TJ Auto LLC v. Mr. Twist Holdings LLC
851 N.W.2d 831
Wis. Ct. App.2014Background
- Express easement created in 1928, last recorded in 1945, allowing crossing west ten feet of adjacent property for access to a parking area.
- 2005 marked the expiration of the sixty-year limitation period for recording renewals; the easement became unenforceable against subsequent purchasers.
- TJ Auto LLC purchased the adjacent property in 2006 with actual notice of the easement but believed it had expired and learned of an unrecorded 1988 survey illustrating the easement.
- Restaurant sought to block the easement by fence and later filed suit in 2011 seeking declaratory judgment that the easement was invalid; restaurant argued prescriptive easement if express easement failed.
- Circuit court granted summary judgment for restaurant; appellate court reversed, holding the express easement is unenforceable under § 893.33(6) and remanding to consider a possible prescriptive easement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether express easement is enforceable against TJ Auto | TJ Auto contends the easement remains enforceable because it was long-standing and notice was present. | Twist Holdings argues the easement expired due to failure to rerecord within the statute of limitations. | Unenforceable against TJ Auto |
| Whether the 1988 unrecorded survey renews the limitations period | TJ Auto argues the map should renew the period of limitations as a recorded-like instrument. | Twist Holdings maintains a survey unrecorded is not a recording under § 893.33(6). | No renewal; not a recording |
| Whether the absence of a renewed express easement precludes a prescriptive easement claim | TJ Auto argues long use and notice might support prescriptive rights if express easement fails. | Twist Holdings contests any prescriptive claim absent proper renewal. | Remand for prescriptive easement inquiry |
Key Cases Cited
- Turner v. Taylor, 268 Wis. 2d 628 (2003) (setting threshold requirements for enforcement under § 893.33(6))
- Robinson v. Mount Sinai Med. Ctr., 137 Wis. 2d 1 (1987) (statute of limitations burden on defendant; pleading differs from proof)
- Green Spring Farms v. Kersten, 136 Wis. 2d 304 (1987) (summary judgment standards and due consideration of material facts)