COURT OF APPEALS

DECISION

DATED AND FILED

June 16, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

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 
No. 2019AP8

3

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). 
No. 2019AP8

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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-OldsmobileCadillac, 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 
No. 2019AP8

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property,

1

that this water flow invaded Wong’s interest in the use and enjoyment 

of her property,2and 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. 
No. 2019AP8

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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).