What is Common Drainage Law?
Drainage Common law is that body of principles found in court decisions based on customs, practices, and precedents that have evolved and are unwritten in statute or code. According to Harold H. Ellis (1), Wisconsin's common law rules relating to diffused surface waters are as follows:
- A lower owner may legally treat diffused surface waters as his enemy and prevent them from coming onto his land.
- The upper owner has a right to alter the natural flow of diffused surface waters and may discharge them upon lower land, subject to the following limitations:
- The water must be expelled onto the lower land without malice.
- The actions of the upper owner may extend no further than reasonably necessary to protect himself or his land.
- Such water may not be diverted into another watershed.
- The upper owner may not unduly collect such waters in a pond or reservoir and thereafter discharge them on his neighbor's land or on his own land in such close proximity to his neighbor that they will inevitably permeate and percolate so as to permanently injure the neighbor's soil.
- Since the upper owner must not be negligent and he must be reasonable in his use and improvement of his land, Wisconsin has moved to a middle ground, lying somewhere between the "common enemy rule (2)” and the "reasonable use rule (2)".
- Ellis, Harold H.; Beuscher, J.H.; Howard, Cletus D.; De Braad, J. Peter; "Water-Use Law and Administration in Wisconsin," Department of Law, University Extension, The University of Wisconsin, First Edition, 1970, 694 pp.
- "Guidelines for the Legal Aspects of Highway Drainage," Volume V-Highway Drainage Guidelines, AASHTO, 2007, 24 pp.
When will the City of Marshfield consider ditching or drainage work on my private property?
When the water entering upon private property is from a municipality owned right of way or City owned property and when this water entering the private property is causing “Property Damage”. Note, “Property Damage” is when the water entering from a city owned right of way or city owned property causes or has a high probability of causing damage to a residential or commercial structure. Standing water on a private parcel or lawn is not considered “Property Damage”.
For more information, contact Engineering by phone at 715-486-2034 or e-mail
What has to happen before the city can do work on a private property for drainage purposes if the stormwater is from a City owned right of way or property?
- The city shall obtain all necessary easements from all affected property owners before any work can begin.
- In many instances the proposed work will have to be placed in the City’s Capital Improvement Program for funding and project ‘year’ placement (year of proposed construction). Since the City of Marshfield does not have a stormwater utility any funding for stormwater improvements will compete against all other capital projects such as streets, sanitary sewers, storm sewers, building and economic development projects funded through the annual municipal budget.
- Stormwater works completed as part of the City’s Capital Improvement Program in almost all instances is subject the City’s special assessments ordinances. This means that the costs for construction as part of stormwater improvements will be assessable against all benefiting properties. In simple terms all costs associated with stormwater improvement projects shall be assessed to the adjacent benefiting property owners.
What happens when stormwater from an upland property owner enters my property and the upstream owner is not the municipality?
- If the upstream property owner is “developing” a parcel greater than one acre they must meet all provisions of the Municipal Code:
- Chapter 25 - CONSTRUCTION SITE EROSION CONTROL:
- Article I. Construction Site Erosion Control
- Article II. Post-Construction Storm Water Management
Can my neighbor discharge his sump pump onto my property?