Presentation to the Wisconsin Real Property
September 18, 2003
Jesse S. Ishikawa
Reinhart Boerner Van Deuren
22 East Mifflin Street, Suite 600
Madison, WI 53703
© 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
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
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
1. The benefit is the easement rights held by the
2. The burden is the obligation imposed on the owner
of the land that is subject to the easement.
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
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
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
b. There can be no conveyance of the easement
right apart from the conveyance of the benefited
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
1. Express grant.
2. Implied easements.
5. Notations on plats and certified survey maps.
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
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
1. The grantor owns a piece of property that is
served by a common improvement--such as a roadway or a
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,
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
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
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
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
G. Easements created by plats. To remove an easement that
has been created by a notation on a plat, you need to
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
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
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
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
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
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
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.