Ludke v. Egan

• Decision Date: 30 January 1979
• Docket Number: No. 76-037,76-037
• Citation: 87 Wis.2d 221,274 N.W.2d 641
• Parties: 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.
• Court: Wisconsin Supreme Court

Page 641

274 N.W.2d 641

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.

Submitted on Briefs Jan. 9, 1979.

Decided Jan. 30, 1979.

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 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.

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.

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 road. An altercation ensued when George Egan discovered Edward Ludke using the road. Following this incident Urban Micke approached the Egans about allowing the Ludkes to use the road. The parties could not reach an agreement and subsequently retained counsel. An agreement was finally executed on August 3, 1948, in which the Egans agreed to allow the Ludkes to use the road for the life of Catherine Ludke, the grandmother of the Egan brothers. There is nothing in the record to indicate the Ludkes had knowledge of this agreement. Urban testified he didn't think this agreement with the Egans would affect the right of Ludkes or the rights of their successors to use the roadway, but signed it because that was what the Egans wanted. This agreement and deed from Urban Micke to the Egans are both dated August 3, 1948, and the deed made no reference to the roadway. Urban also testified that the Ludkes had his father's permission to use the roadway.

Under the terms of the agreement between Urban Micke and the Egans, the gate at the highway end of the property was kept locked but the Egans provided the Ludkes with keys for the gate. In fact, the lock on the gate was changed over the years and the Ludkes had keys for it.

When Catherine Ludke died in 1973, the Egans gave notice that permission to use the road was terminated. During these 25 years, between 1948 and 1973, the Egans had built a tavern and placed a quonset hut for storage at the highway end of their property. They had improved the road by filling, grading and surfacing it. They presented bills and receipts for the improvements totalling over $6,000. The Egans testified that they had understood that upon Catherine Ludke's death, Micke would provide the Ludkes with a right-of-way over his property. This alleged agreement was not in writing and Micke denied making such a statement. Urban testified that there was no feasible alternate route and that he understood that the Ludkes' right to use the road could not be extinguished after such long use.

Although the Egans denied being aware of the easement, they each admitted they had known of the existence of the road and of the Ludkes' use, and admitted further that they had used it themselves as children when spending summers at the Ludke property. They said they knew that hunters and owners of boatyards along the shoreline also used the road. Micke testified he told the Egans of the Ludkes' right to use the road and that the Egans had refused to accept a deed or agreement which expressly referred to a right-of-way easement.

The Egans attempted to show that an alternative route lay across Mickes' land. They testified the road didn't end at the brickyard but continued north from it through a gravel pit area and connected with the Micke lane which led out to Highway 96. They said this lane was in the same condition as their road, with cinders and gravel in spots, and had been used for farm vehicles and gravel trucks, but could not recall seeing autos use it. James Egan testified he thought the lane was cut off by the gravel pit.

Micke testified he thought they must be referring to his cow lane which he used for tractors and livestock. This lane extended from his cowyard to the gravel pit and then into the woods on the Ludke property. Gravel trucks were able to use it when dry but that they also came in across the field. He didn't think a modern car could handle the lane. The lane ran only partway, was not direct and would be an impractical route because it was three times as long as the Egan road, the land to the north of the Ludke property was considerably higher and two ravines lay between Micke's farmyard and the Ludke property.

The trial court found that the road provided the only feasible access to the Ludke property and that the Ludkes' use had been open, notorious, adverse and continuous. However, in its findings the court said such use was against the Egans and had existed since 1948. In its decision, the adverse use by the Ludkes was held to have existed from 1920 to 1948. The court held that the plaintiffs had established a right-of-way by prescription. The court further held that the Egans' claim against the Ludkes for expenses incurred in improving the road was barred by the six-year statute of limitations for contracts, and this issue is not before us on appeal. The court found that the Egans had actual and constructive notice of the easement prior to purchasing the property and therefore did not have a claim for damages against the Mickes.

Judgment was entered declaring that an easement by prescription existed and dismissing the third-party complaint of Egans against Micke for damages in the event the trial court imposed an easement across their property.

The issues on appeal are:

1. Did the trial court err in dismissing the third-party complaint of appellants-Egans, for damages against the third-party defendants-respondents, Mickes?

2. Did the trial court err in granting Ludkes an easement by prescription rather than a way of necessity?

The Egans predicated their claim against the Mickes on a breach of the covenant against encumbrances in the warranty deed. It is undisputed that the warranty deed did not mention the easement.

Easements are generally considered to be encumbrances within the covenant against encumbrances. Taxman v. McMahan, 21 Wis.2d 215, 219, 124 N.W.2d 68 (1963). However, this court has recognized an exception to that rule where the easement is known to the purchaser before he enters into a contract of purchase,...