COURT OF APPEALS DECISION DATED AND FILED November 17, 2010 A.
John Voelker Acting 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
from an order of the circuit court for
Before Brown, C.J., Neubauer, P.J. and
¶1 PER CURIAM. David J. French Revocable Trust of 1991, Jeanna N. French, and Paula Van Akkeren (the Frenches) have appealed from an order denying their motion for reconsideration of an order granting summary judgment to the respondents, William Jacob, Jr., and Virginia Jacob (the Jacobs). We conclude that summary judgment was properly granted to the Jacobs and affirm the order.
¶2 This appeal involves a property dispute. The Frenches and the Jacobs own adjacent
properties on
¶3 Prior to 1955, the Jacobs’ property was owned by Keith Osborn. The French property was owned by Keith’s brother, Gordon. In 1979, Gordon Osborn sold his property to Rosemary and Jack Van Der Vaart. In 1989, Rosemary Van Der Vaart sold the property to the Frenches.
¶4 As of 1955, the property owned by Keith Osborn was inherited by his children, Katherine Osborn, Harriet Osborn Bliss, and Otis Osborn, whose wife was Irene S. Osborn. In 1992, Irene S. Osborn and the Otis B. Osborn Residual Trust sold the property to the Jacobs.
¶5 When the Jacobs purchased their property, it had a cottage situated on the eastern portion of the property toward the lake, and a carport on the west end of the property. In 2004, the Jacobs tore down the cottage and carport. They completed a new residence and garage in 2005. They paved the driveway in front of the garage. The paved driveway lies partly on the easement and partly on the property that is the subject of this litigation (the disputed property). The disputed property constitutes a rectangular piece of land approximately sixty-two feet by twenty-two feet. It lies to the west of the Jacobs’ new garage, and extends south to a line of bushes, which runs east to west and separates the disputed property from the Frenches’ cottage and yard immediately to the south of the bush line. The disputed property includes the south portion of the Jacobs’ driveway, a portion of the walkway to their house, and a grassy area surrounding two trees, which ends at the bush line separating the disputed property from the Frenches’ yard.
¶6 In their complaint, the Frenches sought a declaration that the Jacobs had no right to drive or park on the portion of the driveway that was not within the easement, no right to pave the driveway, and no right to continue parking on the remaining grassy portion of the disputed property. They sought injunctive relief and damages. The Jacobs answered and counterclaimed, alleging that they had a prescriptive right of use of the disputed property. They also claimed that the Frenches were estopped from bringing their claims.
¶7 The trial court ultimately granted the Jacobs’ motion for summary judgment. It concluded that the Frenches were equitably estopped from demanding removal of the driveway or objecting to the Jacobs’ use of the driveway for access to their garage. It further concluded that the Jacobs have a prescriptive right to use that part of the disputed property located south of the driveway and extending to the bush line for access and parking. We agree with both conclusions.
¶8 We review a trial court’s grant or denial of summary judgment
de novo. Krier v. Vilione, 2009 WI
45, ¶14, 317
¶9 The party that opposes a summary judgment motion must set
forth specific facts, evidentiary in nature and admissible in form, demonstrating
that a genuine issue exists for trial. Helland
v. Kurtis A. Froedtert Memorial Lutheran Hosp., 229
¶10 Based upon the record, we conclude that the trial court
properly granted summary judgment determining that the Jacobs have a
prescriptive right to use that part of the disputed property located south of
the driveway and extending to the bush line for access and parking. With some exceptions that are inapplicable
here, the continuous adverse use of the rights of another in real estate for at
least twenty years establishes the prescriptive right to continue the use. Wis.
¶11 The unexplained use of property for a period of twenty years is
presumed to be adverse and under a claim of right. Widell v. Tollefson¸ 158
¶12 Possession, or the intent to possess as one’s own, is not a
prerequisite to a claim of prescriptive easement, and the use need not be to
the exclusion of the owners. Shellow
v. Hagen, 9
¶13 Applying these principles to the summary judgment record, we
conclude that the Jacobs established a right to summary judgment that was not
rebutted by the Frenches. Irene Osborn’s
affidavit indicated that she began going to the Jacobs’ property with her
husband, Otis, in 1953, when it was still owned by Otis’ parents, Keith and his
wife. Irene attested that she, Otis, and
their children moved to Mississippi in 1960, but returned to the cottage once a
year for two to four weeks at a time during the summer months of July or
August. She attested that they visited
the cottage almost every year until 1979, when Otis died. She attested that Otis’ sister, Harriet Bliss,
also lived outside
¶14 Irene Osborn attested that during the time she went to the cottage, “[w]e would usually park to the North of the lilac bushes, and the people from Gordon’s house would usually park to the South of the bushes, but if we ever needed more parking space, cars from either house might park on the other side of the bushes or in the field across the road.” Irene attested that after 1979, she went to the cottage at least twice by herself, and at some point in the 1980’s began renting out the cottage.
¶15 The two affidavits of Laura Wynne, the daughter of Otis and
Irene Osborn, corroborated Irene’s affidavit.
Wynne attested that she stayed at the property inherited by her father
many times through the 1960’s, 70’s, 80’s, and 90’s. She attested that after moving to
¶16 In her affidavits, Wynne attested that the bush line separated her family’s property from the French property to the south, which was owned by her grandfather’s brother. Wynne attested that when her family owned the property, they used the carport for storage and a patio area, and parked their cars to the south and west of the carport, on the grassy area extending to the bush line. She testified that she and her family also mowed this area, and that to her knowledge, no one in her family had ever asked anyone for permission to use or park on this area. Wynne attested that she had assumed that her family had a right to park on this property and use it because that was how it had always been done.
¶17 The representations made by Wynne and Irene Osborn regarding their family’s use of the disputed property for parking and their maintenance of it were consistent with the affidavits of Rosemary Van Der Vaart, Judith Miller, and John Weber. Van Der Vaart attested that she and her husband purchased the French property from Gordon Osborn in March 1979, and that she sold it to the Frenches in 1989. Van Der Vaart attested that a bush line has always run east and west between the French cottage property and the property to the north now owned by the Jacobs. Van Der Vaart attested that she thought this was the border between the two properties, and that her family never maintained the area north of the bush line. She attested that to her knowledge, any maintenance and lawn work on the property north of the bush line was done by the owners of the property now owned by the Jacobs.
¶18 Judith Miller’s affidavits also establish the use of the disputed property by the Jacobs’ predecessors. Miller attested that she took care of the cottage belonging to the Jacobs’ predecessors, and stayed there at times from 1988 until 1992.[3] She attested that she opened the cottage in the spring, cleaned the house about once a week if someone stayed there and, along with members of the owners’ families, mowed the lawn, including the disputed area up to the bush line.[4] Miller further attested that her family stayed at the cottage almost every other weekend during the summer, and that they parked on the grass to the side of the carport between the carport and the bush line, because they assumed the bush line was the property line. She attested that other than herself and members of the owners’ families, she never saw anyone else mow the property behind the cottage. She attested that she was never approached by any member of the French family, and was never given direction as to where to park.
¶19 Affidavits from John Weber similarly describe the use of the disputed property. Weber attested that his family rented the cottage on what is now the Jacobs’ property for reunions during one week in August 1987 and one week in July 1990. He attested that during each rental period, his group had at least four cars, and parked vehicles in the area to the west and south of the carport. He attested that there was a bush line between the property and the neighbor to the south, and that he assumed the property his family was using for parking was part of the property he was renting. He attested that he did not ask anyone’s permission to park there, and received no objection.[5]
¶20 These affidavits established the Jacobs’ prescriptive right to continue to use the disputed property for parking and access, as determined by the trial court. The affidavits established that the Jacobs’ predecessors had openly and visibly maintained the disputed property and used it for parking cars for more than twenty years when the Jacobs purchased the property in 1992. Their use of the disputed property was inconsistent with the ownership rights of the Frenches and their predecessors, and was thus hostile, even if ill will was absent. Use of the disputed property by the Jacobs’ predecessors was continuous and uninterrupted for at least twenty years.[6] In addition, the affidavits of Wynne, Miller, Weber, and Rosemary Van Der Vaart establish that the disputed property was used as part of the Jacobs’ property based on a claim of right to the use.[7] A prescriptive right of use of the disputed property was thus demonstrated by the Jacobs, and was not rebutted by the Frenches.
¶21 In determining that the Frenches did not rebut the Jacobs’ prima facie case for summary judgment on the prescriptive right issue, we note that, contrary to the Frenches’ argument, nothing in the record provides a basis to conclude that, at its inception, the use of the disputed property by Keith Osborn and his children was by permission. Unlike the situations in Schroeder v. Moeley, 182 Wis. 484, 491-92, 196 N.W. 843 (1924) and Martin v. Meyer, 241 Wis. 219, 222-23, 225, 5 N.W.2d 788 (1942), nothing in the summary judgment record indicates that Gordon Osborn or any other owner preceding the Frenches gave permission to use the disputed property to any of the Jacobs’ predecessors. We agree with the trial court that Irene Osborn’s affidavit did not give rise to a factual dispute on this issue.
¶22 In contending that the disputed area was used by the current and former owners of the Jacobs’ property by permission, the Frenches rely on the portion of Irene Osborn’s affidavit which stated that “[d]uring the time that I was going to the cottage, I always viewed the property between the two houses, including the property to the West and South of the garage, as common ground.” They also rely on the portion of her affidavit stating: “It was my understanding that this was done by mutual agreement, and that the Osborn brothers, Keith and Gordon, had agreed to use the property this way.” The Frenches contend that Irene Osborn’s affidavit establishes that Otis and Irene and their family parked on the disputed property with permission pursuant to an agreement between Otis’ father and uncle, Keith and Gordon Osborn.
¶23 Affidavits in support of and opposition to a motion for summary
judgment must be made on personal knowledge and set forth such evidentiary
facts as would be admissible in evidence.
Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶10, 324
¶24 The summary judgment record thus establishes that the disputed property was openly, visibly, and continuously used by the Jacobs’ predecessors under a claim of right for at least twenty years prior to the Jacobs’ purchase of the property in 1992. As already discussed, nothing in the summary judgment record indicates that the Jacobs’ predecessors were given permission to use the disputed property during this time.[9] Their maintenance and use of the disputed property for parking was inconsistent with the ownership of the Frenches and their predecessors, and was hostile as a matter of law. The mere fact that the Jacobs’ predecessors used the disputed property only occasionally during the summer did not defeat the Jacobs’ claim that the use was open, visible, and notorious.[10]
¶25 While the Frenches testified in their depositions that on
occasion prior to 2005, the Jacobs requested permission to park on the disputed
property, even if true, this evidence does not give rise to a material factual
dispute since the Jacobs did not purchase the property until 1992, and twenty
years of continuous adverse use was already established. For the same reason, the Jacobs’ offer to
purchase the disputed property before building their new home and garage did
not impair their right to a prescriptive use.
See Ovig v. Morrison, 142
¶26 The scope of a prescriptive easement is determined by the scope
of the use that gives rise to the easement.
Widell, 158
¶27 Applying summary judgment standards, we conclude that the trial
court also properly granted summary judgment determining that the Frenches are
equitably estopped from demanding removal of the driveway or objecting to its
use by the Jacobs for access to their garage.
Equitable estoppel has four elements:
(1) an action or inaction; (2) on the part of one against whom estoppel
is asserted; (3) that induces reasonable reliance thereon by the other; (4)
which is to the relying party’s detriment.
Affordable Erecting, Inc. v. Neosho Trompler, Inc., 2006 WI 67,
¶33, 291
¶28 According to the affidavit of William Jacob, he became aware
that the disputed property was not included in the real estate description of
his property when the Jacobs began their building project. Jacob attested that upon discovering that the
land encompassed in the description of the Jacobs’ property did not extend to
¶29 The site plan for the Jacobs’ project was drawn to scale, and
clearly provided notice of the scope of the project, including the
driveway. It delineated the Jacobs’ lot
line and the Frenches’ residence. The
driveway to the garage and its boundaries were clearly depicted, as was the 25
foot setback from the road required by law and referred to in William Jacob’s
October 2002 letter. The plan depicted
the driveway coming off
¶30 In her deposition testimony, Paula Van Akkeren acknowledged that William Jacob showed her the preliminary plans. While she denied noticing that the plans indicated a paved driveway, she acknowledged seeing the plans, including the house and garage. In addition, the record establishes that the Frenches sent the Jacobs a response declining to sell any of their land, but stating: “We think the drawings of your newly planned home are great, and we wish you the best.” The record indicates that the Frenches did not object to the driveway plans until one-and-a-half years after the project and driveway were complete.
¶31 The only reasonable inference from this record is that the Frenches had notice of the Jacobs’ intent to use a portion of the disputed property for a driveway, and to pave the driveway. The Frenches’ failure to object and to instead indicate that they approved the Jacobs’ planned home reasonably induced reliance by the Jacobs. Because requiring the Jacobs to remove the driveway clearly would be detrimental to them, the trial court properly concluded that the Frenches were equitably estopped from demanding removal of the driveway or objecting to its use by the Jacobs for access to their garage.
¶32 In reaching this conclusion, we reject the Frenches’ argument
that the unclean hands doctrine barred the Jacobs’ equitable estoppel defense
as a matter of law or, at a minimum, gives rise to an issue of material fact
for trial. A person asserting equitable
estoppel must have clean hands. Godfrey
Co. v. Lopardo, 164
¶33 There is no evidence of wrongful conduct by the Jacobs. The Jacobs showed their plans to the
Frenches, who told them they approved.
The Jacobs’ building project, including installation of the driveway,
was conducted in the open. In Godfrey,
the plaintiff-developer did not inform the defendant-property owners that the developer’s
pier potentially interfered with the property owners’ riparian rights, despite
being told to do so by the Wisconsin Department of Natural Resources. Godfrey, 164
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
[1] The
Frenches own two parcels of land, parcels one and two.
[2] All references to the Wisconsin Statutes are to the 2007-08 version.
[3] In her first affidavit, Miller stated that she took care of the cottage and sometimes stayed there from 1988 to 1994. In her second affidavit she indicated that she stopped working and staying at the cottage when the Jacobs bought it, which was 1992.
[4] Miller’s attestation was consistent with the affidavit of Earl Constien, who stated that during 1994 and 1995 he did lawn work on the French property, both around the cottage and in the field across the road. Constien attested that his directions were to mow the lawn and trim the bushes. He attested that the cottage area that he mowed was bounded by the bush line on the north of the French property, and that he never mowed north of the bush line. Constien attested that he never mowed or maintained any area between the Jacobs’ carport and the bush line, and that he assumed the area north of the bush line was owned by the Jacobs.
[5] Charlotte Zieve, a cottage owner on Elkhart Lake whose property is also accessed by French Road and lies immediately to the south of the French property, similarly attested to the parking of cars on the disputed property. Zieve attested that she and her husband bought their property in approximately 1988, when the French property was owned by the Rosemary Van Der Vaart. Zieve attested that when she drove by the Jacobs’ property, she frequently saw cars parked south and west of the carport and garage.
[6] The
Frenches contend that the record does not establish twenty years of continuous
and uninterrupted adverse use. We
disagree. The record establishes use by
the Jacobs’ predecessors from 1953 to 1992, including regular summer use by
members and descendants of the Keith Osborn family from 1960 to 1979, and less
frequent but continued use thereafter.
The summer use of the cottage property by the Jacobs’ predecessors was
sufficient to establish continuous use for purposes of creating a prescriptive
right. Cf. Widell v. Tollefson¸ 158
[7] The
Frenches cite Law v. De Normandie, 5
[8] The
Frenches’ reliance on Wis. Stat. § 907.01
and Eichenseer
v. Madison-Dane County Tavern League, Inc., 2006 WI App 226, ¶27 n.12,
297 Wis. 2d 495, 725 N.W.2d 274, aff’d,
2008 WI 38, 308 Wis. 2d 684, 748 N.W.2d 154, is misplaced. Section 907.01 provides that a lay witness’
testimony in the form of opinions or inferences is limited to those opinions or
inferences that are rationally based on the perception of the witness. Nothing in Irene Osborn’s affidavit indicates
that her belief that a mutual agreement existed between Keith and Gordon was
based on actual perception, as opposed to an assumption derived simply from the
fact that Keith’s family used the disputed property. Unlike the affidavits discussed in Eichenseer,
297
[9] The
fact that Gordon Osborn’s family and the Van Der Vaart family may have
acquiesced in the Keith Osborn’s family’s use of the disputed property did not,
standing alone, mean that the use was with permission. See Widell v. Tollefson¸ 158
[10] The
Frenches rely on Pierz v. Gorski¸ 88 Wis. 2d 131, 276 N.W.2d 352 (
[11] Because
we uphold the trial court’s determination that the Frenches are equitably
estopped from demanding removal of the driveway or objecting to its use by the
Jacobs, we need not address the Frenches’ argument that the paving of the
driveway changed the nature of the claimed prescriptive use and impermissibly
increased the burden on their property. See
Sweet
v. Berge, 113