485 N.W.2d 278 (Wis.App. 1992), 91-2016, Kallas v. B & G Realty

Docket Nº:91-2016.
Citation:485 N.W.2d 278, 169 Wis.2d 412
Opinion Judge:The opinion of the court was delivered by: Fine
Party Name:Gerald KALLAS, Plaintiff-Appellant, v. B & G REALTY, Defendant-Respondent.
Attorney:On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Lynn Adelman of Adelman, Adelman & Murray, S.c. of Milwaukee.
Case Date:May 12, 1992
Court:Court of Appeals of Wisconsin
 
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Page 278

485 N.W.2d 278 (Wis.App. 1992)

169 Wis.2d 412

Gerald KALLAS, Plaintiff-Appellant,

v.

B & G REALTY, Defendant-Respondent.

No. 91-2016.

Court of Appeals of Wisconsin.

May 12, 1992

Submitted on Briefs April 7, 1992.

Opinion Released May 12, 1992.

Page 279

[169 Wis.2d 414] 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 [169 Wis.2d 415] 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

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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 [169 Wis.2d 416] 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...

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