Conor Casey v. Town of Bayview, Wisconsin

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.
January 13, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP2177 Cir. Ct. No. 2022CV08

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

CONOR CASEY, BERET CASEY, MARK EGGLESON, SHARI EGGLESON,
BERTRAM KASISKE, JANE KASISKE, MONNA SUERTH, AS TRUSTEE OF
SUERTH FAMILY TRUST DATED 6-3-1997 AND BRENDAN WALL, AS
TRUSTEE OF WALL FAMILY CABIN TRUST,

PLAINTIFFS-RESPONDENTS,

V.

TOWN OF BAYVIEW, WISCONSIN,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Bayfield County:
ANTHONY J. STELLA, JR., Judge. Affirmed in part, reversed in part, and cause
remanded with directions.

Before Stark, P.J., Hruz, and Gill, JJ.

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).
No. 2023AP2177

¶1 PER CURIAM. The Town of Bayview appeals from an order
determining the Town’s and several landowners’ rights under three easements, the
issuance of a permanent injunction against the Town, and the dismissal of the
Town’s counterclaim with prejudice. The Town argues that the circuit court erred
by: (1) denying the Town’s motion to join all necessary parties pursuant to WIS.
STAT. § 803.03(1) (2023-24);1 (2) denying the Town’s motion for leave to file a
third-party complaint pursuant to WIS. STAT. § 803.05(1); (3) granting summary
judgment in favor of the landowners and dismissing the Town’s counterclaim for
declaratory judgment; and (4) issuing a permanent injunction against the Town.

¶2 We affirm the circuit court’s decisions relating to the motion to join
necessary parties, the motion for leave to file a third-party complaint, and the
permanent injunction. For the reasons that follow, however, we reverse the circuit
court’s grant of summary judgment regarding the landowners’ rights under two of
the three easements. We also remand the case to the circuit court with directions
to enter an amended order consistent with this opinion.

BACKGROUND

¶3 In 1971, a plat recorded with the Bayfield County Register of Deeds
created the Grant’s Houghton Point Subdivision. The subdivision contains 24
adjoining contiguous lots running from north to south, with each lot having
frontage on Lake Superior. Conor and Beret Casey own lots 5, 6, and the northern
half of lot 7; Mark and Shari Eggleson own lots 11, 12 and 13; Bertram and Jane
Kasiske own lot 14 and the northern part of lot 15; the Suerth Family Trust owns

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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lots 23 and 24; and the Wall Family Cabin Trust owns lot 22 and the southern part
of lot 21 (collectively, “the Landowners”). The Town also owns portions of lots
15 and 16,2 as well as lots 17, 18 and 19. The map on the following page is
helpful for visualizing the lots with respect to the three easements at issue in this
case, which we describe below.

¶4 The plat created a 40-foot-wide easement (“the Platted Easement”)
that runs continuously from north to south along the western border of the
subdivision. The easement is labeled as “40’ ACCESS EASEMENT” on the plat.
The easement also runs through a ravine located within lots 16 and 17. The plat
further contained the following note:

RESTRICTIONS

CONVEYANCES AFFECTING LOTS IN THE PLAT
ARE SUBJECT TO THE FOLLOWING:

….

Each conveyance must provide easement of 40 foot
right-of-way to assure ingress and egress for all lots.

(Formatting altered.)

2
Lots 15 and 16 were further subdivided into four lots in 1992, two of which were
conveyed to the Town by special warranty deed.

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¶5 A former railroad right-of-way for the Chicago and Northwestern
Railroad also runs along both the western border of the subdivision and the Platted
Easement. In 1992, a “Mutual Access Easement” was recorded with the register
of deeds (“the 1992 Easement”). The 1992 Easement created “a perpetual
roadway easement for ingress and egress purposes over and across that portion of
the existing roadbed of the former Chicago Northwestern Railroad right-of-way”
abutting lots 15 through 20, and it “specifically benefit[ed]” those lots.

¶6 In 1995, an “Easement Agreement” was recorded with the register of
deeds (“the 1995 Easement”). In that agreement, the former owners of the
southern half of lot 7 and lots 8 through 16 granted and conveyed “to each other
and their heirs, successors and assigns, a thirty-three (33’) wide perpetual
easement for access purposes over and across the abandoned railroad right-of-way
with the centerline being the same as the centerline of the existing driveway as it
crosses and lies over the above described real estate.”

¶7 In 2010, the Town acquired its lots via a special warranty deed.
These lots are now part of the Houghton Falls Nature Preserve, which is open to
the public. The deed also conveyed easement rights to the Town under the Platted
Easement, the 1992 Easement, and the 1995 Easement. The parties do not dispute
that the Town took title to its lots subject to the three easements.

¶8 The Landowners’ lots are located to the north and south of the
Town’s lots. As owners of lots in the subdivision, the Landowners hold easement
rights under the Platted Easement. The Egglesons, as the owners of lots 11
through 13, also hold easement rights under the 1995 Easement. The Kasiskes, as
the owners of lot 14 and the northern part of lot 15, also hold easement rights
under both the 1992 and 1995 Easements.

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¶9 The Town created a management plan for the nature preserve in
order to, among other things, “allow appropriate public access, and provide
information as to the preserve’s heritage, while minimizing the impact of public
use on the adjacent public landowners.” The plan proposed the installation of
barriers and locked gates on the northern and southern boundaries of the Town’s
lots, “with signage stating no access to Houghton Falls Preserve.” The plan also
called for fencing between private property and the nature preserve that would be
“extended for a length to discourage skirting the gate.”

¶10 The Town subsequently erected a 15-foot-wide metal gate with wire
fencing at the northern boundary of the nature preserve on the Town’s portion of
lot 15. The gate and fencing completely blocked the Platted Easement, the 1992
Easement, and the 1995 Easement. The Town also erected a 15-foot-wide metal
gate with wire fencing near the southern boundary of the nature preserve on lots
18 and 19. The gate and fencing completely blocked the 1992 Easement and half
of the Platted Easement.

¶11 In July 2021, the Landowners served on the Town a “Notice of
Circumstances Giving Rise to Claim and Claim Pursuant to WIS. STAT. § 893.80,”
alleging that the Town unlawfully interfered with the Landowners’ rights to use
the Platted Easement. In September 2021, the Town served its disallowance of the
Landowners’ claim. In response, in February 2022, the Landowners brought this
action against the Town, seeking a declaration that: (1) the Platted Easement, the
1992 Easement, and the 1995 Easement were valid and enforceable; (2) the Town
had no right to block or interfere with the Landowners’ rights under the three
easements; and (3) the Town unlawfully interfered with the Landowners’ rights
under the three easements. The Landowners also sought to enjoin the Town “from
blocking, obstructing, or interfering” with their rights under the three easements

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and to compel the Town “to remove any and all fencing and any and all other
objects or structures that block, obstruct, or interfere” with the three easements and
with the Landowners’ “use and enjoyment of the same.”

¶12 The Town moved to dismiss the suit on the ground that the
Landowners failed to join all necessary parties pursuant to WIS. STAT. § 803.03(1).
The Town argued that “complete relief regarding the meaning and effect of the
easements cannot be accorded without” including in the lawsuit the other 17
landowners who also owned lots within the subdivision. The Town further
contended that the 17 additional landowners were indispensable because “there
would be no mechanism for them to obtain relief regarding the easements in the
future if they were not joined as parties to this lawsuit.” The circuit court denied
the Town’s motion to dismiss, concluding that the 17 nonparty landowners were
not necessary parties.

¶13 In October 2022, following the denial of its motion to dismiss, the
Town moved for leave to amend its pleadings to assert a counterclaim against the
Landowners pursuant to WIS. STAT. § 802.09 and to file a third-party complaint
pursuant to WIS. STAT. § 803.05. The Town’s counterclaim sought a declaration
regarding the rights and limits of the Platted Easement, the 1992 Easement, and
the 1995 Easement “as they may apply to each of the named parties.” The Town’s
third-party complaint sought a declaration against the 17 nonparty landowners
regarding the rights and limits of the three easements as to those landowners and
the Town. Following a nonevidentiary hearing, the circuit court denied the
Town’s motion to file a third-party complaint, but it granted the Town’s motion to
file a counterclaim. The Town subsequently filed its counterclaim against the
Landowners.

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¶14 The parties then filed cross-motions for summary judgment, with
both sides seeking judgment in their favor on all of their claims. The circuit court
issued an oral ruling, concluding that all parties have the same easement rights
granted by their deeds, that “those easements exist in the same scope as they were
when they were granted,” and that “the ingress/egress easements are in full force
and effect for all the parties who have those easements.” The court further
concluded that because all parties have these easements and “haven’t surrendered
them or lost them due to necessity or lack thereof,” the Town was enjoined from
blocking the easements.

¶15 The circuit court clarified its oral ruling at a subsequent hearing on
the Landowners’ proposed judgment and findings, which was followed by a
written order with the court’s findings of fact and conclusions of law. Regarding
easement rights, the court found that “[e]ach and all of the [Landowners] have
easement rights under the [Platted] Easement,” that the Kasiskes “have easement
rights under the 1992 Easement,” and that the Kasiskes and the Egglesons “have
easement rights under the 1995 Easement.” As to these rights, the court concluded
that “the [Landowners] together with their respective invitees each have all rights
as conferred by their respective Easement or Easements to travel through and
across the Town’s property, to the full extent as expressly provided in the
conveyances and documents that created each of said Easements.”

¶16 The circuit court also concluded that the Town’s placement of gates
and fences within the three easements “unlawfully obstruct[ed] and interfere[d]
with the [Landowners’] respective easement rights. The Town has no right to
block, obstruct, or interfere with any of the three Easements at issue.” The court
further concluded that the harm and damages to the Landowners resulting from the
“continuing obstruction of the easements cannot be adequately compensated with

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money damages” and that the balance of the equities favored the Landowners and
permanent injunctive relief.

¶17 As a result, the circuit court granted summary judgment to the
Landowners, dismissed the Town’s counterclaim with prejudice, and permanently
enjoined the Town “from blocking, obstructing, or from interfering with, each of
the [Landowners’] respective easement rights under” the three easements. The
court ordered the Town to remove “any fencing, fence posts (including rolled up
fencing located within any of the easements) and any other items or obstructions
that it has placed within any of the easements.” However, the Town was not
responsible for removing “anything that it did not place within the easements, such
as pre-existing railroad fencing.” The court also allowed fencing near the ravine
to remain in place “unless and until such time as an easement holder decides to
remove it as may be necessary in order to exercise and develop his or her
easement rights.”

¶18 The Town now appeals. Additional facts will be provided below as
necessary.

DISCUSSION

I. Necessary Parties

¶19 The Town first argues that the circuit court failed to make findings
regarding whether 17 nonparty landowners were necessary parties pursuant to
WIS. STAT. § 803.03(1). The Town contends that these 17 nonparty landowners
benefit from the easements at issue and therefore have a direct and immediate
interest in the outcome of the case. Excluding those landowners, the Town
continues, thereby results in an incomplete resolution. Because the 17 nonparty

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landowners were not made part of the Landowners’ suit and their properties are
affected by the three easements, the Town asserts that those 17 landowners are not
bound by the judgment in this case “and are presently able to sue the Town
seeking a judgment inconsistent with the judgment herein.”

¶20 Whether a person is a necessary party is a question of law that we
review de novo. Nelson v. Loessin, 2020 WI App 72, ¶10, 394 Wis. 2d 784, 951
N.W.2d 605. A party is considered necessary for one of the reasons provided in
WIS. STAT. § 803.03(1). McNally CPA’s & Consultants, S.C. v. DJ Hosts, Inc.,
2004 WI App 221, ¶22, 277 Wis. 2d 801, 692 N.W.2d 247. First, a party is
necessary if in that party’s absence “complete relief cannot be accorded among
those already parties.” Sec. 803.03(1)(a). Second, a party is necessary if that
party “claims an interest relating to the subject of the action and is so situated that
the disposition of the action in the person’s absence may”: (1) “[a]s a practical
matter impair or impede the person’s ability to protect that interest”; or
(2) “[l]eave any of the persons already parties subject to a substantial risk of
incurring double, multiple or otherwise inconsistent obligations by reason of his or
her claimed interest.” Sec. 803.03(1)(b)1.-2.

¶21 We disagree with the Town’s contention that the circuit court did not
address the requirements in WIS. STAT. § 803.03(1). The court considered
whether complete relief could be accorded among those who were already parties
when it explained that the Landowners were not asking for “a judgment declaring
the easement’s validity overall as to all the property owners who might claim an
interest” because each landowner had different easements and different interests.
See § 803.03(1)(a). It added that the Landowners were “simply seeking to enforce
their own individual rights by asking the Court to enjoin an interference with their

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own easement rights” and that granting this relief would not “necessarily impair
anybody else’s rights.” See § 803.03(1)(b)1.

¶22 Further, the circuit court considered whether the Town would be
subject to inconsistent obligations, stating that it did not believe that if it

ruled that certain people have certain easement rights and
then another case came up and there was a different ruling,
then the [T]own’s obligation to those people would be
different. They wouldn’t be in a situation where they have
an impossible task of complying with one court order and
violating another. They would just have different
obligations regarding the different property owners based
on their different rights, whether it’s abandonment or
having a different easement.

See WIS. STAT. § 803.03(1)(b)2. The court also stated that joining the 17 nonparty
landowners placed the burden on the Landowners “to upset neighbors … who
haven’t, frankly, asserted any rights or shown any interest in [the case], at least up
until now.”

¶23 We agree with the circuit court and conclude that the 17 nonparty
landowners were not necessary parties under the requirements set forth in WIS.
STAT. § 803.03(1). First, complete relief can be accorded between the
Landowners and the Town—i.e., “those already parties”—without joining the 17
other landowners. See § 803.03(1)(a). Here, the Landowners sought a declaration
regarding their rights under the three easements and an order enjoining the Town
from placing barriers and fences within those easements. If the Landowners were
successful, the court could declare their rights regarding the three easements and
issue the injunction. If not, then the court would deny the injunction and the
Town’s barriers and fences would remain.

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¶24 That the 17 nonparty landowners also benefit from the three
easements does not mean complete relief to the Landowners and the Town cannot
be accorded, given that the Landowners seek a declaration regarding their
easement rights and not the rights of every property owner in the subdivision.
Any relief granted to the Landowners or the Town in this instance would not
directly affect the 17 nonparty landowners.

¶25 Second, and importantly, the 17 nonparty landowners have not
“claim[ed] an interest relating to the subject of the action.” See WIS. STAT.
§ 803.03(1)(b). The inquiry as to whether a party has an “interest” is “not whether
a prospective party has a legal or legally protected interest in the subject of an
action, but whether the person or entity ‘has an interest of such direct and
immediate character that the [prospective party] will either gain or lose by the
direct operation of the judgment.’” Dairyland Greyhound Park, Inc. v.
McCallum, 2002 WI App 259, ¶15, 258 Wis. 2d 210, 655 N.W.2d 474 (alteration
in original; citation omitted).

¶26 The Town does not argue that the 17 nonparty landowners claimed
to have an interest in the subject of the action between the Town and the
Landowners. As noted by the Landowners, the Town does not show that the 17
nonparty landowners “engaged in any negotiations with the Town, hired counsel,
sent any demand letters to the Town, or had threatened to file a lawsuit against the
Town because the Town erected the fencing at issue in this case.” That the 17
nonparty landowners benefit from the easements at issue, as the Town contends, is
an insufficient interest to require that they be joined as a party because having a
claim that could potentially be brought against the Town—simply by having
easement rights under the same three easements at issue in this case—is not the

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same as claiming an interest related to the subject of the Landowners’ suit. See
Nelson, 394 Wis. 2d 784, ¶18.

¶27 Furthermore, the 17 nonparty landowners do not have an interest of
such direct and immediate character that they would either gain or lose by the
direct operation of the judgment in the Landowners’ suit. As noted above, the
Landowners seek a determination regarding the Town’s interference with their
easement rights, not the easement rights of those 17 other landowners. A
determination of the Landowners’ rights in the absence of the 17 nonparty
landowners would not alter the easement rights of the 17 landowners, and they
would not gain or lose any property rights by operation of the judgment
determining the Landowners’ rights. Thus, those 17 nonparty landowners would
not be (and are not) bound by the judgment in this case, and they may seek a
judgment regarding their own easement rights.

¶28 Because the Town cannot show that the 17 nonparty landowners
“claim[ed] an interest relating to the subject of the action,” we need not address
additional matters argued by the Town. These issues include whether those
landowners are “so situated that the disposition of the action” in their absence may
either “impair or impede” the 17 nonparty landowners’ ability to protect their
interests or leave those already parties “subject to a substantial risk of incurring
double, multiple or otherwise inconsistent obligations by reason of” the absent
party’s claimed interest. See WIS. STAT. § 803.03(1)(b)1.-2.

II. The Town’s Motion for Leave to File a Third-Party Complaint

¶29 The Town next argues that the circuit court erred by denying the
Town’s motion for leave to file a third-party complaint. The Town contends that
the court applied an incorrect statute in making this determination, asserting that

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the court should have applied WIS. STAT. § 802.09 rather than WIS. STAT.
§ 803.05. The interpretation and application of a statute—including which statute
applies to a particular context—are questions of law that we review independently.
See Nelson, 394 Wis. 2d 784, ¶¶7, 10.

¶30 WISCONSIN STAT. § 803.05(1) specifically addresses filing a
third-party complaint and when a party requires leave to do so. It provides that
“[a]t any time after commencement of the action, a defending party, as a 3rd-party
plaintiff,” may serve a complaint on a person who is not a party to the action “who
is or may be liable to the defending party for all or part of the plaintiff’s claim
against the defending party, or who is a necessary party” under WIS. STAT.
§ 803.03. Sec. 803.05(1). The third-party plaintiff must obtain leave to file its
third-party complaint if it seeks to do so six months after the filing of the
summons and complaint. Id.

¶31 WISCONSIN STAT. § 802.09(1), on the other hand, allows a party to
amend its pleadings “once as a matter of course at any time within 6 months after
the summons and complaint are filed or within the time set in a scheduling order.”
“Otherwise a party may amend a pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given at any stage of the
action when justice so requires.” Id. Given that WIS. STAT. § 803.05 specifically
addresses leave to file a third-party complaint—much more so than § 802.09,
which addresses leave to amend pleadings more generally—the circuit court did
not apply the incorrect statute. See State v. Larson, 2003 WI App 235, ¶6, 268
Wis. 2d 162, 672 N.W.2d 322 (“Where two statutes relate to the same subject
matter, the specific statute controls the general statute.”).

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¶32 The Town does not meet either requirement under WIS. STAT.
§ 803.05(1). As noted above, the Landowners sued the Town for a determination
of their rights regarding the three easements and for an injunction to prevent the
Town from interfering with the Landowners’ rights. As the Landowners argue,
the 17 nonparty landowners “whom the Town wished to implead could” not be
liable to the Town for those claims. Given our determination that the 17 nonparty
landowners are not necessary parties, the other requirement for impleading those
landowners is also not met. Therefore, the circuit court did not err by denying the
Town’s motion for leave to file a third-party complaint.

III. The Circuit Court’s Summary Judgment Decision

¶33 The Town next challenges the circuit court’s interpretation of the
three easements and its dismissal of the Town’s counterclaim in the court’s
summary judgment decision. We review a circuit court’s summary judgment
decision de novo, applying the same methodology as the circuit court. AKG Real
Estate, LLC v. Kosterman, 2006 WI 106, ¶14, 296 Wis. 2d 1, 717 N.W.2d 835.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2).

¶34 The circuit court’s summary judgment decision involved the
interpretation of documents creating easements, which is also a question of law we
review de novo. Grygiel v. Monches Fish & Game Club, Inc., 2010 WI 93, ¶12,
328 Wis. 2d 436, 787 N.W.2d 6. When interpreting the instrument creating an
easement, we seek to ascertain the parties’ intent. Konneker v. Romano, 2010 WI
65, ¶26, 326 Wis. 2d 268, 785 N.W.2d 432. “The primary source of the parties’

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intent is what is written within the four corners” of the instrument. Id. If the
language within those four corners is unambiguous, we need not look further to
extrinsic evidence. Grygiel, 328 Wis. 2d 436, ¶20. If, however, the language
granting the easement is ambiguous, meaning it is susceptible to more than one
reasonable interpretation, we may resort to extrinsic evidence to determine the
parties’ intent. Id.

¶35 “An easement is an interest in land possessed by another.”
Gojmerac v. Mahn, 2002 WI App 22, ¶18, 250 Wis. 2d 1, 640 N.W.2d 178
(2001). Easements are classified into appurtenant easements and easements in
gross. Id. The easements at issue in this case are appurtenant easements, meaning
that the easement rights or obligations “are tied to ownership or occupancy of a
particular unit or parcel of land.” Id. Appurtenant easements create two distinct
property interests—the dominant estate and the servient estate. Id., ¶19. The
dominant estate “enjoys the privileges as to other land granted by an easement,”
while the servient estate “permits the exercise of those privileges.” AKG Real
Estate, 296 Wis. 2d 1, ¶3.

¶36 For purposes of this case, the Landowners’ properties are the
dominant estates, and the Town’s property is the servient estate. Appurtenant
easements exist “for the benefit of the dominant estate alone” and “can be used
only in connection with the dominant estate to which” they are appurtenant.
Gojmerac, 250 Wis. 2d 1, ¶22. In other words, an appurtenant easement “cannot
be used as a mode of access to another lot to which it is not appurtenant, even
though there is no resulting additional burden.” Grygiel, 328 Wis. 2d 436, ¶15
(citation omitted). In addition, a “servient estate may not unreasonably interfere
with the dominant estate’s right to use the easement,” but the easement’s use

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“must be in accordance with and confined to the terms and purposes of the grant.”
Konneker, 326 Wis. 2d 268, ¶25 (citation omitted).

¶37 The Town argues that, based on the plain language of the Platted
Easement, the 1992 Easement, and the 1995 Easement, the purpose of each
easement “was to ensure lot access to each lot owner” and that nothing in the
easements’ language “suggests that the purpose was to allow continuous travel
from north to south.” Based on this language, the Town asserts that none of the
easements give the Landowners the right to cross the Town’s property. In a
related and central contention, the Town argues that the circuit court’s ruling
“would allow each of the Plaintiff Landowners to invite others to use the
easements, but this would be an unlawful enlargement of each easement, contrary
to applicable law.”

¶38 In response, the Landowners contend that the three easements “give
the respective Landowners, as dominant estate holders, the right to travel and pass
through the servient estates, including the Town’s property.” Because the
easements are “right-of-way” easements, the Landowners assert that they have
“the unrestricted right to pass through the servient properties along the path of
their respective easements.” The Landowners thus argue that the Town “misreads
the easements as not allowing any use of the easements for any purpose other than
what is absolutely necessary to reach their respective properties.” Such a
limitation on the Landowners’ exercise of their easement rights, the Landowners
continue, does not appear anywhere in the easement instruments.

¶39 We agree, in part, with both the Landowners and the Town. As
explained below, the Platted Easement gives all the Landowners the right to cross
the Town’s property and each other’s property along that easement. With the

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exception of the Kasiskes and the Egglesons, what the Landowners may not do is
use the 1992 and 1995 Easements to cross the Town’s property along those
easements. The Kasiskes and the Egglesons may grant the other Landowners the
right to use those easements within the Kasiskes’ and the Egglesons’ own
property, but not within the Town’s property. The circuit court erred by
concluding that all the Landowners could use the 1992 and 1995 Easements to
cross the Town’s property.

A. The Platted Easement

¶40 The plat creating the Platted Easement includes restrictions to which
the lots are subject, one of which states that each conveyance “must provide
easement of 40 foot right-of-way to assure ingress and egress for all lots.” In its
plain language, the Platted Easement’s purpose was to “assure ingress and egress
for all lots.” “Ingress” means “[t]he act of entering”; “[t]he right or ability to
enter; access.” Ingress, BLACK’S LAW DICTIONARY (11th ed. 2019). “Egress,” on
the other hand, means “[t]he act of going out or leaving”; “[t]he right or ability to
leave; a way of exit.” Egress, BLACK’S LAW DICTIONARY (11th ed. 2019). Thus,
the purpose of the Platted Easement was to assure there was a way to enter and
exit each lot along the easement.

¶41 The Platted easement is an express easement, not, as the Town
contends, an easement by necessity. See AKG Real Estate, 296 Wis. 2d 1, ¶15
(defining “express easement” as an easement by written grant or reservation);
Grygiel, 328 Wis. 2d 436, ¶28 n.9 (defining an “easement of necessity” as one that
does not contain express terms, but rather “may be granted when an easement ‘is
required for the complete and beneficial use of the land’” (citation omitted)).
There is no language in the plat stating that ingress and egress must be only from

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each owner’s respective lot to the nearest public road. Nor is there language
limiting the manner in which a lot owner may enter or exit each lot along the
Platted Easement. For example, the plat does not limit the Platted Easement’s use
only to vehicular travel for entry and exit to each lot. Furthermore, there is no
language prohibiting certain activities, such as hiking, within the Platted Easement
as a way of ingress and egress to each lot. Thus, the plain language creating the
Platted Easement does not limit its use only to what is necessary to reach each lot,
as the Town contends.

¶42 In addition, the Platted Easement runs continuously from north to
south and connects each lot in the subdivision. Nothing in the plat language limits
travel within the easement to one direction or prohibits travel through the lots
within the subdivision. Thus, each Landowner is allowed to use the easement to
cross other properties along the Platted Easement, including the Town’s property,
to reach his or her respective lot. Such use is in connection with the ownership of
each Landowner’s property. The Landowners may not, however, travel to
properties to which they do not have access via the Platted Easement. The cases
the Town cites in support of its reading of the Platted Easement are therefore
distinguishable. See Grygiel, 328 Wis. 2d 436, ¶¶33-34 (concluding that a club
member violated an easement’s express terms by using the easement to access
property other than the club’s property—i.e., using the easement “for the benefit
of property other than the dominant estate”); Sicchio v. Alvey, 10 Wis. 2d 528,
536-37, 103 N.W.2d 544 (1960) (concluding that the plaintiff owners of the
northern half of a lot did not acquire an implied easement granting them a right to
use an easement in the southern half of the lot owned by the defendant because
granting “a right to pass upon a private way to one lot does not confer the right to
pass further upon the same way to another lot” (citation omitted)).

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No. 2023AP2177

¶43 Finally, the Landowners’ right to use the Platted Easement is not
defeated simply because they may have another way of accessing their lots, as the
Town argues. The Platted Easement is an express easement that “cannot be
defeated by showing that the owners have another convenient and accessible way
of going to and from their premises.” See AKG Real Estate, 296 Wis. 2d 1, ¶28
(emphasis omitted; citation omitted). In short, the Landowners—together with
their respective invitees—may use the Platted Easement to cross the Town’s
property to access and exit their properties.

B. The 1992 Easement and the 1995 Easement

¶44 The Town also argues that the only Landowners who benefit from
the 1992 and 1995 Easements are the Kasiskes and the Egglesons and that they
cannot grant all of the Landowners a right to use those easements to cross the
Town’s property. In response, the Landowners claim that the 1992 and 1995
Easements “were intended to allow travel past or across the ravine along the
abandoned railroad right-of-way.” They argue that all three easements give them
“the right to travel and pass through all of the servient properties, including the
Town’s property, so long as such travel is done in connection with their ownership
of their respective (dominant) property within the Subdivision.” (Emphasis
added.) The Landowners do not point to any particular language in the 1992 and
1995 Easements in support of these arguments, but rather seem to suggest that the
fact of the Landowners all being located in the same subdivision is what matters
for purposes of construing the scope of the easement grants in the two easements.

¶45 On this issue, we agree with the Town. Contrary to the Landowners’
arguments, there is no language in either the 1992 or 1995 Easements allowing all
of them—not just the Kasiskes and the Egglesons—to cross the Town’s property

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No. 2023AP2177

in order to access their own property.3 And the mere fact that the easements run
directly through or past the ravine is not sufficient to establish a right for all
landowners to use those easements for a north-and-south connection along the
ravine by going through the Town’s properties. Rather, under Wisconsin law,
dominant estates may not be so enlarged. Gojmerac, 250 Wis. 2d 1, ¶23. As our
supreme court has explained, an easement cannot be enlarged to extend to a
nondominant estate for which the easement was not originally intended, unless the
easement terms expressly provide for such use. See Grygiel, 328 Wis. 2d 436,
¶¶17-18; see also Gojmerac, 250 Wis. 2d 1, ¶22.

¶46 For example, in Grygiel, a club had an easement over the plaintiff’s
property “for the purpose of ingress and egress as a means of access” to the club’s
property. Grygiel, 328 Wis. 2d 436, ¶1. The club allowed its members to use its
property for hunting, and it allowed club members to bring family members,
invitees, and persons interested in joining the club onto the club’s property.

3
We ordered supplemental briefing on the issue of whether the Kasiskes and the
Egglesons could allow their invitees to use the 1992 and 1995 Easements to cross the Town’s
property. In response, and consistent with their argument that we address in this section of the
opinion, the Landowners argued that there is no restrictive language in the 1992 and 1995
Easements prohibiting the Kasiskes and the Egglesons from allowing their invitees to use those
easements. However, and respectably, the Landowners also conceded that any invitee’s use of
the 1992 and 1995 Easements would be limited to a use in connection with the dominant estate.
See Grygiel v. Monches Fish & Game Club, Inc., 2010 WI 93, ¶15, 328 Wis. 2d 436, 787
N.W.2d 6. They noted that the case law suggests that other Landowners—indeed, all other
persons—could use the 1992 and 1995 Easements to visit the Kasiskes and the Egglesons on their
property upon an invitation from either of those two property owners. See id., ¶19 (“A written
easement holder has the right to use the easement in accordance with the express terms of the
easement grant.”); Hunter v. Keys, 229 Wis. 2d 710, 716, 600 N.W.2d 269 (Ct. App. 1999)
(stating that an easement holder “possesses all rights necessary to the reasonable and proper
enjoyment of the easement”). But the Landowners conceded that, as invitees, the other
Landowners could not use the 1992 and 1995 Easements “solely in connection with their use of
their own properties.” In other words, the other Landowners cannot use the 1992 and 1995
Easements to get to and from their own properties at any and all times.

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No. 2023AP2177

Id., ¶3. The plaintiff did not dispute that the easement allowed the club’s
members and its invitees to use the easement to access the club’s property. Id., ¶4.
A club member and his nonmember invitees, however, used the easement to cross
both the plaintiff’s and the club’s property to access and hunt on non-club
property. Id., ¶¶5-6. The club member rented a home on the non-club property,
which gave him hunting privileges on that property. Id., ¶5.

¶47 Focusing on the language of the easement’s grant to determine
whether certain conduct contravened the terms of an express easement, our
supreme court concluded that the club member and his invitees’ use of the
easement for the benefit of a nondominant estate—i.e., the non-club property—
“effectively enlarged the dominant estate to include the [non-club property]
contrary to established easement law.” Id., ¶¶32-33. The court explained that
allowing the club, its members, and its invitees to use the easement to access
property other than the club’s property would enlarge and extend the easement to a
property for which it was not originally intended. See id., ¶38. Thus, the court
held that the club member and his invitees’ “use of the easement to access
property other than the [c]lub’s contravened the express terms of the [c]lub’s
easement.” Id., ¶39.

¶48 Here, the language creating the 1992 Easement stated it was “a
perpetual roadway easement for ingress and egress purposes over and across that
portion of the existing roadbed of the former Chicago Northwestern Railroad
right-of-way” abutting lots 15 through 20, and that it would “specifically benefit
the abutting parcels.” (Emphasis added.) Just as with the Platted Easement, the
purpose of the 1992 Easement is for entry and exit to and from lots 15 through 20
along the easement. As we concluded for the Platted Easement, this allows the
owners of lots 15 through 20 to use the 1992 Easement to enter and exit their

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No. 2023AP2177

property, which may include going through that part of the Town’s property that is
subject to the 1992 Easement.

¶49 It is also clear from the plain language of the 1992 Easement that it
benefits only the owners of lots 15 through 20. Here, that includes the Kasiskes
and the Town. Furthermore, and contrary to the Landowners’ argument, there is
nothing in the language of the 1992 Easement mentioning the ravine or any intent
to allow travel past the ravine. Given the easement’s plain language and the above
principle from Grygiel, the 1992 Easement does not give the Kasiskes the right to
permit the other Landowners to use the easement to cross the Town’s property to
access their own properties. Thus, only the Kasiskes have a right to use that
portion of the 1992 Easement over the Town’s property, and they may not grant
the rest of the Landowners the right to use the 1992 Easement to cross the Town’s
property.

¶50 The Landowners seek to avoid the application of Grygiel by arguing
that they were not seeking to use the easements “for the benefit of, and to travel to,
a property that was not the dominant property to which the easement was
appurtenant.” Although we agree that fact is the case for the Platted Easement,
we disagree that the same distinction can be made in regards to the 1992 and 1995
Easements. The Landowners do not contend that their use of the 1992 and 1995
Easements for the benefit of, and to travel to, their properties stems from any
language in the easement grants or from any relationship with the Kasiskes and the
Egglesons reflected in those two easements. Rather, the Landowners contend that
they may use those easements simply because they are part of the subdivision in
which it is located. In other words, the Landowners believe that being part of the
subdivision entitles them to freely travel through the Town’s property using the

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No. 2023AP2177

1992 and 1995 Easements, but that is contrary to the express terms of those
easements.

¶51 With respect to the 1992 Easement, the Landowners cannot use that
easement to cross the Town’s property to access their own properties. The
Landowners’ use of the 1992 Easement to cross the Town’s property to access
their own properties would enlarge the Kasiskes’ property’s beneficiary status to
include the other Landowners’ properties, just as the club member and his
invitees’ use of the easement to cross the plaintiff’s property and hunt on non-club
property in Grygiel enlarged the club’s property to include the non-club property.
In both cases, the invitees’ use of the easement for the benefit of a nondominant
estate “effectively enlarge[s] the dominant estate to include the [nondominant
estate] contrary to established easement law.” See Grygiel, 328 Wis. 2d 436,
¶¶32-33. Such a use of the 1992 Easement by the Landowners would not be in
accordance with the express terms of the easement grant, which states that it is
specifically for the benefit of lots 15 through 20, not for the benefit of lots 15
through 20 and their invitees. That is to say, allowing the Landowners to use the
1992 Easement to cross the Town’s property to access their own properties would
enlarge and extend the easement to properties for which it was not intended—i.e.,
properties that the easement did not specifically benefit.

¶52 As the owners of a portion of lot 15, however, the Kasiskes can
allow the Landowners to use the 1992 Easement on their property. Although the
language of the 1992 Easement prevents the Kasiskes from allowing invitees to
use other portions of the easement, such as the Town’s portion, there is nothing in
the language of the grant prohibiting the Kasiskes from allowing invitees to use
their portion of the easement on their land.

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No. 2023AP2177

¶53 Applying the same principle from Grygiel, the Egglesons and
Kasiskes cannot give all the Landowners the right to use the 1995 Easement to
cross the Town’s property in order to access their properties. The language
creating the 1995 Easement states that the former owners of the southern half of
lot 7 and lots 8 through 16 granted and conveyed “to each other and their heirs,
successors and assigns, a thirty-three (33’) wide perpetual easement for access
purposes over and across the abandoned railroad right-of-way.” Similar to the
definitions of “ingress” and “egress,” “access” means “[a] right, opportunity, or
ability to enter, approach, pass to and from, or communicate with.” Access,
BLACK’S LAW DICTIONARY (11th ed. 2019). As with the Platted Easement and
the 1992 Easement, the purpose of the 1995 Easement is for entry and exit to and
from the southern half of lot 7 and lots 8 through 16, and it allows the owners of
those lots to use the easement to go through the Town’s property to reach their
lots.

¶54 As with the 1992 Easement, the plain language of the 1995
Easement is clear that it was intended to benefit only the owners of the southern
half of lot 7 and lots 8 through 16, given that the former owners granted and
conveyed the easement only to each other and their successors. Here, those
successors include the Kasiskes, the Egglesons, and the Town. Just as we noted
for the 1992 Easement, the 1995 Easement similarly contains no language
mentioning the ravine or any intent to allow travel past the ravine. Given the plain
language of the easement and the application of Grygiel, only the Kasiskes and the
Egglesons have the right to use the 1995 Easement to access their properties by
crossing the Town’s property, but they have no right to allow the other
Landowners to use the 1995 Easement to cross the Town’s property to access their
properties.

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No. 2023AP2177

¶55 Again, such use of the 1995 Easement would not be in accordance
with its express terms. Although different from the “specifically benefit” language
of the 1992 Easement, the 1995 Easement language stating that the former owners
of the lots granted the easement to each other and their successors indicates that
the former owners intended the easement to benefit the owners of the specific lots
mentioned, not every other property owner in the subdivision. However, as we
concluded for the 1992 Easement, nothing in the language of the grant prohibits
the Kasiskes and the Egglesons from allowing invitees to use their portion of the
easement on their land.

¶56 In all, the circuit court erred by concluding that the Kasiskes and the
Egglesons could give all the Landowners the right to use the 1992 and 1995
Easements to cross the Town’s property.

C. The Town’s Counterclaim

¶57 Finally regarding the grant of summary judgment, the Town argues
that the circuit court erred by not ruling on the Town’s declaratory judgment
counterclaim that the Town raised in its summary judgment motion. The Town
also contends that the court “did not rule on whether the general public could use
the Town’s” portion of all three easements. Because the court did not address the
Town’s summary judgment motion, but it dismissed the Town’s counterclaim with
prejudice, the Town asserts that it “cannot ever bring a declaratory judgment on
any aspect regarding the easements.” We disagree with the Town.

¶58 The Town never sought a declaratory judgment regarding whether
the general public could use its portion of the three easements. Instead, the
Town’s counterclaim sought a declaratory judgment regarding the rights and limits
of the Platted Easement, the 1992 Easement, and the 1995 Easement “as they may

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No. 2023AP2177

apply to each of the named parties”—i.e., the Town and the Landowners.
(Emphasis added.) The circuit court’s decision did so here. In granting summary
judgment to the Landowners, the court issued that declaratory judgment by
determining each party’s respective rights under the three easements. Thus,
dismissing the Town’s counterclaim with prejudice does not prevent the Town
from bringing a declaratory judgment action regarding the three easements with
respect to lot owners who were not parties to this case.

IV. The Permanent Injunction

¶59 The Town next argues that the circuit court erroneously exercised its
discretion by issuing a permanent injunction. We review a circuit court’s order
granting injunctive relief for an erroneous exercise of discretion. Kocken v.
Wisconsin Council 40, AFSCME, AFL-CIO, 2007 WI 72, ¶25, 301 Wis. 2d 266,
732 N.W.2d 828. We uphold the order if the court “examined the relevant facts,
applied the proper standard of law, and, using a demonstrated rational process,
reached a conclusion that a reasonable court could reach.” Id. In the context of an
injunction, a court erroneously exercises its discretion if it: “(1) fails to consider
and make a record of the factors relevant to its determination; (2) considers clearly
irrelevant or improper factors; and (3) clearly gives too much weight to one
factor.” Sunnyside Feed Co. v. City of Portage, 222 Wis. 2d 461, 471, 588
N.W.2d 278 (Ct. App. 1998).

¶60 In order to obtain an injunction, “a plaintiff must show a sufficient
probability that future conduct of the defendant will violate a right of and will
injure the plaintiff.” Pure Milk Prods. Coop. v. National Farmers Org., 90
Wis. 2d 781, 800, 280 N.W.2d 691 (1979). The plaintiff must also show that the
injury is irreparable—i.e., “not adequately compensable in damages.” Id. In

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No. 2023AP2177

considering the request for injunctive relief, “competing interests must be
reconciled and the plaintiff must satisfy the [circuit] court that on balance equity
favors issuing the injunction.” Id.

¶61 At the hearing clarifying its oral ruling, the circuit court explained
that its issuance of the permanent injunction was

an equitable remedy, actually, and it’s the only remedy that
will give the [Landowners] what they want and what they
need, which is the full enjoyment of their property. So in
that respect, money damages aren’t sufficient, but I’m
merely gonna find that—that harm and damages, due to
blocking the easement, can’t be compensated with money
damages and that, therefore, the [T]own is enjoined from
blocking the easements basically as property rights that are
being interfered with.

¶62 The Town first contends that the circuit court ordered it to remove
all obstructions blocking the three easements without finding that those
obstructions actually interfered with the Landowners’ easement rights. The Town
questions why fencing placed by others does not interfere with the Landowners’
easement rights, but the Town’s fencing does. It also questions why its “easily
movable fence post must be removed,” but larger trees within the easement area
can remain.

¶63 As noted above, a “servient estate may not unreasonably interfere
with the dominant estate’s right to use the easement.” Konneker, 326 Wis. 2d
268, ¶25. A servient owner “may make all proper use of his [or her] land
including the right to make changes in or upon it,” but that owner “may not
unreasonably interfere with the use by the easement holder.” Hunter v.
McDonald, 78 Wis. 2d 338, 343, 254 N.W.2d 282 (1977). “An obstruction or
disturbance of an easement is anything which wrongfully interferes with the

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No. 2023AP2177

privilege to which the owner of the easement is entitled by making its use less
convenient and beneficial than before.” Id. at 344 (citation omitted).

¶64 The circuit court found that the Landowners had easement rights
under the Platted Easement, that the Kasiskes had easement rights under the 1992
Easement, and that the Egglesons and the Kasiskes had easement rights under the
1995 Easement. The court also found that the Town placed “gates, fencing, and
other appurtenances on its property within the boundaries” of the three easements,
and that those fences and gates unlawfully obstructed and interfered with the
Landowners’ respective easement rights. It is clear the court found that the gates
and fences the Town placed within the three easements’ boundaries unreasonably
interfered with each Landowner’s respective easement rights, given that the gates
and fences blocked the easements and made each easement’s use “less convenient
and beneficial than before” the gates and fences were placed. See id.

¶65 Additionally, the Landowners did not seek to remove every
conceivable obstruction, such as large trees or other fencing, that otherwise could
be within each easement’s boundaries. Nor did they argue that such obstructions
unreasonably interfered with their easement rights. The Landowners sought
removal of the gates and fences that the Town had placed because those gates and
fences completely blocked the easements, thereby unreasonably interfering with
the Landowners’ use of their respective easements.

¶66 The Town then argues that the wording of the injunction is too broad
because “it is not clear whether posting signs in the location of any of the
easements” would violate the injunction and because it “does not clearly define
what the Town may and may not do in the future, particularly because
each … Landowner may have a subjective interpretation of what conduct

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No. 2023AP2177

interferes with their easement rights.” The Town further asserts that “there is not a
reasonable likelihood that this wrong will ever be repeated” because the gates and
fences have been removed, which is a factor the court did not consider when
issuing the injunction.

¶67 The injunction is clear as to what the Town was required to do and
what it may not do—namely, the Town was required to remove the gates and
fences it placed within the boundaries of the easements and it was prohibited from
placing anything else that would block, obstruct, or interfere with the easements in
the same manner. Signs, generally speaking, do not obstruct the use of an
easement, given that signs would not block the entire easement (unless the Town
intends to put up a sign that is the size of the easements).

¶68 Furthermore, the circuit court did consider the likelihood of the
Town repeating its behavior, stating that “in the long term, … it’s unreasonable to
expect the parties to continue to have to resort to come to court if and when they
decide that they’re gonna exercise their rights.” As the Landowners note, without
a permanent injunction “nothing would stop the Town from putting gates and
fencing up again in the future,” and “the circuit court’s judgment would be
meaningless.” Thus, the Town could continue to violate the Landowners’
property rights if the Town were not prohibited from placing fences or gates
blocking the easements and interfering with the Landowners’ use of the
easements. Accordingly, the court did not erroneously exercise its discretion by
granting the permanent injunction.

CONCLUSION

¶69 In all, we affirm the circuit court in regards to its decisions on the
Town’s motion to join necessary parties, the Town’s motion for leave to file a

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No. 2023AP2177

third-party complaint against the 17 nonparty landowners, and the issuance of the
permanent injunction. We also affirm the circuit court’s summary judgment
decision regarding the Platted Easement and its dismissal of the Town’s
counterclaim. Nevertheless, we reverse the circuit court’s grant of summary
judgment to the Landowners with respect to 1992 and 1995 Easements. The court
erred by concluding that the Kasiskes and the Egglesons could give all the
Landowners the right to use the 1992 and 1995 Easements to cross the Town’s
property. The Kasiskes and the Egglesons may only grant rights to the other
Landowners to cross over their own property but not the Town’s property.
Accordingly, we remand the case to the circuit court to enter an amended order
consistent with this opinion.

¶70 No costs are awarded to either party.

By the Court.—Judgment affirmed in part, reversed in part and cause
remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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