Hunter v. Keys, 99-0257-FT.

• Citation: 229 Wis.2d 710,600 N.W.2d 269
• Decision Date: 30 July 1999
• Docket Number: No. 99-0257-FT.,99-0257-FT.
• Parties: Timothy W. HUNTER, Plaintiff-Appellant, v. Mark D. KEYS, Max R. Baer and Marion Anderson, Defendants-Respondents.
• Court: Court of Appeals of Wisconsin

229 Wis.2d 710

600 N.W.2d 269

Timothy W. HUNTER, Plaintiff-Appellant, v. Mark D. KEYS, Max R. Baer and Marion Anderson, Defendants-Respondents.

No. 99-0257-FT.

Court of Appeals of Wisconsin.

Submitted on briefs June 22, 1999.

Decided July 30, 1999.

On behalf of the plaintiff-appellant, the cause was submitted on the brief of Bruce P. Anderson of Anderson & Schneider of Balsam Lake.

On behalf of the defendants-respondents, the cause was submitted on the brief of W. W. Bitney of Bitney Law Firm, Ltd. of Spooner.

Before Cane, C.J., Myse, P.J., and Hoover, J.

MYSE, P.J.

Timothy Hunter appeals a judgment dismissing his complaint and permitting Mark Keys to improve a road over a two-rod access and egress easement granted by deed across Hunter's land to Keys' property.¹ Hunter contends that the trial court erred by concluding that the easement: (1) authorized Keys to develop a road along the easement; (2) permitted Keys to fill wetlands necessary to the road development; (3) required that Hunter remove that portion of a septic system intruding into the two-rod easement if it interfered with Keys' access way improvements; and (4) permitted burying of electric and telephone utility cables along the easement way. Because we conclude the grant of an access and egress easement necessarily implies the right to create and maintain a suitable access way, we affirm that portion of the judgment permitting the improvement of the roadway, the filling of wetlands for the purpose of improving the road² and directing removal of the septic system if its existence interferes with road improvements. Because we further conclude, however, that an access and egress easement is not sufficiently broad so as to permit laying utility cables along the easement way, we reverse that portion of the trial court's judgment.

Defendants have filed a motion for costs for a frivolous appeal pursuant to RULE 809.25(3), STATS. Because Hunter's appeal was not meritless so as to warrant the imposition of frivolous costs, the motion is denied.

The trial court made the following findings of fact. Hunter holds title to a ten-acre parcel that his parents conveyed to him by deed. The deed of conveyance was subject to an easement that had been reserved in a deed recorded in volume 447 with the register of deeds. The conveyance in volume 447 is a deed from Max Baer, as attorney for Katherine Baer, to Hunter's parents, subject to an easement which stated:

Reserving onto the grantor her heirs, assigns and invitees an easement for ingress and egress over and across the West 2 rods of the SW NE of Sec. 29-38-15. Said easement to be appurtenant to the NE NW Sec. 29-38-15.

Baer owned a forty-acre parcel and only the SW NE portion of the parcel bordered a county road. When Baer conveyed the SW NE parcel with public road access, he burdened the land with an easement for the benefit of the parcel that did not have public road access. Baer was the common grantor of the deeds to both Hunter's parents and Keys. After Baer conveyed to Hunter's parents, they conveyed to Hunter the west ten acres of the SW NE parcel burdened with the easement for the benefit of the parcel without road access.

Hunter subsequently installed an underground septic system that encroached upon the two-rod easement. Baer then sold the landlocked NE NW of Sec. 29-38-15 to Keys together with the above easement. The only access to the parcel is over Hunter's septic system and over the easement on Hunter's ten-acre parcel. Hunter learned that Keys had applied for a permit which would allow him to fill wetlands in order to construct a road. Hunter filed a complaint seeking a declaration as to the extent and scope of the easement over his property and restraining Keys from any road construction, filling of wetlands or any other work on the easement. The trial court concluded that the easement allowed Keys to construct a road not more than two rods in width, that the easement may be used by utilities to provide service to Keys' landlocked parcel, that Hunter must maintain his septic system so that it does not interfere with the construction of the road or if that is impossible then he must either move the septic system to avoid any interference or acquire an easement from his neighbor so that the road may be moved to accommodate the septic system. Hunter now appeals.

[1-3]

The meaning of an easement created by deed involves construction of the deed's language. The scope of the easement is reflected in the instrument creating the easement and we look to that instrument in construing the rights of the relative landowners. See Hunter v. McDonald, 78 Wis. 2d 338, 342-43, 254 N.W.2d 282, 285 (1977). "The use of the easement must be in accordance with and confined to the terms and purposes of the grant." Id. at 343, 254 N.W.2d at 285. The meaning and scope of language created in a deed is reviewed as a matter of law without deference to the trial court's determination. See Atkinson v. Mentzel, 211 Wis. 2d 628, 638, 566 N.W.2d 158, 162 (Ct. App. 1997).

[4-6]

An easement is a permanent interest in another's land. Id. at 637, 566 N.W.2d at 162. An easement is a "liberty, privilege, or advantage in lands, without profit," existing distinct from the ownership of the land. Stoesser v. Shore Drive Partnership, 172 Wis. 2d 660, 667, 494 N.W.2d 204, 207 (1993). An unrestricted grant of an easement gives the grantee all rights that are incident or necessary to the reasonable and proper enjoyment of the easement. See Scheeler v. Dewerd, 256 Wis. 428, 432, 41 N.W.2d 635, 637 (1950). Thus, Keys' two-rod easement over Hunter's property for access and egress gives Keys a permanent interest in a two-rod parcel for the purpose identified in the deed—access and egress.

[7]

Hunter first contends that the trial court erred by allowing Keys to improve the roadway so as to facilitate access to his property. The owner of an easement may make changes in the easement for the purpose specified in the grant as long as the changes are reasonably related to the easement holder's right and do not unreasonably burden the servient estate.³Id. While the easement's grant does not specifically authorize the construction of a roadway, the building of the roadway is directly related to the purpose for which the easement was created. Hunter has not advanced nor does the record disclose any evidence that the improvement of the roadway unreasonably burdens Hunter's land, the servient estate. The trial court therefore properly concluded that the grant of an easement for access and egress authorizes the easement holder to improve the roadway so as to facilitate access to his property, as long as the road improvements do not unreasonably burden the servient estate. In the absence of any evidence that Keys' improvement of this roadway unreasonably burdened Hunter's estate, the court properly authorized Keys to improve the access way to his property.

[8]

Hunter also argues that a portion of his septic system is within the two-rod road and that the improvement of the roadway would interfere with this system. The trial court did not...