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Casenotes

Wisconsin

Easements

Mnuk v Harmony Homes, 790 NW2d 514, 2009 AP 1178 (Wis Ct App, 2010).

Facts:The Mnuks and Harmony Homes agreed to grant each other easements for the construction of a shared driveway to be paid for and maintained by Harmony. Because the area under the easements was determined to be wetlands, the driveway could not be constructed on the agreed spot. Mnuks sought modification of the easement under the theory of impossibility.

Issue:(1) Whether the court erred by applying the 40-year easements statute of limitations, instead of the six-year contract statute of limitations. (2) Whether the court erred in finding it had the authority to modify the easement.

Holding:Affirmed and remanded with instructions. (1) The court of appeals ourt found that the trial court was correct in applying the 40-year easement statute of limitations. The "grant" section of the documents in question met the definition of an easement and was labeled as an easement. Therefore, the document was an easement and the 40-year easement statute of limitations applied. Further, the court concluded that even if the document was not an easement, there has been no breach yet so there was no tolling of the statute of limitations. The agreement did not bind Harmony to build the driveway, merely pay for it if they did not, so there was no breach at this point. (2) The court surveyed the case law and found there to be adequate support for the trial court's right to modify the agreement under the theory of impossibility. The court must look at the purpose of the servitude and if it is possible to accomplish this by modification the court should modify before terminating when possible.

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