Legal Memorandum: Easement Cases in WI

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Lone Pine Owners Assn v. Pellett, 2011 WI App. 121, 337 Wis. 2d 88, 803 N.W.2d 867 (2011) (unpublished).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Front St. Props., LLC v. Main St. Ingredients, LLC, 325 Wis. 2d 401, 786 N.W.2d 488 (2010) (unpublished).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 […]

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