Muellenberg v. State of Wisconsin Department of Transportation

2015 WI App 48, 866 N.W.2d 746, 363 Wis. 2d 582, 2015 Wisc. App. LEXIS 363
CourtCourt of Appeals of Wisconsin
DecidedMay 14, 2015
DocketNo. 2014AP2034
StatusPublished

This text of 2015 WI App 48 (Muellenberg v. State of Wisconsin Department of Transportation) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Muellenberg v. State of Wisconsin Department of Transportation, 2015 WI App 48, 866 N.W.2d 746, 363 Wis. 2d 582, 2015 Wisc. App. LEXIS 363 (Wis. Ct. App. 2015).

Opinion

BLANCHARD, P.J.

¶ 1. Anthony Muellenberg appeals the circuit court's decision to modify a portion of an express, recorded easement that benefits Muellenberg's property and that runs, in part, across land owned by the Wisconsin Department of Transporta[585]*585tion. The court concluded that it had discretionary authority to modify the easement, because the Department's construction activities on a bridge project had eliminated a driveway abutting the easement, which rendered fulfillment of the primary purpose of the easement impossible, absent the court's modification. Muellenberg contends that this conclusion was an error of law. Muellenberg also argues that the court improperly exercised its discretion through the manner in which it modified the easement, and in determining that Muellenberg was not entitled to compensation from the Department as a result of the modification.

¶ 2. For the following reasons, we agree with the circuit court that it had discretionary authority to modify the easement pursuant to Mnuk v. Harmony Homes, Inc., 2010 WI App 102, 329 Wis. 2d 182, 790 N.W.2d 514, to include a new trail and to terminate a portion of the easement. We also conclude that the court did not improperly exercise its discretion in modifying the easement or in determining that Muellenberg is not entitled to compensation as a result of the modification. Accordingly, we affirm.

BACKGROUND

¶ 3. The following facts are not in dispute. At issue are five adjoining parcels of land located between the St. Croix River on the south and what was, prior to the Department's actions at issue here, the right-of-way for State Highway 35 (the highway) on the north. Following the lead of the parties and the circuit court, we refer to these as parcels A, B, C, D, and E, running west to east.

[586]*586¶ 4. In the spring of 2010, the Department purchased the two westerly parcels, A and B, as part of a proposed bridge project. In the fall of 2010, Muellenberg purchased parcel D.1

¶ 5. The express, recorded easement at issue arose because a bluff separates the northern and southern portions of each of the five parcels. For this reason, none of the parcel owners can directly access the southern portions of their parcels from the northern portions, of their parcels. To address this shared impediment to river access, all five parcels are subject to a reciprocal easement. The purpose of this easement, under its terms, is "to provide a means of easier access to [the St. Croix River] by the owners [of parcels A, B, C, D, and E] only, and for no other parties .... Use . . . shall be restricted to automobile or foot traffic."

¶ 6. We now describe the path of the easement before it was modified by the court, which we will frequently refer to as the original easement.2 The original easement began, at its northern end, in the northwest corner of parcel B, abutting the highway right-of-way. The easement then ran briefly to the [587]*587southwest, then curved to the southeast, as it crossed parcels C, D, and E, eventually leading to the St. Croix River, in parcel E.

¶ 7. Critical to understanding the issues raised on appeal are uncontested facts that we now summarize regarding limited highway access to the original easement. More specifically, we address the means by which Muellenberg accessed the original easement from the highway before the modification, which was to use a driveway only by the permission of the owners of parcels A and B.

¶ 8. While the original easement's northern end began at the boundary of the highway right-of-way, the original easement did not have the benefit of a right of access to the highway. That is, the original easement did not include any portion of the highway or the highway right-of-way that extends 75 feet to either side of the highway centerline. Instead, Muellenberg and the other parcel owners accessed the easement from the highway by way of a driveway that ran south from the highway. Just to the south of the driveway's junction with the highway, the driveway forked into two separate driveway branches, one proceeding to the residence on parcel A and the other to the residence on parcel B. The branch of the driveway that led to the parcel B residence ran entirely within the highway right-of-way up to the point at which it met the original easement in the northwest corner of parcel B.

¶ 9. Only the owners of parcels A and B held a Department-issued permit to use and maintain the driveway and driveway branches. However, before the Department project at issue here, lack of a permit had not presented an easement access problem to Muellenberg, as owner of parcel D, nor to the owners of parcels C and E. This is because the owners of parcels A and B [588]*588granted them permission to access the original easement from the highway by traveling down A and B's joint driveway, onto the branch of the driveway that met the original easement's path in parcel B.

¶ 10. Returning to the chronology, at some point in 2011, Muellenberg became aware that the Department's bridge project had been approved. He learned specifically that, as part of the project, the Department planned to eliminate in its entirety the forked driveway described above. He further learned that, because removal of the forked driveway would make it impossible for parcel owners such as Muellenberg to access the original easement from the highway, the Department planned to create a new trail to allow highway access for all owners of the easement. We discuss these Department plans in more detail below.

¶ 11. In response to this information about the Department's plans, Muellenberg filed this action in September 2012, seeking a declaration and enforcement of his interest in the original easement pursuant to Wis. Stat. §§ 841.01 and 775.10 (2013-14),3 and an order enjoining the Department from relocating the original easement, expanding its scope, or interfering with Muellenberg's use of the original easement.

¶ 12. On April 4, 2013, Muellenberg filed a motion for partial summary judgment. As to his request that the Department be enjoined from relocating the original easement, Muellenberg argued that, pursuant to AKG Real Estate, LLC v. Kosterman, 2006 WI 106, 296 Wis. 2d 1, 717 N.W.2d 835, the Department "is not authorized to relocate the Easement" because the [589]*589Department is the owner of the servient estate, that is, the owner of the land serving or subject to the original easement.

¶ 13. In response to Muellenberg's motion for partial summary judgment, the Department argued, in part, that Muellenberg's argument missed the mark because the Department was not proposing to relocate the original easement. Rather, the Department stated that it planned only to remove the existing forked driveway, including that portion where the driveway met the easement in parcel B. The Department argued that it had statutory authority to remove the driveway pursuant to Wis. Stat. ch. 86, which authorizes certain Department activities, and that Muellenberg had no legal interest in the driveway. The Department planned to remove the forked driveway to allow for construction of a bridge abutment and to provide for a new highway right-of-way.

¶ 14.

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Related

State v. Pettit
492 N.W.2d 633 (Court of Appeals of Wisconsin, 1992)
Behrendt v. Gulf Underwriters Insurance
2009 WI 71 (Wisconsin Supreme Court, 2009)
AKG REAL ESTATE, LLC v. Kosterman
2006 WI 106 (Wisconsin Supreme Court, 2006)
State v. Ndina
2009 WI 21 (Wisconsin Supreme Court, 2009)
In MATTER OF MARRIAGE OF SELLERS v. Sellers
549 N.W.2d 481 (Court of Appeals of Wisconsin, 1996)
Mnuk v. Harmony Homes, Inc.
2010 WI App 102 (Court of Appeals of Wisconsin, 2010)

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Bluebook (online)
2015 WI App 48, 866 N.W.2d 746, 363 Wis. 2d 582, 2015 Wisc. App. LEXIS 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muellenberg-v-state-of-wisconsin-department-of-transportation-wisctapp-2015.