Chapter 88

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).

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.

88.88 History History: 1977 c. 29 s. 1654 (9) (f); 1981 c. 347; 1993 a. 16, 123, 490.

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. 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.