550 N.W.2d 134 (Wis.App. 1996), 95-1803, Millen v. Thomas

Docket Nº:95-1803.
Citation:550 N.W.2d 134, 201 Wis.2d 675
Opinion Judge:The opinion of the court was delivered by: Nettesheim
Party Name:Howard R. MILLEN and Kathryn M. Millen, Plaintiffs-Appellants, [d] v. James THOMAS and Charlotte H. Thomas, Defendants-Respondents.
Attorney:On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of George W. Love of Love, Voss, Murray & Goeschko of Waukesha.
Case Date:April 17, 1996
Court:Court of Appeals of Wisconsin
 
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550 N.W.2d 134 (Wis.App. 1996)

201 Wis.2d 675

Howard R. MILLEN and Kathryn M. Millen,

Plaintiffs-Appellants, d

v.

James THOMAS and Charlotte H. Thomas, Defendants-Respondents.

No. 95-1803.

Court of Appeals of Wisconsin.

April 17, 1996

Submitted on Briefs Feb. 16, 1996.

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[201 Wis.2d 677] On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of George W. Love of Love, Voss, Murray & Goeschko of Waukesha.

On behalf of the defendants-respondents, the cause was submitted on the brief of James Ward of Congdon, Ward & Walden, S.C. of Waukesha.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

[201 Wis.2d 678] NETTESHEIM, Judge.

In this action to quiet title, the trial court dismissed at summary judgment Howard R. and Kathryn M. Millen's action to declare void an easement across their property which provides access to Beaver Lake from property owned by Charlotte H. Thomas. 1 The trial court rejected the Millens' claim that the merger of the legal description of the property with the easement right with the legal description of other surrounding property owned by Thomas improperly expanded the easement. The court also ruled that the easement was not an illegal nonconforming use under the Waukesha County Shoreland and Floodland Protection Ordinance. The court later denied the Millens' motion for reconsideration. We conclude that the trial court's grant of summary judgment to Thomas was proper and affirm.

THE LAW OF EASEMENTS GENERALLY

Before presenting the facts, we recite some black letter easement law. An easement is an interest in land which is in the possession of another. Kallas v. B & G Realty, 169 Wis.2d 412, 419, 485 N.W.2d 278, 281 (Ct.App.1992). An easement creates two distinct property interests: the dominant estate, which enjoys the privileges granted by an easement; and the servient estate, which permits the exercise of those privileges. See Krepel v. Darnell, 165 Wis.2d 235, 244, 477 N.W.2d 333, 338 (Ct.App.1991).

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[201 Wis.2d 679] There are a number of ways in which an easement may terminate. For example, an easement is generally extinguished when the dominant and servient estate come under the same ownership. See Kallas, 169 Wis.2d at 419-20, 485 N.W.2d at 281. Also, an easement may be terminated by the completion or cessation of the particular purpose for which it was granted. See Niedfeldt v. Evans, 272 Wis. 362, 364, 75 N.W.2d 307, 308 (1956). Similarly, a right of way of necessity continues only so long as the necessity exists and until another lawful way has been acquired. Id. at 364-65, 75 N.W.2d at 308-09; Ludke v. Egan, 87 Wis.2d 221, 228, 274 N.W.2d 641, 645 (1979). However, the rule that such a right ceases when the necessity ceases has no application to easements acquired by express grant. Niedfeldt, 272 Wis. at 365, 75 N.W.2d at 309. An easement granted by express grant "cannot be defeated by showing that the owners have another convenient and accessible way of going to and from their premises." Id. (quoted source omitted).

FACTS

The facts of this case, although undisputed, present an involved series of land transactions. Understanding these facts is made more difficult because we are attempting through written words to present a visual picture of the physical juxtaposition of the various parcels.

Claire Krumme was the original owner of the two parcels which ultimately became the dominant and servient estates: a lakefront parcel on Beaver Lake, south of Beaver Lake Road, which became the servient estate; and a one-half acre off-lake parcel, north of Beaver Lake Road, which became the dominant estate.

[201 Wis.2d 680] At this same time, Thomas owned three parcels: a lake front parcel to the west of and abutting Krumme's lake front parcel; and two off-lake parcels on the north side of Beaver Lake Road. One of these off-lake lots is a ten-acre parcel which includes the Thomas residence; the other is an adjoining twelve-acre vacant parcel to the east. These two off-lake lots surround the Krumme off-lake lot on the north, east and west sides, while Beaver Lake Road is the southern boundary of all the off-lake lots.

On August 24, 1979, the Millens purchased Krumme's lakefront lot but granted Krumme a twelve-foot wide easement "for ingress and egress from Beaver Lake Road to Beaver Lake" along the western boundary of the Millens' lot. The effect of this easement was to give Krumme lake access from her remaining off-lake parcel on the north side of Beaver Lake Road. Thus, the Millens' lakefront lot became the servient estate and Krumme's off-lake lot became the dominant estate under the law of easements.

The Millens' grant of the easement also contained a provision that stated, "In the event that the grantee, her heirs, successors and assigns are precluded from using this easement by State or local law, said easement shall become null and void."

Following this transaction, on August 28, 1979, the Waukesha County Shoreland and Floodland Protection Ordinance was amended to prohibit "pyramiding" of lake access. The ordinance defines "pyramiding" as follows:

The act of obtaining or providing access to public bodies of water across private lots or lands in a manner which increases the number of families which have access to that water to a degree greater [201 Wis.2d 681] than what would occur with individual riparian owners having individual lots fronting on the water. The effect of pyramiding is to funnel backlot development from offshore lots or residences via a narrow parcel of land to provide access to the water. Publicly owned access points shall not fall within this definition.

WAUKESHA COUNTY, WIS., SHORELAND AND FLOODLAND PROTECTION ORDINANCE § 2.02(54a).

In November 1980, Krumme conveyed her remaining off-lake dominant estate to Thomas together with the easement. As a result of this transaction, Thomas now owns all of the off-lake property involved in this case, plus her lakefront property which abuts the easement on the Millens' lakefront property.

Thomas later built a pier into Beaver Lake at the end of the easement, the event which

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appears to have precipitated this litigation. The Millens complained. The matter was referred to the Waukesha County Corporation...

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