672 N.W.2d 63 (Wis. 2003), 02-1004, McCormick v. Schubring

Docket Nº:02-1004.
Citation:672 N.W.2d 63, 267 Wis.2d 141
Opinion Judge:[10] The opinion of the court was delivered by: Patience D. Roggensack, J.
Party Name:R. Scott McCORMICK, Robert L. McCormick and Shane McCormick, Plaintiffs-Respondents, v. Richard A. SCHUBRING, Defendant-Appellant.
Attorney:[7] Attorneys:
Case Date:November 26, 2003
Court:Supreme Court of Wisconsin

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672 N.W.2d 63 (Wis. 2003)

267 Wis.2d 141

R. Scott McCORMICK, Robert L. McCormick and Shane McCormick, Plaintiffs-Respondents,


Richard A. SCHUBRING, Defendant-Appellant.

No. 02-1004.

Supreme Court of Wisconsin

November 26, 2003.

Argued Sept. 11, 2003.

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[267 Wis.2d 145] For the defendant-appellant there were briefs (in the court of appeals) by John H. Priebe and Priebe Law Offices, Rhinelander, and John J. Hogan and Hogan & Melms, L.L.P., Rhinelander, and oral argument by John J. Hogan.

For the plaintiffs-respondents there was a brief (in the court of appeals) by John B. Rhode and Sommer, Olk, Schroeder & Payant, Antigo, and oral argument by John B. Rhode.

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Richard A. Schubring appeals a Langlade County Circuit Court judgment that granted R. Scott McCormick, Robert McCormick and Shane McCormick (the "McCormicks") an easement of necessity across Schubring's land. This case is before us on certification of two questions:

(1) Whether, when the elements required for an easement of necessity are established, the easement arises by operation of law or whether its creation is subject to the discretion of the circuit court; and

(2) Whether an easement of necessity may be afforded to a grantor of real estate who formerly had access to a public way, but after the severance of a portion of his property retains a landlocked parcel.

We also answer a third question: If the easement is a matter of discretion, whether the circuit court erroneously exercised its discretion when it granted the McCormicks an easement of necessity.

¶ 2 We conclude that an easement of necessity generally does not arise as a matter of law, but rather, through the exercise of a circuit court's discretion. We also conclude that one who stands in the shoes of a grantor who formerly had access to a public highway but after the severance of a portion of his land retained a landlocked parcel, may obtain an easement of necessity. And finally, the circuit court did not erroneously exercise its discretion in granting the McCormicks the easement. Accordingly, we affirm the judgment.


¶ 3 At one time, Merritt Olk owned three contiguous 40-acre parcels of undeveloped land in Langlade County. In 1946, Langlade County took the eastern most 40-acre parcel by tax deed. As the 40 acres the county took provided the only highway access, Olk's remaining 80 acres became landlocked. However, a dirt and gravel road cuts diagonally through the 40-acre parcel and connects the landlocked parcel to a public road. Olk used this road for access to the 80-acre parcel both before and after it became landlocked.

¶ 4 In 1955, George Gresch purchased the 40-acre parcel from the county, and in 1983, he sold it to Richard Schubring. Prior to his purchase, Schubring did not see the dirt road. He inquired "by word of mouth" and tried, unsuccessfully, to find public records relating to the property. He concluded that the 40-acre parcel was not subject to an easement.

¶ 5 In 1996, the McCormicks purchased the remaining 80 acres from the testamentary beneficiaries of Olk. The McCormicks use the property for hunting. Prior to purchase, they were aware of and had used the dirt road across Schubring's property for ingress and egress. After purchase, with Schubring's permission, the McCormicks used the road to remove timber from their land. Schubring requested that they leave the [267 Wis.2d 147] road in as good a condition as they found it. The McCormicks did so, spending $2,000 to $3,000 to make repairs and improvements to the road.

¶ 6 Schubring's property is presently maintained under a Wisconsin managed forest program that requires public foot access across the entire parcel, including the dirt and gravel road. See Wis. Stat. § 77.83(2)(a) (2001-02). Although the McCormicks initially used the road for vehicle access, Schubring now has prevented them from doing so, and when Schubring decides to remove his land from the forest management program, foot access could be extinguished as well. The McCormicks tried to negotiate the purchase of an easement

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from Schubring, but were unsuccessful. They then filed this lawsuit, wherein the circuit court granted them an easement of necessity; Schubring appealed and the court of appeals certified the above-referenced questions to us.


A. Standard of Review

¶ 7 Whether an easement of necessity arises as a matter of law or may be left to the discretion of the circuit court, and whether one who is landlocked but stands in the shoes of a grantor may obtain an easement of necessity are questions of law that we decide de novo. See State v. Byrge, 2000 WI 101, ¶ 32, 237 Wis.2d 197, 614 N.W.2d 477. We review a circuit court's exercise of discretion to determine whether the exercise was erroneous. City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis.2d 400, 423, 491 N.W.2d 484 (1992).

[267 Wis.2d 148] B. Easement of Necessity Principles

¶ 8 An easement is an interest that encumbers the land of another. See Ludke v. Egan, 87 Wis.2d 221, 227, 274 N.W.2d 641 (1979). It is a "liberty, privilege, or advantage in lands, without profit, and existing distinct from the ownership of the land." Schwab v. Timmons, 224 Wis.2d 27, 35-36, 589 N.W.2d 1 (1999) (citation omitted). The creation of an easement gives rise to two distinct property interests: the dominant estate, that has the right to use the land of another, and the servient estate, that permits the exercise of that use. Id. at 36, 589 N.W.2d 1.

¶ 9 Easements may be provided by express grant of the owner of the servient estate or through court action when there is a dispute about the rights of each party. See Baurer v. Sokoloff, 254 Wis. 273, 276, 36 N.W.2d 61 (1949). An easement of necessity, the type of easement at issue here, is often sought when an owner of landlocked property wants public highway access and has been unable to obtain it from an adjoining landowner. See Ludke, 87 Wis.2d at 226, 274 N.W.2d 641.

¶ 10 When deciding on a claim for an easement of necessity, courts employ land use principles similar to those employed in interpretations of conveyances of land. 28A C.J.S. Easements § 91 (1996). Therefore, interpretations relating to land that render any property useless are disfavored. See Sampson Invs. v. Jondex Corp., 176 Wis.2d 55, 62, 499 N.W.2d 177 (1993) (concluding that " '[a]lienations of land are, or ought to be, grave and deliberate transactions' ") (quoting Frank C. Schilling Co. v. Detry, 203 Wis. 109, 116, 233 N.W. 635 (1930)). One treatise has explained that:

[267 Wis.2d 149] [a] conveyance that would otherwise deprive the land conveyed to the grantee, or land retained by the grantor, of rights necessary to reasonable enjoyment of the land implies the creation of a servitude granting or reserving such rights, unless the language or circumstances of the conveyance clearly indicate that the parties intended to deprive the property of those rights.

Restatement (Third) of Prop.: Creation of Servitudes § 2.15 (2000). Those rights "necessary to reasonable enjoyment of the land" generally have included foot and vehicular access, although access for utilities is becoming increasingly common. Id. at cmt. a; see also Richards v. Land Star Group, Inc., 224 Wis.2d 829, 838-39, 593 N.W.2d 103 (Ct.App.1999).

C. First Certified Question

¶ 11 In Wisconsin, an easement of necessity may arise in favor of a property owner if he can prove the following required elements: (1) common ownership of

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the proposed servient and dominant estates at the time of the severance that created the landlocked condition; and (2) the landlocked parcel had no access to a public roadway after it was severed and such lack of access continues. Schwab, 224 Wis.2d at 38, 589 N.W.2d 1; see also Jon W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in Land § 4:6 (2001). However, while the elements set out above are required preliminarily before an easement of necessity may arise, they may not be sufficient to support an easement of necessity in every case.

¶ 12 We have not been asked previously to address whether an easement of necessity arises as a matter of law or whether its creation is subject to [267 Wis.2d 150] judicial discretion. There appears to be some dispute in other courts about this question. See Richards, 224 Wis.2d at 852, 593 N.W.2d 103 (Hoover, J., concurring). Therefore, we review relevant precedent to determine if our opinions require clarification.

¶ 13 In Bino v. City of Hurley, 14 Wis.2d 101, 105-06, 109 N.W.2d 544 (1961), we explained that when a landowner severs a parcel of real estate that has no access to a public highway, an easement to permit ingress and egress from the landlocked parcel "would be implied to have passed to the grantee ... because such right of way was one of necessity" (citing Sicchio v. Alvey, 10 Wis.2d 528, 538, 103 N.W.2d 544 (1960), and Bullis v. Schmidt, 5 Wis.2d 457, 461, 93 N.W.2d 476 (1958)). Additionally, in Ludke, where we reviewed a circuit court's decision to grant an easement of necessity to a landlocked grantee, we reasoned that a way of necessity was properly granted because "[a] way is implied over the land retained by the grantor, [when the grantee has no other highway access over his own land]." Ludke, 87 Wis.2d at 230, 274 N.W.2d 641. As we explained, "The Ludke property was originally part of the Micke farm and when it was...

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