Van v. Town of Manitowoc Rapids, 88-2248

• Decision Date: 17 May 1989
• Docket Number: No. 88-2248,88-2248
• Citation: 442 N.W.2d 557,150 Wis.2d 929
• Parties: Carl VAN, and Judith Van, Plaintiffs-Appellants, v. TOWN OF MANITOWOC RAPIDS, Robert Braunel, Chairman, Reuben J. Schneider, Supervisor, and Clement Linsmeier, Supervisor, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 557

442 N.W.2d 557

150 Wis.2d 929

Carl VAN, and Judith Van, Plaintiffs-Appellants, v. TOWN OF MANITOWOC RAPIDS, Robert Braunel, Chairman, Reuben J. Schneider, Supervisor, and Clement Linsmeier Supervisor, Defendants-Respondents.

No. 88-2248.

Court of Appeals of Wisconsin.

Submitted on Briefs May 3, 1989.

Opinion Released May 17, 1989.

Opinion Filed May 17, 1989.

Patrick A. Dewane, Jr. of Dewane, Dewane, Kummer & Lambert, on the brief, for plaintiffs-appellants.

Robert P. Hurth, Jr. of Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay, on the brief, for defendants-respondents.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

This appeal concerns sec. 88.87(2), Stats., which imposes a duty on governmental entities to refrain from impeding the general flow of water in an unreasonable manner when constructing or maintaining highways or railroad beds. The statute creates a remedy for property owners who claim damages for violating this statute and establishes certain procedures to be followed in making a claim. Because Carl and Judith Van did not follow these procedures prior to commencing a lawsuit, the trial court granted summary judgment against them. We hold that these procedures are a mandatory condition precedent to filing a claim under the statute and affirm.

The Vans commenced this action against the town of Manitowoc Rapids and certain officials for damage to their land caused by flooding allegedly resulting from the town's installation or maintenance of a town road. The action was dismissed because of the Vans' failure to comply with the requirements of sec. 88.87(2), Stats. ¹

The statute requires that the notice of claim for the type of damage contemplated by the statute be given within ninety days after the alleged damages occurred. It is undisputed that the Vans failed to comply with this requirement. The statute also requires that the notice give a legal description of the property. The Vans gave merely their postal address. Finally, the statute allows a claim for inverse condemnation under ch. 32, Stats., or such other relief, other than damages, as may be just and equitable. The Vans' complaint makes no mention of inverse condemnation, but does ask for damages--though it also prays for such other relief as is just and equitable.

The Vans argue that although the statute contemplates a ninety-day notice, the town had actual notice because town officials were at the scene when the damages occurred. The Vans also argue that the legal description was not necessary because, again, the officials were at the property and had actual notice of the land which was the subject of the damage. The Vans further argue that under Wisconsin's liberal view of pleadings, their complaint did not have to be more particularized about the relief sought and even if it did, the trial court abused its discretion by not allowing an amendment so that the Vans could assert an inverse condemnation claim.

We do not find it necessary to discuss the last issue regarding whether the nature of the relief had to be more particularized since we hold that actual notice will not suffice to overcome the requirement that a notice of claim must be given within ninety days. Nor will actual notice work as an alternative to providing a legal description of the property in a formal written claim.

None of the pertinent facts is in dispute. The construction of a statute in relation to a given set of facts is a question of law, and therefore, we need not give any deference to the trial court. Local Union No. 2490 v. Waukesha County, 143 Wis.2d 438, 444, 422 N.W.2d 117, 119-20 (Ct.App.1988).

The Vans' legal argument can be summarized as claiming that actual notice by the town of both the date of damage and the location of the land that was damaged suffices as an alternative to a formal notice that must be given within ninety days and must contain a legal description. In support, the Vans direct our attention to sec. 893.80(1), Stats., which is a notice of injury statute. It contains a "savings clause" whereby the failure to give notice is excused if actual notice can be established. The Vans conclude that the same should be appropriate here.

The Vans' argument is incorrect and their reliance upon sec. 893.80, Stats., is misplaced. Notice of injury statutes perform an entirely different function than do the notice of claim statutes. Notice of injury statutes allow the governmental authorities an opportunity to investigate the matter. Elm Park Iowa, Inc. v. Denniston, 92 Wis.2d 723, 730, 286 N.W.2d 5, 8 (Ct.App.1979). Notice of claim statutes provide the government authorities with an opportunity to effect a compromise short of lawsuit and alerts them of possible expenses so...