In Krueger v. AllEnergy Hixton, LLC (2017AP1802), the Court of Appeals District IV held that anticipated private nuisance claims are recognized under Wisconsin case law and the plaintiffs failed to state such a claim against a proposed AllEnergy frac sand mine.

Plaintiff landowners filed a complaint against AllEnergy, which planned to build a frac sand mine operation contiguous to the landowners’ properties. The complaint anticipated a nuisance would occur once AllEnergy built the frac sand mine.

The appeals court held that, under Wisconsin case law in Wergin v. Voss (1923), anticipated private nuisance claims are recognized separate from general private nuisance claims. Furthermore, anticipated private nuisance claims must include facts sufficient to support a claim that the defendant’s conduct will certainly create a nuisance and the nuisance will inevitably cause harm. The appeals court dismissed the landowners’ complaint because it did not specifically indicate the frac sand mine would inevitably lead to harm.

In contrast, the dissent argued that Wergin is outdated and subsequent case law, statutes, and Supreme Court guidance indicates anticipated private nuisance claims are not recognized distinctly from general private nuisance claims. The dissent said the level of proof the majority required in the landowners’ complaint goes beyond Wisconsin law. Thus, the landowners did present sufficient facts to state a private nuisance claim.

The appeals court also noted that the court need not consider post-complaint affidavits in a summary judgement analysis that is limited to claim for relief in the complaint. The dissent agreed with the majority opinion on this point.