Schwartz v. Evangelical Deaconess Soc.

• Decision Date: 31 March 1970
• Docket Number: No. 176,176
• Citation: 46 Wis.2d 432,175 N.W.2d 225
• Parties: Ann SCHWARTZ et al., Respondents, v. EVANGELICAL DEACONESS SOCIETY of Wisconsin, a Wis. corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 225

175 N.W.2d 225

46 Wis.2d 432

Ann SCHWARTZ et al., Respondents, v. EVANGELICAL DEACONESS SOCIETY of Wisconsin, a Wis corporation, Appellant.

No. 176.

Supreme Court of Wisconsin.

March 31, 1970.

On May 29, 1964, Stanley Sher, Ann Schwartz, Joanne Wiviott, and Art-Way Builders, Inc., deeded certain property, located at 542 through 556 North 18th Street in the city of Milwaukee, to the City Bank and Trust Company. On November 11, 1966, this property was deeded by the City Bank and Trust Company to the Evangelical Deaconess Society of Wisconsin, a hospital-operating Wisconsin corporation. On May 29, 1964, an agreement was executed by Sher, Schwartz and Wiviott, by the City Bank and Trust Company and by the Deaconess Society, providing for the parking of up to ten automobiles on the property conveyed to City Bank and Trust Company. On May 29, 1964, Sher, Schwartz and Wiviott signed a separate 'instrument,' stating that it was 'understood and agreed' that 'monthly as billed, we will donate to the Deaconess Hospital Development Fund, an amount equal to $5.00 per car space per month, but not to exceed 10 car spaces, used by tenants of our apartment building at 557 North 17th Street.' Two 'donations' were made pursuant to this instrument, one on April 26, 1966, the other on June 24, 1968.

The three individuals named were, and plaintiffs now are, owners of property and an apartment building located at 557 North 17th Street in Milwaukee. The agreement provided that the 'occupants of the existing building' at 557 North 17th Street shall have the 'right to park up to ten automobiles' on the property conveyed to City Bank and Trust Company, 'or on the alternate site if automobiles cannot be parked' thereon 'because of construction or other conditions beyond the control of second party.' Additional details of the agreement will be set forth in the opinion.

Sections 20--34 and 20--35 of the Milwaukee Code of Ordinances prescribe certain standards and requirements for off-street parking lots. In the fall of 1967, the city ordered the Evangelical Deaconness Society to cease and desist any parking on the property at 542 through 556 North 18th Street because of noncompliance with the new ordinances. Pursuant to the order of the city of Milwaukee, Deaconess barricaded the entrance to the 542--556 North 18th Street property to prevent parking. On October 9, 1968, plaintiffs notified Deaconess of the names of tenants authorized by them to park cars on the 542--556 North 18th Street property. On November 25, 1968, plaintiffs commenced the present action, seeking specific performance of the agreement, or, in the alternative, rescission of the 'entire transaction.'

On January 20, 1968, the defendant moved for summary judgment alleging: (1) plaintiffs are not the real parties in interest; (2) the parking agreement is not supported by consideration, and lacks mutuality; (3) the agreement is indefinite, incomplete and unenforceable; (4) supervening illegality and impossibility of performance has discharged the defendant from performance. Plaintiffs also moved for summary judgment. The trial court entered an order dismissing both motions for summary judgment, additionally holding that the parking agreement was an easement agreement, that plaintiffs are the real parties in interest, that the agreement is not subject to the defense of lack of mutuality or absence of consideration, and that a trial was required only on whether the subsequently enacted city ordinances made the agreement unenforceable. A trial was set 'only upon those issues.' Defendant appeals.

Michael, Best & Friedrich, Milwaukee, for appellant, Herman E. Friedrich and Thomas E. Obenberger, Milwaukee, of counsel.

Lorinczi & Weiss, Milwaukee, for respondents, Robert K. Steuer, Milwaukee, of counsel.

ROBERT W. HANSEN, Justice.

The basic disagreement between the parties here is as to the exact nature of the legal rights created by the agreement between them, dated May 29, 1964, and attached to plaintiffs' complaint as exhibit A.

The plaintiffs assert that such agreement is a conveyance, and the interest conveyed an easement.

The defendant asserts that the agreement is an executory contract, with the rights created being either a license or contract rights.

If an easement was created, the contract defenses asserted by defendant, such as absence of consideration or lack of mutuality, are inapplicable. If a license or contract rights were created, the defendant has the right to plead and prove such contract defenses in a suit for specific performance.

Authorities agree that the distinction between a conveyance granting an easement and a contract granting a license or contract right as applied to real estate is '* * * often very subtle and difficult to discern.' ¹ It is so here. For the meaning of the term, easement, we go to a very early Wisconsin case, ² giving a definition that has not been changed since 1850 when it was written, and that is substantially identical with the definitions adopted throughout the country. It reads:

'An easement * * * is a liberty, privilege or advantage in land, without profit, and existing distinct from the ownership of the soil; and it has appeared also, that a claim for an easement must be founded upon a deed or writing, or upon prescription, which supposes one. It is a permanent interest in another's land, with a right to enjoy it fully and without obstruction. * * *' ³

In seeking to distinguish such easement from what is no more than a license or contractual right to use the land of another, we find most descriptive of the distinction the following definition:

'A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein.

Indeed, the distinguishing characteristics of a license in land are that it gives no interest in the land and that it may rest in parol. * * * Accordingly, a license is a chiefly distinguishable from an easement in that an easement implies an interest in land, which ordinarily is created by grant, and is permanent. * * *' ⁴

These two definitions should illustrate how close is the question of whether an agreement to park cars on another's property represents an easement conveyed or a license or right contractually provided for. The distinction is not a matter of the type or quantity of use since the use granted by license or contract may be broader or greater than that granted by conveyance of an easement. An easement, however, is a permanent interest in the land of another, with the right to enjoy it fully and without obstruction for the period of the easement. A license or contract right is a privilege to do one or more acts on the land of another without possessing an actual land interest. Into which of these categories does the agreement here, granting a right to park up to ten cars, fall? The answer, as we see it, requires a review and consideration of the entire agreement that is marked plaintiffs' exhibit A, not just one paragraph in it.

The entire agreement deals solely with the right of plaintiffs to park up to ten automobiles on property owned or 'made available' by defendant. As to the place of such parking, paragraph one of the agreement applies, providing in pertinent part:

'1. Parties of the first part, or persons designated by them, who are occupants of the building located on Parcel A (557 North 17th Street) are hereby Granted the right to park up to ten automobiles without restrictions as to the time or hours for parking on the area located on the east side of Parcel B (542--556 North 18th Street) * * * This right shall continue until such time as construction is commenced on Parcel B or such conditions beyond the control of second party as aforesaid exist which make it impossible to park vehicles as aforesaid. * * *' (Emphasis supplied.)

Whenever construction is commenced on the designated parking area, or when conditions beyond the control of defendant 'make it impossible to park vehicles' in such designated area, paragraph 2 of the agreement becomes operative. It provides, in pertinent part:

'2. when the parking of vehicles becomes impossible because of such construction or the existence of such conditions, parties of the second part shall make available an alternate parking site or sites to replace the eastern section of Parcel B. Such alternate site or sites shall be within three hundred (300) feet of the westerly line of Parcel A (557 North 17th Street) * * *' (Emphasis supplied.)

The apparent purpose of the two paragraphs is to assure parking spaces nearby for up to ten automobiles of occupants of the apartment house at 557 North 17 th Street. In fact, the agreement is to terminate if '* * * the existing building on Parcel A (557 North 17th Street) is no longer located on Parcel A.' Initially, the designated parking space for such automobiles is Parcel B (542--556 North 18th Street), but such designation could be, at the option of defendant, for no more than a few hours, days or weeks. When the defendant elects to commence construction on such parcel, the place where the cars are to be parked shifts. To where does it shift? Not to any designated specific area. Under the agreement the defendant is to 'make available' an 'alternate site or sites' to be 'within 300 feet' of the westerly line of the property on which the apartment building is situated. So even the idea of a mobile or piggyback easement, starting on one plot of ground and shifting, upon the happening of certain contingencies, to another location, would not fit the arrangement outlined. There is no successor site or sites to which the dispossessed easement could shift. Clearly paragraph 2 obligates defendant to no more than making available parking places somewhere within a 300--foot limit.

So a holding that the entire agreement...