Geyso v. Daly
| Decision Date | 15 December 2004 |
| Docket Number | No. 04-0748.,04-0748. |
| Citation | 2005 WI App 18,278 Wis.2d 475,691 N.W.2d 915 |
| Parties | Gerald G. GEYSO and Helen M. Geyso, Plaintiffs-Appellants, v. Richard DALY and Alice Daly, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
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. 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.
¶ 1.
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.
¶ 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 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:
¶ 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.
[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 (1979). Where, as here, a trial court decides a question of law on a motion to change or set aside the verdict, we review its decision de novo. Greenlee v. Rainbow Auction/Realty Co., 202 Wis. 2d 653, 662, 553 N.W.2d 257 (Ct. App. 1996).
[3]
¶ 8. Trespass occurs when a person enters or remains upon land in the possession of another without privilege to do so. Harder v. Maloney, 250 Wis. 233, 238, 26 N.W.2d 830 (1947). The Dalys argue that their status as members of the public entitles them to use the second gate for County Highway D access because highways are for the public use, "upon equal terms, for any purpose consistent with the object for which they are established." Park Hotel Co. v. Ketchum, 184 Wis. 182, 183, 199 N.W. 219 (1924) (citation omitted). The Dalys contend that "[a]s members of the public, [they] have the right to utilize the public right of way for transportation purposes regardless of their status as abutting landowners." The trial court agreed, holding that the Dalys "simply by driving or walking across that property cannot, as a matter of law, commit a trespass on that property because the right that [they have] as ... member[s] of the public to do that is superior to any right that [the Geysos] might have to prohibit [their] use ...."
[4-6]
¶ 9. The Geysos, as owners of the land underlying County Highway D and the right-of-way, have the right to use this land in any way that does not interfere with the rights of the public. See Spence v. Frantz, 195 Wis. 69, 71, 217 N.W. 700 (1928). The Dalys, as members of the public, have but an "easement of passage" in the right-of-way and may use it only for highway purposes. See Walker v. Green Lake County, 269 Wis. 103, 111, 69 N.W.2d 252 (1955)
(citation omitted). The Geysos concede that the "Dalys, once on the highway, have the same rights as the public to travel ... on the paved surface and to use the unpaved portion of the right-of-way to the extent necessary to achieve the primary purpose of the public easement, which is travel along the roadway." Here, however, the Dalys' use of the second gate achieves a private means of ingress and egress that does not further the purpose of the public easement. We agree with the Geysos that the Dalys' use of the second gate is inconsistent with the rights of the general public; therefore, the Dalys cannot claim that the public easement grants them a privilege to enter onto the Geysos' property.
¶ 10. The Dalys also argue that their privilege to cross the Geysos' property stems from their status as abutting landowners. They cite WIS. STAT. § 80.47 (2001-02), for support: "The owners of land abutting on any highway ... shall have a common right in the free and unobstructed use thereof to its full width ...." They contend that the statute codifies the common-law right of a property owner to the free and unobstructed use of streets and highways upon which the property abuts. See Royal Transit, Inc. v. Village of West Milwaukee, 266 Wis. 271, 274, 63 N.W.2d 62 (1954)
.
[7, 8]
¶ 11. Landowners whose property abuts a public roadway, but who have no ownership interest in the land under the roadway, are abutting landowners for purposes of access rights.1 See id.
The right of access to and from a public highway is one of the incidents of ownership ... of land abutting thereon. Such right is appurtenant to the land, and exists when the fee title to the way is in the public as well as when it is in private ownership.
Id. at 277 (citation omitted).
¶ 12. The Dalys do not, however, have an unfettered right to access County Highway D by crossing the Geysos' property wherever they choose. In Royal Transit, our supreme court cited with approval the case of Johnson v. Town of Watertown, 38 A.2d 1 (Conn. 1944), and held that the right attributed to an abutting landowner is "the right of reasonable access." Royal Transit, 266 Wis. at 275 (citing Johnson, 38 A.2d at 4). We take guidance from this and other decisions which define the right of an abutting landowner as one of reasonable access. See, e.g., Grossman Invs. v. State, 571...
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Foster v. Fabish, No. 2009AP455 (Wis. App. 4/1/2010), 2009AP455.
...¶ 10 A trespass occurs when a person enters or remains upon land in the possession of another without a privilege to do so. Geyso v. Daly, 2005 WI App 18, ¶ 8, 278 Wis. 2d 475, 691 N.W.2d 915 (Ct. App. 2004). The Fosters seem to be operating under the mistaken assumption that an interferenc......