Vol. 75, No. 12, December
Brewing Land Use Conflicts:
Wisconsin's Right to Farm Law
Nuisance law, personal property rights, and agricultural expansions
remain unreconciled under Wisconsin's Right to Farm Law. Whatever
constitutional viability of the statute itself, the law is likely to see
judicial interpretation - and soon.
by Andrew C. Hanson
Practitioners who find time to read newspapers know that there are
land use conflicts brewing in Wisconsin between growing dairy operations
and their residential neighbors. Many of those conflicts center around
Wisconsin's law of nuisance and the application of Wisconsin's Right to
Farm Law, Wis. Stat. section 823.08.1
Wisconsin's Right to Farm Law is part of a national trend by states
toward changing the common law prima facie case for filing nuisance
claims against agricultural operations. Almost every state has a right
to farm law. Although the laws differ in their specifics, they all seek
to legislatively lift the threat of nuisance lawsuits by neighbors if
the agricultural operation produces odor, noise, water pollution, or
other nuisance-type conditions,2 as can be
true with large livestock operations such as hog, dairy, and poultry
This article explores Wisconsin's Right to Farm Law, how it has
changed nuisance law in Wisconsin, and consequently, how it may have
altered the constitutionally protected property rights of large
livestock operations and their neighboring landowners.
Wisconsin's Changing Livestock Industry
Since the early 1980s, Wisconsin has seen an increase in the scale of
its agricultural operations, particularly livestock operations, along
with a decrease in the total number of livestock farms. Between 1992 and
1997, the number of dairy farms with herd sizes of from 20 to 99 milk
cows decreased by 28 percent.3 Conversely,
since 1992 the number of dairy farms with herd sizes of more than 1,000
milk cows increased by 87 percent.4
The larger livestock operations represent a shift in the structure of
the dairy industry and a noticeable departure from Wisconsin's history
of small family farms. Rather than pasturing their dairy cows, larger
operations permanently house thousands of cows in large freestall barns
that can span several acres.
Neighbors of these large operations have complained of odor, noise,
water pollution, and other nuisance-type conditions. On the other hand,
the increased scale of animal confinements has been welcomed by some as
the savior of Wisconsin's dairy industry. These observors argue that
laws to encourage dairy expansion and discourage opposition to those
expansions are essential to ensuring Wisconsin's continued growth as a
dairy leader. Whatever the merits of those arguments, the trend toward
increasing scale has brought similar changes in nuisance law, in the
form of Wisconsin's Right to Farm Law.
Wisconsin's Right to Farm Law: The Legislative Backdrop
The context in which Wisconsin's Right to Farm Law was introduced is
instructive. The first legal battle over an agricultural expansion was
fought between a large poultry operation and its neighbors in the late
1970s. Against the recommendations of state and local officials, a large
egg company, known as Quality Egg Farm, placed approximately 140,000
chickens in seven egg-laying houses near a grade school and several
residences.5 Not surprisingly, the neighbors
complained that the odors emanating from the chicken houses and
manure-covered fields were nauseating, pungent, and unbearable, and
"that [they] made one sick or ill or gave one a headache."6 Moreover, most of those neighbors were either
farmers or had farm backgrounds, and most of them had lived in the
vicinity of Quality Egg at least five years before the egg farm moved to
the area.7 In response to the neighbors'
complaints, the state of Wisconsin filed a lawsuit against Quality Egg
for causing a nuisance. In State v. Quality Egg Farm, the
Wisconsin Supreme Court held that the state could proceed against
Quality Egg on a public, rather than private, nuisance theory on behalf
of the neighbors surrounding the facility.8
The Wisconsin Supreme Court decided Quality Egg Farm on Nov.
3, 1981. The legislature enacted Wisconsin's first Right to Farm statute
only four months later, on March 13, 1982.
The 1982 Right to Farm Law
In its statement of legislative purpose, the Right to Farm Law, as
enacted in 1982, stated that "changes in agricultural technology,
practices, and scale of operation have, on occasion, tended to create
conflicts between agricultural and other activities," and advised local
governments to use their zoning power to prevent land use
conflicts.9 The law also placed considerable
emphasis on local zoning to guide the resolution of nuisance lawsuits.
Rather than limiting the scope of the cause of action available to
plaintiffs filing nuisance lawsuits against agricultural operations, the
law merely limited the remedies available based on whether the livestock
operation was operating within an agricultural land use zone.10 If the agricultural use was conducted on lands
subject to an exclusive agricultural zoning ordinance, then the statute
broadly required that the relief granted "shall not substantially
restrict or regulate such uses or practices, unless such relief is
necessary to protect public health or safety."11 If the use was not conducted on lands subject to
an agricultural zoning ordinance, then the court could order adoption of
practices that had the potential to mitigate the nuisance. However, the
court could assess only nominal damages if the agricultural use existed
in substantially the same manner and in the same location before the
plaintiff began using his or her property. Moreover, the court could not
order closure in such an instance.12
The 1995 Amendments: Today's Right to Farm Law
The Right to Farm Law was substantially amended in 1995, though its
legislative purpose largely remained the same: to encourage agricultural
production and discourage land use conflicts between expanding livestock
operations and their neighbors.13 As
before, the legislature encouraged local governments to use their zoning
powers to prevent such conflicts.14
The 1995 amendments made several key changes. First, while the 1982
law merely focused on limiting the remedies available in a nuisance
case, the 1995 amendments also limited the scope of the cause of action.
For example, the Right to Farm Law prevents a court from finding that an
agricultural use or practice, as defined in the statute, is a nuisance
if two conditions are met: 1) the plaintiff "came to the nuisance," and
2) the agricultural use or practice does not pose a threat to public
health and safety.
The agricultural use or practice is not a nuisance if it is
"conducted on ... land that was in agricultural use without substantial
interruption" before the plaintiff began using the neighboring land
affected by the alleged nuisance.15 This
requirement essentially codifies the "coming to the nuisance" defense,
which defendants often raise when a plaintiff moves to the area after
the alleged nuisance arose. Although "coming to the nuisance" is not a
complete defense, a court may balance the equities in the defendant's
favor based on this factor in a suit for equitable relief.16 The "coming to the nuisance" defense in the
Right to Farm Law applies regardless of whether a change in agricultural
use or agricultural practice is alleged to have contributed to the
The agricultural use is not a nuisance if it "does not present a
substantial threat to public health or safety."18 This formulation is a departure from the law of
private nuisance, which allows recovery for an unreasonable and
substantial interference with the use and enjoyment of one's
property,19 and therefore substantially
raises the bar for proving a private nuisance and possibly eliminates
nuisance as a cause of action.
Additionally, when a court finds that a livestock operation is a
nuisance under the two conditions cited above, the 1995, 1997, and 1999
amendments further limit the remedies available to plaintiffs. Even if a
plaintiff is able to prove that an agricultural use presents a
substantial threat to public health and safety, and that the plaintiff
did not come to the nuisance, Wisconsin's Right to Farm Law restricts
the remedies available to the plaintiff in four ways:
1) The relief awarded by the court may not substantially restrict the
agricultural use or practice.20
2) If the court orders an agricultural operation to mitigate the
nuisance, it must consult the Department of Natural Resources (DNR) or
the Department of Agriculture, Trade, and Consumer Protection (DATCP)
for suggested mitigation measures.21
3) The court must provide the agricultural defendant with at least
one year to install the measures.22
4) Most significantly, any action that the court orders cannot
substantially or adversely affect the economic viability of the
Somewhat confusingly, the Right to Farm Law then states that the
limits do not apply if the agricultural use or practice is a threat to
public health or safety.23 This is in spite
of the fact that, under the Right to Farm Law, there can be no nuisance
unless there is a "substantial threat to public health and safety" and
the plaintiff did not come to the nuisance. One way to reconcile this
confusion would be to interpret the Right to Farm Law to mean that the
court can order relief in such an instance, but only to the extent
necessary to prevent a substantial threat to public health and safety.
If a plaintiff suffers injury short of a threat to public health and
safety, such as an inability to sell a home or discomfort, stress, or
anxiety, the Right to Farm Law appears to give the court little or no
power to redress the injury.
Perhaps the most powerful element of the Right to Farm Law is that
the statute requires that a plaintiff pay the defendant's litigation
expenses if the court finds that the agricultural use or practice did
not constitute a nuisance.24 "Litigation
expenses" are defined broadly to include "the sum of the costs,
disbursements and expenses, including reasonable attorney, expert
witness, and engineering fees necessary to prepare for or participate
in" the nuisance action.25 If the higher
legal standard for proving a nuisance and the limited remedies available
are not enough to deter a lawsuit under the Right to Farm Law, arguably
a legal bill of tens of thousands of dollars is sufficient
Issues in Applying Wisconsin's Right to Farm Law Today
The changing livestock industry today has raised several issues in
applying Wisconsin's Right to Farm Law, including the role of local
governments in land use planning, the scope of protection the statute
provides defendant livestock operations, how Wisconsin's Right to Farm
Law has changed Wisconsin nuisance law, and the extent to which it may
infringe on the property rights of neighbors.
Raising the Bar for Proving a Private Nuisance. One
of the most significant and obvious aspects of the Right to Farm Law is
the extent to which it alters nuisance law in favor of agricultural
defendants. While the original 1982 Right to Farm Law was silent on the
scope of the nuisance cause of action, the 1995 law considerably raised
the bar. In Wisconsin, plaintiffs can bring a prima facie case of
private nuisance by submitting evidence of substantial and unreasonable
interference with the use and enjoyment of their property.26 However, the Right to Farm Law requires
plaintiffs to prove more: that the agricultural use poses a substantial
threat to public health and safety.27 This
is more akin to public, rather than private, nuisance,28 and thus the Right to Farm Law appears to
eliminate a cause of action for private nuisance against agricultural
The Role of Local Zoning. Despite the 1982 Right to
Farm Law's admonition to local governments to use their zoning authority
to prevent land use conflicts between livestock operations and their
rural neighbors, it appears that few local governments have heeded the
advice. For example, according to a 2001 DATCP survey, only 10 percent
of 558 responding towns in Wisconsin have developed authority to
regulate large animal feeding operations.29
Twelve towns have granted 17 conditional use permits for animal feeding
operations, and only one town has denied a conditional use permit.
According to the survey, 91 of nearly 500 towns responding to the
question do not operate under either county or town zoning and therefore
have no zoning at all.30
In addition, the 1995 amendments, by raising the bar for bringing
nuisance actions, appear to provide evidence that local land use
planning has been ineffective at resolving conflicts between the two
competing uses. One could suggest that if local zoning were effective at
preventing land use conflicts, then severely restricting and possibly
eliminating a cause of action for private nuisance in 1995 would have
been unnecessary. Further, the Right to Farm Law actually may act as a
deterrent to effective land use planning by predetermining the conflict
in favor of the agricultural use, obviating the need for local
Change in Scale or Intensity of Use. Significantly,
Wisconsin's Right to Farm Law disregards any changes in the scale or
intensity of the agricultural use in determining nuisance liability. A
court cannot find that an agricultural use or practice is a nuisance if
the practice is "conducted on, or on a public right-of-way adjacent to,
land that was in agricultural use without substantial interruption"
before the plaintiff began using his or her neighboring property. The
limitation applies regardless of whether a change in use contributed to
By illustration, the Right to Farm Law appears to treat a 40-acre
cornfield as equal to a 3,000-cow dairy confinement with a 20-million
gallon manure lagoon.32 Arguably, a 40-acre
cornfield that subsequently became a 3,000-cow dairy confinement
constitutes an agricultural use that was "conducted on ... land that was
in agricultural use without substantial interruption" before the
plaintiff began using his or her property. In short, if a nuisance
plaintiff came to a 40-acre cornfield, he or she also unwittingly came
to a 3,000-cow dairy confinement. As the law stands today, that
unwitting homeowner may have to suffer the nuisance and the loss of
property value without the possibility of court-ordered relief. Although
one could argue that the Right to Farm Law in this respect may help
deter urban sprawl, one wonders what traditionally rural residents are
to do when left in such a situation.
Availability of Damages as a Remedy Under Wisconsin's Right
to Farm Law. Significantly, the Right to Farm Law does not
expressly allow damages even if the court finds that a large animal
confinement was a nuisance by virtue of a "substantial threat to public
health or safety." Instead, the remedies under the Right to Farm Law
appear to be expressly limited to injunctive relief. The injunctive
relief is available only if state cost-sharing funds are available to
help pay for nuisance abatement33 and if
the relief does not "substantially and adversely affect the economic
viability of the agricultural use."34
Moreover, the court must give the livestock operation at least one year
to implement the injunctive relief, unless the operation is a
substantial threat to public health and safety.35
Although the Right to Farm Law's remedies appear to be primarily
equitable in nature, it is possible that compensatory damages could be
permitted when the court finds that a nuisance exists. If damages are
permitted at all, however, they would be limited to an amount that does
not "substantially and adversely affect the economic viability of the
agricultural use," unless the operation presents a substantial threat to
public health and safety.
The Right to Farm Law's disinclination toward allowing damage awards
to plaintiffs that prevail on nuisance claims represents a substantial
departure from supreme court precedent. Prior case law has upheld damage
amounts for inconvenience, annoyance, and discomfort, as long as the
interference with the use and enjoyment of the plaintiff's property is
unreasonable and substantial.36 Even if
compensatory damages are permitted under the Right to Farm Law, they are
Typical Right to Farm Defendants: Large Animal
Confinements. In a brief survey of litigation surrounding right
to farm statutes in other jurisdictions, more than half of the
litigation around right to farm statutes has involved the nuisance
conditions allegedly created by large livestock facilities, rather than
nonlivestock commercial farms.37 Some cases
arose when neighborhood groups sought to invalidate local livestock
ordinances containing mini-right to farm provisions, or when livestock
operations raised a right to farm law as an affirmative defense to a
Of the cases in which livestock operations sought the protection of a
state right to farm law, roughly two-thirds related to alleged nuisance
conditions by large confinements.39 There
were relatively few lawsuits against small confinements or other types
of livestock facilities.40
Approximately 85 percent of the nuisance cases related to large-scale
confinements were brought by neighboring landowners alleging odor, dust,
noise, and other nuisance conditions.41
When the defendants raised a right to farm as an affirmative defense,
plaintiffs prevailed three quarters of the time.42 This typically was because the state right to
farm laws at issue in those cases did not apply when an expansion at the
facility caused or contributed to the nuisance. Significantly,
Wisconsin's Right to Farm Law does not include a "changed conditions"
clause that would allow plaintiffs to proceed unimpeded with proving the
merits of their case.
Right to Farm Laws: Infringing on Neighbors' Property
Rights? Courts in Iowa and Washington have sent a message that
some right to farm laws have gone too far in protecting large livestock
operations from nuisance liability at the expense of their neighbors'
property rights. The most notable example of a court's rejection of a
right to farm law took place in Iowa in Bormann v. Kossuth County
Board.43 In Bormann, the
Kossuth County Board granted the defendants' application for an
"agricultural area" designation under the Iowa Right to Farm statute,
which allowed the raising of livestock and the creation of noise, odor,
dust, or fumes, among other activities.44
Livestock operations within the "agricultural area" were protected from
nuisance suits by their neighbors unless the operation acted
The Iowa Supreme Court held that the agricultural area designation
resulted in an unconstitutional taking, reasoning that the nuisance
immunity provision created an easement in the property affected by the
nuisance.46 The court cited an Iowa case
holding that the right to maintain a nuisance constituted an
easement.47 Moreover, the court relied on
the Restatement of Property, which states that an easement can entitle
its "owner to do acts on his own land which, were it not for the
easement, would constitute a nuisance."48
According to the Iowa Supreme Court, the nuisance immunity provision in
the Iowa statute created an easement because it would allow the
applicants to generate offensive odors on their property that otherwise
would provide a nuisance cause of action for neighboring
The Washington Supreme Court in Buchanan v. Simplot
Feeders50 articulated a similar legal
theory shortly before the Iowa Supreme Court decided Bormann. A
small farm filed a nuisance suit in federal court against Simplot
Feeders regarding the odor and flies emanating from the defendant's
40,000 cows on neighboring property. In an opinion addressing a
certified question from the Federal Court for the Eastern District of
Washington, the Washington Supreme Court narrowly interpreted the
state's Right to Farm Act to limit nuisance protection to farms facing
encroaching urbanization rather than to allow nuisance protection in all
situations.51 The court further stated that
the Washington Right to Farm law may grant a quasi-easement in favor of
an agricultural operation that causes a nuisance by protecting that
operation from nuisance liability.52 The
court reasoned that this narrow interpretation was justified by the fact
that the nuisance protection afforded under the Act was similar to a
quasi-easement or prescriptive easement allowing the farm to continue
its nuisance-causing activities even in the face of encroaching urban
Both of the above cases indicate that right to farm laws can go too
far in protecting livestock operations from nuisance liability,
particularly when the protection is so strong that the law effectively
grants rights in neighboring property to the livestock operation.
Has Wisconsin's Right to Farm Law similarly gone too far in
encroaching on and "taking" rural neighbors' property rights? Before the
Right to Farm Law was enacted, Wisconsin law recognized that the right
to maintain a private nuisance could amount to a taking of private
property if the nuisance rose to the level of substantial interference
and went uncompensated.54 If the plaintiff
is substantially damaged, either by physical damage to property or by a
sustained, continued annoyance, the plaintiff could recover for his or
her loss.55 Likewise, in the absence of the
Right to Farm Law, a rural plaintiff claiming that a livestock operation
has caused a nuisance also would be able to recover damages or obtain
equitable relief for the odors or decline in property value the
plaintiff may experience. However, Wisconsin's Right to Farm Law may
conflict with this precedent by tipping the scales too much in favor of
the large animal confinements.
As Wisconsin's dairy industry changes, Wisconsin's Right to Farm Law
poses new challenges for practitioners on both sides of nuisance
litigation related to large animal confinements. For those on the
plaintiffs' side, the Right to Farm Law substantially raises the bar for
bringing a private nuisance action and may even eliminate the action;
expands the "coming to the nuisance" defense; and may preclude
meaningful compensatory damages if the plaintiff can prove his or her
case. For practitioners defending those confinements, the Right to Farm
Law provides a disincentive to local land use planning and the exercise
of basic principles of neighborliness by large confinements. Whatever
the outcome of litigation under Wisconsin's Right to Farm Law or the
constitutional viability of the statute itself, it is clear that the law
is likely to see judicial interpretation in the near future.
Andrew C. Hanson,
Northwestern School of Law of Lewis & Clark College 2001, practices
as an Equal Justice Works Fellow with Midwest Environmental Advocates
Inc., a nonprofit environmental law center. He holds a certificate in
Environmental and Natural Resources Law.
1One such conflict
has developed into litigation against a large dairy confinement in
Shawano County. See Nelson v. Matsche Farms Inc., Case No.
02-CV-120, filed in Shawano County Circuit Court on April 24, 2002. The
conflict exemplifies several smaller conflicts in Wisconsin that have
not reached the judicial system, arguably due in part to barriers
presented by Wisconsin's Right to Farm law.
Reinert, Note: The Right to Farm: Hog-Tied and Nuisance-Bound,
73 N.Y.U. L. Rev. 1694, 1695 (1998).
3U.S. Dept. of
Agriculture, National Agricultural Statistics Service, 1997 Census of
Agriculture - State Data, Wisconsin, Table 24. In 1992, Wisconsin was
home to 25,090 farms with 20 to 90 dairy cows. In 1997, that number
dropped to 17,995.
1992 Wisconsin had only two livestock operations with 1,000 or more milk
cows. In 1997 that number rose to 15 operations. Today, Wisconsin has
more than 79 dairy operations with more than 700 cows or 1,000 animal
units, with six more DNR permit applications pending. See Wis.
Dept. of Natural Resources, Statistics on Wisconsin Concentrated Animal
Feeding Operations, www.dnr.state.wi.us/org/water/wm/nps/stats.htm#types
(last revised May 2001).
Quality Egg Farm Inc., 104 Wis. 2d 506, 508, 311 N.W.2d 650
9Wis. Stat. §
823.08(1) (1982), repealed & recreated by 1995 Act 149.
§ 823.08(3) (1982), repealed & recreated by 1995 Act
Viola, 67 Wis. 2d 345, 349, 227 N.W.2d 55 (1975) (citing Dolata
v. Berthelet Fuel & Supply Co., 254 Wis. 194, 36 N.W.2d 97
(1949), and other cases).
Quality Egg, 104 Wis. 2d at 518.
§ 823.08(4)(a). See also Zink v. Kwaja, 2000 WI
App 58, 233 Wis. 2d 691, 608 N.W.2d 394 (allowing fee recovery in
agricultural nuisance action, regardless whether plaintiff is
Quality Egg, 104 Wis. 2d at 518.
Egg, 104 Wis. 2d at 516-17.
Agriculture, Trade, & Consumer Protection Model Ordinance
Guidelines, Second Draft, County and Town Surveys of Livestock
Quality Egg, 104 Wis. 2d at 516 (quoting Milwaukee v.
Milbrew, 240 Wis. 527, 3 N.W.2d 386 (1942)). See also
Krueger v. Mitchell, 112 Wis. 2d 88, 105, 332 N.W.2d 733
(1983); Sramek v. Korth, No. 96-1667, *4-5 (Wis. Ct. App. Dec.
definition of "agricultural use" in Wis. Stat. section 91.01,
incorporated by reference in the Right to Farm Law, Wis. Stat. section
823.02, includes both "crop production" and "livestock raising." Wis.
Stat. § 91.01.
36Krueger, 112 Wis. 2d at 108. See also
Jost v. Dairyland Power Coop., 45 Wis. 2d 164, 172, 172 N.W.2d
37Of the 41
cases surveyed, approximately 56 percent related in some fashion to
livestock operations rather than other agricultural uses, such as crop
production. Cases addressing nuisance conditions allegedly caused by
large confinements included: Petsey v. Cushman, 788 A.2d 496
(Conn. 2002); Ad Hoc Committee for Clean Water v. Sonoma
County, 2002 WL 1454105 (Cal. Ct. App.); Belvidere Township v.
Heinze, 615 N.W.2d 250 (Mich. Ct. App. 2000); Forner v.
Allendale Township, 2000 Mich. App. LEXIS 2202 (2000); Horne v.
Haladay, 728 A.2d 954 (Pa. 1999); Texas Natural Res.
Conservation Comm'n v. Accord Agric., 1999 WL 699825 (Tex. App.
1999); Pure Air & Water Inc. v. Davidsen, 668 N.Y.S.2d 248
(N.Y. App. Div. 1998); Bormann v. Kossuth County Bd., 584
N.W.2d 309 (Iowa 1998); Buchanan v. Simplot Feeders, 1998 U.S.
Dist. LEXIS 21780 (Wash. 1998) citing state court
decision on certified question 952 P.2d 610 (Wash. 1998);
Weinhold v. Wolff, 555 N.W.2d 454 (Iowa 1996); Payne v.
Skaar, 900 P.2d 1352 (Idaho 1995); Villari v. Deptford
Township, 649 A.2d 98 (N.J. 1994); Pasco County v. Tampa
Farm, 573 So. 2d 909 (Fla. Dist. Ct. App. 1991); Laux v.
Chopin, 550 N.E.2d 100 (Ind. Ct. App. 1990); and Flansburgh v.
Coffey, 370 N.W.2d 127 (Neb. 1985).
Cases in which the size of the confinement was not clear include:
Travis v. Preston, 643 N.W.2d 235 (Mich. Ct. App. 2002);
Durham v. Britt, 451 S.E.2d 1 (N.C. Ct. App. 1994); Wendt
v. Kerkhof, 594 N.E.2d 795 (Ind. Ct. App. 1992); and Cline v.
Franklin Pork Inc., 361 N.W.2d 566 (Neb. 1985).
e.g., Ad Hoc Committee for Clean Water v. Sonoma County,
2002 WL 1454105 (Cal. Ct. App.); Buchanan v. Simplot Feeders,
1998 U.S. Dist. LEXIS 21780 (Wash. 1998) citing state
court decision on certified question 952 P.2d 610 (Wash.
39Of the cases
in which livestock operations sought the protection of a state right to
farm law, approximately 58 to 75 percent (14 to 18 of 24) related to
alleged nuisance conditions by large scale confinements. The variation
arises from the fact that some cases did not explicitly state the number
of animals in the confinements but indicated that the facilities were
larger rather than smaller confinements.
40Only 17 to 33
percent (4 to 8 of 24) of lawsuits were against small confinements or
other types of livestock facilities. These included: Crea v.
Crea, 16 P.3d 922 (Idaho 2000); Finlay v. Finlay, 856 P.2d
183 (Kan. Ct. App. 1993); Steffens v. Keeler, 503 N.W.2d 675
(Mich. Ct. App. 1992); and Weida v. Ferry, 493 A.2d 824 (R.I.
41The 85 percent
represents 12 of 14 cases. These included: Laux, 550 N.E.2d
100; Buchanan, 952 P.2d 610; Payne, 900 P.2d 1352;
Bormann, 584 N.W.2d 309; Weinhold, 555 N.W.2d 454;
Forner, 2000 Mich. App. LEXIS 2202; Pure Air & Water
Inc., 668 N.Y.S.2d 248; Flansburgh, 370 N.W.2d 127;
Belvidere Township, 615 N.W.2d 250; Petsey, 788 A.2d
496; Pasco County, 573 So. 2d 909; Horne, 728 A.2d
954; and Buchanan, 1998 U.S. Dist. LEXIS 21780.
Buchanan, 1998 U.S. Dist. LEXIS 21780; Payne, 900 P.2d
1352; Bormann, 584 N.W.2d 309; Weinhold, 555 N.W.2d
454; Forner, 2000 Mich. App. LEXIS 2202; Flansburgh,
370 N.W.2d 127; Belvidere Township, 615 N.W.2d 250;
Petsey, 788 A.2d 496; Pasco County, 573 So. 2d
43584 N.W.2d 309
45Bormann, 584 N.W.2d at 309.
Churchill v. Burlington Water Co., 62 N.W. 646, 647 (Iowa
48Bormann, 584 N.W.2d at 316
(quoting Restatement of Property § 451 comment a, at 2911-12
50952 P.2d 610
45 Wis. 2d at 177. Specifically, the court stated: "To contend that a
public utility, in the pursuit of its praiseworthy and legitimate
enterprise, can, in effect, deprive others of the full use of their
property without compensation, poses a theory unknown to the law of
Wisconsin, and in our opinion would constitute the taking of property
without due process of law." Id.