Richards v. Land Star Group, Inc.

Decision Date04 February 1999
Docket NumberNo. 98-1983,98-1983
Citation224 Wis.2d 829,593 N.W.2d 103
PartiesA. MacDonell RICHARDS, Plaintiff-Appellant, v. LAND STAR GROUP, INC., Roman and Ruth Peterson, Roger Peterson, and St. Croix Group, LLC, Defendants-Respondents. . Oral Argument
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert L. Bach and Timothy J. Hassett of Felhaber, Larson, Fenlon & Vogt, P.A., and oral argument of Timothy J. Hassett of St. Paul, Minnesota, admitted Pro Hac Vice.

On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas E. Gorman of Gorman & Gorman, Ltd., and oral argument of Christopher Arndt of Gorman & Gorman, Ltd. of Red Wing, Minnesota.

Before CANE, C.J., MYSE, P.J., and HOOVER, J.

CANE, C.J.

A. MacDonell Richards appeals a judgment granting him a sixteen-and-one-half-foot-wide easement of necessity to his river bluff property; denying his right to run electric, telephone, and other utilities along the easement; and denying an easement of necessity to his river frontage property. On appeal, Richards argues that he is entitled to: (1) electric, telephone and other utilities along an easement of necessity to the river bluff property; (2) a fifty-foot-wide easement to the river bluff property; and (3) an easement of necessity to the river frontage property. We agree with the trial court that Richards is not entitled to an easement of necessity to his river frontage property. Regarding the river bluff easement, we hold that the reasonable use and enjoyment of a dominant estate requires utility installation as long as such installation does not overburden the servient estate. Accordingly, we remand to the trial court for its determination under this standard. Because this case is remanded, we also direct the trial court to reconsider whether the easement's width is sufficient in light of the dominant estate's future necessary and reasonable needs, including utility installation.

I. BACKGROUND

In August 1946, Roman Peterson purchased property in Pierce County, Wisconsin, which we will refer to as parcels 1 and 2. In 1947, Peterson forfeited parcel 1 to Pierce County as a result of failing to pay real estate taxes. At a public auction in 1947, Pierce County purchased this parcel and later issued itself a tax deed for the property. In 1963, it conveyed the parcel to Richards by quitclaim deed, which stated: the "grantor herein having no ingress or egress privileges to said property."

Parcel 1 is approximately thirty-four acres, triangular in shape, has no access to a public road and, as a whole, is landlocked. No written easement exists for access to parcel 1 from any public road. Further, a railroad track runs along the Mississippi River and divides parcel 1 into two sections, one immediately adjacent to the Mississippi River (river frontage property) 1 and the other lying easterly of the railroad (river bluff property). 2

The Petersons orally gave Richards access to the river bluff, and in exchange, Richards let the Petersons farm part of his land. To access an area known as Smith's Landing on the river, Richards drove down a second road on the Petersons' property. He drove his car part of the way and then walked the rest of the road, including traversing under a railroad overpass. When the Petersons sold parcel 2 to a developer in 1996, the developer told Richards that he "did not have access" over parcel 2 to reach parcel 1. 3

Richards' complaint requested two easements over parcel 2 to access both the river bluff and river frontage of parcel 1. The trial court granted Richards an easement of necessity for "ingress and egress" to the river bluff property, restricting its width to one rod (sixteen-and-one-half feet), but denied him the right to install utilities along the easement. Further, the trial court denied Richards' request for a second easement of necessity to the river frontage portion of parcel 1. Richards appeals.

II. ANALYSIS

An easement is an interest in land in the possession of another. Atkinson v. Mentzel, 211 Wis.2d 628, 637, 566 N.W.2d 158, 162 (Ct.App.1997). Existing distinct from the ownership of the land, an easement is a "liberty, privilege, or advantage in lands, without profit." Stoesser v. Shore Drive Partnership, 172 Wis.2d 660, 667, 494 N.W.2d 204, 207 (1993). An easement creates two distinct property interests: the dominant estate and the servient estate. Atkinson, 211 Wis.2d at 637, 566 N.W.2d at 162. The dominant estate enjoys the privileges an easement grants, while the servient estate permits the dominant estate to exercise those privileges. Id.; see also Millen v. Thomas, 201 Wis.2d 675, 678, 550 N.W.2d 134, 135 (Ct.App.1996). With these general principles in mind, we turn to Richards' three arguments.

1. Utilities Along the Easement to the River Bluff Property

Richards contends that the reasonable use and enjoyment of his property requires that he be permitted to install electric, telephone, and other utilities along the easement of necessity to the river bluff property. The trial court denied the request for utility installation, noting:

[The] issue [of] the electricity and telephone easement wasn't raised before. In the ordinary course that might not make a difference whether I granted a telephone and electrical easement, but this is not the ordinary circumstance. I am not so sure this isn't going to be a fluid situation for many years to come, so we might as well do it now rather than in the future. And because of that fluid situation regarding the utilities and the telephone, I don't see the necessity to put that in there and to allow that. We are talking necessity. He has got a generator. That can serve its purpose and obviously does and has. And there is other ways in this day and age of dealing with the phone problem besides having a phone wire. Use a cell phone. So with technology I can't see that anybody has established it is a necessity to do this especially when it is the fluid situation that it is [and the] way of necessity is going to be someplace else the road there is going to be a public road.

Citing Atkinson, Richards contends that an easement of necessity includes all that is reasonably necessary for the full enjoyment of the easement and that at a minimum, the reasonable use and enjoyment of property requires utilities. In response, the Petersons distinguish Atkinson on its facts, arguing that unlike the broad written easement granted in Atkinson, the easement here was limited to "ingress and egress." Indeed, Richards acknowledges that Atkinson is factually distinct, but contends that its logic is "equally applicable" because as in Atkinson, the easement at issue is an access easement. As we will explain, we conclude that the reasonable use and enjoyment of the dominant estate requires utilities, as long as such installation does not overburden the servient estate. 4

In Atkinson, we concluded that a written easement grant was not limited to physical ingress and egress, but extended to utility installation. Id. at 637-41, 566 N.W.2d at 162-64. The conveyance stated that the easement's purpose was to "provide access" and "shall allow access for all uses of said property other than retail sales"; it further described the easement as a "right of way." Id. at 638, 566 N.W.2d at 162. Holding that the easement extended to utility installation, we stated:

The easement language does not limit the easement to "ingress" and "egress." In fact, the easement does not even use those terms. Nor does the easement language limit use of the easement to simple "access" or "right of way." Rather, the easement provides "access for all uses of said property other than retail sales." We conclude that this modifying language broadens the access terms of the easement beyond strict physical ingress and egress.

Id. at 638-39, 566 N.W.2d at 163. Because we concluded that the easement's broad and unambiguous terms encompassed utilities, we did not address whether an easement of necessity was warranted. Id. at 641 n. 6, 566 N.W.2d at 164 n. 6.

Additionally, we suggested that had the grant limited the easement to ingress and egress, utility installation would not have been permitted. Id. at 638-39, 641, 566 N.W.2d at 163, 164. In this case, by contrast, we are dealing with a trial court's grant of an easement of necessity for ingress and egress and its ruling that its grant did not include utilities. Unlike cases in which our appellate courts have addressed whether a servient estate's express/written easement grant to the dominant estate included utility installation, here there is no question that the trial court intended to limit the easement to ingress and egress and exclude utility installation. Thus, the issue here is not whether a written easement grant includes utility installation, as in Atkinson, but whether the trial court erroneously denied utility access along the river bluff easement.

The general rule regarding the extent of a way of necessity is as follows:

The extent of a way of necessity is that which is required for the complete and beneficial use of the land to which such way is impliedly attached. A way of necessity is not limited to those purposes connected with the use of the dominant tenement existing at the time the easement was created, but is available for any and all purposes for which the dominant tenement may be adapted. The enjoyment of such a way is said to be limited only by the necessity for its use in connection with all lawful uses of the land to which it is appurtenant. In other words, a way of necessity is held to be coextensive with the reasonable needs, present and future, of the dominant estate; it varies with the necessity, insofar as may be consistent with the full reasonable enjoyment of the servient estate.

25 AM.JUR.2D Easements & Licenses § 92 at 664 (1996) (footnotes omitted; ...

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