Opinion
March 8, 1962 —
April 3, 1962.
Appeal from an order of the circuit court for Chippewa Circuit Judge. Affirmed.
For the appellant there were briefs by Wiley Devine of Chippewa Falls, and oral argument by Thomas Devine.
For the respondent the cause was argued by John H. Bowers, assistant attorney general, with whom on the brief was John W. Reynolds, attorney general.
The order overruled defendant's demurrer to plaintiff's complaint.
The facts will be given in the opinion.
Sec. 114.135 (6), (7), Stats., prohibits the construction of a tower or other object which extends to a height of more than 500 feet above the ground or surface of the water within one mile of the location of the tower or object without first applying for and obtaining a permit from the Wisconsin state aeronautics commission.
Sec. 14.53 (2), Stats., authorizes the attorney general to prosecute, at the request of the head of any department of the state government, all actions, civil or criminal, relating to any matter connected with any of their departments except where other provision is made. The action is brought by the attorney general in the name of the state on the request of the director of the Wisconsin state aeronautics commission.
The complaint alleges that defendant corporation has built a certain tower, and that —
"9a. The defendant, its agents and servants, have constructed the tower without a permit from the aeronautics commission, to a height of over 500 feet above the ground within one mile of the location of the tower, in violation of sec. 114.135 (6)-(10), Wisconsin statutes, and applicable rules and regulations adopted pursuant thereto."
The complaint alleges also that the top of the tower is 400 feet above its base at ground level.
The prayer for relief is for judgment requiring defendant to reduce its tower to an elevation of not more than 500 feet above ground level within one mile of the location of the tower.
Defendant has demurred, asserting that the complaint does not state a cause of action. This might be true if we were to interpret the statute to mean that the 500 feet is to be measured from the level of the highest ground in the one-mile area. Upon demurrer, without the benefit of additional facts which would be established by a trial of the action, we are satisfied that the measurement is not to be from the area's highest point.
Whether proper construction of the statute requires the measurement of 500 feet to begin at the lowest point in the area or at the average of ground level in the area may depend on facts not now before the court.
By the Court. — Order affirmed.