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Wisconsin

Easements

House v Pasko, 2009 AP 1928 (Wis Ct App, 2010).

Facts:James Brownell owned property in Waushara County. He build a cottage on the southern half of the property, which was accessed by a dirt road (the cottage road) running from the north boundary through the middle of the property to the cottage. In 1968, one of his daughters, Kathleen House, became a tenant of her father and lived in a trailer home on the southern half of the property. In the 1970s, Brownell built and lived in a house on the northern half of the property. Brownell deeded the southern half of the property to House in 1987. In 1997, Brownell died and left the northern half of the property to another daughter, Judith Pasko.

Pasko rented the house on the northern half of the property until she began visiting it and making repairs in 2006. On one occasion, she found that the house had been broken into and people had been shooting beer cans on the property. In 2007, Pasko moved into the house and erected a gate across the cottage road. She prevented House from going onto her property by blocking all vehicular access. House filed a complaint seeking damages and a declaration that she had an easement along the cottage road. After a trial, the court found that House "established a clear and absolute necessity for an easement by implication." Pasko appealed.

Holding:Affirmed. Wisconsin requires a higher burden of proof from a party seeking an easement by implication. While the majority rule allows an easement merely where it is "reasonably necessary or convenient for the enjoyment of the proposed dominant estate," in Wisconsin, the party must show clean and absolute necessity. This demonstration fails when there is an alternative means to enjoy the property besides the proposed easement.

On appeal, Pasko argued that: (1) a reasonable alternate route to the cottage existed and, therefore, no clear and absolute necessity for the easement existed, and (2) the court erred by not properly balancing the burdens created on her property by finding an easement over cottage road.

On the first issue, the court assessed the evidence offered at trial. Pasko submitted testimony from several witnesses who walked a proposed route on which she alleged that a driveway could be built. She also submitted aerial photos; she asserted that these showed a flat enough surface to provide access. House responded with her own testimony that, in her experience living on the property, the proposed route is too hilly for reasonably convenient access and would be challenging to walk, even for an athletic person and especially in wet or icy conditions. Although Pasko submitted more evidence, the court found House's testimony credible and ruled that no reasonable alternative access existed. Having found no error in the trial court's ruling, the court did not disturb its decision with regard to this issue.

Next, the court considered whether the trial court failed to balance the equities. Pasko presented evidence that members of House's family and their acquaintances were responsible for trespassing and damaging her property in the past. Based on this, Pasko argued that the primary burden placed on her property by the easement would be future damage. However, the trial court considered this when it placed numerous restrictions on the easement, including limiting its size, limiting its use to House and immediate family members over 25 years of age, requiring House to remove all junk and trash from Pasko's property by a certain date, and making the easement non-transferable. In light of these restrictions, the court found that the equities of the situation were properly balanced and it did not abuse its discretion.

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