Prah v. Maretti, No. 81-193

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: Anthony C. Liotta, Acting Asst. Atty. Gen., Land and Natural Resources Division, Washington, D. C., Joan F. Kessler, U. S. Atty., E. D. Wis., Milwaukee, Kathryn A. Oberly, Chief Energy Section; ABRAHAMSON; CECI; CALLOW
• Citation: 321 N.W.2d 182,108 Wis.2d 223
• Parties: , 29 A.L.R.4th 324, 12 Envtl. L. Rep. 21,125 Glenn PRAH, Plaintiff-Appellant, v. Richard D. MARETTI, Defendant-Respondent.
• Decision Date: 02 July 1982
• Docket Number: No. 81-193

Page 182

321 N.W.2d 182 108 Wis.2d 223, 29 A.L.R.4th 324, 12
Envtl. L. Rep. 21,125 Glenn PRAH, Plaintiff-Appellant,
v.
Richard D. MARETTI, Defendant-Respondent. No. 81-193. Supreme Court of Wisconsin. Argued March 29, 1982.
Decided July 2, 1982.

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[108 Wis.2d 224] John F. Maloney, Milwaukee, argued, for plaintiff-appellant; Jonathan A. Mulligan and Mulcahy & Wherry, S. C., Milwaukee, on brief.

Jack C. Horth, Milwaukee, for defendant-respondent.

Craig Gordon Smith, Milwaukee, and Alan S. Miller, Washington, D. C., amicus curiae for Natural Resources Defense Council.

Anthony C. Liotta, Acting Asst. Atty. Gen., Land and Natural Resources Division, Washington, D. C., Joan F. Kessler, U. S. Atty., E. D. Wis., Milwaukee, Kathryn A. Oberly, Chief Energy Section, J. Vance Hughes, Chief, Sp. Litigation Section, Jacques B. Gelin and James P. Leape, Attys., U. S. Dept. of Justice, Washington, D. C., for amicus curiae.

ABRAHAMSON, Justice.

This appeal from a judgment of the circuit court for Waukesha county, Max Raskin, circuit judge, was certified to this court by the court of appeals, sec. (Rule) 809.61, Stats.1979-80, as presenting an issue of first impression, namely, whether an owner of a solar-heated residence states a claim upon which relief can be granted when he asserts that his neighbor's proposed construction of a residence (which conforms to existing deed restrictions and local ordinances) interferes with his access to an unobstructed path for sunlight across the neighbor's property. This case thus involves a conflict between one landowner (Glenn Prah, the plaintiff) interested in unobstructed access to sunlight across adjoining property as a natural source of energy and an adjoining landowner (Richard D. Maretti,[108 Wis.2d 225] the defendant) interested in the development of his land.

The circuit court concluded that the plaintiff presented no claim upon which relief could be granted and granted summary judgment for the defendant. We reverse the judgment of the circuit court and remand the cause to the circuit court for further proceedings.

I.

According to the complaint, the plaintiff is the owner of a residence which was constructed during the years 1978-1979. The complaint alleges that the residence has a solar system which includes collectors on the roof to supply energy for heat and hot water and that after the plaintiff built his solar-heated house, the defendant purchased the lot adjacent to and immediately to the south of the plaintiff's lot and commenced planning construction of a home. The complaint further states that when the plaintiff learned of defendant's plans to build the house he advised the defendant that if the house were built at the proposed location, defendant's house would substantially and adversely affect the integrity of plaintiff's solar system and could cause plaintiff other damage. Nevertheless, the defendant began construction. The complaint further alleges that the plaintiff is entitled to "unrestricted use of the sun and its solar power" and demands judgment for injunctive relief and damages. ¹

[108 Wis.2d 226] After filing his complaint, the plaintiff moved for a temporary injunction to restrain and enjoin construction by the defendant. In ruling on that motion the circuit court heard testimony, received affidavits and viewed the site.

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The record made on the motion reveals the following additional facts: Plaintiff's home was the first residence built in the subdivision, and although plaintiff did not build his house in the center of the lot it was built in accordance with applicable restrictions. Plaintiff advised defendant that if the defendant's home were built at the proposed site it would cause a shadowing effect on the solar collectors which would reduce the efficiency of the system and possibly damage the system. To avoid these adverse effects, plaintiff requested defendant to locate his home an additional several feet away from the plaintiff's lot line, the exact number being disputed. Plaintiff and defendant failed to reach an agreement on the location of defendant's home before defendant started construction. The Architectural Control Committee and the Planning Commission of the City of Muskego approved the defendant's plans for his home, including its location on the lot. After such approval, the defendant apparently changed the grade of the property without prior notice to the Architectural Control Committee. ² The problem with defendant's proposed [108 Wis.2d 227] construction, as far as the plaintiff's interests are concerned, arises from a combination of the grade and the distance of defendant's home from the defendant's lot line.

The circuit court denied plaintiff's motion for injunctive relief, declared it would entertain a motion for summary judgment and thereafter entered judgment in favor of the defendant.

II.

The defendant argues that because the circuit court conducted a hearing and considered all material issues of fact, we should consider this case an appeal from a judgment after trial, not as an appeal from a summary judgment. We do not accept the defendant's characterization of the circuit court's proceedings.

The circuit court held a hearing to consider plaintiff's motion for a temporary injunction. A primary consideration on such motion is whether the moving party has a reasonable probability of ultimate success; the ruling on the motion does not resolve the issue of whether the moving party will in fact ultimately succeed in the lawsuit. Werner v. Grootemaat, 80 Wis.2d 513, 520, 259 N.W.2d 310 (1977). The circuit court denied the motion for a temporary injunction, concluding that there was no reasonable probability that the plaintiff would ultimately succeed and that the plaintiff had not stated a claim upon which relief could be granted. The circuit court ended its memorandum decision on the motion for a temporary injunction with the following comment:

[108 Wis.2d 228] "In as much as the court is of the opinion that the plaintiff has failed to state a claim upon which equitable relief can be granted, and the parties having joined issue, the court will entertain a motion by the defendant for summary judgment."

This statement clearly indicates the intention and expectation of the circuit court to deal with this case on a motion for summary judgment. We therefore consider this as an appeal from a judgment entered on a motion for summary judgment.

In deciding a motion for summary judgment the initial question is the same as that on a sec. 802.06(2), Stats.1979-80, motion to dismiss the complaint for failure to state a claim upon which relief can be granted, namely, whether the complaint states a claim upon which relief can be granted. Kanack v. Kremski, 96 Wis.2d 426, 435, 291 N.W.2d 864 (1980) (Abrahamson, J., concurring). If the complaint states a claim and the pleadings show the existence of factual issues, the court then examines

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the affidavits and other proof and determines whether there are disputed material facts that entitle the non-moving party to a trial. On summary judgment the court does not decide those issues of fact; it merely decides whether genuine issues of fact exist. Coleman v. Outboard Marine Corp., 92 Wis.2d 565, 570-71, 285 N.W.2d 631 (1979).

In this case there is some ambiguity whether the judgment was based on the complaint or on factual matters outside the pleadings which were presented to the circuit court in connection with the motion for a temporary injunction. Consequently, we shall first test the sufficiency of the complaint and then determine whether the matters outside the pleadings present disputed material facts sufficient to justify a trial.

[108 Wis.2d 229] III.

In testing the sufficiency of the complaint the facts pleaded by the plaintiff, and all reasonable inferences therefrom, are accepted as true. Hartridge v. State Farm Mutual Auto Ins. Co., 86 Wis.2d 1, 4-5, 271 N.W.2d 598 (1978). The pleadings are to be liberally construed with a view to substantial justice to the parties, sec. 802.02(6), Stats.1979-80, and the complaint should be dismissed as legally insufficient only if "it is quite clear that under no circumstances can the plaintiff recover." Clausen & Lowe, The New Wisconsin Rules of Civil Procedure, Chapters 801-803, 59 Marq.L.Rev. 1, 54 (1976), quoted with approval in Morgan v. Pennsylvania General Ins. Co., 87 Wis.2d 723, 731, 275 N.W.2d 660 (1979).

The plaintiff presents three legal theories to support his claim that the defendant's continued construction of a home justifies granting him relief: (1) the construction constitutes a common law private nuisance; (2) the construction is prohibited by sec. 844.01, Stats.1979-80; ³ [108 Wis.2d 230] and (3) the construction interferes with the solar easement plaintiff acquired under the doctrine of prior appropriation. ⁴

As to the claim of private nuisance the circuit court concluded that the law of private nuisance requires the court to make "a comparative evaluation of the conflicting interests and to weigh the gravity of the harm to the plaintiff against the utility of the defendant's conduct. The circuit court concluded: "A comparative evaluation of the conflicting interests, keeping in mind the omissions and commissions of both Prah and Maretti, indicates that defendant's conduct does not cause the gravity of the harm which the plaintiff himself may well have avoided by proper planning." The circuit court also concluded that sec. 844.01 does not apply to a home constructed in accordance with deed and municipal ordinance requirements. Further, the circuit court rejected the prior appropriation doctrine as "an intrusion of judicial egoism over legislative passivity."

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We consider first whether the complaint states a claim for relief based on common law private nuisance. This state has long recognized that an owner of land does not have an absolute or unlimited right to use the land in...