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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
November 27, 1996
A party may file with the Supreme Court                                          This opinion is subject to further editing.
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RULE 809.62, STATS.                                                              Official Reports.
No.   94-0094
STATE OF WISCONSIN                                                               IN COURT OF APPEALS
                                                                                 DISTRICT IV
MARTIN GRIEPENTROG and
DOROTHY GRIEPENTROG,
                                                                                 Plaintiffs-Respondents-Cross Appellants,
v.
ADAMS-COLUMBIA ELECTRIC COOPERATIVE,
FEDERATED RURAL ELECTRIC INSURANCE
CORPORATION,
                                                                                 Defendants-Appellants-Cross Respondents,
WILSON MUTUAL INSURANCE COMPANY,
Defendant.
APPEAL from a judgment and an order of the circuit court for
Marquette  County:    DANIEL  W.  KLOSSNER,  Judge.    Affirmed  in  part  and
reversed in part and cause remanded.
Before Eich, C.J., Dykman, P.J., and Vergeront, J.




No.                                                                                        94-0094
EICH, C.J.   The issues in this stray voltage1 case are: (1) whether
the trial court erroneously exercised its discretion in (a) allowing certain opinion
testimony on stray voltage matters and  (b) permitting testimony and a jury
question on the Griepentrogs' milk-production losses; (2) whether the evidence
was  sufficient  to  sustain  the  jury's  verdict  that  stray  voltage  from  the
Cooperative's lines caused damage to the Griepentrogs' cattle; (3) whether the
trial court erred in denying the Griepentrogs' motion to add a statutory treble-
damage claim prior to trial; and (4) whether, under Vogel v. Grant-LaFayette
Electric Coop., 201 Wis.2d 416, 548 N.W.2d 829 (1996),2 the Griepentrogs are
entitled  to  present  evidence  on  their  claim  that  the  Cooperative's  conduct
constituted a private nuisance.
We see no error in the trial court's evidentiary rulings and its
rejection of the Griepentrogs' motion to add an additional claim, and we are
satisfied that the evidence was sufficient on the question of cause.  We affirm on
those issues.   We also conclude, however, that under Vogel, the Griepentrogs
were entitled to offer evidence in support of their nuisance claim.   We therefore
affirm in part and reverse in part, remanding for a new trial limited to the
Griepentrogs' private nuisance cause of action.
The  facts  are  not  in  serious  dispute.     Martin  and  Dorothy
Griepentrog are dairy farmers, running a herd of approximately fifty cows.
Prior to January and February 1990, the herd exhibited no unusual health or
behavior problems—although Martin Griepentrog testified that he had begun to
notice a drop in milk production during the second half of 1989.   Around the
beginning of January 1990, the Griepentrogs' son, Carl, who helped work the
herd, noticed several of the cows were breaking free of their stanchions and
running out of the barn.   The cows appeared "normal" the next day—with the
exception of one, who was "off feed."   The veterinarian examining this cow—
1  We discussed the concept of stray voltage at some length in Vogel v. Grant-Lafayette
Electric Coop., 195 Wis.2d 198, 207 n.3, 536 N.W.2d 140, 144 (Ct. App. 1995), rev'd, 201
Wis.2d 416, 548 Wis.2d 829 (1996).
2  We held this case in abeyance pending the supreme court's decision in Vogel, as some
of the issues overlapped.
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No.                                                                                    94-0094
which  eventually  died  of  a  displaced  abomasum3—noted  nothing  unusual
about the rest of the herd at the time.
In succeeding weeks, several other cows went "off feed" and died
within days—twelve of them dying between January 17 and 21, 1990.   As this
was happening, the Griepentrogs' veterinarian sought advice from colleagues at
the University of Wisconsin and the Wisconsin Department of Agriculture.
While some of the consultants felt that electricity might be a possible factor in
the cows' deaths, most concluded, at the time, that some form of toxic exposure
was the likely cause.
By the end of January, the problem appeared to have run its
course.   In early February, Brad Kolpin, a Wisconsin dairy farmer and stray
voltage "consultant," visited the Griepentrog farm, along with an investigatory
team from a stray voltage advisory group.
Concluding from these and other investigations that stray voltage
from  the  lines  of  the  Adams-Columbia  Electric  Cooperative  caused  the
problems, the Griepentrogs brought this action against the Cooperative in June
1991,  alleging  they  were  damaged  by  its  negligence  in  maintaining  and
operating its distribution system so as to permit stray voltage to infiltrate their
farm, causing the deaths of their cows and economic loss.   They also alleged
that  the  Cooperative's  failure  to  construct  and  maintain  its  system  in  a
reasonably  adequate  manner  constituted  a  nuisance,  for  which  they  were
entitled  to  additional  damages  for  "annoyance  and  inconvenience."    The
Cooperative's answer denied any negligence and claimed that any damages the
Griepentrogs may  have  suffered  resulted from their own negligence.    The
Cooperative also asserted a defense based on the statute of limitations.
Shortly  before  the  scheduled  trial  in  the  fall  of                              1993,  the
Griepentrogs  moved  to  amend  their  complaint  to  add  a  claim  for  treble
damages under § 182.017(5), STATS., which imposes treble-damage liability on
3  An abomasum is "the fourth or true digestive stomach" of a ruminant or mammal
with a three- or four-chambered stomach.  WEBSTER'S NEW COLLEGIATE DICTIONARY 3 (8th
ed. 1977).
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No.                                                                                     94-0094
communication services and electric utilities in certain instances.  The trial court
denied the motion.
By its evidentiary rulings at trial, the court effectively dismissed
the Griepentrogs' nuisance claim, based on its ruling that relief for nuisance is
unavailable to a plaintiff in stray voltage cases as a matter of law.  The court also
rejected the Cooperative's argument that the statute of limitations barred the
Griepentrogs' action.   The case went to the jury solely on the Griepentrogs'
negligence claim and the jury found the Cooperative 100% causally negligent,
assessing damages at $136,822.
In postverdict proceedings, the trial court denied the Griepentrogs'
motion for a new trial on their nuisance and treble-damage claims.    It also
denied the Cooperative's motions for judgment notwithstanding the verdict, for
a new trial and for a change in the verdict answers, and entered judgment on
the jury's verdict.
The Cooperative, appealing from the judgment and the court's
postverdict order, challenges the admission of certain opinion evidence relating
to stray voltage, the sufficiency of the evidence as to cause, and the inclusion of
milk- production losses in the Griepentrogs' damages.   The Griepentrogs cross-
appeal from the court's rulings on their nuisance and treble-damage claims.
Other facts will be discussed in the body of the opinion.
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No.                                                                                        94-0094
I. Evidentiary Rulings
The admission or exclusion of evidence is committed to the sound
discretion of the trial court, and the question on appeal is not whether this court,
ruling initially on the evidence's admissibility, would have allowed it in but
whether the trial court appropriately exercised its discretion.   State v. Alsteen,
108 Wis.2d 723, 727, 324 N.W.2d 426, 428 (1982).   We will not reverse a trial
court's discretionary ruling if the record shows that discretion was exercised
and "we can perceive a reasonable basis for the court's decision."    Prahl v.
Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987).   Thus,
"where the record shows that the court looked to and considered the facts of the
case and reasoned its way to a conclusion that is (a) one a reasonable judge
could reach and (b) consistent with applicable law, we will affirm the decision
even if it is not one with which we ourselves would agree."4   Burkes v. Hales,
165 Wis.2d  585,  590,  478 N.W.2d  37,  39  (Ct. App.  1991)  (citations omitted).
Indeed, we generally look for reasons to sustain discretionary decisions."   Id. at
591, 478 N.W.2d at 39.
A. Opinion Evidence
The Cooperative challenges the admission of the testimony of four
witnesses: two of them best described as "lay experts," and two "professionals."
Section 907.02, STATS., provides that in cases where "scientific, technical, or other
specialized knowledge" will assist the jury in understanding the evidence, "a
witness qualified as an expert by knowledge, skill, experience, training, or
education,  may  testify  thereto  in  the  form  of  an  opinion  or  otherwise."5
Whether a particular witness meets those qualifications is a question properly
left to the trial court's discretion in light of the unique facts and circumstances of
the case at hand.   See State v. Donner, 192 Wis.2d 305, 317, 531 N.W.2d 369, 374
(Ct. App. 1995); State v. Richardson, 189 Wis.2d 418, 424, 525 N.W.2d 378, 381
(Ct. App. 1994).
4  A court is said to exceed the limits of its discretion if an otherwise discretionary
determination rests upon an error of law.   State v. Brunton, 203 Wis.2d 195, 202, 552
N.W.2d 452, 456 (Ct. App. 1996).
5  Cases on the subject do not explain exactly how to apply the statute when a layperson
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No.                                                                                            94-0094
The Cooperative argues that two "lay experts," Brad Kolpin and
Thomas Beane, both of whom are dairy farmers and stray voltage "consultants,"
were  wrongly  permitted  to  give  opinion  testimony  concerning  a  probable
causal relationship between electricity and the death of the Griepentrogs' cows.
A lay expert has been described as "one whose expertise or special competence
derives from experience working in [a particular] field of endeavor rather than
from studies or diplomas"; we recognize the opinions of such a witness as "valid
even though [they] ... are not based upon technical or academic knowledge but
upon expertise gained from [the witness's] experience."   Black v. General Elec.
Co., 89 Wis.2d 195, 212, 278 N.W.2d 224, 231 (Ct. App. 1979).   Indeed, we noted
in Black that, in some cases, "experience ... may be the most important element
of expertise."  Id.
With  respect  to  Kolpin,  the  Cooperative  maintains  that  by
allowing  him  to  testify  that,  in  his  opinion,  stray  voltage  caused  the
Griepentrogs' cows to die, the court was improperly permitting him to give his
"expert [opinion] on veterinary medicine and electrical engineering"—subjects
about which, according to the Cooperative, he was not qualified to testify.   We
disagree.
Kolpin testified as to his lengthy experience as a dairy farmer, his
work with electrical engineers and veterinarians on stray voltage problems and,
because he experienced similar problems on his own farm in the early 1980s, the
relationship  between  electrical  currents  and  cattle.    In  that  time,  he  has
developed a consulting business in the field, investigating and consulting on
stray voltage problems at more than 200 farms throughout the Midwest, and the
Wisconsin  Department  of  Agriculture  and  the  Wisconsin  Public  Service
Commission have appointed him to various committees dealing with stray
voltage matters.   We believe this is sufficient foundation for him to testify as a
lay  expert  under  the  authorities  just  discussed.     In  our  judgment,  the
Cooperative's objections—that Kolpin's testimony on his qualifications was, in
(..continued)
testifies on technical matters.   The Griepentrogs, for example, cite Smith v. Atco Co., 6
Wis.2d 371, 386-87, 94 N.W.2d 697, 705-06 (1959), where the supreme court affirmed a
verdict in an agricultural product liability case based at least in part on the testimony of
experienced mink ranchers concerning the cause of death of their mink.   The Cooperative
cites Peacock v. Wisconsin Zinc Co., 177 Wis. 510, 518, 188 N.W. 641, 644 (1922), where the
court considered it error for a farmer who was familiar only with the processes involved
in ordinary agriculture to render an opinion on the effect of noxious fumes on vegetation.
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No.                                                                                             94-0094
its words, no more than "name dropping with no substance"—go to the weight
to be accorded that testimony, not Kolpin's competency to present it.   Where, as
here, "[the] testimony was sufficient to establish [the witness's] expertise as a lay
expert  and  to  lay  a  foundation  for  his  opinion...                                       [a]ny  inadequacy  in  his
opinions went to the weight, not to the admissibility, of the testimony and was
for the jury to accept or reject."   State v. Sarabia, 118 Wis.2d 655, 667-68, 348
N.W.2d 527, 534 (1984).  We see no error.
The Cooperative makes a similar argument with respect to the
testimony of Thomas Beane, who, according to the Cooperative, was permitted
to offer similar testimony on the possible relationship between electricity and
the cows' deaths despite a lack of expertise in the area.
Like Kolpin, Beane experienced stray voltage problems on his
dairy farm in the early 1980s.   Following that incident he, too, began to study
and work in the area and was named by state officials to a multi-disciplinary
team investigating stray voltage complaints around Wisconsin.   He worked on
investigations at more than sixty farms with a team of professional volunteers,
receiving instruction in electricity and the use of electrical testing equipment.
Beane has also consulted with more than 250 dairy farmers, as well as banks
and real estate firms, on stray voltage problems.   On this record, the trial court
could, in the exercise of its discretion, determine that Beane's qualifications met
the requirements for admission of opinion testimony.6
The   Cooperative   also   challenges   the   testimony   of   two
"professionals," Marquette University engineering professor Alfred Szews and
veterinarian Andrew Johnson.   Szews testified generally about the nature of
stray voltage and specifically about the problems on the Griepentrogs' farm.
The Cooperative finds particularly objectionable his testimony that (1) farmers
ought to be "concerned" when "cow contact voltage" is above three-tenths of a
6  As often happens in the course of a trial, the trial court's rulings on some objections to
the testimony of these witnesses were as briefly stated as the objections themselves.   We
have frequently recognized, however, that, even though our review of a trial court's
discretionary rulings begins with an examination of the court's on-the-record reasoning
process, when its reasoning is inadequately explained, we may "independently review the
record to determine whether it provides a reasonable basis for the trial court's ... ruling."
State v. Clark, 179 Wis.2d 484, 490, 507 N.W.2d 172, 174 (Ct. App. 1993).
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No.                                                                                    94-0094
volt;  (2) current levels in cows' tissues "cause discomfort"; and (3) "the only
thing [he could] think of" that would cause the Griepentrogs' cows to break
from their stanchions and run from the barn was an electrical shock.    The
Cooperative says that Szews simply was not qualified to testify "about cow
behavior, animal discomfort or preferences."
Szews,  who  holds  undergraduate  and  graduate  degrees  in
electrical engineering, has been involved in investigating stray voltage problems
on dairy farms since  1980.   He has participated in more than seventy such
investigations, working closely with dairy farmers and veterinarians and using
information  gathered  from  them  in  forming  his  own  conclusions.     The
challenged testimony is very brief, occupying only a page or two in a 1300-page
transcript;  given  Szews's  training  and  experience,  the  court  could,  in  an
appropriate exercise of its discretion, accept the challenged testimony—and
similar  statements—from  Szews,  leaving  the  weight  to  be  accorded  such
testimony to the jury.
Finally, in a similar, if converse, vein, the Cooperative maintains
that the trial court improperly permitted Dr. Andrew Johnson to testify about
"electrical matters."   Johnson, a dairy-cattle specialist, has concentrated for the
past several years on consulting with dairy farmers on herd health and milk
production.   He "analyzes" approximately  300 herds each year and, in each
instance, evaluates possible stray voltage problems.   In addition, he has been
asked specifically to investigate stray voltage complaints at several hundred
dairy farms, and both dairy farmers and electric utilities have retained him to
advise them on the subject.
The  Cooperative  specifically  objected  to  a  question  asking
Johnson's opinion as to the probable cause of the deaths of the Griepentrog
cows.    The trial court permitted the answer, conditioned upon supporting
testimony from an electrical engineer on electrical conditions.   Given Johnson's
foundational testimony and the trial court's conditional ruling, we cannot say
that the court reached a conclusion no reasonable judge could make.   It was,
therefore, an appropriate exercise of discretion.  See Burkes v. Hales, 165 Wis.2d
585, 590, 478 N.W.2d 37, 39 (Ct. App. 1991) (when trial court exercises discretion
and its decision is one a reasonable judge could reach and is consistent with
applicable law, we will affirm the decision even if it is not one with which we
ourselves would agree).
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No.                                                                                           94-0094
B. Evidence of Loss of Milk Production
The Cooperative moved, in limine, to preclude the Griepentrogs
from presenting  evidence  of  damages resulting from  lost  milk production,
arguing that the only proper measure of damages in this case is the diminution
in value of the herd.   The trial court denied the motion and the Cooperative,
citing Rosche v. Wayne Feed, Continental Grain Co., 152 Wis.2d 78, 447 N.W.2d
94 (Ct. App. 1989), argues it was error to do so.7   In considering a claim that
agricultural products manufactured by the defendant left some of the plaintiff's
pigs "ill and sterile," we said in Rosche that "Wisconsin follows the general rule
in holding that the basic measure of damages for an injured animal is the
difference between its market value before and after the injury was incurred."
Id. at 83, 447 N.W.2d at 96.   Where livestock is destroyed, as opposed to simply
being  injured,  damages  are  measured  by  the  animal's  market  value,
"determined by replacement cost, with an appropriate reduction for any salvage
value."  Id. at 82-83, 447 N.W.2d at 96.
An  economist  testifying  for  the  Griepentrogs  offered  three
categories of damages: (1) the value of the twenty-one cows that died; (2) the
"net profit" from the milk production of these cows had they remained in the
herd; and (3) loss of "net profit" for the cows that remained in the herd but
produced at lower levels.   The Cooperative argues that items (2) and (3) are
improper.   It says the situation is similar to that in Rosche, where the plaintiff
sought to recover damages for "lost profits traceable to the [sterile pigs'] unborn
litters," and we held that under either the "injured-animal" or "dead-animal"
damage measures, allowing the plaintiff additional recovery for his claimed lost
profits from unborn litters would be "duplicative."   Id. at 81, 83-84, 447 N.W.2d
at 95, 96-97.   "Damages for loss of future births are denied as opening the door
to a duplication of damages, because the afflicted animal's ability to reproduce
is considered when the fact finder assesses its market value."   Id. at 83, 447
7  As we noted above, supra note 4, a court erroneously exercises its discretion when its
decision is based on an erroneous view of the law.   That is the claim here: that the trial
court  permitted  recovery  on  a  legally  erroneous  measure  of  damages.    We  review
questions of law de novo, owing no deference to the trial court's decision.   See Rock Lake
Estates Unit Owners Ass'n v. Lake Mills, 195 Wis.2d 348, 355, 536 N.W.2d 415, 418 (Ct.
App. 1995) (interpretation and application of statutory and case law to the facts of a case
are questions of law that we review independently).
-9-




No.                                                                                              94-0094
N.W.2d at 96 (citing Nelson v. Boulay Bros. Co., 27 Wis.2d 637, 644, 135 N.W.2d
254, 257 (1965)).8
We  agree  with  the  Griepentrogs  that  Rosche  and  Nelson  are
inapposite, for in both cases the court was dealing with damages for livestock
bred for slaughter and consumption, of either their flesh or their pelts, rather
than a dairy herd that is kept and maintained for milk production throughout
the cows' lifetimes.   Without some indication (and none has been provided) of
an "overlap"—in other words, the witness's valuation of the dead cows included
a loss-of-production component—we consider neither Rosche nor Nelson to
compel the conclusion the Cooperative advances.   We are not persuaded that
the trial court erred in allowing the testimony.
II. Sufficiency of the Evidence as to Cause
Section 805.14(1), STATS., provides that no motion challenging the
sufficiency of the evidence to support a verdict, or an answer in a verdict, will
be granted "unless the court is satisfied that, considering all credible evidence
and reasonable inferences therefrom in the light most favorable to the party
against whom the motion is made, there is no credible evidence to sustain a
finding in favor of such party."   Thus, "if there is any credible evidence which,
under any reasonable view, fairly admits of an inference that supports a jury's
finding," that finding may not be overturned.   Ferraro v. Koelsch, 119 Wis.2d
407, 410, 350 N.W.2d 735, 737 (Ct. App. 1984), aff'd, 124 Wis.2d 154, 368 N.W.2d
666 (1985).   Our task is to search for credible evidence to sustain a verdict, not
for evidence that might sustain a verdict the jury could have reached, but did
not.   Finley v. Culligan, 201 Wis.2d 611, 630-31, 548 N.W.2d 854, 862 (Ct. App.
1996).
8  In Nelson, the supreme court considered a mink farmer's claim that the defendant's
feed caused several of his breeding minks to die, and that he was entitled to not only the
market value of the breeding stock but also an award for "loss of future production ...
based on [his] contention that the death of some of his breeding herd in turn caused a
diminution in the next year's total crop."   Nelson v. Boulay Bros. Co., 27 Wis.2d 637, 642,
135 N.W.2d 254, 256 (1965).   In denying this request, the court stated that it was not only
speculative but "may be a duplication of damages, since the market value of an animal
would ordinarily include an amount attributable to its ability to reproduce."  Id. at 643, 135
N.W.2d at 257.
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No.                                                                                           94-0094
The Cooperative's challenge to the jury's affirmative answer to the
verdict  question  inquiring  whether  its  negligence  caused  damage  to  the
Griepentrogs centers on the opinion testimony discussed above.   Pointing to
cases indicating that verdicts "based on expert opinion which in turn was based
on unestablished assumptions" will not be sustained,9 the Cooperative asserts
that it was undisputed at trial that measurements of "cow contact voltages"
taken at the Griepentrogs' farm were not high enough to cause the cows to
avoid their water sources.10    And it says that the "theory" devised by the
Griepentrogs' witnesses to overcome this hurdle—that   the Cooperative's lines
emitted either one shock or a series of more severe shocks—is not supported by
the evidence.
Professor  Szews  testified  that,  in  his  opinion,  a  chipped  and
cracked insulator on the Cooperative's line to the Griepentrog farm caused a
"flashover" that briefly raised the normal neutral-to-earth voltage, and such a
flashover probably occurred more than once.   According to Szews, such an
event would significantly increase the current passing through the cows.
The Cooperative says Szews's opinion is speculation, primarily
because the insulator itself was not in evidence; rather, Szews relied on another
witness's description of the insulator.   Its argument is, in essence, that because
the markings described as having been on the insulator are subject to differing
interpretations, Szews's testimony based on those markings should not have
been allowed.   In our opinion, the argument goes to the weight of Szews's
testimony, not its admissibility, and the weight of the evidence is, of course, for
the jury, not this court, to evaluate.  Hauer v. Union State Bank, 192 Wis.2d 576,
589, 532 N.W.2d 456, 461 (Ct. App. 1995).
9  See Bituminous Casualty Corp. v. United Military Supply, Inc., 69 Wis.2d 426, 433,
230 N.W.2d 764, 768 (1975); Peil v. Kohnke, 50 Wis.2d 168, 175, 184 N.W.2d 433, 437 (1971);
Hicks v. New York Fire Ins. Co., 266 Wis. 186, 189, 63 N.W.2d 59, 61 (1954).
10  The testimony as to the cows' deaths suggested that stray voltage can cause cows to
avoid water, leading to death by dehydration.
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No.                                                                                    94-0094
Szews  was  thoroughly  cross-examined  by  counsel  for  the
Cooperative, and the jury was free to give his testimony whatever weight it
deemed  appropriate.    The  Cooperative  has  not  persuaded  us  that  it  was
inadmissible as a matter of law.
III. The Griepentrogs' "Treble-Damage" Motion
The Griepentrogs brought this action on January 2, 1991, and on
June                                                                                   12,                                          1991,  amended  their  complaint  to  bring  this  action  against  the
Cooperative.  On August 9, 1993, a little over one month before trial, they filed a
motion to amend their complaint a second time to state a claim for treble
damages under § 182.017(5), STATS.   The subsection, entitled "Tree Trimming,"
appears  in  a  statute  dealing  with  the  construction  and  maintenance  of
transmission lines, and provides as follows:
Any [electric utility] which shall in any manner destroy, trim or
injure any shade or ornamental trees along [its] lines
... or, in the course of tree trimming or removal, cause
any damage to buildings, fences, crops, livestock or
other  property                                                                        ...  shall  be  liable  to  the  person
aggrieved in 3 times the actual damage sustained ...
The trial court ruled the motion untimely and, further, the statue
inapplicable  to  the  Griepentrogs'  case.    We  need  not  consider  the  court's
determination that the motion was untimely filed, for we held in Vogel that
§ 182.017(5), STATS., does not apply to stray voltage claims.   Considering the
statute ambiguous, we looked at the statute in light of its context in the utility-
regulatory scheme, and concluded that
it was intended to address physical damage to trees, buildings,
fences   or   livestock   attributable   to   activities
undertaken  in  the  construction,  maintenance  and
abandonment of power lines and related structures
within  the                                                                            [utility]'s  right-of-way,  and  does  not
authorize treble damages in [stray voltage] cases ...
which deal with the provision of electric service to
the customer.
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No.                                                                                  94-0094
Vogel v. Grant-Lafayette Elec. Coop., 195 Wis.2d 198, 221-22, 536 N.W.2d 140,
149  (Ct. App.  1995), rev'd on other grounds,  201 Wis.2d  416,  548 N.W.2d  829
(1996).
IV. The Griepentrogs' "Private Nuisance" Claim
The  Griepentrogs'  complaint  alleged  that  the  Cooperative's
conduct constituted a nuisance, and they contend that the trial court erred when
it prohibited them from presenting evidence on the issue.   As indicated above,
we held this case in abeyance pending the supreme court's decision on a similar
claim in Vogel.   When the Vogel decision was issued, holding that the doctrine
of private nuisance is applicable to stray voltage cases, we requested additional
briefing on Vogel's application to this case.   The Cooperative argues that Vogel
is distinguishable, and the Griepentrogs contend that it is applicable, entitling
them  to  trial  of  their  nuisance  claim  and  such  additional  damages  for
"annoyance, inconvenience and discomfort" as they may be able to prove.   We
agree that it does.
The supreme court held in Vogel that "nuisance law is applicable
to stray voltage claims because excessive levels of stray voltage may invade an
person's private use and enjoyment of land."   Vogel, 201 Wis.2d at  427,  548
N.W.2d at 834.   The court was careful to say, however, that the question is fact-
specific:
Although  excessive  levels  of  stray  voltage  may  be  found  to
constitute a nuisance in certain circumstances, we do
not  hold  that  it  constitutes  a  nuisance  under  all
circumstances.   The determination of whether stray
voltage  unreasonably  interferes  with  a  person's
interest in the private use and enjoyment of land is
reserved for the trier of fact.
Id.
The Cooperative attempts to distinguish Vogel on the basis that
the evidence in this case suggests a single overload or "flashover" as the primary
cause  of  the  Griepentrogs'  injury,  whereas  Vogel  involved  a  continuing
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No.                                                                                              94-0094
exposure to excessive levels of current.  It maintains that applying nuisance law
in this case "would turn any tort claim into a nuisance claim."   The Vogel court,
however, expressly approved submission of a nuisance claim along with those
grounded in negligence, and we fail to see how the distinction advanced by the
Cooperative would render Vogel inapplicable.   It follows that the trial court's
ruling as a matter of law—that nuisance claims are not cognizable in stray
voltage cases—must be reversed because, under Vogel, they may be where the
requisite facts are established.11
In simplest terms, a nuisance is the "unreasonable interference
with the interests of an individual in the use and enjoyment of land."  Krueger v.
Mitchell, 112 Wis.2d 88, 103, 332 N.W.2d 733, 741 (1983).   Whether a particular
action, or a particular set of facts, constitutes a nuisance "is particularly a matter
for the jury to determine."   Id. at 105, 332 N.W.2d at 741.   In this case, however,
the trial court's rulings prohibited the jury from hearing any evidence on the
issue; midway through the Griepentrogs' case, the trial court sustained the
Cooperative's objection to all nuisance-related testimony and the jury was never
asked to consider it.    For that reason, a new trial, limited to that issue, is
required.
Opposing such a remedy, the Cooperative argues first that any
damages that may be recoverable in nuisance will duplicate and overlap those
already awarded by the jury, and affirmed by this court, on the Griepentrogs'
negligence claim.  We disagree.
Nuisance damages are not conditioned on injury to person or
property—or even on any monetary loss—on the part of the plaintiffs.   The
supreme court said in Krueger, 112 Wis.2d at 105, 108, 332 N.W.2d at 743, that a
plaintiff may recover damages for "personal inconvenience, annoyance and
discomfort" caused by a nuisance's existence—even without any showing of
11  Vogel differentiated between "private nuisance" claims and claims for "`intentional
invasion' nuisance"—the latter constituting "invasion[s]" which are either "`intentional and
unreasonable'" or "`unintentional and ... reckless ... or ... abnormally dangerous.'"   Vogel,
201 Wis.2d at 422, 428, 548 N.W.2d at 832, 835 (quoted source omitted).   In the latter
situation, unlike the former, contributory negligence is not a defense.   Id. at 428, 548
N.W.2d at 835.   The Griepentrogs' briefs on the nuisance issue are confined to "private
nuisance" principles; we do not see any question in this case relating to the "intentional
invasion" nuisance also discussed in Vogel.
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No.                                                                                         94-0094
monetary loss or injury to person or property—"as long as [the] interference
with the use and enjoyment of the land is unreasonable and substantial."   And
the  court  expressly  recognized  that  those  damages—for  "inconvenience,
annoyance and discomfort"—are "separately and independently recoverable in
a nuisance action based on the very essence of the tort of nuisance," which
specifically protects one's "`undisturbed enjoyment'" of his or her property. Id.
at 106, 332 N.W.2d at 742 (quoted source omitted).
That suggests to us that the type of damages recoverable in a
nuisance  action—upon  proper  proof—are  separate  and  independent  from
damages for economic loss resulting from the defendant's conduct.   As a result,
the Cooperative's argument that allowing claims for both ordinary negligence
and nuisance to go to the jury would result in double recovery is unavailing.
Indeed, the trial court instructed the jurors in this case that they were to name as
damages "an amount which will fairly and justly compensate the plaintiffs for
their economic damages," and the jury answered that question on the basis of
evidence relating to the economic loss the Griepentrogs suffered when their
cows died.   Nuisance damages, on the other hand, are noneconomic.   While the
interest at stake is one in the "usability of land," it has at its core "an element of
personal tastes and sensibilities," for it "comprehends the pleasure, comfort and
enjoyment  that  a  person  normally  derives  from  the  occupancy  of  land."
RESTATEMENT (SECOND) OF TORTS § 821D, cmt. b (1979), quoted in part in Krueger
v. Mitchell, 106 Wis.2d 450, 459-60, 317 N.W.2d 155, 159 (Ct. App. 1982), aff'd,
112 Wis.2d 88, 332 N.W.2d 733 (1983).12
The  Cooperative  also  asserts  that,  should  we  remand  on  the
Griepentrogs' nuisance claim, we should order a new trial on all issues.   Again,
we disagree.   The parties fully tried, and the jury fully considered, the issues
relating to the Griepentrogs' negligence claim, and we have upheld the jury's
resolution of those issues over the Cooperative's objections.   We have also held
that, under Vogel, the Griepentrogs have the right to pursue their nuisance
claim as well; we think it would make little sense to re-try their negligence
liability claims—which, as we have indicated, are separate and distinct from a
cause of action for private nuisance and have been well and fully tried.
12  We quoted from the first edition of the RESTATEMENT in Krueger.  The text, while in a
different section, is the same in both editions.
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No.                                                                                                 94-0094
We therefore remand to the trial court for a new trial limited solely
to  the  nuisance  claim  alleged  in  the  Griepentrogs'  Amended  Complaint:
whether, under applicable law, the elements of nuisance can be established13
and, if so, whether the Griepentrogs have, as a result, incurred damages of the
type and nature outlined in Krueger, Vogel and similar cases.    In all other
respects, we affirm the judgment and order.
By the Court.—Judgment and order affirmed in part and reversed
in part and cause remanded.
Not recommended for publication in the official reports.
13  Those elements, embodied in the pattern jury instruction for private nuisance, are: (1)
an unreasonable activity that (2) "interferes substantially with the comfortable enjoyment
of the life, health, or safety of another person," and (3) causes "significant harm."   WIS. J I-
CIVIL  1920 (1995).   The instruction proceeds to define "significant harm," as the term is
employed in cases involving "personal discomfort or annoyance," in terms of whether
"ordinary persons living in the community"—specifically not persons who may be "more
sensitive than ordinary persons"—"would regard the [activity] in question as substantially
offensive, seriously annoying, or intolerable."  Id.
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