88.77(5) (5) If the board finds the facts stated in sub. (4) (a) to (c) and (e) but finds that the cost of construction will exceed 75% of the benefits to be derived from the proposed work, the board nevertheless shall annex the territory to the drainage district if, within 10 days of the order being issued under sub. (4), the petitioners file with the board a bond with sufficient sureties to be approved by the board and conditioned for the payment of the excess or the petitioners deposit and leave with the board a sum of money that the board determines will cover the excess.
88.77(6) (6) Upon issuance of the order annexing the territory to the drainage district, the drainage board shall proceed as provided under ss. 88.35 and 88.36.
88.77 History History: 1993 a. 456; 2007 a. 121.
88.77 Note NOTE: 1993 Wis. Act 456, which substantially affects this section, contains extensive explanatory notes.
88.78 88.78 Annexation of benefited lands.
88.78(1) (1) Whenever any lands outside a drainage district are in fact receiving the benefits of any drain of such district but such fact was not evident or was inadvertently overlooked at the time of organization of the district, such benefited lands may be annexed under the procedure prescribed in this section.
88.78(2) (2) Any owner of land within the district may file with the board a petition to have the benefited lands annexed to the district and assessed benefits and assessed for costs as other lands in the district. The petition shall describe the benefited lands and how they are benefited. Upon the filing of the petition, the drainage district shall issue an order directing that the owners of the benefited lands be notified of the filing and the contents of the petition and requiring the owners to show cause at a fixed time and place, not less than 20 days after the petition is filed, why their lands should not be brought into the district and assessed.
88.78(3) (3) Any owner of lands sought to be annexed may object to the petition at the hearing thereon. If the drainage board is satisfied that any or all of the lands are receiving benefits from any district drain, the drainage board shall so find in writing and shall issue an order requiring that the benefited lands be made a part of the district.
88.78(4) (4) The board shall assess benefits and assess for costs and award damages to each tract of the annexed lands.
88.78 History History: 1993 a. 456.
88.79 88.79 Consolidation of drainage districts in process of organization.
88.79(1)(1) Two or more drainage districts petitioned for or in the process of organization may, upon order of the court, be consolidated to form a single drainage district. The order of consolidation may be issued only after a public hearing as specified in this section.
88.79(2) (2) The consolidation process may be initiated either by the court on its own motion, by recommendation of the board made to the court, or by petition signed by the owners of at least 10% of the lands in each of the districts sought to be consolidated. If such districts are under the jurisdiction of different courts, the proceeding shall be conducted by the court having jurisdiction of the larger area.
88.79(3) (3) The court shall fix a time and place of a hearing on the proposed consolidation and shall cause notice of the hearing to be given under s. 88.05 (1) (b) to the persons specified in s. 88.05 (4) (b). If the court after the hearing is of the opinion that the drainage districts would be benefited by the proposed consolidation, it shall so order, giving a name to the consolidated district.
88.79 History History: 1993 a. 456.
88.791 88.791 Consolidation of existing drainage districts.
88.791(1)(1) Two or more existing drainage districts may, upon an order issued by the drainage board, be consolidated to form a single drainage district. An order of consolidation may be issued only after a public hearing as specified in this section.
88.791(2) (2) The consolidation process may be initiated by a petition that is signed by the owners of at least 10% of the lands in each of the districts sought to be consolidated.
88.791(3) (3) The drainage board shall fix a time and place of a hearing on the proposed consolidation 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). If after the hearing the drainage board is of the opinion that the drainage districts would be benefited by the proposed consolidation, it shall so order, giving a name to the consolidated district.
88.791(4) (4) Upon entry of the order of consolidation, the records of the districts so consolidated shall be the records of the consolidated district.
88.791(5) (5) Assessments made against lands in the several districts so consolidated shall remain in full force and the lien thereof is not affected by such consolidation.
88.791(6) (6) After such consolidation, the benefits of the consolidated district may be reassessed to render them just and equitable as a basis for future assessments for costs, subject to s. 88.02.
88.791 History History: 1993 a. 456 ss. 100, 101.
88.791 Note NOTE: 1993 Wis. Act 456, which creates this section, contains extensive explanatory notes.
88.80 88.80 Withdrawal of lands from drainage district.
88.80(1)(1) Any person owning lands within a drainage district may, under an order issued by the drainage board, withdraw the lands from the district if:
88.80(1)(a) (a) All benefits assessed against such lands have been paid; and
88.80(1)(b) (b) The lands to be withdrawn will receive no benefit from the drainage district; and
88.80(1)(c) (c) The drainage district will not be materially injured by the withdrawal of such lands.
88.80(2) (2) The petition for the withdrawal shall be filed with the board. The board shall determine whether all benefits assessed against the land have been paid.
88.80(3) (3) When the petition has been filed, the drainage board 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 (2) (b) to the persons specified in s. 88.05 (4) (b). If the drainage board finds that the conditions of sub. (1) have been met, it shall issue an order detaching the lands from the district. The drainage board may require the petitioner to pay the expenses connected with the hearing.
88.80 History History: 1993 a. 456.
88.81 88.81 Proceedings to suspend operations of drainage district.
88.81(1)(1)
88.81(1)(a)(a) The owners of land representing 90% or more of the confirmed benefits in a drainage district, excluding benefits received by land owned by this state, 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 within 2 years after the order organizing the district is issued under s. 88.34.
88.81(1)(b) (b) The owners of land representing 67% or more of the confirmed benefits in a drainage district, excluding benefits received by land owned by this state, 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 2 years after the order organizing the district is issued under s. 88.34.
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 History History: 1977 c. 449; 1983 a. 483; 1993 a. 456.
88.82 88.82 Dissolution of drainage districts.
88.82(1) (1)
88.82(1)(a) (a) The owners of land representing 90% 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% 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 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 ch. 88, 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 city or village jurisdiction.
88.83(1)(1) The owners of a majority of the land in any drainage district located entirely within the corporate limits of a city or village may petition the drainage board having jurisdiction of the district to transfer jurisdiction thereof to the city or village.
88.83(1m) (1m) The owners of a majority of the land lying within the corporate limits of a city or village in any drainage district located partially within the corporate limits of a city or village may petition the drainage board having jurisdiction of the district to transfer jurisdiction of that part of the district located within the city or village to the city or village if the district and the city or village are in agreement regarding the terms of transfer.
88.83(1r) (1r) The owners of a majority of the land lying within the limits of a town in any drainage district located partially within the limits of the town may petition the drainage board having jurisdiction of the district to transfer jurisdiction of that part of the district located within the town to the town if the district and the town are in agreement regarding the terms of transfer. The provisions of subs. (3), (4) and (5) governing the transfer of a section of a drainage district to a city or village are applicable to a transfer under this subsection.
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(3) (3) If the drainage board finds upon the hearing that the petition is signed by the owners of a majority of the land in the district, or by a majority of the owners in that part of the district lying within the corporate limits of a city or village, it shall issue an order transferring jurisdiction of the district or part of the district to the city or village. 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 city or village 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 city or village in which the district is located. After a transfer, all proceedings with reference to the drainage district or part of the district shall be under the city or village drainage law.
88.83(4) (4) As an alternative, proceedings covered by this section may be initiated by a resolution of the governing body of a city or village. The resolution shall state that the city or village is willing to accept the drain or part of the drain and to administer it under the laws pertaining to the operation of drains by the city or village, and that the public interest requires that the city or village 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 city or village 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 city or village. No hearing may be held on the petition until 30 days have elapsed from the date of publication of the notice. A copy of the petition, together with a copy of the resolution, shall be served on the county clerk of the county in which the drain is located, and also upon the board having jurisdiction of the drain. After the hearing the drainage board may issue an order transferring jurisdiction of the drain or part of the drain to the city or village. If an order is issued that 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 city or village 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 city or village in which the district is located. After a transfer, all proceedings with reference to the drainage district or part of the district shall be under the city or village drainage law.
88.83(5) (5) Upon entry of the order transferring jurisdiction of such district to such city or village, the county treasurer shall pay to the city or village treasurer of such city or village all moneys in the county treasurer's hands which belong to such drainage district. Upon entry of an order transferring jurisdiction of a part of a district to the city or village in which it is located, the county treasurer shall pay to the city or village treasurer a proportional share of the moneys in the county treasurer'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.
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).
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Oct. 4, 2014. Published and certified under s. 35.18. Changes effective after Oct. 4, 2014 are designated by NOTES. (Published 10-4-14)