December 2011 Vol. 4, No. 11




Psicihulis v Samarzja, 2010 AP 1130 (Wis Ct App, 2011).

Facts:Roberta and Brian Psicihulis (Psicihulis) owned a piece of lake front property that was subject to an easement providing access to Willow Springs Lake. Jann and Michael Samarzja (Samarzja) owned the neighboring property benefited by the easement. Psicihulis bought the property, Lot 29, in 2004. Samarzja had owned the adjoining Lot 28 since 1994. The easement already existed when Samarzja's predecessor in title, Steven Hartig, bought the property in 1978. Hartig installed a pier at the end of the easement, which Samarzja continued to use. Both Roberta and Brian Psicihulis claimed that they were unaware of the easement or the pier when they bought the property.

Shortly after buying Lot 29, Psicihulis sued Samarzja seeking declaratory judgment. The Psiculis' argued that they should have ownership rights over the easement because the easement was not meant to benefit Lot 28, and, even if it did, the pier went beyond the scope of the easement. The circuit court held that "while the easement provided Samarzja's property with access to Willow Springs Lake, Samarzja could not attach a pier to the easement." Both sides appealed.

Holding:Affirmed. The court of appeals found that the trial court was not clearly erroneous in any of its findings and that the evidence was sufficient to support its ruling.

First, the court found that the trial court was correct in finding that the easement was ambiguous. The language describing the easement was not clear and it did not explain the purpose of the easement. Because of this ambiguity, it was appropriate for the circuit court to look at extrinsic evidence. The evidence that supported the circuit court's ruling was testimony from a neighbor, Ann Schmidt, who owned Lot 27 at the time of the creation of the easement. Schmidt testified that the purpose of the easement was to provide lake access.

The trial court did not find the testimony of Roberta or Brian Psicihulis, claiming that they did not know about the easement when they purchased the property, credible. Psicihulis also attempted to admit the testimony of Richard Mace, a county employee, to testify that the easement did not have any apparent purpose. The trial court did not credit this testimony either. On appeal, the Psicihulis' based their argument primarily on Mace's testimony. The court of appeals pointed out that its job was not to make credibility determinations, only to examine whether the trial court's ruling was clearly erroneous. The court of appeals held that it was not.

The court also upheld the trial court's ruling that the easement did not include the right to build a pier. There was no evidence introduced to demonstrate that a pier was within the scope of the easement. Samarzja argued that without a pier, access to the lake was impossible because of a rough shoreline. However, the court held that unless the easement unambiguously expressed the right to a pier, no such right could be assumed.

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