(dissenting). The Commissioner of Railroads found as an ultimate fact that the Chicago and North Western Railway Company (CNW) "has failed to adequately maintain the drainage facilities through its railroad grade so as to avoid unreasonably impeding storm and stream water and so as to avoid unnecessary accumulations of water at the Edgerton Channel in the City of Cudahy, Milwaukee County." He therefore ordered that CNW "shall install and maintain the drainage improvements as designed by the Milwaukee Metropolitan Sewerage District in coordination with the overall Edgerton Channel project." The Commissioner's finding is clearly erroneous because it is undisputed that CNW has maintained the drainage facilities through its railroad grade sufficient to avoid the flooding of adjacent land. However, CNW’s drainage facilities will be inadequate when the Milwaukee Metropolitan Sewerage District concludes the deepening and enlarging of the Edgerton Channel.
The District proposes to take preventive action based on the projections of the Southeastern Wisconsin Regional Planning Commission that continuing urbanization of previously rural open areas will increase flooding in the Kinnickinnic River Watershed and cause extensive flood damage in the future. The Commissioner concluded that the projected future flood damage would not be caused directly by CNW's railroad grade but by the overall inadequacy of drainage facilities beginning at the drop structure just west of the railroad grade and continuing upstream.
Nevertheless, the Commissioner ordered CNW to alleviate flooding caused by conditions over which CNW has no control and could not have anticipated when it constructed its railroad grade and provided culverts which met its obligation under § 88.87(2)(a), *18STATS., to "not impede the general flow of surface water or stream water in any unreasonable manner . . . Because I do not believe that the legislature intended to empower the Commissioner to order a railroad company to reconstruct its railroad grade to accommodate water drainage problems anticipated in the future and not caused by the railroad, I dissent.
The purpose of § 88.87, Stats., is stated in sub. (1) where the legislature finds "that it is necessary to control and regulate the construction and drainage of all highways and railroad grades so as to protect property owners from damage to lands caused by unreasonable diversion or retention of surface waters due to a highway or railroad grade construction . . . ." (Emphasis added.) Paragraph (2)(a) provides in part:
Whenever any . . . railroad company . . . has heretofore constructed and now maintains . . . any . . . railroad grade in or across any . . . natural or man-made channel or drainage course, it shall not impede the general flow of surface water or stream water in any unreasonable manner so as to cause either an unnecessary accumulation of waters flooding or water-soaking uplands or an unreasonable accumulation and discharge of surface waters flooding or water-soaking lowlands.
A railroad is required to construct its grades "to the end of maintaining as far ás practicable the original flow lines of drainage." Id. This provision is clear and unambiguous: A railroad in the construction of its grades is to maintain as far as practicable the original flow lines of drainage. The statute is silent as to the railroad's responsibility where conditions over which it has no control, such as urbanization, disturb the original flow lines of drainage.
*19If a railroad company fails to comply with sub. (2)(a), "any property owner damaged [thereby] may, within 3 years after the alleged damage occurred, file a claim with the appropriate governmental agency or railroad company." Section 88.87(2)(c), STATS. The district does not claim that it is a property owner damaged by CNW's existing railroad grade. The majority transmutes a statute intended to protect property owners from flooding damage caused by construction of a railroad grade into a vehicle by which railroad companies are compelled to relieve other public authorities of their duties to control water drainage and flooding.
The Commissioner found his authority in § 88.87(4), Stats., which provides:
If a railway company fails to comply with sub. (2), any person aggrieved thereby may file a complaint with the office of the commissioner of railroads setting forth the facts.. The office shall investigate and determine the matter in controversy in accordance with ch. 195, and any order it makes in such proceeding has the same effect as an order in any other proceeding properly brought under ch. 195.
It is undisputed that CNW did not fail to comply with sub. (2); it has not damaged any owner’s property by impeding the flow of surface water or stream water. Therefore, there is no person aggrieved who could file a complaint with the Commissioner. The majority engages injudicial legislation when it ignores the plain language of sub. (4) and concludes that sub. (2) applies only to the extent "germane to the matter in controversy." Majority op. at 9.
Despite the clear language of the introductory clause of sub. (4), the majority chooses only so much of the language of sub. (2) as serves its purpose. We have *20been rightly admonished that we are not to enlarge or restrict the meaning of a statute by judicial construction when the language of the statute is clear. See State ex rel. Girouard v. Circuit Court, 155 Wis. 2d 148,156, 454 N.W.2d 792, 795 (1990). The majority's restriction of the introductory clause to sub. (4) to only part of sub. (2) is classic judicial legislation because the plain language of the statute does not permit the construction adopted.
I read sub. (4) to provide an alternative to the filing of a damage claim by a property owner aggrieved by the failure of a railroad company to comply with sub. (2). The property owner may consider that his or her damage remedy is insufficient. Further, sub. (4) permits the Commissioner to make an order which may obviate the necessity of the landowner bringing repeated actions for damages for each flooding. In the consolidation and revision of former §§ 88.38 and 88.40, STATS., into § 88.87, Stats., the legislature repealed the provision which gave the landowner a right to bring repeated actions for damages for flooding or water-soaking of lands.
In Girouard, the supreme court condemned our practice of finding an unambiguous statute ambiguous and resorting to legislative history to change the meaning of the plain language of the statute. Here, the majority does not bother to find the language of the statute ambiguous; by judicial fiat, it restricts the meaning of the introductory phrase of sub. (4) to reach its desired result. I do not suggest that we are not in the business of construing statutes, but I believe the law is clear that we are not to change the meaning of statutory language by judicial construction.
The majority concludes that case law "demonstrate^] that the legislature intended to give the *21Commissioner the power to act before damage has occurred." Majority op. at 15. The cases relied on by the District and the Commissioner are Lemonweir River Drainage Dist. v. Chicago, M., St. P. &P. R.R., 199 Wis. 46,225 N.W. 132 (1929), and SooLineR.R. Co. v. Office ofComm'r ofTransp., 170 Wis. 2d 543,489 N.W.2d 672 (Ct. App. 1992). However, neither of these cases is precedent for the conclusion reached by the majority. Lemonweir is not precedential because the statute construed was § 89.65, STATS., 1927, of the Drainage District Law. That statute empowered drainage districts to order railroad companies to enlarge the waterway if a culvert maintained by it obstructed a natural watercourse or natural draw. The dráinage district began its action to compel the railroad to remove certain material under a culvert on its right of way which obstructed a natural watercourse. CNW does not obstruct a natural watercourse. The court said that the statute:
is but a declaration of the common-law rule that a railroad company crossing with its roadbed a natural watercourse is bound to construct its roadbed so as not to materially interfere with the natural flow of such watercourse; and further, that such duty is not a once-and-for-all duty and forever discharged by a proper original construction over such stream, but is a continuing one, and such railroad must adjust such construction thereafter and, in the absence of statute to the contrary, at its own expense, to meet changes in the condition of such watercourse arising, either from natural causes, or by reason of any lawful enlargement of the flow in the same because of constructions such as are here in question. This must especially be so where the *22railway company is a party to the original drainage proceedings as it was here.
Lemonweir, 199 Wis. at 49-50, 225 N.W. at 133 (emphasis added).
Section 89.65, STATS., 1927, was directed at a situation far different from that involved here. It is one thing to impose on a railroad company the continuing duty not to obstruct a natural watercourse and a far different thing to require a railroad company to be forever bound to alter its railroad grade and culverts to accommodate the increased flow of surface water caused by urbanization and other factors over which the company has no control.
Further, in Lemonweir, the railroad was a party to the organization of the drainage district and was awarded damages on account of the proposed construction of the drainage system. I find it significant that the provision construed by the Lemonweir court was included in ch. 89, Stats., of the statutes, while the predecessor statutes to § 88.87, Stats., were contained in ch. 88, Stats., 1927.
In the same term in which the court decided Lemonweir, it also decided Chicago B. & Q. R.R. v. Railroad Comm'n, 199 Wis. 342, 226 N.W. 286 (1929). The court there construed the predecessor statutes to § 88.87, STATS. — §§ 88.38 and 88.40, STATS., 1925. The railroad commission required the railroad company to construct a suitable opening through the company's embankment to allow water to pass from defendant’s upland at a point where the waters originally discharged to the lower levels. The court held that the order of the commission was unreasonable and void because the statute which is now § 88.87(2)(c) gave to the landowner a remedy if he had been wrongfully damaged. The court stated:
*23The statute is intended to meet the conditions found in constructing highways and railroads in a reasonable and practical manner. Necessarily there must be some change in such cases in the natural discharge of waters. The statutes of this state and the decisions of this court clearly recognize that fact. The waters in question are surface waters, recognized at common law as a common enemy, which might be held back by the owner of lower lands by embankments resulting in changing their natural discharge. Secs. 88.38 and 88.40 were intended to give a measure of relief to the owner of the upland from the rule of the common law. . . . The statute does not require that the waters shall be permitted to discharge in their natural condition, but that suitable provision shall be made for their discharge. The railroad company made such provision when it built its road, and for forty years there was no complaint.
Id. at 346, 226 N.W.2d at 287-88 (citations omitted).
Thus, the court construed what is now § 88.87, STATS., to give an aggrieved property owner a remedy in damages. The court concluded that what is now § 88.87(4) did not empower the railroad commission to compel the railroad to reconstruct its right of way to accommodate a change in the course of surface waters for which the railroad had no responsibility. I conclude that this case is dispositive and requires that we reverse the order of the Commissioner.
The District and the Commissioner also rely on Soo Line R.R. Co. v. Office of Comm r ofTransp. Our decision in that case is much closer to the fact situation involved herein. However, the crucial difference is that in Soo Line the railroad's grade presently obstructed surface water flow. Here, whether CNW's grade will obstruct surface water in the future is entirely specula*24tive. I see nothing in the language of the statute which permits the Commissioner to make an order against a railroad on the basis of predictions as to the amount and direction of surface water flow, despite the credentials of the predictor. The Commissioner has no jurisdiction to issue an order against the railroad unless it "fails to comply with sub. (2)." The Commissioner did not find that CNW had failed to comply with sub. (2). CNW has not impeded the general flow of surface water or stream water "in any unreasonable manner." The Commissioner did not make a finding to that effect. In fact, the Commissioner conceded that CNW's railroad grade did not impede the general flow of surface water or stream water in any manner!
While I do not believe that § 88.87, Stats., is ambiguous, a review of the legislative history of the statute confirms my view of its provisions. Section 88.87 was created by Laws of 1963, ch. 572, § 2. The Committee Comment is as follows:
This section is a consolidation and revision of ss. 88.38 and 88.40. It makes several changes in the law. It recognizes that, under modern methods of highway construction, it is impossible to maintain the free and unobstructed flow and percolation of water as required by former s. 88.38. It therefore substitutes the requirement that sound engineering practices be employed and that the flow of surface or stream water not be impeded in any unreasonable manner so as to cause any unnecessary accumulation of water. It repeals the provisions which, under s. 88.38(1), gave the landowner a right to bring repeated actions for damages for flooding or water-soaking of lands located on the upper side of the highway and, under s. 88.38(lm), for flooding or water-soaking lands located on the lower side of the highway. Instead, the landowner is required either *25to sue for equitable relief or to bring an action of inverse condemnation to recover compensation for the taking of the land by flooding or water-soaking. This section also imposes a duty upon the landowner to refrain from impeding or diverting surface or stream water in such a way as to cause damage to or flooding of highways. The former section only imposed duties upon the highway authorities and failed to impose any such correlative duty upon landowners.
Committee Comment, 1963, WlS. STAT. Ann. §88.87 (West 1990).
The predecessor statute to § 88.87, Stats., was first created by Laws of 1913, ch. 159. That statute was later numbered § 88.38, Stats. The statute was solely a damage statute which gave to persons injured by the flooding of their land by a railroad company a right to damages. Shortly after its enactment, the supreme court held that the statute did not empower the Railroad Commission to enforce it. Chicago & N. W. Ry. Co. v. Railroad Comm'n, 162 Wis. 91,155 N.W. 941 (1916). The legislature subsequently conferred on the Railroad Commission (now the Commissioner) power to enforce § 88.38. However, that statute did not change the nature of the statute as purely a damage statute. See Laws of 1917, ch. 310.
The claims procedure was added by an amendment to § 88.38(2), Stats., by Laws of 1961, ch. 661.
Throughout its history, what is now § 88.87, Stats., has been a damage statute. I do not disagree that the Commissioner may make an appropriate order to require the railroad to take action to cease impeding surface or stream water in an unreasonable manner. *26That, however, is not what the Commissioner did in this case. For these reasons, I dissent.