## Facts

- The Village of Viola purchased land in 1951 and operated a village dump that involved open, sometimes unsupervised, burning of trash by citizens and village employees.
- In 1965, due to space limits and regulatory concerns, the village acquired additional adjacent land to create a new dump site.
- In 1966, before dump operations were moved to the newly acquired area, the village sold portions of that land to John Kellogg for use as a mink ranch and granted a permit conditioned on adequate well water.
- At a 1966 board meeting, when asked whether the dump’s proximity would harm mink, Kellogg stated he did not think it would be a problem.
- The village later shifted dump operations closer to Kellogg’s ranch; smoke from burning allegedly increased and harmed the mink operation.
- Kellogg asserted that smoke caused significant losses during 1970, including death of many kits and stunted growth in others, and that his requests to limit burning during breeding season were only briefly followed.
- A jury found the village’s dump operation constituted a private nuisance and awarded Kellogg $10,153 for smoke-caused damage to his mink herd in 1970.
- The circuit court upheld the verdict, and the village appealed.

## Issues

1. Whether Kellogg’s purchase of land and establishment of a mink ranch near an existing or planned dump operation (“coming to the nuisance”) barred recovery of damages for private nuisance.
2. Whether Kellogg’s 1966 statement that the dump’s proximity was not a problem equitably estopped him from later suing for nuisance damages.
3. Whether the alleged abnormal sensitivity of mink precluded a nuisance finding or barred recovery for smoke-related harm.

## Decision

- The Wisconsin Supreme Court affirmed the judgment and the jury’s $10,153 damages award.
- “Coming to the nuisance” did not bar an action for damages arising from a private nuisance.
- Kellogg was not equitably estopped by his earlier statement because the harmful interference developed or increased after the sale and Kellogg later complained and sought corrective action.
- The sensitivity of mink did not defeat nuisance liability as a matter of law; it was a factor for the jury in determining whether the interference was actionable.

## Legal Principles

- A defendant does not gain a right to continue a private nuisance merely because its activity existed before the plaintiff’s use; prior occupancy does not categorically bar a damages claim.
- Equitable estoppel requires more than a plaintiff’s earlier optimistic assessment; where the defendant’s harmful conduct later intensifies or continues and the plaintiff provides notice, estoppel is generally unavailable.
- The plaintiff’s particular sensitivity (including sensitive animals or uses) is relevant but not dispositive; whether interference is substantial and unreasonable is typically a fact question for the jury supported by the evidence.

## Conclusion

The court upheld a nuisance damages verdict against a municipality operating a smoke-producing dump, holding that prior location of the dump, the plaintiff’s earlier statement, and the claimed sensitivity of mink did not preclude liability where the jury found substantial smoke-caused harm.


Kellogg v. Village of Viola, 227 N.W.2d 55 (Wis. 1975)