Liane M. Wong v. Theodore C. Maneage

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 16, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP8 Cir. Ct. No. 2016CV172

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

LIANE M. WONG,

PLAINTIFF-APPELLANT,

V.

THEODORE C. MANEAGE AND JANEAN K. MANEAGE,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Burnett County:
MELISSIA R. MOGEN, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Liane Wong appeals an order that denied her
motion for summary judgment, granted summary judgment in favor of Theodore
No. 2019AP8

and Janean Maneage (“the Maneages”), and dismissed Wong’s action with
prejudice. Wong argues the circuit court erred by granting the Maneages
summary judgment on Wong’s private nuisance claim. We disagree and,
therefore, affirm the order.

BACKGROUND

¶2 The following facts are undisputed. Wong and the Maneages own
adjoining lakefront property in Burnett County. Wong purchased her property,
which included a seasonal cabin, from her sister in 2008, unaware that the
property was located in a floodplain. In 2012, the Maneages began construction of
a year-round residential structure to replace their seasonal cabin. While visiting
her cabin in 2014, Wong experienced ponding around her garage following a
heavy rainfall. Later that year, the Maneages built a retaining wall on their
property to divert as much surface water as possible away from Wong’s property.

¶3 In May 2015, a trench was dug alongside the retaining wall to
further divert surface water along the wall. The Maneages also installed water
barrels and gutters to collect runoff from their roof; resurfaced their driveway to
collect water; and re-crowned Wong’s private driveway to control water runoff.
While visiting her property in August 2015, Wong documented ponding where
mud and straw washed onto her property after a week of rainfall. Ponding on all
sides of the garage and water inside the garage was also documented after a
“torrential” rainfall in June 2016.

¶4 Wong filed suit alleging that the Maneages’ construction of a new
home altered the landscape and elevation of their property in relation to Wong’s
property, causing a private nuisance that is intentional and unreasonable. The
parties filed competing motions for summary judgment. The circuit court granted

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summary judgment in favor of the Maneages and dismissed Wong’s action with
prejudice. Wong now appeals.

DISCUSSION

¶5 Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2)
(2017-18). We review a circuit court’s decision on summary judgment de novo,
applying the same standard as the circuit court. Hardy v. Hoefferle, 2007 WI App
264, ¶6, 306 Wis. 2d 513, 743 N.W.2d 843. Further, whether there is a legal basis
for a nuisance claim is a question of law subject to de novo review. Stunkel v.
Price Elec. Co-op., 229 Wis. 2d 664, 668, 599 N.W.2d 919 (Ct. App. 1999).

¶6 The first step in any nuisance analysis is to determine whether a
nuisance actually exists. Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co.,
2002 WI 80, ¶27, 254 Wis. 2d 77, 646 N.W.2d 777. It is imperative, however, to
distinguish between a nuisance and liability for a nuisance, “as it is possible to
have a nuisance and yet no liability.” Milwaukee Metro. Sewerage Dist. v. City of
Milwaukee, 2005 WI 8, ¶25, 277 Wis. 2d 635, 691 N.W.2d 658.

¶7 Where, as here, a private nuisance is alleged, one is subject to
liability only if his or her conduct “is a legal cause of an invasion of another’s
interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or (b) unintentional and otherwise actionable
under the rules controlling liability for negligent … conduct.” See id., ¶32; see
also RESTATEMENT (SECOND) OF TORTS § 822 intro. note (AM. LAW INST. 1979).

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¶8 In this case, Wong alleged a nuisance under the intentional and
unreasonable theory. An invasion of another’s interest in the use and enjoyment
of land is intentional if the actor “acts for the purpose of causing it,” or “knows
that it is resulting or is substantially certain to result from his [or her] conduct.”
Vogel v. Grant-Lafayette Elec. Co-op., 201 Wis. 2d 416, 430, 548 N.W.2d 829
(1996). An intentional invasion of another’s interest in the use and enjoyment of
land is unreasonable if the gravity of the harm outweighs the utility of the actor’s
conduct, or if the harm caused by the conduct is serious, but the burden of
compensating the person whose interests are interfered with is not significant
enough to cause cessation of the conduct. See Crest Chevrolet-Oldsmobile-
Cadillac, Inc. v. Willemsen, 129 Wis. 2d 129, 139, 384 N.W.2d 692 (1986).

¶9 In determining the gravity of the harm, it is important to consider the
extent of the harm involved; the character of the harm involved; the social value
that the law attaches to the type of use or enjoyment invaded; the suitability of the
particular use or enjoyment invaded to the character of the locality; and the burden
on the person harmed of avoiding the harm. Id. at 141. Relevant to the instant
matter, Wisconsin’s “reasonable use rule” provides that “each possessor is legally
privileged to make a reasonable use of his [or her] land, even though the flow of
surface waters is altered thereby and causes some harm to others, but incurs
liability when his [or her] harmful interference with the flow of surface waters is
unreasonable.” State v. Deetz, 66 Wis. 2d 1, 14, 224 N.W.2d 407 (1974) (citation
omitted).

¶10 In her brief, Wong raises several challenges to the order granting
summary judgment, including an attempt to create issues of material fact that
would render summary judgment inappropriate. We assume, without deciding,
that Wong showed that the Maneages’ conduct caused water to flow onto her

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property,1 that this water flow invaded Wong’s interest in the use and enjoyment
of her property,2 and that the interference was intentional. The material facts that
remain undisputed, however, fail to establish, as a matter of law, that the
interference was unreasonable.

¶11 As the circuit court noted, the Maneages’ decision to build a
four-season home to replace their three-season cabin was a reasonable use of their
property. Undisputed evidence regarding the reasonableness of the Maneages’
conduct included, among other things: (1) the Maneages’ full and careful
compliance with all zoning and other ordinances, laws or regulations; (2) the
mitigation steps they took, and the costs they expended in relation thereto; (3) their
evidence showing that, apart from two of the three occasions documented by
Wong, they did not personally observe ponding on Wong’s property regardless of
the amount of rainfall; and (4) the fact that Wong purchased her property without
knowing that it was located in a floodplain.

¶12 Again assuming the construction of the Maneages’ home altered the
flow of surface water onto Wong’s property, she provides no evidence—
photographic or otherwise—to establish that either she or her property suffered
any harm apart from ponding on three occasions and flooding in the garage on one
occasion as a result of an invasion of surface water flowing from the Maneages’
property onto her property. Wong did not claim any damage to the garage roof

1
We will assume this fact even though there is a genuine question as to whether a
diversion of water due to the Maneages’ activities even occurred.

2
We will assume this fact even though Wong specifically admitted during her deposition
that she has never lost the use and enjoyment of her property due to the ponding.

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No. 2019AP8

shingles, roof trusses, walls, windows, or doors, nor did she observe any new
damage to the garage that was not pre-existing.

¶13 Based on this record and the undisputed facts, Wong failed to show
“serious” or “grave” harm, and any harm that may have resulted from the few
documented incidents of water in and around the garage does not “outweigh[] the
utility of the [Maneages’] conduct” in constructing a new home on their property.
See Crest Chevrolet-Oldsmobile-Cadillac, Inc., 129 Wis. 2d at 139. No
reasonable fact finder could conclude otherwise on this record. Because the
undisputed facts do not establish an unreasonable interference with Wong’s
property, her private nuisance claim necessarily fails. The circuit court, therefore,
properly determined that the Maneages were entitled to judgment as a matter of
law.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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