The Trusted Adviser December 2010 | Volume 3 • Number 11



Adverse Possession; Easements

Foster v Fabish, 2010 WL 1233975 (Wis Ct App, 2010).

Facts:Several neighboring parcels in New Glarus, Wisconsin, were once commonly owned but were separated and sold over the years. Several families and individuals including the Fosters, the Sies, the Marshes, the Eichelkrauts, as well as Jeff Sarbacker, (collectively, "the plaintiffs") each eventually came to own one of the parcels that resulted from the separation. Each had a common right of way over a driveway located along a property owned by Jerome Fabish and Natascha Buter Fabish and Buter. In 2007, Fabish and Buter placed several obstructions on the driveway on the western line of the property, ostensibly interfering with the plaintiffs' right-of-way.

The plaintiffs sued, arguing that the deed to Fabish and Buter, which provided that the property is subject to a right-of-way on the north driveway, provided them will full right of way on both the west and north portions of the driveway. The plaintiffs argued that, in the alternative, their continued use of the western portion of the driveway was hostile and that they had the driveway through adverse possession. The trial court disagreed with the plaintiffs, finding that the plaintiffs had not acquired title to the driveway by adverse possession, and therefore Fabish and Buter were not trespassing by placing obstructions on their property. The trial court further declined the plaintiffs' request that the trial court clarify their rights under the easement, finding that there was no use in declaring rights under the north driveway easement in a dispute over the western driveway.

The Fosters pursued the case on appeal.

Holding:Affirmed. The court of appeals found that an adverse possession claim, no matter how well pleaded, could never succeed in this case because of the existing right-of-way. Because an easement was already in existence allowing the plaintiffs to use part of the driveways, the court found that Fabish and Buter must have inevitably consented to the plaintiffs' use. Furthermore, the fact that Fabish and Buter themselves used the driveway further showed that the plaintiffs never had exclusive use of the driveways. Therefore, the court concluded, there could be no adverse possession because the "possession" was not adverse, and the "use" was not exclusive.

The court further found that the plaintiffs did not have a right to declaratory relief as to their rights under the easement. The court found that unless the plaintiffs argued that the easement was intended to cover the west driveway, a declaration of rights for the north easement would not be necessary in a lawsuit centering on the west driveway. The court further strongly implied that the plaintiffs should have in fact argued that the easement was intended to cover both driveways because use of the north driveway has virtually no purpose without the adjoining west driveway.

Ultimately, the court found that adverse possession in this case was impossible and that declaratory relief was not proper due to the plaintiffs' failure to claim that the easement extended to the western driveway, therefore affirming the lower court.






THE TRUSTED ADVISER is published by Attorneys’ Title Guaranty Fund, Inc., P.O. Box 9136, Champaign, IL 61826-9136. Inquiries may be made directly to Mary Beth McCarthy, Corporate Communications Manager. ATG®, ATG® plus logo, are marks of Attorneys’ Title Guaranty Fund, Inc. and are registered in the U.S. Patent and Trademark Office. The contents of the The Trusted Adviser © Attorneys' Title Guaranty Fund, Inc.

[Last update: 12-14-10]