*1 liability a limited Estate, LLC, Real Plaintiff-Appellant-Cross-Respondent, company,
v. A. Kosterman, and Susan Patrick J. Kosterman Defendants-Respondents-Cross-Appellants-
Petitioners.
Supreme Court
15, 2005.
argument
Oral
November
No. 2004AP188.
July
Decided
For the there plaintiff-appellant-cross-respondent was a brief by Hankel, Robert E. Hankel and Bjelajac, Koenen, L.L.C., Kallenbach, Racine, and oral Lehner & by argument E. Hankel. Robert filed M. An curiae brief was Elizabeth amicus *6 Hildebrand, & Winters, and DeWitt Ross Daniel W. Village Stevens, S.C., of the Madison, on behalf Merrimac. presents
¶ PROSSER, J. This case 1. DAVID T. express may question an easement be whether of the or terminated without the consent relocated рublished decision,1 the court of In a dominant estate. appeals unilaterally estate could held that servient express right-of-way easement once an terminate ingress provided an alternate route servient estate egress reverse the court to the dominant estate. We appeals of a the owner because we conclude unilaterally relocate or termi- estate cannot servient an nate easement.
HH by begin re easements 2. We this case about (or servitude) key viewing An terms. several land of another. an interest that encumbers is Schubring, 149, 8, 2d 2003 WI 267 Wis. McCormick v. Egan, (citing 2d Ludke v. 87 Wis. 63 141, 672 N.W.2d (1979)). liberty, privi 641 It is a 221, 227, 274 N.W.2d existing profit, lege, advantage lands, without ownership Id.; v. land. Schwab distinct from the (1999); 1 Timmons, 35-36, 589 N.W.2d 27, 2d Wis. P'ship, 660, 667, 2d Drive 172 Wis. v. Shore Stoesser N.W.2d Kosterman, Estate, 232, LLC v. App 2004 WI
1 AKG Real
509,
2d
¶ 3. An easement creates two distinct enjoys privi- estate, interests —the dominant which leges by granted eаsement, as other land an and the permits estate, servient which exercise those privileges. Schwab, 224 2d at 36. Wis. spring
¶ 4. In Patrick and Susan (the Kostermans) purchased Kosterman a house on a (the Audrey four-acre lot from Edward and Chvilicek Chviliceks). (the property The Kostermans' Dominant Estate) except lacked access to a road means physically overlapping recorded, of three easements (the part parcel across Estate), of an 80-acre of land Servient partially property. which surrounded their Nearly years ago ¶ 5. the Dominant Estate and ownership. the Servient Estate were under common prior Angeline Some time Louis and Chvilicek *7 bought approximately along 84 acres of vacant land Highway County. August in31 Racine In of 1960 Louis Angeline deeded the four-acre Dominant Estate to daughter-in-law, their son and the Chviliсeks, and granted the Dominant Estate a 30-foot-wide easement over the Estate, 80-acre Servient because the Domi- public nant Estate lacked access to a road. Angeline granted
¶ 6. In 1961 Louis and the Ch- right-of-way along viliceks a second the same course as the 1960 easement. This second easement was By increasing 66 feet wide. the easement, width the Angeline possible Louis and made it for the easement to public be converted into road. Angeline
¶ 7. When died, Louis Chvilicek con- veyed Chviliceks, to the as tenants-in-common, a 50 percent Angeline in interest the Servient Estate. con- veyed percent property the other 50 interest to daughter Joyce her son-in-law, and Vincent White. Joyce died, When and Vincent their interest in the Servient transferred Estate into the Vincent J. White (the Trust). Trust (AKG) In Estate, 8. Real LLC offered purchase the Servient Estate from the Chviliceks and developing Trust, with the intention of a subdivi- purchased
sion. AKG the entire Servient Estate from January the Chviliceks and the Trust warranty deed and trustee's deed. The 1998 deeds expressly recognized private a 30-foot-wide road ease- ment on the same location as the 1960 and 1961 easements:
Reserving therefrom a private road easement for the benefit of Edward T. Audrey Chvilicek and M. Ch- vilicek, wife, husband and their and assigns, heirs subsequent ... public owners until such time as road access is made available for upon said real estate following right described easement way .... grantors In addition, the two deeds reserved to the Chviliceks) (including existing all "recorded and/or right way reservations[.]" easements and planning develop land, While AKG was the Chviliceks sold the Dominant Estate to the Koster- Initially, development plan mans in AKG's de- picted connecting Highway two roads with planned along from the subdivision. The first was path second, Kostermans' easements and the presently north, was at what is Cobblestone Drive.2 meeting County After officials, however, with Racine Department AKG realized that the Wisconsin of Trans- *8 (DOT) portation unlikely approve public to road was a 2 On the initial plats, subdivision Cobblestone Drive was labeled Louis Drive. refer We will to the road as Cobblestone Drive.
along Admin. Wis. easements because the Kostermans' 2004)3 (Jan., requires minimum a Trans 233.06 Code connect to roads that 1000 feet between distance of affording public highways. to road access If a state Highway Kostermans1 over the 31 were constructed feet of within 600 have been easements, the road would Valley feet of south, and within 300 Road to the to the north. Drive Cobblestone determining would not consent DOT 10. After along ease- locatеd the Kostermans' a road to ments, plans proposed altered its subdivision Highway give 31 via a access to the Kostermans to with Cobblestone would connect cul-de-sac, which Highway 31. would connect with Drive, which turn develop plan, about seven lots AKG would Under this and the Kostermans easements over the Kostermans' driveway reconfigure required so that their be to would proposed cul-de-sac. Before with AKG's it connected necessary approval governmental get AKG could plat, Kostermans needed to however, the its subdivision agree rights AKG, to or to move release their date, To the Kostermans location of the easements. right-of-way modify easements refused to their have development plans. accommodate AKG's objected relocating 11. The Kostermans requiring for several reasons addition easements drivеway. development reconfigure their AKG's them to 233.06(2) provides: § Trans Admin. Code Wisconsin department a minimum allowable dis- shall determine highway or with the state trunk tance between connections connecting highway, any highways within the land between any highway within the land division division and between practicable, depart- existing highway. planned To the extent or 1,000 require at least feet between ment shall a distance of highway connecting highway. trunk connections with a state *9 plan put posi- the in would Kostermans' house an odd neighboring tion relative to the cul-de-sac and the change require houses, them address, their street replace Highway and their direct access to 31 with a again Consequently, route. circuitous AKG modified its plans develop plan the The subdivision. modified development phases, calls for to occur two the second litigation. of which the awaits denouement of this response unwilling- In to the Kostermans' easements, ness to relocate or their terminate AKG sought declaratory judgment a that the easements provided public terminated once AKG road alternate access to the Dominant Estate. Kostermans coun- judgment declaratory for a the terclaimed that and remain in if 1961 easements would effect even AKG provided ingress egress an alternate means of the Dominant Estate. The Kostermans moved sum- mary summary judgment. judgment, On the Racine County Judge, Court, Constantine, Circuit Charles H. ruled 1998 public that easement would terminate once provided regardless access, AKG road location, but 1961 easement of 66 feet would remain provided even after the Dominant Estate effect AKG public parties ap- with access. alternate road Both pealed. appеals
¶ 13. The court of affirmed the circuit holding that court's the 1998 easement terminated once public provided access, road but it reversed the holding circuit the 1961 court's that easement would Kosterman, First, continue. 2d Wis. appeals court of concluded the 1998 easement was unambiguous and that it terminated once AKG af- regard- forded the Dominant Estate road access Kosterman, less of location. 2d 277 Wis. appeals ¶¶ Second, 37-39. the court of held both should modified the 1998 easements be changed conditions to avoid under doctrine "grossly Id., ¶¶ 40, resources." inefficient allocation appeals its court of conclusion was 53. Central to the *10 benefits Koster- assessment that "the miniscule the aggregate impose far in mans costs excess derive parties." Id., ¶ all total concerned sum of benefits Accordingly, appeals cоurt of modified the easement the by deed as as the 1961 easement created the 1960 well the so that both easements would terminate once Dominant received alternate road access. Estate petitioned Id., ¶ for review. 53. The Kostermans II summary judg- ¶ 14. on This case comes to us grant a of ment. We review circuit court's summary judgment independently or denial
of circuit court applying methodology appeals, or court of the same as Reemer, ¶ 8, 2003 13, the circuit court. O'Neill v. WI Summary judgment 544, 259 Wis. 2d 657 N.W.2d403. is appropriate genuine if there are no issues of material moving party judgment and fact is entitled to as a 802.08(2). of matter law. Wis. Stat. Resolution of this requires creating interpretation case of the documents Here, both the 1961 and 1998 easements. the circuit appeals and of court the court decided the 1961 and unambiguous. Kosterman, See 1998 eаsements were ¶¶ 36, a 509, 277 Wis. 2d deed or other Whether ambiguous question instrument of review is is law we Gojmerac independently. App Mahn, 22, 2002 See v. WI (Ct. 2001). App. ¶ 24, If 1, 2d Wis. N.W.2d unambiguous, language a deed is its construction Ryan, question also a of law. v. 2d is Rikkers 76 Wis. 251 N.W.2d I I I ¶ 15. Two easements are at issue in this case: (1) (2) the 30-foot in 1998; easement reserved and 66-foot easement created 1961. Both easements are (easements express grant easements written reservation).4 appeals recognized, As the court of if the unnecessary 1961 easement remains in it effect, is consider under what conditions 1998 easement terminates. Because we that conclude the 1961 ease- unambiguous ment is and it survived the 1998 begin deeds, we and end with the terms of the 1961 easement. conveyance
¶ 16. The 1961 Chviliceks cre- right way. ated an The instru- Angeline give, "[d]o ment states Louis and Chvilicek grant convey [Edward Audrey and unto Chvilicek], аssigns and to their heirs and forever, an of rt ease way purposes ingress egress upon fol desc *11 real after est," which follows a metes and bounds description of the easement.5 attacking vitality
¶ In the of continued the arguments. easement, AKG makes two distinct argues changed First, AKG that circumstances frus- purpose requiring trate the easement, of the 1961 modify the court the easement so that it will terminate provides once AKG the Kostermans with ac- alternate 4 In express easements, addition to types common of ease ments prescriptive easements, include by necessity, easements See Wisconsin by and easements S. implication. Ishikawa, Jesse Law (2d 2004) Easements § ed. (discussing ways 2.1 the in of created). which easements are 5 A description metes and a parcel bounds defines describ ing boundaries, the courses directions its and is most often shape. Property Assessment parcel irregular used when a has an (2005). Manual Wisconsin Assessors, 5-8 ch. at for Second, that when it argues to a road. cess in the 1998 deeds the Servient Estate purchased each easements. We address the 1960 released argument. Be under the Easement Terminated
A. Should Changed the Doctrine of Conditions? changed to the urges adopt the court 18. AKG (Third) the Restatement doctrine set forth
conditions Servitudes Section 7.10 the Property: 7.10 Restatement states:
(1) change place has taken the cre- When a since a impossible it as ation of a servitude that makes the accomplish purpose to the for which practical matter created, may modify was a court servitude servitude If permit accomplished. to to be modifica- purpose effective, would not be a court practicаble, tion is not or may for Compensation the servitude. result- terminate a ing may to be awarded as harm the beneficiaries terminating modifying the servitude. condition (2) If be purpose of a servitude can accom- changed conditions the servient plished, but because longer permitted by no for uses estate is suitable servitude, modify may permit a court the servitude designed preserve other uses under conditions original servitude. benefits (1) law reflects the common rule 19. Subsection that an easement terminates particular purpose for the it use impossible when becomes Restate- intended instrument. granting purpose *12 (Third) Property: ment Servitudes 7.10, § at 399 of Note) termi- traditionally courts (Reporter's (noting becomes to purpose impossible nate easements when than resort to the condi- accomplish changed rather
14 doctrine); 25 2d tions Am. Jur. Easements and Licenses (2004) ("An § particular granted pur- easement for a normally pose purpose terminates as soon as such ... is impossible accomplishment."). rendered of (Third) prior ¶ 20. In contrast, to the Restatement Property: Servitudes, the rule set forth subsection of (2) traditionally was not used terminate easements. (Third) § Property: Restatement cmt. Servitudes 7.10 of French, F. a; Susan Toward a Modern Law Servitudes: of Reweaving Strands, the Ancient 55 S. Cal. L. Rev. (1982) (noting nothing comparable
1269,1301 there is changed equitable conditions doctrine covenants law);6 States, see also Cortese v. United (9th 1986) (implying F.2d Cir. that covenants, subject not easements, but are to the doctrine conditions). (2) changed permits Subsection an ease changed to be ment terminated —where exist conditions unreasonably —because the easement become has bur upon estatе, densome economically servient or obsolete, supra French,
wasteful. See at 1316. appears argue ¶ 21. AKG that the 1961 ease- should ment be terminated or modified under both impossibility purpose changed standards, circum- suggesting stances, that the latter leads to the former. We conclude that the easements should not be modified (Third) Property: or terminated under Restatement 7.10(1) Servitudes the 1961 Be Should Easement Terminated Because Impossible Purpose? It Is to Fulfill Its purpose ¶ contends that the of the 1961 provide ingress egress easement was to until for the Restatement Reporter Professor French was the (Third) Property: Servitudes. *13 subsequent develop- provided but that road access was for this have rendered the easement useless ments impossible regulations purpose make it to because DOT along public road the course еase- construct a changed emphasizes First, two conditions. ment. AKG portion a of the 66-foot- 1995 the Chviliceks deeded agreed of and wide easement to the State Wisconsin public placed not where the 1961 that a road could be Highway Second, with as of easement intersected oversight compli- the DOT increased of assumed § According Trans 233.06. ance with Wis. Admin. Code impossible for AKG, to make it the these two facts pur- public defeating road, a to become given pose Therefore, the Kostermans' of the easement. bargain relocating easements, refusal to over modify appropriate for a to contends it is court easements. disagree characterization of 23. We with AKG's step analyzing impossibility
the easements. The first purpose purpose of is to determine the of the easement. Ely,Jr., Jon & James The Law Easements W Bruce W. of Contrary 10:8, and in Land 10-15 Licenses at primary purpose assertion, AKG's the 1961 public Rather, not a easement is to become road. ingress primary provide purpose of this easement is to egress specifically Dominant a to the Estate over plain text of the 1961 instrument described course. way] right purposes ease[ment creates "an added.) egress (Emphasis ingress and . . . ." That valid extinguished, purpose frustrated, not has been oth- impossible erwise rendered fulfill. appeals concluding
¶ 24. The court of erred purpose that the public of the easement was to authorize a possible made True, road. the 1961 easement it private a But, to convert the road into road. overriding change purpose did not 1961 easement providing ingress egress the easement from providing public road. *14 ground, appears arguing Next, 25. to shift
that the
purpose
easement
1961
should be terminated once its
provide ingress
egress
and
the
to
Domi-
—to
accomplished by
nant Estate —can he
an alternative
unnecessary
course;
is, once
that
the easement becomes
position,
it
however,
should terminate. AKG's
is con-
trary
longstanding
law,
Wisconsin easement
which
express
holds that an
easement does not terminate even
necessity
purpose
when the
or
of the easement ceases.
Evans,
362,
v.
364,
272 Wis.
among necessity, particu- a easements of easements for purpose, express prescriptive easements, lar ease- ments. at under See id. 364—65. circumstances which an can modified or terminated easement be depend upon type if an "Thus, of easement. ease- granted particular purpose only, right ment is for a
17 dominant tenement is used for that continues while the specified purpose, Id. when the use ceases." but ceases 1023). § (quoting at 137, Am. Jur., at Easements temporary right way necessity a a in the "Moreover, is long necessity only that it continues so as sense added). (emphasis Id. exists." prеscriptive contrast, In neither a nor an easement can be modified or terminated solely necessity Id. easement ceases. because right "[t]he Thus, at rule ceases with ways acquired necessity application by ex has no right way press grant by prescription; to a so by showing that the created cannot be owners defeated way going to another convenient and accessible have (quoting premises." their Id. 28 C.J.S. Ease from 718) added); (emphasis Thomas, 54, v. ments at Millen 1996). (Ct. App. 2d Wis. N.W.2d *15 provide if Thus, AKG did alternate road even the 1961 Kostermans, access to easement would force, remain in an easement continues because regardless whether the dominant estate needs easement. acknowledged The court the rule Niedfeldt terminate with the
that an easement can cessation particular purpose for which the easement is granted, 2d at that is not Niedfeldt, Wis. but 40-plus years here. since the case In the the easement granted, was the owners of the Dominant Estate have egress. ingress and No circum- used the easement purpose changed stances have to frustrate this impossible. render it Kostermans continue to use driveway by easements, the 1960 and 1961 created they required give up and are this use even if a not rule, Another reasonable alternative becomes available. right necessity, that the applica- ceases with the has no right by tion "necessity" when the was created not but by express grant. put "any Id. at 365. As the it, court prove [now] offer to that the defendant had another road to his farm would not defeat his easement and hence was immaterial." Id. Modify
2. Should the Court the Easement Because Changed Unduly Conditions Make It Burdensome upon the Sеrvient Estate? requests regardless 30. AKG also that, the lan-
guage of the adopt 1961 instrument, the court Restate- (Third) Property: § 7.10(2), ment Servitudes thereby modify the easement because it inhibits the property free unreasonably and unrestricted use of property. Alternatively, closely burdens its but argument, urges related modify the court to (Third) pursuant 1961 easement to Restatement 4.8(3).7 Property: § Servitudes 4.8(3) Section states: Except where the location by and dimensions are determined surrounding instrument or circumstances creation of a servi- tude, they are determined as follows: (3) expressly easement, Unless denied the terms of an as 1.2, defined in the owner of the servient estate is entitled to make changes easement, reasonable in the location or dimensions of an expense, permit at the servient owner's develop- normal use or estate, only ment changes of the servient but if the do not
(a) significantly *16 utility easement, lessen the of the (b) increase the burdens on the owner of the easement in its enjoyment, use and or
(c) purpose frustrate the for which the easement was created.
19 apply to either We decline Restatement 4.8(3) 7.10(2) (Third) §§ Property: Servitudes to of sanctioning risk of case. Even at the of the facts unneighborly this economically unproductive behavior, rights. safeguard property Schwab, See this court must Steenberg Jacque Inc., Homes, 41; 2d v. 224 Wis. at (1997); Flohr, v. 2d 563 N.W.2d154 Guse Wis. (1928). Thus, 139, 147, N.W. 730 195 Wis. impose right-of-way we to a Schwab refused necessity adjoining petitioners land the even of though doing across effectively petitioners' rendered the
so providing of alternative land useless because cost prohibitive. Schwab, 224 was Wis. 2d vehicular access Jacque upheld punitive- In a $100,000 we at 39-41. damages damages despite nominal оf order verdict $1 rights, protect property inten- the defendant where to. tionally trespassed plaintiffs
across land to avoid high Jacque, cost of the alternative route. Similarly, in that 2d at 631. we concluded Wis. Guse unilaterally right- modify a could not dominant estate of-way though doing easement even so would have been economically the dominant estate and beneficial both ("[T]he Guse, the servient estate. 195 Wis. at plaintiff permit refusal the point removal unneigh- a rod fence to one farther south... is may borly, spiteful, be, and unreasonable. However legal rights plaintiff remain the same. ... case."). balancing equities There can in this be no 4.8(3). (Third) Servitudes, § Property: Compared Restatement (Third) Servitudes, 7.10(2), § Property: Restatement 4.8(3) arguably departure more represents an even radical modify majority from the rule because it allows court tо an concluding changed. that conditions have easement without *17 Nothing in the host of cases AKG cites convinces us property rights that we should sacrifice in this case efficiency. favor of economic As such, the court of appeals placing overriding significance upon erred in prevent the need to Kosterman,- economic waste. 277 ¶ 509, Wis. 2d 1. support position,
¶
upon
In
of its
AKG relies
(Mass.
Dwyer,
Builders,
M.P.M.
LLC v.
ment Servitudes evince specifically reluctance to relocate easements with a agreed upon Lillehaug, location. See Burkhart v. 664 (S.D. 2003) (noting 41, N.W.2d 44 the course of the right-of-way "surveyed, platted easement was not with specificity, clearly established"); Roaring or otherwise Club, Co., Fork L.P v. St. Jude's 36 P.3d 1236 (Colo. 2001) ("under the Restatement, a burdened es (unless may unilaterally tate owner move an easement specified it is in deeds or otherwise to have a location certain), subject both to a reasonableness test and to the 4.8(3)].") added); [§ (emphasis constraints delimited in (N.Y. 1998) Young, Lewis v. 649, 658, N.E.2d (noting parties that if the intended the location of the subject fixed and be not to unilateral they relocation should have described it metes and driveway "running gener bounds rather than aas in a ally direction"); southwesterly Johnson, Goodwin v. (S.C. 2003) App. (relocating S.E.2d Ct. an ease- necessity suggesting ment of while ease- relocated). require mutual consent to ments be Dwyer, appears therefore, to stand alone.8 Dwyer mean We decline to follow because it would *18 altering longstanding default rule in that Wisconsin unilaterally a servient estate cannot relocate or termi express Notably, even nate an easement. under the (Third) 4.8(3), § Property: Restatement Servitudes of parties prevent by can still unilateral relocation incor agree porating requirements in mutual consent their (Third) Property: ment. See Restatement Servitudes of 4.8(3) § (noting merely supplies & cmt. a the section by Dwyer, parties); when omitted terms see also 809 ability 1058. The to contract around unilat N.E.2d at 4.8(3), §by modification, eral convincing as authorized makes less argument that the interest in increased development property should overcome the durabil ity rights. Accordingly, of easement we conclude that parties provision express need not include a in an prevent easement to unilateral modification or reloca any tion. Absent mention of modification or relocation creating easement, the instrument an the rule that is unilaterally the owner of the servient cannot estate modify Kozlowski, an easement. See Lehner v. (1944); Guse, 262, 266, 13 245 Wis. N.W.2d910 195 Wis. at 147-48. agree
¶ 35. We with the Kostermans (Third) rejected that courts have the Restatement 4.8(3) 7.10(2) §§ Property: Servitudes in favor of 8 Supreme recently Court Vermont considered the Neel, Dwyer Sweezey case and declined to follow it. v. 2006 VT 38, 1050, 904 A.2d 2006 WL
22 preventing the of servient estates from unilat owners erally relocating terminating express See easements. (Ga. 2000); Pettengill, e.g., 735, Herrin v. S.E.2d Inst., Inc., Low Income Hous. 45 P.3d MacMeekin v. (Wash. 2002); App. Bruk, Davis v. Ct. see also (Me. 1980). rejected These courts have A.2d рosition a advanced the Restatement as threat to certainty rights property and real estate trans catalyst litigation, for and as a actions, as a increased reap purchasers for of servient estates to means expense at the of owners of dominant estates. windfall rejecting agree We these reasons compelling position than the Restatements are more might inefficiencies that result from bilateral economic monopolies and holdout easement owners.9 although Thus, a handful of courts have (Third) adopted Property: Restatement Servitudes 4.8(3), jurisdictions distinctly in the these remain Ely, minority. Jr., The Law Jon W Bruce & James W. *19 of § and in Land 7:16 at 7-31 to 7-33 Easements Licenses (Third) (2001); Property: Servitudes, see Restatement of 4.8(3) § (noting Introductory 4, at Note to ch. 496 departs adopt the civil- from the "common-law rule to
9 Epstein As Professоr states: against prefer- Ownership meant be a bulwark the collective is others; one, poor, against it rich or to stand alone ences of allows prefer- matter insistent or intense its collective the world no how ordinary presents problem say ownership that a holdout ences. To identify identify system; it is to one of its is not to a defect in the adamant, private party strengths. can If a holdout is no essential any price. may question The state him to the land in at sell force only powers, it domain but when acts intervene under its eminent (or use,1 'public B those not for the narrow interests of for serve). he wishes to whom in the Law A. and Freedom Contract Epstein, Richard Notice of Servitudes, 1353, 55 S. Cal. L. Rev. 1366-67 of 23 easements."); Introductory id., rule on relocation of law § (noting "provides to ch. at 336 7.10 for an Note permit flexibility expanded of modification to more use adapting arrangements servitude to retain their time."). utility over position Moreover, articulated in Restate- (Third) 4.8(3) §§ Property:
ment
Servitudes
of
7.10(2)
longstanding precedent
is inconsistent with
equities
Wisconsin courts do not balance the
of adverse
property
determining
grant
owners when
whether to
modify
Schwab,
an
41-43;
easement. See
Wis. 2d at
Guse,
¶ 38. academic debate public policy over whether wise warrants the extension changed of conditions doctrine to easements.10 On proponents position argue hand, one of the Restatement judicial necessary rectify that problem intervention is single- holdouts, who could otherwise handedly impede development. e.g., economic See Uriel Concept Reichman, Servitudes, Toward a Unified (1982); S. Cal. L. Rev. French, Susan F. сhanged In addition to the conditions discussion (Third) Property: Restatement Ser- provided doctrine in the vitudes (2000), generally see on symposium servitudes presented in 55 Southern California Law Review 1177-1447. See Relocating Response also Easements: A Orth, John V French, (2004); Prop. 38 Real Prob. & Tr. J. 643 Susan Professor (Third), French, Relocating Easements: Restatement Servi- F. 4.8(3), tudes Prop. Prob. & J. (2004); Note, 38 Real Tr. Right Owners Servient Estates to Relocate Easements Unilaterally, (1996); Balancing the Note, 109 Harv. L. Rev. 1693 Equities: Progressive Is Missouri Adopting Rule Reloca *20 Easements?, tion (1996); 61 Mo. L. Rev. 1039 Glen O. of Robinson, Explaining Contingent Rights: The Puzzle "Obso of Covenants, (1991). lete" 91 Colum. L. Rev. 546 Reweaving Servitudes: a Modern Law Toward of 1261, 1265, 1300 Strands, Cal. L. Rev. 55 S. Ancient Balancing Equities: (1982); Is Missouri Note, Progressive Adopting Ease- Relocation a Rule of (1996). ments?, 1039, 1057-61 Con- 61 Mo. L. Rev. position versely, opponents contend of the Restatement judicial uncertainty cаused modification that the hamper development economic does more to easements discour- current law because the Restatement than does by rendering property rights ages uncer- investment e.g., Epstein, Con- A. Covenants and tain. See Richard (1987); Carol M. stitutions, 906, L. Rev. 73 Cornell Security, Servitudes, Some Comments and Assent: Rose, Reichman, L. Rev. and 55 S. Cal. on French Professors (1982); Right Owners Note, 1412-13 Unilaterally, Relocate Easements Servient Estates to Harv. L. Rev. 1694-97 and lack the lack of consensus 39. Given changed-conditions produces doctrine that the evidence reject legal consequences, superior we and economic general departure rule that from the Restatement's unilaterally modified. We easements cannot be arguments policy persuaded are suffi- that the are not ciently compelling overturning justify more than expecta- century precedent upsetting the settled holders. of thousands of easement tions Extinguish 1961 Ease- B. Did the 1998 Deeds ment? Alternatively, deeds the 1998 AKG contends
extinguished AKG's easements. the 1960 and 1961 argument depends upon to the 1998 extrinsic evidence pre- including offer and counteroffer deeds, completed the Ch- between transaction ceded the testimony deposition Trust, AKG, viliceks, the *21 deposition testimony Chvilicek, of Edward mem- AKG, and the 2000 bers deed which the Koster- purchased mans the Dominant Estate from the Ch- viliceks. major argu-
¶ 41. There are two
flaws with AKG's
ment. The first is that before extrinsic evidence of the
parties'
considered,
intent can be
the 1998 deeds be-
Chviliceks,
tween AKG and the
and between AKG and
ambiguous
respect
the Trust must be
with
to the 1960
Rikkers,
and 1961 easements. See
the fee title to AKG for "recorded existing right way easements and reserva- and/or (2) tions . . . ." In an exhibit to the 1998 deeds, Chviliceks and the Trust reserved the 30-foot-wide public overlapped road easement, which the 1960 and (3) In exhibit, easements.11 the same the Ch- right-of-way viliceks and the Trust reserved another ingress egress easement for via Cobblestone Drive. 11Specifically, provide: the deeds "Reserving therefrom a private road easement. . . until such public time as road access is made available for said upon real estate the following described right way ...." Although the circuit court and appeals court of concluded this 1998 easement would terminate once the Dominant Estate received road access, regardless location, question we this interpreta If anything, tion. phrase "upon following use of the de- language Nothing of the easements in the suggests by that the 1960 the 1998 deeds created Nothing being are released. easements language 1998 deeds created of the easements any preexisting More- easements. makes reference *22 explicitly except from the title over, the 1998 deeds conveyed easements. Since all recorded to AKG only recorded, the rea- are and 1961 easements 1960 interpretation the 1998 deed is that sonable by property purchased the 1960 was encumbered AKG along recorded all other easements, with and 1961 easements. any and 1961
¶ doubt that the 1960 If there is for title insur survived, commitment easements AKG's by property encumbered was ance confirms that clearly are easements earlier easements. Both these conveyed. exceptions ambi Absent to the title listed as leading up negotiations guity, decline to consider we testimony deposition or the the 1998 deeds establishing purposes do oth intent. To offered for certainty jeopardize and authoritative erwise would Kordecki and land records. of recorded titles status Cf. 479 718-19, 317 N.W.2d Rizzo, 2d 106 Wis. v. (1982). position is that in AKG's The second flaw respect to the with deeds were silent if the 1998
even an does not terminate easements, silence and 1961 1960 express v. Mari Falls Power Co. See Union easement. (1941). County, 134, 141, 298 N.W 598 nette Wis. Because suggest otherwise. appears easement" scribed however, deeds, need not we the 1998 1961 easement survives question. this resolve long-established express rule is that an
"passes by subsequent conveyance of the dominant express conveyance."Id.; estate without mention in the Chicago, Ry. Co., Barkhausen v. Milwaukee & St. Paul (1910); Gojmerac, 292, 298, Wis. N.W 649 Krepel Darnell, 1, 25; Wis. 2d 235, 245, v. 165 Wis. 2d (Ct. 1991). App. Conversely, 477 N.W.2d333 a servient estate remains burdened a recorded ease expressly ment even when the easement is not men conveyance, purchaser tioned in the since the has constructive notice of the easement. Jon Bruce W. & Ely,Jr., James W. The Law Easements and Licenses § 10:32, Land at Thus, 10-77 when AKG ac quired Estate, title to the Servient the 1960 and 1961 property. easements Likewise, burdened when the acquired Estate, Kostermans the Dominant the chain of title confirmed that the 1960 and 1961 easements appurtenant property. Accordingly, remained reject to the we argument AKG's the 1998 deeds extin guished the 1960 and 1961 easements. *23 Although
¶ upon 45. AKG couches its attack the burdening changed easements its land terms of purpose, subsequent conditions, frustration of and extinguishing prior easements easements, we think really asking AKG is this court to relieve it of the duties placed upon every buyer property. buyer other of real A property expected rights of real is to determine the (1) purchase by consulting the land he is about to the (2) register records in the office of the of deeds; other rights usually records to discover which are not register recorded the office of of deeds, such as (3) judgments liens; and Kordecki, the land itself. testimony 2dWis. at 719 The n.5. of all AKG deposed inspect members reveals a failure to the chain plans development their determine whether of title to rights conveyed by thе title to with were consistent necessary holding, to our Estate. While not the Servient bolsters our conclu- this evidence of omission appeals modified should not have that the court sion upon of the to relieve AKG burden the 1961 easement the Servient Estate.
IV appeals. Accordingly, ¶ we the court of reverse if remain in effect even AKG The 1961 easement will provides an means of access alternative Kostermans public road, of a servient estate to a because the owner express modify unilaterally terminate an cannot easement. appeals
By of the court of the Court.—The decision is reversed. part.
¶ WILCOX, no J., E took 47. JON {concur- ABRAHAMSON, C.J. S. 48. SHIRLEY majority opinion ring). agree that AKG I with approval get relocate or Real cannot court Estate without the consent terminate dominant Kostermans, estate. the owners majority opinion, ¶ 1, however, states The broadly. holding applicable The of law too its majority opinion rule holding that "the owner declares its unilaterally or termi- relocate estate cannot servient express agreement," period.1 true! Not nate an applicable opinion, majority ¶ overstates the also action it "unilateral" majority opinion speaks When get approval of an estate court that the cannot means servient *24 contrary to wishes wishes to take act the servient estate the dominant estate. provide
rule if as "even did alternate road [dominant estate], access to the the 1961 easement express in force, would remain because an regardless continues whether the dominant estate added). (emphasis needs the easement." Paragraph opinion majority ¶ 50. 29 in the cor rectly explains that an easement can terminate particular purpose with the cessation of the for which granted. Evans, the easement was v. 272 Wis. Niedfeldt (1956), clearly 362, 364, 75 N.W.2d307 states this rule of law.
¶ 51. The court not need and should not decide (Third) adopt Property: whether to Restatement 4.8(3) 7.10(2). § § provision ap- Servitudes, Neither 4.8(3) plies § in the instant Under case. the owner changes cannot make reasonable in the location of an change easement if the increases the on burdens enjoyment.2 owner of the easement in use and its Here proposes extinguishing, modify- the servient owner not ing, any the easement. In event, the owners of the dominant estate would be burdened. 7.10(2) §
¶ 52. Under Restatement court (easement) may modify permit the servitude other "changed "Changed uses because conditions." condi- stringent including concept standаrd, tions" is a longer pur- that the servitude no serves its intended pose.3 § explains Comment a. to 7.10 that doctrine sparingly: is used
Because servitudes property create interests are generally valuable, apply changed-conditions courts (Third) 4.8(3) 1 Restatement Property: § Servitudes (1998) quoted majority is at n.7 of opinion. (Third) See 2 Restatement of Property: Servitudes 7.10 illus. 4 *25 many changed-conditions the with Of doctrine caution. decisions, appellate few result produced cases that have The test or termination of a servitude. in modification granted only purpose if the stringent: relief is is longer accomplished. no be When servi- servitude can rule, ordinarily under it is are terminated this tudes of the servitude would serve clear that the continuance unnecessary harm and would create purpose no useful owner the to the of servient estate.4 estate Indeed, the owners of the dominant 53. ¶ changed there were no are that arguing persuasive conditions.5 7.10(2) the 1998 Restatement 54. Section of
¶ (Third) not as as of Servitudes is broad Property: is Professor of of modifications servitudes description a entitled Toward article, review French's 1982 law the Ancient Reweaving Law Servitudes: Modem of (often Strands, discussing in 55 L. S. Cal. Rev. majority opinion which the relief), upon injunctive relies.6 forth, I write separately. For reasons set WALSH of Justice ANN concurring opinion
I join BRADLEY. I {concurring). BRADLEY, J. 56. ANN WALSH been I think basics have some separately
write because in the shuffle. lost (Third) § 7.10 cmt. Servitudes Property: 2 Restatement (1998)
a. "changed condition" out that the point The Kostermans a Department was appeals relied which court upon from prohibits AKG regulation arguably Transportation regulation Yet path. this building public road on easement yеars Kostermans, five before was, according adopted to the 1961 easement.
6 Majority op., ¶ pivotal
¶ 57. The 1961 easement is easement in granted an this case. That easement is purposes ingress egress." "for It still can purposes. be, is, used for Therefore, these this case concepts impossibility not does involve the or cessa- purpose. tion of
¶ 58. Whether the Kostermans' use of the 1961
expressly-granted purpose
easement
"necessary"
its
remains
Evans,
is irrelevant. See
v.
272
Niedfeldt
(1956) ("The
362, 365,
Wis.
75 N.W.2d307
that the
rule
right
necessity
application ways
ceases with
has no
to
grant...
acquired
express
right
way
a;
to a
so
by showing
created cannot be defeated
that the owners
way
going
have another
convenient
accessible
to
premises." (quoting
C.J.S.,
and from their
28
Ease
718));
p.
Thomas,
ments,
accord Millen v.
201
(Ct.
1996).
App.
675, 679,
2dWis.
¶
In
case,
a future
when
is an
may
issue, this court
well consider whether an
purpose
easement could be terminated
when
be-
impossible
accomplish.
high
Impossibility
comes
ais
properly
standard when
standard,
defined.
Such
nev-
1
Flohr,
v.
Guse
(1928).
139, 147,
195 Wis.
217 N.W
733
DNR,
Pollnow v.
350, 362,
88 Wis. 2d
N.W.2d
Thomas,
v.
Millen
675, 679,
201 Wis. 2d
SHIRLEY