Tarman v. Birchbauer

• Citation: 257 Wis. 1,42 N.W.2d 158
• Parties: TARMAN, v. BIRCHBAUER.
• Decision Date: 05 April 1950
• Court: Wisconsin Supreme Court

Page 158

42 N.W.2d 158

257 Wis. 1

TARMAN, v. BIRCHBAUER.

Supreme Court of Wisconsin.

April 5, 1950.

M. W. Hillis, Milwaukee, for appellant.

Harry V. Meissner, Milwaukee, for respondent.

BROADFOOT, Justice.

The question to be determined upon this appeal is whether the summary judgment should have been entered. The appellant contends that the pleadings and the affidavits in support of and in opposition to the motion for summary judgment are in direct conflict and present substantial triable issues of fact. The appellant advances three theories, any one of which he claims entitles him to the relief prayed for in the complaint: (1) The Gartzkes were the owners of both properties at the time they executed the mortgage to the Security Loan and Building Association; the words 'appurtenances and hereditaments' included not only the land but the building, and the walk in controversy was one of the appurtenances; (2) an implied grant of an easement to use the walk was created by severance of the entire property owned by the Gartzkes; (3) an easement to use the walk was created by prescription.

As to theory (1), the complaint contains the following allegations: That the Gartzkes obtained a building permit to construct the building now owned by plaintiff on November 2, 1925; the date of the mortgage was November 10, 1925; that within several months after November 2, 1925, the building was completed; that from the year 1926 and up until the date that defendant acquired her property, the walk was continuously and notoriously used in connection with the plaintiff's property. It is apparent from the above that neither the building nor the walk was in existence when the mortgage to the Security Loan and Building Association was executed. The walk, when constructed, was located upon land not described in the mortgage. The appellant has not by his pleadings or his affidavits sustained his first theory.

Appellant relies mainly upon his theory of an implied easement. He supports his contentions by citing numerous authorities from jurisdictions other than Wisconsin. Some states do recognize this theory, but Wisconsin has always followed the strict rule as to easements. Here it is held that easements in the land of another, with the exception of rights of way by necessity, can only be created by grant or prescription. Fischer v. Laack, 76 Wis. 313, 45 N.W. 104; Miller v. Hoeschler, 126 Wis. 263, 105 N.W. 790, 8 L.R.A.,N.S., 327; Depner v. United States National Bank, 202 Wis. 405, 232 N.W. 851; Frank C. Schilling Co. v. Detry, 203 Wis. 109, 233 N.W. 635. No necessity was established, as there are...