Atkinson v. Mentzel

• Citation: 566 N.W.2d 158,211 Wis.2d 628
• Decision Date: 07 May 1997
• Docket Number: No. 96-0160,96-0160
• Parties: Paul D. ATKINSON, Plaintiff-Respondent, v. Donald D. MENTZEL, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

Page 158

566 N.W.2d 158

211 Wis.2d 628

Paul D. ATKINSON, Plaintiff-Respondent, v. Donald D. MENTZEL, Defendant-Appellant.

No. 96-0160.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 16, 1996.

Opinion Released May 7, 1997.

Opinion Filed May 7, 1997.

[211 Wis.2d 631] On behalf of the defendant-appellant, the cause was submitted on the briefs of William H. Gergen, Gergen, Gergen & Pretto, S.C. of Beaver Dam.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Paul W. Rosenfeldt of Edgarton, St. Peter, Petak, Massey & Bullon of Fond du Lac.

Before SNYDER, P.J., and NETTESHEIM and ANDERSON, JJ.

NETTESHEIM, Judge.

This is an action to determine the scope and extent of an easement. Both the appellant, Donald D. Mentzel, and the respondent, Paul D. Atkinson, requested the trial court to declare the scope and extent of Atkinson's access easement across Mentzel's land.

The trial court ruled that the language of Atkinson's easement was not limited to physical ingress and egress, but extended to the installment of utilities. We affirm this ruling. The trial court also expanded the boundaries of the original easement to include some additional portions of Mentzel's property. As to two of these expansions, we uphold the court's ruling. As to a further expansion, we reverse.

Mentzel raises two additional issues. He contends that the trial court erred in awarding him only $200 for damages which Atkinson caused to a portion of the easement property. He further contends that the trial court should have assessed costs against Atkinson for filing a frivolous defense. We reject both of these additional arguments.

FACTS

Atkinson's complaint alleged that Mentzel had repeatedly refused to recognize Atkinson's right to access his land by an easement across Mentzel's property. Specifically, Atkinson alleged that Mentzel had denied him utility access across the easement area by repeatedly severing the telephone cable lines. Atkinson requested that the trial court declare the scope and extent of his easement and enjoin Mentzel from interfering with his right to the easement.

Mentzel answered Atkinson's complaint conceding that Atkinson had an access easement across his land but denying that the easement included access for utility purposes. Mentzel also counterclaimed for trespass alleging that Atkinson had improperly extended the use of his easement beyond its boundaries and had improperly expanded the purposes of the easement by installing telephone cable service. Mentzel joined Atkinson's request that the trial court declare the scope and extent of the easement.

We begin by describing the layout of each party's property, recognizing that words are difficult to convey the visual image. Therefore, to assist the reader, we have prepared a diagram which we hope will assist in this effort. This diagram is attached to this opinion as "Exhibit A." We stress that this exhibit is our drawing based on the parties' briefs and the appellate record. It is not an exhibit from the trial court proceedings, nor is it drawn to scale. ¹

Mentzel's property is indicated as such on Exhibit A. Two of his boundaries are easily described. The property is bordered on the west by Lake Shore Drive and on the north by Roosevelt Avenue.

The southern and eastern boundaries are less easily described. Originally, the property was generally bordered on the south by Franklin Avenue. That street has since been vacated and, as a result, Mentzel's south border now includes all of the former Franklin Avenue. Closer to Lake Winnebago, however, this boundary extends south of Franklin Avenue to take in an area between Lake Winnebago On the east, Mentzel's property is bordered generally by Sheridan Drive. However, at the southern end of Sheridan Drive, Mentzel's property line tracks east to the shore of Lake Winnebago. Sheridan Drive has also been vacated. As a result, Mentzel acquired ownership of the western half of the vacated roadway and his adjoining landowners, including Atkinson, acquired ownership of the eastern half.

and a channel leading from the lake to Franklin Avenue. As Exhibit A reveals, the southern half of vacated [211 Wis.2d 634] Franklin Avenue is interrupted at one point by this channel.

Atkinson's property is indicated as such on Exhibit A. It lies to the east and north of Mentzel's property and includes a structure indicated as the "Atkinson Boathouse/Garage" on the exhibit. The western boundary line is the center of the vacated Sheridan Drive. The east boundary line is Lake Winnebago. The southern boundary line is the Mentzel property which runs to the lake. The north boundary line greets other property unrelated to this case.

We now turn to the history of these properties which produced the easement. Mentzel's property was originally owned by Chaparral, Inc. (Chaparral) in 1980. The corporation's shareholders at the time of the purchase included Mentzel, Florian and Min-Chiang Erspamer, and one other partner. Chaparral operated a banquet facility on the property. During the time that Chaparral owned the property, Florian Erspamer purchased the property now owned by Atkinson. At that time, a boathouse existed on the property. Erspamer converted the boathouse into a storage garage facility. He rented space in the garage to Atkinson and others. Atkinson used the space to store a truck which he used in his trucking business. The other renters stored boats in the garage.

After a falling out between the Chaparral shareholders, Mentzel conveyed his interest in the corporation to Erspamer. Thereafter, a foreclosure action was commenced against Chaparral. Mentzel then reentered the picture, purchasing the property from Chaparral. The deed of conveyance created the easement at issue in this case. The deed reserved an easement to Erspamer in order to provide access to his property on Lake Winnebago. This easement occupied the south one half of vacated Franklin Avenue and is indicated on Exhibit A by the angular lines (////). The easement is described in the deed as follows:

Reserving unto Florian Erspamer and Min-Chiang Erspamer, his wife, their guests, invitees and assigns a right-of-way on and over the paved parking lot on the premises described in the first paragraph of the legal description set forth above extending from Lake Shore Road to Lake Winnebago. The purpose of this easement is to provide access from Lake Shore Drive to the following described real estate and shall allow access for all uses of said property other than retail sales. ²

Erspamer later conveyed the property to Atkinson. At that time, the property did not have utility service.

TRIAL COURT PROCEEDINGS

Both Mentzel and Atkinson asked the trial court to declare the scope and extent of the easement, particularly as to whether the easement permitted Atkinson to install utility service. Following a two-day bench trial, the court issued an oral decision followed by a written judgment which included the following conclusion of law:

[T]he express purpose of the easement is to provide a right-of-way over [Mentzel's] property for access from the Atkinson property to Lake Shore Drive. ... [T]his right-of-way for access to Lake Shore Drive is for all forms of ingress and egress and for all utilities whether above, at, or below grade, which lend themselves to the full use and enjoyment of the Atkinson property for any purpose with the sole exception of retail sales.

In addition, the trial court also redefined and expanded the boundaries of the easement in three respects. First, the court moved the easement from the south half of the vacated Franklin Avenue to the north half. This relocated area is represented on Exhibit A by the dotted markings along Franklin Avenue. The court reasoned that this alteration was necessary since a portion of the original easement route was now interrupted by the channel.

Second, the trial court expanded the boundaries of the easement to include the western half of vacated Sheridan Drive along the Atkinson/Mentzel property line. This expansion is represented on our exhibit by the dotted markings along Sheridan Drive. The court reasoned that this expansion was necessary so that Mentzel could access his garage with his trucks.

Third, the trial court expanded the boundaries of the easement to include a portion of Mentzel's property which lies between the channel and Lake Winnebago. This expansion is represented on our exhibit by the checkered markings (xxxx). As with the expansion along Sheridan Drive, the court reasoned that this expansion was necessary so that Atkinson could effectively use the garage.

In further support of its rulings, the trial court also reasoned that these alterations and expansions were proper because the use access recited in the easement was unrestricted except as to retail sales.

The trial court also awarded Mentzel $200 in damages to cover his estimated expenses for removing certain debris and other materials which Atkinson had deposited on a portion of the easement property. Finally, the court denied Mentzel's request for frivolous costs based on an adverse possession defense which Atkinson had interposed, but later withdrew, in response to Mentzel's counterclaim for trespass.

Mentzel appeals all of the trial court rulings we have recited. We will state additional facts as we discuss the appellate issues.

DISCUSSION

Scope of the Access Easement

An easement is an interest in land which is in the possession of another. See Millen v. Thomas, 201 Wis.2d 675, 678, 550 N.W.2d 134, 135 (Ct.App.1996). An easement creates two distinct property interests: the dominant estate, which enjoys the privileges granted by an easement; and the servient estate, which permits the exercise of those privileges. See id. We must look to the instrument which created the easement in construing the relative rights of the landowners. See Hunter v. McDonald, 78 Wis.2d 338, 342-43, 254 N.W.2d 282, 285 (19...