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Court of Appeals Establishes High Bar for Anticipatory Private Nuisance Suit by Neighbors to Stop a Project

By: Todd Farris

In Krueger v. AllEnergy Hixton, LLC, 2017 AP 1802 (Ct App. August 9, 2018) the Wisconsin Court of Appeals, District IV in a 2-1 decision recognized the claim of anticipatory private nuisance but established a high bar to successfully plead one in court.

The case involved a lawsuit filed by a group of Town of Hixton landowners who sued AllEnergy Hixton, LLC seeking a permanent injunction to stop AllEnergy from constructing a frac mine in the Town. Their complaint alleged generally that their properties were contiguous to the site of the proposed frac sand mine, that the mine would operate 24 hours a day, seven days a week and that frac sand mines and rail load-out facilities “are known to create nuisance conditions, including . . . toxic air pollution, water pollution, noise pollution, light pollution, ground disruption and vibration due to blasting . . .” and other alleged nuisance conditions.

The Court of Appeals affirmed the trial court’s decision dismissing the neighbors’ complaint for failing to state a claim. While the Court recognized that it is possible to plead a claim for anticipatory private nuisance, the Court, relying a 1923 case, held that to survive a motion to dismiss a complaint alleging anticipatory private nuisance must include factual allegations that, if true, would support each of the following conclusions:

  • the defendant’s proposed conduct will “necessarily” or “certainly” create a nuisance; and
  • the resulting nuisance will cause the claimant harm that is “inevitable and undoubted.”

Applying this standard, the Court held that the neighbors’ general allegations of nuisance conditions that would result if the mine is built failed to state a claim for anticipatory private nuisance.

In a vigorous dissent, Judge Fitzpatrick reviewed Wisconsin nuisance law and criticized the majority for establishing a new claim with a higher pleading standard for challenging a project that has yet to be built. While conceding that the factual allegations in the neighbors’ complaint could have been more specific, Judge Fitzpatrick would have held that they were sufficient to survive a motion to dismiss under a traditional nuisance law analysis.

The neighbors have 30 days to petition the Wisconsin Supreme Court to exercise its judicial discretion to review the Court of Appeals’ decision.

The Court’s decision provides significant protection to companies developing intensive projects near residential areas. Opposing neighbors will have a difficult time alleging facts showing that a project will “necessarily” or “certainly” create a nuisance that will cause harm that is “inevitable and undoubted.”

If you have any questions regarding this article, please contact your Davis|Kuelthau attorney, the author noted above or our Environmental Law Chair linked here.