¶30 A private nuisance is a condition that harms or interferes with a private interest. Id., § 821A. We have accepted the Restatement (Second) of Torts' characterization of private nuisance as “a nontrespassory invasion of another's interest in the private use and enjoyment of land.”
City of Milwaukee, 277 Wis.2d 635, ¶ 25 n. 4, 691 N.W.2d 658 (citing
Vogel v. Grant–Lafayette Elec. Coop., 201 Wis.2d 416, 423, 548 N.W.2d 829 (1996) and
Prah v. Maretti, 108 Wis.2d 223, 231, 321 N.W.2d 182 (1982)); see Restatement (Second) of Torts, § 821D. There is no dispute that the nuisance at issue in this case is a private nuisance.
¶ 31 Wisconsin law employs the following directive for those seeking to establish liability for a private nuisance:
One is subject to liability for a private nuisance if, but only if, his 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) [I]ntentional and unreasonable, or
(b) [U]nintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
Restatement (Second) of Torts, § 822;
City of Milwaukee, 277 Wis.2d 635, ¶ 32, 691 N.W.2d 658. Because a nuisance is a result, of which negligence or intentional conduct may be the cause, liability for a nuisance “is founded on the wrongful act in ... maintaining [the nuisance].”
Physicians Plus, 254 Wis.2d 77, ¶ 27, 646 N.W.2d 777 (quoting
Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 575, 589, 227 N.W. 385 (1929) (internal quotation marks omitted)). Physical occupation of the property of another is not necessary to a nuisance claim.
Vogel, 201 Wis.2d at 426, 548 N.W.2d 829. For example, invasions of noxious odors can rise to the level of a nuisance.
Costas v. City of Fond du Lac, 24 Wis.2d 409, 413, 129 N.W.2d 217 (1964).