Bradley C. Munger and Summit Lake Association, Plaintiffs-Appellants, Estate of John M. Gleason, Sr., Plaintiff,
Richard W. Seehafer, Peter M. Vanderhei, Richard L. Hilger and Patrick M. Curran, Defendants-Respondents.
from judgments and an order of the circuit court for Langlade
County, Cir. Ct. No. 2011CV168 FRED W. KAWALSKI and THOMAS G.
GROVER, Judges. Affirmed.
Stark, P. J., Hruz and Seidl, JJ.
Bradley Munger ("Munger") and the Summit Lake
Association (the "Association") appeal from
judgments and an order dismissing all of Munger and the
Association's claims against Richard Seehafer, Peter
Vanderhei, Richard Hilger, and Patrick Curran (collectively,
the "Respondents").On appeal, Munger and the
Association assert the circuit court erroneously dismissed
their intentional trespass and declaratory judgment claims,
as well as a claim denominated "Public Nuisance and
Inadequate Enforcement." They also assert the circuit
court erroneously granted the Respondents summary judgment as
to Munger and the Association's remaining claim, injury
to real property.
We conclude the circuit court properly granted the
Respondents' motion to dismiss. We hold that WIS. STAT.
§ 893.57, which sets forth the limitations period for
intentional torts, applies to a claim alleging intentional
trespass. The Respondents' alleged trespass
occurred in 2007; between the date of the alleged trespass
and the time this action was filed, the legislature extended
§ 893.57's limitations period from two to three
years. This action was not filed until 2011. Accordingly, we
conclude the intentional trespass claim was untimely filed
regardless of whether the longer limitations period applies.
We also agree with the circuit court that the public
nuisance/inadequate enforcement and declaratory judgment
claims each fail to state a claim against the Respondents.
The circuit court also properly granted the Respondents'
summary judgment motion. The court correctly concluded the
Association lacks standing to bring a claim for injury to
property, as neither the complaint nor the record plausibly
suggests that the Association or its members, aside from
Munger, have suffered any property damage as a result of the
Respondents' conduct in 2007. As for the alleged damage
to Munger's property, we conclude his claim is barred by
the doctrine of issue preclusion as a result of his earlier
efforts to obtain a Department of Natural Resources (DNR)
permit to remediate the alleged damage. In those
administrative proceedings, the DNR determined it was
impossible to separate the damage allegedly caused by the
Respondents from other natural and human activities that
affected the relevant property. For these reasons, we affirm
the circuit court in all respects.
Summit Lake is located in Langlade County and is a feeder
lake for a five-lake chain. Munger and Gleason own property
on opposite sides of Summit Lake's outlet creek. The
creek flows about 300 feet from Summit Lake to the Forest
Road culvert, then continues about 3, 000 feet to Greater
Bass Lake and beyond. Sometime prior to September 1989,
Munger placed riprap in the creek bed. The DNR issued an
after-the-fact permit for the riprap to Munger on September
On October 20, 2007, DNR conservation warden Timothy Otto
received a complaint of illegal dredging at the Summit Lake
outlet creek. Otto was informed that Vanderhei had trespassed
on Munger's property to remove material from the outlet.
Otto went to Vanderhei's Greater Bass Lake residence and
interviewed him. Vanderhei admitted that he, Seehafer,
Hilger, and Curran had removed material, including a log and
grass clippings, from the outlet creek. Vanderhei stated this
material was preventing water from draining from Summit Lake.
Munger alleges that, following a DNR investigation, the four
Respondents were each issued five citations for various
violations of WIS. STAT. ch. 30, which regulates navigable
waters. According to Munger, these citations were ultimately
dismissed upon the Respondents' agreement to plead guilty
or no contest to criminal trespass to land, contrary to WIS.
STAT. § 943.13.
In April 2009, the DNR received a report of illegal
structures placed at the Summit Lake outlet creek. A DNR
investigator determined the following month that Munger had
placed riprap beyond that area allowed by the 1989 permit.
Munger agreed to remove the unauthorized fill, but he failed
to timely do so. The gravel fill remained as of June 10,
2009, and Munger was issued two citations for obstructing
navigable waters, contrary to WIS. STAT. §
30.15(1)(d). Munger agreed to a finding of guilt as to
one of the citations in exchange for dismissal of the other.
The illegal fill was removed by late October 2009.
On March 8, 2010, Munger applied for a DNR permit seeking to
place fill in the Summit Lake outlet creek in an effort to
"repair damages" the Respondents caused in 2007.
The Association supported the application. The DNR denied the
permit, explaining that "[t]he various natural and
human-made changes to the outlet over the years cannot be
separated from one or the other with any certainty."
Munger and the Respondents were not the only parties to have
altered or affected the outlet creek and surrounding areas;
the DNR concluded general public use of the waterway, as well
as the Town of Upham's replacement of the Forest Road
culvert, had impacted the area as well. Following significant
public comment, the DNR concluded the proposed project
"would materially obstruct navigation, " adversely
affect water quality, have an undesirable impact on wetlands
and organism migration, and would create a de facto dam at
the Summit Lake outlet.
Munger and the Association requested and were granted a
contested case hearing before an administrative law judge
(ALJ) from the State of Wisconsin Division of Hearings and
Appeals. On April 25, 2011, the ALJ upheld the DNR's
decision denying the permit, concluding that "most of
the damage from the 2007 dredging and/or clearing has already
naturally restored itself. A stable and re-vegetated low-flow
channel has reestablished itself as a waterway connection
between these lakes." The ALJ agreed with the DNR's
findings that the proposed fill would obstruct navigation,
impair wetland function, and "have a detrimental impact
upon the fishery of both lakes." In all, the ALJ found
Munger and the Association "did not come close to
carrying their burden of proof on the statutory standards for
issuing this permit."
Shortly after the ALJ's decision was issued, Munger and
the Association commenced this action against the Respondents
and the State of Wisconsin. The complaint included four
counts: (1) intentional trespass to land (Count I); (2)
physical injury to real property (Count II); (3) public
nuisance and inadequate enforcement of WIS. STAT. ch. 30 as a
result of the dismissal of the citations against the
Respondents (Count III); and (4) declaratory judgment seeking
an order declaring Munger's 1989 permit valid (Count IV).
Each of the Respondents raised the statute of limitations as
an affirmative defense to the trespass claim, with Vanderhei
and Hilger specifically raising the then-two-year statute of
limitations governing intentional torts, WIS. STAT. §
893.57. In response to motions to dismiss on timeliness
grounds, Munger and the Association argued that the statute
of limitations applicable to all their claims was the
six-year statute governing injury to real property, WIS.
STAT. § 893.52. Alternatively, they argued that no
statute of limitations barred their claims because they
sought damages for a "continuing injury to real
Meanwhile, Munger and the Association were not content with
the ALJ's decision upholding the DNR's denial of
their remediation permit. As a result, and prior to filing
this action against the Respondents, Munger and the
Association had petitioned for judicial review of the agency
decision. In the present action, in addition to seeking
dismissal of Count I, the Respondents also requested
dismissal of Counts III and IV because the substance of those
claims was identical to the issues being litigated in the
judicial review action. The Respondents asserted the WIS.
STAT. ch. 227 review process was the exclusive means for
Munger and the Association to obtain review of the DNR
decision denying Munger's permit application. The circuit
court ultimately affirmed the ALJ's decision in the
judicial review action, observing that "more than one
human intervention" had affected water flow at the
outlet creek and rejecting the notion that Munger and the
Association were entitled to a permit to restore the creek to
the condition in which it existed prior to the 2007 trespass.
In the present action, the circuit court granted the
Respondents' motion to dismiss Counts I, III and IV. As
to Count I, intentional trespass, the circuit court concluded
the claim was barred by the statute of limitations for
intentional torts contained in WIS. STAT. § 893.57, as
more than three years had elapsed between the date of the
alleged offense and the date Munger and the Association
commenced their action. With respect to Counts III and IV,
the court concluded the "primary focus of the pleadings
... [is] the conduct of the DNR[, ]" and, as such, those
matters were best addressed in the WIS. STAT. ch. 227 action
for judicial review.
Munger and the Association filed a motion for
reconsideration. In relevant part, they argued the statute of
limitations pertaining to their trespass claim was the
six-year statute for injury to property, WIS. STAT. §
893.52, not the shorter statute of limitations for
intentional torts. Alternatively, they asserted that the
"continuing nature of the harm" to their property
precluded any statute of limitations from applying to bar
their trespass claim. The circuit court rejected these
arguments and denied the motion, reasoning that the trespass
claim was distinct from the Count II injury to real property
claim, the latter of which had not been dismissed as to the
Respondents and could still be litigated. Thereafter, the
court entered an order dismissing Counts I, III and IV
against the Respondents.
In May 2014, the Respondents filed a motion for summary
judgment on the surviving claim for injury to real property.
The motion asserted summary judgment was appropriate against
Munger and the Association for different reasons as to each
plaintiff. First, the Respondents asserted that because Count
II alleged damage only to Munger's property, the
Association lacked standing to bring the claim. Second, the
Respondents asserted that Munger's claim for property
damage was barred by the doctrine of issue preclusion,
because the "facts that give rise to the instant case
have already been thoroughly developed and litigated before
the DNR, the Division of Hearings and Appeals, and in
Langlade County Circuit Court." The Respondents noted
the DNR had conclusively determined any damage to the creek
had been restored naturally and that it was impossible to
separate the damage the Respondents caused in 2007 from the
various other natural and human events that had occurred in
the outlet creek over the years.
The circuit court granted the Respondents' summary
judgment motion. After reviewing the complaint, the court
concluded the allegations did not allege an injury to the
Association's property, nor did the complaint identify
any way in which any of the Association's members had
been damaged, including by diminished property values. The
court therefore concluded the Association lacked standing to
prosecute Count II. The court also agreed with the
Respondents that Munger had actually litigated the issue of
his alleged property damage to a conclusion in the DNR
proceedings, with the DNR finding that it was impossible to
determine what damage was attributable to the
Respondents' conduct. The court applied issue preclusion
to bar Munger's injury to real property claim because any
finding that the Respondents caused damage to Munger's
property in 2007 would be contrary to the agency's
On appeal, the only issues Munger and the Association raise
relate to the viability of their claims against the
Respondents. As set forth above, the circuit court granted
the Respondents' motion to dismiss as to Counts I, III
and IV, and their summary judgment motion as to Count II. We
address each motion separately, and in each instance conclude
the claims against the Respondents were properly dismissed.
Motion to Dismiss
"A motion to dismiss for failure to state a claim tests
the legal sufficiency of the complaint." Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶19,
356 Wis.2d 665, 849 N.W.2d 693 (quoting John Doe 1 v.
Archdiocese of Milwaukee, 2007 WI 95, ¶12, 303
Wis.2d 34, 734 N.W.2d 827). In reviewing a motion to dismiss,
we accept as true all well-pleaded facts in the complaint and
any reasonable inferences therefrom. Id. We do not,
however, add facts in the process of construing a complaint,
and legal conclusions stated in the complaint need not be
accepted as true. Id. Indeed, such legal conclusions
are insufficient, standing alone, to allow a complaint to
withstand a motion to dismiss. Id. "Plaintiffs
must allege facts that, if true, plausibly suggest a
violation of applicable law." Id.,
Count I (Intentional Trespass)
The circuit court dismissed Munger and the Association's
intentional trespass claim as untimely. Munger and the
Association argue the circuit court applied the wrong statute
of limitations; in their view, it should have applied WIS.
STAT. § 893.52, relating to injuries to real or personal
property, rather than WIS. STAT. § 893.57, relating to
intentional torts. "Determining which statute of
limitations applies to an action is a question of law [that]
we review de novo." Estate of Hegarty ex rel.
Hegarty v. Beauchaine, 2001 WI.App. 300, ¶14, 249
Wis.2d 142, 638 N.W.2d 355 (some formatting altered).
Determining the meaning of a statute is a question of law,
which we also review de novo. Ritt v. Dental Care
Assocs., 199 Wis.2d 48, 60, 543 N.W.2d 852 (Ct. App.
1995). Similarly, when the facts are undisputed, whether the
applicable statute of limitations has run on a claim is a
question of law. See Laughland v. Beckett, 2015
WI.App. 70, ¶15, 365 Wis.2d 148, 870 N.W.2d 466');">870 N.W.2d 466.
No published Wisconsin case appears to have considered
whether allegations of intentional trespass are governed by
WIS. STAT. §§ 893.52 or 893.57. Typically, when two
limitations periods, considered independently, could be
applied to a cause of action, the more specific statute
controls. See Estate of Hegarty, 249 Wis.2d 142,
¶17. Accordingly, our task is to determine whether both
statutes could apply to Munger's intentional trespass
claim. If they could, we must determine whether one statute
is more "specific" than the other and, if so, apply
Both WIS. STAT. §§ 893.52 and 893.57 are found in
the subchapter relating to limitations periods for tort
actions. Section 893.52 is entitled, "Action for damages
for injury to property." It provides that "an action,
not arising on contract, to recover damages for an injury to
real or personal property shall be commenced within 6 years
after the cause of action accrues or be barred. Subsec.
893.52(1). Section 893.52 encompasses "negligence and
nuisance claims." Allen v. Wisconsin Pub. Serv.
Corp., 2005 WI.App. 40, ¶8, 279 Wis.2d 488, 694
N.W.2d 420; see also Gumz v. Northern States Power
Co., 2007 WI 135, ¶25, 305 Wis.2d 263, 742 N.W.2d
271. Section 893.57 is the statute of limitations governing
intentional torts. It provides: "An action to recover
damages for libel, slander, assault, battery, invasion of
privacy, false imprisonment or other intentional tort to the
person shall be commenced within 3 years after the cause of
action accrues or be barred." Id. Under both
§§ 893.52 and 893.57, a cause of action accrues
when the plaintiff discovers, or with reasonable diligence
should have discovered, the injury and that the
defendant's conduct probably caused that injury. See
Schmidt v. Northern States Power Co., 2007 WI 136,
¶27, 305 Wis.2d 538, 742 N.W.2d 294 (applying the
discovery rule to actions governed by § 893.52);
Spitler v. Dean, 148 Wis.2d 630, 636, 436 N.W.2d 308
(1989) (applying discovery rule to intentional tort cases).
Our supreme court has previously addressed the choice between
these two statutes of limitation as they pertain to a claim
for a breach of fiduciary duty. In Zastrow v. Journal
Communications, Inc., 2006 WI 72, 291 Wis.2d 426, 718
N.W.2d 51, certain employees filed suit against a stock
trust's trustees. Id., ¶¶2-3, 6. The
trustees asserted WIS. STAT. § 893.57 barred the
employees' action, but the circuit court concluded the
employees' claim sounded in negligence and applied WIS.
STAT. 8 893.52's six-year limitations period.
Zastrow, 291 Wis.2d 426, ¶8. Upon
"examining the nature of a fiduciary duty, " the
supreme court agreed with the trustees that the breach of a
fiduciary duty of loyalty is necessarily an intentional tort
to which § 893.57's limitations period applies.
Zastrow, 291 Wis.2d 426, ¶¶24-40.
Consistent with the analysis in Zastrow, we examine
the nature of a trespass to determine which statute of
limitations should apply.
"[A] private landowner's right to exclude others
from his or her land is 'one of the most essential sticks
in the bundle of rights that are commonly characterized as
property.'" Jacque v. Steenberg Homes,
Inc., 209 Wis.2d 605, 617, 563 N.W.2d 154 (1997)
(quoting Dolan v. City of Tigard, 512 U.S. 374, 384
(1994)). Notably, "[o]ne is subject to liability to
another for trespass, irrespective of whether he thereby
causes harm to any legally protected interest of the other,
if he intentionally ... enters land in the possession of the
other, or causes a thing or a third person to do so
...." Grygiel v. Moriches Fish & Game Club,
Inc., 2010 WI 93, ¶40, 328 Wis.2d 436, 787 N.W.2d 6
(quoting Prahl v. Brosamle, 98 Wis.2d 130, 146, 295
N.W.2d 768 (Ct. App. 1980), abrogated on other grounds by
Wilson v. Layne, 526 U.S. 603, 616 (1999)) (alteration
Prahl's statement regarding a potential absence
of harm caused by trespass is slightly imprecise, in that the
law presumes a trespass always harms the
possessor's legally protected interest. Jacque
was quite clear on this point:
Because a legal right is involved, the law recognizes that
actual harm occurs in every trespass. The action for
intentional trespass to land is directed at vindication of
the legal right. W. Page Keeton, Prosser and Keeton on
Torts, § 13 (5th ed. 1984). The law infers some
damage from every direct entry upon the land of another.
Id. The law recognizes actual harm in every trespass
to land whether or not compensatory damages are awarded.
Id. Thus, in the case of intentional trespass to
land, the nominal damage award represents the recognition
that, although immeasurable in mere dollars, actual harm has
Jacque, 209 Wis.2d at 619. Compensatory damages are
not an essential element of the tort of trespass. 4 J.D. LEE
& BARRY A. LINDAHL, MODERN TORT LAW § 38:7, at 38-21
(2d ed. 2006).
Thus, in an instance of trespass, the intrusion itself forms
the basis for an award of damages, even absent any other
injury. "A trespasser who has not damaged the property
or its possessor is nevertheless liable to the possessor for
nominal damages." Prahl, 98 Wis.2d at 152
(citing Hajec v. Novitzke, 46 Wis.2d 402, 417-18,
175 N.W.2d 193 (1970), and Diana Shooting Club v.
Kohl, 156 Wis. 257, 145 N.W. 815 (1914)). In addition,
"even where actual harm is slight, " an award of
punitive damages may be appropriate. Jacque, 209
Wis.2d at 616-17. The justification for this rule is, again,
the nature of the harm a trespass necessarily produces:
[I]n certain situations of trespass, the actual harm is not
in the damage done to the land, which may be minimal, but in
the loss of the individual's right to exclude others from
his or her property and ... this right may be punished by ...