Flooded owner may seek both inverse condemnation, equitable relief.

Byline: David Ziemer

When a property owner sues the Department of Transportation (DOT) pursuant to sec. 88.87, based on flooding after a road construction project, the owner may sue for both inverse condemnation or equitable relief, but may only obtain the equitable relief if condemnation is an inadequate remedy, the Wisconsin Court of Appeals held on May 9.

The court also held that venue for such an action may be in either Dane County or the county in which the property is located.

Road Construction

In 1997, the State began a road construction project on Highway 8 in Marinette County. Jill and Jeffrey Kohlbeck own a gas station and reside along a portion of the highway that underwent construction.

In 1999, the Kohlbecks served a notice of injury on DOT, claiming the State was negligent in its design, supervision, and maintenance of the construction project, and as a result, they suffered damages.

In 2000, the Kohlbecks filed suit in Dane County against DOT and Reliance Construction Co., Inc., the company that performed the construction project. The complaint alleged that the construction project diverted water to their property, causing environmental contamination.

DOT moved to dismiss, arguing that sec. 88.87 provided the sole remedy for the Kohlbecks, and that they failed to state a claim under that statute. The statute obligates governments to refrain from obstructing natural drainage when constructing and maintaining highways.

The statute also provides that when DOT fails to fulfill that duty, an injured 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."

Dane County Circuit Court Judge Sarah B. O'Brien granted DOT's motion to dismiss, agreeing that sec. 88.87 provide the exclusive remedy for damage due to flooding caused by road construction. Judge O'Brien also found that the complaint requested money damages only and that the Kohlbecks could not seek equitable relief because ch. 32 provides an adequate legal remedy.

The circuit court further concluded that, to the extent the complaint stated a claim under ch. 32, the complaint was required to be filed in Marinette County, and the court therefore lacked jurisdiction. Finally, the court concluded that the Kohlbecks could not assert a takings claim, because sec. 88.87 provided their exclusive remedy.

The Kohlbecks appealed, and the court of appeals reversed in a decision by Judge...