Easement Language Must Be Clear to Exclude Owner Under Wisconsin Law

In a recent case the Wisconsin Court of Appeals held that an express easement must contain an affirmative statement of exclusivity in order to grant the right to exclude the fee owner of the real estate over which the easement has been granted. Garrett v. O’Dowd, 2009 WL 2871178 (Wis. Ct. App. 2009).

For example, assume Party A is given the right to pass over the land of Party B via a route defined in an easement document. This easement document does not address whether Party A’s rights are exclusive rights. In such a case, Party A does not have the right to exclude the underlying property owner, Party B, from use of the easement route provided Party B’s use does not unreasonably interfere with Party A’s use. If Party A wanted to exclude Party B, clear language to that effect must be included in the easement under Wisconsin law.

What is not clear from Garrett is whether using the word “exclusive” alone is enough for Party A to exclude Party B, the actual property owner. In a footnote the Court approached this issue indirectly by quoting from an Idaho case Latham v. Garner, 673 P.2d 1048 (Idaho 1983). In Latham the court was tasked with interpreting the phrase “exclusively for their use” and found it lent itself to three possible interpretations:

1. the grant of an easement to the grantee exclusive of all others except grantor;
2. the grant of easement right exclusive of all others including grantor; or
3. the grant of a fee simple estate to the grantee.

Garrett may be useful as a citation in arguing that the word “exclusive” alone is ambiguous and consequently extrinsic evidence must be employed to determine the effect of the easement document. The Court in Garrett found this rule to be supported by the law of several other jurisdictions and noted the lack of law on this issue in Wisconsin. The following language from a treatise quoted by the Court explains the rationale for this rule:

An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant “to the exclusion of all others”; because the exclusive easement, in effect, strips the servient owner of the right to use the land for certain purposes, thus limiting the fee, and itself has been called almost a conveyance of the fee, this type of easement is generally not favored by the courts.

Garrett at ¶ 8 (quoting, 7 JOHN H. PEARSON, THOMPSON ON REAL PROPERTY § 60.04(b)(2) (David A. Thomas ed., 2004)).

Courts are hesitant to find a grant that is essentially a conveyance of the fee interest in some or all of the servient estate owner’s property in the absence of clear evidence of such intent. The Garrett case arose out of a dispute between neighbors in Vilas County, Wisconsin. Id. ¶ 2. A lake front parcel was to be subdivided into two separate parcels. Id. Due to minimum lake frontage requirements in the applicable zoning code, both parcels could not have lake frontage. Id. It appears that instead one of the parcels was granted the entire lake frontage while the other parcel was granted an easement to provide it lake access. Id. ¶ 3. The language of the easement only provided that “the grantors hereby convey to the grantees a permanent easement across the following described property.” Id. ¶ 3.