State ex rel. Schaetz v. Manders

• Citation: 206 Wis. 121,238 N.W. 835
• Parties: STATE EX REL. SCHAETZ v. MANDERS, BUILDING INSPECTOR.
• Decision Date: 10 November 1931
• Court: United States State Supreme Court of Wisconsin

206 Wis. 121

238 N.W. 835

STATE EX REL. SCHAETZ

v.MANDERS, BUILDING INSPECTOR.

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from a judgment of the Circuit Court for Brown County; Arold F. Murphy, Circuit Judge. Affirmed.

Action by Louis Schaetz, plaintiff, commenced on the 11th day of October, 1930, against Albert Manders, Building Inspector of the City of Green Bay, praying for a peremptory writ of mandamus compelling the said defendant to issue a building permit. From a judgment in favor of the plaintiff, entered on the 3d day of March, 1931, the defendant appeals.Thos. C. Dwyer, of Green Bay, for appellant.

Silverwood & Fontaine, of Green Bay, for respondent.

OWEN, J.

The plaintiff is the owner of premises in the city of Green Bay which for many years were used as a dairy. For some time prior to March 29, 1929, the premises were occupied by the Modern Dairy, a Wisconsin corporation, which conducted a dairy business therein. The building on the premises was equipped with machinery built into it necessary and suitable for conducting such business.

On March 29, 1929, a receiver was appointed for the said Modern Dairy, who took possession of the assets of said corporation. The receiver did not continue to conduct the business of the dairy in this building, but he occupied the same for at least one month and paid rent therefor. On the 18th day of November, 1930, the receiver, having wound up the affairs of the insolvent corporation, was discharged by order of the circuit court. Due to some mistake or oversight, a second order of discharge was entered on the 20th day of February, 1931. The plaintiff did not assert his right of re-entry or repossession of the premises occupied by the insolvent corporation until after the 15th day of February, 1931. Immediately thereafter the plaintiff entered into a contract for the sale of said premises with Homer La Violette, who intended to purchase the same for the purpose of conducting a dairy business therein. Thereafter La Violette applied to the defendant building inspector for a permit to carry on the dairy business in said premises, which permit was denied under date of March 6, 1930, whereupon the contract of sale was canceled or abrogated.

On the 3d of July, 1930, the plaintiff applied to the defendant building inspector of Green Bay for a permit to remodel said premises in accordance with plans and specifications submitted, which plans and specifications contemplated the further use of said premises as and for a dairy. The defendant refused to grant the permit, because he held that the further use of said premises as a dairy was prohibited by the zoning ordinance of the city of Green Bay. Section 9 of the zoning ordinance of the city of Green Bay, adopted June 19, 1929, provides: “The lawful use of land existing at the time of the adoption of this ordinance may be conducted, although such use does not conform to the provisions hereof, but if such...