787 N.W.2d 6 (Wis. 2010), 2008AP2028, Grygiel v. Monches Fish & Game Club, Inc.

Docket Nº:2008AP2028.
Citation:787 N.W.2d 6, 2010 WI 93
Party Name:Barbara C. GRYGIEL and Janet M. Nahorn, Plaintiffs-Appellants-Petitioners, v. MONCHES FISH & GAME CLUB, INC., Defendant-Respondent, Karl J. Scheife, Defendant.
Attorney:For the plaintiffs-appellants-petitioners there were briefs by John A. Rothstein and Quarles & Brady LLP, Milwaukee, and oral argument by John A. Rothstein. For the defendant-respondent there was a brief by Lance S. Grady, Daniel K. Miller, and Grady, Hayes & Neary, LLC, Waukesha, and oral argume...
Judge Panel:SHIRLEY S. ABRAHAMSON, Chief Justice (concurring in part, dissenting in part).
Case Date:July 20, 2010
Court:Supreme Court of Wisconsin

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787 N.W.2d 6 (Wis. 2010)

2010 WI 93

Barbara C. GRYGIEL and Janet M. Nahorn, Plaintiffs-Appellants-Petitioners,


MONCHES FISH & GAME CLUB, INC., Defendant-Respondent,

Karl J. Scheife, Defendant.

No. 2008AP2028.

Supreme Court of Wisconsin.

July 20, 2010

Argued Feb. 11, 2010.

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For the plaintiffs-appellants-petitioners there were briefs by John A. Rothstein and Quarles & Brady LLP, Milwaukee, and oral argument by John A. Rothstein.

For the defendant-respondent there was a brief by Lance S. Grady, Daniel K. Miller, and Grady, Hayes & Neary, LLC, Waukesha, and oral argument by Lance S. Grady.

An amicus curiae brief by Debra Peterson Conrad and the Wisconsin Realtors® Association, Madison, on behalf of the Wisconsin Realtors® Association.


¶ 1 We review a decision of the court of appeals 1 affirming the circuit court's decision 2 denying Barbara C. Grygiel's and Janet M. Nahorn's (collectively, Grygiel) motion for summary judgment and dismissing Grygiel's complaint.3 Monches Fish & Game Club, Inc. (the Club) has an easement over Grygiel's property " for the purpose of ingress and egress as a means of access" to the Club's property. Grygiel alleges that Karl J. Scheife (Scheife), a Club member, and several invitees, crossed the easement and entered the Club's land for the purpose of accessing property located south of the Club's land. The issues in this case are whether Scheife's use of the easement to achieve access to property other than the Club's property contravened the express terms of the Club's easement and, if so, whether Scheife committed trespass on Grygiel's property by that act. We conclude that Scheife contravened the express terms of the Club's easement by entering Grygiel's property without consent and in doing so he unlawfully trespassed on Grygiel's land. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for entry of judgment granting Grygiel a declaration of trespass and an award of nominal damages.


¶ 2 The relevant facts are undisputed. Grygiel owns and resides on 32 acres of property in Washington County, the westerly side of which has access to and abuts Erin Road, a public roadway.4 The Club owns 120 acres of land east of Grygiel's property, a portion of which abuts Grygiel's property. No portion of the Club's property abuts a public roadway.

¶ 3 The Club, a non-stock corporation, has 75 members and permits its members to use its 120 acres for hunting year round. Additionally, each member is permitted to bring family members, invitees and individuals interested in joining the Club onto the Club's property.

¶ 4 On March 22, 1973, Grygiel's predecessors in interest, Alta and David Fruit, granted the Club's predecessors in interest, Melvin and Arline Voigt, an easement appurtenant to the Club's property, permitting

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access to the Club's land via a 40-foot strip across Grygiel's land. The written easement recorded with the register of deeds provides in relevant part:

David J. Fruit and Alta R. Fruit, his wife, hereby grant to Melvin Voigt and Arline Voigt, his wife, and to their heirs and assigns, an easement for the purpose of ingress and egress as a means of access to the NW-1/4 of SE-1/4, the SW-1/4 of NE-1/4, and NE-1/4 of SW-1/4, all in Section 31, Township 9 North, Range 10 East.

This easement shall extend from the above described land West to Erin Road and shall be 40 feet in width.

It is undisputed that the legal description in the easement describes the Club's 120 acres. Grygiel does not dispute that such easement permits the Club's members and its invitees to cross the easement strip to access the Club's land.

¶ 5 On November 24, 2006, Scheife, who is a Club member, and seven other non-Club members, were deer hunting on a 100-acre parcel of land owned by the Unrein family (Unreins). Such 100-acre parcel is located approximately one-quarter mile south of the Club's land. Immediately to the north of the 100-acre parcel is another 40-acre parcel also owned by the Unreins. Portions of the 40-acre parcel borders the Club's land to the north, Grygiel's land to the west and the Unreins' 100-acre parcel to the south. Scheife rents a home on the Unreins' land and his lease gives him hunting privileges on all of the Unreins' land.

¶ 6 After hunting the Unreins' 100-acre parcel, Scheife and the other hunters accompanying him decided to hunt on the Unreins' 40-acre parcel. The hunters drove from the Unreins' 100-acre parcel across the Club's easement, accessed via Erin Road, to the Club's property. They parked their vehicles on the Club's property and from there crossed the Club's property, which required the hunters to cross over a fence, and entered the Unreins' adjacent 40-acre parcel. It is undisputed that the hunters did not hunt on the Club's property that day. It is further undisputed that the hunters could have accessed the Unreins' 40-acre parcel directly from the 100-acre parcel, but instead chose to access the 40-acre parcel from the north via the Club's property.5 Scheife said that he and his invitees crossed the Club's easement " for the express purposes of hunting the [Unreins'] 40 acres to the south."

¶ 7 After the group was done hunting, they returned to the Unreins' 100-acre parcel. From there two members of the hunting party drove Scheife back toward the Club's easement, with the intention of retrieving Scheife's vehicle from the Club's property. As they approached the easement from Erin Road, they saw that Grygiel had blocked access to the easement. Grygiel then called the sheriff's department and a deputy arrived shortly thereafter.

¶ 8 On March 9, 2007, Grygiel filed suit against the Club and Scheife alleging common law trespass and breach of the terms and covenants set forth in the written easement.6 Specifically, with respect to

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the trespass claim, Grygiel alleged that Club member Scheife's use of the easement to enter the Unreins' land via the Club's property was " outside of the limited permission set forth in the Easement, and thus, since their conduct on [Grygiel's] Property was without permission, such conduct constituted a trespass of [Grygiel's] Property." In his answer, Scheife admitted he " did not ask for, nor did he receive, any permission from [Grygiel] ... to come on [Grygiel's] Property." Grygiel stipulated to limit her damages to an award of nominal damages, upon a declaration of trespass.7

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¶ 9 Grygiel moved for summary judgment. In a written decision, the circuit court denied Grygiel's motion, concluding that " the defendant, Mr. Scheife, properly used the easement granted to the [Club] as a means of gaining access to the dominant estate. The fact that he subsequently entered the adjoining property, with permission, does not impermissibly extend the use of the easement." As a result, the circuit court concluded that Grygiel's " claim for trespass and breach of easement cannot be proven and must be dismissed."

¶ 10 The court of appeals affirmed, relying on its interpretation of Millen v. Thomas, which held that " an easement for a specified purpose may not be enlarged such that an added burden is placed upon the servient estate," 201 Wis.2d 675, 685, 550 N.W.2d 134 (Ct.App.1996). The court of appeals focused its analysis on whether Scheife's use of the easement created an additional burden on the servient estate, Grygiel's property. Grygiel v. Monches Fish & Game Club, Inc., 2009 WI App 102, ¶ 14, 320 Wis.2d 550, 770 N.W.2d 749. The court of appeals concluded:

[T]he undisputed facts indicate that when Club member Scheife and his invitees traveled the access road[, the easement,] to the Club's property, the burden on the servient estate was no greater than it would have been had the hunters remained on the Club property.... Consequently, Grygiel's claims for misuse of the easement were properly dismissed.

Id., ¶ 15.

¶ 11 We granted review and now reverse.


A. Standard of Review

¶ 12 " We review a grant of summary judgment independently, applying the same methodology as the circuit court." City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶ 13, 302 Wis.2d 599, 734 N.W.2d 428 (citing AKG Real Estate, LLC v. Kosterman, 2006 WI 106, ¶ 14, 296 Wis.2d 1, 717 N.W.2d 835). In order to determine whether summary judgment is appropriate in this case, we must interpret the document creating the 1973 easement. See AKG Real Estate, 296 Wis.2d 1, ¶ 14, 717 N.W.2d 835. Interpreting the language of a deed granting an easement is a question of law we review independently, but benefiting from the analyses of both the circuit court and the court of appeals. See id.

B. General Principles of Easement Law

¶ 13 " An easement is a liberty, a privilege, or an advantage in lands without profit and distinct from an ownership." Union Falls Power Co. v. Marinette Cnty., 238 Wis. 134, 138, 298 N.W. 598 (1941). Easements may be classified as either appurtenant or in gross. Gojmerac v. Mahn, 2002 WI App 22, ¶ 18, 250 Wis.2d 1, 640 N.W.2d 178; see also Union Falls, 238 Wis. at 138, 298 N.W. 598 (" Easements are of two classes, easements appurtenant and easements in gross." ). In this case, our focus is on easements appurtenant as it is undisputed that the 1973 deed granted an easement appurtenant. Accordingly, an expanded review of the characteristics of easements appurtenant will be helpful.

¶ 14 " ‘ Appurtenant’ means that the rights or obligations of a servitude are tied to ownership or occupancy of a particular

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unit or parcel of land." Gojmerac, 250 Wis.2d 1, ¶ 18, 640 N.W.2d 178 (citing Restatement (Third) of Prop.: Servitudes § 1.5, at 30 (2000)). " An appurtenant easement creates two distinct property interests: the dominant estate ... and the servient estate." Id.,...

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