Deering v. Wangerin
| Decision Date | 26 April 2005 |
| Docket Number | No. 2004AP950.,2004AP950. |
| Citation | 698 NW 2d 132,283 Wis.2d 508,2005 WI App 111 |
| Parties | Scot Deering and Susan Deering, Plaintiffs-Appellants-Cross-Respondents, v. William Wangerin and Barbara Wangerin, Defendants-Respondents-Cross-Appellants, Jacob Basten, Mary Basten, David P. Gehrke, Kathleen L. Gehrke, Gerard Roffers, Carolyn Roffers, Ronald Van Caster and Judith Van Caster, Defendants-Respondents-Cross-Respondents. |
| Court | Wisconsin Court of Appeals |
Before Cane, C.J., Hoover, P.J., and Peterson, J.
Scot and Susan Deering appeal a judgment that a remote garage, built by William and Barbara Wangerin on land they owned, did not substantially interfere with the Deerings' use of an easement running over that land. The Wangerins cross-appeal a judgment that they pay the attorney fees of their co-defendants, Jacob and Mary Basten, David and Kathleen Gehrke, Gerald and Carolyn Roffers, and Ronald and Judith Van Caster, whose claims were dismissed without prejudice before the trial began.
¶2 The Deerings argue the trial court erred when it determined that the Wangerins' garage did not unreasonably interfere with their use of their easement and their easement gave them use only of a twenty-foot corridor on the southerly side of the Wangerins' seventy-five-foot parcel. Based on those claims, the Deerings contend the trial court should have ordered the garage removed and compensated them for damages including loss of use and diminution of property value. The Deerings also contend the court exercised its discretion erroneously when it relied solely on one witness's testimony to establish the value of a tree the Wangerins removed from the Deerings' property. Finally, the Deerings argue the trial court erred when it refused to order the Wangerins to pay their attorney fees. They claim the trial court based its refusal on an erroneous finding that Scot did not have "clean hands," ignored the fact he was the prevailing party, and wrongly distinguished between him and the defendants who were dismissed from the case.
¶3 On cross-appeal, the Wangerins argue the trial court erred when it ordered them to pay the attorney fees of their co-defendants the Bastens, Gehrkes, Roffers, and Van Casters because the Wangerins did not bring the other defendants into the litigation and their garage did not interfere with the Deerings' easement rights. According to the Wangerins, the trial court's judgment effectively punishes them for prevailing.
¶4 We reject the Deerings' arguments that the trial court erred when it located an easement corridor within the seventy-five-foot parcel and agree that the Wangerins' garage did not unreasonably interfere with the Deerings' use of their easement. We therefore affirm that part of the judgment. However, because we conclude there was no legal authority to award the Wangerins' co-defendants their attorney fees, we reverse that part of the judgment.
¶5 In 1984, the Deerings purchased 406 Olden Glen Road, a property with frontage on the Fox River. The land came with "an Easement of ingress and egress to and from said above described land over a strip of land 75 feet wide described as lying immediately Northerly of the following line which is the southerly boundary of said 75-foot strip."1 When the Deerings bought their land, the seventy-five-foot strip was crossed by a graveled road. The Deerings and their neighbors used that road to enter their properties, to load and unload boats, and to access the Fox River. In addition to the graveled road, some or all of the neighbors used a graveled turnaround area. The Deerings also regularly parked vehicles and stored supplies within the seventy-five-foot parcel.
¶6 In 2001, the Wangerins bought a lot in the same area, also fronting on the Fox River, on which they planned to build a house.2 Soon after that, they purchased the seventy-five-foot parcel of land, which lay between their property and the Deerings' land, over which the easement ran. The Wangerins cut and cleared parts of the easement area, planted trees and vegetation, placed rip rap, put in a snow fence, and eventually began to build a remote garage on the side of the seventy-five-foot parcel closest to the Deerings' property.
¶7 Trouble between the new neighbors began almost immediately. By May 2002, the conflict between the Deerings and the Wangerins had escalated to the point that the Deerings sued the Wangerins for interference with their easement rights. They also sought an injunction to prevent the Wangerins from continuing any projects within the seventy-foot strip, including the construction of the garage.
¶8 In April 2003, the Deerings began installing a pier on the Fox River within the seventy-five-foot parcel—a right they had under a second easement.3 The Wangerins removed stakes and other construction items because they were not within the parcel. The Deerings began another pier. Again, the construction was on the Wangerins' land and the Wangerins removed it. After William Wangerin hired a surveyor to confirm the boundary between the seventy-five-foot parcel and his own property, the Deerings put in a third pier, just south of the northern border of the seventy-five-foot parcel. In response, the Wangerins and the Gehrkes installed4 a second pier within the boundaries of the parcel. By July 2003, the time of the trial, there were thus two piers within the seventy-five-foot parcel.
¶9 At the beginning of the July trial, all defendants except the Wangerins were dismissed from the case. Following a two-day trial, the court rendered an oral decision. A post-trial hearing was held on August 4, 2003. In February 2004, the trial court entered findings of fact and conclusions of law and a decision on remedies. For the purposes of this appeal, the critical findings were: (1) the Wangerins' garage did not unreasonably interfere with the Deerings' easement; (2) the parties had to maintain a twenty-foot corridor with the seventy-five-foot parcel; (3) ingress and egress would be over a twelve-foot graveled road at the southerly portion of the corridor; (4) the Wangerins had to pay the Deerings $500 for the tree that was removed from the Deering property; and (5) the Wangerins had to pay the attorney fees of all parties except the Deerings.5 This appeal and cross-appeal followed.
¶10 An easement is an interest in land owned by another. Kallas v. B & G Realty, 169 Wis. 2d 412, 419, 485 N.W.2d 278 (Ct. App. 1992). It creates two property rights: the dominant estate, which enjoys the privileges granted by the easement, and the servient estate, which permits those privileges to be exercised. See id. at 415-16. The owner of the servient estate may make all proper use of the land, but may not unreasonably interfere with the easement holder's use. See Wisconsin Tel. Co. v. Reynolds, 2 Wis. 2d 649, 652, 87 N.W.2d 285 (1958). An easement granted for a specified purpose may not, however, be enlarged in a way that places an added burden on the servient estate. See S.S. Kresge Co. v. Winkelman Realty Co., 260 Wis. 372, 376-77, 50 N.W.2d 920 (1952). Where an easement is explicitly created, we look to the instrument that created it to construe the relative rights of the landowners. See Hunter v. McDonald, 78 Wis. 2d 338, 342-43, 254 N.W.2d 282 (1977). Construction of the terms and purposes of the grant presents a question of law we review without deference. Edlin v. Soderstrom, 83 Wis. 2d 58, 69, 264 N.W.2d 275 (1978). Whether the terms of the grant are ambiguous is also a question of law. See Stauffacher v. Portside Props., Inc., 150 Wis. 2d 242, 245, 441 N.W.2d 328 (Ct. App. 1989).
¶11 If the grant does not locate a right-of-way, a Werkowski v. Waterford Homes, Inc., 30 Wis. 2d 410, 417, 141 N.W.2d 306 (1966) (citing 17A AM. JUR., EASEMENTS, § 101, 711-12). According to Werkowski, the reasonable convenience of both parties is of prime importance and the court cannot act arbitrarily, but must proceed with "due regard for the rights of both parties." Id. We review equitable remedies for misuse of discretion. See Mulder v. Mittlestadt, 120 Wis. 2d 103, 115, 352 N.W.2d 223 (Ct. App. 1984). The trial court properly exercises its discretion if it applies the appropriate law and the record shows there is a reasonable factual basis for its decision. See Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991).
¶12 The Deerings argue the easement that creates their right of ingress and egress over the Wangerins' seventy-five-foot parcel of land is not ambiguous and that it allows them use of the entire seventy-five-foot corridor. We disagree.
¶13 In 1945, Walter and Hildegard Kruger conveyed land fronting on the Fox River to Muriel Stebbings. At the same time, the Krugers granted Stebbings "an Easement of ingress and egress to and from said above described land over a strip of land described as lying immediately Northerly of the following which is the southerly boundary of the said 75 foot strip." In 1984, Stuart Stebbings sold that land to the Deerings. When the Wangerins bought the seventy-five-foot parcel in 2001, the Deerings thus unquestionably had an easement of ingress and egress over the parcel. But we do not agree the grant made their right of way coextensive with the parcel itself.6
¶14 Under the Deerings' theory, they have rights to drive, park, load, unload, store and otherwise use any part of the Wangerins' seventy-five-foot parcel at any time for ingress and egress. By logical extension, that right would thus limit the Wangerins' ability to build on...
To continue reading
Request your trial