297 N.W. 422 | Wis. | 1941
Action by John T. Blake against the city of Madison to recover damages for maintaining a nuisance, commenced August 23, 1939. From an order sustaining a demurrer to the complaint entered August 7, 1940, the plaintiff appeals. The facts are stated in the opinion. *499 The action was brought to recover damages for injuries alleged to have been sustained by the owner of three residence properties located across a street from and facing an athletic field owned and conducted by the defendant municipality. The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained.
The complaint further alleges that "the defendant is the owner and proprietor of a commercial amusement park [the athletic field above referred to] operated for profit;" that after the plaintiff became the owner of his said premises the defendant erected floodlights in said field to permit evening amusement activities, installed a voice-amplifying system therein, and permitted a tavern to operate therein, all "being installed for commercial reasons;" that as a result of said installations the activities at the field, including baseball, football, wrestling, and other athletic activities increased considerably, occupied many afternoons and evenings throughout the summer months, and often continued into unreasonably late hours beyond 11:30 at night; that such maintenance and operation are "attended with the raucous cheering of spectators, the blare of the voice-amplifying system and other noises incidental to the particular activity taking place," which disturb "the peace and quiet of the residents of the neighborhood;" that the neighborhood is "predominantly residential;" that the noises referred to interfere "with the comfort and physical well-being of the inhabitants" of the neighborhood, and "prevent, during late hours, proper rest and repose" of such inhabitants desiring sleep; and that as a result of said noises "the plaintiff's premises were made *500 less valuable for dwelling purposes, and thereby the rents and profits from the same were lost and destroyed, and the value of the same diminished to the extent of $7,500."
The first question for determination is whether the noises and lights accompanying the operation of the field at night may be considered as constituting a nuisance. Wahrer v.Aldrich,
See also on this point Ballstadt v. Pagel,
The defendant contends that even though the complaint be construed as alleging a nuisance, the city is nevertheless exempt from liability because, as it urges, the complaint shows that the city is exempt from liability because it was operating the park in performing a governmental function. To this *501
the plaintiff counters that a municipal corporation, even though as to "one of the governed" it is not subject to liability in such cases, it is nevertheless as a landowner liable to an adjacent landowner for operating the park in such manner as to constitute a nuisance the same as any other landowner maintaining a nuisance, citing Young v. Juneau County,
By the Court. — The order sustaining the demurrer to the complaint is reversed, and the cause is remanded for further proceedings.