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Published: July 8, 2009
Authors:
Robert Procter and
Charles (Buck) Sweeney
The Wisconsin Court of Appeals recently confirmed that the proper inquiries in a breach of easement case are:
- Whether the dominant estate was enlarged
- Whether the servient estate faced an added burden
The Court found that the defendant in Grygiel v. Monches Fish & Game Club, Inc., No. 2008AP2028 (Ct. App. June 10, 2009), had neither enlarged the dominant estate nor added burden to the servient estate when a Monches Fish & Game Club ("Club") member and several friends used the Club easement to access adjacent property. The Court also affirmed the circuit court's holding that there had been no violation of the terms of the easement.
The plaintiff, Grygiel, owns 32 acres of property that meets at one corner with 120 acres owned by the Club. In order to access the Club's property, members, employees and guests must use an easement. In 1991 a circuit court issued a binding determination interpreting the language of the easement. The circuit court found in part that the easement may only be used by "members of [the Club], its invitees, service vehicles, and emergency vehicles." Grygiel at ¶2.
In 2006 a defendant, Scheife, took several guests hunting on property adjacent to the Club's property. To get there, Scheife and his guests parked at the Club, where Scheife was a member, and exited the Club property onto the adjacent hunting grounds. When Scheife returned to retrieve his vehicle, he was stopped by Grygiel, who objected to Scheife's use of the easement. Grygiel sued the Club and Scheife for trespass and breach of easement, but her claims were dismissed by the circuit court, and she appealed.
On the motions for summary judgment and on appeal, the parties argued as to the proper application of Millen v. Thomas, 201 Wis.2d 675, 550 N.W.2d 134 (Ct. App. 1996). The Court determined that the reasoning of Millen was directly on point and properly applied. According to the Court, under a Millen analysis proof that the dominant estate has been enlarged is not enough to show breach of an easement. The inquiry must then shift to an "added burden" analysis which should focus on the actual burdens experienced by the servient estate.
The Court noted that Scheife properly used the easement to gain access to the Club, which he was permitted to do. Further, Scheife's friends were properly considered "invitees" under the terms of the easement, so their presence was permissible, as well. According to the Court, the simple fact that the hunters then left the Club property did not enlarge the dominant estate. Nor was the burden any greater for the servient estate than it would have been had the hunters remained on Club property as they were welcome to do.
The Court of Appeals then affirmed the order for summary judgment in favor of the defendants on the grounds that the defendants' actions were permissible under the language of the easement, did not enlarge the dominant estate, and imposed no additional burden on the servient estate.
Charles V. (Buck) Sweeney is a partner practicing in the areas of environmental and construction law, and is co-chair of Axley Brynelson's Construction Law Team. Robert C. Procter is a partner of the firm who serves as counsel for numerous businesses relating to various matters including contracts, construction law, real estate, general business issues and business litigation. If you would like additional information on breach of easement, please contact Mr. Sweeney at 608.283.6743 or csweeney@axley.com, or Mr. Procter at 608.283.6762 or rprocter@axley.com. Thanks to Axley Brynelson law clerk Emily Buchholz for her assistance on the article.
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