub. (2), the drainage board shall require the petitioners under this section to pay the expenses of the hearing under this section and all expenses, if any, incurred in connection with specific current projects whose completion would be affected by the drainage board order.

88.81(4) (4) An order suspending operations of a drainage district remains in effect until a like application upon like notice requesting that work be continued is heard and determined in favor of petitioners.

88.81(5) (5) Subsections (1) to (3) do not apply on or after July 14, 2015.

88.81 History History: 1977 c. 449; 1983 a. 483; 1993 a. 456; 2015 a. 55.

88.815 88.815 Dissolution of suspended drainage districts.

88.815(1) (1) If the operations of a drainage district are suspended on July 14, 2015, the department of agriculture, trade and consumer protection shall file a notice with the court having jurisdiction on the matter that the district will be administratively dissolved 36 months after the filing of the notice.

88.815(2) (2) Upon the filing of a dissolution notice under sub. (1), the court shall provide notice of the dissolution notice to the drainage board. If, at the time of filing of a dissolution notice, any position on the board is vacant, the court shall appoint a successor as provided in s. 88.17 before providing notice to the board.

88.815(3) (3) Upon receiving notice under sub. (2), the board shall provide notice of the dissolution notice under sub. (1) to the persons specified under s. 88.05 (4) (c).

88.815(4) (4) Upon request by any owner of land in the district, the board shall do all of the following:

88.815(4)(a) (a) Fix a time and place of a hearing on the dissolution notice.

88.815(4)(b) (b) Cause notice of the hearing to be given under s. 88.05 (1) (b) to the persons specified under s. 88.05 (4) (c), the court having jurisdiction on the matter, and the department of agriculture, trade and consumer protection.

88.815(5) (5) Subject to s. 88.82 (2) and after any hearing held under sub. (4), if the board determines that the public welfare will not be promoted by the reinstatement of district operations, the board shall seek approval of dissolution of the district under s. 88.06. If dissolution is approved, the board shall provide notice of the dissolution to the court having jurisdiction on the matter, the department of agriculture, trade and consumer protection, the zoning administrator of each city, village, town, or county in which the district is located, the county clerk of the county in which the drainage board having jurisdiction of the drainage district is located, and the county treasurer.

88.815(6) (6) If s. 88.82 (2) is not satisfied, court approval under s. 88.06 is not received, or the board determines that public welfare will be promoted by the reinstatement of district operations, the board shall order the district reinstated. If reinstatement is ordered, the board shall provide notice of the order to the court having jurisdiction on the matter, the department of agriculture, trade and consumer protection, the zoning administrator of each city, village, town, or county in which the district is located, and the county clerk of the county in which the drainage board having jurisdiction of the drainage district is located.

88.815(7) (7) If no hearing is scheduled under sub. (4), the district is dissolved 36 months after the filing of the notice under sub. (1). If the department of agriculture, trade and consumer protection receives a notice under sub. (4), but does not receive a notice of reinstatement under sub. (5), the district is dissolved 48 months after the filing of the notice under sub. (1).

88.815 History History: 2015 a. 55.

88.817 88.817 Leola drainage district.

88.817(1) (1) Notwithstanding s. 88.815, the Leola drainage district located in Adams, Portage, and Waushara counties is reinstated.

88.817(2) (2) The drainage board with jurisdiction of the Leola drainage district may not levy any assessment. This subsection does not apply if the owners of land representing, as calculated on December 2, 2017, 67 percent or more of the confirmed benefits in the district, excluding benefits received by land owned by this state, file with the court having jurisdiction on the matter a petition for the reinstatement of assessment authority of the district.

88.817 History History: 2017 a. 115.

88.82 88.82 Dissolution of drainage districts.

88.82(1) (1) 

88.82(1)(a) (a) The owners of land representing 90 percent or more of the confirmed benefits in a drainage district, excluding benefits received by land owned by this state, may file with a court having jurisdiction on this matter a petition for the dissolution of the district if the petition is signed by those owners and if the petition is filed within 2 years after the order organizing the district is issued under s. 88.34.

88.82(1)(b) (b) The owners of land representing 67 percent or more of the confirmed benefits in a drainage district, excluding benefits received by land owned by this state, may file with a court having jurisdiction on this matter a petition for the dissolution of the district if the petition is signed by those owners and if the petition is filed at least 2 years after the order organizing the district is issued under s. 88.34.

88.82(1)(bm) (bm) Except as provided in par. (bs), the owner of any land in a drainage district may file with the court a petition for the dissolution of the district if the petition is filed at least 20 years after the latest assessment for costs against land in the drainage district.

88.82(1)(bs) (bs) A state agency, as defined in s. 16.61 (2) (d), may not petition for the dissolution of a drainage district.

88.82(1)(c) (c) In any county in which all land has been incorporated in cities or villages, the county board of supervisors is authorized to file the petition.

88.82(1)(d) (d) Upon the filing of a petition for dissolution under this section, the court shall fix the time and place of a hearing on the petition and shall cause notice of the hearing to be given under s. 88.05 (1) (b) to the persons specified under s. 88.05 (4) (b).

88.82(2) (2) No district shall be dissolved until all its debts have been paid unless:

88.82(2)(a) (a) Funds to pay such debts, including any interest thereon, have been deposited with the county treasurer; or

88.82(2)(b) (b) The lands of the district have been assessed to the full amount of the confirmed assessed benefits and such assessments either have been paid in full or tax certificates have been issued for the lands under s. 74.57.

88.82(3) (3) If the court is satisfied upon the hearing that the conditions stated in sub. (2) have been met, that the petition is signed by the required number of owners, and that the public welfare will be promoted by dissolution of the district, it shall enter an order dissolving the drainage district. If the court enters an order dissolving the drainage district, it shall order dissolution of the entire drainage district and may not order dissolution of part of the district.

88.82(4) (4) If the county treasurer has on hand any funds belonging to such dissolved district, the treasurer shall forthwith make distribution thereof among the several landowners in the district in proportion to the last confirmed assessment of benefits in the district. If there is any doubt as to the ownership of such lands, the owners claiming the right to participate in such funds shall make satisfactory proof of ownership to the court.

88.82(5) (5) If the county treasurer has funds on hand belonging to a drainage district which has been inactive for 6 or more years, he or she shall publish in the county, as a class 3 notice, under ch. 985, a notice of intent to file with the court having jurisdiction thereof a petition for dissolution of the drainage district, except that such notice is not required if funds on hand are less than $100. Ninety days after the last publication provided for in this subsection, the county treasurer shall file such petition together with objections, if any, and if dissolution is ordered, such funds held by the county treasurer shall revert and pass to the county for the benefit of the county. If the funds on hand are less than $100, such funds shall automatically revert and pass to the county general fund.

88.82(6) (6) Any drains which have been constructed by a drainage district dissolved under this section or under prior law shall remain common waterways for the use of all landowners in the dissolved district. Any such landowner may make repairs thereto at the landowner’s own expense. Any person who in any manner obstructs or injures any such drain is liable for all damages caused to any person thereby and in addition may be fined not more than $100.

88.82(7) (7) In the alternative in any county in which all land has been incorporated in cities or villages if a drainage board is abolished or if a drainage district passes out of existence, any funds being held by the county treasurer shall revert and pass to the county for the benefit of the county.

88.82 History History: 1975 c. 324, 421; 1983 a. 483; 1987 a. 378; 1991 a. 32, 316; 1993 a. 456.

88.82 Cross-reference Cross-reference: See also ch. NR 301, Wis. adm. code.

88.82 Annotation Although the “public welfare” concept escapes precise definition and necessarily involves consideration of numerous factors, it does not, in the context of this chapter, permit reference to any benefit imaginable. With no formal charge or authority, the claimed willingness of other entities to assume drainage duties has little bearing on whether elimination of the district will promote the public welfare. A district’s popularity is not an appropriate measure of whether dissolution promotes the public welfare. A circuit court’s desire to end discord cannot supply the basis for its public welfare finding. Town of Stiles v. Stiles/Lena Drainage District, 2010 WI App 87, 327 Wis. 2d 491, 787 N.W.2d 876, 09-0556.

88.83 88.83 Transfer of district to municipal jurisdiction.

88.83(1c) (1c) In this section, “municipality” means a city, village, or town.

88.83(1g) (1g) The owners of a majority of the land proposed to be transferred in a drainage district located entirely or partially within the corporate limits of a municipality may petition the drainage board having jurisdiction of the district to transfer jurisdiction of the part of the district proposed to be transferred that is located within the municipality to the municipality.

88.83(2) (2) Upon receiving a petition under this section the drainage board shall fix the time and place of the hearing on the petition and shall cause notice of the hearing to be given under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (b).

88.83(2m) (2m) If the proposed transfer of jurisdiction is of less than the entire district, jurisdiction of the part of the drainage district may not be transferred to a municipality unless the municipality to which jurisdiction will be transferred and the district have entered into an agreement that includes all of the following:

88.83(2m)(a) (a) The municipality and district agree that the goal of the agreement is to outline the duties and responsibilities of the respective parties to maintain the drain system as provided in the plans and specification for the drain system approved by the department of agriculture, trade and consumer protection.

88.83(2m)(b) (b) The agreement specifies any monetary obligations of the municipality or district under the agreement and the manner by which any monetary obligation under the agreement will be calculated.

88.83(2m)(c) (c) The municipality agrees to ensure access to, and maintenance of, any corridor established under s. 88.74 (1) that is located on land transferred under this section consistent with the requirements of s. 88.74.

88.83(2m)(d) (d) The municipality agrees, upon order by the drainage district from which jurisdiction was transferred, to maintain and repair any part of a former district drain located in land transferred under this section.

88.83(2m)(e) (e) That if the municipality fails to complete work ordered under par. (d), the district may complete the work and assess costs on the confirmed benefits to property located in the municipality, as follows:

88.83(2m)(e)1. 1. The district shall provide notice to the municipality that, based upon an inspection by the board, maintenance of a drain on land transferred under this section is necessary.

88.83(2m)(e)2. 2. If the municipality does not within 30 days of receiving the notice under subd. 1. enter into an agreement with the district to perform the maintenance or does not perform the ordered maintenance within 12 months of receiving the notice under subd. 1., the district may file a declaratory judgment action in the court having jurisdiction over the district. The only issues in an action under this subdivision shall be compliance with this paragraph and whether the lands proposed to be assessed are benefited by the drain.

88.83(2m)(e)3. 3.

88.83(2m)(e)3.a. a. If the court determines that the district has complied with this paragraph and that the lands proposed to be assessed are benefited by the drain, the district may complete the work and assess costs to the municipality.

88.83(2m)(e)3.b. b. If the court determines that the district has not complied with this paragraph or that the lands proposed to be assessed are not benefited by the work, the district may complete the work, but may not assess costs to the municipality.

88.83(3) (3) If the drainage board finds upon the hearing that the petition is signed by the required number of owners and that the conditions under sub. (2m) have been satisfied, it may issue an order transferring jurisdiction of the district or part of the district to the municipality. If the order transfers jurisdiction of the entire district and the governing body of the municipality approves the transfer, the drainage district shall cease to exist as a district under this chapter and shall automatically come under the jurisdiction of the governing body of the municipality in which the district is located. If the order transfers jurisdiction of only a part of the district and the governing body of the municipality approves the transfer, the section transferred shall automatically come under the jurisdiction of the governing body of the municipality in which the district is located.

88.83(4) (4) As an alternative, proceedings covered by this section may be initiated by a resolution of the governing body of a municipality. The resolution shall state that the municipality is willing to accept the drain or part of the drain, and that the public interest requires that the municipality take over the operation of the drain or part of the drain. The resolution shall be published as a class 1 notice under ch. 985. The municipality may petition the drainage board having jurisdiction of the drain to issue an order transferring jurisdiction of the district or part of the district to the municipality. The drainage board may not hold a hearing on the petition until 30 days after the date of publication of the notice. A copy of the petition and resolution shall be served on the county clerk of the county in which the drain is located and the board having jurisdiction of the drain. If the drainage board finds upon the hearing that the conditions under sub. (2m) have been met, the drainage board may issue an order transferring jurisdiction of the drain or part of the drain to the municipality. If the order transfers jurisdiction of the entire district, the drainage district shall cease to exist as a district under this chapter and shall automatically come under the jurisdiction of the governing body of the municipality in which the district is located. If the order transfers jurisdiction of only a part of the district, the section transferred shall automatically come under the jurisdiction of the governing body of the municipality in which the district is located.

88.83(5) (5) Upon entry of an order transferring jurisdiction of an entire district to a municipality and approval of the transfer by the municipality, the county treasurer and district shall pay to the treasurer of the municipality all moneys in the county treasurer’s or district’s hands which belong to the drainage district. Upon entry of an order transferring jurisdiction of a part of a district to a municipality and approval of the transfer by the municipality, the county treasurer and district shall pay to the treasurer of the municipality a proportional share of the moneys in the county treasurer’s or district’s hands which belong to the drainage district based upon assessed benefits transferred less a proportional share of outstanding indebtedness.

88.83 History History: 1979 c. 110 s. 60 (11); 1991 a. 316; 1993 a. 456; 2017 a. 115.

subch. VIII of ch. 88 SUBCHAPTER VIII

RIGHTS OF DRAINAGE; PRIVATE DRAINS; MISCELLANEOUS PROVISIONS

88.87 88.87 Road grades not to obstruct natural drainage, landowners not to obstruct highway drainage; remedies.

88.87(1) (1) It is recognized that the construction of highways and railroad grades must inevitably result in some interruption of and changes in the preexisting natural flow of surface waters and that changes in the direction or volume of flow of surface waters are frequently caused by the erection of buildings, dikes and other facilities on privately owned lands adjacent to highways and railroad grades. The legislature finds that it is necessary to control and regulate the construction and drainage of all highways and railroad grades so as to protect property owners from damage to lands caused by unreasonable diversion or retention of surface waters due to a highway or railroad grade construction and to impose correlative duties upon owners and users of land for the purpose of protecting highways and railroad grades from flooding or water damage.

88.87(2) (2) 

88.87(2)(a) (a) Whenever any county, town, city, village, railroad company or the department of transportation has heretofore constructed and now maintains or hereafter constructs and maintains any highway or railroad grade in or across any marsh, lowland, natural depression, natural watercourse, natural or man-made channel or drainage course, it shall not impede the general flow of surface water or stream water in any unreasonable manner so as to cause either an unnecessary accumulation of waters flooding or water-soaking uplands or an unreasonable accumulation and discharge of surface waters flooding or water-soaking lowlands. All such highways and railroad grades shall be constructed with adequate ditches, culverts, and other facilities as may be feasible, consonant with sound engineering practices, to the end of maintaining as far as practicable the original flow lines of drainage. This paragraph does not apply to highways or railroad grades used to hold and retain water for cranberry or conservation management purposes.

88.87(2)(b) (b) Drainage rights and easements may be purchased or condemned by the public authority or railroad company having control of the highway or railroad grade to aid in the prevention of damage to property owners which might otherwise occur as a result of failure to comply with par. (a).

88.87(2)(c) (c) If a city, village, town, county or railroad company or the department of transportation constructs and maintains a highway or railroad grade not in accordance with par. (a), any property owner damaged by the highway or railroad grade may, within 3 years after the alleged damage occurred, file a claim with the appropriate governmental agency or railroad company. The claim shall consist of a sworn statement of the alleged faulty construction and a description, sufficient to determine the location of the lands, of the lands alleged to have been damaged by flooding or water-soaking. Within 90 days after the filing of the claim, the governmental agency or railroad company shall either correct the cause of the water damage, acquire rights to use the land for drainage or overflow purposes, or deny the claim. If the agency or company denies the claim or fails to take any action within 90 days after the filing of the claim, the property owner may bring an action in inverse condemnation under ch. 32 or sue for such other relief, other than damages, as may be just and equitable.

88.87(2)(d) (d) Failure to give the requisite notice by filing a claim under par. (c) does not bar action on the claim if the city, village, town, county, railroad company or department of transportation had actual notice of the claim within 3 years after the alleged damage occurred and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant city, village, town, county, railroad company or department of transportation.

88.87(3) (3) 

88.87(3)(a) (a) It is the duty of every owner or user of land who constructs any building, structure or dike or otherwise obstructs the flow of stream water through any watercourse or natural or man-made channel or obstructs the flow of surface water through any natural or man-made channel, natural depression or natural draw through which surface waters naturally flow:

88.87(3)(a)1. 1. To provide and at all times maintain a sufficient drainage system to protect a downstream highway or railroad grade from water damage or flooding caused by such obstruction, by directing the flow of surface waters into existing highway or railroad drainage systems; and

88.87(3)(a)2. 2. To protect an upstream highway or railroad grade from water damage or flooding caused by such obstruction, by permitting the flow of such water away from the highway or railroad grade substantially as freely as if the obstruction had not been created.

88.87(3)(b) (b) Whoever fails or neglects to comply with a duty imposed by par. (a) is liable for all damages to the highway or railroad grade caused by such failure or neglect. The authority in charge of maintenance of the highway or the railroad company which constructed or maintains the railroad grade may bring an action to recover such damages. An action under this paragraph shall be commenced within the time provided by s. 893.59 or be barred.

88.87(3)(c) (c) The authorities in charge of maintenance of highways or railroad companies maintaining railroad grades and their agents and employees may enter any lands for the purpose of removing an obstruction in a watercourse or highway drainage ditch which is in violation of par. (a) and which is flooding or causing damage to a highway under its jurisdiction.

88.87(4) (4) If a railway company fails to comply with sub. (2), any person aggrieved thereby may file a complaint with the office of the commissioner of railroads setting forth the facts. The office shall investigate and determine the matter in controversy in accordance with ch. 195, and any order it makes in such proceeding has the same effect as an order in any other proceeding properly brought under ch. 195.

88.87 History History: 1977 c. 29 s. 1654 (8) (c), (9) (f); 1979 c. 323; 1981 c. 347; 1993 a. 16, 123, 456.

88.87 Annotation Sub. (2) (c) requirements are mandatory conditions precedent to bringing an action under this section. Van v. Town of Manitowoc Rapids, 150 Wis. 2d 929, 442 N.W.2d 557 (Ct. App. 1989).

88.87 Annotation This statute preempts common law claims; the claims period under sub. (2) (c) begins to run when the damage is first discovered and is not extended if damage continues. Pruim v. Town of Ashford, 168 Wis. 2d 114, 483 N.W.2d 242 (Ct. App. 1992). But see Southport Commons, LLC v. DOT, 2021 WI 52, 397 Wis. 2d 362, 960 N.W.2d 17, 19-0130.

88.87 Annotation Despite a finding that a railroad was not responsible for increased water flow that resulted in flooding, an order to the railroad to install a drainage pipe was proper. Soo Line Railroad v. Office of Commissioner of Transportation, 170 Wis. 2d 543, 489 N.W.2d 672 (Ct. App. 1992).

88.87 Annotation Sub. (2) (a) imposes a duty on railroads to refrain from impeding water flow. The railroad commissioner may act prospectively under sub. (4) to prevent flooding. Sub. (2) (c) applies when there has been actual damage, but does not require actual damage for the commissioner to act under sub. (4). Chicago & North Western Transportation Co. v. Office of Commissioner of Railroads, 204 Wis. 2d 1, 553 N.W.2d 845 (Ct. App. 1996), 95-2509.

88.87 Annotation This section does not impose on a circuit court a positive duty to grant injunctive relief under specified conditions, but provides an alternative remedy to an action for damages under ch. 32. The common law preference for legal over equitable relief applies. As such, to obtain an injunction it must be shown that the injunction is necessary to prevent future harm to the property and there is no adequate legal remedy. Kohlbeck v. Reliance Construction Co., 2002 WI App 142, 256 Wis. 2d 235, 647 N.W.2d 277, 01-1404.

88.87 Annotation Parties who can state a claim against the Department of Transportation under both this section and s. 32.10 may choose to file suit in either Dane County or the county in which the property lies. Kohlbeck v. Reliance Construction Co., 2002 WI App 142, 256 Wis. 2d 235, 647 N.W.2d 277, 01-1404.

88.87 Annotation The state was not a proper party for claims against the Department of Transportation (DOT) as the two are distinct legal entities. Service on the state of a summons and complaint that named the state and not DOT as a party did not constitute service on DOT necessary to establish personal jurisdiction over DOT. Hoops Enterprises, III, LLC v. Super Western, Inc., 2013 WI App 7, 345 Wis. 2d 733, 827 N.W.2d 120, 12-0062.

88.87 Annotation “Occurred” in the context of sub. (2) (c) does not mean “discovered.” The notice of claim period in sub. (2) (c) begins to run when the damage happens or takes place. Southport Commons, LLC v. DOT, 2021 WI 52, 397 Wis. 2d 362, 960 N.W.2d 17, 19-0130.

88.87 Annotation Sub. (2) (c) provides the remedies for property owners for damages manifested by flooding allegedly caused by the construction or repair of a highway. The only claims that are permitted under sub. (2) (c) are those for inverse condemnation under ch. 32 and equitable claims for relief other than damages. Sub. (2) (d) merely confirms that the remedies listed in sub. (2) (c) are still available even if the property owner fails to strictly comply with the requirements of sub. (2) (c), provided that the governmental entity has actual notice of the claim and the owner can prove no prejudice. Ricciardi v. Town of Lake, 2024 WI App 3, 410 Wis. 2d 490, 2 N.W.3d 793, 22-1567.

88.87 Annotation Under sub. (2) (c), damage occurs when a governmental entity fails to construct or maintain a highway or railroad grade pursuant to sub. (2) (a), regardless of when any resultant water accumulation is discovered. If flooding does not occur or does not occur within three years of the governmental entity’s faulty maintenance or construction, the claim is barred. Ricciardi v. Town of Lake, 2024 WI App 3, 410 Wis. 2d 490, 2 N.W.3d 793, 22-1567.

88.87 Annotation This section, by its terms, is not limited to faults in the construction of a railroad grade. If negligent maintenance, by itself or in conjunction with shortcomings in construction, results in flooding, this section, and its limitations on the available remedies, applies to the claims of an injured property owner. Nothing in this section itself supports the notion that its scope is limited to conduct that gives rise to repeated flooding. Boyer v. BNSF Railway Co., 824 F.3d 694 (2016).