Chapter 88

88.90(4) (4) This section does not in any manner limit the scope of s. 88.87.

88.90 History History: 1991 a. 316; 1995 a. 315.

88.90 Annotation Before proceeding under sub. (3), a permit to remove materials from the bed of a navigable waterway under s. 30.20 is required. State v. Dwyer, 91 Wis. 2d 440, 283 N.W.2d 448 (Ct. App. 1979).

88.90 Annotation If a municipality charges and assesses costs authorized under this section, it may collect them in the same manner it collects special assessments under s. 66.0703. However, if the municipality charges and assesses those costs under the authority granted under this section, it need not comply with the requirements for special assessments contained in s. 66.0703. Neither the cost of viewing and removal under sub. (2) and the cost of service to the property under s. 66.0703 includes the cost of legal services incurred by the municipality in defending against challenges to the removal of materials from a ditch. State ex rel. Robinson v. Town of Bristol, 2003 WI App 97, 264 Wis. 2d 318, 667 N.W.2d 14, 02-1427.

88.91 88.91 Penalty for placing obstruction in ditches.

88.91(1) (1) Except as authorized by s. 88.93, no person shall place any kind of obstruction to the free flow of water, including any soil willfully deposited, in any drainage ditch, constructed under any drainage law of this state or lawfully constructed by any other person, without first obtaining the written consent of the drainage board or other person or authority in charge of such ditch.

88.91(2) (2) Any person violating this section may be fined not more than $100 and in addition is liable to the drainage district and to all persons whose ditches or lands are injured by such obstruction for all damages caused by the obstruction.

88.91 History History: 1975 c. 108.

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

88.92 88.92 Private drains not to be connected with district drains.

88.92(1) (1) Except as provided in s. 88.93 no person may connect any drain with a district drain, extend any drain that connects with a district drain or remove any spoil bank except under written plans and specifications approved by the drainage board and under any conditions imposed by the drainage board. The drainage board may issue an order directing the removal or modification of a drain connected or extended in violation of this section or issue an order directing the restoration of any spoil bank removed in violation of this section, including violations that occurred before May 13, 1994.

88.92(2) (2) 

88.92(2)(a) (a) In this subsection, “damages” includes the payments that the drainage district would have received during the time that the illegal connection or extension existed if the territory drained by the illegal connection or extension had been annexed to the district and an assessment for connection of the drain under s. 88.405 had been levied.

88.92(2)(b) (b) Any person who violates sub. (1) is liable to the district for all damages caused by the violation.

88.92(3) (3) The board shall preserve a copy of any plans and specifications approved under sub. (1).

88.92 History History: 1993 a. 456.

88.93 88.93 Right to take water from drainage ditch. Any owner of lands which are located in or which adjoin a drainage district and which border on a drainage ditch may take water from such ditch for use in flooding lands for cranberry culture or for irrigation, if such water is taken from the ditch in such a manner as not to injure the ditch and the taking thereof does not materially defeat the purposes of such drainage and, in case the water is to be used for irrigation, the permit required under s. 30.18 (2) (a) 2. has been obtained.

88.93 History History: 1985 a. 60.

88.94 88.94 Drains for individual landowners.

88.94(1) (1) Whenever any owner of agricultural lands desires to install drainage upon not more than 80 acres of such land, the owner may present a petition to the drainage board or, if there is no drainage board in the county, to the town supervisors of the town in which such land is located. Such petition shall set forth that:

88.94(1)(a) (a) The petitioner desires to install drainage upon agricultural lands owned by the petitioner;

88.94(1)(b) (b) Because of the contour of the land there is no suitable outlet on lands owned by the petitioner;

88.94(1)(c) (c) The proposed drain will promote the general welfare and health of the community;

88.94(1)(d) (d) It is impractical for the petitioner to drain the land without crossing the lands of others; and

88.94(1)(e) (e) It is desired that a drain be laid out to a suitable natural outlet, specifying the course of the drain and location of the proposed outlet and ownership of lands through which such proposed drain would be laid.

88.94(2) (2) After receiving the petition the drainage board or supervisors of the town shall promptly fix the time and place of a hearing on the petition and shall give notice of the hearing under s. 88.05 (2) (b) to the owners and occupants of all lands through or along which the drain may pass and to the persons specified in s. 88.05 (4) (a).

88.94(3) (3) At the time and place fixed for hearing, the drainage board or town supervisors shall meet and hear all interested persons wishing to appear for or against the petition. If the board or supervisors decide that the facts set out in the application are true, that a drain is necessary and that the benefits will exceed the cost of construction, they shall by order lay out a drain through which applicant’s lands may be drained as a public drain. Otherwise, they shall deny the application. An order laying out a drain shall specify the benefits and damages to lands of others through which such drain will be laid out and shall provide that the drain may not be constructed until the excess of damages over benefits, if any, has been paid to the landowners entitled thereto. The order also shall contain a description of the location of the drain and specifications therefor. Lands of others shall not be assessed for costs even though benefited by the drain.

88.94(4) (4) Within 10 days after the making of an order laying out a drain, the board or supervisors shall cause a copy of the order to be sent by registered mail to each owner through whose lands the drain will pass, but failure to mail the copy within 10 days does not render the order void. Such order is final unless appealed from to the circuit court within 30 days after the mailing of the copy thereof as provided in this subsection.

88.94(5) (5) Within 30 days after the time for appeal from the order has expired or after the order is confirmed on appeal, the board or supervisors shall cause a copy of the order to be recorded with the register of deeds of the county in which the lands are located. Thereupon, the drain becomes a public drain and the applicant may proceed with construction after having paid any excess of damages over benefits as specified in the order.

88.94(6) (6) This section does not authorize entry upon lands of another without the consent of the owner thereof during any time when there is any growing crop on such land, and no order issued under this section is effective to authorize such entry.

88.94(7) (7) This section does not apply to the installation or construction of a drain across the right-of-way of any railroad company, proceedings for which shall be as provided in s. 88.88.

88.94(8) (8) Expenses incurred by the drainage board under this section shall be paid by the petitioner.

88.94 History History: 1991 a. 316; 1993 a. 301, 456, 490.