PUBLISHED OPINION
Case No.: 95-1803
†Petition for
review filed
Complete Title
of Case:
HOWARD R. MILLEN and
KATHRYN M. MILLEN,
Plaintiffs-Appellants,†
v.
JAMES THOMAS and
CHARLOTTE H. THOMAS,
Defendants-Respondents.
Submitted on Briefs: February 16, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: April 17, 1996
Opinion Filed: April
17, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: ROGER P. MURPHY
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred: Brown, J.
Dissented:
Appellant
ATTORNEYSOn behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of George W. Love of Love, Voss, Murray &
Goeschko of Waukesha.
Respondent
ATTORNEYSOn behalf of the defendants-respondents, the cause was
submitted on the brief of James Ward of Congdon, Ward & Walden,
S.C. of Waukesha.
COURT OF
APPEALS DECISION DATED AND
RELEASED April
17, 1996 |
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. 95-1803
STATE OF WISCONSIN IN
COURT OF APPEALS
HOWARD
R. MILLEN and
KATHRYN
M. MILLEN,
Plaintiffs-Appellants,
v.
JAMES
THOMAS and
CHARLOTTE
H. THOMAS,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Waukesha County: ROGER P. MURPHY, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
NETTESHEIM,
J. In this action to quiet title, the trial
court dismissed at summary judgment Howard R. and Kathryn M. Millen's action to
declare void an easement across their property which provides access to Beaver
Lake from property owned by Charlotte H. Thomas.[1] The trial court rejected the Millens' claim
that the merger of the legal description of the property with the easement
right with the legal description of other surrounding property owned by Thomas
improperly expanded the easement. The
court also ruled that the easement was not an illegal nonconforming use under
the Waukesha County Shoreland and Floodland Protection Ordinance. The court later denied the Millens' motion
for reconsideration. We conclude that the
trial court's grant of summary judgment to Thomas was proper and affirm.
The Law of Easements Generally
Before
presenting the facts, we recite some black letter easement law. An easement is an interest in land which is
in the possession of another. Kallas
v. B&G Realty, 169 Wis.2d 412, 419, 485 N.W.2d 278, 281 (Ct. App.
1992). 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. See Krepel v. Darnell,
165 Wis.2d 235, 244, 477 N.W.2d 333, 338 (Ct. App. 1991).
There
are a number of ways in which an easement may terminate. For example, an
easement is generally extinguished when the dominant and servient estate come
under the same ownership. See Kallas,
169 Wis.2d at 419-20, 485 N.W.2d at 281.
Also, an easement may be terminated by the completion or cessation of
the particular purpose for which it was granted. See Niedfeldt v. Evans, 272 Wis. 362, 364, 75
N.W.2d 307, 308 (1956). Similarly, a
right of way of necessity continues only so long as the necessity exists and
until another lawful way has been acquired.
Id. at 364-65, 75 N.W.2d at 308-09; Ludke v. Egan,
87 Wis.2d 221, 228, 274 N.W.2d 641, 645 (1979). However, the rule that such a right ceases when the necessity
ceases has no application to easements acquired by express grant. Niedfeldt, 272 Wis. at 365, 75
N.W.2d at 309. An easement granted by
express grant “cannot be defeated by showing that the owners have another
convenient and accessible way of going to and from their premises.” Id. (quoted source omitted).
Facts
The
facts of this case, although undisputed, present an involved series of land
transactions. Understanding these facts
is made more difficult because we are attempting through written words to
present a visual picture of the physcial juxtaposition of the various
parcels.
Claire
Krumme was the original owner of the two parcels which ultimately became the
dominant and servient estates: a
lakefront parcel on Beaver Lake, south of Beaver Lake Road, which became the
servient estate; and a one-half acre off-lake parcel, north of Beaver Lake
Road, which became the dominant estate.
At
this same time, Thomas owned three parcels:
a lake front parcel to the west of and abutting Krumme's lake front
parcel; and two off-lake parcels on the north side of Beaver Lake Road. One of these off-lake lots is a ten-acre
parcel which includes the Thomas residence; the other is an adjoining twelve-acre
vacant parcel to the east. These two
off-lake lots surround the Krumme off-lake lot on the north, east and west
sides, while Beaver Lake Road is the southern boundary of all the off-lake
lots.
On
August 24, 1979, the Millens purchased Krumme's lakefront lot but granted
Krumme a twelve-foot wide easement “for ingress and egress from Beaver Lake
Road to Beaver Lake” along the western boundary of the Millens' lot. The effect of this easement was to give Krumme
lake access from her remaining off-lake parcel on the north side of Beaver Lake
Road. Thus, the Millens' lakefront lot
became the servient estate and Krumme's off lake-lot became the dominant estate
under the law of easements.
The
Millens' grant of the easement also contained a provision that stated, “In the
event that the grantee, her heirs, successors and assigns are precluded from
using this easement by State or local law, said easement shall become null and
void.”
Following
this transaction, on August 28, 1979, the Waukesha County Shoreland and
Floodland Protection Ordinance was amended to prohibit “pyramiding” of lake
access. The ordinance defines
“pyramiding” as follows:
The
act of obtaining or providing access to public bodies of water across private
lots or lands in a manner which increases the number of families which have
access to that water to a degree greater than what would occur with individual
riparian owners having individual lots fronting on the water. The effect of pyramiding is to funnel
backlot development from offshore lots or residences via a narrow parcel of
land to provide access to the water.
Publicly owned access points shall not fall within this definition.
Waukesha County, Wis.,
Shoreland and Floodland Protection Ordinance § 2.02(54a).
In
November 1980, Krumme conveyed her remaining off-lake dominant estate to Thomas
together with the easement. As a result
of this transaction, Thomas now owns all of the off-lake property involved in
this case, plus her lakefront property which abuts the easement on the Millens'
lakefront property.
Thomas
later built a pier into Beaver Lake at the end of the easement, the event which
appears to have precipitated this litigation.
The Millens complained. The
matter was referred to the Waukesha County Corporation Counsel's office, which
originally opined that the easement was void under the Shoreline and Floodland
Protection Ordinance. However, when the
corporation counsel later learned that Thomas also owned the lakefront property
abutting the easement, it changed its opinion, concluding that the easement
“did not increase access to the lake and thus there was no pyramiding.”
Thereafter,
in December 1984, Thomas executed a quit-claim deed to herself by which she
merged the legal description of the off-lake dominant estate parcel which she
had purchased from Krumme with the surrounding off-lake property which she
already owned. This transaction did not
pertain to Thomas's lakefront lot.
In
October 1992, the Millens commenced this declaratory action to quiet title,
asking the trial court to declare the easement void. The Millens contended that the easement violated the
antipyramiding provisions of the Shoreland and Floodland Protection Ordinance. Later, the Millens amended their complaint
to further allege that the 1984 merger of the Thomas off-lake properties
constituted an illegal expansion of the original easement. Alternatively, the Millens alleged that the
failure of Krumme or Thomas to use the easement for more than twelve
consecutive months violated the nonconforming use provisions of the county
ordinance and § 59.97(10)(a), Stats.
Thomas
and the Millens both moved for summary judgment. On February 6, 1995, the trial court rendered a written decision
granting Thomas's motion. The court
concluded that the easement was not illegal pyramiding under the ordinance and
thus was not a nonconforming use of the property. The court also concluded that the easement had not been illegally
expanded by the merger of the legal descriptions. Later, the court denied Thomas's motion for reconsideration and
entered its final judgment on June 28, 1995.
The Millens appeal.
Discussion
Our
review of the trial court's grant of summary judgment is de novo. Kallas, 169 Wis.2d at 417, 485
N.W.2d at 280. Summary judgment is
appropriate when there are no genuine issues of material fact and one party is
entitled to judgment as a matter of law.
Section 802.08(2), Stats. When both parties move by cross-motions for
summary judgment, it is the equivalent of a stipulation of facts permitting the
trial court to decide the case on the legal issues.[2] Friendship Village, Inc. v. City of
Milwaukee, 181 Wis.2d 207, 219, 511 N.W.2d 345, 350 (Ct. App. 1993).
The
Millens first contend that Thomas's subsequent merger of the dominant estate
with the surrounding land she already owned illegally expanded the dominant
estate such that the continued use of the easement is precluded as a matter of
law.[3]
The
Millens rely on Reise v. Enos, 76 Wis. 634, 45 N.W. 414 (1890),
to support their argument that the easement should be extinguished because it
can “be used only for the benefit of the dominant estate for which [it] was
originally created.” The Millens quote
the following language from Reise in support:
[I]t
appears to be equally well settled in the law that where, by one and the same
deed, for one consideration, a man conveys a parcel out of a larger tract of
land, and grants a right of way to him and his heirs in his own land obviously
useful and necessary to the beneficial enjoyment of the land granted, the
grantee takes the right of way therein as appurtenant to the land granted only,
and has no right to use it as appurtenant to other land afterwards acquired. ¼
¼ And it is well
settled that, if a person has a right of way over the land of another to a
particular close, he cannot enlarge it or extend it to other closes.
Id. at 638-39, 45 N.W. at 415. The
Millens maintain that this language precludes Thomas from using the easement
because the merger of the properties illegally expanded or enlarged the
dominant estate.
While
the Reise language facially appears to support the Millens'
argument, a close examination of the facts of the case reveals otherwise. In that case, Cook originally owned lots 3
and 4 in the then Village of Waukesha. Id.
at 636, 45 N.W.2d at 414. Cook sold lot
3 to Reise and also granted Reise an easement over lot 4 to the west so that
Reise could have ingress and egress to Clinton Street. Id. Later, Reise acquired lot 2 to the east. Id. Subsequently, Reise sold the dominant estate, lot 3, retaining
ownership of lot 2 to the east and reserving the easement across lot 4. Id. Thus, the easement against lot 4 no longer abutted the remaining
property owned by Reise. Id.
at 636-37, 45 N.W.2d at 414.
Under
those facts, the supreme court held that the easement was no longer operative
because the easement on lot 4 was being used to benefit lot 2, land which was
not part of the original dominant estate and which was not appurtenant to the
easement. See id. at
638-39, 45 N.W. at 415. Rather, the
easement was appurtenant to lot 3, land which Reise no longer owned. As such, the court concluded that the
easement could not “be enjoyed separate and distinct from the lot to which it
belongs,” nor could Reise enlarge the right and subject the servient estate to
the added burden of lot 2. Id.
at 639, 45 N.W. at 415.
Here
the facts are different. The original
dominant estate, albeit now part of a larger parcel, still abuts the servient
estate owned by the Millens. We do not
read Reise to say that if additional property is added onto the
land which is appurtenant to the easement, the easement ceases to exist. Rather, Reise merely requires
the easement to be appurtenant to the dominant estate. That requirement is satisfied in this
case.
We
recognize that an easement for a specified purpose may not be enlarged such
that an added burden is placed upon the servient estate. See S.S. Kresge Co. v.
Winkelman Realty Co., 260 Wis. 372, 376-77, 50 N.W.2d 920, 921-22
(1952). However, that inquiry focuses
on the actual burden imposed on the servient estate. And the answer does not lie in the mere fact that the owner of
the dominant estate now owns other abutting lands.
We
next address the Millens' argument that the easement was a nonconforming
pyramiding use under the Waukesha County Shoreland and Floodland Protection
Ordinance which has lapsed because of discontinued use of the easement for
twelve consecutive months.[4] In addressing this claim, we will assume
arguendo that the original grant of the easement to Krumme by the Millens would
have been illegal pyramiding had the ordinance then been in effect.[5]
The
Millens rely on Gabe v. City of Cudahy, 52 Wis.2d 13, 187 N.W.2d
874 (1971). There, the plaintiffs
brought a declaratory action seeking a ruling that their operation of a
commercial sand and topsoil operation was a continuing valid nonconforming
use. Id. at 15-17, 187
N.W.2d at 875-76. In addressing whether
the plaintiffs had met their burden of proof to show a continuing valid
nonconforming use, the supreme court said:
It was
plaintiffs' burden to prove by the preponderance of the credible evidence that
in 1957 when the ordinance was passed, the farm was actually and actively being
used for the same purpose for which it now is being used, to wit, a commercial
sand and topsoil operation. Further,
the plaintiffs had to prove that such use was continuous from 1957 to the
present. Any twelve-month interval from
1957 to the present, during which the use ceased, would deprive them of their
right to resume the nonconforming use of the property.
Id. at 17, 187 N.W.2d at 876.
Relying
on this language, the Millens contend that Thomas, the party claiming the valid
nonconforming use, failed to meet her burden of proof. However, as with the prior issue, we
conclude that the Millens overextend the language of the decision on which they
rely in derogation of the facts. In Gabe,
the supreme court was not saying that a party claiming a nonconforming use has
the burden of proving the continued vitality of such use in every case. Rather, the supreme court was saying that
when the issue is the sufficiency of the evidence, a plaintiff claiming a
nonconforming use in a declaratory judgment action has the burden to prove
his or her claim. See id. This language recognizes nothing more than
the well-accepted legal principle that the plaintiff bears the burden to prove
his or her claim.
Were
the Millens' argument correct, the burden in this case would not have been on
the Millens, who commenced the action and sought the declaratory ruling
invalidating the easement, but rather on Thomas, who was hailed into court to
defend the action. This argument stands
conventional civil procedure and burden of proof principles on their
heads.
Here,
as we have noted, both parties moved for summary judgment. That procedure allowed the trial court, under
the undisputed facts of this case, to adjudicate the matter at the summary
judgment level. As the plaintiffs in
the action, the Millens carried the burden not only to show that Thomas held a
nonconforming use but also that such use had been discontinued for the
requisite period of time. The Millens'
summary judgment proofs on this question are silent. As such, the Millens failed to carry the burden as to this
allegation of their complaint, and Thomas was entitled to summary judgment on
this claim.
We
also agree with Thomas that the easement in its present form does not violate
the antipyramiding provision of the ordinance.
When Thomas merged the original dominant estate into her surrounding
lands, the effect under the existing facts was not to increase or
enlarge the use or nature of the easement.
The easement provides lake access to Thomas, who already has access to
the lake via her existing lakefront lot.
Thus, the easement does not “increase[] the number of families which
have access ¼ to a degree greater than what would occur with
individual riparian owners having individual lots fronting on the water.” Waukesha
County, Wis., Shoreland and Floodland Protection Ordinance §
2.02(54a). This, of course, was the
very reasoning of the Waukesha County Corporation Counsel when it determined
that Thomas's ownership and use of the easement did not constitute pyramiding.
We
conclude that the easement did not terminate by operation of law when Thomas
merged the legal description of the dominant estate with surrounding
property. We further conclude that the
Millens failed to prove that Thomas discontinued the use of any nonconforming
use. We also conclude that Thomas's
present ownership and use of the easement do not constitute a violation of the
easement.[6]
By
the Court.—Judgment affirmed.
No. 95-1803
BROWN,
J. (concurring). I write
separately on two issues. First, I
write about my understanding of the ramifications of dual motions for summary
judgment. Next, I question the
majority's treatment of the Millens' argument that this easement is a
nonconforming use.
We
face bilateral summary judgment motions.
The majority thus cites the rule that this is “the equivalent of a
stipulation of facts” which permits us (and the trial court) to move right to
the legal issues. Majority op. at
7-8.
Because
the parties did not dispute the facts in this case, the majority correctly
revealed the appropriate standard in this case. Nonetheless, I wish to emphasize that bilateral summary judgment
motions do not always imply that the parties are stipulating to the facts. See Stone v. Seeber, 155
Wis.2d 275, 278, 455 N.W.2d 627, 629 (Ct. App. 1990). A trial court, or this court, should not automatically conclude
that the parties have stipulated to all the facts when each has filed for
summary judgment. Of course, by moving
for summary judgment, each party implicitly attests to its theory of the
facts. Nonetheless, each party may
still contest the factual allegations revealed in the opposing party's
motion. See id. Therefore, before a trial court, or this
court, can safely conclude that no facts are in dispute in these circumstances,
the court must independently verify that no material issue of fact remains to
be resolved. See Grotelueschen v.
American Family Mut. Ins. Co., 171 Wis.2d 437, 462, 463 n.9, 492 N.W.2d
131, 140-41, 141 (1992) (Abrahamson, J., dissenting) (collecting cases). I do not share the opinion, advocated by
some, that Wisconsin case law allows trial by affidavit when both parties move
for summary judgment. That view
contradicts § 802.08, Stats.
I
suppose the law does not prohibit the parties from disagreeing as to the facts
but agreeing that the trial court may make findings of fact based upon
competing affidavits without benefit of a trial. Although I cannot conceive of a good lawyer ever wanting to do
such a thing, if the parties want the trial court to make factual findings
without the benefit of the trial court observing the demeanor of the witnesses,
that would be their choice. However,
the parties should explicitly state their choice as part of a stipulation made
in open court and approved by the court.
Under no circumstances, however, should a party be held to have waived a
trial where facts are in dispute simply because that party moves for summary
judgment and the opposing party has also so moved. Such a blanket rule makes absolutely no sense, in logic or in
law.
My
second concern lies with the answer to the Millens' claim that the easement was
a “nonconforming pyramiding use.”
Majority op. at 10-11. I agree
with the ultimate decision to reject this argument, but I would have followed a
shorter, straighter path to get there.
Instead
of running through the analysis of whether the Millens had met their burden of
showing that this nonconforming use had not been properly maintained, see majority
op. at 13, I would cut the Millens off with the primary question of whether an
easement can be a nonconforming use.
Since I believe that an easement can never be a nonconforming use as a
matter of law, I would have simply ended the analysis at that point.
In
their briefs, the Millens do address this issue. They contend that the county
ordinance's definition of an “accessory use” encompasses this type of
easement. Waukesha County, Wis., Shoreland
and Floodland Protection Ordinance, § 2.02(81). They specifically argue that this easement
is an “accessory use” because it is “subordinate to and customarily incident to
the permitted principal use of the property.” Id.
Their
analysis nonetheless presupposes that an easement is a “use” of land. This court, however, has defined an easement
as a “permanent interest in another's land.” Krepel v. Darnell, 165 Wis.2d 235, 244, 477 N.W.2d
333, 337 (Ct. App. 1991) (emphasis added).
I understand that this “interest” provides the owner with the “right to
a limited use of the land.” See Stoesser
v. Shore Drive Partnership, 172 Wis.2d 660, 667, 494 N.W.2d 204, 207
(1993). But what a person “uses” an
easement for does not provide an answer to what the legal definition of an
easement is.
Here,
Thomas presumably uses this easement to walk down to the pier that she has
installed on Beaver Lake. However,
showing that her use of the easement violates the county's rule against
pyramiding has no bearing on the analysis of whether what she is walking on is
a valid interest in land. Accordingly,
I would dismiss the Millens' attempt to apply those principles applicable to
nonconforming uses in the analysis of whether this easement is valid.
I
acknowledge that this distinction between a “use” of land and an “interest” in
land is subtle. Still, I believe that
it is supported by the case law and provides the cleanest and surest answer to
this dispute.
[1] Although both
James and Charlotte H. Thomas are named as parties in this action, the property
at issue is in Charlotte's name only.
[2] We share the
concern expressed by our colleague in the concurrence that this principle of
summary judgment law is so broadly stated that it may suggest that a trial
court is always free to grant summary judgment where both parties have moved
for that relief. Rather, we conclude
that the summary judgment methodology is the same whether one party, or
multiple parties, move for summary judgment.
That metholdology is well known—the court may grant summary judgment if
no material issue of fact is presented by the parties' respective evidentiary
facts.
[3] The Millens
acknowledge that the easement was not an easement in gross limited to Krumme's
use. They concede that the easement was
granted as an easement appurtenant to the original one-half acre parcel,
granted for the purpose of ingress and egress to Beaver Lake. See Kallas v. B&G Realty,
169 Wis.2d 412, 415, 485 N.W.2d 278, 279 (Ct. App. 1992).
[4] The concurrence
contends that we need not address this issue on the merits because an easement
is not subject to the law of nonconforming use. We understand this to mean that the Millens should have
challenged Thomas's use, not the easement itself—a distinction which the
concurrence admits is “subtle.”
Concurrence at 4. However,
Wisconsin case law has expressly recognized that, in an appropriate case, an
abuse of an easement use can result in a forfeiture of the easement, not merely
an injunction against the improper use.
See Vieth v. Dorsch, 274 Wis. 17, 19-20, 79 N.W.2d
96, 98 (1956).
[5] The ordinance
provides that nonconforming uses of land “shall conform to the use regulations
of the applicable district” when the nonconforming use is discontinued for a
period of twelve consecutive months during a three-year period. Waukesha
County, Wis., Shoreland and Floodland Protection Ordinance §
3.15(2)(B)3.
[6] We stress that
our ruling is based on the existing facts as revealed by the summary judgment
record. An easement for a specified
purpose may not be enlarged such that an added burden is placed upon the
servient estate. S.S. Kresge Co.
v. Winkelman Realty Co., 260 Wis. 372, 376-77, 50 N.W.2d 920, 921-22
(1952). If merger of the dominant
estate into a larger parcel should later prove to place an enlarged burden on
the servient estate, such may well warrant enjoining the use.