122 Invades

"122 invades a neighbor’s interest in the use and enjoyment of land. Restatement (Second) of Torts, sec. 822, 826, 829 (1977) This court concluded that the common enemy rule which served society “well in the days of burgeoning national expansion of the mid-nineteenth and early- twentieth centuries” should be abandoned because it was no longer “in harmony with the realities of our society.” Deetz , supra , 66 Wis. 2d at 14-15. We recognized in Deetz that common law rules adapt to changing social values and conditions. 7 Yet the defendant would have us ignore the flexible private nuisance law as a means of resolving the dispute between the landowners in this case and would have us adopt an approach, already abandoned in Deetz , of favoring the unrestricted development of land and of applying a rigid and inflexible rule protecting his right to build on his land 7 This court has recognized “that the common law is susceptible of growth and adaptation to new circumstances and situations, and that courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule…. The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions.” Dimick v. Schiedt, 293 U.S. 474, 487, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935), quoted with approval in Schwanke v. Garlt, 219 Wis. 367, 371, 263 N.W. 176 (1935). In Bielski v. Schulze , 16 Wis. 2d 1, 11 (1962), this court said: Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others “long dead and unaware of the problems of the age in which he lives, do his thinking for him.” Mr. Justice Douglas, Stare Decisis , 49 Columbia Law Review (1949). 735, 736. The genius of the common law is its ability to adapt itself to the changing needs of society. Moran v. Quality Aluminum Casting Co. , 34 Wis. 2d 542, 551 (1967). See also State v. Esser , 16 Wis. 2d 567, 581 (1962)."