City of Algoma v. Peterson

Decision Date05 December 1939
Citation288 N.W. 809,233 Wis. 82
PartiesCITY OF ALGOMA v. PETERSON.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Door County; Henry Graass, Judge.

Reversed.

Action by city of Algoma against P. M. Peterson to enjoin construction of a gasoline service station, commenced July 11, 1938. From a judgment granting a permanent injunction, entered January 17, 1939, the defendant appeals. The facts so far as deemed material to disposition of the case are stated in the opinion.

Verne C. Lewellen, of Green Bay, for appellant.

S. Knudson, of Algoma, and W. E. Wagener, of Sturgeon Bay, for respondent.

FOWLER, Justice.

The action is by the city of Algoma to enjoin the defendant from proceeding with the construction of a gasoline service station in the city of Algoma. Trial was had to the court. Upon findings made by the court judgment was entered enjoining the construction and directing removal of such portions of the proposed plant as had been constructed prior to the issuance of the temporary injunction granted at commencement of the suit.

The action is based upon two hypotheses: (1) the structures were being erected without procuring a permit from the mayor and city engineer as required by the terms of an ordinance of the city; and (2) the erection of the structures will endanger the safety of pedestrians and automobiles traveling in the streets adjacent to the structures.

[1] (1) The circuit judge held that the ordinance under which the city claimed that a permit was required is void for want of prescribing any standard to control the authorities named in the granting or refusing of the permit. This holding is correct under the rule of City of Juneau v. Badger Cooperative Oil Co., 227 Wis. 620, 279 N.W. 666. The point is fully discussed in the opinion in that case and no discussion of it is necessary here. The ordinance held void by the trial court after prescribing “Fire limits” within the city provides:

“Before proceeding with the construction *** of any building within said fire limits, a permission therefor shall first be obtained by the owner or his agent from the mayor and chief engineer, and it shall be unlawful to proceed with such erection *** within said fire limits, unless such permit shall first have been obtained from said mayor and chief engineer. Said mayor and chief engineer are hereby authorized in their discretion to grant permits in this ordinance provided for.”

(2) The basis of the contention under (2) is in effect that the proposed construction will so endanger the public as to constitute a nuisance. The trial court although holding that the proposed structures would not constitute a nuisance per se, seems to have considered that they would constitute a public nuisance in fact, although he did not expressly so find, and to have granted the injunction upon that ground. The right to commence actions for enjoining nuisances is governed by secs. 280.01 and 280.02, Stats.

[2][3]Sec. 280.02, Stats.,...

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3 cases
  • Town of East Troy v. Soo Line R. Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 3 d3 Dezembro d3 1980
    ...spill or if some Town function was impaired. It relies on cases decided under predecessor statutes to § 823.01. See Algoma v. Peterson, 233 Wis. 82, 288 N.W. 809 (1939); Juneau v. Badger Cooperative Oil Co., 227 Wis. 620, 279 N.W. 666 (1938); City of Madison v. Wisowaty, 211 Wis. 23, 247 N.......
  • Schulz v. Gen. Cas. Co.
    • United States
    • Wisconsin Supreme Court
    • 5 d2 Dezembro d2 1939
  • State ex rel. City of Algoma v. Peterson
    • United States
    • Wisconsin Supreme Court
    • 10 d2 Fevereiro d2 1942
    ...Chief Justice. One phase of this controversy was before this Court in a prior action and is reported in City of Algoma v. Peterson, 1939, 233 Wis. 82, 288 N.W. 809. Upon the former appeal the merits were not reached for the reason that the city was held to be without power to bring the acti......

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