Bohm v. Leiber

• Citation: 948 N.W.2d 370,393 Wis.2d 757,2020 WI App 52
• Decision Date: 08 July 2020
• Docket Number: Appeal No. 2019AP728
• Parties: Michael BOHM and Gigi Bohm, Plaintiffs-Respondents, v. Michael LEIBER and Katrina Leiber, Defendants-Appellants.
• Court: Court of Appeals of Wisconsin

393 Wis.2d 757

948 N.W.2d 370

2020 WI App 52

Michael BOHM and Gigi Bohm, Plaintiffs-Respondents,

v.Michael LEIBER and Katrina Leiber, Defendants-Appellants.

Appeal No. 2019AP728

Court of Appeals of Wisconsin.

Submitted on Briefs: January 22, 2020

Opinion Filed: July 8, 2020

On behalf of the defendants-appellants, the cause was submitted on the briefs of John M. McTernan of Alia, DuMez & McTernan, S.C., Kenosha.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Thomas M. Devine of Devine Hahn, S.C., Racine.

Before Reilly, P.J., Gundrum and Davis, JJ.

GUNDRUM, J.

¶1 Michael and Katrina Leiber appeal an order of the circuit court declaring as valid an easement over their property in favor of Michael and Gigi Bohm, the Leibers’ neighbors to the north. The Leibers claim the court erred in determining on summary judgment that the easement was not abandoned. They alternatively contend that even if the easement remains valid, the Bohms nonetheless cannot build their planned driveway on it as the driveway does not constitute a "roadway," which is the easement's specified purpose. We conclude that there is a factual question as to whether the easement was abandoned, and thus reverse on that issue, but agree with the circuit court that if the easement was not abandoned, the Bohms’ proposed driveway is an acceptable use under the easement.

Background

¶2 Prior to 1972, the Leibers’ property and the Bohms’ property were owned by Eugenia Meyer. In 1972, Frederick and Jane Fowle purchased a parcel from Meyer, and in 1978, purchased an additional parcel. In conjunction with the 1978 purchase, the Fowles received an easement over Meyer's remaining property, which was adjacent and to the south of the Fowles’ property. In relevant part, the easement document states that the seller (Meyer)

grants for herself, her heirs, representatives and assigns, the right of easement to the parties of the second part, their heirs, representatives and assigns, to construct and maintain and use perpetually a roadway for the purpose of ingress and egress by the said parties of the second part, their licensees and invitees to lands lying north of and adjacent to the following described real estate ....

(Emphasis added.) The document further describes the easement as being "66 feet" wide.

¶3 In 2000, the Bohms purchased the Fowles’ property, including the easement on the adjacent property to the south. At some point, Michael Bohm (Bohm), with the permission of the then-owners of the southern property (now the Leibers’ property), planted numerous trees, created an approximately one-foot berm, and installed "removable solar landscape lighting" within the easement area. As to the trees, Michael Leiber (Leiber) averred that they consist of "at least 61 new trees in the middle of the easement corridor," including "a grove of fruit trees, dozens of cedars, other conifers, and a redwood tree."

¶4 In 2016, the Leibers purchased the southern property over which the easement lies. Leiber averred that prior to the purchase, Bohm told Leiber that Bohm "had no intention of ever building a roadway on the easement property." After the purchase, the Leibers became concerned with tenants of the Bohms using a portion of the easement as a "parking lot." As a result, the Leibers posted the property and erected fencing to prohibit this use. They also constructed a driveway which enters onto a portion of the easement area.

¶5 The Bohms subsequently filed this declaratory judgment action requesting "a declaration of their right to the easement," an injunction prohibiting the Leibers from interfering with their right to use of the easement, and the removal of the Leibers’ fencing and new driveway. The Bohms also sought damages based upon alleged trespass by the Leibers. The Leibers counterclaimed, alleging trespass by the Bohms. The Bohms moved for declaratory judgment.

¶6 While this litigation was pending, the Bohms made plans to install a sixteen-foot-wide driveway on the easement. This led to the amendment of the Leibers’ counterclaim in order to allege that the driveway is not a permitted use of the easement as the easement only allows for construction of a "roadway" and the proposed driveway does not constitute a roadway. Following the filing of the amended counterclaim, the Bohms moved for declaratory and summary judgment and the Leibers moved for declaratory judgment.

¶7 The circuit court entered an order, in favor of the Bohms, declaring that the easement was not abandoned, and is thus still valid, and that the Bohms’ proposed driveway is a permissible use. The court also granted an injunction to the Leibers prohibiting the Bohms from continuing their use of the easement area for "arboretums, parking lots, or ... private landscaping" as those were not permissible uses. The court further ruled that the Leibers may continue to utilize their already-constructed driveway as long as it does not interfere with the Bohms’ easement right. The Leibers appeal the court's rulings that the easement is still valid and the Bohms’ proposed driveway is a permissible use. The Bohms do not appeal the rulings in favor of the Leibers.

Discussion

¶8 Our review of a circuit court's decision on summary judgment is de novo.

Behrendt v. Gulf Underwriters Ins. Co. , 2009 WI 71, ¶11, 318 Wis. 2d 622, 768 N.W.2d 568. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. "An issue of fact is genuine if a reasonable jury could find for the nonmoving party." Nielsen v. Spencer , 2005 WI App 207, ¶10, 287 Wis. 2d 273, 704 N.W.2d 390. At the summary judgment stage, all facts and reasonable inferences must be viewed in the light most favorable to the nonmoving party, here, the Leibers. Lambrecht v. Estate of Kaczmarczyk , 2001 WI 25, ¶23, 241 Wis. 2d 804, 623 N.W.2d 751.

¶9 "The grant or denial of a declaratory judgment is addressed to the circuit court's discretion. However, when the exercise of such discretion turns upon a question of law, we review the question independently of the circuit court's determination." Olson v. Farrar , 2012 WI 3, ¶24, 338 Wis. 2d 215, 809 N.W.2d 1 (citation omitted).

Validity of the Easement

¶10 The Leibers argue the circuit court erred in declaring upon summary judgment that the easement is still valid. They insist there is a genuine issue of material fact as to whether the easement was abandoned due to the forty-year period in which a roadway had not been installed coupled with Bohm's planting of sixty-one trees in the easement area and his later comment that he "had no intention of ever building a roadway on the easement." We agree there is a genuine issue of material fact.

¶11 Whether an easement has been abandoned is "ordinarily a question of fact." See Pollnow v. DNR , 88 Wis. 2d 350, 362, 276 N.W.2d 738 (1979)¹ ; see also Burkman v. City of New Lisbon , 246 Wis. 547, 557, 18 N.W.2d 4 (1945).

¶12 In Spencer v. Kosir , 2007 WI App 135, ¶3, 301 Wis. 2d 521, 733 N.W.2d 921, we considered whether an easement providing "a right of way for road purposes" was abandoned. Doing so, we turned to comments (c) and (d) of the RESTATEMENT OF THE LAW OF PROPERTY , § 504 ( AM. LAW INST. 1944), which state:

c. Conduct as to use. An intentional relinquishment of an easement indicated by conduct respecting the use authorized by it constitutes an abandonment of the easement. The intention required in the abandonment of an easement is the intention not to make in the future the uses authorized by it. The benefit of an easement lies in the privilege of use of the land subject to it. There is no abandonment unless there is a giving up of that use. The giving up must be evidenced by conduct respecting the use of such a character as to indicate an intention to give up the use for the future as well as for the present. Conduct, when inconsistent with the continuance of the use, indicates an intention to give it up. The conduct required for abandonment cannot consist of verbal expressions of intention. Such expressions are effective to extinguish an easement only when they comply with the requirements of a release and operate as such. Verbal expressions of an intention to abandon are relevant, however, for the purpose of giving meaning to acts which are susceptible of being interpreted as indicating an intention to give up the use authorized by an easement, but which do not of themselves conclusively demonstrate the intention which animated them.

....

d. Non-use. Conduct from which an intention to abandon an easement may be inferred may consist in a failure to make the use authorized. Non-use does not of itself produce an abandonment no matter how long continued. It but evidences the necessary intention. Its effectiveness as evidence is dependent upon the circumstances. Under some circumstances a relatively short period of non-use may be sufficient to give rise to the necessary inference; under other circumstances a relatively long period may be insufficient. The duration of the period of nonuse, though never conclusive as to the intention to abandon, is ordinarily admissible for the purpose of showing intention in that regard.

(Emphasis added.)

¶13 As these Restatement comments and our reliance upon them in Spencer² indicate, Bohm's comment that he had "no intention of ever building a roadway on the easement," by itself, would be insufficient to constitute abandonment. Nor does the fact that the easement area never has been utilized as a roadway, by itself, conclusively show abandonment. These facts, however, could "giv[e] meaning" to Bohm's act of planting sixty-one "new trees in the middle of the easement corridor," including "a grove of fruit trees, dozens of cedars, other conifers, and a redwood tree."

See RESTATEMENT OF THE LAW OF PROPERTY , § 504 cmt. (c) ( AM. LAW INST. 1944). In particular, Bohm's substantial planting is at least "susceptible of being interpreted...