This is an action for damages resulting from the flooding of the plaintiff's land. The plaintiff owned 20 acres of marshland in Deerfield, Dane county, adjoining U.S. Highway I-94. He had drained this land in October, 1963, and prepared it for planting corn in the spring of 1964.

In his complaint, the plaintiff alleged that the state highway commission, during the construction of Highway I-94 in the fall of 1963, blocked the highway ditch and failed to provide the proper drainage, causing the flooding of the plaintiff's land in the spring of 1964 and thereby rendering it useless for planting.

If sec. 88.38(2), Stats., were operative, the plaintiff would be able to bring an action for damages against the state for water damage resulting from its negligence in failing to construct the necessary ditches, culverts or outlets to prevent the flooding of adjacent land during the construction of the public highway. Mr. Niesen submitted a claim for damages to the highway commission on June 12, 1964, which was disallowed on July 9, 1964. Thereupon, he commenced this action on April 20, 1965.

Sec. 88.38, Stats., was repealed and re-created as sec. 88.87 by ch. 572, Laws of 1963. The new law, which became effective June 13, 1964, provides for an action by the property owner in inverse condemnation under ch. 32 or a suit for other relief but not for damages. The state alleged that the plaintiff has no cause of action for damages by reason of the repeal of sec. 88.38. The plaintiff contended that sec. 88.38 governs this action because it was the law when the wrongful act alleged in the complaint occurred.

The trial court found that the plaintiff's rights were governed by the law in effect when they accrued, namely, sec. 88.38, Stats. This ruling, according to the trial judge, was based upon his conclusion that sec. 990.04 preserves actions founded upon a repealed statute and permits them to be processed to final judgment despite the repeal.

Statute Involved.

990.04 "ACTIONS PENDING NOT DEFEATED BY REPEAL OF STATUTE. The repeal of a statute hereafter shall not remit, defeat or impair any civil or criminal liability for offenses committed, penalties or forfeitures incurred or rights of action accrued under such statute before the repeal thereof, whether or not in course of prosecution or action at the time of such repeal; but all such offenses, penalties, forfeitures and rights of action created by or founded on such statute, liability wherefor shall have been incurred before the time of such repeal thereof, shall be preserved and remain in force notwithstanding such repeal, unless specially and expressly remitted, abrogated or done away with by the repealing statute. And criminal prosecutions and actions at law or in equity founded upon such repealed statute, whether instituted before or after the repeal thereof, shall not be defeated or impaired by such repeal but shall, notwithstanding such repeal, proceed to judgment in the same manner and to the like purpose and effect as if the repealed statute continued in full force to the time of final judgment thereon, unless the offenses, penalties, forfeitures or rights of action on which such prosecutions or actions shall be founded shall be specially and expressly remitted, abrogated or done away with by such repealing statute."

GORDON, J.

Although sec. 88.38(2), Stats., was repealed by the session laws of 1963, the repealing statute was not effective until June 13, 1964. It is clear that Mr. Niesen's cause of action arose prior to the effective date of the new statute.

Mr. Niesen was entitled to pursue a cause of action for damages if sec. 88.38(2), Stats., governed. The appellant contends, however, that sec. 88.87, which was adopted by ch. 572, Laws of 1963, both abolished sec. 88.38(2) and obliterated the right of Mr. Niesen to seek damages in his complaint.

The trial court concluded that the plaintiff's rights are governed by sec. 88.38(2), Stats., which was the law in effect at the time the cause of action arose. The trial court relied upon those provisions of the Wisconsin statutes which preserve actions founded upon repealed statutes when the repealing statute does not expressly negative accrued rights.

Our understanding of sec. 990.04, Stats., necessitates the affirmance of the learned trial court's conclusion. We believe it is the clear intention of sec. 990.04 to preserve all rights which may have arisen before the repeal of a statute unless such rights are "specially and expressly remitted, abrogated or done away with by the repealing statute." A careful examination of sec. 88.87 fails to disclose any language which can fairly be construed to reflect the legislature's intention to terminate rights of action which had accrued under sec. 88.38(2) prior to its repeal.

The state relies upon several Wisconsin cases, such as Dillon v. Linder (1874), 36 Wis. 344, which assert that a cause of action wholly created by a statute becomes nonexistent when such statute is repealed unless continuance of the right is expressly reserved. The divergence between sec. 990.04, Stats., and the Dillon Case is readily apparent. We think that the answer lies in the fact that sec. 990.04 (sec. 4974, Stats. 1878) was revised in 1878, after the decision in the Dillon Case. The purpose for the revision was expressed in Miller v. Chicago N.W. R. Co. (1907), 133 Wis. 183, 189, 113 N.W. 384, where the court stated:

"In that case [ Dillon v. Linder] a right which existed under a repealed law at the time of such repeal was involved. It was sought to enforce it nevertheless, under sec. 33, ch. 119, R.S. 1858, which in terms saved pending actions but did not expressly save existing causes of action. By applying the rule of strict construction, perhaps to the limit of reasonableness, it was held that the right did not survive the repeal, and, therefore, that the general law saving pending actions was ineffective. That led, as the revisers' notes show, to a change in the law to the form we now have for the very purpose of preventing, in the future, the mere repeal of a statute from defeating existing rights." (Emphasis added.)

See also H. W. Wright Lumber Co. v. Hixon (1899), 105 Wis. 153, 159, 80 N.W. 1110, 80 N.W. 1135; Garland v. Hickey (1889), 75 Wis. 178, 184, 43 N.W. 832.

The state also points to Will of Robinson (1935), 218 Wis. 596, 261 N.W. 725, where the court distinguished between statutes which wholly created rights and those which merely regulated or defined existing rights. In our opinion, cases such as Will of Robinson do not clash with our present interpretation of sec. 990.04, Stats. but rather they relate to the competency of the legislature to affect vested rights by subsequent legislation. In the case at bar, the legislature did not purport to affect Mr. Niesen's accrued cause of action, and under sec. 990.04, he is entitled to pursue it.

We conclude that rights which had arisen in favor of the plaintiff under sec. 88.38(2), Stats., prior to its being repealed are preserved to Mr. Niesen by sec. 990.04. Any language in the Dillon Case to the contrary is resolved by the legislative revision of sec. 990.04 in 1878. Waddell v. Mamat (1955), 271 Wis. 176, 182, 72 N.W.2d 763.

By the Court. — Order affirmed.