88.48 Assessment of county and municipal lands. (1) Lands owned by a county, town, village or city may be assessed benefits, awarded damages and assessed for costs the same as other lands within the district. Notice of hearing on the report assessing benefits against such lands shall be served on the clerk of the county, town, village or city in the same manner as upon resident landowners. (2) As assessments for costs levied against any city, village, or town become due, the board shall certify the assessments to the clerk of the city, village, or town, and the clerk shall place them upon the next tax roll. If the assessments exceed one-fourth of one percent of the assessed value of the property in the city, village, or town for the last previous assessed valuation, the assessments shall be paid in installments of one-fourth of one per-
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cent of the valuation for each year until paid unless the drainage board orders them paid in smaller amounts. History: 1993 a. 456; 2009 a. 177. A town sanitary district is subject to assessment by a drainage board. State ex rel. Town of Norway Sanitary District #1 v. Racine County Drainage Board of Commissioners, 220 Wis. 2d 595, 583 N.W.2d 437 (Ct. App. 1998), 97-2861.
88.49 Assessment of one district by another; judgment against district. If one district, by order of the drainage board, has assessed another district for special benefits, or if a money judgment has been rendered against any district, the board shall assess upon the lands of the district that is liable a sum that is sufficient to pay the assessment or judgment. The drainage board may order that the assessment be payable in installments. History: 1993 a. 456.
88.50 When state lands subject to assessment; rightof-way across state lands. (1) Agricultural lands owned by the state are subject to assessment in drainage proceedings. Other lands owned by the state are not subject to such assessment. Whenever the state acquires lands against which drainage assessments have been made and which no longer will be subject to assessment, the state shall pay the district all unpaid assessments against such lands, whether due or not. The secretary of the board then shall remove the lands from the district’s assessment roll. Acquisition of such lands by the state shall not be construed as prohibiting maintenance of existing drains. (2) No drain may be constructed on lands owned by the state or on lands on which the state exercises management control by easement, lease or otherwise, without the written permission of the agency responsible for the lands. The agency shall grant such permission upon application made to it, unless it finds after notice and public hearing thereon that the proposed drain will be injurious to the use of the property for the purposes for which it was acquired by the agency. Any administrative decision on the application, or any findings or order of the agency after public hearing, made hereunder shall be subject to review under ch. 227. History: 1993 a. 490.
SUBCHAPTER V BORROWING MONEY; REFINANCING; COMPROMISE OF DEBTS 88.54 Borrowing money. (1) At any time after the filing of a petition for organization of a drainage district but before the court issues an order organizing the drainage district, the drainage board may, with the consent of the court, borrow money in the name of the proposed drainage district to defray the expenses of organization. (2) The board may borrow money in an amount not exceeding the then unpaid assessments for costs, for the purpose of paying any or all obligations of a drainage district or for refunding existing notes or bonds. The board may secure the indebtedness by notes or bonds of the district, bearing interest at a rate approved by the board and running not beyond one year after the due date of the last installment of the assessments on account of which the money was borrowed. The notes and bonds constitute a lien upon all confirmed assessments for costs that are unpaid at the time the notes are given or bonds issued. Board members are not personally liable on the notes or bonds. (3) If the board desires to borrow money upon the notes or bonds of a drainage district to be paid during a series of years and after the lapse of a period of not more than 3 years, the board shall first publish a class 2 notice, under ch. 985, to invite proposals to furnish the money desired at the most favorable rate of interest or, if notes or bonds are issued at a specific rate of interest
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approved by the board, proposals to purchase the notes or bonds at the best premium. If the advertisement is made without success and if the board is unable to sell the notes or bonds at par or above, the board may sell the notes or bonds at private sale at the best price it can obtain for them. (4) If at any time the board finds that a district does not have or will not have sufficient funds on hand to pay any lawful indebtedness of the district when the indebtedness becomes due, or if any extraordinary emergency requires borrowing, the board may borrow money to pay the indebtedness or meet the emergency. If the amount to be borrowed does not exceed $8,000 and the loan does not run beyond one year, the board may borrow the money without holding a hearing. In other cases, s. 88.065 applies. When necessary, additional assessments to pay the loans shall be made under s. 88.23. (6) Except in the case of refunding bonds, no evidence of indebtedness of a district running for more than one year is valid unless approved by the attorney general and unless it bears a statement showing the approval. (7) The board shall keep a record of all bonds and notes issued on behalf of a district. Such record shall show with respect to each bond and note the number, series, date, principal, rate of interest and date of maturity thereof, the date when interest is due thereon and any payments made. If a bond or note is refunded it shall be marked “Refunded by No. ....”. The board shall execute all bonds or notes it offers to the public that mature after more than one year as provided in s. 67.08 (1) and may register these bonds or notes under s. 67.09. History: 1983 a. 24; 1987 a. 275; 1991 a. 316; 1993 a. 456.
88.55 Refunding district obligations. (1) The drainage board may refund bonds of the district and issue new bonds of the district payable over a term determined by the board. The aggregate principal amount of the new bonds shall not exceed the aggregate principal amount of the refunded bonds and the unpaid accrued interest on them. The new bonds shall bear interest at a rate approved by the board. (2) When bonds of the district have been refunded or are about to be refunded under sub. (1), the board may, on petition of one or more landowners or of the board, extend the time in which to pay assessments for construction to September 1 next preceding the due date of a like portion of the refunding bonds which are liens thereon. In such event, the face of all unpaid past due assessments so extended, together with all interest, penalties and charges, shall be a lien on the lands against which the assessments were originally made. The board may make all orders and do all other things necessary to carry into effect the extension of time. History: 1993 a. 456.
88.56 Compromise and discharge of obligations. (1) Whenever a drainage district is unable to pay its bonds and notes in full, the board may enter into a written compromise agreement with the owners of not less than 70 percent of its obligations. When such agreement has been signed by members of the board and the owners of 70 percent of such obligations, all creditors of the district are subject to such agreement to the same extent as those signing the agreement, and their claims shall be treated in all respects as if they had executed such agreement. (2) Whenever a drainage district is unable to pay its obligations in full, the board may file with the court a petition for an order approving a settlement of claims and directing an equitable distribution of net assets among the creditors of the district. Such petition shall list the available assets of the district, the obligations of the district, the owners of such obligations and their names and addresses or, if unknown, a statement of that fact, and
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shall state whether a compromise agreement has been executed under sub. (1). If such agreement has been executed, a copy thereof shall be attached to the petition. (3) Upon receiving a petition under sub. (2), the court shall enter an order fixing a time not less than 4 months nor more than 6 months after receipt of the petition within which creditors shall present their claims for examination and allowance. The order shall also fix a time and place for hearing on claims and publication and notice shall be given under s. 88.05 (1) (b) to all creditors of the district whose names and addresses are known. (4) The court shall receive, examine and adjust all claims and demands against the district. At the time set for hearing on claims, any claim may be allowed which is accompanied by a statement of account verified by affidavit and to which no objection is received, except that no claim shall be allowed until the court is satisfied that it is just. (5) The court shall make a statement embracing a list of the claims presented against the district and those presented as a setoff. Such statement shall show how much was allowed and how much disallowed in each case, together with the final balance, whether in favor of the creditor or the district. Such statement shall be filed by the judge and shall stand as the judgment of the court. The court may make an order directing that the available balance of the funds of the district, after costs are paid, be distributed among the district’s creditors as equity requires and discharging the district from further liability on its obligations. (6) All claims against a district which are not filed within the time limited by this section are barred. History: 1993 a. 456.
88.61 Laying out drains, assessment of benefits and award of damages in existing drainage district. After the organization of a drainage district and the construction of drains under the procedures in ss. 88.35 and 88.36, if the drainage board proposes to construct additional drains in the existing drainage district, it shall prepare reports, assess benefits and damages, conduct a hearing and determine costs and benefits substantially as provided under ss. 88.35 and 88.36. History: 1993 a. 456. NOTE: 1993 Wis. Act 456, which created this section, contains extensive explanatory notes.
SUBCHAPTER VI CONSTRUCTION, MAINTENANCE AND IMPROVEMENT OF DRAINS 88.62 Conditions relative to doing of work. (1) The drainage board may authorize the drainage district to do its own work or the board may enter into contracts to have the work done. The board may advertise for bids and shall do so in all cases where the work to be done will cost in excess of $25,000. When the board is required to advertise for bids, the board shall publish a class 2 notice, under ch. 985, and other notices that the board considers appropriate, and the work shall be let to the lowest responsible bidder unless in the board’s opinion the bid is unreasonably high and a lower bid can be obtained. The board may continue the letting of the work from time to time, and may reject any or all bids. (2) Before the board or its contractor may enter on lands for the construction of any drain on the lands, any damages awarded to the owners of the lands in excess of assessments against the lands for the cost of construction must have been paid or tendered. If the owner is unknown or the board for any other reason cannot safely pay the owner, it may deposit the net damages in an escrow account for the benefit of the owner or other party who is
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entitled to the damages, to be paid or distributed when payment can be made to the owner or other party or released after 5 years, whichever occurs first. Notwithstanding ch. 177, any funds not claimed in 5 years may be retained by the drainage board for the benefit of the drainage district for which the funds are held, after the board publishes a class 2 notice under ch. 985 and mails notice to the last-known address of each owner or other party regarding the existence of the unclaimed funds. The payment has the same effect as a tender to and acceptance of damages by the person entitled to the damages. (3) (a) Except for a removal of material that is exempt from the individual and general permit requirements under s. 30.20 as specified under s. 30.20 (1g) (d) and except as provided under par. (b), if drainage work is undertaken in navigable waters, the drainage board shall obtain a permit under s. 30.20 or 88.31 or ch. 31, as directed by the department of natural resources. (b) If drainage work is undertaken in navigable waters located in the Duck Creek Drainage District, the board for that district shall obtain a permit under s. 30.20 or ch. 31, as directed by the department of natural resources. History: 1987 a. 275; 1991 a. 316; 1993 a. 456; 1999 a. 9; 2007 a. 122; 2017 a. 115.
88.63 Maintenance and repair of drains. (1g) In this section “maintenance and repair” refers to the restoration of a drain or any part thereof as nearly as practicable to the same condition as when originally constructed or subsequently improved, including resloping of open ditches and leveling of spoil banks or excavated materials, and such routine operations as from time to time may be required to remove obstructions and preserve the efficiency of the drains. The terms do not include any substantial or material alteration, enlargement or extension of the drainage system of the district. (1m) It is the duty of the drainage board to maintain in good condition the drains in all districts under the board’s jurisdiction and to repair such drains when necessary. The board shall have all drains under its jurisdiction inspected annually to determine the need for maintenance and repair work. The board shall apportion the cost of such inspection to the various districts involved and the cost shall be paid out of any funds of the district available for maintenance and repair. The board may hire an inspector or authorize one or more owners of land in the drainage district to make the inspection or members of the board may themselves make the inspection. (2) The board may establish and maintain a fund for the payment of the costs of normal operations and maintenance and repair and for emergency expenses. Moneys in a fund under this subsection may not exceed amounts reasonably necessary for the purposes under this subsection. (4) The drainage board may use the funds assessed for maintenance and repair to pay for the costs of undertaking or defending a lawsuit involving the board, a board member or a drainage district or for representing an owner of land in a drainage district as provided in s. 88.21 (13). The board shall allocate the costs to individual drainage districts in an equitable manner. History: 1993 a. 456; 2001 a. 103; 2017 a. 115. Ch. 30 applies to navigable ditches that were originally navigable streams. If a navigable ditch was originally nonnavigable or had no previous stream history, the Department of Natural Resources’ jurisdiction depends upon the facts of each situation. Section 31.33 applies to nonnavigable artificial waterways insofar as is necessary to protect navigable waters and owners of flooded waters. 63 Atty. Gen. 493.
88.64 Assessment against municipalities for enlargement or maintenance of drains. (1) In this section: (a) “Enlarge” means to increase the capacity of a drain to convey water, including adding facilities such as pumps or lift stations, by performing any necessary construction. (b) “Municipality” means a city, village or town.
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(2) A drainage board may assess a municipality with territory upstream from any drain for any costs of enlarging or maintaining the drain that are attributable to increased water flow from land within the municipality. If the drainage board assesses a portion of the costs of enlarging or maintaining a drain against a municipality, the drainage board shall use the procedure under this section. (3) The drainage board shall obtain a report prepared by a professional engineer who is selected from the list specified in s. 88.21 (5). The report shall include all of the following: (a) The construction and costs that are necessary to restore the drain so that it conveys the same amount of water as when most recently constructed or enlarged. (b) The construction and costs that are necessary to enlarge the drain to convey the flow of water from any land in the drainage district or upstream from the drainage district that has been newly drained since the drain was most recently constructed or enlarged. (c) The construction and costs that are necessary to enlarge the drain to convey the flow of surface water from upstream sources that represents an increase in flow since the drain was most recently constructed or enlarged. (d) Of the increased flow identified in par. (c), the amount of that flow that is attributable to each municipality with territory in the watershed above the drain, based proportionally on all of the following: 1. The increased flow into the drain from impermeable surfaces such as roads, parking lots or roofs since the drain was most recently constructed or enlarged, whether or not the impermeable surfaces are within the watershed. 2. The increased flow into the drain from the discharge of wastewater from a sewage treatment plant since the drain was most recently constructed or enlarged, whether or not the source of the wastewater is within the watershed. (e) The maintenance costs that are attributable to the flow of surface water from upstream sources that represents an increase in flow since the drain was most recently constructed or enlarged. (4) Upon completion of the report under sub. (3), the drainage board shall set a time and place for a hearing on the report and shall give the notice under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (c) and to the clerk of each municipality identified in the report as responsible for a portion of the costs of enlarging or maintaining the drain. At the hearing on the report, the drainage board shall hear all objections to the report by any aggrieved person. Representatives of a municipality may introduce evidence that tends to establish a different allocation of costs. If the drainage board finds that the report requires modification or amendment, it shall modify or amend the report as the facts warrant. (5) At the conclusion of the hearing and after completion of the final report, the drainage board shall issue an order directing each municipality to pay the portion of the cost of enlarging or maintaining the drain as determined in the report. If the drainage board orders or allows landowners in the drainage district to pay for the costs of enlarging or maintaining the drain in installments, the drainage board shall permit a municipality to pay the assessment in installments. The drainage board shall mail the order to the clerk of each municipality by certified mail. (6) Any municipality affected by the order may, within 120 days after receipt of the order under sub. (5), request the state drainage engineer to review the final report and order of the drainage board. The state drainage engineer shall complete the review of the final report and order within 120 days after receiving the request from the municipality. The state drainage engineer shall issue a report on whether the drainage board order
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complies with the report prepared under sub. (3), including a recommendation that the drainage board affirm, modify and affirm or reverse the order. The state drainage engineer shall mail a copy of the report and recommendation to the drainage board and to each municipality that is subject to an order under sub. (5). Upon receiving the state drainage engineer’s report and recommendation, the drainage board shall promptly issue an order to affirm, modify and affirm or reverse its previous order and mail the order by certified mail to the clerk of each municipality affected by the order and the state drainage engineer. The municipalities that request the state drainage engineer to review the report and order shall jointly pay the actual and necessary costs of the review and the payment shall be credited to the appropriation under s. 20.115 (7) (ga). (7) A municipality affected by a drainage board order issued under sub. (5) or (6) may seek review of the order under s. 88.09, except that a municipality may commence the action within 120 days after receiving the order. (8) If a municipality pays the costs assessed by an order issued under sub. (5) or (6), it shall pay the costs or make the first payment of the costs on the February 15 following adoption by the municipality of its next annual budget after the order is issued. History: 1993 a. 456. NOTE: 1993 Wis. Act 456, which created this section, contains extensive explanatory notes.
88.66 Construction and repair of drains crossing railroad right-of-way. (1) If necessary for proper drainage, the board may lay out and construct drains across any railway rightof-way within a district. As soon as the drain has been constructed up to such right-of-way, the railway company shall open its right-of-way and permit such drain to cross the same. (2) Every district whose drains cross the right-of-way of a railway company is liable to such company for the reasonable cost of opening its right-of-way and also for the cost of the culverts and bridges made necessary by such drain. The drainage board shall include such costs in its cost of construction, as set forth in its report of benefits and damages, and shall award them as damages to the railway company. The bridge or culvert shall be designed by the district’s engineer and the design submitted to the railway company for approval. If a dispute arises as to the adequacy of the design, either party may submit the dispute to the office of the commissioner of railroads by filing with the office a statement as to the facts involved and the nature of the dispute. 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. (3) (a) Whenever the cleaning out, deepening or reconstruction of a drain crossing a railway right-of-way requires the lowering of a culvert through such right-of-way in order to provide effective drainage, the drainage board shall proceed as provided in subs. (4) to (7). Except as provided in par. (b), the expenses involved in such lowering shall be borne by the drainage district or as provided by mutual agreement between the railway company and the drainage board. (b) Whenever a railroad is being constructed or reconstructed across a drainage district’s drain, or a culvert in such drain is being replaced, the railway company shall consult with the drainage board having jurisdiction of such district for the purpose of determining the depth at which such drain was laid out. If any culvert or similar opening in a railway right-of-way is installed at a grade higher than the depth at which such drain was laid out, the expenses involved in any future lowering of the culvert pursuant to par. (a) shall be borne by the railway company unless the com-
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pany was misled by the drainage board as to the proper grade at which to install the culvert. This paragraph applies only to work done after June 13, 1964. (4) Whenever it becomes necessary to open a railway rightof-way in order to permit cleaning out or repairing any district drain, the board shall ascertain the reasonable cost thereof and, except as otherwise provided in sub. (3), shall award such cost as damages to the railway company in the board’s report when assessing the cost of repairs. (5) Upon receiving 30 days’ notice in writing, any railway company across whose right-of-way any drainage district drain is laid out shall open its right-of-way to permit the board and its contractors, agents or employees to construct, clean out or repair such drain. (6) If the railway company fails to open its right-of-way as required by this section, the board may at any time after the expiration of 30 days from the giving of the notice specified in sub. (5) open such right-of-way along the lines of such drains and construct, clean out or repair the same and may recover from the railway company the reasonable expense of opening the right-ofway. (7) The district constructing, cleaning out or repairing a drain across the right-of-way of a railway company shall so prosecute the work as not to delay traffic upon such railway for longer than is absolutely necessary. History: 1977 c. 29 s. 1654 (9) (f); 1981 c. 347; 1993 a. 16, 123, 490.
88.67 Construction and repair of drains crossing utility installations; laying utility installations across drains. (1) Whenever the construction, reconstruction, clean out or repair of a drain makes necessary the removal or raising of a utility installation in order to permit the passage of a dredge or other machinery or whenever the lowering of an underground utility installation is necessary in order to provide effective drainage, the owner of the utility installation, upon being given 30 days’ written notice stating the place where such dredge or machinery will pass or that lowering is necessary to provide effective drainage, shall remove, raise or lower the utility installation as requested by the board. Except as provided in sub. (3), the expenses involved in such removal, raising or lowering shall be borne by the drainage district or as provided by mutual agreement between the drainage board and the owner of the utility installation. (2) If after the 30 days’ notice specified in sub. (1) the owner of the utility installation fails to remove, raise or lower the same, the board may do so and may recover from the owner of the installation the cost of the removal, raising or lowering. (3) Whenever an underground utility installation is being laid or relaid across a drainage district’s drain, the owner of the utility installation shall consult with the drainage board having jurisdiction of such district for the purpose of determining the grade at which such drain was laid out. If an underground utility installation is laid at a grade higher than the grade at which the drain was laid out, the expenses involved in any future lowering of the utility installation shall be borne by the owner of the utility installation unless the owner was misled by the drainage board as to the proper grade at which to lay the utility installation. This subsection applies only to work done after June 13, 1964. (4) In this section “utility installation” includes any sluice or pipe carrying any gas or liquid, or any wire, conduit or cable used for conducting electricity or for any other purpose, whether or not such installation is owned by a public utility. 88.68 Construction of drain across public highway; construction of bridges across drains. (1) Any drain
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across a public highway shall be constructed according to like specifications and at the same time as the drain above such highway is constructed. (2) If the construction of a drain across a public highway makes necessary the construction or reconstruction of a bridge, the drainage board and the officers in charge of maintenance of the highway shall try to agree on the best method of constructing or reconstructing the bridge. If they are unable to agree, the matter shall be submitted to arbitration under ch. 788. If it is determined to reconstruct or add to the bridge, the district shall pay the costs incident to the reconstruction or addition. If it is determined to construct a new bridge, the drainage district shall pay to the unit of government responsible for the maintenance of the highway a sum that is considered equivalent to the value of the bridge in place at the time of the construction of the drain. (3) If the unit of government in charge of maintenance of a highway decides to construct a new bridge across a drain, the officers in charge of such construction shall notify the drainage board thereof by registered mail addressed to the secretary of the board. If the board within 10 days after receiving such notice notifies the officers in charge of construction of the bridge that it desires such bridge to be constructed with a certain clear span, the bridge shall be constructed in accordance with the board’s order. If the board’s order requires the bridge to be built of greater span than is necessary for proper drainage of flood waters, any excess cost resulting from such order shall be paid by the drainage district. (4) Whenever the cleaning out, deepening or reconstruction of a drain crossing a public highway requires the lowering of a culvert through such highway in order to provide effective drainage, the drainage board may proceed to lower such culvert only after obtaining a permit under s. 86.07 (2) (a). In lieu of issuing a permit, the authority in charge of maintenance of the highway may proceed to do the work itself. Except as provided in s. 86.075, the expenses involved in such lowering shall be borne by the drainage district, or as provided by mutual agreement between the highway authority and the drainage board. History: 1993 a. 456; 2015 a. 231.
88.69 District liable for damage to land outside its boundaries. (1) A drainage district is liable for any damages resulting to lands outside its boundaries because of work done within its boundaries. In this subsection “damages” means only such damages as could be recovered against a natural person for like injury resulting from like work. No action shall be taken to collect damages to outside lands until the damages actually have resulted. In cases of construction of new drains, the state may proceed pursuant to ch. 813 to prevent damage or injury to lands owned by the state. (2) If through the construction of a drain by a higher district a lower drainage district incurs extra expense in providing means to carry off the waters or remove the sediment flowing from the higher district, the higher district is liable for such increased cost. The amount of such increased cost may be agreed upon between the districts or may be recovered in an action at law. History: Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975).
88.70 Formation of subdistrict to obtain more thorough drainage. (1) If the owners of land in a part of a drainage district desire a more thorough or different drainage than the drains of the district currently provide or than the planned reconstruction will provide, a majority of the owners may petition the board to have specified lands set aside as a subdistrict of the drainage district in order to permit a more thorough or different drainage. (2) The board shall fix a time and place of a hearing on the
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petition and shall cause notice to be given under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (b). (3) If the drainage board is satisfied that the public health or public welfare will be promoted by more thorough or different drainage and that the benefits of the drainage will exceed the cost of construction, the drainage board shall order that a subdistrict of the drainage district be formed, give it a name or number and fix its boundaries. (4) After organizing the subdistrict, the board shall prepare a plan and specifications for the more thorough or different drainage, estimate the cost of construction of the drainage, estimate the cost of all additional bridges made necessary because of the drainage, and assess benefits against and award damages to all lands in the subdistrict that are benefited or damaged by the more thorough or different drainage. Assessments and awards shall be made substantially as provided in s. 88.35. (5) Nothing in this section is intended to relieve owners of lands in the subdistrict of the proportionate share of their obligations to the district in which the subdistrict was formed. History: 1993 a. 456.
88.71 Enlarging or supplementing existing drains. (1) Whenever the board is petitioned by the owners of one-tenth of the lands in a district to enlarge existing drains or to lay out and construct new drains in such district, or whenever the board is of the opinion that the plan of drainage of the district is or will be insufficient to effect a thorough drainage of such district or any portion thereof, and that enlarged or supplemental drains are required to effect such drainage, the board shall cause to be prepared plans and specifications for the enlargement of existing drains or for the construction of sufficient supplemental drains to complete the drainage of such district. (1m) If the drainage board is satisfied that the public health or welfare will be promoted by the enlarged or supplemental drains and that the benefits from the drains will exceed the cost of construction, the drainage board shall order the construction of the enlarged or supplemental drains. (2) The board shall estimate the cost of construction of the enlargements or supplemental drains together with the cost of all additional bridges that the district must build and shall assess the costs against the lands benefited, as provided in ss. 88.35 and 88.36 and in this subsection. The board shall award to each parcel of land the damages caused to the land by the supplemental work and shall assess benefits against the lands benefited by the supplemental work. The benefits shall be apportioned and assessed so that all assessed lands are required to pay a sum total for the construction of the total drainage proportionate to the actual benefits received by the lands from the total drainage. History: 1993 a. 456.
88.72 Removal of dams or other obstructions in drainage outlets. (1) The owners of more than one-tenth of the lands within any district may file with the drainage board a petition setting forth: (a) That the drains constructed within such district do not afford an adequate outlet for drainage; (b) That it is necessary in order to give an adequate outlet to remove certain dams or other obstructions from waters or streams or to deepen, straighten or widen the same either within or beyond the boundaries of such district; and (c) That the public health and the public welfare will be promoted by such work and that the navigability of such waters or streams and other public rights therein will not be materially impaired. (2) Upon receiving a petition under sub. (1), the drainage
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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) (a), to the owner of any dam sought to be removed and to all riparian owners affected by the removal. (3) At the hearing on the petition, any interested person may appear and contest its sufficiency and the necessity for the work. If the drainage board finds that the petition has the proper number of signers and that to afford an adequate outlet it is necessary to remove dams or other obstructions from waters and streams which may be navigable, or to straighten, clean out, deepen or widen any waters or streams either within or beyond the limits of the district, the board shall obtain any permit that is required under this chapter or ch. 30 or 31. (4) Within 30 days after the department of natural resources has issued all of the permits as required under this chapter and chs. 30 and 31, the board shall proceed to estimate the cost of the work, including the expenses of the proceeding together with the damages that will result from the work, and shall, within a reasonable time, award damages to all lands damaged by the work and assess the cost of the work against the lands in the district in proportion to the assessment of benefits then in force. (5) The drainage board may grant the petition and order the additional work done only if the drainage board is satisfied that: (a) The intended result can be effectively achieved by additional work at a reasonable cost; (b) The public welfare will be promoted by such additional work; (c) The cost of such additional work, when added to all expenses previously incurred by the district will not exceed the total benefits theretofore assessed; and (d) A petition, which is the same in substance or effect as the current petition, has not previously been denied by the drainage board. History: 1973 c. 336; 1993 a. 456; 1999 a. 9.
88.73 Providing drainage for lands assessed but not adequately drained. (1) Any person owning lands that have been assessed for costs of construction but which are in need of drainage because of being shut off from access to any district drain or because the slope of the land is such that it is impractical to drain the land into a district drain without crossing the lands of others may file with the drainage board a verified petition stating such facts, including a description of the lands sought to be drained and asking that a drain be laid out from the petitioner’s lands to the district drain. (2) The petitioner and all persons whose lands will be directly affected by the proposed drain may, in writing, waive any or all notices of hearings and may consent to an immediate hearing on the petition, upon which the drainage board may enter an order to construct the drain. The board’s order shall include all of the provisions of s. 88.35 (1). If no written waiver or consent is filed by all persons immediately interested, the procedure on a petition under this section shall be substantially as outlined in ss. 88.35 and 88.36. History: 1991 a. 316; 1993 a. 456.
88.74 District corridors. (1) (a) Except as provided in par. (b), the board shall establish all of the following as district corridors: 1. A corridor which extends 20 feet from the top of the ditch bank on each side of a district ditch. 2. A corridor extending 20 feet from the centerline on each side of any other district drain or facility. (b) Upon notice to affected landowners, the board may estab-
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lish and maintain a wider corridor if a wider corridor is necessary to meet any of the purposes specified under sub. (3). (2) The board shall provide notice of any corridor established under sub. (1) to the county and the city, village, or town in which the corridor is located. (3) The board shall maintain a corridor established under sub. (1) to accomplish all of the following purposes: (a) To provide the board with effective access to the drain or facility, including access for vehicles or equipment. (b) To protect water quality in the drain or facility. (c) To allow for the placement of dredge materials from maintaining the drain or facility. (4) (a) Except as provided in pars. (b) and (d), the board may, without prior notice to the landowner, enter a corridor established under sub. (1) to inspect, survey, maintain, repair, restore, or improve a drain, facility, or corridor. (b) Before doing any of the following in a corridor, the board shall notify the landowner of the pending action: 1. Cutting a tree that is more than 6 inches in diameter measured at breast height. 2. Excavating or depositing materials in the corridor. (c) Notice under par. (b) may be given at any time before performance of the work and may be given in person, by telephone, by mail, or, if the landowner is not available, by posting notice at a conspicuous location at an entrance to the land. (d) If a drainage board intends to perform general maintenance work in a corridor during the year, the board shall provide notice to the landowner not later than March 1. Notice under this paragraph shall be given in person, by telephone, by mail, or by electronic means, or, if notice cannot be provided in one of these manners, by posting notice at a conspicuous location at an entrance to the land. This paragraph does not apply to emergency maintenance work. (5) (a) No person may do any of the following in a corridor established under sub. (1) without written permission from the board: 1. Engage in row cropping in the corridor. 2. Place any obstruction in the corridor that interferes with the board’s ability to accomplish a purpose under sub. (3). (b) A person who violates par. (a) may not recover damages with regard to any damage to crops or obstructions caused by actions taken by the board under sub. (3). (c) Paragraph (a) does not require a landowner to remove any building or fixture constructed or installed in a corridor prior to September 1, 1999, or any structure that does not interfere with the board’s maintenance of a drain and that was placed in the corridor for the purpose of providing drainage. (6) No city, village, town, or county may by ordinance, resolution, or any other means restrict, or impose other conditions related to, the board’s maintenance of district corridors or ditches unless specifically required by federal law. History: 2017 a. 115.
SUBCHAPTER VII ENLARGEMENT, CONSOLIDATION, DIVISION AND DISSOLUTION OF DRAINAGE DISTRICT 88.77 Annexation of lands upon petition of owners. (1) If owners of lands adjacent to any drainage district want the lands to be annexed to the district, they may file with the drainage board a petition for annexation. The petition must be signed either by more than one-half of all of the owners of lands in the
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proposed annex, who shall represent more than one-third of the lands in the proposed annex, or by the owners of more than onehalf of the lands in the proposed annex. The petition shall describe the lands sought to be annexed and shall set forth the names of the owners of all of those lands so far as the owners are known. The petition shall be accompanied by a plat showing the original district and the proposed annex. (2) If the undrained portion of the area proposed to be annexed to the district exceeds 200 acres, the drainage board shall request the report described under s. 88.11 (3) from the department of agriculture, trade and consumer protection on the annexation. Within 60 days after the request, the department shall prepare and return a copy of the report and its approval or disapproval, as provided under s. 88.35 (7). (3) When the drainage board receives the reports required by s. 88.11, the board shall fix a time and place of a hearing on the petition under sub. (1) 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) (c). (4) The drainage board shall issue an order annexing the territory to the drainage district if at the hearing the board finds all of the following facts: (a) That the petition has sufficient signers. (b) That the lands described in the petition, together with any additional lands recommended by the board for drainage, will be improved by the proposed annexation. (c) That the public health or public welfare will be promoted by the annexation. (d) That the cost of construction will not exceed 75 percent of the benefits to be derived from the proposed work. (e) That the proposed work will not materially injure or impair fish or wildlife habitat, scenic beauty, the conservation of natural resources or other public rights or interests. (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 percent 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. (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. History: 1993 a. 456; 2007 a. 121. NOTE: 1993 Wis. Act 456, which substantially affected this section, contains extensive explanatory notes.
88.78 Annexation of benefited lands. (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. (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.
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(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. (4) The board shall assess benefits and assess for costs and award damages to each tract of the annexed lands. History: 1993 a. 456.
88.785 Certain annexations prohibited. (1) Notwithstanding ss. 88.34, 88.77, and 88.78, no lands that are within the corporate limits of a city, a village, or, if the town has a permit for storm water management under s. 283.33, a town may be included in a newly organized drainage district or annexed to a drainage district unless the governing body of the city, village, or town adopts a resolution approving the inclusion or annexation. (2) Notwithstanding ss. 88.77 and 88.78, no lands that are located in a county in which no portion of the drainage district is located may be annexed to a drainage district. History: 2017 a. 115.
88.79 Consolidation of drainage districts in process of organization. (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. (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 percent 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. (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. History: 1993 a. 456.
88.791 Consolidation of existing drainage districts. (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. (2) The consolidation process may be initiated by a petition that is signed by the owners of at least 10 percent of the lands in each of the districts sought to be consolidated. (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. (4) Upon entry of the order of consolidation, the records of the districts so consolidated shall be the records of the consolidated district. (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. (6) After such consolidation, the benefits of the consolidated
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district may be reassessed to render them just and equitable as a basis for future assessments for costs, subject to s. 88.02. History: 1993 a. 456 ss. 100, 101. NOTE: 1993 Wis. Act 456, which created this section, contains extensive explanatory notes.
88.80 Withdrawal of lands from drainage district. (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: (a) All benefits assessed against such lands have been paid; and (b) The lands to be withdrawn will receive no benefit from the drainage district; and (c) The drainage district will not be materially injured by the withdrawal of such lands. (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. (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. History: 1993 a. 456.
88.81 Proceedings to suspend operations of drainage district. (1) (a) The owners of land representing 90 percent 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. (b) The owners of land representing 67 percent 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. (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. (bs) A state agency, as defined in s. 16.61 (2) (d), may not petition for the suspension of operations of a drainage district. (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). (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.
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(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. (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. (5) Subsections (1) to (3) do not apply on or after July 14, 2015. History: 1977 c. 449; 1983 a. 483; 1993 a. 456; 2015 a. 55.
88.815 Dissolution of suspended drainage districts. (1) If the operations of a drainage district are suspended on July 14, 2015, the department of agriculture, trade and consumer protection shall file a notice with the court having jurisdiction on the matter that the district will be administratively dissolved 36 months after the filing of the notice. (2) Upon the filing of a dissolution notice under sub. (1), the court shall provide notice of the dissolution notice to the drainage board. If, at the time of filing of a dissolution notice, any position on the board is vacant, the court shall appoint a successor as provided in s. 88.17 before providing notice to the board. (3) Upon receiving notice under sub. (2), the board shall provide notice of the dissolution notice under sub. (1) to the persons specified under s. 88.05 (4) (c). (4) Upon request by any owner of land in the district, the board shall do all of the following: (a) Fix a time and place of a hearing on the dissolution notice. (b) Cause notice of the hearing to be given under s. 88.05 (1) (b) to the persons specified under s. 88.05 (4) (c), the court having jurisdiction on the matter, and the department of agriculture, trade and consumer protection. (5) Subject to s. 88.82 (2) and after any hearing held under sub. (4), if the board determines that the public welfare will not be promoted by the reinstatement of district operations, the board shall seek approval of dissolution of the district under s. 88.06. If dissolution is approved, the board shall provide notice of the dissolution to the court having jurisdiction on the matter, the department of agriculture, trade and consumer protection, the zoning administrator of each city, village, town, or county in which the district is located, the county clerk of the county in which the drainage board having jurisdiction of the drainage district is located, and the county treasurer. (6) If s. 88.82 (2) is not satisfied, court approval under s. 88.06 is not received, or the board determines that public welfare will be promoted by the reinstatement of district operations, the board shall order the district reinstated. If reinstatement is ordered, the board shall provide notice of the order to the court having jurisdiction on the matter, the department of agriculture, trade and consumer protection, the zoning administrator of each city, village, town, or county in which the district is located, and the county clerk of the county in which the drainage board having jurisdiction of the drainage district is located. (7) If no hearing is scheduled under sub. (4), the district is dissolved 36 months after the filing of the notice under sub. (1). If the department of agriculture, trade and consumer protection receives a notice under sub. (4), but does not receive a notice of reinstatement under sub. (5), the district is dissolved 48 months after the filing of the notice under sub. (1). History: 2015 a. 55.
88.817
Leola drainage district. (1) Notwithstanding s.
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88.815, the Leola drainage district located in Adams, Portage, and Waushara counties is reinstated. (2) The drainage board with jurisdiction of the Leola drainage district may not levy any assessment. This subsection does not apply if the owners of land representing, as calculated on December 2, 2017, 67 percent or more of the confirmed benefits in the district, excluding benefits received by land owned by this state, file with the court having jurisdiction on the matter a petition for the reinstatement of assessment authority of the district. History: 2017 a. 115.
88.82 Dissolution of drainage districts. (1) (a) The owners of land representing 90 percent 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. (b) The owners of land representing 67 percent 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. (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. (bs) A state agency, as defined in s. 16.61 (2) (d), may not petition for the dissolution of a drainage district. (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. (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). (2) No district shall be dissolved until all its debts have been paid unless: (a) Funds to pay such debts, including any interest thereon, have been deposited with the county treasurer; or (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. (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. (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. (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.
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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. (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. (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. History: 1975 c. 324, 421; 1983 a. 483; 1987 a. 378; 1991 a. 32, 316; 1993 a. 456. Although the “public welfare” concept escapes precise definition and necessarily involves consideration of numerous factors, it does not, in the context of this chapter, 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 Transfer of district to municipal jurisdiction. (1c) In this section, “municipality” means a city, village, or town. (1g) The owners of a majority of the land proposed to be transferred in a drainage district located entirely or partially within the corporate limits of a municipality may petition the drainage board having jurisdiction of the district to transfer jurisdiction of the part of the district proposed to be transferred that is located within the municipality to the municipality. (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). (2m) If the proposed transfer of jurisdiction is of less than the entire district, jurisdiction of the part of the drainage district may not be transferred to a municipality unless the municipality to which jurisdiction will be transferred and the district have entered into an agreement that includes all of the following: (a) The municipality and district agree that the goal of the agreement is to outline the duties and responsibilities of the respective parties to maintain the drain system as provided in the plans and specification for the drain system approved by the department of agriculture, trade and consumer protection. (b) The agreement specifies any monetary obligations of the municipality or district under the agreement and the manner by which any monetary obligation under the agreement will be calculated. (c) The municipality agrees to ensure access to, and maintenance of, any corridor established under s. 88.74 (1) that is located on land transferred under this section consistent with the requirements of s. 88.74. (d) The municipality agrees, upon order by the drainage district from which jurisdiction was transferred, to maintain and re-
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pair any part of a former district drain located in land transferred under this section. (e) That if the municipality fails to complete work ordered under par. (d), the district may complete the work and assess costs on the confirmed benefits to property located in the municipality, as follows: 1. The district shall provide notice to the municipality that, based upon an inspection by the board, maintenance of a drain on land transferred under this section is necessary. 2. If the municipality does not within 30 days of receiving the notice under subd. 1. enter into an agreement with the district to perform the maintenance or does not perform the ordered maintenance within 12 months of receiving the notice under subd. 1., the district may file a declaratory judgment action in the court having jurisdiction over the district. The only issues in an action under this subdivision shall be compliance with this paragraph and whether the lands proposed to be assessed are benefited by the drain. 3. a. If the court determines that the district has complied with this paragraph and that the lands proposed to be assessed are benefited by the drain, the district may complete the work and assess costs to the municipality. b. If the court determines that the district has not complied with this paragraph or that the lands proposed to be assessed are not benefited by the work, the district may complete the work, but may not assess costs to the municipality. (3) If the drainage board finds upon the hearing that the petition is signed by the required number of owners and that the conditions under sub. (2m) have been satisfied, it may issue an order transferring jurisdiction of the district or part of the district to the municipality. If the order transfers jurisdiction of the entire district and the governing body of the municipality approves the transfer, 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 municipality in which the district is located. If the order transfers jurisdiction of only a part of the district and the governing body of the municipality approves the transfer, the section transferred shall automatically come under the jurisdiction of the governing body of the municipality in which the district is located. (4) As an alternative, proceedings covered by this section may be initiated by a resolution of the governing body of a municipality. The resolution shall state that the municipality is willing to accept the drain or part of the drain, and that the public interest requires that the municipality 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 municipality 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 municipality. The drainage board may not hold a hearing on the petition until 30 days after the date of publication of the notice. A copy of the petition and resolution shall be served on the county clerk of the county in which the drain is located and the board having jurisdiction of the drain. If the drainage board finds upon the hearing that the conditions under sub. (2m) have been met, the drainage board may issue an order transferring jurisdiction of the drain or part of the drain to the municipality. 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 municipality 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 municipality in which the district is located.
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(5) Upon entry of an order transferring jurisdiction of an entire district to a municipality and approval of the transfer by the municipality, the county treasurer and district shall pay to the treasurer of the municipality all moneys in the county treasurer’s or district’s hands which belong to the drainage district. Upon entry of an order transferring jurisdiction of a part of a district to a municipality and approval of the transfer by the municipality, the county treasurer and district shall pay to the treasurer of the municipality a proportional share of the moneys in the county treasurer’s or district’s hands which belong to the drainage district based upon assessed benefits transferred less a proportional share of outstanding indebtedness. History: 1979 c. 110 s. 60 (11); 1991 a. 316; 1993 a. 456; 2017 a. 115.
SUBCHAPTER VIII RIGHTS OF DRAINAGE; PRIVATE DRAINS; MISCELLANEOUS PROVISIONS 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
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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 manmade 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). But see Southport Commons, LLC v. DOT, 2021 WI 52, 397 Wis. 2d 362, 960 N.W.2d 17, 19-0130. 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). 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
May 22, 2026, are designated by NOTES. (Published 5-22-26)
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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. 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. 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. 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. “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. 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. 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. 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 Railroad to construct ditch or sluiceway across right-of-way. (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-ofway 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. (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. History: 1977 c. 29 s. 1654 (9) (f); 1981 c. 347; 1993 a. 16, 123, 490.
88.89 Roads not to obstruct natural watercourse. (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. (2) The drainage board or the owner of any land upon which
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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). (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. (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. (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. History: Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975); 1977 c. 449; 1993 a. 456; 1995 a. 225.
88.90 Removal of obstructions from natural watercourses. (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. (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. (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.
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(4) This section does not in any manner limit the scope of s. 88.87. History: 1991 a. 316; 1995 a. 315. 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). 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 Penalty for placing obstruction in ditches. (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. (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. History: 1975 c. 108.
88.92 Private drains not to be connected with district drains. (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. (2) (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. (b) Any person who violates sub. (1) is liable to the district for all damages caused by the violation. (3) The board shall preserve a copy of any plans and specifications approved under sub. (1). History: 1993 a. 456.
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. History: 1985 a. 60.
88.94 Drains for individual landowners. (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 pe-
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tition 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: (a) The petitioner desires to install drainage upon agricultural lands owned by the petitioner; (b) Because of the contour of the land there is no suitable outlet on lands owned by the petitioner; (c) The proposed drain will promote the general welfare and health of the community; (d) It is impractical for the petitioner to drain the land without crossing the lands of others; and (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. (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). (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. (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. (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. (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. (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. (8) Expenses incurred by the drainage board under this section shall be paid by the petitioner. History: 1991 a. 316; 1993 a. 301, 456, 490.
May 22, 2026, are designated by NOTES. (Published 5-22-26)