Glenn Prah, Plaintiff-Appellant, v. Richard D. Maretti, Defendant-Respondent
No. 81-193
Supreme Court of Wisconsin
108 Wis. 2d 223; 321 N.W.2d 182; 1982 Wisc. LEXIS 2741; 29 A.L.R.4th 324; 12 ELR 21125

March 29, 1982, Argued July 2, 1982, Decided

DISPOSITION: By the Court. -- The judgment of the circuit court is reversed and the cause remanded for proceedings not inconsistent with this opinion.

OPINION BY: ABRAHAMSON

OPINION:

    ...According to the complaint, the plaintiff is the owner of a residence which was constructed during the years 1978-1979. The complaint alleges that the residence has a solar system which includes collectors on the roof to supply energy for heat and hot water and that after the plaintiff built his solar-heated house, the defendant purchased the lot adjacent to and immediately to the south of the plaintiff's lot and commenced planning construction of a home. The complaint further states that when the plaintiff learned of defendant's plans to build the house he advised the defendant that if the house were built at the proposed location, defendant's house would substantially and adversely affect the integrity of plaintiff's solar system and could cause plaintiff other damage. Nevertheless, the defendant began construction. The complaint further alleges that the plaintiff is entitled to "unrestricted use of the sun and its solar power" and demands judgment for injunctive relief and damages.

After filing his complaint, the plaintiff moved for a temporary injunction to restrain and enjoin construction by the defendant. In ruling on that motion the circuit court heard testimony, received affidavits and viewed the site.

The record made on the motion reveals the following additional facts: Plaintiff's home was the first residence built in the subdivision, and although plaintiff did not build his house in the center of the lot it was built in accordance with applicable restrictions. Plaintiff advised defendant that if the defendant's home were built at the proposed site it would cause a shadowing effect on the solar collectors which would reduce the efficiency of the system and possibly damage the system. To avoid these adverse effects, plaintiff requested defendant to locate his home an additional several feet away from the plaintiff's lot line, the exact number being disputed. Plaintiff and defendant failed to reach an agreement on the location of defendant's home before defendant started construction. The Architectural Control Committee of the subdivision and the Planning Commission of the City of Muskego approved the defendant's plans for his home, including its location on the lot. After such approval, the defendant apparently changed the grade of the property without prior notice to the Architectural Control Committee. The problem with defendant's proposed construction, as far as the plaintiff's interests are concerned, arises from a combination of the grade and the distance of defendant's home from the defendant's lot line.

The circuit court denied plaintiff's motion for injunctive relief, declared it would entertain a motion for summary judgment and thereafter entered judgment in favor of the defendant. ...

We consider first whether the complaint states a claim for relief based on common law private nuisance. This state has long recognized that an owner of land does not have an absolute or unlimited right to use the land in a way which injures the rights of others. The rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses or enjoyment of the other. When one landowner's use of his or her property unreasonably interferes with another's enjoyment of his or her property, that use is said to be a private nuisance. ...

The private nuisance doctrine has traditionally been employed in this state to balance the conflicting rights of landowners, and this court has recently adopted the analysis of private nuisance set forth in the Restatement (Second) of Torts. The Restatement defines private nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land." ...

Although the defendant's obstruction of the plaintiff's access to sunlight appears to fall within the Restatement's broad concept of a private nuisance as a nontrespassory invasion of another's interest in the private use and enjoyment of land, the defendant asserts that he has a right to develop his property in compliance with statutes, ordinances and private covenants without regard to the effect of such development upon the plaintiff's access to sunlight. In essence, the defendant is asking this court to hold that the private nuisance doctrine is not applicable in the instant case and that his right to develop his land is a right which is per se superior to his neighbor's interest in access to sunlight. This position is expressed in the maxim "cujus est solum, ejus est usque ad coelum et ad infernos," that is, the owner of land owns up to the sky and down to the center of the earth.

The defendant is not completely correct in asserting that the common law did not protect a landowner's access to sunlight across adjoining property. At English common law a landowner could acquire a right to receive sunlight across adjoining land by both express agreement and under the judge-made doctrine of "ancient lights." Under the doctrine of ancient lights if the landowner had received sunlight across adjoining property for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. Under the doctrine the landowner acquired a negative prescriptive easement and could prevent the adjoining landowner from obstructing access to light. (No American common law state recognizes a landowner's right to acquire an easement of light by prescription.)

Although American courts have not been as receptive to protecting a landowner's access to sunlight as the English courts, American courts have afforded some protection to a landowner's interest in access to sunlight. American courts honor express easements to sunlight. American courts initially enforced the English common law doctrine of ancient lights, but later every state which considered the doctrine repudiated it as inconsistent with the needs of a developing country. Indeed, for just that reason this court concluded that an easement to light and air over adjacent property could not be created or acquired by prescription and has been unwilling to recognize such an easement by implication....

This court's reluctance in the nineteenth and early part of the twentieth century to provide broader protection for a landowner's access to sunlight was premised on three policy considerations. First, the right of landowners to use their property as they wished, as long as they did not cause physical damage to a neighbor, was jealously guarded.

Second, sunlight was valued only for aesthetic enjoyment or as illumination. Since artificial light could be used for illumination, loss of sunlight was at most a personal annoyance which was given little, if any, weight by society.

Third, society had a significant interest in not restricting or impeding land development. This court repeatedly emphasized that in the growth period of the nineteenth and early twentieth centuries change is to be expected and is essential to property and that recognition of a right to sunlight would hinder property development. ...

Considering these three policies, this court concluded that in the absence of an express agreement granting access to sunlight, a landowner's obstruction of another's access to sunlight was not actionable. These three policies are no longer fully accepted or applicable. They reflect factual circumstances and social priorities that are now obsolete.

First, society has increasingly regulated the use of land by the landowner for the general welfare.

Second, access to sunlight has taken on a new significance in recent years. In this case the plaintiff seeks to protect access to sunlight, not for aesthetic reasons or as a source of illumination but as a source of energy. Access to sunlight as an energy source is of significance both to the landowner who invests in solar collectors and to a society which has an interest in developing alternative sources of energy. (State and federal governments are encouraging the use of the sun as a significant source of energy. In this state the legislature has granted tax benefits to encourage the utilization of solar energy. The federal government has also recognized the importance of solar energy and currently encourages its utilization by means of tax benefits, direct subsidies and government loans for solar projects.)

Third, the policy of favoring unhindered private development in an expanding economy is no longer in harmony with the realities of our society. The need for easy and rapid development is not as great today as it once was, while our perception of the value of sunlight as a source of energy has increased significantly.

Courts should not implement obsolete policies that have lost their vigor over the course of the years. The law of private nuisance is better suited to resolve landowners' disputes about property development in the 1980's than is a rigid rule which does not recognize a landowner's interest in access to sunlight. "What is regarded in law as constituting a nuisance in modern times would no doubt have been tolerated without question in former times." We read State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974), as an endorsement of the application of common law nuisance to situations involving the conflicting interests of landowners and as rejecting per se exclusions to the nuisance law reasonable use doctrine.

In Deetz the court abandoned the rigid common law common enemy rule with respect to surface water and adopted the private nuisance reasonable use rule, namely that the landowner is subject to liability if his or her interference with the flow of surface waters unreasonably invades a neighbor's interest in the use and enjoyment of land. This court concluded that the common enemy rule which served society "well in the days of burgeoning national expansion of the mid-nineteenth and early-twentieth centuries" should be abandoned because it was no longer "in harmony with the realities of our society." We recognized in Deetz that common law rules adapt to changing social values and conditions.

Yet the defendant would have us ignore the flexible private nuisance law as a means of resolving the dispute between the landowners in this case and would have us adopt an approach, already abandoned in Deetz, of favoring the unrestricted development of land and of applying a rigid and inflexible rule protecting his right to build on his land and disregarding any interest of the plaintiff in the use and enjoyment of his land. This we refuse to do.1

Private nuisance law, the law traditionally used to adjudicate conflicts between private landowners, has the flexibility to protect both a landowner's right of access to sunlight and another landowner's right to develop land. Private nuisance law is better suited to regulate access to sunlight in modern society and is more in harmony with legislative policy and the prior decisions of this court than is an inflexible doctrine of non-recognition of any interest in access to sunlight across adjoining land.

We therefore hold that private nuisance law, that is, the reasonable use doctrine as set forth in the Restatement, is applicable to the instant case. Recognition of a nuisance claim for unreasonable obstruction of access to sunlight will not prevent land development or unduly hinder the use of adjoining land. It will promote the reasonable use and enjoyment of land in a manner suitable to the 1980's. That obstruction of access to light might be found to constitute a nuisance in certain circumstances does not mean that it will be or must be found to constitute a nuisance under all circumstances. The result in each case depends on whether the conduct complained of is unreasonable.

Accordingly we hold that the plaintiff in this case has stated a claim under which relief can be granted. Nonetheless we do not determine whether the plaintiff in this case is entitled to relief. In order to be entitled to relief the plaintiff must prove the elements required to establish actionable nuisance, and the conduct of the defendant herein must be judged by the reasonable use doctrine....

The circuit court concluded that because the defendant's proposed house was in conformity with zoning regulations, building codes and deed restrictions, the defendant's use of the land was reasonable. This court has concluded that a landowner's compliance with zoning laws does not automatically bar a nuisance claim. Compliance with the law "is not the controlling factor, though it is, of course, entitled to some weight." The circuit court also concluded that the plaintiff could have avoided any harm by locating his own house in a better place. Again, plaintiff's ability to avoid the harm is a relevant but not a conclusive factor.

Furthermore, our examination of the record leads us to conclude that the record does not furnish an adequate basis for the circuit court to apply the proper legal principles on summary judgment. The application of the reasonable use standard in nuisance cases normally requires a full exposition of all underlying facts and circumstances. Too little is known in this case of such matters as the extent of the harm to the plaintiff, the suitability of solar heat in that neighborhood, the availability of remedies to the plaintiff, and the costs to the defendant of avoiding the harm. Summary judgment is not an appropriate procedural vehicle in this case when the circuit court must weigh evidence which has not been presented at trial.

Because the plaintiff has stated a claim of common law private nuisance upon which relief can be granted, the judgment of the circuit court must be reversed.

For the reasons set forth, we reverse the judgment of the circuit court dismissing the complaint and remand the matter to circuit court for further proceedings not inconsistent with this opinion.

By the Court. -- The judgment of the circuit court is reversed and the case remanded for proceedings not inconsistent with this opinion.

DISSENT: WILLIAM G. CALLOW, J. (dissenting).

The majority has adopted the Restatement's reasonable use doctrine to grant an owner of a solar heated home a cause of action against his neighbor who, in acting entirely within the applicable ordinances and statutes, seeks to design and build his home in such a location that it may, at various times during the day, shade the plaintiff's solar collector, thereby impeding the efficiency of his heating system during several months of the year. Because I believe the facts of this case clearly reveal that a cause of action for private nuisance will not lie, I dissent....

The majority ... concludes that this court's past reluctance to extend protection to a landowner's access to sunlight ... is based on obsolete policies which have lost their vigor over the course of the years. The three obsolete policies cited by the majority are: (1) Right of landowners to use their property as they desire as long as no physical damage is done to a neighbor; (2) In the past, sunlight was valued only for aesthetic value, not a source of energy; and (3) Society has a significant interest in not impeding land development. The majority has failed to convince me that these policies are obsolete.

It is a fundamental principle of law that a "landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land." ... As stated in the frequently cited and followed case of Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 1959), cert. denied, 117 So. 2d 842 (Fla. 1960):

"There being, then, no legal right to the free flow of light and air from the adjoining land, it is universally held that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo ut alienum non laedas, even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite." Id. at 359 (emphasis in original).

I firmly believe that a landowner's right to use his property within the limits of ordinances, statutes, and restrictions of record where such use is necessary to serve his legitimate needs is a fundamental precept of a free society which this court should strive to uphold.

As one commentator has suggested:

"It is fashionable to dismiss such values as deriving from a bygone era in which people valued development as a 'goal in itself,' but current market prices for real estate, and more particularly the premiums paid for land whose zoning permits intensive use, suggest that people still place very high values on such rights."

...In the instant case, we are dealing with an action which seeks to restrict the defendant's private right to use his property, notwithstanding a complete lack of notice of restriction to the defendant and the defendant's compliance with applicable ordinances and statutes. The plaintiff who knew of the potential problem before the defendant acquired the land seeks to impose such use restriction to accommodate his personal, private benefit -- a benefit which could have been accommodated by the plaintiff locating his home in a different place on his property or by acquiring the land in question when it was for sale prior to its acquisition by the defendant.

I know of no cases repudiating policies favoring the right of a landowner to use his property as he lawfully desires or which declare such policies are "no longer fully accepted or applicable" in this context.2 The right of a property owner to lawful enjoyment of his property should be vigorously protected, particularly in those cases where the adjacent property owner could have insulated himself from the alleged problem by acquiring the land as a defense to the potential problem or by provident use of his own property.

The majority concludes that sunlight has not heretofore been accorded the status of a source of energy, and consequently it has taken on a new significance in recent years. Solar energy for home heating is at this time sparingly used and of questionable economic value because solar collectors are not mass produced, and consequently, they are very costly. Their limited efficiency may explain the lack of production.

Regarding the third policy the majority apparently believes is obsolete (that society has a significant interest in not restricting land development), ... I concede the law may be tending to recognize the value of aesthetics over increased volume development and that an individual may not use his land in such a way as to harm the public. The instant case, however, deals with a private benefit.... While the majority's policy arguments may be directed to a cause of action for public nuisance, we are presented with a private nuisance case which I believe is distinguishable in this regard.3

I would submit that any policy decisions in this area are best left for the legislature. "What is 'desirable' or 'advisable' or 'ought to be' is a question of policy, not a question of fact. What is 'necessary' or what is 'in the best interest' is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations." ... I would concur with these observations of the trial judge: "While temptation lingers for the court to declare by judicial fiat what is right and what should be done, under the facts in this case, such action under our form of constitutional government where the three branches each have their defined jurisdiction and power, would be an intrusion of judicial egoism over legislative passivity."

The legislature has recently acted in this area. Chapter 354, Laws of 1981 (effective May 7, 1982), was enacted to provide the underlying legislation enabling local governments to enact ordinances establishing procedures for guaranteeing access to sunlight. This court's intrusion into an area where legislative action is being taken is unwarranted, and it may undermine a legislative scheme for orderly development not yet fully operational....

In order for a nuisance to be actionable in the instant case, the defendant's conduct must be "intentional and unreasonable." It is impossible for me to accept the majority's conclusion that Mr. Maretti, in lawfully seeking to construct his home, may be intentionally and unreasonably interfering with the plaintiff's access to sunlight. In addressing the "unreasonableness" component of the actor's conduct, it is important to note that "[t]here is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose." ...

I conclude that plaintiff's solar heating system is an unusually sensitive use. In other words, the defendant's proposed construction of his home, under ordinary circumstances, would not interfere with the use and enjoyment of the usual person's property. "The plaintiff cannot, by devoting his own land to an unusually sensitive use, such as a drive-in motion picture theater easily affected by light, make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless."

Looking solely at the defendant's conduct, the circuit court concluded that the defendant's construction of a house did not create a cause of action for nuisance because the defendant's proposed home was in conformity with zoning regulations, building codes, deed restrictions, as well as the fact that the defendant's use of the land to build his home was reasonable....

I further believe that the majority's conclusion that a cause of action exists in this case thwarts the very foundation of property law. Property law encompasses a system of filing and notice in a place for public records to provide prospective purchasers with any limitations on their use of the property. Such a notice is not alleged by the plaintiff. Only as a result of the majority's decision did Mr. Maretti discover that a legitimate action exists which would require him to defend the design and location of his home against a nuisance suit, notwithstanding the fact that he located and began to build his house within the applicable building, municipal, and deed restrictions. ...

In recognizing this common law cause of action, this court's decision is in direct conflict with the 1981 legislative provisions for the granting of solar access permits. In a municipality which enacts the ordinance in conformity with the statute, neighbors know their respective rights. Under the majority decision, in a municipality which does not enact the ordinance, a common law cause of action for nuisance exists without any defined rights.

I believe the facts of the instant controversy present the classic case of the owner of a solar collector who fails to take any action to protect his investment. There is nothing in the record to indicate that Mr. Prah disclosed his situation to Mr. Maretti prior to Maretti's purchase of the lot or attempted to secure protection for his solar collector prior to Maretti's submission of his building plans to the architectural committee. Such inaction should be considered a significant factor in determining whether a cause of action exists.

The majority's failure to recognize the need for notice may perpetuate a vicious cycle. Maretti may feel compelled to sell his lot because of Prah's solar collector's interference with his plans to build his family home. If so, Maretti will not be obliged to inform prospective purchasers of the problem. Certainly, such information will reduce the value of his land. If the presence of collectors is sufficient notice, it cannot be said that the seller of the lot has a duty to disclose information peculiarly within his knowledge. I do not believe that an adjacent lot owner should be obliged to experience the substantial economic loss resulting from the lot being rendered unbuildable by the contour of the land as it relates to the location and design of the adjoining home using solar collectors.4

I am troubled by the majority's apparent retrospective application of its decision. I note that the court in Deetz saw the wisdom and fairness in rendering a prospective decision. 66 Wis. 2d at 24. Surely, a decision such as this should be accorded prospective status. Creating the cause of action after the fact results in such unfair surprise and hardship to property owners such as Maretti.

Because I do not believe that the facts of the present case give rise to a cause of action for private nuisance, I dissent.

    1 Defendant's position that a landowner's interest in access to sunlight across adjoining land is not "legally enforceable" and is therefore excluded per se from private nuisance law was adopted in Fontainebleau Hotel Corp. v. Forty-five Twenty-five, Inc., 114 So. 2d 257 (Fla. Ct. App. 1959). The Florida district court of appeals permitted construction of a building which cast a shadow on a neighboring hotel's swimming pool. The court asserted that nuisance law protects only those interests "which [are] recognized and protected by law," and that there is no legally recognized or protected right to access to sunlight. A property owner does not, said the Florida court, in the absence of a contract or statute, acquire a presumptive or implied right to the free flow of light and air across adjoining land. The Florida court then concluded that a lawful structure which causes injury to another by cutting off light and air -- whether or not erected partly for spite -- does not give rise to a cause of action for damages or for an injunction. ...

We do not find the reasoning of Fontainebleau persuasive. The court leaped from rejecting an easement by prescription (the doctrine of ancient lights) and an easement by implication to the conclusion that there is no right to protection from obstruction of access to sunlight. The court's statement that a landowner has no right to light should be the conclusion, not its initial premise. The court did not explain why an owner's interest in unobstructed light should not be protected or in what manner an owner's interest in unobstructed sunlight differs from an owner's interest in being free from obtrusive noises or smells or differs from an owner's interest in unobstructed use of water. The recognition of a per se exception to private nuisance law may invite unreasonable behavior. Return

2 Perhaps one reason courts have been hesitant to recognize a cause of action for solar blockage is that such a suit would normally only occur between two abutting landowners, and it is hoped that neighbors will compromise and reach agreement between themselves. This has, undoubtedly, been done in a large percentage of cases. To now recognize a cause of action for solar blockage may thwart a policy of compromise between neighbors.  Return

3 I am amused at the majority's contention that what constitutes a nuisance today would have been accepted without question in earlier times. Supra 237. This calls to mind the fact that, in early days of travel by horses, the first automobiles were considered nuisances. Later, when automobile travel became developed, the horse became the nuisance....  This makes me wonder if we are examining the proper nuisance in the case before us. In other words, could it be said that the solar energy user is creating the nuisance when others must conform their homes to accommodate his use? I note that solar panel glare may temporarily blind automobile drivers, reflect into adjacent buildings causing excessive heat, and otherwise irritate neighbors. Certainly in these instances the solar heating system constitutes the nuisance. Return

    4 Mr. Prah could have avoided this litigation by building his own home in the center of his lot instead of only ten feet from the Maretti lot line and/or by purchasing the adjoining lot for his own protection. Mr. Maretti has already moved the proposed location of his home over an additional ten feet to accommodate Mr. Prah's solar collector, and he testified that moving the home any further would interfere with his view of the lake on which the property faces. Return