Zemke v Hanson (WI)

Summary:  An easement may be terminated by a merger of the title to the dominant and servient tracts.

Zemke v Hanson, 2011 AP 1104 (Wis. Ct. App., 2012).

Facts: Steven Hanson, a pro se litigant, appealed a circuit court decision because he objected to the analysis of a particular issue by the circuit court. In 2008, Hanson proposed a condominium development and applied to the Polk County Land Information Committee for a special exception permit to develop the twelve-acre parcel on Horseshoe Lake. The plaintiff-respondents, (collectively the “Zemkes”), opposed Hanson’s plans to widen a private road known as Greatwood Lane. The Zemkes and Hanson owned the Greatwood Lane as undivided tenants in common with the exact fraction of interest being unknown due to uncertainties in the chain of title. The western half of the lane consisted of a twenty-four foot wide easement for traveling and contains a fifteen to seventeen foot driving surface. The eastern half of the private road contained a twenty-six foot wide strip of land consisting of mature trees, brush, and some lawn; it also abutted the twelve-acre parcel owned by Hanson.  In 1982, Hanson acquired easements over the eastern twenty-six feet to access his lots. The Zemkes held a nonexclusive easement over the western twenty-four foot strip for access to their lots.

Opposition to the plan by the Zemkes gave way to an alternative plan requiring, as a condition for approval by the committee, condominium access limited to White Pine Way and no access permitted from Greatwood Lane. Following a public hearing, this proposal was approved and neither party appealed the committee’s decision. Subsequently, the Zemkes sought injunctions to prohibit the widening of the roadway in question and received temporary restraining orders and temporary injunctions preventing Hanson from cutting mature trees and disrupting the landscape, but denied their motion for a permanent injunction. Although the court ruling did not aggrieve Hanson, his amended counterclaim was denied and Hanson appealed because in the courts analysis, the easements had merged with his ownership interests, preventing his conveyance of fractional shares and easements of Greatwood Lane. Furthermore, because the approved plan used White Pine Way for access, there was no longer a need to improve Greatwood Lane. On appeal, Hanson requested a declaration permitting conveyance of fractional shares and easements of Greatwood Lane to future condo owners.

Holding:  Affirmed. The court of appeals affirmed the circuit court’s conclusion that Hanson’s easements had merged with his fractional ownership interest in Greatwood Lane, stating that “no man can, technically, be said to have an easement in his own land.” 

The court cannot make a declaration allowing Hanson to transfer fractional shares to future owners of the condominium development because doing so would interfere with conditions imposed by a governmental body. The Land Information Committee is a governmental body and allowing Hanson to transfer his interest in the private road to condominium owners would directly violate the committee’s conditions upon which approval was granted. Hanson made no attempts to show a lack of legal effect in the committee’s conditions, therefore the circuit court properly dismissed his counterclaim.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Tue, 09/11/2012 - 3:03pm