589 N.W.2d 1 (Wis. 1899), 97-1997, Schwab v. Timmons

Docket Nº:97-1997.
Citation:589 N.W.2d 1, 224 Wis.2d 27
Opinion Judge:[7] The opinion of the court was delivered by:
Party Name:James G. SCHWAB and Katherine Schwab, Plaintiffs-Co-Appellants-Petitioners, Dorice McCormick, Plaintiff-Appellant-Petitioner, v. Helen TIMMONS, Carl D. Lenz Trust, Robert B. Bruce, Henry & Phyllis Pelletier, Robert W. Beart, Helen E. Beart, Robert W. Beart, Jr., Beth A. Drost, Stanford & Susan Sholem, Oscar C. & Patricia F. Boldt, John Zimdars, Jr.
Attorney:[6] Attorneys:
Case Date:February 12, 1999
Court:Supreme Court of Wisconsin

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589 N.W.2d 1 (Wis. 1899)

224 Wis.2d 27

James G. SCHWAB and Katherine Schwab, Plaintiffs-Co-Appellants-Petitioners,

Dorice McCormick, Plaintiff-Appellant-Petitioner,


Helen TIMMONS, Carl D. Lenz Trust, Robert B. Bruce, Henry & Phyllis Pelletier, Robert W. Beart, Helen E. Beart, Robert W. Beart, Jr., Beth A. Drost, Stanford & Susan Sholem, Oscar C. & Patricia F. Boldt, John Zimdars, Jr., John C. Zimdars, Jr. Trust, Nan M. Zimdars Trust, Warren T. Davis, Jr., R. Garret & Marjorie M. Phillips, Anne M. West, Robert C. Davis, James M. Rock, Barbara S. Monroe, James S. & Ann W. Reeve and Anne S. Hobler, Defendants-Respondents.

No. 97-1997.

Supreme Court of Wisconsin

February 12, 1999

Argued Nov. 12, 1998.

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[224 Wis.2d 29] For the plaintiffs-co-appellants-petitioners and plaintiff-appellant-petitioner there were briefs by Thomas P. Lyons, Jennifer L. Sielaff and Cunningham Lyons, S.C., Milwaukee and Charles D. Koehler and Herrling, Clark, Hartzheim Siddall, LTD., Appleton and oral argument by Thomas P. Lyons Richard T. Elrod of Herrling, Clark, Hartzheim Siddal.

For the defendant-respondent, Carl D. Lenz Trust, there was a brief by John F. Scanlan and Reetz Scanlan, S.C., Fish Creek and oral argument by Brett Eric Reetz.

For the defendants-respondents, Beart, Drost, Sholem, Boldt, Zimdars Trust, Phillips Davis, there was a brief by Robert A. Ross and Ross Law Office, Sturgeon Bay and oral argument by Robert A. Ross.

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The petitioners, James and Katherine Schwab and Dorice McCormick (petitioners), seek review of a decision affirming the [224 Wis.2d 30] circuit court's dismissal of their declaratory judgment action requesting an easement by necessity or by implication for both ingress and egress and utilities over the properties owned by the respondents in order to gain access to their landlocked parcels located in Door County. The circuit court, as affirmed by the court of appeals, concluded that the historical circumstances in this case do not fit the typical situation from which ways of necessity are implied and that even if they did, the easement would not have survived because it was not recorded.

¶ 2 On appeal, the petitioners claim they are entitled to an easement by necessity or by implication over the respondents' properties; or in the alternative, they seek an expansion of the common law in this state to recognize an easement by necessity where property is landlocked due to geographical barriers and due to the actions of the common owner and grantor, in this case the United States. We conclude that the petitioners have failed to establish entitlement to an easement by implication or by necessity either because of actions by the federal government or by geographical barriers. Not only were the parcels at issue not landlocked at the time of conveyance, but the petitioners themselves created their landlocked parcels when they conveyed away their highway access. We refuse to turn 100-plus years of Wisconsin common law on its head to accommodate such actions. Accordingly, we affirm the court of appeals.


¶ 3 The facts are not in dispute. The petitioners and the respondents all own property that is located on Green Bay in the Village of Ephraim in Door County. The properties are situated between the waters of [224 Wis.2d 31] Green Bay on the west and a bluff ranging in height from 37 to 60 feet on the east. The following is a diagram of the properties (lots and parcels) involved.

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(Image Omitted)

This diagram can be found in the record and is designated as Exhibit A attached to the petitioners' original complaint with additions and deletions for illustrative purposes. Thomas v. Ashland, Siskiwit & Iron River Logging R., 122 Wis. 519, 520, 100 N.W. 993 (1904); Northern Pine Land Co. v. Bigelow, 84 Wis. 157, 162, 54 N.W. 496 (1893).

[224 Wis.2d 32] ¶ 4 Prior to 1854, the property involved was owned by the United States and was divided into three lots: Lot 2, the northernmost lot; Lot 3; and Lot 4, the southernmost lot. In 1854, the United States granted by patent Lot 4 to Ingebret Torgerson, but retained Lots 2 and 3. At the time that Lot 4 was severed from Lots 2 and 3, the United States did not retain a right-of-way through Lot 4 to get to Lots 2 and 3. At oral argument, it was explained that at the time of this conveyance by the United States, the eastern boundary of the lots extended to the east to what is now a public roadway. The lots were comprised of property both above and below the bluff with access to a public roadway from above. In 1882, the United States granted Lots 2 and 3 to Halvor Anderson.

¶ 5 At some point after the United States granted the lots, they were further subdivided

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into parcels. 1 After 1854, Lots 2, 3, and 4 were never fully owned by one person or entity, except that some unspecified parcels within Lots 2, 3, and 4 were owned by Malcolm and Margaret Vail during the years 1950 to 1963.

¶ 6 The petitioners' parcels are located in Lot 2, the northernmost lot. McCormick owns the northernmost parcel and the Schwabs own two adjacent parcels directly south of McCormick. Together the properties comprise over 1200 feet of frontage and over nine acres of property. Directly south of the Schwabs' parcels is a [224 Wis.2d 33] parcel owned by the Timmons within Lot 2, followed to the south by a parcel owned by the Lenzes, also in Lot 2; all of the remaining respondents' parcels follow sequentially to the south, located in Lots 3 and 4, with the parcel owned by Hobler being the southernmost parcel located at the southern boundary of Lot 4.

¶ 7 It was indicated at oral argument that the current eastern boundary line, the bluff line--which produced parcels above and below the bluff--was created at various unknown times. 2 The Schwabs' parcels were originally purchased by James' parents in the 1940s and were later gifted to James in 1965 and 1974. At purchase, the Schwabs' parcels extended east from the waters of Green Bay to property above the bluff where there was access to a public roadway and a house. Some time after the 1974 inheritance, the Schwabs conveyed the property above the bluff to James' relatives and retained the parcel below. McCormick also inherited her parcel which originally included land above and below the bluff with highway access from above, and she conveyed the property above the bluff to a third party, retaining the parcel below.

¶ 8 As they currently stand, both of the petitioners' parcels are bordered by water on the east and the bluff on the west. Because their properties are between the lake and the bluff, the petitioners claim their only access is over the land to the south, owned by the respondents, for which they do not have a right-of-way.

¶ 9 A private road runs north from Hobler's parcel across all of the respondents' properties [224 Wis.2d 34] terminating on the Lenz parcel. Timmons also has the right to use the private road. This is the road that the petitioners are seeking to extend for their use. Negotiations for an agreement to extend the road have failed.

¶ 10 In 1988, the petitioners petitioned the Village of Ephraim, pursuant to Wis. Stat. § 80.13 (1985-86), to extend a public road--North Shore Drive--to the private road beginning at the Hobler property northward over all of the respondents' properties to McCormick's property. Section 80.13 allows a landowner to request the local government, in its discretion, to construct a public roadway at the petitioning landowners' expense. Id. The Village of Ephraim board, however, declined the request finding that extending the road was not in the public's interest.

¶ 11 Consequently, the petitioners brought this declaratory judgment action seeking an easement by necessity or by implication to gain access to their land. The easement would include the perpetual right to travel, including the right for ingress, egress and for public utilities, over the now private road, which stretches over 15 of the respondents' parcels to the Lenz property, as well as the right to build a road over the Lenz and Timmons properties up to the McCormick property. The respondents filed motions to dismiss the amended complaint. 3

¶ 12 The circuit court granted the motions to dismiss, concluding that the historical circumstances in this case do not fit the typical

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situation from which easements of necessity are implied. The court further [224 Wis.2d 35] stated that even if it found an implied retention of an easement over Lot 4 by the United States as of 1854, the respondents did not have actual or constructive notice of the existence of an easement and therefore, they took title to the land relieved of the burden or charge of the easement. The court of appeals summarily affirmed the circuit court's grant of the respondents' motions to dismiss.


¶ 13 Under Wis. Stat. § 802.06(2) (1995-96), a motion to dismiss for failure to state a claim shall be treated as a motion for summary judgment under Wis. Stat. § 802.08 (1995-96), if matters outside the pleadings are presented to the court. M & I Marshall & Ilsley Bank v. Town of Somers, 141 Wis.2d 271, 285 n. 9, 414 N.W.2d 824 (1987). In this case, matters outside of the pleadings were presented to the court which converted the motion to dismiss to one for summary judgment. Radlein v. Industrial Fire & Cas. Ins. Co., 117 Wis.2d 605, 608-09, 345 N.W.2d 874 (1984). A motion for summary judgment must be granted when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Grams v. Boss, 97 Wis.2d 332, 338-39, 294 N.W.2d 473 (1980); § 802.08(2). We review summary judgment rulings independent of the circuit court. Grams, 97 Wis.2d at 338-39, 294 N.W.2d 473.


¶ 14 The petitioners claim an easement by implication or by necessity over the respondents' properties. An easement is...

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