Note!  click the header above to get back to main
Links
Membership Listings
Officers
Committees
Resources
Newsletters
Links
Humor
Comments
 
Documents available for download require
Adobe Acrobat Reader
 
Contact President

Holly Hansen

 

Web Site maintained and hosted by

Presentation to the Wisconsin Real Property Listers Association

Siren, Wisconsin
September 18, 2003

Jesse S. Ishikawa
Reinhart Boerner Van Deuren s.c.
22 East Mifflin Street, Suite 600
Madison, WI 53703
(608) 229-2208

© 2003 by Jesse S. Ishikawa
All Rights Reserved

I. DEFINITION AND CHARACTERISTICS OF AN EASEMENT.

Definition. A good working definition states that an easement is a nonpossessory interest in land owned by another to use the land for a specific purpose without profit. Elements:

Nonpossessory.

Interest in land.

Owned by another.

To use the land for a specific purpose.

5. Without profit.

B. Easements distinguished from other rights. There are a lot of other situations where one person has the right to use somebody else’s lands for a specific purpose that are different from easements.

1. Licenses. Like easements, these also are rights to use the land of another for a particular purpose. Licenses are different from easements because:

a. They are personal to the licensee.

b. They are revocable.

2. Leases. Leases are different from easements because:

a. They grant a possessory interest in the land of another.

b. The lessee can enjoy the profits of the real property that it has leased.

3. Profit a prendre.

C. Benefits and burdens. Every easement has a benefit and a burden.

1. The benefit is the easement rights held by the easement holder.

2. The burden is the obligation imposed on the owner of the land that is subject to the easement.

3. Examples:

a. Where Parcel A is served by an access easement over Parcel B, Parcel A benefits from the easement in that the owner of Parcel A has the right to drive over Parcel B. Parcel B is burdened by the easement since the Parcel A owner can drive over Parcel B.

b. The telephone company has an easement to put an overhead line over a farmer's property. The telephone company enjoys the benefit of this easement and the farmer is subject to the burdens of this easement.

c. Where there is a party wall easement that provides for joint maintenance of a common wall between two buildings, the owner of each building is both burdened and benefited by the easement.

D. Easements appurtenant vs. easements in gross.

1. Easements appurtenant are easements where the benefit of the easement runs with a particular piece of property.

a. For every easement appurtenant, there is a "benefited" property and a "burdened" property. With an easement appurtenant, when you transfer the benefited property, the easement goes along with the property even if it is not specifically mentioned in the deed. All who possess, or who succeed to title to the benefited property become, by virtue of the fact of possession, entitled to the benefit of the easement.

b. There can be no conveyance of the easement right apart from the conveyance of the benefited property.

c. Example: a driveway over Parcel B for the benefit of Parcel A.

2. Easements in gross. With an easement in gross, there is no "benefited property." There is only a benefited easement holder.

a. An easement in gross runs to a named easement holder who can assign these rights to some other party irrespective of whether the beneficiary owns any particular land.

b. Example: a utility easement runs to the utility, not to the owner of any particular lands.

3. There is a judicial preference in favor of easements appurtenant as opposed to easements in gross. Given a choice, the courts will try to find a way to tie an easement to a piece of land unless it's pretty obvious that this is not the intention of the parties.

II. CREATION OF EASEMENTS.

A. There are a number of ways in which easements are created.

1. Express grant.

2. Implied easements.

3. Necessity.

4. Prescription.

5. Notations on plats and certified survey maps.

6. Condemnation.

7. Vacation of streets.

B. Express grants are the easiest and most common way in which to create an easement.

1. An express easement must be granted by the owner of the property that will be burdened by the easement.

2. Since an express grant is an interest in land, the statute of frauds applies.

3. An easement may be a separate document or it may be created by the addition of easement language to a deed.

C. Implied easements are easements that are created where the actions of all of the parties suggest that everybody intended that an easement should have been created, but that everybody simply forgot to write it down. An implied easement may be created when the following circumstances exist:

1. The grantor owns a piece of property that is served by a common improvement--such as a roadway or a utility conduit.

2. The grantor then slices off a chunk of the property and conveys it to a grantee but forgets to grant an easement for the common improvement.

3. The rule in Wisconsin is that for an implied easement to exist, the easement must be so absolutely necessary that without the easement, the grantee cannot enjoy the use of the property granted. Bullis v. Schmidt, 5 Wis.2d 457 (1959).

4. Implied easements are also called "quasi-easements" and are disfavored. There are some old cases in Wisconsin that say that implied easements simply don't exist in Wisconsin. Scheeler v. Dewerd, 256 Wis. 428 (1950). However, more recent cases say that they do exist. Stoesser v. Shore Drive Partnership, 172 Wis.2d 660 (1993); Bullis v. Schmidt, 5 Wis.2d 457 (1959).

D. Ways of Necessity.

1. A way of necessity may be created when the grantor conveys lands that have no outlet to a public road except over the remaining lands of the seller. The grantee will then have the right to go across the grantor's lands to get to the road at a location which is reasonably convenient to both parties.

2. This is a little different from an implied easement because with an implied easement, the location of the easement is known. Remember that an implied easement always involves some preexisting physical improvement, such as a road. A way of necessity doesn't require a physical improvement.

3. Also, a way of necessity will cease to exist when the necessity ceases to exist.

4. Is an easement by necessity created when the act of landlocking a parcel of land is the act of the owner of the landlocked parcel rather than the owner of the parcel lying between the landlocked parcel and the public right of way? Wisconsin courts have held that an easement by necessity in such a case is not created. Schwab v. Timmins, 224 Wis.2d 27 (1999).

E. Easements by Prescription. Prescription is the fancy legal term for "squatter's rights." Just as the law recognizes squatter’s rights as they apply to fee simple title, they also recognize squatter’s rights as they apply to easements. To establish an easement by prescription in Wisconsin, you must have:

1. Adverse use that is hostile or inconsistent with the exercise of the title holder's rights. The opposite of a hostile use is a permissive use. County of Langlade v. Kaster, 202 Wis.2d 449 (Wis.App.1996).

2. Such use must be visible, open and notorious. This means that you can't acquire a right to a walkway easement by using a path in the middle of the night when nobody can see you. County of Langlade, supra.

3. There must be an open claim of right.

4. The adverse use must be continuous and uninterrupted for a period of 20 years. If the squatter is a domestic corporation organized to furnish telegraph or telecommunications service or transmit heat, power or electric current to the public or for public purposes, or a cooperative organized to furnish telegraph or telecommunications service or to transmit heat, power or electric current to its members, the period is shortened to ten years. Section 893.28, Wisconsin Statutes.

F. Easements Created by Plat. Easements can be created by the placement of notations on the plat.

1. If a plat shows easements, streets, rights of way, and common areas, and the plat is recorded, this automatically gives each person who purchases a lot the right to use all of the easements, streets, rights of way, and common areas that are shown on the plat. Threedy v. Brennan, 131 F.2d 488 (C.C.A. Wis.1943).

2. Under Section 236.293 of the Wisconsin Statutes, if any municipality or governmental authority requires that a note be placed on a plat as part of the plat approval process, then the note is deemed to be for the benefit of that authority and can be altered only with the consent of the authority that required the note to be put on the plat. This has the effect of making easements on plats not only easements appurtenant, in that they run in favor of all of the other lots on the plat, but easements in gross, in that they run to the various governmental authorities as well.

G. Condemnation. Easements can be created by condemnation by authorities that have the power of condemnation. These include just about all governmental authorities (the state, cities, villages, townships, school districts, vocational school districts) and public utilities (sewerage districts, power companies, pipeline companies, telephone companies, gas companies).

H. Vacation of Streets. Easements can be created by the opening of streets, installation of public utilities within the streets, and the subsequent vacation of streets. This is how it works:

1. Under Section 86.16 of the Wisconsin Statutes, any person may, with the consent of the department of transportation (in the case of state highways), or with the written consent of local authorities (in the case of highways under their jurisdiction), construct and operate telegraph, telephone or electric lines, or pipes or pipelines for the purpose of transmitting messages, water, heat, light or power along, across or within the limits of the highway.

2. Under Section 80.32 of the Wisconsin Statutes, whenever any public highway is vacated, the easements and rights incidental thereto acquired by or belonging to any county, school district, town, village or city, or to any utility or person in any underground or overground structures, and all rights of entrance, maintenance, construction and repair of the same shall continue, unless:

a. the holder of such rights consents to the discontinuance or the order of vacation;

b. the discontinuance of the easements and rights by the owner thereof is a part of the discontinuance resolution (in which case the owner of such rights is entitled to damages); or

c. the owner of such rights fails to use the same for a period of four years from the time that the public highway was vacated.

In short, a utility can acquire easement rights by installing improvements within a public highway. Once the highway is vacated the easement rights remain unless separately terminated.

III. TERMINATION.

A. Wisconsin courts do not favor forfeitures of easements. Vieth v. Dorsch, 274 Wis. 17 (1956). Misuse of an easement may create liability for damages but will usually not result in the court-ordered termination of the easement. Exception: where the easement by its own terms provides the landowner with this remedy.

B. In the case of an easement appurtenant, merger of ownership of burdened and benefited properties.

C. Termination agreement. Needs to follow the same formalities of an express grant--signed by the party who is giving up the easement, compliance with the statute of frauds, compliance with recording niceties, etc. The $64,000 question often is, who are the parties giving up the easement? Particularly with easements created by plat, or with statutory easements, this can be a difficult question to answer.

D. Prescription. Just as you can create an easement by making adverse use of an owner's property, the owner, by taking action that is inconsistent with your use of the easement and continuing to do so openly, notoriously, adversely, and continuously for the requisite number of years, can cause you to lose your prescriptive easement.

E. Condemnation. Easements can be condemned out.

F. Cessation of the necessity (in the case of ways of necessity).

G. Easements created by plats. To remove an easement that has been created by a notation on a plat, you need to determine:

1. Who is the beneficiary of the easement?

a. If it's "all public utilities," then you need to obtain releases from every public utility serving the area in question.

b. If it could arguably be for the benefit of all of the lots, then you need to have all of the owners and mortgagees and everyone else having an interest in all of the lots grant releases.

2. Was the easement required as a condition to plat approval by one of the approving authorities? If so, you need to have that approving authority consent to the release.

a. This rule makes sense; otherwise the private lot owners could agree amongst themselves to remove an easement that was required because it fulfills some public purpose (such as a detention basin easement).

b. It's not always easy to find the municipal records that give the history of the plat. Thus, you may not be able to find out if the easement was required as a condition to plat approval.

 

IV. EXTENT AND CONSTRUCTION OF EASEMENT RIGHTS.

A. Express easements: the extent of the easement is as set forth in the document. If the language used is general, which it usually is, there are some rules of construction that apply.

1. If the location of a right of way is indefinitely described, the conduct of the parties can determine where the location will be. F. W. Woolworth Co. v. Vogelsang, 176 Wis. 366 (1922).

2. An owner of an easement has the right to make reasonable improvements or repairs thereto, so long as the owner of the easement does not increase the burden on the burdened property. Knuth v. Vogels, 276 Wis. 341 (1954).

3. An easement for a specified purpose may not be enlarged such that an added burden is placed upon the burdened property. Millen v. Thomas, 201 Wis.2d 673 (Wis.App. 1996). It's pretty clear that you cannot take an easement that's for the benefit of your lot and extend it to serve another lot. See Sicchio at 5, below. It gets tougher when the easement is in favor of a large lot that is subdividable into smaller lots. What may have been contemplated as a road serving a single farmette can end up being used to serve a 40-lot subdivision, and in that case, is the increase in the burden reasonable? The parties are assumed to have intended a scope that would reasonably serve the purposes of the grant and to have foreseen reasonable changes in the use of the burdened property. What's important is the reasonable expectations of the parties at the time the easement is entered into.

4. Landowner cannot unreasonably interfere with the use of the easement by the easement holder. An obstruction or disturbance of an easement is anything which wrongfully interferes with the privilege to which the owner of the easement is entitled by making its use less convenient and beneficial than before; obstructions or disturbances are unauthorized and constitute nuisances. Hunter v McDonald, 78 Wis.2d 338 (1977). See also Figliuzzi v. Carcajou Shooting Club of Lake Koshkonong, 184 Wis.2d 572 (Wis. 1994)(hunt club that had rights to hunt and fish on the burdened property successfully enjoined condominium construction that would have interfered with its activities).

5. Easement in favor of one lot does not confer the right to allow other lots to use the same easement, and easement that is appurtenant to a particular lot cannot be used as a mode of access to another lot to which it is not appurtenant, even though there is no resulting additional burden. Sicchio v. Alvey, 10 Wis.2d 528 (1960).

B. Implied easements, easements by prescription: the scope of these easements is determined by the use of the property at the time of the inception of their use.

IV. EASEMENTS FOR RIPARIAN RIGHTS

 

A. Background.

1. Riparian owner: "one who holds title to land abutting a body of water."

2. Riparian rights: the right of access to the water, the right to construct piers from their lands into the water, and the right to use the shore for bathing, boating or kindred purposes.

B. Common law rules.

1. An easement to use shorelands did not make the easement holder a riparian owner.

2. BUT: the courts recognized that a riparian owner could grant riparian rights to non-riparian owners via easement.

C. Statutory modifications to common law rules.

1. In 1990, Section 30.131, Wis. Stats. was enacted. This section allows a non-riparian owner to maintain a wharf or a pier based on an easement for water access that was recorded before December 31, 1986, provided that certain conditions are met.

2. In 1994, Section 30.133 was enacted. This section states that no owner of riparian land that abuts a navigable water may convey, by easement or by a similar conveyance, any riparian right in the land to another person, except for the right to cross the land in order to have access to the water. This right to cross the land may not include the right to place any structure or material in the navigable water.

D. There can be multiple riparian owners (tenants in common, owners of condominium units).

E. All pier rights are subject to DNR rules and regulations.