Village of Lake Delton, WI, Not Liable To Flood Victims Below Dam

Wisconsin case law summary by Attorney Richard Clem: inverse condemnation.

Timothy Fromm v. Village of Lake Delton. inverse condemnation

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This case arose from the June 2008 flooding of Lake Delton, Wisconsin. The lake came into being in 1927 after the construction of a dam on Dell Creek near the confluence with the Wisconsin River. The dam consisted of a poured concrete section and an earthen embakement. The Village of Lake Delton took over ownership of the dam in 1994, and made no structural changes to the design prior to the flood. The dam contained two spillways and two floodgates that opened to a maximum height of six feet. In 2005, the Village altered the floodgates so that they opened only to four feet.

The plaintiff's property was about a quarter mile away from the dam in a "saddle" at an elevation lower than the lowest point on the dam's structure. The plaintiffs' property was about 1-1.5 feet lower elevation. During unusually heavy rains on June 7-9, 2008 (described variously as a 1000 year event or a 286 year event), water flowed over the "saddle" on which the plaintiff's property was located and on to the Wisconsin River. The water never overtopped the dam, but the flow through this saddle washed away much of the plaintiffs' land and buildings. The plaintiffs brought this action in Sauk County Circuit Court, and the case was heard by Judge James Evenson. The plaintiffs alleged that the Village's actions amounted to a taking under the Wisconsin Constitution and the Wisconsin Inverse Condemnation Statute, Wisconsin Statute 32.10.

The Village moved for summary judgment and argued that it had not engaged in any action that would support a takings claim. The Circuit Court agreed and granted the Village's motion for summary judgment. The plaintiffs then appealed to the Wisconsin Court of Appeals. In a published decision released on April 3, 2014, the Court of Appeals affirmed the Circuit Court's dismissal of the case.

The plaintiffs argued that the Village's actions caused the flooding event, and that therefore, those actions amounted to a taking of their property. They also argued that the court should apply a "per se" rule that the facts of the case amounted to a taking.

For the first argument, the plaintiffs pointed to two actions of the Village. First, they argued that limited the floodgates to four feet rather than six feet constituted action. However, the Court of Appeals pointed out that the plaintiffs did not establish any causation: They did not present any evidence showing that this action caused the flooding. The plaintiff's next argued that the Village was aware of the elevation difference, but failed to act on that information.

The Court of Appeals first noted some doubts as to whether the Village had this information. But they assumed, for the sake of argument, that the Village was aware of the elevation differential. Even so, the Court held that the Village's failure to act on this knowlege did not constitute a taking.

In so holding, the court relied heavily on a federal case arising out of the failure of the New Orleans levies prior to Hurricane Katrina, Nicholson v. United States, 77 Fed. Cl. 605 (Fed. Cl. 2007). In Nicholson, the Court of Federal Claims held that an affirmative action of the Government is necessary to form the basis of a taking. Mere failure to perform alleged duties did not constitute an action. The Court of Federal Claims in Nicholson did state that the case might be different if the floodwalls, as designed, had the effect of increasing flooding on the plaintiff's property. The plaintiffs in the Wisconsin case seized upon this language and argued that the design of the dam channeled the flood waters toward their property. But the Court of Appeals disagreed, and noted that the Village had not designed the dam in the first place. The Court stressed again that action is necessary for a takings claim, and that the Court should not scour the record looking for inaction.

The plaintiffs next argued that even in the absence of a specific action, the Court should hold that the facts of the case amounted to a per se taking. The plaintiffs argued that the placement of the dam created a de facto "flowage easement" across the plaintiffs' property. But the Court once again pointed out that all of the cases cited by the plaintiffs in support of this rule involved some affirmative action by the government, such as constructing the dam or opening a floodway. Since there was no specific action by the Village in this case, the Court declined to apply this rule.

For these reasons, the Court of Appeals affirmed the decision of the Circuit Court.

No. 2013AP14 (Wis. Ct. App. April 3, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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