691 N.W.2d 711 (Wis.App. 2004), 04-0188, AKG Real Estate, LLC v. Kosterman

Docket Nº:04-0188.
Citation:691 N.W.2d 711, 277 Wis.2d 509
Opinion Judge:[8] The opinion of the court was delivered by: Brown, J.
Party Name:AKG REAL ESTATE, LLC, a limited liability company, Plaintiff-Appellant-Cross-Respondent, v. Patrick J. KOSTERMAN and Susan A. Kosterman, Defendants-Respondents-Cross-Appellants. [*]
Case Date:November 03, 2004
Court:Court of Appeals of Wisconsin

Page 711

691 N.W.2d 711 (Wis.App. 2004)

277 Wis.2d 509

AKG REAL ESTATE, LLC, a limited liability company, Plaintiff-Appellant-Cross-Respondent,


Patrick J. KOSTERMAN and Susan A. Kosterman, Defendants-Respondents-Cross-Appellants. *

No. 04-0188.

Court of Appeals of Wisconsin

November 3, 2004.

Submitted on Briefs Sept. 23, 2004

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[277 Wis.2d 511] On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted

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on the briefs of Robert E. Hankel of Hartig, Bjelajac, Hankel & Koenen of Racine.

On behalf of the defendants-respondents-cross-appellants, the cause was submitted on the briefs of Daniel Kelly of Reinhart Boerner Van Deuren S.C. of Milwaukee.


¶1 BROWN, J.

In this easement dispute, the issue is whether an easement may continue to exist [277 Wis.2d 512] even after changed conditions make the purpose of the easement obsolete. In Millen v. Thomas, 201 Wis.2d 675, 679, 550 N.W.2d 134 (Ct.App.1996), we said in dicta that an easement may be terminated by completion or cessation of the particular purpose for which it was granted. With the issue squarely before us, we now hold this to be the law. In this case, allowing continued existence of an easement, whose original purpose was ingress and egress to a landlocked property--and which is no longer necessary--would unreasonably restrict the beneficial use of vacant land. As a matter of public policy, courts cannot endorse allowing the easement holder to "hold out" for reasons not contemplated by the easement. To do so would be to sanction economic waste. We affirm the trial court's decision in part and reverse in part.

¶2 Some time prior to 1960, Louis and Angeline Chvilicek bought roughly eighty acres of vacant land on Highway 31 in Racine county's town of Caledonia. On August 25, 1960, they deeded four acres of that property (the Homestead) to their son Edward Chvilicek and his wife Audrey. The Homestead is located some 800 feet back from Highway 31 and landlocked. The deed, which Edward and Audrey recorded on September 13, included a thirty-foot-wide easement of right-of-way over the retained parcel (the Vacant Land) for ingress and egress between the Homestead and Highway 31. 1

¶3 The following year, 1961, the elder Chviliceks granted Edward and Audrey a second easement along the same path. This easement was sixty-six feet in width. The parties intended the expansion to allow for conversion of the easement into a public road in the [277 Wis.2d 513] event that they ever wished to dedicate it. Edward and Audrey recorded their deed on May 8. Before the close of 1961, Louis passed away. After his death, Angeline conveyed the Vacant Land to her children and their spouses as tenants in common. Edward and Audrey received a fifty-percent interest in the property. Joyce and Vincent White, Edward's sister and brother-in-law, received the remaining fifty percent.

¶4 AKG Real Estate, LLC made an offer to purchase the remainder of the Vacant Land, comprising some 79.736 acres, on September 11, 1997. The Chviliceks and Lorraine I. White, trustee of the Vincent J. White trust, countered that offer, offering to sell the Vacant Land subject to three easements. The first was a thirty-foot private road easement located along the path of the 1961 easement, "until such time as public road access is made available to said parcel." It also included a vehicular easement for ingress and egress on Louis Drive, located to the north of the easement path and running roughly parallel to the portion of the easement at issue in this case, and a twenty-foot-wide sanitary sewer easement extending toward Louis Drive.

¶5 The deal proceeded, and closing occurred in January 1998. AKG received two deeds: one from the Chviliceks and one from White, each conveying a one-half

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undivided interest in the property. AKG recorded the deeds on January 16, 1998. The deeds, like the counteroffer, included three easements: one for the sanitary sewer, one for ingress and egress on Louis Drive, and one thirty-foot easement following the path of the 1961 easement. The relevant language in both deeds reads:

Reserving therefrom a private road easement for the benefit of EDWARD T. CHVILICEK and AUDREY M. CHVILICEK, husband and wife, their heirs and assigns, or subsequent owners of 4213 Highway 31, Racine, Wisconsin 53405, [the Homestead], until such time as public road access is made available for said real estate upon the following described easement of right of way, to wit: [legal description of the thirty-foot easement].

¶6 The record does not reflect exactly when AKG formulated plans to convert the Vacant Land into a subdivision. However, it is apparent that it had such intentions prior to its purchase of the land. The record reflects that in November 1997, two months prior to the January 1998 closing date, the planning commission for the town of Caledonia put on its meeting agenda the rezoning to R-2S (residential) of 31.049 acres of the Vacant Land. AKG was able to accomplish this rezoning with the cooperation of Edward. Indeed, AKG's offer was contingent upon rezoning the property, and rezoning was also a requirement of the closing.

¶7 Between 1998 and 2000, AKG began the initial planning phase for its new subdivision. It contacted both the planning and development commission of Racine county and the town of Caledonia about some of their development ideas to ascertain what sorts of plans would be feasible. During the early part of 2000, AKG hired RSV Engineering, Inc. to perform engineering services related to the proposed development.

¶8 As AKG planned, two noteworthy changes occurred during the same time frame. First, ch. 233 of the Department of Transportation regulations in the WIS. ADMIN. CODE, entitled "DIVISION OF LAND ABUTTING A STATE TRUNK HIGHWAY OR CONNECTING HIGHWAY," went into effect on February 1, 1999. WISCONSIN ADMIN. CODE § TRANS 233.012(1) (2004) made this chapter applicable to all land divisions created by plat or map, including AKG's proposed subdivision. 2 Section TRANS 233.03(2) authorizes the DOT [277 Wis.2d 515] to review preliminary and final plats. WISCONSIN ADMIN. CODE § TRANS 233.06 imposes restrictions on the frequency of connections or access points onto state highways. 3 Its provisions read as follows:

(1) The land division shall be laid out with the least practicable number of highways and private roads or driveways connecting with abutting state trunk highways or connecting highways.

(2) The department shall determine a minimum allowable distance between connections with the state trunk highway or connecting highway, between any 2 highways within the land division and between a highway within the land division and any existing or planned highway. To the extent practicable, the department shall require a distance of at least 1,000 feet between connections

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with a state trunk highway or connecting highway.

Second, the Homestead changed ownership on March 30, 2000, when the Chviliceks sold the property to Patrick J. and Susan A. Kosterman.

¶9 The record reflects that at some point during this initial planning phase in 2001, AKG met with two members of the Racine county planning commission, Arnie Clement and Julie Anderson. At the time, AKG's concept map included four lots where four AKG members intended to make their homes. Clement and Anderson opined that the DOT would not approve the [277 Wis.2d 516] proposed drawing, because it contemplated as an access point to Highway 31 a roadway along the easement path servicing the Homestead. This was problematic, they said, because the easement path was too close to Valley Road to the south. Valley Road is a public road running roughly parallel to the easement path and Louis Drive.

¶10 The parties do not tell us how close Valley Road lies to the easement path, but based on a map in the record, we presume it to be less than five hundred feet. The map shows Valley Road, the easement path, and Louis Drive, from left to right. Where the three roads intersect with Highway 31, the easement path lies noticeably closer to Valley Road than to Louis Drive. The record contains conflicting measurements of the distance between the easement path and Louis Drive. We have figures ranging from "less than 300 feet," 400 feet, and roughly 500 feet. In any case, the distance between Valley Road and the easement path must be shorter.

¶11 The RSV engineer testified in his deposition that in his experience with the DOT, it prefers 1000 feet between connections but as a rule of thumb generally tolerates as few as 600 feet. He indicated that this general rule for variances appears to be uniform throughout the district.

¶12 The engineer first submitted a plat to Racine county in June 2001. He dealt with Anderson from the planning commission, the same person with whom AKG met about the concept map described above. On December 21, 2001, the engineer and a member of AKG met with her about the plat. Because the plat depicted access for Lot 33 onto Highway 31, Anderson instructed them to apply for a WIS. ADMIN. CODE ch. TRANS 233 permit "to access the highway with one private residential driveway." County approval was conditional upon the DOT's approval.

¶13 We do not know what this first proposed plat looked like, but we assume the location of Lot 33 did not change significantly from this initial plat to later versions. 4 We note that later-dated plats in the record, including one dated January 24, 2002, and one dated August 23, 2002, labeled "final plat," both depict a Lot 33 sitting toward the end of the easement path serving the Homestead. It lies on the north side of the easement path...

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