Scheeler v. Dewerd

• Decision Date: 07 March 1950
• Citation: 41 N.W.2d 635,256 Wis. 428
• Parties: SCHEELER et al. v. DEWERD et al.
• Court: Wisconsin Supreme Court

Page 635

41 N.W.2d 635

256 Wis. 428

SCHEELER et al. v. DEWERD et al.

Supreme Court of Wisconsin.

March 7, 1950.

Dissenting opinion filed March 7, 1950.

Sydney M. Eisenberg, Milwaukee, Harold Harris, Milwaukee, I. B. Shapiro, Milwaukee, for appellants.

Francis W. Rausch, Milwaukee, for respondents.

GEHL, Justice.

The trial court held from the evidence adduced that the plaintiffs acquired an easement to use the well located upon the defendants' premises and to draw water therefrom, and that the defendants' ownership of their lot is subject to said easement. That part of the judgment is not questioned.

It was further held that the so-called oral agreement of June, 1941, as to the installation of the electric pump and pressure system was personal to the parties, that it did not operate to extend the terms of the granted easement and that the rights acquired by plaintiffs under the agreement constituted only a revocable license. It denied plaintiffs' prayer for judgment requiring compliance with the terms of what it considered the oral agreement.

It has been consistently held by this court that easements can only be acquired by grant or prescription, that they cannot be acquired by implication. Frank C. Schilling Co. v. Detry, 203 Wis. 109, 233 N.W. 635. We do not recede from nor abandon that rule. We consider, however, that we have here the question of the construction of the terms of the grant contained in the various instruments. They are ambiguous in that they do not describe the means by which water is to be taken from the well.

By the oral agreement of the owners of Lots A and C and the predecessor of the owners of Lot B and by their act of installation of a pump and pipes in 1941 they placed their own construction upon the terms of the easement as to the manner of taking water from the well. 'Such acts, giving a practical construction to the grant, will be deemed to express the intention of the parties, and the courts will give it the construction that the parties themselves have put upon it.' 1 Thompson on Real Property, 580.

The owners of Lots A and C were and are entitled to the full use and reasonable enjoyment of the rights granted them by the easement.

'Every easement carries with it by implication the right of doing whatever is reasonably necessary for the full enjoyment of the easement itself.' 28 C.J.S., Easements, § 76, page 754.

'It is an established principle that the unrestricted grant of an easement gives the grantee all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement.' 17...