As discussed previously in this blog,1 flooding continues to present a significant challenge across Wisconsin. Directing and controlling the drainage of surface water is a challenge that developers, farmers, and other property owners must grapple with.
But these parties must be aware of the “reasonable use” rule and potential consequences for diverting surface water to neighboring properties. The increase in higher intensity storm events is sure to make the reasonable use doctrine a more prevalent legal concept in Wisconsin as property owners grapple with protecting their lands from flooding.
U.W. 2014, is a senior associate at Stafford Rosenbaum in Madison, where he focuses on environmental and local government law, including on water issues affecting local governments.
Common Enemy Rule
Prior to 1974, Wisconsin utilized the “common enemy” rule for surface water drainage. The common enemy rule provided that:
[s]urface water is recognized as a common enemy, which each proprietor may fight off or control as he will or is able, either by retention, diversion, repulsion, or altered transmission; so that no cause of action arises from such interference, even if some injury occurs, causing damage.2
Thus, a property owner could divert surface water without penalty under the common enemy rule.
Establishing Reasonable Use: Deetz
Wisconsin’s Supreme Court recognized that the common enemy rule had become outdated and abandoned the rule in State v. Deetz.3 Deetz involved a developer whose construction activities led to runoff of fill material into Lake Wisconsin. The fill created sand bars in the lake, made it impossible for other residential owners to fish or swim in the area, and made parts of the lake unnavigable.
The Court determined that the reasonable use doctrine was more equitable than the “draconian” common enemy rule. Therefore, the Court determined a property owner could be liable for property damage if surface water drainage invaded another's interest in the private use and enjoyment of land, and the invasion was either:
intentional and unreasonable; or
unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
The Court determined that a discharge would be “unreasonable” if either:
the gravity of the harm caused by the discharge outweighs the utility of the conduct causing the discharge; or
the harm caused by the discharge is substantial and the financial burden of compensating for the harm does not render the conduct causing the discharge to become infeasible (e.g. compensating for the harm would not put the discharger out of business).
As applied in Deetz, the Court found that fill entering the lake was an intentional harm, but remanded the case because the developer did not have an opportunity to prove the social utility of the development would have outweighed the harm caused.
Thus, there is a balancing of any harm caused and the utility of the actions. On remand, the Court required balancing of several factors in the gravity of harms analysis:
the extent of the harm involved;
the character of the harm involved;
the social value which the law attaches to the type of use or enjoyment invaded;
the suitability of the particular use or enjoyment invaded to the character of the locality; and
the burden on the person harmed of avoiding the harm.
Conversely, the Court established utility factors to consider:
the social value which the law attaches to the primary purpose of the conduct;
the suitability of the conduct to the character of the locality;
whether it is impracticable to prevent or avoid the invasion, if the activity is maintained; and
whether it is impracticable to maintain the activity if it is required to bear the cost of compensating for the invasion.
Although the Court did not apply these factors itself, Deetz nonetheless establishes the tests to be used in all reasonable use cases.
Evaluating Substantial Harm Analysis: Willemsen
The 1986 case Crest Chevrolet-Oldsmobile-Cadillac, Inc. v. Willemsen,4 provides an example of how the courts evaluate the substantial harm analysis (as opposed to utility balancing test) to determine if a discharge is reasonable.
In Willemsen, the Willemsens filled their property to raise its elevation. That fill redirected water flow to the neighboring property, a car dealership. Prior to the fill, water flowed from the car dealership to the Willemsen property. As a result of the fill, the car dealer had to spend thousands of dollars to hook up to a stormwater system so water would properly drain from the property.
The Court determined that the water diversion was unreasonable by weighing the costs of remediating the flooding issues versus the costs to the offending property owner. Although the Court did not evaluate the utility of the project, it still applied the gravity of harms factors and ruled the harm to the dealership was serious. The dealer spent thousands of dollars to remediate the damages, had to resurface pavement as a result of the water pooling, and was left with unproductive property during heavy rains or snow melts.
After finding the harm substantial, the Court determined that the costs to compensate the car dealer were not infeasible for Willemsen, because the total costs were only a fraction of the amount spent developing the neighboring property.
A Recent Reasonable Use Case: Hocking
The 2009 case Hocking v. City of Dodgeville5 provides a more recent example of how Wisconsin’s Supreme Court evaluate the reasonable use rule.
The Hockings owned property that never had flooding issues. However, a developer built a residential subdivision located upland from the Hockings, and subsequently flooding began to occur on the Hockings’ property. The Hockings sued the developer, the developer’s engineer, and the owner of a home in the residential subdivision for negligence.
The Court focused strictly on the other homeowner’s liability. Interestingly, the Court did not evaluate any factors outlined in Deetz, but only examined whether the reasonable use doctrine created a duty for the homeowner under Wisconsin’s negligence test. As applicable to the defendant homeowner, the Court stated there would be a “positive duty to abate this nuisance only if the use of their property had altered the flow of surface water and was an unreasonable use of their property.”
The Court found no duty existed, because the defendant property owners’ use of the property was not unreasonable. The owner “merely purchased a home, lived in that home, paid property taxes, and established a tie to the community in which they live. They are living the American dream by owning a home. Their conduct – living in their home – does not deviate from typical behavior.”
Instead, the Court opined that the developer would have allegedly caused all the flooding problems for the Hockings, not the residential homeowner. Thus, liability (if any) should have attached to the developer for creating the subdivision that caused the harm.
Conclusion: Consider Potential Ramifications
With flooding issues becoming an increasingly common challenge throughout Wisconsin, the reasonable use doctrine will likely lead to future litigation regarding how property owners protect their land from flooding.
Property owners will need to be aware of potential ramifications of installing drainage devices, such as drainage tiles for farmers, when attempting to alleviate drainage challenges.
This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section web pages to learn more about the benefits of section membership.
1 See Andrea Gelatt, Developing Flood Resilience in Wisconsin, Dec. 14, 2020; and Caleb Tomaszewski, Record High Great Lakes and Groundwater Levels Could Mean More Litigation, Nov. 4, 2020.
2 Borchsenius v. Chicago, St. P., M. & O.R. Co., 96 Wis. 448, 71 N.W. 884, 885 (1897).
3 State v. Deetz, 66 Wis. 2d 1 (1974).
4 Crest Chevrolet-Oldsmobile-Cadillac, Inc. v. Willemsen, 129 Wis. 2d 129 (1986).
5 Hocking v. City of Dodgeville, 2009 WI 70, 318 Wis. 2d 681, 768 N.W.2d 552.