Jost v. Dairyland Power Cooperative case brief

Jost v. Dairyland Power Cooperative case brief summary
172 N.W.2d 647 (1969)

CASE SYNOPSIS

Defendant appealed from the decision of the Circuit Court for Buffalo County (Wisconsin), which entered judgment in favor of plaintiffs in their action for nuisance arising from defendant's emission of sulphur flames into the atmosphere as part of its power production process.

CASE FACTS
Plaintiffs brought suit against defendant, alleging nuisance to plaintiffs' crops as a result of sulphur emitted through defendant's power production.

ARGUMENT
Defendant argued that failure of plaintiffs' counsel to rely on a theory of nuisance rather than negligence until almost the close of plaintiffs' case warranted reversal.

DISCUSSION

• The court rejected this argument, because the operative facts of the case constituted the cause of action, and plaintiffs' case clearly relied on facts demonstrating nuisance. 
• Plaintiffs' "substantial injury" entitled them to compensation. 
• Defendant's degree of care could not defeat plaintiffs' claim of nuisance, because nuisance rested on the degree of danger existing, irrespective of care. 
• The court refused to weigh the social utility afforded by defendant's actions, because the doctrine of comparative injury was not used in Wisconsin in nuisance cases. 
• The existence of a continuing nuisance, as found by the jury, warranted a finding that all plaintiffs had their land value diminished.

CONCLUSION
Judgment finding that defendant's power production constituted a nuisance was affirmed, because social utility provided by defendant's power production was irrelevant in Wisconsin, where the doctrine of comparative injury was not applicable in nuisance cases.

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