PUBLISHED OPINION
Case No.: 95-2509
†Petition for
review filed.
Complete
Title
of
Case:CHICAGO AND NORTH
WESTERN
TRANSPORTATION COMPANY,
Plaintiff-Appellant, †
v.
OFFICE OF THE COMMISSIONER OF
RAILROADS,
Defendant-Respondent,
MILWAUKEE METROPOLITAN
SEWERAGE DISTRICT,
Respondent-Respondent.
Submitted
on Briefs: March 11, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: July 25, 1996
Opinion
Filed: July
25, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Michael
Nowakowski
so
indicate)
JUDGES: Gartzke, P.J., Dykman and Sundby, JJ.
Concurred:
Dissented: Sundby,
J.
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the briefs of Thomas L. Smallwood and Maile E.
Buell of Borgelt, Powell, Peterson & Frauen, S.C., of
Milwaukee.
Respondent
ATTORNEYSFor the defendant-respondent the
cause was submitted on the brief of James E. Doyle, attorney general,
and Kathleen M. Falk, assistant attorney general.
For the respondent-respondent the cause was submitted on the
brief of Michael J. McCabe and James H. Petersen of Milwaukee
Metropolitan Sewerage District of Milwaukee.
COURT OF
APPEALS DECISION DATED AND
RELEASED July
25, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2509
STATE OF WISCONSIN IN
COURT OF APPEALS
CHICAGO
AND NORTH WESTERN
TRANSPORTATION
COMPANY,
Plaintiff-Appellant,
v.
OFFICE
OF THE COMMISSIONER OF
RAILROADS,
Defendant-Respondent,
MILWAUKEE
METROPOLITAN
SEWERAGE
DISTRICT,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Dane County: MICHAEL
NOWAKOWSKI, Judge. Affirmed.
Before
Gartzke, P.J., Dykman and Sundby, JJ.
DYKMAN,
J. Chicago and North Western
Transportation Company (CNW) appeals from an order affirming an order of the
Commissioner of Railroads requiring CNW to install and maintain drainage
improvements in an earthen railroad grade as designed by the Milwaukee
Metropolitan Sewerage District. CNW
argues that: (1) the District does
not have standing to initiate an action under § 88.87(4), Stats., because the District did not
first comply with all of the procedural requirements set forth in § 88.87(2);
(2) the Commissioner cannot order CNW to modify its grade if the grade has
not already caused an unnecessary or unreasonable accumulation of waters; and
(3) CNW cannot be required to modify its grade if there is no evidence
that an unnecessary or unreasonable accumulation of waters will arise from
changes in natural conditions or the enlargement of the water flow. We conclude that these claims are without
merit and, therefore, affirm.
BACKGROUND
CNW
maintains an earthen railroad grade containing five forty-eight-inch culverts
through which the Edgerton Channel flows.
In 1978 and 1990, the District authorized the Southeastern Wisconsin
Regional Planning Commission to study and report on land uses and the flooding
consequences in the channel area pursuant to its duties under § 66.89(1), Stats.[1] The study found that upon the completion of
the planned use development within the channel drainage area, annual flooding
costs within this drainage area would exceed $140,000.
The
District decided to improve the channel by increasing its drainage
capacity. It also concluded that CNW
would have to modify its grade to accommodate the additional flow of
water. The District's plan called for
CNW to replace the existing forty-eight-inch culverts with three
ninety-six-inch culverts. The District
petitioned the Office of the Commissioner of Railroads under §§ 88.87(4)
and 190.08, Stats., for an order
requiring CNW to make these improvements.
After
a public hearing on the matter, the Commissioner found that past flooding along
the channel was caused by inadequate drainage upstream from CNW's grade rather
than by the railroad grade and culverts.
The Commissioner also found that the District did not have to wait until
CNW's grade caused flooding before the District could petition the Commissioner
under § 88.87(4). The Commissioner
found that the District's plan for increasing the channel's drainage capacity
called for CNW to modify the culverts in the grade to handle the additional
water flowing through the channel because "[l]eaving the railroad culverts
at their existing elevation and capacity would create a `dam-like' effect." Accordingly, the Commissioner ordered CNW to
install and maintain the drainage improvements as designed by the
District.
CNW
sought certiorari review of the Commissioner's decision under ch. 227, Stats., and the trial court
affirmed. CNW appeals.
STANDARD OF REVIEW
In
a ch. 227, Stats., appeal,
we review the agency's decision and, therefore, give no deference to the
decision of the trial court. Soo
Line R.R. Co. v. Office of Comm'r of Transp., 170 Wis.2d 543, 549, 489
N.W.2d 672, 674 (Ct. App. 1992). CNW
challenges the Commissioner's interpretation and application of § 88.87, Stats.
Interpretation of a statute and its application to the undisputed facts
of a case are questions of law which we review de novo. Local No. 695 v. LIRC, 154
Wis.2d 75, 82, 452 N.W.2d 368, 371 (1990).
Our primary purpose when interpreting a statute is to give effect to the
legislature's intent. Riverwood
Park, Inc. v. Central Ready-Mixed Concrete, Inc., 195 Wis.2d 821, 827,
536 N.W.2d 722, 724 (Ct. App. 1995). We
first look at the language of the statute and if that language is clear and
unambiguous, we construe the statute in accordance with its ordinary
meaning. Id. at 828, 536
N.W.2d at 724. A statute is ambiguous
if it is capable of being understood by reasonably well-informed persons as
having two or more different meanings. Id. If the statute is ambiguous, then we may
examine its content, subject matter, scope, history and purpose. Id. Upon reviewing the Commissioner's factual findings, we shall not
substitute our judgment for that of the agency as to the weight of the evidence
on any disputed finding of fact if that fact is supported by substantial
evidence in the record.
Section 227.57(6), Stats.
We
do, however, defer to an agency's legal conclusions in certain instances:
First, if the administrative agency's experience,
technical competence, and specialized knowledge aid the agency in its
interpretation and application of the statute, the agency determination is
entitled to "great weight."
The second level of review provides that if the agency decision is
"very nearly" one of first impression it is entitled to "due
weight" or "great bearing."
The lowest level of review, the de novo standard, is applied
where it is clear from the lack of agency precedent that the case is one of
first impression for the agency and the agency lacks special expertise or
experience in determining the question presented.
Jicha v. DILHR, 169 Wis.2d 284, 290-91, 485 N.W.2d 256, 258-59 (1992)
(citations omitted).
CNW
argues that because this is a case of first impression, we owe no deference to
the Commissioner's order. This appeal
involves two major issues:
(1) whether compliance with all of the paragraphs contained in
§ 88.87(2), Stats., is a
prerequisite to the Commissioner having the authority to act under § 88.87(4);
and (2) whether the Commissioner may order CNW to make improvements when
CNW's grade has not been shown to have caused flooding. These are issues of statutory interpretation
and the District has not shown that the Commissioner has decided these issues
or similar ones. When, as here, we have
issues of first impression and the agency has no special expertise or
experience in deciding them, we will review the Commissioner's legal decisions de
novo. Jicha, 169 Wis.2d
at 291, 485 N.W.2d at 259.
I.
CNW
argues that the District did not have standing to initiate this administrative
proceeding under § 88.87(4), Stats.,
because the requirements of § 88.87(2), including para. (2)(c), were not
satisfied before the District filed its petition. According to CNW, before a petition may be filed pursuant to §
88.87(4), CNW's grade must have already caused past flooding, the railroad must
be given an opportunity to correct the cause of the water damage or to acquire
rights to use the flooded land, or it must have denied an injured landowner's
claim. Section 88.87(2)(c). We disagree.
Section 88.87(4),
Stats., provides:
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.
Contrary to CNW's assertions, sub. (4) does not state
that the railroad company must comply with "all of sub. (2)" before
the Commissioner may investigate and determine the matter in controversy. It states that a railroad company must first
"comply with sub. (2)." We
read that language as requiring compliance with those parts of sub. (2) which
are germane to the matter in controversy.
Section
88.87(2)(a), Stats., provides in
relevant part:
Whenever any ...
railroad company ... has heretofore constructed and now maintains or hereafter
constructs and maintains any ... railroad grade in or across any ... 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 imposes an affirmative duty on a railroad
to refrain from impeding the general flow of water in an unreasonable manner
when constructing or maintaining a railroad bed. See Van v. Town of Manitowoc Rapids, 150 Wis.2d
929, 930, 442 N.W.2d 557, 558 (Ct. App. 1989).
Section
88.87(2)(c), Stats., provides in
relevant part:
If a ... railroad
company ... constructs and maintains a ... railroad grade not in accordance
with par. (a), any property owner damaged by the ... railroad grade may, within
3 years after the alleged damage occurred, file a claim within the appropriate
governmental agency or railroad company....
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.
This paragraph imposes procedural prerequisites upon a
landowner who is claiming that a railroad caused damage by past flooding before
a petition may be filed under § 88.87(4).
It
is undisputed that CNW's grade has not caused past flooding. But according to engineers' reports, once
the capacity of the Edgerton Channel is increased, the grade will cause
flooding and damage. Section
88.87(2)(c), Stats., is triggered
only when flooding and damage has already occurred and provides remedial steps
which may be taken by the railroad. If
we read sub. (4) as requiring compliance with para. (2)(c) before a petition
could be filed under sub. (4), then the Commissioner could not act to prevent
certain harm and damage. This is
unreasonable. We conclude that para.
(2)(c) is only applicable when a party is filing a claim against a railroad for
damage and not when a party is trying to prevent it.[2]
In
Lemonweir River Drainage Dist. v. Chicago, M., St. P. & P. R.R.,
199 Wis. 46, 49, 225 N.W. 132, 133 (1929), the supreme court relied upon
§89.65, Stats., 1929, which is
similar to § 88.87, Stats.,
to conclude that the legislature intended to give the Commissioner the
authority to avoid harm.[3] This same intent is now expressed in
§ 88.87(1), Stats., in which
the legislature provides: "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 ... railroad grade construction ...." Thus, in order for the Commissioner to
implement this intent, compliance with para. (2)(c) is not necessary when a
railroad's grade has not, but will, cause damage.
But
CNW argues that this reading of § 88.87(4), Stats., renders § 88.87(2)(c) superfluous. We are not to read statutes in a manner that
leaves parts of a statute meaningless. Kelley
Co. v. Marquardt, 172 Wis.2d 234, 250, 493 N.W.2d 68, 76 (1992). But our interpretation of sub. (4) does not
excise the procedural requirements of para. (2)(c) from § 88.87(2). Indeed, property owners who have incurred
actual damage and who seek court action still must comply with para. (2)(c)
before filing a petition under sub. (4).
Van, 150 Wis.2d at 934, 442 N.W.2d at 559. But here, damage has not yet, but will,
occur. Thus, we believe that a better
reading of sub. (4) is one that allows the District to petition the
Commissioner when damage is certain to occur but before that damage has
occurred.
II.
CNW
further asserts that § 88.87(4), Stats.,
does not apply prospectively to permit the Commissioner to act when there is no
finding that a railroad has caused any actual harm. Specifically, CNW argues that in order for the Commissioner to
require CNW to protect against future damage, the District must first
demonstrate that CNW's grade actually impeded the general flow of water and
that any impediment to the flow has already caused an unnecessary or
unreasonable accumulation of waters.
CNW asserts that while the Commissioner found that CNW's grade will
impede the channel's flow in the future, the prospect of future flooding is
insufficient to trigger the remedy provided in § 88.87(4). We disagree.
Section 88.87(2),
Stats., imposes a duty on a
railroad to refrain from impeding the general flow of water in an unreasonable
manner when constructing or maintaining railroad grades. See Van, 150 Wis.2d at 930,
442 N.W.2d at 558. The legislature's
intent to give the Commissioner the authority to protect landowners before
damage has occurred is expressed in § 88.87(1), Stats., which provides:
It is recognized
that the construction of highways and railroad grades must inevitably result in
some interruption of and changes in the pre-existing 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.
(Emphasis added.)
We conclude that the legislature used this "protection"
language to indicate that it not only intended to assist property owners
already damaged, but that it also intended to shield them from circumstances
that would cause future damage. This
conclusion is further supported by language in § 88.87(2)(b), Stats., which provides:
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).
Permitting the District to file a petition under §
88.87(4) to prevent future flooding is consistent with this policy.
Indeed,
the supreme court has concluded that a statute similar to § 88.87, Stats., imposes on a railroad an
ongoing duty to accommodate increased floodwaters impeded by a grade or
embankment. Lemonweir,
199 Wis. at 49-50, 225 N.W. at 133. In
that case, the court wrote:
[The statute] is but a declaration of the common-law
rule that a railroad company crossing with its roadbed a natural watercourse is
bound to construct its roadbed so as not to materially interfere with the
natural flow of such watercourse; and further, that such duty is not a
once-and-for-all duty and forever discharged by a proper original construction
over such stream, but is a continuing one, and such railroad must adjust
such construction thereafter and, in the absence of statute to the contrary, at
its own expense, to meet changes in the condition of such watercourse arising,
either from natural causes, or by reason of any lawful enlargement of the flow
in the same because of construction such as are here in question.
Id. (emphasis added).
Following
this reasoning, we concluded in Soo Line, 170 Wis.2d at 555, 489
N.W.2d at 677, that:
the precedent supports our reading of the statute: the railroad "shall not impede the
general flow" of water, sec. 88.87(2)(a), Stats., and the duty not to
impede is "ongoing," Lemonweir, where the railroad now
"maintains" any grade across any drainage course, sec. 88.87(2)(a),
even if the increased flow arises from "changes in ... volume ... caused
by the erection of buildings, dikes and other facilities on privately owned
lands." Section 88.87(1), Stats.
We
conclude that the statutes and case law demonstrate that the legislature
intended to give the Commissioner the power to act before damage has
occurred. The Commissioner's finding
was based upon engineers' conclusions that when the channel's capacity was
increased, CNW's grade would cause flooding if it was not modified. Despite the absence of evidence that CNW's
grade did not cause past flooding, we nonetheless conclude that the
Commissioner had the authority to act in this case to prevent certain future
flooding.
III.
CNW's
final assertion is similar to the previous one albeit cast in other
language. CNW argues that it cannot be
ordered to modify its grade if there is no evidence that an unnecessary or
unreasonable accumulation of waters will arise from changes in natural
conditions or the enlargement of the water flow. To this end, it contends that under Lemonweir and Soo
Line, it has an ongoing duty to make improvements to its grade after it
completes the grade and after flooding occurs. Again, we disagree.
As
we concluded in the previous discussion, where evidence is presented that a
channel's water flow will increase from a planned change, § 88.87, Stats., does not require that those
changes be implemented before the Commissioner can act if doing so would cause
certain flooding. Furthermore, while Lemonweir
and Soo Line concerned factual scenarios in which flooding had
already occurred, the Commissioner's duty to protect against certain future
flooding is not grounded in those cases, but upon § 88.87 and its predecessor.
Indeed,
CNW's suggestion that the Commissioner cannot act unless flooding has taken
place is troublesome. We conclude that
it is entirely reasonable for the District to attempt to coordinate the
modifications to the channel by first requiring CNW to improve its grade to
accommodate the increased water flow.
Otherwise, at the very moment those changes in the channel are made,
flooding would result. As we said
above, it is within the Commissioner's authority to order CNW to make
modifications to its grade when the evidence demonstrates that an unreasonable
and unnecessary increase in water flow is certain to result. Accordingly, we affirm.
By
the Court.—Order affirmed.
No. 95-2509(D)
SUNDBY,
J. (dissenting). The Commissioner of
Railroads found as an ultimate fact that the Chicago and North Western Railway
Company (CNW) "has failed to adequately maintain the drainage facilities
through its railroad grade so as to avoid unreasonably impeding storm and
stream water and so as to avoid unnecessary accumulations of water at the
Edgerton Channel in the City of Cudahy, Milwaukee County." He therefore ordered that CNW "shall
install and maintain the drainage improvements as designed by the Milwaukee
Metropolitan Sewerage District in coordination with the overall Edgerton
Channel project." The
Commissioner's finding is clearly erroneous because it is undisputed that CNW
has maintained the drainage facilities through its railroad grade sufficient to
avoid the flooding of adjacent land.
However, CNW's drainage facilities will be inadequate when the Milwaukee
Metropolitan Sewerage District concludes the deepening and enlarging of the Edgerton
Channel.
The
District proposes to take preventive action based on the projections of the
Southeastern Wisconsin Regional Planning Commission that continuing
urbanization of previously rural open areas will increase flooding in the
Kinnickinnic River Watershed and cause extensive flood damage in the
future. The Commissioner concluded that
the projected future flood damage would not be caused directly by CNW's
railroad grade but by the overall inadequacy of drainage facilities beginning
at the drop structure just west of the railroad grade and continuing upstream.
Nevertheless,
the Commissioner ordered CNW to alleviate flooding caused by conditions over
which CNW has no control and could not have anticipated when it constructed its
railroad grade and provided culverts which met its obligation under
§ 88.87(2)(a), Stats., to
"not impede the general flow of surface water or stream water in any
unreasonable manner ...." Because
I do not believe that the legislature intended to empower the Commissioner to
order a railroad company to reconstruct its railroad grade to accommodate water
drainage problems anticipated in the future and not caused by the railroad, I
dissent.
The
purpose of § 88.87, Stats.,
is stated in sub. (1) where 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 ...."
(Emphasis added.) Paragraph
(2)(a) provides in part:
Whenever any ...
railroad company ... has heretofore constructed and now maintains ... any ...
railroad grade in or across any ... 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.
A railroad is required to construct its grades "to
the end of maintaining as far as practicable the original flow lines of drainage." Id. This provision is clear and unambiguous: A railroad in the construction of its grades
is to maintain as far as practicable the original flow lines of drainage. The statute is silent as to the railroad's
responsibility where conditions over which it has no control, such as
urbanization, disturb the original flow lines of drainage.
If
a railroad company fails to comply with sub. (2)(a), "any property owner
damaged [thereby] may, within 3 years after the alleged damage occurred, file a
claim with the appropriate governmental agency or railroad company." Section 88.87(2)(c), Stats. The district
does not claim that it is a property owner damaged by CNW's existing railroad
grade. The majority transmutes a
statute intended to protect property owners from flooding damage caused by
construction of a railroad grade into a vehicle by which railroad companies are
compelled to relieve other public authorities of their duties to control water
drainage and flooding.
The
Commissioner found his authority in § 88.87(4), Stats., which provides:
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.
It is undisputed that CNW did not fail to comply with
sub. (2); it has not damaged any owner's property by impeding the flow of
surface water or stream water.
Therefore, there is no person aggrieved who could file a complaint with
the Commissioner. The majority engages
in judicial legislation when it ignores the plain language of sub. (4) and
concludes that sub. (2) applies only to the extent "germane to the matter
in controversy." Maj. op. at
7.
Despite
the clear language of the introductory clause of sub. (4), the majority chooses
only so much of the language of sub. (2) as serves its purpose. We have been rightly admonished that we are
not to enlarge or restrict the meaning of a statute by judicial construction
when the language of the statute is clear.
See State ex rel. Girouard v. Circuit Court, 155
Wis.2d 148, 156, 454 N.W.2d 792, 795 (1990).
The majority's restriction of the introductory clause to sub. (4) to
only part of sub. (2) is classic judicial legislation because the plain
language of the statute does not permit the construction adopted.
I
read sub. (4) to provide an alternative to the filing of a damage claim by a
property owner aggrieved by the failure of a railroad company to comply with
sub. (2). The property owner may
consider that his or her damage remedy is insufficient. Further, sub. (4) permits the Commissioner
to make an order which may obviate the necessity of the landowner bringing
repeated actions for damages for each flooding. In the consolidation and revision of former §§ 88.38 and
88.40, Stats., into § 88.87,
Stats., the legislature repealed
the provision which gave the landowner a right to bring repeated actions for
damages for flooding or water-soaking of lands.
In
Girouard, the supreme court condemned our practice of finding an
unambiguous statute ambiguous and resorting to legislative history to change
the meaning of the plain language of the statute. Here, the majority does not bother to find the language of the
statute ambiguous; by judicial fiat, it restricts the meaning of the introductory
phrase of sub. (4) to reach its desired result. I do not suggest that we are not in the business of construing
statutes, but I believe the law is clear that we are not to change the meaning
of statutory language by judicial construction.
The
majority concludes that case law "demonstrate[s] that the legislature
intended to give the Commissioner the power to act before damage has
occurred." Maj. op. at 13. The cases relied on by the District and the
Commissioner are Lemonweir River Drainage Dist. v. Chicago, M., St. P.
& P. R.R., 199 Wis. 46, 225 N.W. 132 (1929), and Soo Line
R.R. Co. v. Office of Comm'r of Transp., 170 Wis.2d 543, 489 N.W.2d 672
(Ct. App. 1992). However, neither of
these cases is precedent for the conclusion reached by the majority. Lemonweir is not precedential
because the statute construed was § 89.65, Stats., 1927, of the Drainage District Law. That statute empowered drainage districts to
order railroad companies to enlarge the waterway if a culvert maintained by it
obstructed a natural watercourse or natural draw. The drainage district began its action to compel the railroad to
remove certain material under a culvert on its right of way which obstructed a
natural watercourse. CNW does not
obstruct a natural watercourse. The
court said that the statute:
is but a declaration of the common-law rule that a
railroad company crossing with its roadbed a natural watercourse is
bound to construct its roadbed so as not to materially interfere with the
natural flow of such watercourse; and further, that such duty is not a once-and-for-all
duty and forever discharged by a proper original construction over such stream,
but is a continuing one, and such railroad must adjust such construction
thereafter and, in the absence of statute to the contrary, at its own expense,
to meet changes in the condition of such watercourse arising, either from
natural causes, or by reason of any lawful enlargement of the flow in the same
because of constructions such as are here in question. This must especially be so where the railway
company is a party to the original drainage proceedings as it was here.
Lemonweir, 199 Wis. at 49-50, 225 N.W. at 133 (emphasis added).
Section
89.65, Stats., 1927, was directed
at a situation far different from that involved here. It is one thing to impose on a railroad company the continuing
duty not to obstruct a natural watercourse and a far different thing to require
a railroad company to be forever bound to alter its railroad grade and culverts
to accommodate the increased flow of surface water caused by urbanization and
other factors over which the company has no control.
Further,
in Lemonweir, the railroad was a party to the organization of the
drainage district and was awarded damages on account of the proposed
construction of the drainage system. I
find it significant that the provision construed by the Lemonweir
court was included in ch. 89, Stats.,
of the statutes, while the predecessor statutes to § 88.87, Stats., were contained in ch. 88, Stats., 1927.
In
the same term in which the court decided Lemonweir, it also
decided Chicago B. & Q. R.R. v. Railroad Comm'n, 199 Wis.
342, 226 N.W. 286 (1929). The court
there construed the predecessor statutes to § 88.87, Stats.—§§ 88.38 and 88.40, Stats., 1925. The railroad commission required the railroad company to
construct a suitable opening through the company's embankment to allow water to
pass from defendant's upland at a point where the waters originally discharged
to the lower levels. The court held
that the order of the commission was unreasonable and void because the statute
which is now § 88.87(2)(c) gave to the landowner a remedy if he had been
wrongfully damaged. The court stated:
The statute is intended to meet the conditions found in
constructing highways and railroads in a reasonable and practical manner. Necessarily there must be some change in
such cases in the natural discharge of waters.
The statutes of this state and the decisions of this court clearly recognize
that fact. The waters in question are
surface waters, recognized at common law as a common enemy, which might be held
back by the owner of lower lands by embankments resulting in changing their
natural discharge. Secs. 88.38 and
88.40 were intended to give a measure of relief to the owner of the upland from
the rule of the common law.... The
statute does not require that the waters shall be permitted to discharge in
their natural condition, but that suitable provision shall be made for their
discharge. The railroad company made
such provision when it built its road, and for forty years there was no
complaint.
Id. at 346, 226 N.W.2d at 287-88 (citations omitted).
Thus,
the court construed what is now § 88.87, Stats.,
to give an aggrieved property owner a remedy in damages. The court concluded that what is now
§ 88.87(4) did not empower the railroad commission to compel the railroad
to reconstruct its right of way to accommodate a change in the course of surface
waters for which the railroad had no responsibility. I conclude that this case is dispositive and requires that we
reverse the order of the Commissioner.
The
District and the Commissioner also rely on Soo Line R.R. Co. v. Office of
Comm'r of Transp. Our decision
in that case is much closer to the fact situation involved herein. However, the crucial difference is that in Soo
Line the railroad's grade presently obstructed surface water flow. Here, whether CNW's grade will obstruct
surface water in the future is entirely speculative. I see nothing in the language of the statute which permits the
Commissioner to make an order against a railroad on the basis of predictions as
to the amount and direction of surface water flow, despite the credentials of
the predictor. The Commissioner has no
jurisdiction to issue an order against the railroad unless it "fails to
comply with sub. (2)." The
Commissioner did not find that CNW had failed to comply with sub. (2). CNW has not impeded the general flow of
surface water or stream water "in any unreasonable manner." The Commissioner did not make a finding to
that effect. In fact, the Commissioner
conceded that CNW's railroad grade did not impede the general flow of surface
water or stream water in any manner.
While
I do not believe that § 88.87, Stats.,
is ambiguous, a review of the legislative history of the statute confirms my
view of its provisions. Section 88.87
was created by Laws of 1963, ch. 572, § 2. The Committee Comment is as follows:
This section is a
consolidation and revision of ss. 88.38 and 88.40. It makes several changes in the law. It recognizes that, under modern methods of highway construction,
it is impossible to maintain the free and unobstructed flow and percolation of
water as required by former s. 88.38.
It therefore substitutes the requirement that sound engineering
practices be employed and that the flow of surface or stream water not be
impeded in any unreasonable manner so as to cause any unnecessary accumulation
of water. It repeals the provisions
which, under s. 88.38(1), gave the landowner a right to bring repeated actions
for damages for flooding or water-soaking of lands located on the upper side of
the highway and, under s. 88.38(1m), for flooding or water-soaking lands
located on the lower side of the highway.
Instead, the landowner is required either to sue for equitable relief or
to bring an action of inverse condemnation to recover compensation for the
taking of the land by flooding or water-soaking. This section also imposes a duty upon the landowner to refrain
from impeding or diverting surface or stream water in such a way as to cause
damage to or flooding of highways. The
former section only imposed duties upon the highway authorities and failed to
impose any such correlative duty upon landowners.
Committee Comment, 1963, Wis. Stat. Ann. § 88.87 (West 1990).
The
predecessor statute to § 88.87, Stats.,
was first created by Laws of 1913, ch. 159.
That statute was later numbered § 88.38, Stats. The statute
was solely a damage statute which gave to persons injured by the flooding of
their land by a railroad company a right to damages. Shortly after its enactment, the supreme court held that the
statute did not empower the Railroad Commission to enforce it. Chicago & N. W. Ry. Co. v.
Railroad Comm'n, 162 Wis. 91, 155 N.W. 941 (1916). The legislature subsequently conferred on
the Railroad Commission (now the Commissioner) power to enforce
§ 88.38. However, that statute did
not change the nature of the statute as purely a damage statute. See Laws of 1917, ch. 310.
The
claims procedure was added by an amendment to § 88.38(2), Stats., by Laws of 1961, ch. 661.
Throughout
its history, what is now § 88.87, Stats.,
has been a damage statute. I do not
disagree that the Commissioner may make an appropriate order to require the
railroad to take action to cease impeding surface or stream water in an
unreasonable manner. That, however, is
not what the Commissioner did in this case.
For these reasons, I dissent.
[1] Section 66.89(1), Stats., provides that the commission shall "[p]roject,
plan, design, construct, maintain and operate a sewerage system ...."
[2] CNW also asserts that pursuant to § 88.87(2)(c),
Stats., a claim may only be filed
by a damaged property owner and the District has not shown that it is a damaged
property owner. Because we conclude
that the procedural requirements of para. (2)(c) are not triggered in this
case, we need not address this issue. See
Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App.
1983) (this court need not address all issues when one is dispositive of the
appeal).