PUBLISHED
OPINION
Case No.: 95-1677
Complete Title
of Case:
ERIC ANDERSEN, MARY JO ANDERSEN,
GARY WEYERS, ROBERT LEVERENZ, JR.,
OTIS RICE, FERILL RICE, CARL GIORDANA,
A. J. DRAGOSH, PAUL FELDKAMP, and
BRETT KINDNESS,
Plaintiffs-Respondents,
v.
VILLAGE OF LITTLE CHUTE,
A Wisconsin municipal corporation,
Defendant-Appellant.
Submitted on Briefs: January
16, 1996
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: April
2, 1996
Opinion Filed: April 2, 1996
Source of APPEAL Appeal from
a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Outagamie
(If "Special", JUDGE: Michael
W. Gage
so indicate)
JUDGES: Cane, P.J., LaRocque and
Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of defendant-appellant, the cause was
submitted on the briefs of Charles D. Koehler of Herrling, Clark,
Hartzheim & Siddall Ltd. of Appleton.
Respondent
ATTORNEYSOn behalf of plaintiffs-respondents, the cause
was submitted on the brief of Mark B. Hazelbaker and Amelia McCarthy
of Axley Brynelson of Madison.
COURT OF APPEALS DECISION DATED AND RELEASED APRIL 2, 1996 |
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. 95-1677
STATE
OF WISCONSIN IN COURT OF
APPEALS
ERIC ANDERSEN, MARY JO ANDERSEN,
GARY WEYERS, ROBERT LEVERENZ, JR.,
OTIS RICE, FERILL RICE, CARL GIORDANA,
A. J. DRAGOSH, PAUL FELDKAMP, and
BRETT KINDNESS,
Plaintiffs-Respondents,
v.
VILLAGE OF LITTLE CHUTE,
A Wisconsin municipal corporation,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Outagamie County: MICHAEL W. GAGE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. The Village of Little Chute appeals a
judgment on a verdict and an order denying post-verdict motions. The circuit court upheld the jury's damage
awards, one for diminished value of the plaintiffs-landowners' property as just
compensation for the Village's temporary taking, and another based upon the
Village's maintenance of a continuing private nuisance imposing serious
personal discomfort from odors, noise, pollution and safety concerns. This lawsuit arose out of the Village's
diversion of a large volume of storm water over a period of years through the
bottom of a ravine running through the plaintiffs' residential properties.
The
Village seeks a discretionary reversal pursuant to § 752.35, Stats.[1] It alleges that the trial court erred by:
(1) denying the Village's motion to adjourn the trial either to compel
plaintiffs to comply with the inverse condemnation procedures of § 32.10, Stats., 1993-94, or to permit the
Village to pursue direct condemnation; (2) upholding an award of duplicated
damages; (3) failing to find that any taking was permanent; (4) failing to
require a finding of the initial date of taking; (5) failing to find the
waterflow was a navigable stream; (6) upholding a damage verdict that is
contrary to the great weight of the evidence; and (7) failing to apply a
six-year statute of limitations.
We conclude: (1) § 32.10, Stats., is not applicable, and the trial court acted within
its discretionary powers when it declined to adjourn the jury trial based upon
the Village's motion filed just weeks before the scheduled jury trial, to allow
the Village to seek permanent taking through direct condemnation; (2) the
damages were not duplicated; (3) the Village waived the right to claim a
permanent taking; (4) the absence of a finding of the initial date of
taking of plaintiffs' property does not compel a new trial in the interest of
justice; (5) the Village failed to prove the bottom of the ravine was a
navigable stream owned by the public; (6) the damage award is not contrary to
the evidence; and (7) the six-year statute of limitations is inapplicable to a
continuing nuisance. We therefore
affirm the judgment and the order.
The subject property is
in a subdivision in the Village of Little Chute known as Pheasant Run
Estates. Prior to development, in
approximately 1974, the Village designed a storm water drainage system
terminating at then vacant land. In the
1970s the property included a small drainage ditch at the base of a ravine
common to the entire area. Witnesses
indicated that they could "walk through and not get our feet wet,"
and that the maximum water flow in rainy periods was an inch or two deep and a
couple of feet wide.
Commencing in the mid to
late 1980s, due to rapid growth of the Village, the system grew, and eventually
it drained eight miles of storm water through the ravine. The increase transformed an intermittent
flow of very shallow water to a raging river often fifteen to thirty-five feet
wide and several feet deep, featuring stagnant pools as deep as six or eight
feet. The volume and velocity of the
flow felled many mature hardwood trees that formerly grew along the edge of the
ditch. According to witnesses, the
dramatic growth of the storm water caused significant soil erosion, added
pollutants, refuse and odors to the area, sometimes generated loud noise and
safety hazards and generally interfered with the owners' enjoyment of the
ravine as a recreation area. The
plaintiffs presented expert testimony to establish the diminished value of
their property as of a date shortly before trial.
The plaintiffs filed
their lawsuit in May 1993, seeking to enjoin the Village from diverting the
storm water over their land, claiming the activity constituted a nuisance. The plaintiffs' amended complaint added a claim
for money damages for the Village's "physical invasion" that
"deprived Plaintiffs of all beneficial use of a substantial portion of
their land, in violation of the Fifth Amendment of the United States
Constitution and Article I, Section 13 of the Wisconsin Constitution."
Just
weeks before trial in early 1995, the Village moved to adjourn "to a date
subsequent to the completion of a condemnation that is presently being
requested by the Village ...." The
Village board of trustees adopted a Relocation Order pursuant to
§ 32.05(1), Stats., on
January 19, 1995, a step preliminary to a jurisdictional offer and a formal
taking of a permanent easement across plaintiffs' property.
We reject the Village's
first contention: that the court erred
by denying an adjournment of the jury trial to compel plaintiffs to adhere to
§ 32.10, Stats.
(Condemnation proceedings instituted by the property owner). Section 32.10 does not govern inverse
condemnation proceedings seeking just compensation for a temporary taking of
land for public use.[2] Zinn v. State, 112 Wis.2d 417,
334 N.W.2d 67 (1983). Zinn
involved an allegation of temporary taking, and that court held:
In
this case the procedure proscribed under sec. 32.10, Stats., does not apply to the type of "taking" that
is presented by the facts alleged in the plaintiff's complaint. But because the complaint alleges a
constitutional "taking," the plaintiff has stated a claim based
directly on Art. I, sec. 13 of the constitution and no statutory remedy is
necessary in order to enforce this right.
We therefore remand the action to the trial court.
Id. at
438, 334 N.W.2d at 77.
The plaintiff in Zinn
alleged that the DNR had initially declared 200 acres of the plaintiff's land
was within the ordinary high water mark of a navigable lake, thereby depriving
her of her riparian rights enjoyed prior to that ruling. Id. at 421, 334 N.W.2d at
69. Plaintiff had petitioned for a
rehearing, and two years later the DNR rescinded its initial ruling and
restored plaintiff to her riparian rights in the disputed land. Id. Our supreme court upheld the plaintiff's right to pursue inverse
condemnation for compensatory damages and litigation expenses based upon a
temporary taking covered by art. I, § 13, of the Wisconsin Constitution
rather than under § 32.10, Stats. Zinn, 112 Wis.2d at 438, 334
N.W.2d at 77.
To trigger art. I,
§ 13, there must be a "taking" of private property for public
use. Zinn, 112 Wis.2d at
424, 334 N.W.2d at 70. A
"taking" occurs in the constitutional sense when the government
restriction placed on the property "practically or substantially renders
the property useless for all reasonable purposes." Id. While the typical taking occurs when the government acts to
condemn property in the exercise of its power of eminent domain, the entire
doctrine of inverse condemnation is predicated on the proposition that a taking
may occur without such formal proceedings.
First English Evan. Luth. Church v. County of Los Angeles,
482 U.S. 304, 316 (1987) (citing the Court's previous construction of art. I,
§ 13, of the Wisconsin Constitution "identical to the Just
Compensation Clause" of the United States Constitution).
The Village also
contends, however, that the trial court's finding of a temporary taking
"is not appropriate when the defendant clearly intends to take the
property permanently." The Village
waived any right to now claim a permanent taking because it never asserted
it. The Village's answer expressly
denied the plaintiffs' allegations of a taking made in the amended complaint. The Village's affirmative defenses also
asserted that the water course was a naturally occurring navigable stream
subject to all the rights of the public, and that the diversion of surface
water was not illegal and created no liability. The Village took the position at each stage of the trial court
proceedings that there was no taking, never asserting a permanent taking.
Immediately before
trial, when debating the Village's motion to adjourn the trial to pursue direct
condemnation, plaintiffs reasserted that they sought damages for a temporary
taking and continued to seek injunctive relief. When the trial court made a tentative finding that temporary
occupation or taking had occurred, the Village made no assertion that it should
find the taking permanent. During the
jury instructions conference at the close of evidence, the taking question
arose again. The plaintiffs proposed to
instruct the jury that the plaintiffs alleged a temporary taking until such
time as the Village ceases to occupy the property. The court decided to advise the jury that the plaintiffs were
"seek[ing] a determination that their property has been taken ... until
the present time," thus limiting the damages to the date of trial. The Village's only challenge was on grounds
that an award for taking as well as for a nuisance constituted double damages.
Finally, the plaintiffs
also moved for a directed verdict finding that a temporary taking had
occurred. The Village did not oppose
the motion, suggesting that the court could either answer the first verdict
question "yes" or eliminate the question altogether. The Village merely expressed the view that
the court had already made a determination as a matter of law that a taking had
occurred. Under these circumstances,
the Village waived any right to a post-verdict finding that the taking was permanent.
Next, the Village
contends that the court erred when it refused to adjourn the trial to allow the
Village to pursue direct condemnation proceedings. We disagree. Whether to grant
an adjournment is generally discretionary with the trial court. Hales Corners S&L Ass'n v.
Kohlmetz, 36 Wis.2d 627, 634, 154 N.W.2d 329, 333 (1967). The Village took its first tentative step
toward initiating direct condemnation in late January 1995 when the board
adopted a relocation order pursuant to § 32.05, Stats., entitled "Condemnation for sewers and
transportation facilities." In
January, the Village moved the court to continue the February 14, 1995, trial
date.
Maxey v. Redevelopment
Auth., 94 Wis.2d 375, 288 N.W.2d 794 (1980), held that the
government's commencement of a direct condemnation action does not bar the
prosecution of a landowner's pending inverse condemnation action. Although Maxey dealt with an
action for compensation for a permanent taking covered by § 32.10, Stats., we conclude that the underlying
reason for permitting the plaintiff-landowner to proceed when the government
does not extends to the circumstances here.
The Maxey court observed:
"That statute [§ 32.10] is designed to protect property owners
against the slothful actions of a condemnor which, having constructively taken
an owner's property, is in no hurry to compensate the owner ...." Id. at 393, 288 N.W.2d at
803. In addition, the court stated:
[T]o
allow the mere making of a jurisdictional offer [preliminary to the formal commencement
of a condemnation proceeding by petition] to constitute the exercise of
condemnation powers would deprive a property owner of any remedy and would
leave the property owner completely helpless, irrespective of how long after
the jurisdictional offer the condemnor
finally decided to condemn or to abandon the project.
Id. at
394, 288 N.W.2d at 803.
The plaintiffs in our
case commenced their action in 1993, after negotiations with the Village
failed. The Village sought direct
condemnation only at the eleventh hour.
While the Village points to the potential for future litigation where
the only finding here is a temporary taking, that factor is not
dispositive. In light of the fact that
the plaintiffs were entitled to prompt resolution of their claim for relief,
the trial court was within its discretionary authority to deny the Village's
motion.
The Village also
challenges the award of damages on several grounds: plaintiffs' failure to establish the initial date of taking; the
use of a diminished value standard rather than loss of use as compensation for
taking; allowing a double recovery; and awarding amounts contrary to the great
weight of the evidence. We reject each
challenge. A damage award will be
sustained if it is within reasonable limits and is supported by credible
evidence in the record. Chernetski
v. American Family Mut. Ins. Co., 183 Wis.2d 68, 80-81, 515 N.W.2d 283,
289 Ct. App. 1994).
The initial challenge is
to the failure to establish an initial date of taking, that is, the date when
the property was essentially rendered useless.
Instead, the plaintiffs' experts used a date shortly before the trial
date to determine the diminished value of the property. In order to grant a new trial in the
interest of justice, an appellate court must be convinced, when reviewing the
record as a whole, that there has been a miscarriage of justice or that the
real controversy has not been fully tried.
Brookhouse v. State Farm Mut. Auto Ins. Co., 130 Wis.2d
166, 171, 387 N.W.2d 82, 84-85 (Ct. App. 1986). To reverse on miscarriage of justice grounds, we are required to
find a substantial probability of a different result on retrial. Id. at 172, 387 N.W.2d at
85. A retrial in this case would not
likely change the result.
Certainly in the case of
a permanent taking, the initial date of taking is essential to a proper
determination of damages. The taker
owns the land from that day forward, and any loss of value by the former owner
is fixed on that date. We need not
decide whether a plaintiff claiming temporary taking is in a similar
position. The Village's maintenance of
a continuing nuisance entitled plaintiffs to prove that the value of their land
they sought to recover continued to diminish up to the date of trial.[3] The gravamen of the tort is an ongoing
harm. Because diminished value of the
real estate is compensable as part of such a claim, there is no reason to deny
the injured party the right to prove that loss up to the time of trial.
Nuisance damages are
delineated in Restatement (Second) of
Torts § 929 (1979) as follows:
Harm to Land from Past
Invasions.
(1) If one is entitled to a judgment
for harm to land resulting from a past invasion and not amounting to a total
destruction of value, the damages include compensation for
(a) the difference
between the value of the land before the harm and the value after the harm, or
at his election in an appropriate case, the cost of restoration that has been
or may be reasonably incurred,
(b) the loss of use of
the land, and
(c) discomfort
and annoyance to him as an occupant.
The comment on subsec.
(1), cl. (a), provides in part:
a.
One whose land has been damaged is entitled to compensation for the difference
between its value before and after the harm.
If only a portion of a tract of land has been directly harmed, the
diminished value of the entire tract is considered. On what is meant by value, see § 911.
The comment on subsec.
(1), cl. (b), provides in part:
d.
In addition to damages for the diminution of the value or other similar
elements of damage, the plaintiff is entitled to recover for the past or prospective
loss of use caused by the defendant's wrong as far as this has not been
included in the other elements of damages awarded to the plaintiff, as stated
in § 931. Thus, if the plaintiff's land has been flooded for a month so that he
was unable to use the land, he is entitled to recover for this loss although
there was no permanent harm to the land caused by the flood.
The comment on subsec.
(1), cl. (c), provides in part:
e. Discomfort
and other bodily and mental harms.
Discomfort and annoyance to an occupant of the land and to the members
of the household are distinct grounds of compensation for which in ordinary
cases the person in possession is allowed to recover in addition to the harm to
his proprietary interests.
See
also City of Phoenix v. Johnson, 75 P.2d 30
(Ariz. 1938).
The plaintiffs did not
seek damages for lost rental value as required in subsec. (1)(b) above, and
that is not an issue in this case. What
they received was compensation for diminished value and damages for discomfort
and annoyance, recognized under subsecs. (1)(a) and (c) above. While the plaintiffs were entitled to all
those damages by virtue of a continuing private nuisance and their inverse
condemnation action for a temporary taking was redundant, the fact that they
recovered part of their damages through the taking claim and failed to prove
the initial taking date was, at most, harmless error.
Contrary to the
Village's next contention, the separate inquiries into diminished value and
personal inconvenience did not produce double damages. An examination of the jury instructions and
verdict support our conclusion.
The first damage
question, question 2 in the verdict, read:
As to
each property owner listed below, what sum of money will compensate them for
the fair market value of the property rights taken as a result of the
occupation of their property by the Village of Little Chute?
There
followed a separate inquiry for each of eight property owners.
The damage question,
question 4 in the verdict, read:
What
amount of money do you find will fairly and reasonably compensate the
plaintiffs for damages sustained as a result of the creation of a nuisance by
the Village of Little Chute? Identify
the amount of such damages sustained by each property owner on the blank line
by their name(s).
There
followed a separate inquiry for each of six property owners, the court having
excluded from the inquiry two of the owners who had failed to show up for
trial.
The relevant
instructions as to damages in question 2 above provided:
Now, Question 2 of the damage question
speaks in terms of fair market value taken.
By fair market value is meant the amount for which a property could be
sold in the market on sale by an owner willing, but not compelled, to sell, and
to a purchaser willing and able, but not obliged to buy.
In
this case, of course, you are not determining fair market value as such, but
rather the diminishment in fair market value to the respective Plaintiffs'
property assertedly caused by the routing of storm sewer water across the
properties. There has been received
into evidence testimony as to other sales as an aid to the jury, if such it be,
in determining the fair market value of the properties under consideration.
In addition to a
cautionary instruction not to duplicate the damage awards in the earlier
inquiry, the court instructed the jury to resolve the nuisance damages as
follows:
If
called upon to answer that question, then you're asked to attach a value to the
use or enjoyment of which the respective Plaintiffs have been deprived with
respect to their property. This
includes the value of any personal discomfort, or inconvenience which the
Plaintiffs have suffered with respect to the use and enjoyment of their
property.
As the instructions and
verdict demonstrate, the jury was allowed to award damages for diminished value
of the property as part of the taking claim, and for personal inconvenience and
discomfort as part of the nuisance claim.
Because a landowner who suffers a private nuisance is entitled to
compensation for both those losses, the structure of the verdict in this case
did not result in an award of duplicated damages.[4]
The Village contends
that the court's instructions applied an erroneous standard for damages for a
temporary taking, and that the proper measure is the loss in rental that
probably could have been obtained, citing W.H. Pugh Coal Co. v. State,
157 Wis.2d 620, 460 N.W.2d 787 (Ct. App. 1990). Pugh does say that lost rental value and not loss
of fair market value is the proper measure of damages for a temporary
taking. Id. at 631, 460
N.W.2d at 791. However, as we have
already demonstrated, because the plaintiffs were entitled to diminished market
value caused by a private nuisance, the error was harmless.[5]
The
Village's next argument, that the damages are contrary to the evidence because
the appraised value of the plaintiffs' properties increased each year, ignores
the evidence that the increased value was less than it would have been but for
the nuisance.[6]
The Village contends
that the trial court failed to apply the statute of limitations, either
§ 893.52, Stats., or
§ 893.93(1)(a), Stats., to
limit plaintiffs' recovery to six years prior to the date their action was
commenced, May 24, 1993.
Section
893.93(1)(a), Stats., provides:
Miscellaneous actions. (1) The following
actions shall be commenced within 6 years after the cause of action accrues or
be barred:
(a)
An action upon a liability created by statute when a different limitation is
not prescribed by law.
Section 893.52, Stats., provides:
Action
for damages for injury to property. An
action, not arising on contract, to recover damages for an injury to real or
personal property shall be commenced within 6 years after the cause of action
accrues or be barred, except in the case where a different period is expressly
prescribed.
Section 893.93(1)(a), Stats., by its terms, applies to an
"action upon a liability created by statute ...." The Village's liability is not created by
statute, but by the common law. If the
Village means to imply that liability arises from § 32.10, Stats., our prior discussion repudiates
that argument.
The Village relies upon
§ 893.52, Stats., citing a
statement in Pugh, 157 Wis.2d at 629, 460 N.W.2d at 790: "For the statute of limitations to
begin to run [§ 893.52], a claim must be definitely fixed and not
continuing." The Village maintains
that "[t]he cause of action accrued when the plaintiffs were first
informed that there was a ravine in their backyard ...." The Village's contention that the presence
of the ravine fixed the date of injury more than six years prior to the
commencement of the action is without merit.
The undisputed evidence establishes that the injury in this case was the
Village's continuous diversion of storm waters beginning in the mid to late
1980s and 1990s.[7]
An action for a
continuing injury may be maintained beyond the ordinary statute of
limitations. In Ramsdale v. Foote,
55 Wis. 557, 13 N.W. 557 (1882), the plaintiff sought recovery for flood damage
caused by the defendant's dam. That
early case held: "It is well
settled that every continuance of a nuisance is, in law, a new nuisance. ... This being so, it is evident that the
statute of limitations is not available to the defendants." Id. at 562, 13 N.W. at 562
(citations omitted).
Speth v. City of Madison, 248
Wis. 492, 499, 22 N.W.2d 501, 504 (1946) holds: "There is no statute which bars an action for a continuing
injury to property." Stockstad
v. Town of Rutland, 8 Wis.2d 528, 530-31, 99 N.W.2d 813, 815 (1959),
held that a landowner's complaint stated a claim for a private continuing
nuisance where the town's road improvement in 1946 caused contamination and
periodic flooding "from the dates of 1946 to the present," causing
the plaintiff to become ill in the years 1954 and 1955. The holding of these cases is applicable to
the present action for a private continuing nuisance.
Finally, the Village
does not adequately develop its argument regarding navigability,
concluding: "After reviewing all
the evidence, this Court should find that the ravine is navigable in fact. Such finding directly [a]ffects the amount
of the plaintiffs' nuisance damage award." This statement raises a number of problems the Village does not
address. Initially, this court is not
empowered to make findings of fact. Wurtz
v. Fleischman, 97 Wis.2d 100, 107 n.3, 293 N.W.2d 155, 159 n.3
(1980). If the Village is implying that
the trial court erred by not finding as a matter of law that the evidence
established that the original waterway was navigable in fact, it neither
demonstrates that it sought such a ruling nor does our examination of the
evidence uncover evidence to support such a ruling. The burden of proving that waters are navigable in fact is on the
government. State v. Bleck,
114 Wis.2d 454, 459, 338 N.W.2d 492, 495 (1983).[8] The only testimony that would bear upon the
question whether the drainage ditch was a natural navigable waterway prior to
the increased diversion of storm water demonstrates to the contrary.
If the Village is
implying that its diversion of storm water created a navigable stream whereby
the public obtained rights in the property that defeat the plaintiffs' claim
for damages, it does not provide authority to support that suggestion. Menomonee Falls v. DNR, 140
Wis.2d 579, 593, 412 N.W.2d 505, 511 (Ct. App. 1987), suggests the contrary:
[U]nder
a strict navigability in fact test, for which seasonal periods of high water
suffice, low-lying, periodically flooded backyards, streets and street gutters,
drainage ditches and the like could be considered navigable and thus subject to
state regulation. This concern may be
allayed by reference to the legislative declaration of navigability. Section 30.10(1) (2), Stats., declares navigable only lakes,
streams, sloughs, bayous, and marsh outlets which are navigable in
fact. Lilly creek is undisputedly a
stream. We are confident that there
need be no fear that flooded backyards and street gutters will be declared
navigable waters. (Emphasis in
original.)
We decline to address
the hypothetical question whether an increase of storm water into a navigable
stream "directly affects the amount of plaintiffs' nuisance damage
award." The evidence failed to
establish the existence, prior to the increased storm water at issue, of a
navigable stream.
In conclusion, the
plaintiffs were entitled to pursue a claim for diminished value of property
without regard to § 32.10, Stats.,
and despite the Village's subsequent step toward a direct condemnation. The Village has waived the right to contend
that its taking was permanent. Any
error in allowing diminished value damages without establishing the initial
date of taking is not grounds for a discretionary reversal, and the nuisance
damages for personal inconvenience did not constitute duplication of
damages. The verdict was not contrary
to the evidence. The six-year statute
of limitations does not act as a bar to a continuing private nuisance action
against the Village.
By the Court.—Judgment
and order affirmed.
[1] Section 752.35, Stats., provides:
Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
[2] Article I, § 13, of the Wisconsin Constitution provides: "The property of no person shall be taken for public use without just compensation."
[3] A private nuisance is an unreasonable interference with the interest of an individual in the use and enjoyment of land. The activity complained of must be offensive to a person of ordinary and normal sensibilities. Bubolz v. Dane County, 159 Wis.2d 284, 298, 464 N.W.2d 67, 73 (Ct. App. 1990).
[4] The verdict awarded damages to individual plaintiffs in question 2 (for diminished value) ranging from $8,306 to $21,028, totaling $94,408, and awarded damages to individual plaintiffs in question 4 (for inconvenience and discomfort) of $25,000 each, except for one award of $8,000, totaling $133,000. The total award to the eight named landowners in this case was therefore $227,408.
[5] Although our harmless error analysis also renders the matter moot, the Village misconstrues the holding in Hillcrest Golf & Country Club v. City of Altoona, 135 Wis.2d 431, 400 N.W.2d 493 (Ct. App. 1986). Hillcrest does not hold that a landowner may maintain only one or the other; to the contrary, it provides the opposite. It is true that the initial paragraph in that decision states our conclusion that the plaintiff's complaint "is sufficient to state a cause of action in inverse condemnation or private nuisance." A reading of the entire opinion immediately reveals that the holding of the case is that the complaint stated a claim for both claims.
[6] If the Village pursues its direct condemnation claim to permanently take the property, the amount of plaintiffs' damages will no doubt be reduced by the fact of the prior reduction in value.
[7] The evidence reveals that one of the plaintiffs purchased his property fewer than six years prior to commencement of the action and was therefore within the six-year statute in any case.
[8] The supreme court established the modern
test of "navigability in fact" in Muench v. PSC, 261
Wis. 492, 53 N.W.2d 514 (1952):
[I]t is no
longer necessary in determining navigability of streams to establish a past
history of floating of logs, or other use of commercial transportation, because
any stream is "navigable-in-fact" which is capable of floating
any boat, skiff or canoe, of the shallowest draft used for recreational
purposes.
Id. at 506,
53 N.W.2d at 519.
Navigability
... is not to be determined by the "normal" condition of the stream.
...
... [T]he
test is whether the stream has periods of navigable capacity which ordinarily
recur from year to year, e.g., spring freshets, or has continued navigable long
enough to make it useful as a highway for recreation or commerce.
DeGayner & Co. v. DNR, 70 Wis.2d 936, 946, 236 N.W.2d 217, 222 (1975).