Muellenberg v. State Deptartment of Transportation (WI)

Summary: The circuit court has discretion to modify an easement based on impossibility.

Muellenberg v. State Deptment of Transportation, 2015 WI App 48, 363 Wis. 2d 582, 866 N.W.2d 746.

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Facts: The Wisconsin Department of Transportation (‘WDOT’) proposed a bridge project that would eliminate a driveway abutting an express, recorded easement that benefitted Anthony Muellenberg (‘Muellenberg’). In exchange WDOT would build a new trail to allow access for all owners of the easement. Muellenberg sought to prevent WDOT from constructing the bridge.

The circuit court made the following determinations. One,WDOT had acted pursuant to its statutory authority when it removed the driveway, and Muellenberg had no interest in the driveway. When WDOT removed the driveway as part of its project, the purpose of the original easement became impossible to fulfill, because without the driveway, Muellenberg could no longer access the easement by car or on foot from the highway. The lower court also found, based on expert testimony, the new trail WDOT installed was comparable in all material respects to that portion of the original easement that Muellenberg enjoyed. Therefore, the new trail left Muellenberg with sufficient access to the easement from the highway.

The circuit court concluded that, pursuant to Mnuk v. Harmony Homes, Inc., 2010 WI App 102, 329 Wis.2d 182, 790 N.W.2d 514, it had discretionary authority to modify the original easement to include the new trail and to terminate the portion of the original easement that the new trail replaced, and that the court ordered such a modification to permit the purpose of the easement to be accomplished. Muellenberg appealed.

 

Holding: Affirmed. Muellenberg made three arguments that the circuit court erred in concluding that, pursuant to the reasoning of Mnuk, the court had authority to modify the easement to include the new trail and to terminate the northwest portion of the original easement.

First, Muellenberg argued that the court erred in relying on Mnuk, as opposed to AKG Real Estate, LLC v. Kosterman, 2006 WI 106, 296 Wis.2d 1. The appellate court found that, unlike in AKG, the issue in this case was whether the court had authority to modify an easement based on impossibility, which AKG did not discuss. Muellenberg conceded at trial that the original easement was no longer usable due to WDOT’s construction of the new bridge. Therefore, the court found that both parties agreed that it was impossible to fulfill the purpose of the easement, and concluded that the court did not err in determining that AKG was distinguishable on that ground.

Second, Muellenberg argued that Mnuk did not authorize a court to modify an easement due to impossibility when the owner of a servient estate created the impossibility by altering the easement. The appellate court held that the lower court did not err in modifying the easement. While the court assumed without deciding that Mnuk did not support a court's authority to modify an easement due to impossibility where the impossibility was created through a servient landowners' alteration of an easement, the court found that such a standard was inapplicable based on the facts presented. The circuit court explicitly determined that fulfillment of the purpose of the easement had become impossible due to WDOT’s removal of the driveway while acting within its proper authority, and did not determine that WDOT created the impossibility by altering the original easement. The circuit court explained that WDOT “took action that was within its regulatory authority” when it “removed[ ] the driveway connection” to the easement, and that “as a result” of this action, the original easement “simply [could not] fulfill its purpose.” Because the parties agreed that the primary purpose of the easements at issue in Mnuk could no longer be fulfilled, the court found that Restatement (Third) of Property: Servitudes § 7.10(1) should be applied, as it was in Mnuk.

Third, Muellenberg argued that, even if the circuit court had authority to modify the easement, it erroneously exercised its discretion in modifying it to include the new trail and to terminate the portion of the original easement replaced by the new trail. The appellate court found that the lower court did not erroneously exercise its discretion. There was no inequity in the fact that fulfillment of the easement's purpose was rendered impossible through WDOT's use of its statutory authority to remove a driveway over which Muellenberg and the other easement holders had no interest.

Opinion Year: 
2015
Jurisdiction: 
Wisconsin
Tags: 
By: ATG Underwriting Department | Posted on: Wed, 03/16/2016 - 1:09pm