Vieth v. Dorsch
| Decision Date | 07 November 1956 |
| Citation | 79 N.W.2d 96,274 Wis. 17 |
| Parties | Mary VIETH, Appellant-Respondent, v. John DORSCH, Respondent-Appellant. (Two Notices of Appeal). |
| Court | Wisconsin Supreme Court |
John A. Udovc, Milwaukee, for appellant-plaintiff.
William P. McGovern, Milwaukee, for respondent-defendant.
Plaintiff's first contention on appeal is that defendant forfeited his easement over the west eight feet of her lot by asserting title by adverse user in his counterclaim. We cannot agree.
While the counterclaim is not altogether clear, it could be construed as asserting title by adverse user to the easement only, and not title to the land in fee. Whichever construction be correct, however, we do not consider that the making of such a claim in the heat of litigation operates to forfeit the easement which defendant had acquired by purchase from his predecessor in title. The mere claim of a greater right in those circumstances should not forfeit the lesser and consistent right. Nothing in the counterclaim indicates any intent to relinquish use of the easement, and defendant appears to have abandoned the counterclaim at the trial. Cases where the dominant tenant has done something to make a proper use of the easement impossible or has evidenced an intention to relinquish its use are not in point.
Plaintiff's next contention is that defendant forfeited his easement by the abuses thereof which the trial court found to have occurred. Those abuses were not inconsistent with continuance of the legitimate use of the driveway, they evidenced no intent to bandon legitimate use, and they were not sufficiently serious to work a forfeiture of the valuable easement. They were not, as in Stenz v. Mahoney, 114 Wis. 117, 121, 89 N.W. 819, wholly incompatible with the nature and exercise of the servitude. Plaintiff's rights can be fully protected by enjoining the misuse of the driveway, without forfeiting its legitimate use.
The courts do not favor forfeitures of easements. Luttropp v. Kilborn, 186 Wis. 217, 222, 202 N.W. 368. It is generally held that in order to justify the forfeiture of an easement because of excessive or improper use, the misuse must be willful and substantial, and such that it cannot be separated from that which is permitted. 17 Am.Jur. 1032.
'The courts appear to be in accord in considering that the mere use of an easement for an unauthorized purpose, or the misuse or excessive use thereof, is not sufficient to constitute an abandonment or forfeiture, the view being that an injunction is the proper and adequate remedy.' 16 A.L.R.2d 610, citing many cases.
Cases from other jurisdictions where a drastic increase in use beyond that contemplated when the easement was granted has been held to work a forfeiture, as for example where an ordinary private driveway has been turned into a heavy-traffic thoroughfare, are not controlling here. The misuses of the driveway now before us are not of such magnitude or importance.
Plaintiff further asserts that defendant's easement has been terminated by the abandonment of the easement over defen...
To continue reading
Request your trial
-
Macy Elevator, Inc. v. United States
...to which he is entitled, and impose upon the servient tenement only that burden which was originally imposed upon it")); Vieth v. Dorsch, 79 N.W.2d 96, 98 (Wis. 1956) (requiring "willful and substantial" misuse that cannot be separated from permissible use in order to justify forfeiture of ......
-
Millen v. Thomas
...an easement use can result in a forfeiture of the easement, not merely an injunction against the improper use. See Vieth v. Dorsch, 274 Wis. 17, 19-20, 79 N.W.2d 96, 98 (1956).5 The ordinance provides that nonconforming uses of land "shall conform to the use regulations of the applicable di......