Geyso v. Daly, 04-0748.

• Court: Court of Appeals of Wisconsin
• Citation: 2005 WI App 18,278 Wis.2d 475,691 N.W.2d 915
• Docket Number: No. 04-0748.,04-0748.
• Parties: Gerald G. GEYSO and Helen M. Geyso, Plaintiffs-Appellants, v. Richard DALY and Alice Daly, Defendants-Respondents.
• Decision Date: 15 December 2004

278 Wis.2d 475
2005 WI App 18
691 N.W.2d 915

Gerald G. GEYSO and Helen M. Geyso, Plaintiffs-Appellants,
v.
Richard DALY and Alice Daly, Defendants-Respondents

No. 04-0748.

Court of Appeals of Wisconsin.

Submitted on briefs November 10, 2004.

Decided December 15, 2004.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Michael S. Heffernan and Allen A. Arntsen of Foley & Lardner, LLP, Madison.

278 Wis.2d 478

On behalf of the defendants-respondents, the cause was submitted on the brief of Richard Scholze of Konicek, Kaiser, Scholze, Wanasek & Zott, S.C., Burlington

Before Anderson, P.J., Nettesheim and Snyder, JJ.

278 Wis.2d 477

¶ 1. SNYDER, J

Gerald G. Geyso and Helen M. Geyso appeal from a judgment denying their request for injunctive relief. The Geysos sought to prohibit Richard Daly and Alice Daly from crossing the Geysos' property to reach County Highway D by any route other than the Dalys' main driveway. The jury returned a verdict in favor of the Geysos; however, the trial court changed the jury's answer to the first question of the special verdict and found, as a matter of law, that the Dalys' use of a second driveway to access County Highway D did not constitute trespass. We disagree, reverse the judgment, and remand with directions to reinstate the jury verdict.

BACKGROUND

¶ 2. The Geysos and the Dalys live on opposite sides of County Highway D in Kenosha county; the Geysos live on the west side and the Dalys live on the east side. This case arises from the fact that County Highway D, including the right-of-way on the east side of the highway, is part of the Geysos' property. The boundary between the Geysos' and the Dalys' properties is the eastern edge of the right-of-way.

¶ 3. The Dalys can access County Highway D using three routes, two of which cross the right-of-way on the Geysos' property. Of those two, one is the Dalys' main driveway and the other is a barnyard entrance ("second gate"), which lies approximately sixty feet

278 Wis.2d 479

south of the main driveway. The Geysos do not dispute the Dalys' right to access County Highway D using the main driveway, but contend that the Dalys do not have permission to access County Highway D by crossing the Geysos' property at the second gate

¶ 4. These two families have been neighbors for decades. Problems between the two surfaced in the 1990's when the Geysos noticed an increased use of the second gate and found debris, silt, and gravel deposits left by the Dalys on the Geysos' property west of County Highway D. The Geysos also noticed that drain tiles originating on the Dalys' property drained onto the Geysos' property near the east edge of the County Highway D right-of-way.

¶ 5. In November 2002, the Geysos filed suit against the Dalys seeking an injunction prohibiting, among other things: (1) trespassing onto the Geysos' property except by use of the main driveway; (2) depositing debris, silt, and gravel onto the Geysos' property; and (3) maintaining drain tiles that terminate on and drain onto the Geysos' property. Both parties moved for summary judgment. The trial court denied the Geysos' motion and reserved ruling on the Dalys' motion. A trial by jury ensued, and the jury rendered the following special verdict:

QUESTION NO. 1: Did Richard Daly and/or Alice Daly trespass on the property of Gerald G. Geyso and Helen M. Geyso by driving vehicles and farm equipment within the road right of way on the Geyso property?

ANSWER: Yes (Yes or No)

278 Wis.2d 480

QUESTION NO. 2: Did Richard Daly and/or Alice Daly trespass on the property owned by Gerald G. Geyso and Helen M. Geyso by pushing debris and stone onto the Geyso property?

ANSWER: Yes (Yes or No)

QUESTION NO. 3: Did Richard Daly and/or Alice Daly trespass on the property of Gerald G. Geyso and Helen M. Geyso by maintaining a drain tile outlet within the road right of way of the Geyso property?

ANSWER: No (Yes or No)

QUESTION NO. 4: Answer this question regardless of how you have answered any previous question:

What sum of money, if any, will fairly and reasonably compensate the plaintiffs, Gerald G. Geyso and Helen M. Geyso, for their monetary loss as a result of the trespass?

ANSWER: $62.00

¶ 6. The Geysos moved for judgment on the verdict, requesting that the Dalys be permanently enjoined from trespassing on the Geysos' property other than by use of the Dalys' main driveway. The Dalys moved to change the jury's answer to the first special verdict question from "yes" to "no" and requested that judgment be entered on the verdict so amended. The trial court granted the Dalys' motion, changed the jury's answer to "no," entered judgment denying injunctive relief to the Geysos, and limited the Geysos' recovery to $62 for damages as determined by the jury. The Geysos appeal the judgment.

278 Wis.2d 481

DISCUSSION

[1, 2]

¶ 7. The question presented by the Geysos is whether the Dalys have a right to reasonable access to County Highway D or whether, as members of the public or as abutting landowners, the Dalys have an unlimited right of access. The trial court characterized the Dalys as members of the public and concluded that, as a matter of law, the Dalys did not trespass on the Geysos' property by using the second gate to access County Highway D. If there is credible evidence to support a jury's verdict, the trial court's amendment of that verdict will be set aside on appeal. Bastman v. Stettin Mut. Ins. Co., 92 Wis. 2d 542, 548, 285 N.W.2d 626 (...