126 Circuit

"126 The circuit court concluded that because the defendant’s proposed house was in conformity with zoning regulations, building codes and deed restrictions, the defendant’s use of the land was reasonable. This court has concluded that a landowner’s compliance with zoning laws does not automatically bar a nuisance claim. Compliance with the law “is not the controll ing factor, though it is, of course, entitled to some weight.” Bie v. Ingersoll , 27 Wis. 2d 490, 495 (1965). The circuit court also concluded that the plaintiff could have avoided any harm by locating his own house in a better place. Again, plaintiff’s abi lity to avoid the harm is a relevant but not a conclusive factor. See secs. 826, 827, 828, Restatement (Second) of Torts (1977). Furthermore, our examination of the record leads us to conclude that the record does not furnish an adequate basis for the circuit court to apply the proper legal principles on summary judgment. The application of the reasonable use standard in nuisance cases normally requires a full exposition of all underlying facts and circumstances. Too little is known in this case of such matters as the extent of the harm to the plaintiff, the suitability of solar heat in that neighborhood, the availability of remedies to the plaintiff, and the costs to the defendant of avoiding the harm. Summary judgment is not an appropriate procedural vehicle in this case when the circuit court must weigh evidence which has not been presented at trial. … . In determining the utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important: (a) the social value that the law attaches to the primary purpose of the conduct; (b) the suitability of the conduct to the character of the locality; and (c) the impracticability of preventing or avoiding the invasion."