Chapter 823

CHAPTER 823

NUISANCES

823.01   Jurisdiction over nuisances.

823.015   Action against condominium association.

823.02   Injunction against public nuisance, time extension.

823.03   Judgment.

823.04   Execution and warrant.

823.05   Warrant may be stayed.

823.06   Expense of abating, how collected.

823.065   Repeated violations of a municipal ordinance a public nuisance.

823.07   Violations of ordinances or resolutions relating to noxious business.

823.075   Actions against forestry operations.

823.08   Actions against agricultural uses.

823.085   Actions against owners or operators of solid waste facilities.

823.09   Bawdyhouses declared nuisances.

823.10   Disorderly house, action for abatement.

823.11   Evidence; dismissal of action; costs.

823.113   Drug or criminal gang house a public nuisance.

823.114   Judgment and order of sale of property.

823.115   Sale of property and use of proceeds.

823.12   Punishment for violation of injunction.

823.13   Judgment and execution; sale of fixtures.

823.14   Application of proceeds of sale; lis pendens.

823.15   Undertaking to release building or structure.

823.16   Remedy of lessor of place of prostitution.

823.20   Gambling place a public nuisance.

823.21   Dilapidated buildings declared nuisances.

823.215   Dilapidated wharves and piers in navigable waters declared nuisances.

823.23   Receivership for public nuisances.

823.01 823.01 Jurisdiction over nuisances. Any person, county, city, village or town may maintain an action to recover damages or to abate a public nuisance from which injuries peculiar to the complainant are suffered, so far as necessary to protect the complainant’s rights and to obtain an injunction to prevent the same.

823.01 History History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.01.

823.01 Annotation A town’s recovery under nuisance statutes does not require injury to the town’s own property. Town of East Troy v. Soo Line Railroad Co. 653 F.2d 1123 (1980).

823.01 Annotation Navigating the “Impenetrable Jungle”: Statutory Limits on Wisconsin Public Nuisance Actions. Massaro. 90 MLR 95 (2006).

823.015 823.015 Action against condominium association. If a city, village, town, or county has grounds under this chapter to abate a nuisance occurring upon the common elements of a condominium and the failure of a condominium association under ch. 703 to perform its duties to maintain and control the common elements is a reason the nuisance has not been abated, an action for a receivership under ch. 823 may be brought against the condominium association whether it is incorporated or unincorporated. This section does not authorize the seizure of condominium buildings or units.

823.015 History History: 2003 a. 283.

823.015 Note NOTE: 2003 Wis. Act 283, which affected this section, contains extensive explanatory notes.

823.02 823.02 Injunction against public nuisance, time extension. An action to enjoin a public nuisance may be commenced and prosecuted in the name of the state, either by the attorney general on information obtained by the department of justice, or upon the relation of a private individual, sewerage commission created under ss. 200.01 to 200.15 or a county, having first obtained leave therefor from the court. An action to enjoin a public nuisance may be commenced and prosecuted by a city, village, town or a metropolitan sewerage district created under ss. 200.21 to 200.65 in the name of the municipality or metropolitan sewerage district, and it is not necessary to obtain leave from the court to commence or prosecute the action. The same rule as to liability for costs shall govern as in other actions brought by the state. No stay of any order or judgment enjoining or abating, in any action under this section, may be had unless the appeal is taken within 5 days after notice of entry of the judgment or order or service of the injunction. Upon appeal and stay, the return to the court of appeals or supreme court shall be made immediately.

823.02 History History: 1971 c. 276; Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.02; 1977 c. 187, 379; 1981 c. 282; 1999 a. 150 s. 672.

823.02 Annotation This section was not repealed by implication by the creation of former ss. 144.30 to 144.46 [now see chs. 285 and 289] that empower DNR to investigate sources of pollution. State v. Dairyland Power Coop. 52 Wis. 2d 45, 187 N.W.2d 878 (1971).

823.02 Annotation A court of equity will not enjoin a crime or ordinance violation to enforce the law, but will if the violation constitutes a nuisance. Repeated violations of an ordinance constitute a public nuisance as a matter of law, and the injunction can only enjoin operations that constitute violations of the ordinance. State v. H. Samuels Co. 60 Wis. 2d 631, 211 N.W.2d 417 (1973).

823.02 Annotation The concept that an owner of real property can, in all cases, do with the property as he or she pleases is no longer in harmony with the realities of society. The “reasonable use” rule applies. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974).

823.02 Annotation A nuisance is an unreasonable activity or use of property that interferes substantially with the comfortable enjoyment of life, health, or safety of others. State v. Quality Egg Farm, Inc. 104 Wis. 2d 506, 311 N.W.2d 650 (1981).

823.02 Annotation Prohibiting injunctive relief against a person merely because the person was acting independently would render a public nuisance that consisted of multiple independent actors engaging in acts of prostitution immune to effective redress. Accordingly, a trial court had authority to issue an injunction to abate the individual’s role in prostitution that undisputed evidence proved was a public nuisance. City of Milwaukee v. Burnette, 2001 WI App 258, 248 Wis. 2d 820, 637 N.W.2d 447, 00-2308.

823.02 Annotation The social and economic roots of judge-made air pollution policy in Wisconsin. Laitos, 58 MLR 465.

823.02 Annotation Primary jurisdiction; role of courts and administrative agencies. Krings, 1972 WLR 934.

823.02 Annotation Protecting the right to farm: Statutory limits on nuisance actions against the farmer. Grossman and Fischer. 1983 WLR 95.

823.03 823.03 Judgment. In such actions, when the plaintiff prevails, the plaintiff shall, in addition to judgment for damages and costs, also have judgment that the nuisance be abated unless the court shall otherwise order.

823.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.03; 1993 a. 486.

823.04 823.04 Execution and warrant. In case of judgment that the nuisance be abated and removed the plaintiff shall have execution in the common form for the plaintiff’s damages and costs and a separate warrant to the proper officer requiring the officer to abate and remove the nuisance at the expense of the defendant.

823.04 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.04; 1993 a. 486.

823.05 823.05 Warrant may be stayed. The court may, on the application of the defendant, order a stay of such warrant for such time as may be necessary, not exceeding 6 months, to give the defendant an opportunity to remove the nuisance, upon the defendant’s giving satisfactory security to do so within the time specified in the order.

823.05 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1982); Stats. 1975 s. 823.05; 1993 a. 486.

823.06 823.06 Expense of abating, how collected. The expense of abating such nuisance pursuant to such warrant shall be collected by the officer in the same manner as damages and costs are collected upon execution or may be collected by finding the defendant personally liable for these expenses, as provided in s. 74.53. The officer may sell any material of any fences, buildings or other things abated or removed as a nuisance as personal property is sold upon execution and apply the proceeds to pay the expenses of such abatement, paying the residue, if any, to the defendant.

823.06 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.06; 1983 a. 476; 1987 a. 378.

823.065 823.065 Repeated violations of a municipal ordinance a public nuisance. Repeated or continuous violation of a municipal ordinance relating to naphtha, benzol, gasoline, kerosene or any other inflammable liquid or combustible material is declared a public nuisance, and an action may be maintained by the municipality to abate such nuisance and enjoin such violation.

823.065 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.065; 1993 a. 246.

823.07 823.07 Violations of ordinances or resolutions relating to noxious business. Repeated or continuous violations of a city, village or town resolution or ordinance enacted pursuant to s. 66.0415 (1) is declared a public nuisance and an action may be maintained by any such municipality to abate or remove such nuisance and enjoin such violation.

823.07 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.07; 1999 a. 150 s. 672.