Facts
- Dale and Alice Vogel operated a dairy farm and received electric service from Grant-Lafayette Electric Cooperative (GLEC).
- After building a new milking facility in 1970, the Vogels observed cows’ violent or erratic behavior during milking, chronic mastitis, reduced milk production, and increased culling.
- The Vogels attempted equipment and facility changes, but herd problems continued.
- In 1986, the Vogels contacted GLEC suspecting excessive “stray voltage” associated with the utility’s multi-grounded neutral distribution system, which can allow voltage to travel through grounded objects animals contact.
- GLEC installed an “isolator” on the farm; the herd’s behavior improved soon after installation.
- In 1992, the Vogels sued GLEC and its insurer alleging (1) negligence and (2) private nuisance from high levels of stray voltage, seeking economic damages and damages for annoyance and inconvenience.
- GLEC denied liability and alleged the Vogels were contributorily negligent in the design, maintenance, and operation of their electrical equipment.
Issues
- Whether excessive stray voltage associated with electrical service can constitute a private nuisance (a non-trespassory invasion of use and enjoyment of land).
- Whether the interference was an intentional nuisance or an unintentional invasion actionable only through negligence-based nuisance.
- Whether comparative/contributory negligence applies to reduce damages, including annoyance and inconvenience, where nuisance liability is grounded in negligent (unintentional) conduct.
Decision
- The Wisconsin Supreme Court held that private nuisance is a viable claim on these facts and that stray voltage may constitute a private nuisance.
- The court concluded the interference was an unintentional invasion; the evidence did not support intentional nuisance because GLEC lacked the required purpose or substantial certainty that the invasion would occur.
- The court held comparative/contributory negligence applies when the nuisance is an unintentional invasion otherwise actionable under negligence, and it approved reducing the total award accordingly.
- The court reinstated the nuisance-based award for annoyance and inconvenience and rejected the view that the service relationship barred the “invasion” element of nuisance.
- The court reversed the court of appeals’ order striking nuisance damages and left intact the circuit court’s judgment as reduced for the Vogels’ contributory negligence.
Legal Principles
- A private nuisance is a non-trespassory invasion of another’s interest in the private use and enjoyment of land.
- Excessive stray voltage interfering with the productive use and enjoyment of a farm may qualify as a private nuisance.
- A plaintiff’s request for electric service does not negate nuisance “invasion” where the complained-of interference (excessive stray voltage) is not what was requested or consented to.
- Intentional nuisance requires proof the defendant acted to cause the invasion or knew it was occurring or was substantially certain to occur; absent that proof, nuisance is treated as unintentional.
- When nuisance is based on an unintentional invasion actionable under negligence, comparative/contributory negligence reduces the entire recovery, including damages for annoyance and inconvenience.
- Damages for annoyance and inconvenience are recoverable for interference with use and enjoyment of land and may be recoverable under negligence principles in appropriate circumstances.
Conclusion
The court recognized excessive stray voltage as a potential private nuisance despite a voluntary electric-service relationship, treated the claim as an unintentional (negligence-based) nuisance absent proof of intent, applied comparative fault to reduce the overall award, and allowed recovery for annoyance and inconvenience tied to impaired use and enjoyment of the farm.