March 2011 Vol. 4, No. 2
 

Casenotes

Wisconsin

Easements

Husar v City of Brookfield, 2009 AP 326 & 327 (Wis Ct App, 2010).

Facts:Craig and Danielle Husar (the Husars) and Robert and Karen Marsh (the Marshes) owned residential properties along the side of Calhoun Road in Brookfield, Wisconsin. In 2007, the City of Brookfield decided to expand Calhoun Road to four lanes and therefore chose to terminate the Marshes' and Husars' access to Calhoun Road from their property and instead give them access to a side street. However, cutting off the Husars' driveway onto Calhoun Road landlocked the Husar property. In order to move forward with its plan, the City of Brookfield utilized its condemnation right to appropriate a right-of-way easement across the Marsh property for the Husars and the public at large to ingress and egress.

Both the Husars and the Marshes filed a complaint against the City of Brookfield and the two actions were consolidated. Both families argued that the City's taking created uneconomic remnants and therefore constituted a total taking rather than a partial taking. The City of Brookfield filed for summary judgment, which the trial court granted. The Husars and Marshes appealed.

Holding:Reversed and remanded. The court of appeals found that the trial court improperly assumed that the easement in question was private. In fact, the limited easement taken by the city included a right for the public at large to use, and was therefore a public easement.

The trial court had found that a private easement did not significantly change the character of the properties. Both properties had driveways on them initially, and the Marsh property would not be severely hampered by the Husars' use of the driveway. However, the court found that the issue was significantly different than the trial court had assumed because the easement was public. If the Marsh and Husar properties suddenly had a public road on them, their character had changed significantly. Their right to exclude others from their property has been severely hampered. Their use as residential properties has become compromised and their value as such had been reduced. Therefore, the properties could be seen as having become uneconomic remnants as a result of their loss of use as residential properties. As a result, the court reversed the lower decision and remanded the case to be reconsidered in light of the easement being public.

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