Issue: Under Wisconsin law does a court have any discretion in considering whether encroachments upon an express or prescriptive easement must be removed?
| Area of Law: | Litigation & Procedure, Real Estate Law |
| Keywords: | Discretion; Easement; Encroachments |
| Jurisdiction: | Wisconsin |
| Cited Cases: | 328 Wis. 2d 436; 619 N.W.2d 129; 201 Wis. 2d 675; 787 N.W.2d 6; 265 Wis. 341; 229 Wis. 2d 710; 267 Wis. 2d 141; 61 N.W.2d 301; 325 Wis. 2d 401; 790 N.W.2d 514; 699 N.W.2d 252; 600 N.W.2d 269; 337 Wis. 2d 88; 672 N.W.2d 63; 550 N.W.2d 134 |
| Cited Statutes: | Restatement (Third) of Property: Servitudes § 8.3(1) (2000); Restatement (Third) of Property: Servitudes § 8.3, cmt. b (2000) |
| Date: | 06/01/2014 |
There are reasonable arguments both supporting and refuting judicial discretion under such circumstances.
In cases involving an easement by implication, prescription, or necessity, the court has broad discretion:
Knuth v. Vogels, 265 Wis. 341, 61 N.W.2d 301 (1953). In a prescriptive easement case, the trial court erred in failing “to invoke its equity powers to work out an equitable solution that will end this unfortunate boundary-line controversy between two neighbors.”
Lone Pine Owners Assn v. Pellett, 2011 WI App. 121, 337 Wis. 2d 88, 803 N.W.2d 867 (2011) (unpublished). In a prescriptive easement case, “a circuit court has broad equitable authority to resolve encroachment disputes.”
McCormick v. Schubring, 267 Wis. 2d 141, 672 N.W.2d 63 (2003). “[T]he judicial creation of an easement is inherently equitable in nature.”
With an express easement, however, the case law is less clear on whether the court has discretion to excuse a harmless encroachment that nonetheless violates the reach and purpose of the express easement:
Front St. Props., LLC v. Main St. Ingredients, LLC, 325 Wis. 2d 401, 786 N.W.2d 488 (2010) (unpublished). In a case involving an express easement “for ingress and egress to” the Main Street property, Main St. Ingredients built a ramp to improve access by delivery trucks. Front Street Properties sought removal of the ramp. The circuit court found Main Street’s improvement to the easement to […]