Eilau v. Roff

• Decision Date: 25 October 2022
• Docket Number: 2021AP396
• Parties: Arvo Eilau and Joyce Dzik, Plaintiffs-Respondents, v. Dennis Roff, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Arvo Eilau and Joyce Dzik, Plaintiffs-Respondents, v. Dennis Roff, Defendant-Appellant.

No. 2021AP396

Court of Appeals of Wisconsin, District III

October 25, 2022

Not recommended for publication in the official reports.

APPEAL from an order of the circuit court for Florence County No 2019CV17: LEON D. STENZ, Judge.

Before Stark, P.J., Hruz and Gill, JJ.

GILL J.

¶1 Dennis Roff appeals from an order declaring as ambiguous an easement for ingress and egress over his property to permit Arvo Eilau and Joyce Dzik (collectively, "Eilau") access to an island they own that is located offshore from Roff's property. In addition to challenging the circuit court's conclusion regarding ambiguity, Roff argues that the court made clearly erroneous factual findings surrounding the historical use of the easement when it ruled that the intent of the easement was to allow the owners of an island to drive vehicles across the entirety of his property to a boat dock and to park for an unspecified period of time. Roff further argues the court erred by ordering that Eilau can install gravel on the easement.

¶2 We agree with Roff that the easement is unambiguous. We further conclude that the text of the easement provides for Eilau's vehicular traffic across Roff's property to the boat dock. It does not, however, permit parking at the boat dock. Applying general easement principles, we also conclude that the easement permits Eilau to turn vehicles around at the boat dock, and that Eilau is responsible for part of the easement's maintenance, but that Eilau cannot install gravel on the easement without unreasonably burdening Roff. Accordingly, we affirm in part and reverse in part.

BACKGROUND

¶3 Eagle Island, a true island, sits roughly between Bass Lake and Middle Lake, two lakes on the Spread Eagle Chain of Lakes. To the east of Eagle Island is a shoreline and then a public road. The road, Carpenter Road, runs largely parallel to the north and south of Bass Lake and Middle Lake. Running north between the shoreline and Carpenter Road are six lots of land-Lots 49 through 54.

¶4 Long before the dispute in this case, Robert Hubbard owned at least five relevant parcels of land-Eagle Island and Lots 49 50, 51, and 52. In 1955, Hubbard conveyed Eagle Island by warranty deed (the 1955 Deed) to individuals who are not parties to this case. The 1955 Deed contained the following language creating an easement ("Easement") over Lot 49:

Also, hereby granting to the said second parties, their heirs or assigns, an easement for ingress and egress to and from the above described Eagle Island over any road now situated on lot Forty-nine (49) of Point Patten Plat, Spread Eagle, or over any road hereafter constructed on said lot Forty-nine (49); reserving however, to the said first parties, their heirs or assigns, the right ay [sic] any time hereafter, or from time to time, to change the location of any road of said lot Forty-nine (49); and also granting to the said second parties, their heirs or assigns, the right to construct a boat dock or landing of said lot forty-nine (49) at a location approved by the said first parties, their heirs or assigns, and the right to use the same for landing boats and for ingress an egress to and from the said Eagle Island above described.

¶5 It is undisputed that the Easement runs from Carpenter Road over Lot 49, to Bass Lake. It consists of a dirt "roadway"^[1] that starts at Carpenter Road on Lot 49 and ends roughly 100 feet from Bass Lake, near a cottage ("Birch Cottage").^[2] At the end of the roadway are two posts with a removable, sliding pipe between them ("Barrier"). Beyond the Barrier, the Easement consists of a "lawn"^[3]until it reaches Bass Lake, at which point there is a boat dock. There are also a small number of parking spaces next to Birch Cottage.

¶6 Of relevance to this appeal, in 1978, Lots 49, 50, 51, and 52 were conveyed by warranty deed to Roff's corporation, Green Bay Entertainment Center, Inc. The lots were eventually conveyed to Roff himself in 1988. In 2015, Eagle Island and Lots 53 and 54 were conveyed by trustee's deed^[4] to Eilau.

¶7 The current dispute began shortly after Eilau purchased Eagle Island and Lots 53 and 54. Following Eilau driving vehicles beyond the Barrier and temporarily parking them on the lawn, Eilau claimed that Roff responded by intentionally "placing large objects across the Easement" and by "harassing and accosting [Eilau] about [using] ... the Easement, and not allowing [Eilau] to use the full length of the Easement." Eilau filed the present action against Roff in 2019. Eilau sought declaratory relief setting forth the parties' rights and obligations with respect to the Easement, as well as injunctive relief requiring Roff to cease interfering with Eilau's use of the Easement, including Eilau's right to "drive on" and "park vehicles" on the Easement. Roff responded by arguing, among other things, that the Easement is unambiguous as to its terms. Roff therefore sought relief "declaring that [Eilau's] use of the [E]asement is limited to the unambiguous purposes set forth therein."

¶8 The case eventually proceeded to a bench trial. Prior to the start of the trial testimony, the circuit court visited the Easement with the parties. Afterward, the parties testified themselves and called their respective witnesses.

¶9 The circuit court ultimately determined that the Easement was ambiguous. After making factual findings regarding the Easement's historical use, the court orally concluded that Eilau is not "responsible for maintaining the driveway as it is now from [Carpenter R]oad to [Birch Cottage].... You wanted a maintenance type of agreement. I don't know if I need to do that. Um, apparently, Mr. Roff is responsible for the maintenance of that. It is for his property." Further, the court stated that any maintenance for the portion of the Easement beyond the Barrier "may be the responsibility of [Eilau]."

¶10 Thereafter, the circuit court issued a written ruling, stating that Eilau

shall have the right to maintain and improve the existing Lot 49 [E]asement road and dock, or any newly constructed road designated by Roff, including installation of gravel and removing obstructions which in any way impair their peaceful, lawful, broad legal use of the [E]asement road.

[Eilau] shall have the right to leave vehicles on the [E]asement while they are at the island. [Eilau] shall have the right to park on the easement, turn vehicles, and drive from Carpenter Road to the dock. [Eilau] shall have the right to park a reasonable number of vehicles on the Lot 49 [E]asement road at the dock in a manner that such use does not impose an undue burden on the servient estate.

The written order also stated that Eilau may install gravel all the way to the boat dock. Roff now appeals.^[5]

DISCUSSION

¶11 This case calls upon us to interpret a deed of easement^[6] to determine if an easement is ambiguous which is a question of law that we review de novo. See Konneker v. Romano, 2010 WI 65, ¶23, 326 Wis.2d 268, 785 N.W.2d 432. "However, if the language of [a] deed is ambiguous, then the intent behind the language presents a question of fact." Id.; see also WIS. STAT. § 805.17(2) (2019-20)^[7] ("Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.").

¶12 In addition to governance by granting documents, express easements are also governed by principles that apply to all easements unless the principles "conflict with the express terms" in the granting document. See Grygiel v. Monches Fish &Game Club, Inc., 2010 WI 93, ¶18, 328 Wis.2d 436, 787 N.W.2d 6 (citing RESTATEMENT (THIRD) OF PROP.: SERVITUDES §§ 4.8, 4.11 (AM. L. INST. 2000)). Our application of general easement principles to an easement is de novo and “without deference to the [circuit] court's determination[s].” See Hunter v. Keys, 229 Wis.2d 710, 714-15, 600 N.W.2d 269 (Ct. App. 1999); see also Bohm v. Leiber, 2020 WI.App. 52, ¶15, 393 Wis.2d 757, 948 N.W.2d 370 ("The meaning and scope of an easement is a question of law we review de novo.").

I. General principles of easement law

¶13 "An easement 'is a permanent interest in another's land, with a right to enjoy it fully and without obstruction.'" Konneker, 326 Wis.2d 268, ¶25 (citation omitted). "It is a liberty, privilege, or advantage in lands, without profit, and existing distinct from the ownership of the land." AKG Real Est., LLC v. Kosterman, 2006 WI 106, ¶2, 296 Wis.2d 1, 717 N.W.2d 835. An appurtenant^[8]easement, like the Easement in this case, creates two property interests: The dominant estate-in this case owned by Eilau-"which enjoys the privileges as to other land granted by an easement," and the servient estate-in this case owned by Roff-"which permits the exercise of those privileges." See id., ¶3. "The dominant estate holder's 'use of the easement must be in accordance with and confined to the terms and purposes of the grant.'" Garza v. American Transmission Co., 2017 WI 35, ¶23, 374 Wis.2d 555, 893 N.W.2d 1 (citation omitted).

¶14 In the absence of directions in an easement to the contrary easements are governed by several general principles. First, an easement cannot be enlarged by the dominant estate. Gojmerac v. Mahn, 2002 WI.App. 22, ¶23, 250 Wis.2d 1, 640 N.W.2d 178 (2001) (enlarging an easement refers to extending it to other property not intended to be covered by the granting document). Second, the dominant estate is granted "all rights that are incident or necessary to the reasonable and proper enjoyment of the easement." Keys, 229 Wis.2d at 715. As such, "the servient estate may not intrude into the easement in such a way...