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(b) The lands to be withdrawn will receive no benefit from the drainage district; and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)(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.
88.82
88.82
Dissolution of drainage districts. 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.
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)(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)(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 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).
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. 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. 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 Company, Inc.
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 DOT under both ss. 32.10 and 88.87 may choose to file suit in either Dane County or the county in which the property lies. Kohlbeck v. Reliance Construction Company, Inc.
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 as the two are distinct legal entities. Service on the state of a summons and complaint that named the state and not the DOT as a party does not constitute service on the DOT necessary to establish personal jurisdiction over the DOT. Hoops Enterprises, III, LLC v. Super Western, Inc.
2013 WI App 7,
345 Wis. 2d 733,
827 N.W.2d 120,
12-0062.
88.88
88.88
Railroad to construct ditch or sluiceway across right-of-way. 88.88(1)(1) Whenever the owner of land desires to drain the same by a blind or open ditch and, to properly drain such land, a connecting ditch or sluiceway should be constructed across the right-of-way of a railway company, such owner shall file with the depot agent of such company nearest to such land a written petition stating the kind of ditch proposed to be built and requesting the company to construct a ditch or sluiceway across its right-of-way which will conform thereto. Within 60 days after the filing of such petition, the railway company shall construct such ditch or sluiceway. The petitioner shall pay the cost of such construction and shall assume all expenses in connection with maintaining such ditch or sluiceway on the railroad's right-of-way.
88.88(2)
(2) If the railway company fails to comply with
sub. (1), the 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.
88.89
88.89
Roads not to obstruct natural watercourse. 88.89(1)(1) Whenever any embankment, grade, culvert or bridge, including the approaches to the culvert or bridge, built or maintained by any person across a natural watercourse or natural draw obstructs the watercourse or draw so that waters therein are set back or diverted upon any lands in a drainage district, the person who built the embankment, grade, culvert or bridge shall enlarge the waterway through the embankment, grade, culvert or bridge and the approaches thereto so that it will not set back or divert waters upon lands in the district.
88.89(2)
(2) The drainage board or the owner of any land upon which water is set back or diverted by the obstruction described in
sub. (1) may serve notice upon the owner or maintainer of the embankment, grade, culvert or bridge to enlarge the opening for the waterway or to make new openings in order to permit the water to pass without being set back or diverted onto the lands of the district. If the owner of or person maintaining the embankment, grade, culvert or bridge fails to comply with the directive of the notice within 60 days after receiving the notice, the drainage board on its own behalf, or on petition of the injured landowner, may conduct a hearing under
sub. (3).
88.89(3)
(3) Upon receipt of a petition under
sub. (2), the drainage board shall fix the time and place of a hearing on the petition and shall issue an order to the owner or maintainer of the embankment, grade, culvert or bridge to show cause why an order directing the work to be done should not be issued. At least 10 days before the time fixed for the hearing on the petition, the order to show cause shall be served on the owner or maintainer, or on both if both are named in the petition, as prescribed in
s. 801.11 for the service of a summons.
88.89(4)
(4) If the drainage board is satisfied that the embankment, grade, bridge or culvert so obstructs the watercourse or draw that it causes water to be set back or diverted upon lands in the drainage district, the drainage board shall issue an order to the owner or maintainer of the embankment, grade, bridge or culvert to enlarge the waterway or construct a new waterway through the embankment, grade, bridge or culvert, as the facts warrant. The period of time that the embankment, grade, bridge or culvert has been in existence is no defense to a proceeding under this section.
88.89(5)
(5) Any person who fails to comply with an order issued under this section is liable to the injured party for all damages caused by the failure.
88.89 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975);
1977 c. 449;
1993 a. 456;
1995 a. 225.
88.90
88.90
Removal of obstructions from natural watercourses. 88.90(1)(1) Whenever any natural watercourse becomes obstructed so that the natural flow of water along the same is retarded by the negligent action of the owner, occupant or person in charge of the land on which the obstruction is located, the owner or occupant of any lands damaged by such obstruction may request the removal thereof by giving notice in writing to such owner, occupant or person in charge of the land on which the obstruction is located.
88.90(2)
(2) If the obstruction is not removed within 6 days after receipt of such notice and if the obstruction is located in a village or town, the owner or occupant of the damaged lands may make complaint to the village or town board, filing at the same time a copy of the notice. The village trustees or town supervisors, after viewing the watercourse and upon being satisfied that the complaint is just, shall make recommendations in writing to the owner or occupant of the lands where the obstruction is located, for the removal of such obstruction. If such recommendations are not followed within a reasonable time, the village or town board shall order the obstruction removed. The cost of view and of removal shall be charged and assessed against the lands from which the obstruction was removed and shall be collected as other special assessments are collected.
88.90(3)
(3) Whenever any natural watercourse becomes obstructed through natural causes, the owner or occupant of any lands damaged by the effect which the obstruction has upon the flow of the water may go upon the land where the obstruction is located and remove it at that person's own expense. Such person is not guilty of trespass for entry upon the land but is liable for damage caused to crops or structures. The rights and privileges conferred by this subsection also extend to the agents or employees of the person causing the obstruction to be removed.
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. Robinson v. Town of Bristol,
2003 WI App 97,
264 Wis. 2d 318,
667 N.W.2d 14,
02-1247.
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.
