Court of Appeals Holds that a Continuing Trespass Does Not Circumvent the Notice of Injury Requirements
The Wisconsin Court of Appeals recently found that a continuing trespass does not create a new “event” each day that it remains on the property. See Ebert v. Village of Gresham, 2020 WL 6278316, ¶¶ 2, 13. Because a new event is not created each day, a claimant must file a notice of injury within 120 days after the happening of the event giving rise to the claim pursuant to Wis. Stat. § 893.80. Id. The court also held that only special circumstances like those in Gillen v. City of Neenah, where a specific statute conflicted with the general notice of claim statute, allowed an exception to the notice of claim statute. Id., ¶¶ 2, 28. Finally, the court held that merely being able to seek statutory injunctive relief, absent a conflict between the injunctive relief statute and the notice of claim statute, would not entitle a claimant to an exception to the notice of claim requirements. Id., ¶ 34.
The Eberts owned a property that contained a recorded water main easement that granted the Village a perpetual easement to maintain an existing water main. In 2003, the Village had electrical wiring installed in the easement. At the time the wiring was installed, one of the Eberts was the Village’s administrator, was aware of the wire installation and did not file a notice of injury with the Village. Fourteen years after the wiring was installed, the Eberts sent a letter to the Village alleging a continuing trespass and an unlawful intrusion on their property. The Village denied the Eberts’ claim and the Eberts filed suit. The circuit court granted the Village’s motion to dismiss for failure to comply with the notice of claim statute, Wis. Stat. § 893.80.
On appeal, the Eberts asserted that the wires were a single continuous trespass that constituted a new event each day (allowing the Eberts to file a notice of injury for each new event) similar to Yacht Club at Sister Bay Condominium Ass’n, Inc. v. Village of Sister Bay. The court disagreed and explained that the Eberts’ single continuous trespass was a single event unlike the series of individual concerts in Yacht Club. Id., ¶ 17. Essentially, in Yacht Club, the Court found that each concert created a new event because each individual concert may or may not have constituted a separate nuisance, which allowed for a new notice of injury to be filed. Id. In the instant case, if the Eberts’ argument was accepted, the notice of injury requirement would essentially cease to exist for continuing trespass cases since each day would be a new event. Id., ¶ 18. Additionally, finding that a continuous nuisance created a new event each day would be inconsistent with the purpose of the notice of injury requirement – to provide governmental entities with the opportunity to investigate and evaluate potential claims. Id., ¶ 19.
Irrespective of whether or not a new event occurred, the Eberts averred that the court should recognize an exception to the notice of injury requirement consistent with either Gillenor under the three-part test from E-Z Roll Off, LLC v. County of Oneida. Id., ¶¶ 23, 31. The court rejected the Eberts’ assertion that an exception should be recognized and applied under Gillen. Id., ¶ 26. The court pointed out that the Wisconsin Supreme Court found that Gillen involved special circumstances requiring an exception to the notice of claim statute since it involved a claim of a violation of the public trust doctrine and a specific statute that allowed for immediate injunctive relief to prevent injury, which took precedence over the general notice of claim statute. Id., ¶¶ 26, 28. Not only was the Eberts’ case legally distinguishable from Gillen, but it was also factually distinguishable since the plaintiffs in Gillen actually filed a notice of claim. Id., ¶ 29.
Similarly, the court found that no exception could be recognized under the E-Z Roll Off test since the Eberts did not meet the factors of the test. Id., ¶ 39. In E-Z Roll Off, the Wisconsin Supreme Court considered whether to recognize an exception to the notice of claim statute for antitrust actions brought under Wis. Stat. § 133.18. Id., ¶ 32. The Court declined to find an exception after evaluating the three factor test. Id. Specifically, under the first factor, the Court found that the reasoning in Gillen was inapplicable to E-Z Roll Off since the plaintiffs were not seeking immediate injunctive relief and instead sought declaratory relief and damages. For the second factor, the Court found that enforcing Wis. Stat. § 893.80 promoted, rather than hindered, the legislature’s preference for prompt resolution of such claims. For the third factor, the Court found that applying the notice of claim statute to antitrust actions clearly allowed governmental entities greater opportunity to investigate and evaluate potential claims by requiring claimants to file within 120 days of the event giving rise to the claim.
In Ebert, the court found that the Eberts did not meet the requirements of the E-Z Roll Off test for an exception to the notice of injury requirement. Id., ¶ 39. Under the first factor, the court was unpersuaded by the Eberts’ argument that § 844.01(1) (which the Eberts claimed allowed immediate injunctive relief) conflicted with § 893.80. The court explained that Gillen did not hold that any statute granting the right to seek immediate injunctive relief automatically conflicted with the notice of claim statute. Id., ¶ 34. Instead, the holding in Gillen was strictly limited to the specific statute for injunctive relief (Wis. Stat. § 30.294) for violations of the public trust doctrine. Id. If the Eberts’ reading of Gillen was accepted, it would essentially create an exception to the notice of claim requirement for every case in which a plaintiff made a claim for injunctive relief creating an exception that would swallow the rule. Id., ¶ 35. Under the second factor, the court found that nothing in § 844.01(1) expressed an unambiguous legislative preference for the prompt resolution of claims alleging an injury to or interference with real property and rejected the Eberts’ arguments. Id., ¶ 37. Lastly, under the third factor, requiring the filing of a notice of injury within 120 days of the installation furthered the purpose for which Wis. Stat. § 893.80(1d)(a) was enacted – to provide governmental defendants with the opportunity to investigate and evaluate potential claims. Id., ¶ 38. The court emphasized that with the passage of time, such investigation and evaluation would become more problematic. Id. Allowing the Eberts to wait fourteen years before filing a notice of injury would not further the purpose for which the notice of injury requirement was enacted. Id.
This decision gives guidance as to when an “event” occurs for a continuing trespass and when the clock begins to run for filing a notice of injury. This decision also reiterates the purpose of the notice of claim statute – to give a municipal body time to investigate and consider a claim for possible settlement to avoid litigation. While the court re-emphasized that several new events can occur in the context of a nuisance consistent with facts like Yacht Club, a continuing trespass, without a new event, does not extend the time to file a notice of injury into perpetuity. Likewise, cases that do not involve a claim that is brought under the public trust doctrine and a specific statute for immediate injunctive relief, are not entitled to an exception of Wis. Stat. § 893.80 under Gillen. Id., ¶ 27. Additionally, claims for injunctive relief do not automatically entitle a claimant to an exception to the notice of claim requirements.
 2019 WI 4, 385 Wis.2d 158, 922 N.W.2d 95.
 The Wisconsin Supreme Court held that for purposes of the notice of claim statute, each individual concert that was alleged to be a nuisance constituted a new event giving rise to a new 120-day notice of injury period. 2019 WI 4, ¶ 27.
 219 Wis.2d 806, 580 N.W.2d 628.
 2011 WI 71, 335 Wis. 2d 720, 800 N.W.2d 421.
 The public trust doctrine provides a series of protections for bodies of water in Wisconsin guaranteeing use by the general population. WIS. CONST. art. IX, § 1. The public trust doctrine allows a person to sue on behalf of, and in the name of, the State for the purpose of vindicating the public trust. State v. Deetz, 66 Wis. 2d 1, 13, 224 N.W.2d 407 (1974). The plaintiffs in Gillen brought their suit under Wis. Stat. § 30.294 which expressly allows a plaintiff to seek immediate injunctive relief for a violation of the public trust doctrine. Gillen, 219 Wis. 2d at 821.
 Contrary to the Eberts’ claim, Gillen was not based on the constitutional nature of the claims nor did it stand for the proposition that a general exception to the notice of claim statute exists for injunctive relief. The Court in Gillen found that the injunctive relief statute was specific and took precedence over the more general requirements set forth in the notice of claim statute. Gillen, 219 Wis.2d at 822. The ruling in Gillen was limited to the specific statute at issue in that case. 2020 WL 6278316, ¶ 35.
 Here, the Eberts were not seeking an exception to the requirement that they wait 120 days after filing a notice of claim before filing suit like Gillen; instead, the Eberts sought an exception to the requirement that they file their notice of injury within 120 days of the event giving rise to their claims. 2020 WL 6278316, ¶ 30.
 The three factor test is: (1) whether there is a specific statutory scheme for which the plaintiff seeks exemption [from the notice of claim requirements]; (2) whether the enforcement of the notice of claim requirements found in Wis. Stat. § 893.80 would hinder legislative preference for a prompt resolution of the type of claim under consideration; and (3) whether the purposes for which § 893.80 was enacted would be furthered by requiring that a notice of claim be filed. 2011 WI 71, ¶ 23.
 2011 WI 71, ¶ 28. Declaratory relief is not, by its nature, in conflict with providing governmental entities a 120-day period to review a claim. Id.
 2011 WI 71, ¶ 36. If the notice of claim statute was not applied to antitrust actions, claimants would have six years to file their complaint. Id.
 Even if there was a preference as the Eberts argued, the preference would have been best served by the Eberts filing a notice of injury with the Village within 120 days after the installation rather than permitting the Eberts to wait fourteen years to file a notice of injury. 2020 WL 6278316, ¶ 37.