The Trusted Adviser April 2010 | Volume 3 • Number 4




Garrett v O'Dowd,2008 AP 1756 (Wis Ct App 2009).

Facts:Neighbors Garrett and O'Dowd owned adjacent parcels of land along Big Lake in Vilas County, Wisconsin. The parcels were created from larger parcels by the previous owners, the Scheys, who intended both parcels to have lake access. However, a zoning ordinance required a certain minimum lake frontage for any parcel, so the Scheys gave the entire lake frontage to the O'Dowd parcel. Then, the Scheys gave the Garrett parcel access via an easement agreement.Garrett ultimately sued O'Dowd for interfering with her lake access. Garrett claimed that the easement agreement was ambiguous and sought to admit extrinsic evidence. The trial court agreed based on the fact that the easement failed to state whether it was exclusive or nonexclusive. Based on extrinsic evidence, the trial court ruled that it was "an exclusive riparian easement in favor of the [Garrett] parcel." As noted later by the court of appeals, "exclusive easement" has multiple definitions, but in any case it likely indicates that O'Dowd would be excluded from using that portion of his property. O'Dowd appealed.

Holding:Reversed. The trial court erred in finding the easement agreement ambiguous. The majority rule, and the rule implied by previous Wisconsin decisions, is that an easement is nonexclusive unless it explicitly provides that it is exclusive. Ambiguity in exclusive easements generally arises as to who is excluded, not whether the instrument is exclusive at all. In this case, the easement agreement was completely silent, and therefore unambiguous, on the issue of exclusivity. Without any mention of exclusivity, the easement was nonexclusive and not subject to further interpretation with extrinsic evidence.






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[Last update: 3-24-10]