COURT OF APPEALS DECISION DATED AND RELEASED MARCH 19, 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. 95-2287
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
MICHAEL H. BAARTS
and LENNETTA F.
BAARTS,
Plaintiffs-Respondents,
v.
BARBARA HAMMERBERG,
Defendant-Appellant,
PATRICIA MCCOY,
Individually,
and d/b/a CENTURY 21
OLYMPIA REALTY,
Defendant-Respondent,
JANIE B. CROKER,
Defendant.
APPEAL from a judgment
of the circuit court for Outagamie County:
JOSEPH M. TROY, Judge. Modified
and, as modified, affirmed and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Barbara Hammerberg appeals a summary judgment
declaring that Michael and Lennetta Baarts, their successors and assigns, have
an easement for ingress and egress across property now owned by
Hammerberg. The trial court concluded
that documents involved in the property transaction were ambiguous and that, in
light of the parties' circumstances at the time of the transaction, no
reasonable jury could find that the Baartses' predecessors in title intended to
give away the only driveway that provided access to their house. In the alternative, the court concluded that
the Baartses were entitled to an easement by necessity. Because we conclude that the record
establishes an easement by implication, we modify the judgment to reflect that
conclusion and remand the cause for the trial court to create a new judgment
consistent with this opinion.
The Baartses'
predecessors in title were Hammerberg's mother-in-law and father-in-law. Their house is located on the top of a
twenty-foot cliff or ledge. In 1969,
Barbara and Barry Hammerberg and Barbara's in-laws constructed a shared,
winding driveway that traversed the ledge on the in-laws' 4.44 acre lot. In 1986, Barbara and Barry divorced and
Barbara was awarded the property interests involved in this dispute. In 1988, Hammerberg and her former in-laws
exchanged deeds pursuant to a sales agreement substantially reconfiguring the
lot lines. In addition to selling
Hammerberg their half interest in property surrounding the lots, the former
in-laws reduced the size of their lot to three acres and redrew the boundaries
on three sides. As a result of the
sale, the part of the driveway that traverses the ledge was deeded to
Hammerberg. Hammerberg contends that
her former in-laws sold their right to use the driveway, the only existing
means of access to their residence.
Although this matter was
argued to the trial court and on appeal as a case involving alleged ambiguity
in the deeds or the existence of an easement of necessity, we conclude that the
correct theory of law to be applied is that of easement of implication. Although an easement by implication and an
easement of necessity are similar, they are legally distinguishable. An easement of necessity arises where the
owner severs a land-locked portion of his property by conveying a parcel to
another. It exists only where one
cannot reach the highway over his own property. See Backhausen v. Mayer, 204 Wis. 286, 288,
234 N.W. 904, 905 (1931). An easement
by implication, on the other hand, arises where there has been a separation of
title, a use before separation took place that continued so long and was so
obvious or manifest as to show that it was meant to be permanent, and it must
appear that the easement is necessary to the beneficial enjoyment of the land
granted or retained. See Bullis
v. Schmidt, 5 Wis.2d 457, 460-61, 93 N.W.2d 476, 478 (1958). Under these circumstances, the law implies
an easement based on the assumed intention of the parties at the time the
property was severed, even though they did not express their intentions. 1 Thompson,
Real Property § 390 at 630 (perm ed.).
Here, because the
closely related issue of easement by necessity arose in the trial court, the
parties have provided this court with all of the information necessary to
determine that an easement by implication exists. The property transaction involved both parties deeding property
to the other and reconfiguring their boundaries. The undisputed evidence shows that the only access to the former
in-laws' property was by the driveway that existed for nineteen years, and it
was obvious that the driveway was meant to be permanent. At the time of the sale, Hammerberg's former
in-laws were elderly, her ex-mother-in-law confined to a wheelchair. Because there was no other means of
traversing the twenty-foot ledge, use of the driveway was necessary to the
beneficial enjoyment of that lot. Under
these circumstances, in the absence of a specific statement disclaiming any desire
to retain the driveway easement, the law will imply that the parties intended
that the former in-laws would retain an easement over the driveway.
In Bullis,
the court concluded that sufficient necessity was not shown where the
expenditure of $490 in 1958 could have remedied the problem. Here, the estimated cost of creating a new
driveway to traverse the ledge is $12,000 to $42,000, the lower figure relying
on free fill that Hammerberg offered.[1] We conclude that the expense of creating a
new driveway is sufficient to establish that using the existing driveway was
necessary to the beneficial enjoyment of the land even if the lower figure is
used. On remand, the trial court shall
enter an amended judgment awarding the Baartses an easement by implication over
the driveway.
By the Court.—Judgment
modified and, as modified, affirmed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.