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Court rules against homeowners in runoff case

Sean Ryan
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Glen and Louann Hocking could have avoided a flooded house and a series of lawsuits if they had just grabbed a shovel and dug a trench, said engineer Lawrence Schmit.

The Hockings are suing their neighbors and the city of Dodgeville because, the couple claims, storm-water runoff from surrounding properties is flooding their basement. The Wisconsin Supreme Court on Thursday ruled against the Hockings.

The couple bought their Dodgeville house in 1978, according to court documents, but the land around it was empty until Wallace Rogers in 1989 built a subdivision. But Schmit, who designed the subdivision for Rogers in the late 1980s, said the development did not create the problem.

“(Water) always ran that way,” said Schmit, who owned Schmit Engineering & Surveying LLC, Dodgeville, before recently retiring. “Everything ran that way, but there was nothing the city or anybody else did with it.”

Before the subdivision project started, the Hockings had a small pond in their backyard from water that flowed downstream to their property, Schmit said. Their roof did not have gutters and spouts to direct water away from their foundations, he said.

Schmit said he tried to visit the house with some city leaders in the early 1990s, but the Hockings did not allow the visitors on the property.

“We went down in there to try to help him out, to tell him what to do,” Schmit said. “He wouldn’t listen.”

A message left at the Hocking residence was not returned by deadline.

The couple’s attorney, Christopher Stombaugh, said he cannot comment on the case because a separate appeal on the matter is still pending.

The Hockings filed their lawsuit in 2006, but could not sue Schmit or Rogers because the statute of limitations ran out. They instead claimed the city and surrounding property owners are responsible for flood damage.

That argument caught the Wisconsin Builders Association’s attention because, if the Hockings were successful, it would have hurt developers’ ability to sell homes, said Carl Sinderbrand, who filed a Supreme Court brief on behalf of the association. If homeowners were legally responsible for storm water that runs off of their land, they would become more leery of buying houses, said Sinderbrand, senior partner with Axley Brynelson LLP, Madison.

“It would create a very chilling effect on residential purchases,” he said. “Then, the question is: Is this a defect that the seller has to disclose or that the real estate agent has to disclose to the purchaser, and is there some liability?”

The decision protecting homeowners will not create more lawsuits against developers for runoff problems because builders and engineers are already legally responsible, Sinderbrand said. State runoff requirements have come a long way since 1989 when the Dodgeville subdivision was built, he said.

Schmit said engineers in the late 1980s did not have the computer technology to predict where water would flow from a project, and they weren’t required to make those predictions. He said it’s a moot question whether today’s technology could have kept the Hockings’ basement dry.

“For virtually no dollars,” Schmit said, “he wouldn’t have had any water problem.”

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