COURT OF APPEALS DECISION DATED AND RELEASED October 23, 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. 95-3169
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
UNITED STONE
CORPORATION,
Plaintiff-Respondent,
v.
COUNTY OF WAUKESHA,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
ROGER P. MURPHY, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. The County of Waukesha appeals from a judgment which
grants United Stone Corporation easements by necessity and prescription over
land owned by the County. We conclude
that a material issue of fact exists as to whether United Stone acquired its
property as a severance from a larger parcel with a common owner such that an
easement by necessity exists. We
reverse that part of the judgment granting an easement by necessity and affirm
that part of the judgment granting a prescriptive easement. We remand the action for further proceedings
to determine the claim for an easement by necessity.
United Stone commenced
this action for a prescriptive easement across county land to the east of
United Stone's land and across a recreational trail to the south and east of
the County's parcel. The County
acquired the property to the east of United Stone's land in 1988 pursuant to an
in rem tax delinquency proceeding under § 75.521, Stats. The
recreational trail is an abandoned railroad right-of-way purchased by the
County in 1978. United Stone acquired
its property in 1962 and has been crossing the properties which now belong to
the County since that time. To get to
its property, United Stone uses a private driveway by an easement granted from
the property owner. It crosses the recreational
trail at a location marked by stop signs for the users of the trail. United Stone then travels a gravel road which
traverses the County property for approximately 300 yards. United Stone maintains the road for access
to its property.
We review a summary
judgment under the same methodology as the trial court, and we are not bound by
the trial court's ruling. Garcia
v. Regent Ins. Co., 167 Wis.2d 287, 294, 481 N.W.2d 660, 663 (Ct. App.
1992). Summary judgment should be
granted where there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.
Id. Where complex
issues are presented to a court on summary judgment, they often cannot be
decided on the basis of affidavits and depositions. See Peters v. Holiday Inns, Inc., 89 Wis.2d
115, 129, 278 N.W.2d 208, 215 (1979).
An easement by necessity
arises when an owner of land severs a landlocked portion of the land by
conveying it to another. Ludke v.
Egan, 87 Wis.2d 221, 229-30, 274 N.W.2d 641, 645 (1979). A way of access is then implied over the
land retained by the grantor. Id.
at 230, 274 N.W.2d at 645. Common
ownership of the two parcels is a necessary precondition for the establishment
of an easement of necessity. Ruchti
v. Monroe, 83 Wis.2d 551, 556, 266 N.W.2d 309, 312 (1978). It is also necessary to establish that the
property is landlocked. Ludke,
87 Wis.2d at 230, 274 N.W.2d at 645.
Landlocked generally means that a piece of land is surrounded by land
belonging to other persons so that it cannot be reached by a public roadway. Id.
The County argues that
issues of fact exist as to both requirements.
We first consider whether a factual dispute exists as to whether United
Stone's land is landlocked. The County
contends that it is not because Vince Galbavy, a United Stone officer, admitted
in his deposition that there are two routes to the property. However, the County overlooks the fact that
the second route described by Galbavy also entails traveling over lands owned
by other people. Thus, the United Stone
parcel cannot be reached by public roadway without traveling over other
lands. There is no dispute that the
parcel is landlocked.[1]
We conclude, however,
that there is an issue of fact as to whether United Stone acquired the land by
a conveyance from a common owner of both lands which severed United Stone's
parcel from a larger parcel. The County
points to Galbavy's testimony that he purchased the land from Brian and Patrick
Cull. Yet the February 16, 1962 deed
was signed by Roderick Cull, Brian and Patrick's father. On March 3, 1961, the property was
mortgaged by Roderick, Brian, Patrick and Diane Cull. Further complicating the issue is Galbavy's testimony that the
land was purchased out of an estate divided into six portions and that Roderick
acted as an "administrator" for estate participants. He referred to the property next door as
being owned by the "Cull estate."
The tax foreclosure documents indicate that notice was given to nine
different Culls and do not reflect the actual owner of the property the County
acquired. Relying on the 1961 mortgage
document, United Stone asserts that its property was once part of a larger parcel
owned by Roderick. But it cannot be
ascertained from the description in the mortgage document whether the County's
parcel was within the boundaries described.
Thus, the summary
judgment record is inconclusive on whether United Stone acquired the property
under circumstances giving rise to an easement by necessity, and we reverse
that portion of the judgment. If there
are disputed issues of material fact, they should be decided by the fact finder
at trial. See Landreman v.
Martin, 191 Wis.2d 787, 801, 530 N.W.2d 62, 67 (Ct. App. 1995).
We turn to whether a
prescriptive easement over the recreational trail could be determined by
summary judgment. The parties agree
that because United Stone purchased its land in 1962, it must establish forty
years of use to establish a prescriptive interest over the recreational
trail. See § 330.10, Stats., 1961; Petropoulous v.
City of West Allis, 148 Wis.2d 762, 767, 436 N.W.2d 880, 882 (Ct. App.
1989) (prospective application of adverse possession statutes). The applicable years are 1954 to 1994.
The County argues that
the record fails to establish that the nature of the use of the railroad
right-of-way was adverse.
A use
which is permissive is subservient and not adverse. A use of an easement ... unexplained, is presumed to be adverse
and under a claim of right, unless contradicted or explained. However, the presumption may be rebutted by
proof that the use was under license, indulgence or special contract
inconsistent with a claim of right.
Ludke, 87
Wis.2d at 230-31, 274 N.W.2d at 646.
The County characterizes
Galbavy's testimony as supporting a conclusion, at best, that the railroad gave
permissive use of the crossing.
However, Galbavy's admission that the railway workers, with whom he was
close friends, knew people were using the crossing is not sufficient to rebut
the presumption of adversity.
"Hostile use is not an unfriendly intent and does not mean a
controversy or a manifestation of ill will." Shellow v. Hagen, 9 Wis.2d 506, 511, 101 N.W.2d
694, 697 (1960). Moreover, neither
friendship, close social relations or mere acquiescence rebut the
presumption. Id. at 514,
101 N.W.2d at 698.
The County also contends
that there is no evidence of use before United Stone's acquisition of the
property. On the contrary, the record
reflects that the crossing was used during the childhood of men born in 1929
and 1937. The County offered nothing to
contradict this evidence. Sufficient
adverse use was established to support the granting of the prescriptive easement.
Claiming that it was a
bona fide purchaser from the railroad without notice of the easement, the
County argues that it acquired the railroad right-of-way free and clear of the
easement. The County contends that the
prescriptive period started anew when, as a bona fide purchaser without notice,
it purchased the property. However, the
County acquired the railroad right-of-way by virtue of a quitclaim deed which
stated that title was subject to all existing easements, "whether or not
of record." The County acquired
the interest of the railway. That
interest was subject to the claim of a prescriptive easement.
Because we reverse the
judgment in part and remand for further proceedings on whether an easement by
necessity exists, we need not address the County's claim that under
§ 75.521(8), Stats., the in
rem tax delinquency proceeding extinguished any easement claim. If no easement exists, the application of
the statute need not be determined.[2]
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Although the ability to reach the land by permissive use over others' lands may be a factor in a proceeding to compel the laying of a highway under ch. 80, Stats., it has no bearing on the definition of landlocked for the purpose of determining an easement by necessity.
[2] We agree with the trial court that Leciejewski v. Sedlak, 116 Wis.2d 629, 637-40, 342 N.W.2d 734, 738-39 (1984), does not answer the question of the statute's applicability when property is landlocked and an easement by necessity exists. Leciejewski held that title acquired from the county following a tax foreclosure defeated a claim of ownership based on adverse possession. Leciejewski is confined to the facts of that case. It involved a claim to ownership of a portion of land acquired by another after a tax deed created "a new title that extinguishes all former titles and liens." Id. at 639, 342 N.W.2d at 739. It did not address potential easement claims which, by legal definition, are not equated with title or ownership rights.