COURT OF APPEALS DECISION DATED AND RELEASED October 24, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3034
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
THE FALK CORPORATION,
a Delaware
corporation,
Plaintiff-Respondent,
v.
BASIL RYAN, d/b/a
VEHICLE TOWING
COMPANY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: MICHAEL J. SKWIERAWSKI, Judge. Affirmed and cause remanded with
directions.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Basil Ryan, d/b/a Vehicle Towing Company, appeals from a
judgment declaring rights in an easement across his property. The easement provided ingress and egress to
property owned by the Falk Corporation.
Ryan contends that the trial court expanded Falk's limited easement
rights by allowing Falk to block the easement.
He also challenges the trial court's prohibition on the installation of
any gates or additional fencing along the roadway and the trial court's order
that maintenance costs, except for snow removal, be shared equally. Additionally, Ryan contends that the trial
court erroneously limited his use of the easement. Finally, Ryan contends that Falk is not a prevailing party
entitled to costs in the action. We
reject Ryan's claims and affirm the judgment.
For reasons explained in the opinion, however, we remand the case to the
trial court for entry of a nunc pro tunc order correcting the judgment.
NATURE OF EASEMENT FOR INGRESS AND EGRESS
A non-exclusive easement
for ingress and egress creates a permanent right to use the land of another to
obtain access to the benefitted land; i.e., a right of passage over another's
land. See Hunter v.
McDonald, 78 Wis.2d 338, 344, 254 N.W.2d 282, 285 (1977). The land subject to the easement is the
servient estate, and the land benefited by the easement is the dominant
estate. New Dells Lumber Co. v.
Chicago, St. P., M. & O. Ry., 226 Wis. 614, 619, 276 N.W. 632, 634,
277 N.W. 673 (1937). The owner of the
dominant estate has the right to enjoy the easement fully and without
obstruction of the use for which it was created. Hunter, 78 Wis.2d at 343, 254 N.W.2d at 285. The possessor of the servient estate may not
interfere with, and is obligated to protect, this right. Id. The possessor, however, retains the right to make any use of the
burdened property, including changing its use, provided that the use does not
interfere with the easement. Wisconsin
Telephone Co. v. Reynolds, 2 Wis.2d 649, 652, 87 N.W.2d 285, 287
(1958).
Likewise, the easement
holder is entitled to adopt technological changes or modify facilities to allow
full and reasonable use of the easement.
Scheeler v. Dewerd, 256 Wis. 428, 432, 41 N.W.2d 635, 637
(1950). The easement holder's rights
are not unlimited, however. The use of
the easement is strictly confined to the purpose for which it was created, and
the easement holder may not materially increase the burden on the servient
estate or impose a new or additional burden.
See Widell v. Tollefson, 158 Wis.2d 674, 687, 462 N.W.2d
910, 914 (Ct. App. 1990).
An easement for ingress
and egress is intended for passage. Crew's
Die Casting Corp. v. Davidow, 120 N.W.2d 238, 241 (Mich. 1963). If not specifically restricted, ingress and
egress includes the reasonable opportunity to stop vehicles to load or unload
passengers or personal property. Tehan
v. Security Nat'l Bank, 163 N.E.2d 646, 653 (Mass. 1959); Keeler
v. Haky, 325 P.2d 648, 650 (Cal. Ct. App. 1958). Unless the easement is exclusive, the
easement owner may not unreasonably block the passageway and interrupt the
movement of traffic. Sampson v.
Grooms, 748 P.2d 960, 963-64 (1988).
The question of whether
the owner of the easement or the possessor of the servient estate is
unreasonably interfering with the other's right involves determinations of both
fact and law. Figliuzzi v. Carcajou
Shooting Club, 184 Wis.2d 572, 588, 516 N.W.2d 410, 417 (1994). When reviewing the trial court's findings of
fact, this court will not set them aside unless they are clearly
erroneous. Id. at 589,
516 N.W.2d at 417. The conclusion of
whether the facts constitute an unreasonable interference is a legal
determination, which this court reviews de novo while giving weight to
the trial court's conclusion. Id.
at 590, 516 N.W.2d at 417 (appellate court gives weight to trial court's
conclusion on reasonableness when conclusion is intertwined with factual
findings).
FACTS
Falk owns land that
abuts Ryan's land on the north. In 1966
when Falk acquired its land, it also obtained a “non-exclusive right of way to
be used as a private roadway, for ingress and egress” to its property. The private roadway is thirty feet wide and
runs across the northern edge of Ryan's land.
The east end of the roadway apparently intersects another private
road. The west end intersects North
Twelfth Street. The Valley Business Center
is located between North Twelfth Street and Falk's property.
Falk uses its property
for a warehouse, a research and development lab, and a parking lot. The warehouse and lab are not set back from
the north line of the easement. The buildings
have a loading dock, which is accessed via the private roadway.
Ryan's property,
primarily unimproved land, is used for several purposes, including a storage
lot for his vehicle towing business. A
fence, which encircles his land, runs along the south line of the
easement. Ryan acquired his property in
1987.
In an earlier case, Falk
sued for an injunction to prevent Ryan from interfering with Falk's free and
unrestricted use of the private roadway.
Pursuant to the parties' settlement agreement, the trial court entered
an order substantially granting Falk the relief it sought. The settlement also clarified the
responsibility for snow removal.
Falk filed the present
action to enforce the earlier settlement.
Ryan counterclaimed for a declaration of the respective rights and
obligations of the parties regarding the easement. In connection with the latter, Ryan alleged that Falk parked
excessively long trucks at the loading dock for periods up to ninety minutes. He alleged that the vehicles blocked half of
the private roadway and hindered traffic while they were loaded and
unloaded. Additionally, Ryan sought the
right to install gates at each end of the roadway in order to better secure his
property. Ryan also alleged that Falk
had failed to maintain the roadway.
TRIAL COURT'S DECISION
In its bench decision,
the trial court noted that generally the facts were not in dispute and that the
uses to which both properties were being put inevitably involve some
impediments. The court commented that “[i]f
you sat out there long enough, you could get pictures of obstruction and
blockages, temporary obstruction and blockages by both sides, by both parties,
of various portions of the roadway.
There isn't any question in my mind but that could happen and that it
has happened from time to time during the past seven years [that Ryan owned his
property].”
Addressing Falk's use of
trucks that blocked part of the roadway, the court stated that it was
completely unreasonable to require Falk to first download the contents to
smaller trucks at another location. The
court stated that blocking the roadway while loading or unloading the trucks
for up to an hour was not unreasonable.
Addressing Ryan's
request for permission to place gates at each end of the roadway, the court
concluded that the installation of gates or a fence anywhere along the roadway
would have only negligible utility.
They would not achieve Ryan's goal of securing the perimeter of his
land, which was already surrounded by an eight-foot high fence with barbed
wire. Trespassers could enter the
roadway from Falk's parking lot. Any
benefit to Ryan was outweighed by the inconvenience to Falk. Gates would interfere with Falk's use of the
easement, especially after hours.
The
court also addressed Ryan's use of part of the roadway for parking. Ryan parked employees' vehicles and other
vehicles along the northern edge of the roadway adjacent to the Valley Business
Center. Although the parking restricted
the easement to less than thirty feet, the court did not prohibit it. Rather, the court limited the parking to
temporary parking, i.e., limited to ordinary business hours during a single
day. The court also prohibited parking
within a specified distance of the west end of the roadway in order to provide
more clearance for large trucks turning onto the roadway from North Twelfth
Street.
On the issue of
maintenance, the court found that both companies used the roadway almost daily,
but that it could not determine the exact proportions of each party's actual
usage. Therefore, the court ordered
that the maintenance costs should be split equally, with snow removal governed
by the earlier stipulation.
FALK'S RIGHT TO OBSTRUCT ROADWAY
As previously noted, the
Falk buildings are built on the property line.
A loading dock is recessed into the building approximately forty
feet. Falk regularly used
tractor-trailers measuring approximately fifty-five feet in length. Falk's dispatcher testified that Falk's long
tractor-trailers averaged two trips to the warehouse per day, Monday through
Friday. Ryan also testified that some
of Falk's vendors used similar length tractor-trailers. When parked in the loading dock, these long
tractor-trailers block approximately half the roadway. Ryan sought to have the long
tractor-trailers barred from the roadway because they interfered with his use
of the roadway. He testified that his
towing business frequently towed vehicles that required more than fifteen feet
for clearance. If a long
tractor-trailer was parked in the loading dock, drivers towing wider vehicles
were forced to wait until the tractor-trailer left the loading dock.
The trial court's
decision balanced the parties' competing interests in the use of the
easement. The court concluded that
obstruction of half the roadway for periods of up to one hour was not
unreasonable compared to the alternative of requiring Falk to transfer supplies
to smaller vehicles at another location.
Implicit in the court's decision is a finding that Falk did not
frequently obstruct Ryan's actual use of the roadway. The court indicated it believed obstructions had occurred from
“time to time.” Because an owner of an
easement for ingress and egress has a reasonable opportunity to stop vehicles
on the easement to load or unload personal property, the trial court's ruling
on this issue did not grant Falk additional rights in the easement.
The written findings of
fact and conclusions of law, which incorporated the trial court's findings from
the bench decision, did not include the time limitation for parking long trucks
in the loading dock. A time limit is an
essential component of the trial court's determination that the limited
obstruction of the roadway was temporary and not unreasonable. Therefore, we remand the case to the trial
court to enter an order nunc pro tunc correcting the judgment to add the
limitation. See Gibson v. Madison
Bank & Trust Co., 7 Wis.2d 506, 515, 96 N.W.2d 859, 864 (1959)
(trial court retains power to add omitted portion of the judgment to make it
conform to what court actually adjudged).
RYAN'S PROPOSAL TO INSTALL GATES
Prior to the initiation
of this litigation, Ryan sought Falk's approval for the installation of gates
across the east and west ends of the private roadway. Ryan claims that the fence surrounding his lot is insufficient to
keep trespassers and vandals off his property and that the installation of
gates would enhance security.
The
existence of an easement for ingress and egress does not per se preclude
the possessor of the servient estate from installing gates across the
easement. Dyer v. Walker,
99 Wis. 404, 408, 75 N.W. 79, 80 (1898).
The right of way may be enclosed if gates are necessary to the full
enjoyment of the servient estate and if they will not unreasonably interfere
with the use of the easement. See id. The determination of whether Ryan can
install gates or fences anywhere along the private roadway requires a balancing
of the interests of the parties.
Here, the trial court
determined that gates would only negligibly enhance security. Trespassers and vandals could still enter
the roadway after crossing Falk's parking lot from the north. Ryan's property, excluding the easement, was
already surrounded by a security fence.
Those determined enough to breach the fence would hardly be deterred by
the installation of gates.
The potential
inconvenience to Falk if gates were installed was limited. Falk's witness testified that it considered
the east exit of the roadway to be only an emergency route that would be
blocked by a locked gate. The proposed
west gate would be open during Falk's normal business hours, but drivers making
occasional deliveries at other hours would have the inconvenience of having to
unlock and re-lock the gate. The trial
court correctly concluded that while the inconvenience may be limited, it
outweighed the de minimus, if any, value of the proposed gates.
Ryan also contends that
the trial court's prohibition was overly broad because it not only prohibited
the proposed gates, it also prohibited any gates or fencing along the northern
edge of the roadway. Photographs of the
roadway suggest that the only other open access to the roadway was from Falk's
parking lot. Installing any fencing or
gates between the parking lot and Falk's easement would improperly interfere
with Falk's access to and use of the easement.
SHARING OF MAINTENANCE COSTS
The parties had
previously agreed on the responsibility for snow removal. Other maintenance obligations regarding the
roadway had not been addressed and were presented to the court for
determination. The trial court found
that both parties used the roadway, but that it could not determine the exact
percentages of use. The Court ordered
an equal sharing of maintenance and repair expenses, other than snow
removal. Ryan contends that this
division is contrary to Wisconsin law.
Generally, the owner of
an easement is responsible for making repairs to the easement and may enter the
property at any time for that purpose. Koch
v. Hustis, 113 Wis. 599, 604, 87 N.W. 834, 835‑36 (1901). The easement owner's responsibility
regarding repairs has been characterized as a “duty to make such repairs
as are necessary to permit the servient owner to have reasonable use of his
tenement, and to have the privilege of making such repairs as are necessary to
effectuate the purposes for which the easement was created.” 3 R.
Powell & P. Rohan, Powell on Real Property § 34.12[2], at
34-192-34-193 (1994) (footnotes omitted).
See also Restatement of
Property § 485 cmt. b & c (1944). The owner of the servient estate has no
obligation to repair the easement unless he or she has agreed to do so. Koch, 113 Wis. at 604, 87 N.W.
at 836.
This general rule was
applied in Shanak v. City of Waupaca, 185 Wis.2d 568, 518 N.W.2d
310 (Ct. App. 1994). The City of
Waupaca, which had a public roadway across a stone arch, was required to pay
for repairs to the arch. Id.
at 585, 518 N.W.2d at 316. The arch
bridged a mill pond and was used by the owner of the servient estate to support
a dam. Id. at 577, 518
N.W.2d at 312‑13. The court
concluded that the arch was necessary to the City's easement and that, absent
an agreement to the contrary, the City had a duty to repair the arch. Id. at 584, 518 N.W.2d at
315-16. Without addressing the use the
landowner made of the arch, the court concluded that the easement holder's duty
to repair improvements to the easement allowed the landowner to recover the
cost of the repairs from the City. Id.
at 585‑86, 518 N.W.2d at 316.
The duty of the easement
owner to maintain and repair the easement, even when the easement is used for
the benefit of the servient estate, is not unlimited, however. The general principal assumes that the
servient estate's use of the easement does not increase the burden of
maintenance. Sellers v. Powell,
815 P.2d 448, 449 (Idaho 1991). Where
as here, the easement is used equally for the benefit of both estates, equity
allows the cost of maintenance of a right of way to be apportioned between the
owners of the two estates. Bina
v. Bina, 239 N.W. 68, 71 (Iowa 1931).
RYAN'S USE OF EASEMENT FOR PARKING
Ryan testified that he
and his employees parked on the roadway along the Valley Business Center. Falk objected to this because it interfered
with delivery trucks turning onto the easement from North Twelfth Street. The trial court did not prohibit Ryan from
using part of the roadway for parking; however, it limited the parking to
normal business hours. The trial court
also prohibited parking within a specified distance of the west end of the
easement, and Ryan does not challenge this part of the judgment.
Ryan challenges the time
limitation, asserting that there was no testimony to support the limitation and
that he needs the area for parking twenty-four hours a day because of the
towing operations. We have reviewed the
testimony Ryan references regarding his need to use the property for
parking. Essentially, we understand the
testimony to be that Ryan's usage of the roadway for parking varied depending
upon the size of his office staff. He
has not directed this court's attention to any testimony supporting a need for
twenty-four hour parking. Absent such
testimony, we cannot conclude that the trial court erred in giving Ryan what he
appears to have asked for, i.e., the right to primarily use the roadway for
temporary parking for employees.
AWARD OF COSTS TO FALK
Finally, Ryan contends
that the trial court erred in awarding Falk costs under § 814.01, Stats. (costs to plaintiff), because
the trial court dismissed Falk's claims for contempt and injunctive
relief. We note that the trial court
did not indicate the statute upon which it relied to awards costs. Therefore, we view the issue as whether Falk
may recover costs under any statute.
By counterclaim, Ryan
sought a declaration of rights in the easement. On all issues except Ryan's use of part of the roadway for
parking, the trial court declared the rights as requested by Falk and rejected
Ryan's claims. Costs are awarded to a
“successful” party. See DeGroff
v. Schmude, 71 Wis.2d 554, 568, 238 N.W.2d 730, 737 (1976). The final judgment declared the rights in the
easement in Falk's favor, and it was the successful party. See §§ 814.035(1), Stats. (costs allowed on counterclaims
as if separate action brought) and 814.03(3), Stats.
(defendant allowed costs if plaintiff not entitled to recover).
By the Court.—Judgment
affirmed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.