Kallas v. B & G Realty, 91-2016

• Citation: 169 Wis.2d 412,485 N.W.2d 278
• Decision Date: 12 May 1992
• Docket Number: No. 91-2016,91-2016
• Parties: Gerald KALLAS, Plaintiff-Appellant, v. B & G REALTY, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

Page 278

485 N.W.2d 278

169 Wis.2d 412

Gerald KALLAS, Plaintiff-Appellant, v. B & G REALTY, Defendant-Respondent.

No. 91-2016.

Court of Appeals of Wisconsin.

Submitted on Briefs April 7, 1992.

Opinion Released May 12, 1992.

Opinion Filed May 12, 1992.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Lynn Adelman of Adelman, Adelman & Murray, S.C. of Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the briefs of Stephen P. Juech and Charlene A. Wallace of Frisch Dudek, Ltd. of Milwaukee.

Before MOSER, P.J., and FINE and CANE, JJ.

FINE, Judge.

Gerald Kallas brought this action against the Secretary of the Wisconsin Department of Transportation and B & G Realty seeking an order that would permit him to maintain a sign that he erected on a piece of land for which he obtained a sign easement from the land's owner. Kallas also sought unspecified compensatory damage. The Secretary was dismissed from the case by stipulation. Kallas appeals from the trial court's grant of summary judgment dismissing his complaint against B & G Realty. We affirm.

I.

The facts are undisputed. Kallas owns an automobile dealership in Oak Creek, Wisconsin. B & G Realty owns a motel, also in Oak Creek. Both businesses are near, but do not abut, a nearby interstate highway, I-94. On July 7, 1987, Kallas and B & G Realty were granted sign easements for their respective businesses from the owner of land that did abut I-94, Rawson Enterprises, Inc. Each easement recited that it was for the benefit of the parties' businesses located on nearby real estate. The easements were, accordingly, "easements appurtenant" to the land occupied by those businesses, see RESTATEMENT OF PROPERTY § 453 (1944) ("An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land."), rather than "easements in gross," see RESTATEMENT OF PROPERTY § 454 ("An easement is in gross when it is not created to benefit or when it does not benefit the possessor of any tract of land in his use of it as such possessor."). The lands on which Kallas and B & G Realty operated their businesses are the "dominant tenements," see RESTATEMENT OF PROPERTY § 456 ("The term 'dominant tenement' denotes that the possessor of the land to which it is applied has, as appurtenant thereto, an easement over other land."); the Rawson Enterprises' property is the "servient tenement," see RESTATEMENT OF PROPERTY § 455 ("The term 'servient tenement' signifies that the possessor of the land to which it is applied is subject to an easement."). See also In Re Parcel of Land v. Darnell, 165 Wis.2d 235, 244, 477 N.W.2d 333, 338 (Ct.App.1991).

B & G Realty executed its easement agreement with Rawson Enterprises first, and Kallas executed its easement agreement with Rawson immediately thereafter. ¹ The easement between Kallas and Rawson Enterprises provided, inter alia, that:

[Rawson] shall not install or permit any other party to install other signs on the Premises. [Rawson] shall not install or permit any other party to install on [Kallas]'s easement any sign that might visually obstruct [Kallas]'s signs or serve to interfere with [Kallas]'s right to secure the necessary licenses and permits for the erection, operation and removal of its sign.

B & G Realty recorded its easement on July 13, 1987, and a permit for a B & G sign was obtained from the Department of Transportation on April 8, 1988. Kallas recorded his easement on July 22, 1987. Although he erected his sign on December 17, 1987, Kallas did not get a permit for it from the Department of Transportation. Under section 84.30(4)(c)(2), Stats., no sign on land abutting an interstate highway may be "less than 500 feet" from any other sign on land abutting the highway. B & G Realty's sign was erected in April of 1988, approximately 315 feet from Kallas' sign. On February 24, 1989, the Department of Transportation ordered Kallas to remove his sign. The order was affirmed by the Commissioner of Transportation on August 23, 1989. On May 17, 1989, B & G Realty purchased the land on which both signs were erected, "[s]ubject to covenants, restrictions, easements and special assessments of record."

Kallas' complaint against B & G Realty alleged in essence that B & G Realty, as successor to Rawson Enterprises, was obligated not to interfere with Kallas' right to maintain his sign. ² In dismissing the complaint, the trial court ruled that B & G's first recordation of its easement gave that easement priority under section 706.08(1)(a), Stats., and that since under section 84.30(4)(c)(2), Stats., the two easements were in irreconcilable conflict, "Kallas' easement was invalidated once B & G recorded its easement" on July 13, 1987. Alternatively, the trial court concluded that B & G Realty's easement did not merge into its estate when it purchased the property subject to the easements because of "considerations of equity and fairness."

II.

A party is entitled to summary judgment if there are no genuine issues of material fact that require a trial and the party "is entitled to a judgment as a matter of law." Section 802.08(2), Stats. The facts here are, as already noted, undisputed, and our review of a trial court's grant of summary judgment is de novo, see Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987).

As we have seen, B & G Realty obtained its easement on the Rawson Enterprises' property before Kallas obtained his easement. B & G Realty also recorded its easement first. Thus, B & G's easement, and its priority, was already of record when Kallas erected his sign in December of 1987. Section 706.08(1)(a), Stats., relied upon by the trial court, provides:

Every conveyance ... which is not recorded as provided by law shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof whose conveyance shall first be duly recorded.

Although not strictly applicable here because B & G Realty was not a "subsequent purchaser," section 706.08(1)(a) does reflect the law's determination that those who first record their interests in land have priority over those with competing interests. Since "[a]ll persons dealing with land are charged with knowledge of the contents of any instrument recorded at length," Rielly v. Arnsmeier, 220 Wis. 564, 570, 265 N.W. 713, 716 (1936), Kallas was on notice that if the two easements were inconsistent with one another, B & G's easement would have priority. Kallas was also on notice that the two easements were inconsistent with one another by virtue of section 84.30(4)(c)(2), Stats. See Rupert v. Home Mut. Ins. Co., 138 Wis.2d 1, 13, 405 N.W.2d 661, 665 (Ct.App.1987) (statutes provide constructive notice of their provisions). Kallas argues, however, that the easements were adjoining interests and not for "the same real estate or any portion thereof," sec. 706.08(1)(a). We disagree. The Rawson property was not only the servient tenement for both easements but the privileges granted by those easements could not both be exercised because of the 500-foot limitation created by section 84.30...