Easements

AKG Real Estate LLC v Kosterman, 2004 WI App 232 (Wis Ct App 2004).

Facts: The Chvilceks bought 80 acres of vacant land. In 1960 they deeded four acres of that property, on which there was a house, to their son. The four acres (the homestead) was landlocked and the deed conveyed a thirty-foot easement over the retained parcel for ingress and egress between the homestead and a highway. In 1961, the Chvilceks conveyed a second easement to their son along the same path as the first, widening the easement to sixty-six feet with the intent to someday convert the easement into a public road. This intent was expressed in the deed for the easement by a clause stating that the easement would terminate upon conversion into a public road. In 1998, AKG purchased the Chvilceks' remaining vacant land, with the intention of building a subdivision on it, subject to the easements. Subsequently, the son sold the homestead to the Kostermans.

AKG met with members from the county planning commission who told AKG that the Wisconsin Department of Transportation (DOT) would probably not approve their proposal for turning the thirty-foot easement into public road because it was too close to another public road parallel to it to the south. Later AKG redrew its plans to provide for the construction of a new road, which would cross the Kosternmans' easement, and a cul-de-sac that the Kostermans could use for access to the public road.

The Kostermans refused to allow AKG to modify their easement and AKG filed a complaint seeking a declaration that it had the right to terminate the Kostermans' private road easement upon providing public road access. The Kostermans made the following arguments: (1) The condition subsequent of the easement was not satisfied unless AKG turned only the land included in the easement into a public road and therefore had no right to build another road that interfered with their use and enjoyment of the easement; and (2) The termination of the easement would cause an undue hardship on them due to the location and orientation of their present improvements on the homestead, and thus be barred by equity. The Kostermans moved for summary judgment, requesting a declaration that the 1998 easement remained in effect until AKG builds a public road in its place and that the 1961 easement remains effective and not subject to any such condition subsequent.

The court ruled that the 1998 easement would terminate upon AKG building the public road and, importantly, that it was not required to build the road over the easement to satisfy the condition subsequent for termination of the 1998 easement. However, the court found no reason why the 1961 easement should also terminate. Both AKG and the Kostermans appealed.

Holding: Affirmed and reversed in part. The court affirmed the trial court's determination that the 1998 easement would terminate upon AKG building the public road and that AKG was not required to build the road over the easement by the terms of the condition subsequent in the deed. However, the court reversed the trial court's finding that the 1961 easement remained in full force and effect. The court examined the contemplated benefit of the easement, the underlying assumptions of the parties to the deeds, and the changed circumstances and held that in light of these factors, the court should modify the 1961 easement to provide for its termination upon the construction of a public road for the use of the Kostermans.

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