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

(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.

(2)

(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.

(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).

(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.

(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.

(3)

(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:

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

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.

(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.

(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.

(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.

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

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).

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).

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).

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.

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.

Parties who can state a claim against the Department of Transportation 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.

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 does 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.

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 Ry. Co. 824 F.3d 694 (2016).