COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 19, 1995 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
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This opinion is subject to
further editing. If published, the
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No. 95-1629
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
EDWARD HUMPEL,
MARGARET
HUMPEL, GARY SHILTS
and NANCY SHILTS,
Plaintiffs-Respondents,
v.
DONALD R. MEIDER and
CAROLYN F. MEIDER,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Chippewa County:
RODERICK A. CAMERON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Donald Meider and Carolyn Meider appeal a
judgment granting the holders of an easement on their lot an injunction
preventing the Meiders from placing a modular home on the lot. The easement states that the lot is to be
used only for the purpose of access to a lake abutting the south side of the
lot. The Meiders argue that the easement
is ambiguous and that we should construe it to allow them to place a home on
the lot. Because we conclude that the
easement unambiguously precludes placement of the home on the lot, we affirm
the judgment.
The Meiders purchased a
lot on Lake Wissota in 1993. The lot is
ninety-four feet along the lake shore, 111 feet on the east edge, 157 feet on
the west edge, and 100 feet along the north edge, which runs approximately
parallel to the lake. The proposed modular
home would be forty feet wide adjacent to the north edge and ten feet from the
west edge of the lot.
A recorded easement
provides that the lot is to be used for the sole purpose of lake access by the
owners of forty-one other lots. The
Meiders obtained a building permit to place a modular home on the lot. Some of the easement owners filed an action
seeking an injunction to prevent the Meiders from placing the home on the
lot. The circuit court issued a
memorandum decision and judgment concluding that the easement extends to the
entire lot and enjoined the Meiders from placing the home on the lot or any
other activity that interferes with the exercise of the easement by the
easement holders.
An easement is a
liberty, privilege or advantage in land that exists distinct from the ownership
of land. Stoesser v. Shore Drive
Partnership, 172 Wis.2d 660, 667, 494 N.W.2d 204, 207 (1993). In this case, a deed grants the
easement. We construe deeds to
ascertain the intent of the parties. Rikkers
v. Ryan, 76 Wis.2d 185, 188, 251 N.W.2d 25, 27 (1977).
In interpreting an
easement, we first examine its language to determine whether an ambiguity
exists. Id. If the agreement is susceptible to more than
one reasonable interpretation, it is ambiguous. Stauffacher v. Portside Props., Inc., 150 Wis.2d
242, 246, 441 N.W.2d 328, 330 (Ct. App. 1989).
Whether an ambiguity exists is a question of law that we review de
novo. See id. at
245, 441 N.W.2d at 330.
The easement in this
case provides in part:
1. That said premises are
hereby impressed with an easement for the purpose of providing ingress and
egress and access to Lake Wissota for bathing, swimming and boating, in favor
of the owners of lots in Lake Edge Park plat, and any additions thereto, and
for the members of the family and guests of said owners. That said premises shall be used for such
purposes only.
2. That all taxes and
assessment[s] levied on or against said premises by the town or any lawful
taxing authority, shall be paid by said lot owners, and future lot owners, in
proportion to the number of lots held by each.
3. That said premises shall be
kept clean, and orderly and in full compliance with the sanitary code and
orders of the State Board of Health and other state and town departments and
officers, by said lot owners.
4. That
said premises are for the use and mutual enjoyment of all lot owners including
future lot owners in any and all plats and additions of said Lake Edge Park,
Inc., their families and guests, and no one shall exclude, molest, hinder or
restrict such use or enjoyment by any means whatsoever.
The
easement later defines "said premises" with the legal description for
the entire lot that was purchased by the Meiders.
The Meiders argue one
could reasonably interpret this easement to allow them to place a house on the
lot. We disagree and conclude that the
easement is unambiguous. The easement
defines "said premises" as the entire lot, and paragraph one states
that "said premises" shall be used for the purpose of egress and
ingress only. We conclude that
the easement unambiguously precludes the Meiders from placing a modular home on
the lot.
Other parts of the
easement support this conclusion.
Paragraphs two and three place an unusual amount of responsibility for
the upkeep of the lot on the easement holders.
Also, paragraph four contains language indicating the entire premises is
for the use of the easement holders.
Our supreme court held
that the use of an easement must be confined to the terms and purposes of the
grant of easement. Stoesser,
172 Wis.2d at 668, 494 N.W.2d at 208.
The Meiders argue that the purpose of the easement in this case was to
allow lake access, so we should determine whether their modular home will
interfere with the easement holders' right to lake access. If it does not, the Meiders argue that their
home does not violate the easement holders' rights.
We reject the Meiders'
argument because it ignores the phrase in the easement that "said premises
will be used for such purposes only."[1] This phrase indicates that the drafters of
the easement concluded that any other use of the property would inhibit the
easement holders' right of lake access.
The proposed placement of the home violates the unambiguous terms of the
easement.[2]
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[1] The Meiders argue that the logical extension of focusing on this phrase would lead to a preposterous result. Specifically, the Meiders argue "they cannot plant a tree on the lot and they cannot stand on the lot because, by doing so, they would interfere with the subdivision lot owners' right to use the entire lot ...." We need not consider cases involving hypothetical or future rights. Pension Mgmt., Inc. v. DuRose, 58 Wis.2d 122, 128, 205 N.W.2d 553, 555-56 (1973). If the Meiders are suggesting that their hypothetical proposition is an invalid restriction, we note only that courts may question the validity of an easement on the grounds of public policy, but this measure is extreme and should only be exercised in cases free from doubt. See Whirlpool Corp. v. Ziebert, No. 93-3307, slip op. at 3 (Wis. Nov. 16, 1995).
[2] In their reply brief, the Meiders claim that the easement creates a perpetuity for the easement holders on the land. The Meiders cite Gray v. Stadler, 228 Wis. 596, 600, 280 N.W. 675, 677 (1938), for the proposition that perpetuities are not favored in the law, and an instrument will not be construed as creating a perpetuity unless the intention to do so is clear and plainly manifest. First, we need not address this issue because it was raised for the first time in the reply brief on appeal. Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980). Second, it appears that the easement drafters in this case clearly and plainly intended to create a perpetual easement.