Legal Memorandum: Limitations on the Use of an Easement in WI

Issue: May a landowner impose speed limitations or other conditions on the use of an easement by his common owners for the safety of his disabled child?

In Wisconsin, as in most states,

[a]n easement is an interest in land which is in the possession of another.  An easement creates two distinct property interests:  the dominant estate, which enjoys the privileges granted by an easement; and the servient estate, which permits the exercise of those privileges.  [Courts] must look to the instrument which created the easement in construing the relative rights of the landowners.  “The use of the easement must be in accordance with and confined to the terms and purposes of the grant.”  Construction of the deed to determine the grant’s terms and purposes is a question of law unless there is an ambiguity requiring resort to extrinsic evidence.  Whether an ambiguity exists is a question of law [that courts] review de novo.

. . .

“Every easement carries with it by implication the right . . . of doing whatever is reasonably necessary for the full enjoyment of the easement itself.”

“. . . [I]t is an established principle that the unrestricted grant of an easement gives the grantee all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement.”

Atkinson v. Mentzel, 211 Wis. 2d 628, 638, 640, 566 N.W.2d 158, 162-163 (Ct. App. 1997) (internal citations omitted); see also Scheeler v. Dewere, 256 N.W.2d Wis. 428, 432, 41 N.W.2d 635, 637 (1950) (quoted in Atkinson). 

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