Torts; Governmental immunity; nuisance
The creation and maintenance of private nuisances are not recognized as legislative acts subject to protection under sec. 893.80(4).
“Because neither Wis. Stat. § 893.80(4) nor (3) abrogates MMSD’s duty to abate this private nuisance, we reverse the court of appeals’ decision in part, affirm that decision in part, and remand to the circuit court for further proceedings consistent with this opinion. In particular, we reverse the court of appeals’ reversal of the circuit court’s order for abatement, in part. That is, while we affirm the court of appeals on all other issues, we reverse that court’s decision that Bostco was not entitled to equitable relief in the form of an order for abatement. Therefore, we affirm the circuit court decision that abatement is required, and we remand this matter to the circuit court. Upon remand, a hearing may be held to establish whether an alternate method will abate the continuing private nuisance MMSD maintains or whether lining the Deep Tunnel with concrete is required for abatement.”
Affirmed in part, Reversed in part, and Remanded.
2007AP221 & 2007AP1440 bostco, LLC, v. MMSD