Hunter v. McDonald

• Decision Date: 01 June 1977
• Docket Number: No. 75-474,75-474
• Citation: 78 Wis.2d 338,254 N.W.2d 282
• Parties: James G. HUNTER, Jr., and Bonnie K. Hunter, his wife, Respondents, v. William D. McDONALD and Valera McDonald, his wife, Appellants.
• Court: Wisconsin Supreme Court

Page 282

254 N.W.2d 282

78 Wis.2d 338

James G. HUNTER, Jr., and Bonnie K. Hunter, his wife, Respondents, v. William D. McDONALD and Valera McDonald, his wife, Appellants.

No. 75-474.

Supreme Court of Wisconsin.

Submitted May 4, 1977.

Decided June 1, 1977.

Hayes & Hayes, Milwaukee, submitted brief for appellants.

John C. Curran and Cramer, Multhauf & Curran, Waukesha, submitted brief for respondents.

DAY, Justice.

The question is whether a servient owner's unreasonable interference with the dominant owner's use of an easement is enjoinable though the interference is not a physical encroachment upon the easement.

Plaintiff-respondents, James G. Hunter, Jr., and Bonnie K. Hunter, his wife, and defendants-appellants, William D. McDonald and Valera McDonald, his wife, own adjoining properties on the shore of Okauchee Lake in the town of Oconomowoc in Waukesha county. This is an appeal from a judgment enjoining the defendants from obstructing a right-of-way easement over their property used for ingress and egress to and from the plaintiffs' property. Action was commenced September 3, 1974. Trial to the court was held on June 27 and July 1, 1975.

Defendants acquired their property in 1969. Since 1949, the property has been burdened with an express easement the purpose of which is to provide a way of ingress and egress to and from the adjoining property now owned by the plaintiffs. There is no dispute concerning the existence or location of the roadway, which narrows from a twenty foot wide road located entirely on defendants' property to a ten foot wide road which forks into two roads each of which eventually crosses the boundary into plaintiffs' property. The two prongs of the fork reconnect on the plaintiffs' property forming in effect a turn-around, part of which is on each property.

Defendant William D. McDonald testified that when he and his wife acquired their property the roadway was in poor repair. The gravel surface had many potholes; automobiles traversing it would spray dirt and water collected in the potholes. In addition, plaintiffs' predecessors in title rented the property to persons who drove over the roads at speeds up to twenty-five m. p. h., stirring up dust in the summer. Sometimes these drivers would drive on the lawn; on two occasions light posts on defendants' property were knocked over. In addition, these drivers were a hazard to defendants' children and dogs according to Mr. McDonald.

In 1971 defendants remodeled their home and landscaped their grounds, adding an automatic sprinkling system throughout the property. As a consequence of the aforementioned problems, they had an asphalt surface placed on that part of the ten foot wide easement which lay on their property. The paving contractors were instructed to erect a series of asphalt mounds across the drive approximately five inches high designed as "speed breakers." Defendants erected along their boundary with the plaintiffs a woven wire fence with aluminum slats. The fence contains ten foot openings at the points where each of the prongs of the roadway crosses the property line. Additionally, fieldstones were placed along the edge of the southern prong of the road, particularly at the point where it curved, and steel posts were driven in the ground adjacent to the driveway at various points around the loop on defendants' property.

There was testimony as to the difficulty of driving a large car between the fence posts and at the same time avoiding the rocks which were placed just beyond the posts at the curve in the road. This problem was particularly serious in the winter.

Plaintiffs purchased their property in May, 1972; the deed described their right-of-way over defendants' real estate. Plaintiff James Gordon Hunter, Jr., testified that shortly after he and his wife moved in, William McDonald attempted to persuade the Hunters to relinquish their interest in the southern leg of the roadway in exchange for additional parking space and permission to build a garage near their mutual property line. When Mr. Hunter refused, he testified, Mr. McDonald was very angry and said, "You'll see, I'll tighten up this road."

After this meeting defendants had the southern leg of the road blacktopped with additional mounds for speed breakers. Two inch steel posts, roughly fourteen to sixteen inches high also were added along the roadside at the edge of the ten foot right-of-way.

At trial, the plaintiffs argued the speed breakers, the rocks, the steel posts and the fence unreasonably obstructed their use of the road. Several persons testified the speed breakers caused damage to their cars; the fire chief of Okauchee testified he could not bring his fire equipment over the road; the police chief of Oconomowoc Township testified emergency vehicles did not have easy access as a result of the speed breakers. Others testified as to car damage resulting from scraping the steel posts along the side of the road. James Hunter said drivers had difficulty negotiating through the openings in the fence which crossed the two legs of the road at the property line. He said he personally had to direct large vehicles which exited at the south part of the easement.

The trial judge viewed the premises at the close of testimony and then made findings of fact, including the following:

"6. That said right-of-way passes over property owned by the defendants, William D. McDonald and Valera McDonald, his wife, and is ten (10) feet in width.

"7. That the defendants, William D. McDonald and Valera McDonald, have placed or have caused to be placed on said right-of-way and immediately adjacent thereto obstructions which unreasonably interfere with the use of said right-of-way by the plaintiffs.

"8. That said obstructions include several raised mounds of blacktop across the width of said right-of-way which require vehicle traffic to travel at an unreasonably slow rate of speed or stop entirely in order to successfully negotiate said mounds without causing damage to said vehicles.

"9. That said obstructions include the installation of a woven wire fence with posts located at the edge of said right-of-way on the property line of the plaintiffs' and defendants' property, said fence and fence posts being so located as to unreasonably obstruct the ingress and egress of the plaintiffs.

"10. That said obstructions also include steel posts which the defendants have placed abutting said right-of-way at various locations along said right-of-way, said posts unreasonably interfering with the use of said right-of-way by the plaintiffs.

"11. That said obstructions include the defendants having placed large fieldstone rocks abutting said right-of-way, such rocks interfering with the reasonable use of said right-of-way by the plaintiffs.

"12. That all of the above obstructions and interferences are unreasonable in nature and unreasonably interfere with the right of the plaintiffs to use said right-of-way for ingress and egress to their property."

The court ordered appellants to remove the asphalt mounds and to remove the rocks and steel pipes adjacent to the roadway to a point at least two feet away. Additionally, appellants were ordered to replace the steel posts supporting the fence at a point at least two feet away from the road.

Defendants challenge only that part of the judgment ordering the removal of the posts, fence posts and rocks which the court found to be immediately adjacent to the right-of-way.

Because the easement in question is created by deed, the court must look to that instrument in construing the relative rights of the landowners. Rikkers v. Ryan, 76 Wis.2d 185, 188, 251 N.W.2d 25 (1977). The use of the easement must be in accordance with and confined to the terms and purposes of the grant. 2 Thompson On Real Property, sec. 386, p. 556 (1961 Replacement). The right-of-way was created July 9,...