State v. Michels Pipeline Const., Inc.
| Decision Date | 07 May 1974 |
| Docket Number | No. 355,355 |
| Citation | 63 Wis.2d 278,217 N.W.2d 339 |
| Parties | STATE of Wisconsin, Appellant, v. MICHELS PIPELINE CONSTRUCTION, INC., et al., Respondents. |
| Court | Wisconsin Supreme Court |
Robert W. Warren, Atty. Gen., Richard J. Boyd, Asst. Atty. Gen., Madison, for appellant.
Paul J. Burbach, Milwaukee, for Michels Pipeline.
Schroeder, Gedlen, Riester & Moerke, Ewald L. Moerke, Jr., Lewis A. Posekany, Jr., Milwaukee, for Metropolitan Sewer Commission and Dist., County of Milwaukee.
James B. Brennan, City Atty., Richard F. Maruszewski and Patrick B. McDonnell, Asst. City Attys., Milwaukee, for Sewer Commission of City of Milwaukee.
Robert P. Russell, Corp. Counsel, James J. Bonifas, Deputy Corp. Counsel, Milwaukee, for Milwaukee County.
Harold H. Fuhrman, Milwaukee, amicus curiae for Root River Action Committee, Inc., and others.
Two issues are raised by this appeal:
1. Does the complaint state facts sufficient to allege a public nuisance?
2. Assuming the answer to the first issue is yes, does the complaint state facts sufficient to constitute a cause of action?
The defendants assert that the scope of the injury alleged in the complaint here does not constitute a 'public nuisance.' They contend that a public nuisance differs signficantly from a private nuisance in terms of the nature and scope of the conduct involved and its consequences.
Public nuisance is described in Wood on Nuisances 4 as follows:
'Sec. 19. . . . there must be the same degree of injury and damage that would be necessary to maintain a suit for damages, with this addition: that the injury and damage resulting therefrom must be so extensive as to affect many persons at one and the same time, so that the injury can fairly be said to result to citizens as a part of the public, rather than to them individually. . . .'
American Jurisprudence 5 has this to say about the number of persons affected:
'Sec. 10. Character as determined by number of persons affected.
A recent California case 6 found that the operators of a dairy were creating a public nuisance where eleven persons who owned twelve and one-half lots in a fifty-one lot tract were affected thereby. The court found that this number constituted a considerable number of persons in the neighborhood and thus the manner in which the dairy was operated was a public nuisance.
However, there are authorities which take a more restrictive view of what constitutes a public nuisance. For example, Prosser 7 describes a public nuisance:
'To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several. Thus the polution of a stream which merely inconveniences A recent New York case 8 follows this emphasis on the nature of the right invaded:
a number of riparian owners is a private nuisance only, but it may become a public one if it kills the fish. It is not necessary, however, that the entire community be affected, so long as the nuisance will interfere with those who come in contact with it in the exercise of a public right. The most obvious illustration, of course, is the obstruction of a public highway, which inconveniences only those who are travelling upon it. It is, furthermore, rather obvious that any condition or activity which substantially interferes with the private interests of any considerable number of individuals in a community is very likely to interfere also with some public right, such as the comfortable use of the highway; and for this reason the question of the number of persons affected has seldom arisen.'
'. . . The teachings of the statutes and the cases are that a public nuisance is an offense to the public of a neighborhood or community in the in the enjoyment of its common rights, as distinguished from activity which results merely in injury even to a large number of persons in the enjoyment of private rights not shared by the members of the community or neighborhood at large.'
The Wisconsin cases define a public nuisance in terms of the scope of the injury and not in terms of the type of injury.
Schiro v. Oriental Realty Co. 9 quoted with approval this description of a public nuisance:
And in Hartung v. Milwaukee County 10 this court approved the definition in Schiro and stated that the plaintiffs had the burden of proving that a quarry whose operations were complained of impaired a substantial portion of the property and people in the city of Wauwatosa.
In Boden v. Milwaukee 11 this court quoted with approval from a Texas case which had held:
'. . . 'For a nuisance to be a public one, it need not affect the whole community; but it is public if injury or annoyance affect the people of some local neighborhood, or are occasioned to such part of the public as come in contact with it.' . . .'
This definition narrows the number of persons who have to be affected if conduct is to constitute a public nuisance. The defendants here claim this quotation is inapplicable because the Boden case dealt only with the question of the power of a municipality to legislatively declare something to be a public nuisance. The Boden case involved the condemnation of certain buildings as public nuisances. The quotation from Boden is not limited to the facts of the Boden case. Legislative bodies have great latitude in determining what is a public nuisance but they cannot declare something to be a public nuisance which is not one in fact. Therefore, the definition The defendants also claim that in any event the state here did not allege that a 'local neighborhood' was adversely affected. The complaint speaks in terms of numerous persons and the area adjacent to and near the project. Liberally construed the complaint does allege that the neighborhood surrounding the sewer project has been affected. Also it is clear that many authorities only require that a large number of persons be injured rather than a few. The allegations of the complaint certainly meet that requirement. Wood on Nuisances states that the question of whether the results of conduct are so common as to amount to a public nuisance is a question of fact for the jury. 12
used in the Boden case must be of general applicability.
And in State v. H. Samuels Co. 13 this court recently said:
'. . . If the public is injured in its civil or property rights or privileges or in respect to public health to any degree, that is sufficient to constitute a public nuisance; the degree of harm goes to whether or not the nuisance should be enjoined.'
The 'public' does not have to include all the persons of the community but only a sufficiently large number of persons, as alleged here.
The trial court granted the demurrer of the defendants-respondents on the basis that the case of Huber v. Merkel 14 established that there is no cause of action for interference with ground water. This is a correct statement of the holding of that case. In Huber v. Merkel an owner of real estate attempted to have another landowner in his vicinity enjoined from wasting and unreasonably using water from artesian wells on the person's property. The defendant allowed his wells to flow continuously, the excess simply spilling on the ground and this adversely affected the artesian pressure of all the wells which tapped the same aquifer. This court held that it was the almost universal concensus of judicial opinion that:
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