|
COURT OF APPEALS
DECISION
DATED AND FILED
April 8, 2010
David
R. Schanker
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.
|
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
|
DISTRICT IV
|
|
|
|
|
|
|
|
Front Street Properties, LLC,
Plaintiff-Appellant,
v.
Main Street Ingredients,
LLC,
Defendant-Respondent.
|
|
|
|
|
|
|
|
|
APPEAL
from an order of the circuit court for La Crosse County: Todd
W. Bjerke, Judge. Affirmed.
Before Dykman, P.J., Vergeront and Higginbotham, JJ.
¶1 PER CURIAM. Front Street Properties, LLC,
appeals an order dismissing its suit against Main Street Ingredients, LLC. The dispositive issue is whether Main Street improved
an easement in a way that unreasonably burdened Front Street’s property. We affirm.
¶2 At the conclusion of a trial to the court, the circuit court
found that in 2004 Front Street
granted an easement to adjacent property owner Main Street for use of a fifty-foot strip
of Front Street’s
property that abutted the Main
Street property.
The easement document stated that the purpose of the easement was “for
ingress and egress to” the Main
Street property.
Later in 2004, Main Street
built a “ramp” on the easement to improve access to its own property by
trucks. Before that, trucks had used a
“field road that ran along the easement route.”
Construction of the ramp involved use of fill to raise the elevation of
part of the easement area to the level of the Main Street property.
¶3 In 2008, Front
Street sued Main Street, alleging that the ramp interferes
with Front Street’s
use and enjoyment of its property, and seeking an injunction for removal of the
ramp. The circuit court concluded that
the improvements to the easement are reasonable and do not interfere with Front Street’s use
and enjoyment.
¶4 On appeal, the parties appear to agree that the applicable
legal test is that a holder of an access easement is permitted to improve a
roadway to facilitate access, as long as the improvements do not unreasonably
burden the servient estate. See Hunter v. Keys, 229 Wis. 2d 710,
715-19, 600 N.W.2d 269 (Ct. App. 1999).
Front Street does not appear to dispute that Main Street’s ramp was an improvement to
facilitate access. Front Street argues
only that the ramp unreasonably burdens the servient estate.
¶5 Neither party provides any authority establishing whether the
reasonableness of the burden on the servient estate is an issue of fact, or
instead one of law or discretion. In Hunter
we stated that the “meaning and scope of language created in a deed is reviewed
as a matter of law without deference to the trial court’s determination.” Id.
at 715. We then went on to review, among
other issues, whether the easement holder created an unreasonable burden by
improvements to a roadway, id. at 715-16, and by the filling in
of wetlands. Id. at 717. In the first discussion we described the circuit
court as having “concluded” that the action was reasonable, and in the second
discussion we did not discuss the circuit court’s ruling at all. Neither discussion was written in a way that
defers to the circuit court, and both appear to have been a de novo review. Accordingly, given the lack of specific
authority cited by the parties, we will apply a de novo standard here.
¶6 Front Street
first argues that the circuit court “overlooked” one of the burdens on its
estate, namely, that the existence of the ramp prevented Front Street from making a business
transaction in 2005 with a company that was interested in building a
warehousing facility. However, Front Street’s
description is vague about how the ramp “prevented” the transaction. Front Street’s brief cites to certain
testimony by its owner, Steven Johnson.
In that testimony, Johnson states that the ramp is in a place that
trucks would have to use to get in and out of a loading dock. However, Johnson further testified that the
transaction did not occur because the other party found other space.
¶7 Front Street
also argues that the existence of the easement prevented it from selling the
property to Frank Liquor in 2007.
However, Johnson himself testified that, while Frank Liquor originally
sought removal of the ramp, it ultimately did not follow through on the
transaction because, “instead of just the ramp being an issue, they told me
that as long as the easement is still there they were not interested in buying
the property ‘cause they didn’t want to deal with that easement.”
¶8 As to both of these potential transactions, we note that the
circuit court found that Front Street owns a significant amount of land on
other sides of its own warehouse that would be suitable for future development
or expansion of the business, despite the Main Street easement and ramp. We also note that the grantor of an easement
cannot reasonably expect that the existence of the easement, or the existence
of permitted improvements by the easement holder, will not be a factor in how
other potential users regard the property.
It should be apparent to any landowner that easements are an encumbrance
on property that have the potential to affect the value or marketability of
property. Where, as in this case, the
granting of the easement was voluntary and negotiated, that effect is something
that the grantor of the easement has had an opportunity to consider and to obtain
compensation for.
¶9 Therefore, we do not doubt that the easement, and possibly
the ramp, is, in some sense, a burden on the servient estate. However, the reasonableness of the easement
itself is not before us. The only question
here is whether the burden caused by the
additional improvement is unreasonable.
In light of the circuit court’s findings, and the easement holder’s
right to make improvements on the easement consistent with its purpose, we are
not able to say that these two failed transactions, or the potential limits on
future transactions, establish that Front
Street’s estate is unreasonably burdened.
¶10 Finally, Front
Street argues that it is entitled to relief under Wis. Stat. § 844.01(1)-(3) (2007-08),
which provides in part:
(1) Any person owning or
claiming an interest in real property may bring an action claiming physical
injury to, or interference with, the property or the person’s interest therein;
the action may be to redress past injury, to restrain further injury, to abate
the source of injury, or for other appropriate relief.
(2) Physical injury includes
unprivileged intrusions and encroachments; the injury may be surface,
subsurface or suprasurface; the injury may arise from activities on the
plaintiff’s property, or from activities outside the plaintiff’s property which
affect plaintiff’s property.
(3) Interference with an
interest is any activity other than physical injury which lessens the
possibility of use or enjoyment of the interest.
According to Front Street, this
statute creates a cause of action in which Front Street, as a “person owning … an
interest in real property,” may bring “an action claiming … interference with,
the property or the person’s interest therein.”
The circuit court held that this statute protects only against
“unprivileged intrusions and encroachments,” and that the easement in this case
is a “privileged intrusion and authorized encroachment” not subject to suit
under this statute. According to Front Street, this analysis
was erroneous because the language in Wis.
Stat. § 844.01(2)
limiting relief to cases of “unprivileged intrusions and encroachments” relates
only to claims of physical injury, rather than to a claim, like Front Street’s, of
interference under § 844.01(3),
which does not have such language about privilege.
¶11 In response, Main
Street points out that we have summarized case law
regarding this statute, and concluded that it does not form the basis for a cause
of action, but is only remedial and procedural.
Schultz v. Trascher, 2002 WI App 4, ¶¶24-29, 249 Wis. 2d
722, 640 N.W.2d 130. We agree.
¶12 The statute does not authorize relief to Front Street unless Front Street establishes some other
substantive claim. Furthermore, even if
it did create a cause of action, we note that the statute would also authorize
a counter-suit by Main Street
against Front Street
to protect itself from interference with its easement. That is because the phrase “interest in real
property” includes not only an ownership interest, as Front Street is seeking to defend, but
also easements. Wis. Stat. § 840.01(1). The statute does not provide a substantive
basis to resolve such competing claims, which further supports the conclusion
that it does not create a substantive cause of action.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.