In Ebert v. Village of Gresham (2019AP002178), the Court affirmed a circuit court dismissal of a trespass claim that failed to timely comply with the a notice of claim statute.

Facts

The Ebert’s own property in the Village of Gresham, on the property is an easement for a water main. In 2003, the Village installed electric wiring within the water main easement on the Ebert’s property. At the time, the Eberts did not file any written complaint or notice of injury with the Village. Eventually, in 2017, the Eberts, through their attorney, brought a complaint against the Village in a letter, where they threatened to sue if the Village did not remove the continuing trespass that was the electrical line. The city declined and the Eberts sued for trespass and physical injury or interference with real property. The Village moved to dismiss and the circuit court granted the motion because the Eberts failed to comply with the 120 notice requirement found in Wis. Stat § 893.80(1d)(a).

Decision

 On appeal, the Ebert’s argument, and the Court’s discussion, focused heavily on Yacht Club at Sister Bay Condominium Ass’n, Inc. v. Village of Sister Bay, 2019 WI 4, 385 Wis. 2d 158, 922 N.W.2d 95. In that case, the Wisconsin Supreme Court found that for concerts played at a pavilion causing noise pollution, every new concert reset the 120-day notice requirement. The Court distinguished this case from Yacht Club by pointing out there was only a singular event, the installing of the line, and that the line simply existing does not constitute a new event. Because of this, the Court affirmed the dismissal.