Allen v. Woelfel Family Revocable Trust (WI)

Summary: Homeowner did not have a prescriptive easement on neighbor’s driveway because the neighbor had given the previous owner permission to use the driveway, so the use was not adverse.


Allen v. Woelfel Family Revocable Trust, 348 Wis.2d 764, 2013 WI App 84 (Wis. Ct. App. 2013) (Review denied by Wis. Sup. Ct.) (unpublished disposition).


Facts: Mary Woelfel, Christian Woelfel’s mother, owned a large tract of land on Upper Kaubashine Lake in Oneida County, which was accessible via a driveway intersecting the property’s northeast corner. Mary sold a five-acre parcel located at the southernmost end of the property to the Neumans. Mary retained ownership of the land immediately north of the parcel, ultimately building a home there. The driveway providing access to the Neumans’ property crossed Mary’s parcel and the Neumans were given oral permission to use it. In purchasing the five acre parcel, the Neumans intended to subdivide it into three smaller lots and planned to keep the northernmost lot and sell the others.

Mary, via a recorded warranty deed, granted the Neumans a sixty-six-foot-wide strip of land on the eastern border of the five-acre parcel to facilitate the planned subdivision. The warranty deed did not grant the Neumans an easement over the portion of the driveway that crossed Mary's property.  The Neumans built a home on the northern lot, sold the other lots, and continued to use the driveway crossing the Woelfel’s property for years, even after Mary deeded the property to her son Christian Woelfel, because he never objected to the usage.

Ultimately, the Neumans sold their property to the Allens, telling them that the driveway to the property crossed the Woelfel’s property, signing an agreement stating the same, and offering a credit at closing for the construction of a new driveway. However, the Allens continued to use the driveway until Christian Woelfel installed a gate to prevent them from using it.

The Allens contended that a prescriptive easement had arisen over the Woelfel’s driveway after “20 years of actual, open, notorious, hostile and adverse use” by the Neumans. In summary judgment, the circuit court concluded the undisputed facts showed that the Neumans use of the driveway was not adverse because they were given permission to use the driveway.


Holding: Affirmed. The appellate court dismissed the Allens’ reliance on Restatement (Third) of Property: Servitudes § 2.16 cmt. a (2000), allowing a prescriptive easement absent adverse use if the parties “try to create a servitude but fail, initially because they do not fully articulate their intent or reduce their agreement to writing ... [and] proceed to act as though they have been successful in creating the servitude, and continue to do so for the prescriptive period” because the Restatement was not controlling in Wisconsin and conflicted with Wisconsin law.

Further, even if the court adopted § 2.16, the Allens’ claim that the Woelfels intended to create an easement, but failed to do so on a technicality, would fail because the Woelfels did create an easement at the time and if they wanted to include the driveway as an easement they could have.

Finally, the court concluded summary judgment was appropriate because the Allens produced no evidence to dispute the fact that the Neumans had permission to use the driveway.


Opinion Year: 
By: ATG Underwriting Department | Posted on: Wed, 12/11/2013 - 9:19am