*1 Railway Express Agency (1947), 80 Aetna Ins. Co. v. 425; App. 30, Northern Fur Co. Ohio 74 N. E. 2d and Ry. (7th Minneapolis, v. Paul M. Cir. St. & S. S. 1955), 181, denied, certiorari relied on Fed. 2d distinguishable present defendant, are from case. They principal (railroad) liability concern of a rather agent (Railway Express Agency) parties than third its required transport goods a lower based when at rate in the Uniform Ex- the declared value forth set press Receipt. liability as an

No statute has limited the defendant’s agent employee, party and he is not a to nor a benefi- ciary carriage shipper and the contract of between the the carrier. common-law lia- It follows defendant’s alleged bility damages to have been caused his negligence trier of issues be resolved fact.

By Judgment reversed. Court. — Samp wife, Appellants, and Plaintiffs and v. Czarnik another, Defendants Enterprises, Inc., son Metropolitan Sewerage Respondents: County Interpleaded Milwaukee, Defendant Respondent. Argued April 3, March 3, 1970. Decided No. 1970. (Also reported 487.) 2d 175 N. W. *3 Sabrowsky, by appellants a was brief the there For Raasch, Milwaukee, and oral Reidenbach Miller of & argument by Frederick E. Reidenbach. by respondents J. a John Flem- Odenbrett,

For there was brief the city Harvey ing, attorney, G. Milwaukee city principal attorney, Schroeder, Ged- assistant argument len, Milwaukee, Riester & and oral Moerke Moerke, L. Ewald Jr. litigation T. J. This concerns Hansen, Connor being placed came into was use land that when a tube drainage in a ditch backfilled ditch and the thereafter grade submitted trial to level. The cause to court was agreed on an facts. statement of seventy parcel of land involved feet wide and is Avenue extends from Howell northwest to South South allege Layton they plaintiffs the north- Avenue. The own easterly thirty-five wide parcel, one half of this or foot strip, 0.5 about acres. The defendants which constitutes allege southwesterly half, thirty-five one or own the feet, seventy parcel of foot wide land. presently de-

The District the holder of what is strip. After the scribed as an to this entire easement drainage tube had been installed and the ditch backfilled grade seventy level, the entire foot leased strip allege they have leased defendants. Plaintiffs northeasterly thirty-five half, of the sev- one feet enty strip, party. foot wide to a third

The easement came into existence in when the government acquired pre-existing drainage Billy Field, near ditch outlet General Mitchell plain- which was then under control. The easement its on acquired predecessors tiffs’ land from was their title by condemnation on the defendants’ easement acquired land predecessors from in title their negotiation. By acquisitions, these the United States government perpetual “a obtained loca- tion, construction, patrol maintenance, operation and right-of-way in, for a ditch outlet over and County the lands of Milwaukee and situated State of Wisconsin” which included the lands that are subject of this case. rights

A series transfers resulted government finally being United States transferred to Sewerage City Commission of of Milwaukee for *4 Metropolitan Sewerage of the benefit District of Mil- County. waukee defendants, plaintiffs answer,

The in their denied that possession disputed thirty-five of have title and foot comprises northeasterly strip of land which one half parcel, interposed of the and also a defense the lease they which obtained from the The al- District.

545 leges 1944 condemnation it of the has that virtue thirty-five complete to foot title and in and interest strip. respective determining of present

In interest parties question, look to the first the land we petition condemna- proceedings. for condemnation The signed sought tion, 13, 1943, pos- “immediate on October question, of that the lands states funds session” purpose. appropriated The declaration had been for this signed Stimson, secretary by Henry taking, of then L. war, public of were recites the uses which lands taken, have been and that lands selected said “[t]he acquisition by the United The tract States.” me particularity.1 decree taken set out with states possession the land and taken” and is “condemned petitioner, already has been the United surrendered government. adjudged “Now, ordered, and decreed therefore, it is filing America, upon of of United States Taking hereby Declaration of . . . and it is vested said part 9-E That of NE of the NE No. “Tract % Range 29, Township North, of Fourth 22 East of Section % Principal Meridian, County, Lake, of of State Milwaukee Town Wisconsin, described as follows: Avenue, point “Beginning center on the N-S line Howell at Howell of the intersection of of the corner 440.77' South section Northwesterly Avenue; Layton on a line thence Avenue and E. Ave., a bearing line of Howell 01' to the left of said center 45° Northwesterly approximately 606.4'; on line thence distance angle line forming the aforementioned of 168° 30' with an included projected line of E. approximately center 15' a distance Layton boundary Erich is also the North which Avenue along projected Easterly center line Winger property; said thence 43'; approximately Layton thence Avenue, a distance of of E. angle forming Southeasterly of about 135° an included on a line approximately 550' line, a distance last mentioned 04' with the along Southerly said Avenue; thence center line of Howell approximately Avenue, 49.5' a distance Howell line of center Containing acres, or less.” beginning. all more point 0.5 *5 perpetual location, construction, for easement right-of-way operation patrol for maintenance, and of a drainage outlet, upon a situated in the in, ditch over and the lands County Milwaukee, Wisconsin, State particularly more . described follows: . . ordered, adjudged “And it and that is further decreed said land is deemed to condemned and taken be just compensa- America, and the property persons tion for the in so taken is vested thereto; just compensa- entitled amount of such proceeding tion shall ascertained be and awarded in this by judgment law, pursuant and established possession herein having heretofore sur- said been lands petitioner conformity rendered herein in with a previous order of this Court.” previously stated, As the interest ac- the lands was quired by judgment condemnation. The decreed that the United States of perpetual America is “vested with a location, construction, maintenance, operation patrol right-of-way of a for a in, outlet, ditch over, and Thus, the lands . . . .” rights designated by held the District are to be “a perpetual easement;” however, right may whatever this called, is, substance, it an interest the land. Restatement, Property, 471, comment sec. e to that section an whether estate states or easement depends upon created privileges what remain in the con- veyor and whether the incompatible use created is conveyor any the retention privilege of use: By Conveyance “Sec. 471. Creation Of Easements By Convey- Contrasted With Creation Of Estates ance. determining “In conveyance whether a an creates ease- estate, following ment or important factors “(a) degree precision convey- with which the part ance conveyor’s describes larnd affected it; “ (b) conveyance the extent to which the limits the uses p. authorized it.” *6 conveyance conveyor’s A land. Exclusive use “e. of pur- all for use conveys privilege of exclusive the which conveys an conveyor’s land part of the poses of all or privilege a conveyance of such in the land. estate conveyor. a denial Such any privilege of use to the denies any present interest retention inconsistent with the is by conveyee gives conveyance which to the A him. conveyor’s part all or of the privilege of use of exclusive necessarily create particular purpose not does land for a conveyor priv- conveyance a an Such leaves estate. privilege of use ileges with the not inconsistent of use privileges of use incon- there exist created. Whether pervasive- conveyed depends with sistent conveyance though a Even privilege created. of the ness may, convey privilege particular a terms, of use for in conveyed may incompatible privilege be purpose only, the conveyor. any privilege of use the retention with depend upon nature of the and the will use This of the terms conveyance. privilege of created is in- If the use any privilege compatible the than an easement.” retention of use with the conveyance convey conveyor, an will estate rather pages 2964, 2965. convey can, course, an

An intent be garnered from the use of that word in addition to the “right-of-way” which been held term has to constitute Schoyck easement, (1947), 413, Kleih an v. Van 250 Wis. Also, respect 2d domain, N. with 27 W. eminent only general prop rule is that such estate in the sought acquired may erty reasonably to be taken be as is accomplishment necessary purpose brought. proceeding which Because is do eminent compulsion, main the element of involves construc adopted which, in uncertainty, tion must event ambiguity, indefiniteness leaves the owner possible greatest estate. This is contrast to a volun conveyance tary between individuals where the rule of determining construction the extent of interest con veyed greatest possible is to allow the interest

grantee. pp. 262-264, 3 Nichols, Domain, Eminent sec. 9.2.

However, the fact the “easement” set out with particularity, possession required, immediate the sev- eral rights, “lands” rather than evinces references acquire long an intent to an interest in the land as it drainage purposes merely was used for and not respect Also, to that land. when the all-inclusive language of the considered, condemnation is it decree any rights possessory difficult to envision re- which grantor maintaining mained while the District was Building premises. outlet on the or construc- any conveyor (or plaintiffs) tion kind without *7 government (or District) of consent the be an intrusion would on the interest taken. On other the hand, granted possession the decree of the tract government. United States plaintiffs argue

The that their burden was increased the seventy-foot when surface land the of entire wide strip by was leased District the defendants. How- ever, plaintiffs seventy-foot the look strip chose to at the exists, it now as rather than as it existed in 1944. The present condition of the ditch came about through expenditure public by of District, the funds and the lease the between District and defendants indicates changes probability. that future lease, are which fifty years $50,000, part: is for in states provided property “. . . that further the interests hereby the use of poses are leased those which will not interfere with property pur- said or sewer water course they may as now or in the future In exist. the event that lessor concludes that the needs of its sewer require or water facilities course should the termination lease, they right of this have upon shall the to do so notice. reasonable hereby agrees “2. The lessee that it will erect no buildings easement, upon may, said but respects, other improve Upon the same. of termination lease, all improvements property become the the of lessor. upon the to enter said “3. reserves The lessor order notice to lessee property to the reasonable care rebuild, reconstruct, maintain and otherwise take easement; provided, present located in the of its facilities they improvements disturbed, however, will that if the improved cost. at lessor’s by improvements lessee, the and all All installed “4. premises are to be demised of maintenance of the costs lessee, except provided. by the herein borne property plans first All for use of the “5. lessee’s shall property of lessor, and no use the be submitted operation. interfere the lessor’s shall agrees lessor, or The lessee it will the its “6. save actions, agencies, ac- component free from all causes of arising tion, of whatever nature out claims liabilities property lessee, and it will the use said keep free from and the lessor and harmless all dam- save property ages or costs because the use said lessee.”

Considering commencing circumstances, all language acquisition, the broad used the 1944 decree of including subsequent change use and in the District, property character of the lease District between with the restric- defendants therein, conclude that District tions we the actions plaintiffs. on increase burden do not also conclude that lease from the We not defendants does constitute abandonment of *8 rights and property. interest of the to or "Sale lease. to Where land continues be used for the condemned, it purpose for which was transfer right to not an so use it does constitute abandonment. part whole, reserving So, sion, posses- a lease or control and cancel, right condemning company, abandonment; an not constitute it if does is otherwise permitted possession.” is take the lessee exclusive Domain, p. S., 661, Eminent 458. J. sec. C. acquired by The lease consistent the interest properly in 1944. condemnation The trial court dismissed plaintiffs’ temporary- cause of action and dissolved restraining order.

By Judgment affirmed. Court. — (dissenting). only J. Hallows, facts, C. I view the As (1) acquired express easement was because: The terms of provide the order in the condemnation suit perpetual America “is vested location, construction, maintenance, operation patrol drainage right-of-way of a for a outlet,” (2) ditch that interest is all that reason- ably necessary drainage long for the ditch. As remained, government “right- ditch could control the of-way.” problem govern- here is created because the changed ment the ditch into a conduit and created a purposes surface which was usable for other than that scope within the of the easement. to use the This belongs surface subject fee of the land owner enlarged beyond easement. Easements not their purpose. See v. (1969), Sun Prairie 43 Wis. Stauffacher 442, 587, 2d 2d N. W. where court held an ease- for a ment not ditch did include storm sewer. Corporation, Columbia International Respondent, v. Kempler others, Kepco, Appellants. d/b/a Argued 4, April No. 3, 1970. March 1970. Decided (Also reported 465.) in 175 N. W. 2d