Wisconsin Court of Appeals
Torts — nuisance
A private nuisance claim may be based solely on appearance.
“Wisconsin has adopted the definition of private nuisance set forth in the RESTATEMENT (SECOND) OF TORTS (1979). Vogel v. Grant-Lafayette Elec. Coop., 201 Wis. 2d 416, 423, 548 N.W.2d 829 (Ct. App. 1996). ‘The Restatement defines nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.”’ Id. (citing RESTATEMENT (SECOND) § 821D). ‘The phrase “interest in the private use and enjoyment of land” as used in sec. 821D is broadly defined to include any disturbance of the enjoyment of property.’ Prah, 108 Wis. 2d at 232 (emphasis added).1 The RESTATEMENT explains: ‘Interest in use and enjoyment’ also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption with his use or freedom from detrimental change in the physical condition of the land itself. Id. (citing RESTATEMENT (SECOND) § 821D cmt. B at 101).”
“To summarize, there are no per se exceptions to nuisance claims in Wisconsin; nuisance claims may arise from any disturbance of the enjoyment of property; and unsightly spite fences can constitute a private nuisance. See id. at 232, 235, 237. Thus, Price’s argument, that nuisance claims can never be based on appearance, fails. In any event, while Price relied entirely on foreign case law, he filed no brief in reply to Huss’s brief that relied on Wisconsin authority. Thus, he concedes the matter. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). “
Dist. III, Outagamie County, Metropulos, J., Hoover, J.
Attorneys: For Appellant: Wagener, Nicholas Andrew, Appleton; For Respondent: Winkel, David J., Neenah