640 N.W.2d 178 (Wis.App. 1998), 01-0825, Gojmerac v. Mahn

Docket Nº:01-0825.
Citation:640 N.W.2d 178, 250 Wis.2d 1
Opinion Judge:[8] The opinion of the court was delivered by: Cane, C.J.
Party Name:Gary G. GOJMERAC and Pamela Gojmerac, Plaintiffs-Appellants, v. James R. MAHN and Sandra Mahn, Defendants-Respondents.
Case Date:December 04, 2001
Court:Court of Appeals of Wisconsin
 
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Page 178

640 N.W.2d 178 (Wis.App. 1998)

250 Wis.2d 1

Gary G. GOJMERAC and Pamela Gojmerac, Plaintiffs-Appellants,

v.

James R. MAHN and Sandra Mahn, Defendants-Respondents.

No. 01-0825.

Court of Appeals of Wisconsin.

December 4, 2001

Page 179

[Copyrighted Material Omitted]

Page 180

[250 Wis.2d 5] On behalf of the plaintiffs-appellants, the cause was submitted on the briefs and oral argument of James Wedemeyer of Schmitt & Koppelman, S.C. of Merrill.

On behalf of the defendants-respondents, the cause was submitted on the brief and oral argument of George G. Russell of Russell & Tlusty of Merrill.

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

Page 181

¶ 1 CANE, Chief Judge.

Gary and Pamela Gojmerac appeal from a portion of a judgment declaring that owners of numerous subdivision lots have a valid easement for ingress and egress over the western portion of the Gojmeracs' property. 1 We conclude that only those lots that were part of the dominant estate at the time [250 Wis.2d 6] the easement was created are entitled to use the easement. The two lots that were not part of the dominant estate do not have a valid easement. Therefore, we affirm in part and reverse in part the portion of the judgment declaring the rights of the owners of particular lots. Because neither party challenges the court's other rulings, the remainder of the judgment is affirmed.

BACKGROUND

¶ 2 In 1975, Paul and Helen Smith dedicated and recorded a plat called the Birch Acres Addition. 2 The addition was bordered on the east by Big Eddy Road and on the south by Birch Hill Road. Vacant land bordered the addition on the north and west.

¶ 3 The addition contained two blocks of lots of varying sizes divided by a public road. The public road, approximately sixty feet wide, ran north from Birch Hill Road and then curved west, where it was to terminate in a cul-de-sac. Block One, west and south of the public road, contained five lots, numbered 1 through 5. Block Two, located east and north of the public road, contained seven lots, numbered 1 through 7.

¶ 4 The layout of the addition has remained the same since 1975, although some landowners own more than one lot and others own partial lots. A total of nine [250 Wis.2d 7] lots abut what was platted as the public road. Starting at the intersection of the public road and Birch Hill Road, the lots running north and curving west along the road are Lots 3, 2, 1 and 5 of Block One on the west (in that order), and Lots 3, 4, 5, 6 and 7 of Block Two on the east (in that order). Lot 4 of Block One is located directly west of Lots 2 and 3 of Block One. Lots 1 and 2 of Block Two are located directly east of Lots 3 and 4 of Block Two, and they abut Big Eddy Road on the east.

¶ 5 The public road was never paved, but a gravel and dirt road less than sixty feet wide exists in its place. For instance, where the road intersects Birch Hill Road, it is no more than forty-one feet wide. The remaining width of the road is wooded.

¶ 6 At the Smiths' request, the public road was vacated on September 26, 1990, and is now a private road. On October 2, 1990, the Mahns' son, David, purchased property from the Smiths, including Lots 1, 2, 5 and part of 4, all in Block One. David also purchased the recently vacated road located between Blocks One and Two, and received a right of first refusal to purchase Lots 6 and 7 of Block Two.

¶ 7 David subsequently purchased Lots 3 and 4 of Block Two. Lot 3 is located on the northeast corner of the intersection of the vacated road and Birch Hill Road. David constructed a home on Lot 3 and decided to sell it. In order to give the

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future owners full use of a circular driveway and to increase the lot size, David sold a portion of the vacated road along with Lot 3.

¶ 8 On July 28, 1995, the Gojmeracs purchased from David Lot 3 of Block Two and a 180-foot-long, forty-one-foot-wide portion of the vacated road located [250 Wis.2d 8] directly west of Lot 3. David and his wife, the grantors, reserved an easement:

Grantors reserve a perpetual easement for purposes of ingress and egress over that portion of the vacated road formerly lying between Block One (1) and Block Two (2) of Birch Acres Addition described above. Said easement includes the right to install utilities. Maintenance of the easement shall be maintained by the grantor.

David reserved the easement so that he could continue to travel from his remaining lots to Birch Hill Road via the vacated road (the Gojmeracs' forty-one-foot-wide strip was the only portion of the road that was passable where the vacated road met Birch Hill Road). 3

¶ 9 On the day the easement was created, David owned the following property that abuts the vacated road: Lots 1, 2 and 5 of Block One and Lot 4 of Block Two. David was also in the process of negotiating the purchase of additional land from the Smiths. That purchase was completed on November 15, 1995, when David bought Lots 5, 6 and 7 of Block Two.

¶ 10 After purchasing Lots 5, 6 and 7 of Block Two, David owned all land abutting the vacated road except Lot 3 of Block One, which is located on the northwest corner of the intersection of the vacated road and Birch Hill Road, and Lot 3 of Block Two, now owned by the Gojmeracs.

¶ 11 In 1996 and 1997, David sold three of the lots that abut the vacated road. David sold Lot 4 of Block Two (as well as Lot 2 of Block Two) to Michael and Larana Broeren, who can access Big Eddy Road on the east. David sold Lot 5 of Block Two to Robert Kobialka, who also has access to Big Eddy Road on [250 Wis.2d 9] the east. Finally, David sold Lot 2 of Block One to John Cirilli, who accesses Birch Hill Road using a driveway over Cirilli's other property, Lot 3 of Block One.

¶ 12 In 1998, David encountered financial problems. He sold all of his land in the Birch Acres Addition, including Lots 1, 5 and part of 4 in Block One and Lots 6 and 7 of Block Two, to River Valley State Bank, which then sold the same property to David's parents, James and Sandra Mahn. David, however, continued to manage the property for his parents and constructed a home on Lot 6 and part of Lot 7 of Block Two.

¶ 13 At some point, the Gojmeracs became troubled by the Mahns' (i.e., David's) use of the easement over the Gojmeracs' land. In 1998, the Gojmeracs filed this suit seeking an injunction barring the owners of Lots 6 and 7 of Block Two from using the easement.

¶ 14 On April 30, 1999, while this suit was pending, the Mahns sold the home located on Lot 6 and part of Lot 7 of Block Two to John and Jessica Pelka. As part of this sale, the Mahns granted the Pelkas an easement to use all portions of the vacated road that the Mahns still owned to access Birch Hill Road, including the nineteen-foot-wide strip of wooded land adjacent to Birch Hill Road. In a separate document, entitled "Easement," the Mahns gave the Pelkas an easement over the Gojmeracs'

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180-foot-long, forty-one-foot-wide strip of land. The Mahns and the Pelkas signed the document.

¶ 15 The Gojmeracs objected to the Pelkas' use of their land to access Lots 6 and 7 of Block Two, just as they had objected to the Mahns' use of the easement to access those same lots. They contended that although the Mahns could use the easement to access their [250 Wis.2d 10] remaining lots in Block One, the easement did not extend to Lots 6 and 7 of Block Two. The litigation concerning this issue continued, and a bench trial was held on September 13, 2000.

¶ 16 The trial court decided that the Pelkas could use the easement over the Gojmeracs' property. 4 Specifically, the judgment stated that the easement could be used for ingress and egress by Lots 1, 2 and 5 of Block One, and Lots 4, 6 and 7 of Block Two. The judgment also stated that the lots in Blocks One and Two could not be further subdivided to create additional lots that would use the easement, and that the easement cannot be used to access fifteen acres of undeveloped land located west of Block One. This appeal followed.

ISSUES

¶ 17 The Gojmeracs contend that Lots 1, 2 and 5 of Block One and Lots 5, 6 and 7 of Block Two "are not appurtenant to the servient estate" and, therefore, are not entitled to use the easement. The Mahns dispute this assertion, contending that the "lots are appurtenant to the easement because the Mahns had an interest in said lots and the discontinued roadway at the time the easement was created." Because easements are generally said to be appurtenant, or annexed, to a dominant estate, as opposed to other lots or to a servient estate, it became clear to this court that the [250 Wis.2d 11] parties are using the term "appurtenant" to mean adjacent to, or abutting. This conclusion was confirmed at oral argument. Resolution of this...

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