COURT OF APPEALS
DECISION
DATED AND FILED
June 16, 2010
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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Margo R. Hanson and Thomas J. Schwartzburg,
Plaintiffs-Appellants,
v.
State of Wisconsin
Department of Natural Resources,
Defendant-Respondent.
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APPEAL
from an order of the circuit court for Waukesha County: RALPH M. RAMIREZ, Judge. Affirmed.
Before
Brown, C.J., Anderson and Snyder, JJ.
¶1 PER CURIAM. Margo R. Hanson and Thomas J.
Schwartzburg (Schwartzburg) have appealed
from an order granting summary judgment to the Wisconsin Department of
Natural Resources (DNR) on the first claim
of Schwartzburg’s amended complaint.
We affirm the order.
¶2 Schwartzburg
commenced this action pursuant to Wis.
Stat. § 806.04(2) (2007-08),
seeking a declaratory judgment limiting the DNR’s
use of an access easement across a corner of the Schwartzburg property. The easement over the Schwartzburg property
was conveyed to the DNR in 2005
via a deed providing: “Easement for the
benefit of Parcel C for right of way purpo[s]es described as follows.” The easement, whose precise location is
described in the deed, provides access to an adjacent lakefront property
(Parcel C) owned by the DNR, upon which the DNR
intends to build a boat launch and parking lot for public use.
¶3 In his complaint, Schwartzburg alleged that the DNR’s use of its land for a public boat launch
would increase traffic on the access easement beyond the scope of the original
easement, creating an unreasonable burden on Schwartzburg’s property. Schwartzburg sought a declaration limiting
the use of the access easement to a use consistent with the original grant.
¶4 The DNR moved
for summary judgment on the ground that no material issue of fact existed for
trial. It requested an order
providing: “That the portion of the
plaintiff’s property that is subject to the recorded access easement is subject
to use for the purpose of right of way by the WDNR and by any members of the
public who choose to use it to access the WDNR property for recreational
purposes.”
¶5 The trial court agreed that no material issue of fact existed
for trial and granted the DNR’s
motion. It held that the access easement
provided a right of way to the DNR
property over the Schwartzburg property that could be utilized with no
restrictions as to the number or types of vehicles using it, the number of
times it may be used, or what time of day it may be used. It concluded that, as a matter of law, the
easement afforded the people of the state the right to come and go from the DNR’s lakefront property without restriction.
¶6 We review a trial court’s grant or denial of summary judgment
de novo. See Waters v. United States
Fid. & Guar. Co., 124 Wis.
2d 275, 278, 369 N.W.2d 755 (Ct. App. 1985).
Upon review, we apply the same standards as those used by the trial
court, as set forth in Wis. Stat. § 802.08. Krier v. Vilione, 2009 WI 45,
¶14, 317 Wis.
2d 288, 766 N.W.2d 517. “[S]ummary
judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” M&I First Nat’l Bank v. Episcopal Homes
Mgmt., Inc., 195 Wis.
2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995).
We will reverse a decision granting summary judgment if the trial court
incorrectly decided legal issues or material facts are in dispute. Coopman v. State Farm Fire & Cas. Co.,
179 Wis. 2d
548, 555, 508 N.W.2d 610 (Ct. App. 1993).
¶7 A
right of way is an easement providing a right of passage over another person’s
property. Kleih v. Van Schoyck,
250 Wis. 413,
418, 27 N.W.2d 490 (1947). “An easement creates two distinct
property interests: the dominant estate,
which enjoys the privileges granted by an easement; and the servient estate,
which permits the exercise of those privileges.” Atkinson
v. Mentzel, 211 Wis.
2d 628, 637, 566 N.W.2d 158 (Ct. App. 1997).
When, as here, the easement in question is created by deed, the court
must look to that instrument in construing the relative rights of the parties. Hunter v. McDonald, 78 Wis. 2d 338, 342-43, 254
N.W.2d 282 (1977). “The use of the
easement must be in accordance with and confined to the terms and purposes of
the grant.” Id. When the language of the deed is not
ambiguous or indefinite, parole evidence is inadmissible to explain the terms
of the deed, and the acts of the parties are not admissible to show a practical
construction. Kleih, 250 Wis. at 419. Construction of the deed to determine the
grant’s terms and purpose is a question of law unless an ambiguity requires a
resort to extrinsic evidence. Atkinson,
211 Wis. 2d
at 638. Whether an ambiguity exists is a
question of law which this court reviews de novo. Id.
¶8 No ambiguity exists in the terms of the deed granting the DNR an easement over the Schwartzburg property, and
no basis therefore exists for admitting extrinsic evidence concerning the
purpose of the easement or the history of its use. By its express terms, the easement is a right
of way allowing ingress and egress to and from the waterfront property owned by
the DNR. The deed set no conditions, restrictions, or
qualifications on the DNR’s use of
the right of way. It contained no
limitations on the number or types of vehicles the DNR
could permit to traverse the right of way to get to and from the lakefront
property.
¶9 Because the easement granted by the deed is clear and
unambiguous, the trial court properly determined that no material issue of fact
existed for trial and that the DNR
was entitled to judgment as a matter of law.
Based upon the express language of the easement, the trial court
properly determined that the DNR
was entitled to summary judgment declaring its right, and the right of members
of the public as permitted by the DNR,
to have ingress and egress over the Schwartzburg property to the DNR’s lakefront property without restriction.
¶10 In reaching this conclusion, we reject Schwartzburg’s
contention that the trial court implicitly determined that his claim regarding
the scope of the easement was not ripe for declaratory judgment and therefore
failed to declare the rights of the parties.
At the summary judgment hearing, the trial court acknowledged
Schwartzburg’s concern about the eventual effect of the use of the easement on
the surrounding landowners, and stated “that may be something that we may look
at in the future in a different lawsuit.”
Schwartzburg relies upon this statement to contend that the trial court
implicitly found that his declaratory judgment action was not ripe for
resolution.
¶11 Schwartzburg’s argument reflects a misunderstanding of the trial
court’s decision. The trial court
concluded that no material issues of fact prevented judgment in favor of the DNR, not that issues were not ripe for
resolution. It determined and declared
that the DNR has the right to
allow public access over the land described in the easement for purposes of
ingress and egress to and from its lakefront property, without
restriction. Acknowledging that facts
might arise in the future that would give rise to another lawsuit did not mean
that the DNR had not shown a right
to summary judgment declaring its right to ingress and egress based upon the
plain language of the deed. No basis therefore exists to disturb the
trial court’s order.
By the Court.— Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.