Robert D. Corey, Sr. v. Norbert T. Roffers ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 29, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2019AP1239 Cir. Ct. No. 2017CV1354
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
ROBERT D. COREY, SR. AND CHERYL C. COREY,
PLAINTIFFS-RESPONDENTS,
ROBERT D. COREY, JR., KEITH A. COREY, DAN M. COREY, CRAIG
J. KODE AND THERESA A. KODE,
PLAINTIFFS,
V.
NORBERT T. ROFFERS AND CAROL A. ROFFERS,
DEFENDANTS-APPELLANTS.
APPEAL from an order of the circuit court for Racine County:
EUGENE A. GASIORKIEWICZ, Judge. Modified and, as modified, affirmed.
Before Reilly, P.J., Gundrum and Davis, JJ.
No. 2019AP1239
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Norbert T. and Carol A. Roffers (the Rofferses)
appeal from an order of the circuit court granting the Coreys 1 declaratory judgment.
The Rofferses claim a forty-foot wide ingress/egress easement on land owned by
the Coreys. The circuit court, pursuant to the written easement agreement
documents, declared the easement to be the twelve-foot wide gravel driveway that
existed at the time the Rofferses purchased their property and also declared a dispute
resolution procedure for future disagreements between the parties. We affirm the
court’s decision, although we modify the order governing dispute resolution.
Facts
¶2 Three written documents affect the easement at issue: a Certified
Survey Map 2239 (CSM 2239), which created three residentially zoned lots
(attached to the end of this decision); a Driveway Maintenance Agreement; and a
Driveway Easement Agreement. CSM 2239 created Lots 1, 2, and 3 and also
provided access onto Highway K for all three lots as only one access point onto
Highway K was permitted. The east twelve feet of the twenty-four-foot driveway
access was to serve as access to Lot 1, and the west twelve feet was to be shared by
Lots 2 and 3 as their access onto Highway K. Lot 2 is owned by the Coreys, and
Lot 3 is owned by the Rofferses. CSM 2239 reflects a “40’ WIDE
INGRESS/EGRESS EASEMENT” across the northern boundary of Lot 2, as Lot 3
1
The plaintiffs, Robert D. Corey, Sr. and Cheryl C. Corey, are husband and wife and have
a joint life tenancy in the real estate. Robert D. Corey, Jr., Keith A. Corey, Dan M. Corey, Craig
J. Kode, and Theresa A. Kode have a joint remainder interest in the real estate. We will refer to all
the plaintiffs in this case as “the Coreys.”
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would be landlocked without an easement granting access across Lot 2. CSM 2239
was recorded on May 1, 2000.
¶3 The Driveway Maintenance Agreement, recorded on May 9, 2000,
describes the cost-sharing for the twenty-four-foot driveway access for all three lots
onto Highway K as well as the cost-sharing for Lots 2 and 3 for the driveway that
serves those lots. Lots 2 and 3 “shall share in the cost of improving, maintaining,
snow removal, etc. of that part of the driveway fronting on said Lot 2, necessary to
afford access for the owner of said Lot 2” and Lot 3 is obligated to “bear the cost of
improving, maintaining, snow removal, etc. of that remaining part fronting on Lot
2 and on Lot 3, to afford access to his premises.”
¶4 The Driveway Easement Agreement was recorded on April 16, 2003,
shortly before the Rofferses purchased Lot 3. The Coreys, as owners of Lot 2,
expressly granted a “driveway easement” to Lot 3. The easement agreement
explained that “the parties desire to confirm the grant of easement for driveway
purposes by execution of this Agreement.” (Emphasis added.) The Driveway
Easement Agreement acknowledged the existence of the forty-foot wide
ingress/egress easement reflected in CSM 2239, but it restricted the easement to
“existing driveways for driveway purposes situated thereon.” (Emphasis added.)
The easement agreement defines “[d]riveway purposes” as “residential driveway for
ingress and egress and includes use by the owners of Lots 2 and 3 and the occupants
of any residence situated on the lots and their respective invitees and agents.”
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¶5 The Coreys commenced this declaratory judgment action2 and the
Rofferses counterclaimed, both asking the circuit court to declare each party’s rights
under the easement. The Rofferses and Coreys have failed as neighbors,3 and while
their interactions were testified to, we need not address them as we interpret the
easement agreements and not their behaviors. The Rofferses assert the right to
use/maintain the entire forty-foot wide ingress/egress area referenced in CSM 2239,
whereas the Coreys claim the easement is the twelve-foot wide gravel driveway that
existed when the easement was granted via the Driveway Easement Agreement.
¶6 Following a one-day trial, the circuit court held that the easement
granted the Rofferses the right to use “the existing 12-foot wide gravel driveway for
vehicular ingress and egress purposes and they cannot drive over any other part of
the 40-foot wide ingress/egress easement.” The court expressly held that the
Rofferses do not have the right to use or perform maintenance anywhere on the
Coreys’ property outside of the twelve-foot wide driveway easement. The court
also declared that “[a]ny vegetation vertically overhanging the 12-foot wide gravel
driveway up to a height equivalent to the height of a semi-truck may impede
vehicular traffic and must be removed.” The court further modified the Driveway
2
The Coreys also filed claims for trespass and nuisance. The circuit court dismissed those
causes of action, and that order of dismissal is not raised on appeal.
3
The Rofferses and the Coreys do not like each other. The circuit court described them
as “unneighborly”: “[B]oth parties have acted with incredible immaturity and without basic human
consideration for their neighbors” and “[i]t is my sincere desire that the two parties actually
communicate with one another regarding future events in this matter.”
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Maintenance Agreement to include a dispute resolution procedure to be utilized
going forward.4
¶7 The Rofferses claim the court erred in finding their easement to be the
twelve-foot wide gravel driveway rather than the forty-foot wide ingress/egress area
and in preventing them from maintaining the “area immediately adjacent to the
easement.” We affirm the circuit court’s declaration that the easement is the existing
twelve-foot wide gravel driveway that existed at the time the Rofferses purchased
Lot 3 and that an easement owner does not have the right to maintain land outside
of the easement granted.
Standard of Review
¶8 The construction of an easement is a question of law that we review
de novo while benefitting from the analysis of the circuit court. Garza v. American
Transmission Co. LLC, 2017 WI 35, ¶19, 374 Wis. 2d 555, 893 N.W.2d 1; Grygiel
v. Monches Fish & Game Club, Inc., 2010 WI 93, ¶12, 328 Wis. 2d 436, 787
N.W.2d 6. “[W]e look to the deed of easement … to determine what right to use
the dominant estate holder has.” Garza, 374 Wis. 2d 555, ¶24. The circuit court’s
findings of fact will not be set aside unless clearly erroneous, and all inferences will
4
The circuit court’s Findings of Fact and Conclusions of Law indicated that it was
modifying the Driveway Maintenance Agreement to include the following paragraph:
When repairs are necessary or, one party believes repairs are
necessary, and he cannot get the agreement of the other party, 2
versus 3 or 3 versus 2, then the parties shall submit proposals,
either a proposal to modify or a proposal not to modify, for
binding arbitration by an arbitrator and that they will equally share
the cost of the arbitrator, and the arbitrator’s decision will be
binding on the parties relative to what maintenance ought or not
to be done, and the cost and cost sharing of that maintenance. If
the parties cannot agree on an arbitrator, one party may submit to
the Court the request for the appointment of an arbitrator, the
Court will appoint the arbitrator to decide the issue.
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No. 2019AP1239
be drawn in favor of the circuit court’s ruling. Mentzel v. City of Oshkosh, 146
Wis. 2d 804, 808, 432 N.W.2d 609 (Ct. App. 1988). If the language of the deed of
easement is unambiguous, we look no further than the deed of easement itself.
Garza, 374 Wis. 2d 555, ¶25.
Law of Easements
¶9 “An easement grants a right to use another’s land.” Id., ¶23. An
easement creates two estates: “the dominant estate enjoys the ability to use the land
in the way described in the easement, while the servient estate permits that use.” Id.
The Rofferses hold the dominant estate, while the Coreys are obligated to permit
the Rofferses to use their property “in the way described in the easement.” Id. “The
dominant estate holder’s ‘use of the easement must be in accordance with and
confined to the terms and purposes of the grant.’” Id. (citation omitted). “Any use
not in accordance with the specific right to use granted in the easement is outside
the easement’s scope and thus prohibited.” Id.
¶10 We find no ambiguity in the easement documents. CSM 2239 did not
expressly grant a forty-footwide easement to Lot 3; CSM 2239 reserved a forty-foot
corridor along the north lot line of Lot 2 for “ingress/egress” to Lot 3. The Driveway
Maintenance Agreement expressly referred to the twenty-four-foot wide driveway
coming off of Highway K, and CSM 2239 makes clear that twelve feet of the
twenty-four-foot wide driveway would serve Lot 1 on the east and twelve feet of
the driveway would serve as the access to Lot 2 and Lot 3 on the west. The
Driveway Maintenance Agreement referenced the cost sharing of the “driveway
fronting on said Lot 2, necessary to afford access for the owner of said Lot 2” and
“that remaining part fronting on Lot 2 and on Lot 3, to afford access to his premises
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No. 2019AP1239
for the owner of said Lot 3,” giving credence to the fact that the existing driveway
continued on as a twelve-foot driveway across Lot 2.
¶11 The Driveway Easement Agreement expressly acknowledged the
reservation of the forty-foot wide ingress/egress easement reflected in CSM 2239
but explained that “the parties desire to confirm the grant of easement for driveway
purposes by execution of this Agreement” and restricted the easement to “existing
driveways for driveway purposes.” (Emphasis added.) At the time the Rofferses
purchased Lot 3, the easement was for the “existing” driveway, which as the court
found was twelve-feet in width and corresponds to the twelve-foot wide driveway
access from Highway K to be shared by Lots 2 and 3. The Rofferses have not
contested the court’s factual finding that the existing gravel driveway is twelve-feet
wide. The Rofferses have the right to the full use of the twelve-foot driveway for
driveway purposes, which is expressly defined in the Driveway Easement
Agreement as a “residential driveway for ingress and egress and includes use by the
owners of Lots 2 and 3 and the occupants of any residence situated on the lots and
their respective invitees and agents.” The court did not err in declaring that the
Rofferses’ attempt to use or maintain the driveway easement outside of the twelve-
foot width of the existing driveway was prohibited as any use outside of a granted
easement is prohibited. See Garza, 374 Wis. 2d 555, ¶23.
¶12 Given the Rofferses’ and the Coreys’ ongoing disputes with one
another, the circuit court also declared a dispute resolution process going forward.
We do not see the dispute resolution process as necessary given the established law
of easements. The Rofferses have the absolute right to trim/remove vegetation that
encroaches within their twelve-foot wide driveway easement and do not need
approval from the Coreys to do so as long as they stay within the aforementioned
twelve-foot space. Implied in every easement is “the right of the dominant estate to
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No. 2019AP1239
do what is reasonably necessary to enjoy the easement” so long as the dominant
estate does not “cause unreasonable damage to the servient estate or interfere
unreasonably with its enjoyment.” Id., ¶¶29, 31 (citation omitted). We modify the
court’s dispute resolution procedure to make clear that the owners of Lot 3 (the
Rofferses) are not obligated to seek permission from the owners of Lot 2 (the
Coreys) to remove impediments within the twelve-foot easement area pursuant to
the Driveway Maintenance Agreement or make reasonable use of the twelve-foot
driveway easement unless the owners of Lot 3 seek contribution from the owners of
Lot 2 for the cost of maintaining the easement area. In that instance, the circuit
court’s order relating to dispute resolution shall be adhered to.
Conclusion
¶13 The Driveway Easement Agreement expressly grants the owners of
Lot 3 an easement to use the existing gravel driveway on Lot 2, which the court
found to be twelve-feet wide. The Rofferses have the right to trim and remove
vegetation that invades the twelve-foot area of the easement, including the vertical
space, but the Rofferses may not exceed that twelve-foot area. The circuit court’s
dispute resolution procedure is modified as discussed above.
By the Court.—Order modified and, as modified, affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).
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