CEW Management Corp. v. First Federal Sav. and Loan Ass'n, 76-347

• Decision Date: 01 May 1979
• Docket Number: No. 76-347,76-347
• Parties: CEW MANAGEMENT CORPORATION, a Domestic Corporation, Plaintiff-Respondent, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, a Domestic Corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 766

277 N.W.2d 766

88 Wis.2d 631

CEW MANAGEMENT CORPORATION, a Domestic Corporation, Plaintiff-Respondent, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, a Domestic

Corporation, Defendant-Appellant.

No. 76-347.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 29, 1978.

Decided May 1, 1979.

James C. Alexander and Wightman, Thurow & Sauthoff, Madison, on brief, for defendant-appellant.

Donald B. Bruns and Riley & Bruns, Madison, on brief, for plaintiff-respondent.

HEFFERNAN, Justice.

This is an appeal from an order denying the defendant's motion to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted. The complaint of CEW Management Corporation is based upon the cause of action approved by this court by its mandate of December 20, 1974, in State v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407 (1974). In that case this court overruled the "common enemy" doctrine and adopted the "reasonable use" rule in respect to surface waters. Under the rule of Deetz, taken substantially from sec. 822, Restatement 2d, Torts (Tentative Draft No. 17, 1971), one is subject to liability for a private nuisance if his conduct is a legal cause of an invasion of a private interest in land and the action is intentional and unreasonable or unintentional and otherwise actionable. The "common enemy" rule, which was abrogated by Deetz, gave the possessor of land " 'an unlimited and unrestricted legal privilege to deal with the surface water on his land as he pleases, regardless of the harm which he may thereby cause to others.' " See, Deetz, at 9, 224 N.W.2d at 411. After determining that the "common enemy" rule no longer comported with societal standards of land use, we applied the "reasonable use" rule to the cause of action asserted in Deetz, and we stated:

"We conclude that the reasonable use rule, which we adopt herein, shall be prospective only and that conduct prior to the mandate of this case is immunized by the common enemy rule. While we adopt the reasonable use rule and make it applicable to the litigants herein, in respect to all others it is prospective only." (at 24, 224 N.W.2d at 419)

The question posed on this appeal is whether, under the facts alleged, the defendant, First Federal Savings and Loan Association, is afforded immunity by the "common enemy" doctrine. The complaint alleges that, during the fall of 1974, prior to the mandate of Deetz, the defendant constructed a building on a small part of its property and stripped the remainder of vegetation. Plaintiff further alleges that, on several occasions during the summer of 1975, six months after the mandate in Deetz, rain water and soil ran off the defendant's property and onto the plaintiff's property causing extensive damage. The complaint alleged that the runoff and resulting damage were "caused by the Defendant's creating a nuisance in stripping the vegetation from its land." There is a further allegation that the defendant has never "offered to alleviate the causes . . . of the above-described nuisance."

From the facts alleged in the complaint it is apparent that the action of the defendant in stripping the land of vegetation occurred prior to Deetz, but the runoff of water, which damaged the plaintiff's property, occurred following Deetz and after the abrogation of the "common enemy" doctrine.

Relying on the language of Deetz, the defendant claims he is immunized because, he asserts, the word, "conduct," refers to the act of the defendant in stripping the vegetation from the land. Because that act of stripping the vegetation from the land occurred in the fall of 1974, prior to the mandate of State v. Deetz, defendant claims immunity under the "common enemy" doctrine.

We conclude that the term, "conduct," as used in Deetz is not limited to the acts of the possessor of land which set the stage for a subsequent tortious invasion of another's property. The mere stripping of the land was not in itself a tort, even had it occurred subsequent to Deetz. While there might have been justifiable social reasons for stripping the land, the crux of the issue is whether, thereafter, reasonable effort was made to avoid the tortious invasion of another's property. In any tort, the tortfeasor's liability follows from either his act or a failure to act when he has a duty to do so.

In Deetz we did not refer to all of the interlocking sections of Restatement 2d, Torts, which are applicable where there is a claimed invasion of another's interest in the use and enjoyment of land. Comment F to sec. 822 of Restatement 2d, Torts, which section we specifically adopted in Deetz, states that the type of conduct necessary to liability under sec. 822 is described in sec. 824. We did not specifically refer to sec. 824 in Deetz, but it is controlling in the determination of conduct that comes within the purview of sec. 822. Sec. 824, Restatement, Torts (1939), states:

"Sec. 824. Type of Conduct Essential to Liability.

"The conduct which is necessary to make the actor liable for an...