Aug. 21, 2018 – Landowners in the Town of Hixton, in Jackson County, recently lost an appeal to stop a frac sand mine in the town. A state appeals court ruled that their complaint did not adequately state a claim for “anticipated private nuisance.”

In Krueger v. AllEnergy Hixton LLC, 2017AP1802 (Aug. 9, 2018), a three-judge panel for the District IV Court of Appeals (2-1) confirmed that anticipated private nuisance claims are recognized in Wisconsin, but the plaintiffs' complaint was deficient.

AllEnergy was planning to construct a frac sand mine on land that shared borders with the plaintiff-landowners, who filed a complaint and a motion for permanent injunction.

AllEnergy moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. The circuit court dismissed the case.

Anticipated Nuisance Claim Recognized

First, a majority rejected AllEnergy’s argument that Wisconsin does not recognize anticipated nuisance claims. The majority cited two cases, from 1903 and 1923, both recognizing that courts have equitable authority to enjoin anticipatory nuisances.

The panel’s dissenter, Judge Michael Fitzpatrick, said “a cause of action known as ‘anticipated private nuisance’ is not recognized in Wisconsin law at this time,” noting that all cases dealing with “threatened” or “prospective” nuisance pre-dated 1924. But the two-judge majority said silence does not mean the state has abandoned the claim.

“[F]or case law to be modified or overruled, something in a subsequent case must expressly do so or do so implicitly in the sense that the analysis in the later case cannot be reconciled with the analysis in the earlier case,” wrote Judge Paul Lundsten.

The majority said no case after Wergin v. Ross, 179 Wis. 603, 192 N.W. 51 (1923) – which said a court of equity “may enjoin a threatened or anticipated nuisance” – conflicts with Wergin “or any of the other earlier cases in the same vein.”

Complaint Did Not State a Claim

Although the majority ruled that Wisconsin recognizes an anticipated private nuisance claim, the majority also ruled that the plaintiff-landowners failed to state a claim here.

Under Wergin, the majority noted, plaintiffs must allege that conduct will “necessarily” or “certainly” create a nuisance and “the resulting nuisance will cause the claimant harm that is inevitable and undoubted.” Here, the majority said plaintiffs’ allegations fell short.

The complaint alleged that the proposed frac sand mine would create nuisance conditions, such as air, water, noise, and light pollution, destruction of forest and agricultural lands, adverse impacts on endangered species, and loss of groundwater.

The complaint also alleged the mine would negatively impact property values and interfere with property owners’ right to quiet and peaceful enjoyment of their property.

But the majority found these allegations insufficient to state a claim for anticipated private nuisance. “The landowners’ limitedfactual allegations, even if true, are too sparse to support conclusions that AllEnergy’s proposed mine operation will necessarily create nuisance and inevitably result in harm to the landowners,” Judge Lundsten wrote.

No allegations tied any particular alleged harm to any particular landowner, the majority noted, through “pertinent distances between active features of the mine, once in operation, and pertinent structures or activities on their respective properties.”

Alleging what frac sand mines are generally known to do, the majority concluded, was not enough to withstand a motion to dismiss for failure to state a claim.

“Each case will depend on its facts,” wrote Judge Lundsten, joined by Judge Brian Blanchard. “What we can say here is that the landowners provide virtually no specificity tailored to AllEnergy’s proposed mine or their particular circumstances.”

Dissent

As noted, Judge Fitzpatrick dissented, concluding that anticipated private nuisance is not a recognized claim in Wisconsin, despite the Wergin case from 1923.

“[A]ccording to the majority opinion, Wisconsin law has been frozen in place for almost one hundred years. However, that is not accurate,” Fitzpatrick wrote.

In post-Wergin case law, Judge Fitzpatrick said the Wisconsin Supreme Court analyzes an alleged private nuisance that has not yet been constructed as a private nuisance claim with elements adopted from the Restatement (Second) of Torts.

Judge Fitzpatrick, unlike the majority, also ruled that the plaintiff-landowners sufficiently alleged a claim upon which relief could be granted under private nuisance law, based on the specific pleading requirements outlined at Wis. Stat. section 844.16.