COURT OF APPEALS DECISION DATED AND RELEASED November 22, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1701
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
ALICE VOGEL,
and JAMES WEAVER,
Plaintiffs-Appellants,
v.
TOWN OF FARMINGTON,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Waupaca County:
PHILIP M. KIRK, Judge. Affirmed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Alice Vogel and James Weaver appeal from a judgment
dismissing their complaint against the Town of Farmington. We conclude that the trial court properly
dismissed the action and therefore affirm.
In 1934, the Town
acquired, by quitclaim deed, a short road ending at what is now a public boat
landing. Vogel's property borders the
road on one side and Weaver's borders it on the other. In June 1993, Weaver presented the Town
board with a petition to close the boat landing. He informed the board that users of the landing frequently
trespassed, littered, vandalized and otherwise disrupted the neighborhood
peace. After the board deferred a
decision on the petition, Weaver and Vogel commenced this action three weeks
later.
The first of three
causes of action alleged that ownership of the road reverted to the adjacent
landowners because the Town failed to open the strip of land for public travel
within a reasonable time after 1934.
The second cause of action alleged that Weaver and Vogel were entitled
to ownership because the road and landing constituted a private nuisance
requiring immediate abatement, and that they were entitled to damages for the
alleged nuisance. The third cause of
action alleged that Vogel owned part of the road by adverse possession.
On Weaver and Vogel's
summary judgment motion, they submitted affidavits setting forth in detail the
many problems they have experienced with landing users, adding that the road
design caused erosion and flooding on their properties. They also pointed out that there were
private boat landings in the immediate vicinity. The Town's opposing affidavit, by the Town board chairman, stated
that the Town had never condoned, authorized or allowed the alleged activities
at the landing. The chairman also noted
that the Town's law enforcement capability was limited to parking and animal
ordinance violations.
The trial court denied
summary judgment and a trial to the court ensued. After hearing each side's evidence, the court found that Weaver
and Vogel had a significant nuisance problem caused by "jerks" using
the landing. However, the court also concluded
that damages were premature, and refused to order the landing closed because
the benefits of a public landing to its lawful users outweighed the plaintiffs'
concerns. The court also found that
within four years of the 1934 dedication, the Town accepted the dedication by
use, and that Vogel had failed to establish her adverse possession claim.
The issues on appeal are
whether Weaver and Vogel were entitled to summary judgment ordering the road
closed, whether the court erred by dismissing their nuisance claim after the
trial, whether the evidence showed that the road reverted to the adjacent land
owners through non-use between 1934 and 1938, whether the court erred by
dismissing Vogel's adverse possession claim, and whether Weaver and Vogel were
entitled to damages under § 80.47, Stats.,
for those times when parked cars blocked access to their property.
The trial court properly
denied summary judgment to Weaver and Vogel.
Their affidavits provided undisputed evidence that users of the boat
landing committed numerous acts that interfered with their property
rights. However, to obtain relief on a
nuisance claim, the plaintiff must not only prove the nuisance, but must show
under the reasonable use doctrine that the harm outweighs the public benefit
derived from the challenged conduct or use.
See Prah v. Maretti, 108 Wis.2d 223, 240-42, 321
N.W.2d 182, 191-92 (1982). Applying
that reasonable use standard normally requires a full exposition of all
underlying facts and circumstances. Id.
at 242, 321 N.W.2d at 192. Summary
judgment is not the appropriate vehicle to resolve the issue. Id.[1]
The trial court properly
denied an injunction closing the road.
We review a decision whether to grant injunctive relief for an erroneous
exercise of discretion. Pure Milk
Prods. Coop. v. National Farmers Org., 90 Wis.2d 781, 800, 280 N.W.2d
691, 700 (1979). To obtain an
injunction, a plaintiff must show a sufficient probability that the defendant's
future conduct will violate the plaintiff's rights and will irreparably injure
the plaintiff. Bubolz v. Dane
County, 159 Wis.2d 284, 296, 464 N.W.2d 67, 72 (Ct. App. 1990). Here, Weaver and Vogel did not show
irreparable injury if the landing and road remained open. As the trial court noted, what they
described was primarily a law enforcement problem. The plaintiffs made no showing that increased enforcement at the
landing would not solve or substantially reduce the problem. Additionally, the court reasonably concluded
that the benefit from a public landing to its lawful users outweighed the plaintiffs'
private concerns.
Weaver and Vogel also
failed to prove a claim for damages. A
possessor of land who fails to prevent a nuisance caused by activity on that
land is liable only if the possessor knows or has reason to know of the nuisance-causing
activity. Restatement (Second) of Torts § 838 (1979). Here, Weaver and Vogel conceded that they
first notified the Town about their problems three weeks before commencing the
lawsuit. They offered no evidence that the
Town should have known the extent of the problem before then. In any event, the record indicates that
Weaver and Vogel failed to comply with § 893.80, Stats., the notice of claim statute.
The court did not
clearly err by finding that the Town accepted the dedication of the road. To be effective, the dedication must be
accepted within four years. Mushel
v. Town of Molitor, 123 Wis.2d 136, 146, 365 N.W.2d 622, 627 (Ct. App.
1985). Public use of the road within
four years constitutes an effective dedication. Id. Here,
evidence of use before 1938 was understandably minimal. However, there was evidence that the town
maintained the road as early as 1933, even before the dedication. There was also evidence of consistent and
frequent public use of the road back to 1950.
The court could reasonably infer from that evidence that the road was
considered public and used as such before 1938.
The trial court properly
denied Vogel's adverse possession claim to part of the road. Vogel claimed that she and her predecessor
in title adversely possessed a fenced-in strip of the road since 1952. Because the time for adversely possessing
against public land was then forty years, Vogel's right to claim adverse
possession would not have accrued until 1992.
However, in 1983, the legislature enacted § 893.29(2)(c), Stats. (1983 Wis. Act 178, § 2,
effective March 28, 1984), which eliminated the right to claim adverse
possession of a highway as defined in § 340.01(22), Stats.
Vogel's claim was therefore extinguished because the road in question
satisfies that statutory definition of a highway. Vogel does not contend that § 893.29(2)(c) is inapplicable
to claims in the process of maturing when it was enacted, and we therefore do
not address that issue.
Weaver and Vogel's
pleadings did not allege a claim for § 80.47, Stats., damages. They
assert that the issue was tried by consent, but do not refer to the record to
support that contention. We therefore
decline to consider it. Keplin v.
Hardware Mutual Casualty Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 323
(1964). Additionally, it appears that
failure to comply with § 893.80, Stats.,
also blocks recovery under § 80.47.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Weaver and Vogel also assert that they proved a nuisance claim under § 844.01, Stats., authorizing any person claiming interference with property rights to bring an action. In Shanak v. City of Waupaca, 185 Wis.2d 568, 596, 518 N.W.2d 310, 320 (Ct. App. 1994), we held that § 844.01 creates no rights or duties, and does not create a cause of action because it is a remedial and procedural statute.