Hasslinger v. Vill. of Hartland

• Court: Wisconsin Supreme Court
• Writing for the Court: WICKHEM
• Citation: Hasslinger v. Vill. of Hartland, 234 Wis. 201, 290 N.W. 647 (Wis. 1940)
• Decision Date: 12 March 1940
• Parties: HASSLINGER et al. v. VILLAGE OF HARTLAND.

234 Wis. 201

290 N.W. 647

HASSLINGER et al.

v.VILLAGE OF HARTLAND.

Supreme Court of Wisconsin.

March 12, 1940.

Appeal from a judgment of the County Court of Waukesha County; David Agnew, Judge.

Affirmed.

Action commenced on December 29, 1938, by Carl A. Hasslinger and Bessie Hasslinger, his wife, plaintiffs, against Village of Hartland, defendant. The complaint charges that the maintenance of a sewage disposal plant by defendant in the immediate vicinity of the property of plaintiff constitutes a nuisance and demands its abatement and damages. The action was tried to the court without a jury, and findings of fact and conclusions of law were duly made and entered. Judgment was ordered for plaintiffs in the sum of $4,000 and costs, and was duly entered on August 16, 1939, in accordance with the findings of fact and conclusions of law. Defendant appeals. The material facts will be stated in the opinion.Hammersley, Torke & Kelley, of Milwaukee (Charles E. Hammersley, of Milwaukee, of counsel), for appellant.

Mistele & Smith, of Jefferson, for respondents.

WICKHEM, Justice.

The Village of Hartland is located on the Bark river, which runs in a northerly and southerly direction through the village and through the farm of plaintiffs. Plaintiffs' farm of seventy-six and one-half acres is immediately to the south of the village, a portion of it being within the village limits. The farm is on the east side of a county trunk highway which runs south through the Village of Hartland. In 1931 an investigation was made of the polution of the Bark river by sewage and as a result of reports to the State Board of Health the latter recommended that the village consider the installation of a water works and a system of sewage disposal. The village thereupon prepared plans and specifications for water supply and sewage disposal and these were approved by the State Board of Health and carried into effect. The plans included a sewage disposal plant located on a half acre of land adjoining plaintiffs' land on the south. The plant is two hundred twenty-five feet south of plaintiffs' barn and three hundred forty-five feet south of the house. Other sites were available and considered, one of them about one thousand feet further south on the same highway and near no human habitation. The plant was constructed and put in operation early in 1934. From that time plaintiffs claim to have been annoyed by offensive odors which pervaded the atmosphere of the farm and buildings and were particularly noticeable in damp weather or when the wind was from the southwest. The testimony is in conflict as to the nature and intensity of the odors as well as the extent to which they pervaded plaintiffs' dwelling and barns. The findings are to the effect that the plant “has frequently given off foul, offensive and disagreeable odors extremely repulsive to human sense and which smells have pervaded the residence, barns, outbuildings and premises of the plaintiffs, compelling them to keep their windows closed, preventing them from sleeping, disturbing their social relations, and generally interfering with the enjoyment and use of their residence, barns and outbuildings; that such odors were especially noticeable when the wind was from the south or southwest, and in muggy, warm weather, and at periods when the plant was in operation; that these odors were obnoxious, offensive, disagreeable and at times unbearable and that they materially interfered with the plaintiffs' use and comforts which they would be entitled to in their home and around and about their premises; that these odors have continued from the commencement of operations at the plant up to and including the time at which this action was tried. ***”

We do not deem it necessary to review in detail the evidence on this subject. We are of the opinion that the findings of the trial court in this respect were supported by the evidence, and if that were the sole question upon this appeal the judgment would have been affirmed without opinion. Before considering the law applicable to the case it should be pointed out that the trial court did not find that the specifications or constructionof the plant were deficient or that its operation was negligent or insufficient in any particular. In fact, the finding is that there appears to be no changes in plan or operation by which the odors may be eliminated. The significance of this will hereafter appear.

[1]Defendant's first contention is that plaintiffs have no standing to recover in this action for the reason that they failed to file a claim as provided by sec. 61.51, Stats., which provides: “No account or demand against the village shall be paid until it has been audited and allowed and an order drawn on the treasurer therefor. Every such account shall be made out in items and verified by affidavit indorsed or annexed that the same is just and correct and no part thereof paid. *** The board shall cause to be endorsed by the clerk, over his hand on each account, the words ‘Allowed’ or ‘Disallowed,’ as the fact is.”

In connection with this section and its requirements defendant cites J. F. Rappel Co. v. Manitowoc, 182 Wis. 141, 195 N. W. 399;Sauk County v. Baraboo, 211 Wis. 428, 429, 248 N.W. 418, 419;Read v. Madison, 162 Wis. 94, 155 N.W. 954, and Joyce v. Sauk County, 206 Wis. 202, 239 N.W. 439. We deem this position not to be well taken. Where the action is for equitable relief (as for abatement of a nuisance by injunction) no claim need be filed under this or statutes having a similar purpose. Davis v. City of Appleton, 109 Wis. 580, 85 N.W. 515;Carthew v. Platteville, 157 Wis. 322, 147 N.W. 375.

[2]It is next contended that if plaintiffs are entitled to any relief, they must seek it under Ch. 32, Stats., regulating the exercise of the powers by eminent domain. Cases principally relied upon are Skalicky v. Friendship E. L. & P. Co., 193 Wis. 395, 214 N.W. 388;Benka v. Consolidated Water Power Co., 198 Wis. 472, 224 N.W. 718, 719. In the latter case it was said:

“The damages, the right to which is asserted by plaintiffs, being caused by that which, in law, under such a situation, must be deemed a taking of the property rights of plaintiffs, and then section 32.04, Stats. ***

“There being such a statutory remedy furnished to plaintiffs in just such a position as here presented, namely, one where a defendant denies that there is any such taking and for that reason refuses to commence condemnation proceedings, then it is clearly the legislative purpose to permit the owner of the lands to institute proceedings to once and for all recover the damages consequent upon such taking.”

To the effect that the remedy under ch. 32 is exclusive, defendant cites Price v. Marinette & M. P. Co. 197 Wis. 25, 221 N.W. 381;Milwaukee v. Diller, 194 Wis. 376, 216 N.W. 837. This contention is without merit. Assuming an actionable nuisance by the creation of odors which make occupation of plaintiffs' farm inconvenient or distasteful and impair its value, it cannot be said that defendant has dispossessed plaintiffs or taken their property. There was no such taking in this case as would invoke the provisions of ch. 32. Baerwolf v. Wisconsin River Power Co., 198 Wis. 112, 223 N.W. 571; Price v. Marinette & M. P. Co., supra.

It is next contended by defendant that the Statutes have vested the State Board of Health with full jurisdiction over sewage disposal and nuisances affecting public health or comfort, and apparently this includes the further claim that the effect of statutory provisions is to oust the courts of all jurisdiction in this connection. Sec. 144.03(1), Stats., provides in part: “The state board of health shall have general supervision and control over the waters of the state, drainage, water supply, water systems, sewage and refuse disposal *** insofar as their sanitary and physical condition affects health or comfort.”

Sec. 144.03(3) provides: “If the board finds that a system or plant is tending to create a nuisance or menace to health or comfort, it shall order the owner or the person in charge to secure such operating results as the board shall prescribe, within a specified time. If the order is not complied with, the board may order designated changes in operation, and if necessary, alterations or expansion to the system or plant, or a new system or plant.”

Sec. 146.14, Stats., provides in part: “The state board of health may order the abatement or removal of a nuisance on private premises, and if the owner or occupant fails to comply, the board, or its agent, may enter upon the premises and abate or remove such nuisance.”

[3][4]Defendant's claim based upon sec. 144.03, Stats., is that where the administration of a particular matter has been committed to an administrative body with power to issue orders, make regulations, or prescribe specifications, these orders, regulations or specifications, unless wholly arbitrary, are conclusive as to the safety or sufficiency of operation in compliance with them. Bent v. Jonet, Receiver, etc., 213 Wis. 635, 252 N.W. 290. Applied to this case, it is claimed that a sewage disposal plant which follows approved specifications cannot be held a nuisance. This contention is inapplicable to the present situation. It may be that if the claim of the adjoining landowner is that the manner of operation is such as to constitute a nuisance, the fact that the plant was built according to specifications of the State Board of Health and is being operated in accordance with their orders and regulations may conclusively establish that there is no nuisance arising out of design or operation of the plant. Where, however, the claim is that the plant is a nuisance not by reason of improper operation or planning but because of its location, the owner is not concluded by the orders or approval of the State Board of Health. It is, of course, unnecessary here to determine the scope or conclusiveness under sec. 144.03(3), Stats.,...