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Prah v. Maretti

Citation: 12 ELR 21125
No. No. 81-193, 321 N.W.2d 182/108 Wis. 2d 223, (Wis., 07/02/1982)

The Wisconsin Supreme Court holds that the owner of a solar-heated residence has a cause of action in common law private nuisance for the alleged obstruction of solar access by an adjoining landowner. Appellant asserted that respondent's proposed home, although in conformance with existing deed restrictions and local ordinances, would shadow appellant's solar collectors, reducing their efficiency. The court holds that obstruction of access to sunlight falls within the definition of private nuisance. The court recognizes that solar rights have been limited in the past, but argues that solar rights are more important now because of the value of sunlight as a source of energy, and that private nuisance law is sufficiently flexible to adapt to changing social values.In addition, the court holds that respondent's compliance with existing zoning laws does not establish his reasonable use of the land, but is only one factor to be considered in balancing the utility of respondent's action with the gravity of the harm to appellant. Likewise, appellant's ability to avoid the harm is relevant, but not conclusive proof that respondent acted reasonably. The court remands the case for consideration on the merits.

A dissent argues that the right of a property owner to the lawful enjoyment of property is not an obsolete policy. Rather, the dissent maintains, a property owner's right to use property within the limits set by ordinances, statutes, and deed restrictions should be vigorously protected.

Counsel for Appellant
John F. Maloney
Mulcahy & Wherry
815 E. Mason St., Suite 1600, Milwaukee WI 53202
(414) 278-7110

Counsel for Respondent
Jack C. Horth
3319 W. Villard St., P.O. Box 09481, Milwaukee WI 53209
(414) 462-7550

CECI, J., not participating.