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Casenotes

Wisconsin

Easements

Grygiel v Monches Fish & Game Club Inc, 328 Wis 2d 436, 787 NW2d 6, 2008 AP 2028 (Wis, 2010).

Facts:Barbara Grygiel (Grygiel) owned a property in Washington County, Wisconsin. Next to this property lay another parcel owned by the Unrein family, as well as one owned by the Monches Fish & Game Club, Inc (the Club). The Unrein parcel and the Club's parcel had no direct public road access. The Unrein family owned a second parcel adjacent to the first that had access to a public road. Grygiel's predecessor in interest granted the Club's predecessors in interest a right-of-way easement over part of Grygiel's property for the purposes of access to the club's property.Karl Scheife (Scheife) was a member of the Club as well as an individual allowed to hunt on the Unrein properties. On November 24, 2006, Scheife and several non-Club members were hunting on the roadside Unrein parcel. They decided to move their activities to the landlocked parcel also owned by the Unreins. Instead of accessing the parcel by foot, Scheife and his fellow hunters instead took the public roads to the Grygiel property and used the easement to access the Club property. From there, they left their vehicles behind and hopped a fence into the Unrein property.

Grygiel objected to Scheife's use of the easement for these purposes and, in March 2007, filed suit against both Scheife and the Club, alleging common law trespass and breach of the terms of the easement. She sought nominal damages and requested declaratory relief that this was an illegal use of the easement. Grygiel filed for summary judgment. The trial court concluded that Grygiel's claim could not be proven because Scheife had legally used the easement to access the Club's property, and what he had done thereafter was irrelevant. Grygiel appealed. The court of appeals similarly concluded that no trespass had taken place because Scheife's use of the easement created no additional burden on the servient estate. Grygiel appealed again.

Holding:Reversed. The Wisconsin Supreme Court concluded that the burden test was not the proper standard to apply in this case. The court decided that questioning the additional burden to the servient estate is the proper standard for deciding whether an easement should be terminated. However, in the cases where the source of the action is whether the terms of the easement were violated, the actual written text of the easement should be the center of analysis.

In this case, the court found that the text of the easement allowed ingress and egress to the Club, for the purpose of allowing its members to use the Club property. As such, Scheife's admitted purpose of hunting the Unrein property was undoubtedly disallowed by the easement. To allow Scheife to use the easement to access the Unrein property would have the practical effect of making the Unrein property a second dominant estate over the Grygiel property without consent of its owners. This, the court concluded, was not an allowable outcome. As a result, the court concluded that the easement did not allow Scheife to cross the Grygiel property for the purpose of accessing the Unrein parcel and that, as a result, Scheife had trespassed. The Wisconsin Supreme Court therefore reversed the lower courts and ordered that nominal damages be assessed against Scheife.

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