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Wisconsin

Easements

Konneker v Romano, 326 Wis 2d 268, 785 NW2d 432, 2008 AP 1546 (Wis, 2010).

Facts:Robert and Ann Konneker (the Konnekers) obtained a piece of property known as Lot 1 on October 29, 2004. The conveyance included an easement across riparian property known as Lot 3. Lot 3 was co-owned by Robert and Francis Romano (the Romanos) and Norman and Lawrence Nelson (the Nelsons). Lot 3 is lakefront property on Green Lake. The easement, created in 1983 and conveyed by the Ciszeks, ran along the west side of the Romanos' and the Nelsons' property to a spot on Green Lake called Beyer's Cove.

From 1990 to 1995, the Romanos and Nelsons entered into lease agreements with several parties, including Arne Carlsson, to use a pier at Beyer's Cove to moor boats. The Romanos and Nelsons asserted that these leases were non-transferrable. Subsequently, the Konnekers obtained Lot 1 from the Carlsson Trust with the understanding that they would be able to use the same pier leased by the Romanos and Nelsons. Eventually, the Konnekers constructed their own pier, which the Romanos and Nelsons objected to in an October 10, 2006, letter. When the Konnekers failed to remove the pier, the Romanos and Nelsons removed it.

On March 1, 2007, the Konnekers filed a complaint seeking a declaratory judgment that they owned an easement giving them riparian rights including the right to erect a pier. The Romanos and Nelsons counterclaimed for trespass. On May 5, 2008, the trial court granted the Konneker's motion for summary judgment, finding that the easement implied a right to construct and maintain a pier.

On appeal, the ruling was reversed. That decision first found that the language of the easement was ambiguous, then turned to the parties intentions. Finding that none of the previous holders of the easement had erected a pier, the court found it improbable that the original owner or any successors would assume the easement carried a right to erect a pier and ruled for the Romanos and Nelsons. The Konnekers appealed that decision.

Holding:Reversed and remanded. First, the court analyzed the language of the Konnekers' easement. Although usually riparian rights are reserved to riparian landowners, which the Konnekers were not, Wisconsin recognized the ability for a riparian landowner to convey riparian rights via easement up to 1994.

In this case, the deed conveying Lot 1 to the Konnekers gave them a lakefront easement, but was silent as to its purpose or whether it conveyed riparian rights. The court determined that this constituted ambiguous language. Therefore, it was appropriate to evaluate extrinsic evidence of the parties' intents. The parties presented affidavits to support their motions for summary judgment; these affidavits raised genuine issues of material fact and, therefore, summary judgment was inappropriate.

Next, the court evaluated the applicability of Wisconsin Statutes Sections 30.133 and 30.131. Section 30.133, promulgated in 1994, prohibits owners of riparian rights from conveying them via easement. However, this statute was inapposite to the instant case because the easement was created in 1983 before the law's existence.

Section 30.131 makes legal a pier placed in navigable waters by a non-riparian rights owner if six statutory requirements are met. Generally, the statute requires that the pier was created by the holder of an easement, granted before December 31, 1986, to a riparian area. The construction of the pier must not violate any terms in the easement, and the wharf of pier must be placed in the same location in approximately the same form at least once every four years since the easement was recorded. However, the court ruled that Section 30.131 did not apply in this case because the issue was whether the easement granted the Konnekers a right to build a pier, not whether, once built, the pier was a lawful structure.

Thus, having determined that the deed's language was ambiguous, and that the parties raised genuine issues of material fact in their submissions in support of summary judgment, the court reversed the grant of summary judgment and remanded the case for further proceedings.

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