75 N.W.2d 307 (Wis. 1956), Niedfeldt v. Evans

Citation:75 N.W.2d 307, 272 Wis. 362
Opinion Judge:The opinion of the court was delivered by: Broadfoot
Party Name:August NIEDFELDT, Appellant, v. Richard EVANS, Respondent.
Attorney:Rice, Rice & Rice, Sparta, for appellant.
Case Date:March 06, 1956
Court:Supreme Court of Wisconsin
 
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Page 307

75 N.W.2d 307 (Wis. 1956)

272 Wis. 362

August NIEDFELDT, Appellant,

v.

Richard EVANS, Respondent.

Supreme Court of Wisconsin.

March 6, 1956.

Page 308

Rice, Rice & Rice, Sparta, for appellant.

Bosshard & Arneson, La Crosse, for respondent.

BROADFOOT, Justice.

Following the trial and before the entry of judgment, the plaintiff had moved for a new trial, for the following, among other reasons: because the court erred in refusing to allow the plaintiff to prove the existence of a [272 Wis. 364] new and satisfactory road leading across plaintiff's farm to the defendant's farm and giving defendant ingress and egress to and from his farm; because the court erred in refusing to give an instruction requested by plaintiff that an easement ceases when the reason for its existence ceases; and because the court erred in instructing the jury that the fact that gates were maintained at either end of the easement was entirely immaterial and should not be considered. These contentions are now advanced upon the appeal and it is here contended that these errors entitle the plaintiff to a new trial.

The plaintiff contends that an easement ceases when the necessity therefor ceases, and accordingly he is entitled to prove the existence of a public highway leading to the defendant's farm. As authority for his statement, he cites Kresge Co. v. Garrick Realty Co., 209 Wis. 305, 245 N.W. 118, which involved a party wall agreement. There is a general rule that easements are terminated with the cessation of the purpose or necessity for the easement. That rule is illustrated by the following quotations:

'There is a well-established rule that an easement may be terminated by the completion of the purpose for which it was granted, inasmuch as the reason for, and necessity of, the servitude are at an end. Thus, if an easement is granted for a particular purpose only, the right continues while the dominant tenement is used for that purpose, but ceases when the specified use ceases. Moreover, a way of necessity is a temporary right in the sense that it continues only so long as the necessity exists.' 17 Am.Jur., Easements, p. 1023, sec. 137.

'Cessation of Purpose or Necessity

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'b. * * * While ordinarily a right of way of necessity continues until some other lawful was has been acquired, and cannot be extinguished so long as the necessity continues to exist, nevertheless, a way of...

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