S. S. Kresge Co. of Mich. v. Winkelman Realty Co.
| Decision Date | 08 January 1952 |
| Citation | 50 N.W.2d 920,260 Wis. 372 |
| Parties | S. S. KRESGE CO. OF MICHIGAN, v. WINKELMAN REALTY CO. et al. |
| Court | Wisconsin Supreme Court |
This action involves an easement across a small tract of land located in block number 13 of the original plat of the village (now city) of Wausau, Wisconsin. This block is bounded on the north by Jefferson street, on the west by Second street, on the south by Washington street, and on the east by Third street. The block consists of eight lots. Lots 1, 2, 3 and 4 are located in the south half of the block and are numbered in that order from west to east. Lots 5, 6, 7 and 8 are in the north half of the block and are numbered in that order from east to west.
The plaintiff is the owner of the south half of lots 5 and 6. The west eleven and one-half feet of the plaintiff's property consists of an alleyway. The defendant Winkelman Realty Company is the owner of lot 2 and the west half of lot 3, the south 96.85 feet of the east half of lot 3, and the south 96.85 feet of lot 4. The defendant Winkelman Department Store leases all of its real estate from Winkelman Realty Company, and in turn subleases lot 2 and a portion of the west half of lot 3 to Winkelman's Men's Store. All of the defendant corporations are controlled by the same group and will be referred to as the defendants. They operate a department store on the east half of lot 3 and on lot 4, and an appliance store on the west half of lot 3, and a men's store on lot 2.
For several years prior to 1936, one Max Tisch was the owner of lot 2 and had a commercial building thereon, consisting of a plumbing shop, garage, and retail plumbing store. One Albert Dern was the owner of the west half of lot 3 and used the lower floor of the building thereon for a barber shop and the second floor for living quarters. In 1934, Tisch bought the Dern property. He remodelled the building thereon and leased it with the building on lot 2 to Sears Roebuck & Company, which used the entire property as a retail store. In 1936 the Kresge Company tried to close the alleyway which extends across the west eleven and one-half feet of its property. Tisch thereupon brought an action to establish his right to use the alleyway in question against the Kresge Company, and judgment was entered in said action on September 16, 1936, wherein Tisch was adjudged to have a perpetual right of way for all purposes of ingress and egress across said alleyway to and from the west half of lot 3. In 1943, the defendants purchased the Tisch property with the appurtenant easement. Thereafter the besement of the Tisch buildings, the area under the alleyway from Washington street, and the area under the sidewalks were treated as one store room for all of the buildings. Merchandise consigned to the different Winkelman stores was delivered across the plaintiff's alleyway to the former Dern building, from which it was distributed to the other stores.
The complaint herein set forth two causes of action: the first, to establish the claim of the plaintiff against any claim of the defendants except their easement for ingress and egress to the west half of lot 3; and second, to enjoin the defendants from using any portion of plaintiff's real estate except as a right of way for ingress and egress to the west half of lot 3, and to enjoin defendants from conveying or transporting merchandise to or from the Men's Store or the Department Store by way of the former Dern property.
The trial court found that the easement acquired by the defendants from Tisch is appurtenant only to the west half of lot 3 and is not appurtenant to any of the other property owned by the defendants, but that the defendants had made regular and substantial use of said easement for the transportation of merchandise for the other stores. The trial court further found that such use was not within the contemplation of the owners of the premises at the time the easement was acquired by prescription, and that said unauthorized use is an added burden upon the servient estate owned by the plaintiff.
The judgment quieted title to the alleyway in question in the plaintiff, but recognized the easement for ingress and egress to the west half of lot 3 in the...
To continue reading
Request your trial
-
Grygiel v. Monches Fish & Game Club Inc
...“can be used only in connection with the dominant estate to which it is appurtenant.” Id. (citing S.S. Kresge Co. of Mich. v. Winkelman Realty Co., 260 Wis. 372, 376, 50 N.W.2d 920 (1952); Restatement (Third) of Prop.: Servitudes § 4.11, at 619 Sicchio v. Alvey, 10 Wis.2d 528, 103 N.W.2d 54......
-
Rhett v. Gray
...104, 405 N.E.2d 1196 (1980); Kanefsky v. Dratch Constr. Co., 376 Pa. 188, 101 A.2d 923 (1954); S.S. Kresge Co. of Mich. v. Winkelman Realty Co., 260 Wis. 372, 50 N.W.2d 920 (1952); 28 C.J.S. Easements § 92, at 772–73 (1941)). “If an easement is appurtenant to a particular parcel of land, an......
-
Schwab v. Timmons
...333 (Ct.App.1991). An easement can be used only in connection with the real estate to which it belongs. S.S. Kresge Co. v. Winkelman Realty Co., 260 Wis. 372, 376, 50 N.W.2d 920 (1952). ¶15 Easements by implication and by necessity are similar, but legally distinguishable concepts. Since th......
-
Brown v. Voss
... ... Dratch Constr. Co., 376 Pa. 188, 101 A.2d 923 (1954); S.S. Kresge Co. of Mich. v. Winkelman Realty ... Co., 260 Wis. 372, 50 N.W.2d 920 ... ...