State ex rel. City of Algoma v. Peterson

• Decision Date: 10 February 1942
• Citation: 2 N.W.2d 253,239 Wis. 599
• Parties: STATE ex rel. CITY OF ALGOMA v. PETERSON.
• Court: Wisconsin Supreme Court

239 Wis. 599

2 N.W.2d 253

STATE ex rel. CITY OF ALGOMA

v.PETERSON.

Supreme Court of Wisconsin.

Feb. 10, 1942.

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

Affirmed.

This action was begun on March 26, 1940, by the State of Wisconsin ex rel. City of Algoma, plaintiff, against P. M. Peterson, defendant, to enjoin the erection of a gasoline station upon the premises thereinafter described, on the ground that it would when erected constitute a public nuisance. There was a trial by the court. The court found against the plaintiff and judgment was entered on February 11, 1941, adjudging that the erection of a gasoline station on the premises in question would not constitute a public nuisance; that plaintiff is not entitled to an injunction enjoining the defendant from constructing and operating a filling station at the point in question; that the temporary injunction should be dissolved and that the defendant have his costs and disbursements, and providing also for the assessment of damages. From this judgment the plaintiff appeals.

The facts will be stated in the opinion.

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

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

ROSENBERRY, 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 action and the complaint was dismissed. Thereupon the city council authorized the commencement of the present action. The first action was commenced July 11, 1938. An interim zoning ordinance was passed by the City of Algoma on August 5, 1938. A permanent zoning ordinance was passed by the City of Algoma June 8, 1939. Both ordinances deny the right to construct a gasoline filling station at the point in question.

The physical situation is best disclosed by reference to Exhibit 3, reproduced herewith:

IMAGE

The defendant commenced the erection of the filling station the latter part of June, 1938. In the first action an injunction preventing the defendant from proceeding further was issued on July 11, 1938. At the time the injunction was served, the defendant had removed a two row cedar hedge, four feet high and two or three feet in width, completely fronting the property on both Fourth Street and Lake Street, excavations had been made and two one-thousand gallon tanks each ten feet long and five feet in diameter had been buried on the premises, a concrete abutment had been erected and two gasoline pumps ten feet apart had been placed thereon. Piping connecting the tanks with the pumps had been installed and gasoline had been placed in the tanks ready for operation. A building twelve feet by fourteen feet by nine feet high was contemplated but no actual work on its erection had been done.

The court found the following facts:

“The property is in the form of a triangle and is formed by the intersection of Fourth and Lake Streets. State Trunk Highway 42 passes through the City of Algoma over Fourth Street which runs in a northerly and southerly direction. Lake Street intersects Fourth Street from the Northeast forming the triangle in question. The triangle is located in a semi-business and residential district, and will in the future tend more to become a business rather than a residential street, since Fourth Street, further north, is a main business street. State Trunk Highway 54 ends with its intersection with Highway 42 at a point about 2 blocks south of the triangle and there is a ‘Stop’ sign at that point compelling the traffic on 54 to stop before entering on 42. At the intersection of these two state highways there are two filling stations. One block further north there is another filling station, and north of the triangle on Fourth Street there are four garages and filling stations, one of which, built recently, is directly across the street from the Vocational School, a block north of the triangle the High School is located-a block west of the Vocational School. Lake Street is located between Fourth Street and the shore of Lake Michigan, with the municipal park between Lake Street and Lake Michigan. The park has a considerable frontage on the lake, both north and south of the triangle.

“A reading of the petition ‘Exhibit 1’ would lead one to believe that the menace to the public to be caused by the erection of the station was a secondary rather than a primary reason for enjoining its erection, and the filing of the request was the easy...