589 N.W.2d 1 (Wis. 1999)
Prior to 1854 the United States owned the property involved in this dispute and had divided it into three lots along Green Bay in the Village of Ephraim in Door County, with Lot 2 the northernmost, Lot 3 in the middle, and Lot 4 the southernmost.1 In 1854 the United States granted Lot 4 by patent to Ingebret Torgerson while retaining Lots 2 and 3.2 At that time the eastern boundary of the lots extended beyond the present bluff line to a public roadway.3 In 1882 the United States granted Lots 2 and 3 to Halvor Anderson.4
After the federal conveyances the lots were subdivided into smaller parcels.5 James Schwab's parents purchased parcels in Lot 2 in the 1940s.6 Those parcels originally extended from the waters of Green Bay below the bluff eastward to land above the bluff with access to a public roadway and a house.7 The parcels were gifted to James Schwab in 1965 and 1974.8 Schwab later conveyed the property above the bluff to relatives and retained only the parcel below the bluff.9 Dorice McCormick inherited her parcel in Lot 2.10 Her parcel originally included land both above and below the bluff with highway access from above.11 She conveyed the upper portion to a third party.12
The petitioners' parcels are now bordered on the west by Green Bay and on the east by a bluff ranging from 37 to 60 feet in height.13 A private road runs north from the southernmost respondent parcel across the respondents' properties and terminates on the Lenz parcel.14 The petitioners seek to extend that road northward for access to their own parcels.15 In 1988 the petitioners petitioned the Village of Ephraim pursuant to Wis. Stat. § 80.13 to extend North Shore Drive as a public road over the respondents' properties.16 The village board declined the request.17
The petitioners filed their initial complaint in May 1996.18 They filed an amended complaint in August 1996 seeking a declaratory judgment for an easement.19 The circuit court granted the respondents' motions to dismiss.20 The court of appeals summarily affirmed the dismissal.21 The Wisconsin Supreme Court granted review.22
Whether the petitioners established an entitlement to an easement by implication over the respondents' properties?23
An easement by implication arises when there has been a separation of title.24 A use before separation took place which continued so long and was so obvious or manifest as to show that it was meant to be permanent.25 It must appear that the easement is necessary to the beneficial enjoyment of the land granted or retained.26 Implied easements may only be created when the necessity for the easement is so clear and absolute that without the easement the grantee cannot enjoy the use of the property granted to him for the purposes to which similar property is customarily devoted.27
No. The petitioners failed to establish a claim for an easement by implication because the private road they seek to extend has never reached their parcels in Lot 2 and they alleged no use by the United States that was obvious, manifest, or continuous enough to indicate permanence.28 The 1854 conveyance of Lot 4 occurred without any retained right-of-way, and the facts show the lots extended to a public roadway above the bluff at that time, so no prior use existed to support implication.29
The petitioners did not establish an entitlement to an easement by implication over the respondents' properties.30
Whether the petitioners established an entitlement to an easement by necessity arising from conveyances by the United States?31
An easement of necessity arises where an owner severs a landlocked portion of his or her property by conveying such parcel to another.32 To establish an easement by necessity, a party must show common ownership of the two parcels prior to severance of the landlocked parcel.33 The owner of the now landlocked parcel cannot access a public roadway from his or her own property.34 If these elements are met, an easement by necessity will be implied over the land retained by the grantor.35
No. Even if United States ownership of Lots 2, 3, and 4 before 1854 satisfied common ownership, the United States never severed a landlocked portion because the eastern boundary at the time of the 1854 patent to Ingebret Torgerson extended beyond the present bluff to a public roadway, allowing access from above the bluff.36 The facts confirm that Lots 2 and 3 remained accessible until the petitioners themselves later conveyed away the upper portions.37
The petitioners did not establish an entitlement to an easement by necessity arising from conveyances by the United States.38
Whether geographical barriers alone support a claim for an easement by necessity?39
Wisconsin courts have never recognized geographical barriers alone as circumstances warranting an easement by necessity.40 A way of necessity is not merely one of convenience, and the law will not imply such a way where it has provided another method for obtaining the same at a reasonable expense to the landowner.41 A grantor is not landlocked when he or she has difficulty getting from his or her land to a public road as long as he or she can get from his or her land to a public road.42
No. Although constructing a road over the 37-to-60-foot bluff would cost approximately $700,000, the petitioners originally held parcels extending above the bluff with direct highway access and could still reach a public road by navigating the bluff or using other means, even if less convenient than extending the private road.43 The facts establish that the petitioners consider only vehicular lake access acceptable and reject alternatives such as stairways or elevators, which does not meet the strict necessity standard.44
Geographical barriers alone do not support a claim for an easement by necessity.45
Whether the petitioners' own conveyances of property above the bluff preclude an easement by necessity?46
An easement by necessity only exists where an owner sells a landlocked parcel to another, in which case the law will recognize a way of necessity in the grantee over the land retained by the grantor.47 The petitioners are the grantors, not the grantees, and the conveyances which resulted in their landlocked property were made by the petitioners when they sold off the property above the bluff.48
Yes. The petitioners' current landlocked status in Lot 2 resulted directly from their own acts of conveying the upper bluff portions with highway access to relatives and third parties after the 1940s purchases and 1965-1974 gifts.49 This occurred rather than from any severance by the United States or prior owners.50 Because an easement by necessity protects only grantees of landlocked parcels and not grantors who create their own landlocked condition, the petitioners cannot impose a burden on the respondents' parcels.51
The petitioners' own conveyances of property above the bluff preclude an easement by necessity.52