274 N.W.2d 641 (Wis. 1979), 76-037, Ludke v. Egan

Docket Nº:76-037.
Citation:274 N.W.2d 641, 87 Wis.2d 221
Opinion Judge:The opinion of the court was delivered by: Hansen
Party Name:Frederick J. LUDKE, as Successor Personal Representative of the Estate of Catherine Ludke, Plaintiff-Respondent, v. Charles B. EGAN and Lorreen Egan, his wife, Defendants and Third-Party Plaintiffs-Appellants, The Bank of Kaukauna, a domestic corporation, Defendant and Third-Party Plaintiff, Urban Micke and Catherine Micke, his wife, Third-Party De
Attorney:For the appellants the cause was submitted on the brief of Esler & Esler of Kaukauna.
Case Date:January 30, 1979
Court:Supreme Court of Wisconsin
 
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Page 641

274 N.W.2d 641 (Wis. 1979)

87 Wis.2d 221

Frederick J. LUDKE, as Successor Personal Representative of

the Estate of Catherine Ludke, Plaintiff-Respondent,

v.

Charles B. EGAN and Lorreen Egan, his wife, Defendants and

Third-Party Plaintiffs-Appellants,

The Bank of Kaukauna, a domestic corporation, Defendant and

Third-Party Plaintiff,

Urban Micke and Catherine Micke, his wife, Third-Party

Defendants-Respondents,

Oscar J. Boldt Construction Company, a Wisconsin

corporation, Third-Party Defendant.

No. 76-037.

Supreme Court of Wisconsin.

January 30, 1979

Submitted on Briefs Jan. 9, 1979.

Page 642

[87 Wis.2d 223] Charles B. Egan and Lorreen Egan, his wife, defendants and third party plaintiffs-appellants, appeal from a judgment granting the Estate of Catherine Ludke, plaintiff-respondent, a prescriptive easement over the real estate owned by Egans. The judgment appealed from also dismissed the third-party complaint of Egans against Urban Micke and Catherine Micke, his wife, for damages resulting from the imposition of the easement.

Esler & Esler, Kaukauna, on brief, for defendants and third-party plaintiffs-appellants.

Bradford & Gabert, Appleton, attys., on brief, for plaintiff-respondent Frederick J. Ludke; Edgar E. Becker, Appleton, of counsel.

McCarty, Curry, Wydeven, Peeters & Riester, Kaukauna, on brief, for Urban and Catherine Micke.

HANSEN, Justice.

On March 20, 1974, the personal representative of the estate of Catherine Ludke brought an action against the appellants for a declaratory judgment seeking either an easement by necessity or by prescription over the appellants' land for the benefit of a landlocked parcel owned by the estate. The appellants brought a third-party action against the Mickes, third-party defendants and respondents, as grantors, for damages resulting if an easement were imposed.

A trial to the court was held May 7, 1975. The following facts were testified to at trial.

On November 30, 1920, William Micke sold a portion of his farm to Albert M. and Catherine Ludke. This parcel, referred to as the "brickyard," is on a point of land on the Fox River near Kaukauna. It was, at that time, completely[87 Wis.2d 224] surrounded by the Micke farm, but no right-of-way was granted in the deed.

In order for the Ludkes to gain access to the property he had sold them, William Micke permitted the Ludkes to use a roadway from the public highway across his farm and along the Fox River for a distance of 2,000 feet. It is the use of this roadway by Ludkes to gain access to their landlocked parcel of real estate that is the source of this litigation.

Page 643

The road was described as being 18 to 20 feet wide and Ludkes began using it in 1920. They maintained the road by filling ruts and potholes with cinders and gravel when needed and also placed some drainage pipes and added "drive-out" areas so cars could pass. There had always been a gate at the public highway end of the road which was kept closed to keep Micke's cattle in, but not locked prior to 1948.

William Micke deeded the remainder of his farm to his son, Urban, in 1944. On November 22, 1948, Urban sold a parcel of river front property to Charles, James and Wm. Egan. The entire 2,000 foot roadway used by the Ludkes to gain access to their property traversed the parcel of real estate sold to Egans. Ludkes had used the roadway to reach their property continuously since 1920, and without objection from Mickes. There was testimony from several members of the Ludke family, as well as from Urban Micke and another long-time area resident, that the road was the only way to reach the Ludke property.

Albert M. Ludke and his wife, Catherine, lived at the brickyard only during the summer, but family members testified that the property was used year-round for recreation and by occasional tenants. Edward and Ruth Egan Ludke lived at the brickyard for two years when they were first married. Ruth Ludke testified that even after they moved into Kaukauna her husband visited the property daily.

[87 Wis.2d 225] Several witnesses testified that finding another route to the property was impractical because of the rugged terrain surrounding the brickyard property.

Urban Micke testified that George Egan, the appellant's father, first approached him about buying the property. In December, 1947, the Egans deposited $25 on the agreed price of $1,900, and in February, 1948, Micke gave the Egans an option to purchase. That summer the Egans began to clear brush along the...

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