(dissenting in part). At one time almost all of eastern Wisconsin was overrun by glaciers. As the glaciers melted and receded they left many large deposits of gravel in their wake, a large number of which lie fairly close to the surface of the soil. This situation is prevalent throughout the Kettle Moraine region in which a large part of Waukesha county lies. In recent years there has been a nationwide population movement toward rural suburban areas. Because of Waukesha county’s nearness to the city of Milwaukee, it has proved particularly susceptible to this development and has undergone a tremendous upsurge in population. Consequently, there are many former agricultural areas in the county that have now been converted into attractive suburban-residence areas.
As such conversion has progressed, the governing bodies of affected municipalities have made use of their zoning-power to guard against objectionable property uses which would be incompatible with the development of the area for residential purposes. This undoubtedly was the motivation of the Pewaukee Town Board in amending its zoning ordinance in 1957 to control gravel-mining operations in the town.
Under this 1957 amendment, issuance of permits for mining and commercial selling of gravel was authorized for periods not to exceed three years, provided both the plan*14ning commission and the Town Board, after public hearing, should find that no injury to the public welfare would result from such a commercial gravel-mining operation. An important provision of the amendment requires an applicant for a permit to submit a plan of restoration satisfactory to the town to insure that the area where the gravel mining is to be conducted will be “restored to a condition of practical usefulness and reasonable physical attractiveness.” Furthermore, it provides that, as a condition to granting the permit, the applicant must enter into a binding agreement with the town to carry out such plan of restoration, and furnish a surety bond to insure his performance of this agreement. Thus, the amended ordinance was carefully drafted to guard against the contingency that the attractive landscape of the town may be permanently scarred with huge open gravel pits which would seriously hamper any development of the adjoining territory as a desirable residential area.
Brandt took the position in the circuit court that he was entitled to operate a commercial gravel pit on his land free from the provisions of the amended zoning ordinance because he had a prior nonconforming use which permitted him to do so. However, the evidence to establish such nonconforming use consisted only of the fact that, prior to 1957, Brandt had occasionally permitted neighboring farmers to remove gravel from his premises, and had charged them therefor. Moreover, neither Brandt nor his witnesses were able to establish a single instance in 1955 or 1956 in which Brandt sold any gravel.
The foregoing evidence requires that this court hold as a matter of law that there exists no prior nonconforming use by Brandt to operate a commercial gravel pit on his premises. To permit the trial court to find to the contrary on this evidence would clearly violate the rule, enunciated *15in the majority opinion, that a prior nonconforming use may not be enlarged. The prior nonconforming use here, before 1955, was limited to occasionally permitting a neighbor to come in and remove a small truckload of gravel for a charge. This is a far cry from operating a commercial gravel pit. Furthermore, the evidence would justify a finding that even this limited use had been abandoned as a result of not occurring in the years 1955 and 1956.