David J. French Revocable Trust Of 1991 v. Jacob
| Decision Date | 17 November 2010 |
| Docket Number | Cir. Ct. No. 2007CV385,Appeal No. 2009AP1335 |
| Parties | David J. French Revocable trust of 1991, Jeanna n. French and Paula van Akkeren, Plaintiffs-Appellants, v. William C. Jacob, Jr. and Virginia Jacob, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
APPEAL from an order of the circuit court for Sheboygan County: JAMES J. BOLGERT, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J. and Anderson, J.
¶1 David J. French Revocable Trust of 1991, Jeanna N. French, and Paula Van Akkeren (the Frenches) have appealed from an order denying their motion for reconsideration of an order granting summary judgment to the respondents, William Jacob, Jr., and Virginia Jacob (the Jacobs). Weconclude that summary judgment was properly granted to the Jacobs and affirm the order.
¶2 This appeal involves a property dispute. The Frenches and the Jacobs own adjacent properties on Elkhart Lake (the Jacobs' property and the French property). The Jacobs' property lies to the north of a portion of the French property.1 It can be accessed only by French Road, which runs across the French property. At the juncture where French Road reaches the Jacobs' property, it veers south toward the portion of the French property on which the Frenches have a cottage. An easement recorded in 1955 permits the owners of the Jacobs' property to use French Road for ingress and egress.
¶3 Prior to 1955, the Jacobs' property was owned by Keith Osborn. The French property was owned by Keith's brother, Gordon. In 1979, Gordon Osborn sold his property to Rosemary and Jack Van Der Vaart. In 1989, Rosemary Van Der Vaart sold the property to the Frenches.
¶4 As of 1955, the property owned by Keith Osborn was inherited by his children, Katherine Osborn, Harriet Osborn Bliss, and Otis Osborn, whose wife was Irene S. Osborn. In 1992, Irene S. Osborn and the Otis B. Osborn Residual Trust sold the property to the Jacobs.
¶5 When the Jacobs purchased their property, it had a cottage situated on the eastern portion of the property toward the lake, and a carport on the westend of the property. In 2004, the Jacobs tore down the cottage and carport. They completed a new residence and garage in 2005. They paved the driveway in front of the garage. The paved driveway lies partly on the easement and partly on the property that is the subject of this litigation (the disputed property). The disputed property constitutes a rectangular piece of land approximately sixty-two feet by twenty-two feet. It lies to the west of the Jacobs' new garage, and extends south to a line of bushes, which runs east to west and separates the disputed property from the Frenches' cottage and yard immediately to the south of the bush line. The disputed property includes the south portion of the Jacobs' driveway, a portion of the walkway to their house, and a grassy area surrounding two trees, which ends at the bush line separating the disputed property from the Frenches' yard.
¶6 In their complaint, the Frenches sought a declaration that the Jacobs had no right to drive or park on the portion of the driveway that was not within the easement, no right to pave the driveway, and no right to continue parking on the remaining grassy portion of the disputed property. They sought injunctive relief and damages. The Jacobs answered and counterclaimed, alleging that they had a prescriptive right of use of the disputed property. They also claimed that the Frenches were estopped from bringing their claims.
¶7 The trial court ultimately granted the Jacobs' motion for summary judgment. It concluded that the Frenches were equitably estopped from demanding removal of the driveway or objecting to the Jacobs' use of the driveway for access to their garage. It further concluded that the Jacobs have a prescriptive right to use that part of the disputed property located south of the driveway and extending to the bush line for access and parking. We agree with both conclusions.
¶8 We review a trial court's grant or denial of summary judgment de novo. Krier v. Vilione, 2009 WI 45, ¶14, 317 Wis. 2d 288, 766 N.W.2d 517. Upon review we apply the same standards as those used by the trial court, as set forth in WIS. STAT. § 802.08 (2007-08).2 Krier, 317 Wis. 2d 288, ¶14. If the pleadings state a claim and demonstrate that material factual issues exist, our inquiry shifts to the moving party's affidavits or other proof to determine whether a prima facie case for summary judgment has been presented. Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶22, 241 Wis. 2d 804, 623 N.W.2d 751. If the moving party has made a prima facie case, the affidavits or other proof of the opposing party must be examined to determine whether there exist disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial. Id.
¶9 The party that opposes a summary judgment motion must set forth specific facts, evidentiary in nature and admissible in form, demonstrating that a genuine issue exists for trial. Helland v. Kurtis A. Froedtert Memorial Lutheran Hosp., 229 Wis. 2d 751, 756, 601 N.W.2d 318 (Ct. App. 1999). "It is not enough to rely upon unsubstantiated conclusory remarks, speculation, or testimony which is not based upon personal knowledge." Id. "[S]ummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995).
¶10 Based upon the record, we conclude that the trial court properly granted summary judgment determining that the Jacobs have a prescriptive right touse that part of the disputed property located south of the driveway and extending to the bush line for access and parking. With some exceptions that are inapplicable here, the continuous adverse use of the rights of another in real estate for at least twenty years establishes the prescriptive right to continue the use. WIS. STAT. § 893.28(1). An easement by prescription has four elements: (1) adverse use hostile and inconsistent with the exercise of the titleholder's rights; (2) which is visible, open and notorious; (3) under an open claim of right; and (4) is continuous and uninterrupted for twenty years. Ludke v. Egan, 87 Wis. 2d 221, 230, 274 N.W.2d 641 (1979).
¶11 The unexplained use of property for a period of twenty years is presumed to be adverse and under a claim of right. Widell v. Tollefsont158 Wis. 2d 674, 684, 462 N.W.2d 910 (Ct. App. 1990). Permissive use is not adverse. Ludket87 Wis. 2d at 230. However, acquiescence alone does not demonstrate the type of permission needed to overcome the presumption of adverse use. Widell, 158 Wis. 2d at 685. Moreover, hostility merely requires that the use be inconsistent with the rights of the titleholder. Id. at 685. It does not require unfriendly intent or ill will, nor do friendship and close personal relationships rebut the presumption of hostility and adverseness. Id.
¶12 Possession, or the intent to possess as one's own, is not a prerequisite to a claim of prescriptive easement, and the use need not be to the exclusion of the owners. Shellow v. Hagen, 9 Wis. 2d 506, 511, 101 N.W.2d 694 (1960). Continuity of use depends on the nature and character of the right that is claimed, and need not be constant, daily, or weekly. Widell, 158 Wis. 2d at 685. A claimant's failure to use property for all purposes when not needed does not disprove the continuity of use when needed. See Shellow, 9 Wis. 2d at 512-13.
¶13 Applying these principles to the summary judgment record, we conclude that the Jacobs established a right to summary judgment that was not rebutted by the Frenches. Irene Osborn's affidavit indicated that she began going to the Jacobs' property with her husband, Otis, in 1953, when it was still owned by Otis' parents, Keith and his wife. Irene attested that she, Otis, and their children moved to Mississippi in 1960, but returned to the cottage once a year for two to four weeks at a time during the summer months of July or August. She attested that they visited the cottage almost every year until 1979, when Otis died. She attested that Otis' sister, Harriet Bliss, also lived outside Wisconsin and would visit the cottage every summer with her children.
¶14 Irene Osborn attested that during the time she went to the cottage, "[w]e would usually park to the North of the lilac bushes, and the people from Gordon's house would usually park to the South of the bushes, but if we ever needed more parking space, cars from either house might park on the other side of the bushes or in the field across the road." Irene attested that after 1979, she went to the cottage at least twice by herself, and at some point in the 1980's began renting out the cottage.
¶15 The two affidavits of Laura Wynne, the daughter of Otis and Irene Osborn, corroborated Irene's affidavit. Wynne attested that she stayed at the property inherited by her father many times through the 1960's, 70's, 80's, and 90's. She attested that after moving to Mississippi around 1961, her family visited the cottage every summer thereafter, usually for two weeks, until 1979 when her father died. Although Wynne acknowledged that she did not go to the cottage as frequently in the 1980's, she attested that her mother went there by herself on a couple of occasions in the 1980's. Wynne also attested that she stayed there a couple of times in the 1990's, before the property was sold to the Jacobs in 1992.
¶16 In her affidavits, Wynne attested that the...
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