The Trusted Adviser May 2010 | Volume 3 • Number 5




Murphy v O'Dowd, 321 Wis 2d 535, 775 NW2d 549, 2008 AP 1756 (Wis Ct App, 2009).

Facts:In 1977, Cletus and Rose Shey divided their parcel into what now are the O'Dowd and Murphy properties. The properties are adjacent, but only the O'Dowd property includes frontage along Big Lake in Vilas County, Wisconsin. When subdividing the property, the Sheys intended to provide both parcels with lake frontage, but they were prevented by a town zoning ordinance. Instead, the Sheys executed a written and recorded easement that gave the Murphy parcel access to Big Lake.

The Murphys eventually filed suit against the O'Dowds, claiming that the O'Dowds had intentionally interfered with their use of the lakefront easement. The trial court concluded that the easement agreement was ambiguous because it did not expressly state whether the easement was exclusive or nonexclusive. The court further concluded through the use of extrinsic evidence that the easement was exclusive. Accordingly, it held that the O'Dowds had no rights to the use of the property included in the easement. The O'Dowds appealed the decision that the easement was exclusive.

Holding:Reversed. The court of appeals disagreed with the lower court's conclusion that silence in the easement agreement created ambiguity. In light of long-settled property principles and reluctance of courts to find exclusive easements in the absence of ambiguous language, the court concluded that an express easement must contain an affirmative statement of exclusivity to convey the right to exclude the fee owner. Because the Sheys executed an express easement that lacked an affirmative statement of exclusivity, the court reversed the lower court's decision.

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[Last update: 4-23-10]