A recent Wisconsin Court of Appeals decision identifies how land use attorneys need to structure their easement redrawing cases. In Muellenberg v. State of Wisconsin Department of Transportation, Appeal No. 2014AP2034 (Wis. Ct. App. May 14, 2015), the three-judge opinion explained that an original easement was rendered an impossibility when the driveway linking it to the highway was removed. Therefore, it held that it was within the circuit court’s power to redraw the easement.
Here is a recap of the facts: The case involves properties on the St. Croix River – five in total. The properties are on a bluff and part lies above the bluff and part of each lies along the water below. To get from their houses above to the water below, the landowners shared an easement.
It is important to note here that the easement on the upper portion, which you could access from the freeway, began on Parcel B. It did not go right up to the highway itself. In fact, landowners from parcel C, D, and E, had to use the driveway cutout for Parcels A and B, who gave the landowners permission.
As part of a bridge project DOT purchased parcels A and B. DOT planned to remove the existing highway driveway. This meant that the owners of C, D, and E, could no longer get from the highway to the shared easement as they had in the past. To solve this problem, the DOT planned to use some of the land it acquired on parcel B to create a new trail.
In autumn 2012, Muellenberg filed suit. After a bench trial in December 2013, the circuit court rejected Muellenberg’s claims: The DOT had the authority to remove the driveway. Importantly, removing the driveway made the purpose of the easement impossible to fulfill because Muellenberg could no longer access the easement by car or on foot from the highway. And based on expert testimony, the replacement trail that DOT installed left Muellenberg no worse than they were before and allowed them to their easement. With those findings, the circuit court modified the original easement to use the replacement trail.
The focus on appeal was whether Mnuk v. Harmony Homes, Inc., 2010 WI App 102, 329 Wis. 2d 182, 790 N.W.2d 514 (where an easement’s purposes are impossible fulfill) or AKG Real Estate, LLC v. Kosterman, 2006 WI 106, 296 Wis. 2d 1, 717 N.W.2d 835 (denying modification where fulfillment was unduly burdensome) should apply.
The court of appeals noted that the record showed that the situation here was not merely unduly burdensome, which was the situation in AKG. Rather, removing the driveway made it impossible to fulfill the original easement’s purposes. Because of the impossibility, the court held, Mnuk governed. Therefore, the circuit court was within its rights to simply redraw the original impossible easement to fit the new replacement trail.
Muellenberg also argued that the impossibility was self-inflicted and DOT should not be able to have the easement reformed. The court of appeals assumed without deciding that Mnuk stood for Muellenberg’s proposition. Even so, explained the court, DOT had only changed the driveway – not the easement.
Additionally, the court held that Mnuk applied to the facts of this case. Nor was there anything inequitable about the fact that it was DOT’s change to the driveway, which rendered the easement unable to be fulfilled because circuit court held that DOT had been acting under its authority.
So, what are the takeaways?
First, it seems that in an easement redrawing case, the focus will be whether the purpose of the original easement was rendered an impossibility or just unduly burdensome to fulfill. If the original purpose is impossible, Mnuk controls and the court has the ability to reform the easement. On the other hand, if the original purpose is rendered only unduly burdensome, AKG governs in which case the court will not reform the easement.
Second, we are still left with the question of what happens when the servient estate undermines the purposes of the original easement. The court of appeals did not take a position and it does not appear to be settled in Wisconsin. With the hesitancy to reform an easement, See AKG, one might expect the courts to decline to reform self-inflicted easement troubles. With the increased use of shared-driveway easements as remedies in road projects, a case addressing easement reformation may not be too far off.