Hillcrest Golf & Country Club v. City of Altoona

Decision Date09 December 1986
Docket NumberNo. 86-0138,86-0138
Citation400 N.W.2d 493,135 Wis.2d 431
PartiesHILLCREST GOLF & COUNTRY CLUB, Plaintiff-Appellant, v. CITY OF ALTOONA, Owen Ayres & Associates, Inc., and Wausau Insurance Companies, Defendants-Respondents.
CourtWisconsin Court of Appeals

Review Denied.

Dennis M. Sullivan of Herrick, Hart, Duchemin, Danielson & Guettinger, S.C. Eau Claire, for plaintiff-appellant, Hillcrest Golf & Country Club.

Eric J. Wahl of Wahl and Wahl, Eau Claire, for defendant-respondent, Owen Ayres & Associates, Inc.

Holly Lutz (argued), for defendants-respondents, City of Altoona and Wausau Ins. Companies; David Topczewski of Law Offices of Straub & Schuch of Wausau, on brief.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Hillcrest Golf & Country Club appeals a judgment on the pleadings dismissing its complaint for failure to state a claim. Hillcrest argues that its complaint alleges facts sufficient to support causes of action under theories of inverse condemnation Hillcrest alleges that Wayne and Anita Jensen, owners and developers of a subdivision called Knollwood Village, obtained approval from Altoona and the State of Wisconsin for development of the subdivision. Hillcrest further alleges that the Jensens contracted with Owen Ayres & Associates, Inc., for design of the subdivision's storm sewers. According to the pleadings, Altoona approved the plans and installed them as designed. Where the arguments of Altoona, Ayres, and Altoona's insurer are essentially the same, we refer to these parties collectively as "Altoona." The Jensens did not submit a brief for this appeal.

nuisance, negligence, trespass, and violation of civil rights under 42 U.S.C.A. sec. 1983 (West Supp.1986). Because we conclude that Hillcrest's complaint is sufficient to state a cause of action in inverse condemnation or private nuisance, we affirm in part and reverse in part the circuit court's judgment of dismissal. Accordingly, we remand for further proceedings.

Hillcrest alleges that the subdivision's streets and sewer system collected rain water that had previously evaporated or percolated harmlessly into the soil. The collected water was allegedly discharged through a culvert and then onto Hillcrest's land. Hillcrest claims that this water flow has "eroded substantial portions of the plaintiff's land, leaving huge gullies where said land previously existed, rendering said land area unfit for any use and rendering the remainder of the plaintiff's land unfit for use as a golf course."

When reviewing a dismissal for failure to state a claim, the appellate court must accept as true the facts pleaded and all reasonable inferences to be drawn from those facts. Hartridge v. State Farm Mutual Automobile Insurance Co., 86 Wis.2d 1, 4-5, 271 N.W.2d 598, 599 (1978). We will affirm the judgment of dismissal only if it is clear that under no conditions could the plaintiff recover. Quesenberry v. Milwaukee County, 106 Wis.2d 685, 690, 317 N.W.2d 468, 471 (1982). The complaint must be given a liberal construction in favor of stating a claim. Alonge v. Rodriquez, 89 Wis.2d 544, 552, 279 N.W.2d 207, 212 (1979).

The question before us is whether Hillcrest's complaint states a cause of action. If the facts as pleaded reveal an apparent right to recover under any legal theory, they are sufficient as a cause of action. Jost v. Dairyland Power Cooperative, 45 Wis.2d 164, 169, 172 N.W.2d 647, 650 (1969).

INVERSE CONDEMNATION

We first conclude that Hillcrest's complaint states a cause of action for "inverse condemnation" under sec. 32.10, Stats. 1 Section 32.10 provides:

If any property has been occupied by a person possessing the power of condemnation and if the person has not exercised the power, the owner, to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced ... The court shall make a finding of whether the defendant is occupying the property of the plaintiff without having the right to do so....

Altoona claims that Hillcrest's inverse condemnation claim must fail because Hillcrest has not alleged that it has been deprived "of all, or practically all, of the beneficial use of [its] property or any part thereof." In Maxey v. Redevelopment Authority of Racine, 94 Wis.2d 375, 288 N.W.2d 794 (1980), the court determined that a theater owner who was denied renewal of his theater license by the city's urban renewal authority had demonstrated a taking and was thus entitled to maintain an inverse condemnation suit. Id. at 392, 288 N.W.2d at 802. The court held that the city's refusal to renew the license before condemning his property denied the owner We see no legal distinction between a municipality's acting to deny an owner beneficial use of his building as a theater and a municipality's actions denying a landowner beneficial use of its land as a golf course. Prior case law supports our conclusion. See, e.g., Benka v. Consolidated Water Power Co., 198 Wis. 472, 474, 224 N.W. 718, 719 (1929). In Benka, the court held that a utility's flooding of portions of the plaintiff's land through the operation of a dam constituted a taking. If Hillcrest's allegations are true, Altoona has taken Hillcrest's land without compensation.

                a substantial portion of the beneficial use of his interest in the theater.  Id. at 390, 288 N.W.2d at 801.   Here, Hillcrest alleges that Altoona's sewer system has caused erosion "rendering said land unfit for any use and rendering the remainder of the plaintiff's land unfit for use as a golf course."
                

Altoona summarily asserts that Hillcrest has failed to observe the procedural requirements of sec. 32.10. 2 This contention is without merit. Section 32.10 requires the property owner to present a verified petition to the circuit court identifying the affected land, and requesting that the court begin inverse condemnation proceedings. The statute further requires a copy of the petition to be served on the person who has occupied the petitioner's interest in land. Hillcrest's pleadings describe the affected land in sufficient detail. See Lenz v. Chicago & N.W. Ry., 111 Wis. 198, 207-08, 86 N.W. 607, 610 (1901). Moreover, because the pleadings placed Hillcrest's inverse condemnation claim before the circuit court and the parties, and because Hillcrest alleges that it filed a timely notice of claim with Altoona, 3 we determine that Hillcrest's complaint satisfies the objectives of the statute's procedural requirements. See Kroll v. Bartell, 101 Wis.2d 296, 305-06, 304 N.W.2d 175, 179 (Ct.App.1981). A court must disregard any error, at any stage of the proceedings, that does not affect the substantial rights of the adverse party. Section 805.18(1), Stats. Hillcrest's timely notice of claim or timely actual notice avoid the possibility of prejudice to the adverse parties in this action.

NUISANCE

Next, Hillcrest alleges that Altoona created and maintained a private nuisance, committed trespass, and acted negligently by collecting and diverting water onto Hillcrest's land. Altoona contends that the design, approval and construction of a sewer system are legislative functions. Accordingly, the city claims that regardless of the theory pleaded, sec. 893.80(4), Stats., prohibits suit against any public body for damages caused through the exercise of its legislative functions. Although the theoretical outlines of nuisance, negligence and trespass overlap and are often blurred by the issue of governmental immunity, we conclude that the pleadings state a claim under the theory of private nuisance, unaffected by Altoona's asserted immunity.

Neither sec. 893.80(4) nor the common law immunity that predated its enactment empowered a public body to create or maintain a nuisance. See Winchell v. City of Waukesha, 110 Wis. 101, 109, 85 N.W. 668, 670 (1901). Winchell upheld the trial court's injunction prohibiting the city from collecting and channeling raw sewage directly into a stream that flowed past the plaintiff's farm. The court recognized a public body's immunity from suit for exercising The great weight of authority, American and English, supports the view that legislative authority to install a sewer system carries no implication of authority to create or maintain a nuisance, and that it matters not whether such nuisance results from negligence or from the plan adopted. If such nuisance be created, the same remedies may be invoked as if the perpetrator were an individual.

                its legislative authority.  Id. at 107-08, 85 N.W. at 669-70.   But Winchell firmly rejected the notion that a public body's legislative authority shielded it from private nuisance suits.  The court stated
                

Id. at 109, 85 N.W. at 670 [emphasis added].

Although more recent case law has altered governmental immunity, a public body's immunity for its legislative actions is unaffected. In 1962, our supreme court abrogated the judge-made rule of governmental immunity from tort suits. Holytz v. City of Milwaukee, 17 Wis.2d 26, 32-33, 115 N.W.2d 618, 620 (1962). Holytz reversed the trial court's dismissal of a complaint alleging that city employees had negligently left open a large trap door covering a water meter. The complaint alleged that the cover, located near a drinking fountain in a city playground, fell on the plaintiff's hands and injured her.

Although rejecting the city's claim of immunity against this alleged negligence, the Holytz court also limited the effect of its decision. Holytz did not expose governments to liability for all harms, it merely allowed the government to be sued for tortious harms. Id. at 39, 115 N.W.2d at 625. Significantly, the court held that the decision did not impose liability on a public body in the exercise of its legislative, judicial, quasi-legislative, or quasi-judicial functions. Id. at 40, 115 N.W.2d at 625....

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