Thomas A. Smith v. Garry L. Wiskerchen

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.
February 10, 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. 2024AP1617 Cir. Ct. No. 2023CV76

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

THOMAS A. SMITH AND LORI A. SMITH,

PLAINTIFFS-RESPONDENTS,

V.

GARRY L. WISKERCHEN AND KIM M. NOVAK,

DEFENDANTS-APPELLANTS,

MICHAEL S. BRANDER, GOWEY ABSTRACT & TITLE COMPANY, INC.,
CHAD M. NIEGELSEN, NEW HORIZONS REALTY OF PRICE COUNTY, LLC
AND JODY DELASKY,

DEFENDANTS.

APPEAL from an order of the circuit court for Price County:
MICHAEL W. SCHIEK, Judge. Reversed and cause remanded with directions
and for further proceedings.

Before Stark, P.J., Hruz, and Gill, JJ.
No. 2024AP1617

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. Garry L. Wiskerchen and Kim M. Novak appeal
from an order of the circuit court granting Thomas and Lori Smith’s1 motion for
summary judgment, wherein the court reformed a deed to include an easement,
pursuant to WIS. STAT. § 847.07(1)(a) (2023-24),2 and created an easement by
estoppel. We conclude that material questions of fact remain on the Smiths’
reformation claim.3 We further conclude that the Certified Survey Maps at issue
cannot provide the basis for an easement by estoppel claim under the facts of this
case. Accordingly, we reverse and remand for further proceedings on the
reformation claim consistent with this opinion, and we reverse and remand with
directions for the circuit court to grant Wiskerchen and Novak’s motion for
summary judgment on the Smiths’ easement by estoppel claim.

BACKGROUND

¶2 The Smiths filed the present lawsuit against Wiskerchen and Novak
in August 2023, seeking recognition of an easement over Wiskerchen and Novak’s
property under various legal theories. The Smiths also sought an injunction to
maintain access to their residence.

1
Because Thomas and Lori Smith share a surname, we refer to them individually using
their first names where appropriate.
2
All references to the Wisconsin Statutes are to the 2023-24 version.
3
This appeal pertains only to the Smiths’ claims against Wiskerchen and Novak.

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¶3 By way of background, in 2020, the Smiths subdivided their
property on the Wilson Flowage into four lots by creating and recording Certified
Survey Map (CSM) No. 1482. The drafter of CSM No. 1482, and the other three
CSMs discussed in this opinion, averred that “[i]n all four Certified Survey Maps,
I show an easement road 66’ in wid[th] running from Fox Run Road to what is
known as Lot 4 of CSM 1482, (Lot 1 in CSM 1509, Lot 4 in CSM 1544, and Lot 4
in CSM 1546).” In addition, CSM No. 1482 contains a key showing the square
footage of Lots 1-3, including the footage of the road easement on each of those
lots.

¶4 The Smiths transferred CSM No. 1482 Lot 1 to Jeffrey Wilner,
Patricia Wilner, Charles Beno, and Amy Beno (hereinafter, “the Wilners”) in
October 2021 by warranty deed. The deed reserves for the grantor a “perpetual,
non-exclusive easement for ingress, egress and utilities over and across that area
designated as Road Easement of [CSM] No. 1482 … for the benefit of and
appurtenant to Lots 2, 3, and 4.”

¶5 On April 10, 2022, Wiskerchen and Novak signed a vacant land
offer to purchase CSM No. 1482 Lot 2 from the Smiths. The transaction to
purchase Lot 2 was completed on April 14, 2022, at the office of Gowey Abstract
& Title Company, Inc., via warranty deed. The April 2022 deed describes the
property being purchased as “Lot Two (2) of [CSM] No. 1482.” The April 2022
deed does not reserve an easement for the benefit of the Smiths and their
remaining lots, but it does convey an easement for the benefit of Wiskerchen and
Novak “for ingress/egress and utilities over and across the road. Easement shown
on [CSM] No. 1482….”

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¶6 On May 24, 2022, Wiskerchen and Novak signed a vacant land offer
to purchase additional frontage along the Wilson Flowage from the Smiths. To
accomplish the transaction and provide the additional frontage, the Smiths created
and recorded CSM No. 1509. CSM No. 1509 includes a similar road easement to
that depicted in CSM No. 1482. In addition, CSM No. 1509 contains a key
showing the square footage of Lot 2, including the footage of the road easement
on that lot.

¶7 In June 2022, the Smiths transferred the additional frontage to
Wiskerchen and Novak by warranty deed. The June 2022 deed describes the
property being purchased as “Lot Two (2) of [CSM] No. 1509.” It includes the
same easement language as the April 2022 deed. There was no developed road
going to CSM No. 1482 Lot 2 in June 2022 when Wiskerchen and Novak
purchased the additional frontage.

¶8 Wiskerchen and Novak acquired CSM No. 1482 Lot 1 from the
Wilners in October 2022 by warranty deed. The deed includes the same easement
language as the April and June 2022 deeds. In April 2023, Wiskerchen and Novak
created and recorded CSM No. 1546, which combined their property along the
Wilson Flowage into one lot. CSM No. 1546, like the other CSMs, outlines a road
easement and contains a key showing the square footage of Lot 1, including the
footage of the road easement on that lot.

¶9 In April 2023, the Smiths agreed to sell a lot to Chad Niegelsen, who
also desired frontage on the Wilson Flowage. To accomplish the transaction and
provide the desired frontage, the Smiths created and recorded CSM No. 1544,
which, like the other CSMs, includes the road easement. CSM No. 1544 contains
a key showing the square footage of the purchased lot, including the footage of the

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road easement on that lot. In April 2023, the Smiths transferred CSM No. 1544
Lot 3 to Niegelsen by warranty deed. The April 2023 deed reserves for the grantor
a “perpetual, non-exclusive easement for ingress, egress, and utilities, over and
across that 66’ designated easement area shown on [CSM No. 1544] Lot 3 … for
the benefit of and appurtenant to [CSM No. 1544] Lot 4.”

¶10 According to the Smiths’ second amended complaint, Wiskerchen
confronted the Smiths in May 2023 about the placement of the Smiths’ driveway
for their home that was being built on CSM No. 1544 Lot 4. The Smiths alleged
that Wiskerchen and Novak decided to block off the Smiths’ access to Wiskerchen
and Novak’s property by landscaping the area. The Smiths further stated that they
received a letter in July 2023 from Wiskerchen and Novak in which they
expressed their belief that “there is a legal easement over” CSM No. 1544 Lot 2,
leaving the Smiths’ lot without any road access.

¶11 Pertinent to this appeal, the Smiths’ lawsuit sought an order
correcting the legal descriptions in the April and June 2022 deeds pursuant to WIS.
STAT. § 847.07(1)(a) (reformation based on mutual mistake). According to the
Smiths, the deeds contain “erroneous description[s]” “not intended by the parties
to the conveyance[s].” In the alternative, the Smiths sought a judgment declaring
the existence of an easement by estoppel, arguing that the CSMs created the
easement, and Wiskerchen and Novak received lots within the CSMs. Thus,
according to the Smiths, Wiskerchen and Novak “are estopped to deny the legal

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existence of the easement.” Later, the Smiths filed a motion for summary
judgment on these claims.4

¶12 In response to the Smiths’ lawsuit, Wiskerchen and Novak raised
several defenses. In relevant part, they argued that the Smiths’ claim under WIS.
STAT. § 847.07 should be dismissed because they failed to state their claim with
particularity in their second amended complaint, as required by WIS. STAT.
§ 802.03(2). Wiskerchen and Novak then filed a motion to dismiss, in which they
argued for dismissal of the Smiths’ § 847.07 claim pursuant to § 802.03(2). They
also filed a motion for summary judgment, arguing that they were entitled to
summary judgment on the Smiths’ claim under § 847.07 and their claim for
easement by estoppel.

¶13 The circuit court granted the Smiths’ motion for summary judgment
and denied Wiskerchen and Novak’s motion for summary judgment. The court
stated that the April and June 2022 deeds should have included the easement
referenced in the CSMs and that the omission of the easement in the deeds was a
“scrivener’s error.” In addition, the court determined that the CSMs created an
easement pursuant to WIS. STAT. § 236.29(1), and, therefore, Wiskerchen and
Novak were estopped from preventing the Smiths access to their property to use
the easement. See Schimmels v. Noordover, 2006 WI App 7, ¶11, 288 Wis. 2d
790, 709 N.W.2d 466 (2005). According to the court, there were no issues of
material fact, despite evidence in the record demonstrating that Wiskerchen and

4
The Smiths further argued that they were entitled to summary judgment based on the
principle of easement by implication. The circuit court did not address this issue, and the parties
do not raise it as a reviewable issue for appeal. See A.O. Smith Corp. v. Allstate Ins. Cos., 222
Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the trial court, but not
raised on appeal, is deemed abandoned.”).

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No. 2024AP1617

Novak “didn’t think there was going to be an easement” over their property,
because the easement was “referenced at least through other verbiage and other
documents.” The court did not address or decide Wiskerchen and Novak’s motion
to dismiss.

¶14 Wiskerchen and Novak now appeal.5

DISCUSSION

I. Claim for reformation of the deeds

A. WISCONSIN STAT. § 802.03(2) and Wiskerchen and Novak’s motion to
dismiss

¶15 We assume without deciding that the Smiths’ reformation claim
under WIS. STAT. § 847.07 was required to be pled with particularity under WIS.
STAT. § 802.03(2). With this assumption in mind, we conclude that the Smiths’
second amended complaint satisfied that standard. See Patrick Fur Farm, Inc. v.
United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d
707 (stating that this court decides cases on the narrowest possible grounds).

¶16 In order to satisfy the heightened pleading requirement under WIS.
STAT. § 802.03(2), a complaint must allege “the ‘who, what, when, where and
how’” of the alleged mistake. See Friends of Kenwood v. Green, 2000 WI App

5
Wiskerchen and Novak’s appellate briefs do not comply with WIS. STAT. RULE
809.19(8)(bm), which requires a brief to “have page numbers centered in the bottom margin using
Arabic numerals with sequential numbering starting at ‘1’ on the cover.” Our supreme court has
explained that this pagination requirement “will match the page number to the page header
applied by the eFiling system, avoiding the confusion of having two different page numbers.”
S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii (eff. July 1, 2021). We admonish Wiskerchen
and Novak’s counsel that future violations of the Rules of Appellate Procedure may result in
sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2024AP1617

217, ¶14, 239 Wis. 2d 78, 619 N.W.2d 271 (citation omitted). WISCONSIN STAT.
§ 847.07(1)(a) provides that “[t]he circuit court of any county in which a
conveyance of real estate has been recorded may make an order correcting the
description in the conveyance on proof being made to the satisfaction of the court
that” “[t]he conveyance contains an erroneous description, not intended by the
parties to the conveyance.”

¶17 The Smiths’ second amended complaint adequately stated the who,
what, when, where and how of the alleged mistake underlying their WIS. STAT.
§ 847.07 claim. The complaint included a complete history of the facts leading to
the lawsuit, including an outline, with dates and exhibits, of the CSMs, the
relevant deeds, and the parties involved. Furthermore, it explained the basis for
the Smiths’ belief that the April and June 2022 deeds incorrectly omitted the
easement contained in the CSMs, contrary to the parties’ intent. In particular, the
Smiths alleged that the deeds’ drafter erroneously excluded the easement and that
this omission was a mistake, as evidenced by the CSMs and the parties’ conduct.
The Smiths further alleged that Wiskerchen and Novak acknowledged this mistake
when Wiskerchen informed Thomas that he “understood that the Easement runs
across [CSM No. 1544] Lots 1 and 2 … and apologized” for preventing access to
their property for use as an easement. We conclude that these allegations were
sufficient to allege mistake under the heightened pleading standard, and the circuit
court did not err by addressing the parties’ motions for summary judgment without
dismissing the second amended complaint.

B. Summary judgment on the Smiths’ reformation claim

¶18 We review a grant of summary judgment de novo, using the same
methodology as the circuit court. Yahnke v. Carson, 2000 WI 74, ¶10, 236

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Wis. 2d 257, 613 N.W.2d 102. Summary judgment shall be awarded if “there is
no genuine issue as to any material fact and … the moving party is entitled to a
judgment as a matter of law.” WIS. STAT. § 802.08(2).

¶19 As noted above, WIS. STAT. § 847.07(1)(a) grants a circuit court the
power to order a conveyance corrected if the conveyance “contains an erroneous
description, not intended by the parties to the conveyance.” “The party who seeks
reformation must offer clear and convincing proof that both parties intended to
make a different instrument and had agreed on facts that were different than those
set forth on the instrument.” Chandelle Enters., LLC v. XLNT Dairy Farm, Inc.,
2005 WI App 110, ¶18, 282 Wis. 2d 806, 699 N.W.2d 241. “A mistake is only
mutual if it is reciprocal and common to both parties.” Id., ¶20. “Whether a
mutual mistake has occurred is an issue of fact.” State Bank of La Crosse v.
Elsen, 128 Wis. 2d 508, 517, 383 N.W.2d 916 (Ct. App. 1986).

¶20 Here, there remain genuine issues of material fact precluding
summary judgment on the Smiths’ reformation claim based upon mutual mistake.
Specifically, the record reflects that the parties dispute whether Wiskerchen and
Novak had notice that the Smiths claimed an easement over Wiskerchen and
Novak’s property or that such an easement existed at the time of the conveyances.

¶21 According to Wiskerchen, he and Novak met with Thomas and the
Smiths’ real estate agent on April 10, 2022, and “[t]here was no discussion of an
easement across” their property. Wiskerchen averred that he, Novak, the Smiths,
and the Smiths’ agent were present for the closing on April 14, 2022, and that an
employee of Gowey Abstract “read all of the closing documents to those in
attendance.” These documents included the April 2022 “deed and its legal
description.” Wiskerchen stated that, at the time of the April 2022 closing, “no

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one raised an objection to the wording of the deed and no one indicated the deed
should reserve an easement for [the Smiths].” Likewise, Novak testified at a
preliminary injunction hearing that no discussion took place between the Smiths
and Wiskerchen and Novak prior to either the April or June 2022 closings
regarding “the Smiths reserving an easement.”

¶22 Furthermore, Thomas testified at the injunction hearing that he and
Lori owned a house on CSM No. 1482 Lot 3 in June 2022 and that they had access
from that lot to Fox Run Road without use of an easement over CSM No. 1482
Lot 2. Thomas agreed that “there was no developed road going to Lot 2” in June
2022 when Wiskerchen and Novak purchased the additional frontage. Likewise,
the Smiths did not sell CSM No. 1544 Lot 3 to Niegelsen and begin building a
residence on CSM No. 1544 Lot 4 until after the April and June 2022 closings.
These facts create genuine issues of fact for trial as they demonstrate that
Wiskerchen and Novak may not have intended to have an easement included in
the conveyances.

¶23 On the other hand, the Smiths contest Wiskerchen and Novak’s
assertions, stating that they met with Wiskerchen and Novak prior to the April
2022 closing and discussed the location of the easement. The Smiths further cite
to Wiskerchen’s alleged concession of the easement in June 2023 during the
Smiths’ construction of their home on CSM No. 1544 Lot 4. Furthermore, the
Smiths point to the affidavit of the drafter of the CSMs, in which he attested that,
“[w]hile locating corners and lines” at an undated time and location, Wiskerchen
informed him that Wiskerchen “knew there was an easement across his property to
access the Smith property.”

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¶24 To the extent that these factual issues go to Wiskerchen and Novak’s
intent at the time of the conveyances, they will ultimately need to be decided by
the trier of fact.6 See Yahnke, 236 Wis. 2d 257, ¶11 (“[A] circuit court does not
decide issues of credibility on summary judgment.”).

¶25 The Smiths further argue that the circuit court properly granted their
motion for summary judgment on their reformation claim because, regardless of
these factual issues, the parties’ intent is evidenced by the CSMs, a title
commitment document from the April 2022 closing, and an ordinance requiring
easements leading to public highways.

¶26 Regarding the CSMs, Novak testified at the injunction hearing that
she was unsure if CSM No. 1509 provides an easement to CSM No. 1509 Lot 1.
While the drafter of the CSMs and a surveyor both averred that CSM Nos. 1482
and 1509 provide a road easement from Fox Run Road to that lot, WIS. STAT.
§ 847.07(1)(a) concerns the intent of “the parties to the conveyance.”
See Chandelle Enters., LLC, 282 Wis. 2d 806, ¶18. The drafter of the CSMs and
the surveyor are not parties to the conveyances. Regardless, Novak testified at the
injunction hearing that she had not seen CSM Nos. 1482 and 1509 until after the
April and June 2022 conveyances, and CSM Nos. 1544 and 1546 were created
after the conveyances at issue.

6
Wiskerchen and Novak argue that the parol evidence rule would prevent the circuit
court from hearing evidence of their intent to the extent that evidence exists outside of the April
or June 2022 deeds. They are incorrect. The parol evidence rule does not apply to evidence of
mutual mistake. Town Bank v. City Real Est. Dev., LLC, 2010 WI 134, ¶¶36-37, 330 Wis. 2d
340, 793 N.W.2d 476; Badger Sav. Bldg. & Loan Ass’n v. Mutual Bldg. & Sav. Ass’n, 230 Wis.
145, 152, 283 N.W. 466 (1939) (“Parol evidence to establish fraud or mutual mistake in actions
for reformation is universally admitted. If it were not, these remedies would be wholly
unenforcible.”).

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¶27 Importantly, the two offers to purchase and the April and June 2022
deeds do not include language providing an easement for the benefit of the Smiths
over Wiskerchen and Novak’s lot. In fact, the deeds describe an easement for the
benefit of Wiskerchen and Novak. Absent language providing an easement for the
benefit of the Smiths, the CSMs do not demonstrate that Wiskerchen and Novak
intended, as a matter of undisputed fact, the conveyances to include the easement.
Thus, even if the CSMs undoubtedly show an easement over Wiskerchen and
Novak’s lot, there remain material issues of fact as to the parties’ intent under
WIS. STAT. § 847.07(1)(a).

¶28 Likewise, absent evidence of Wiskerchen and Novak’s knowledge of
the ordinance and its applicability to their property, the ordinance cited by the
Smiths does nothing to demonstrate Wiskerchen and Novak’s intent to include an
easement in the conveyances. Regardless, the relevance of the ordinance to WIS.
STAT. § 847.07(1)(a) is questionable as to Wiskerchen and Novak’s intent at the
time of the conveyances. As explained above, the Smiths owned CSM No. 1482
Lot 3 and had access to Fox Run Road at the time of the April and June 2022
closings. If Thomas’s testimony from the injunction hearing is taken as true, there
was no developed road over Wiskerchen and Novak’s property at the time of the
closings, and all lots were arguably in compliance with the ordinance in April and
June 2022.

¶29 With respect to the title commitment, that document named
Wiskerchen and Novak as the proposed insureds for CSM No. 1482 Lot 2. The
document identified the easement outlined in CSM No. 1482 and contained an
exception to coverage for loss or damage resulting from the terms and provisions
of any lease or easement, including the “Road Easement made evident by and
shown on that [CSM] No. 1482 .…” (Formatting altered.)

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¶30 Wiskerchen and Novak contend that the exception contained in the
title commitment is not, as a matter of law or undisputed fact, indicative of their
intent to include the easement in the conveyances. Wiskerchen and Novak further
contend that the title commitment was provided to them “after the[ir] offer to
purchase” in April 2022. The Smiths do not respond to these arguments, and we
therefore deem them conceded for purposes of this appeal. See Charolais
Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493
(Ct. App. 1979) (holding that a failure to refute an argument may constitute a
concession). Even so, “a title insurance commitment … is an offer of title
insurance” describing “the property as the title insurer is willing to insure it.”
Columb v. Cox, 2022 WI App 32, ¶18, 404 Wis. 2d 50, 978 N.W.2d 481 (citation
omitted). It is not an insurance policy. See id., ¶¶18-19. Neither Wiskerchen’s
nor Novak’s signature appears on the title commitment, and the Smiths cite to no
evidence in the record demonstrating that Wiskerchen and Novak reviewed the
document prior to the April or June 2022 closings.

¶31 The Smiths next claim that the intent of the parties is self-evident
because “[t]here is NO other location where the easement would fit.” Wiskerchen
and Novak counter that the record lacks any factual support for the Smiths’
assertion and that, regardless, this fact is not material to the issue of mutual
mistake because the Smiths had access to Fox Run Road at the time of the
conveyances between the Smiths and Wiskerchen and Novak. Again, the Smiths
do not respond to these arguments, and we deem them conceded for purposes of
this appeal. See Charolais Breeding Ranches, Ltd., 90 Wis. 2d at 109.

¶32 Because there remain genuine issues of material fact, the circuit
court erred by granting the Smiths’ motion for summary judgment on their WIS.
STAT. § 847.07(1)(a) claim. Given this conclusion, we decline Wiskerchen and

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Novak’s invitation to reverse with directions for the court to grant their motion for
summary judgment.

II. Claim of easement by estoppel

¶33 The Smiths also argue, as they did in the circuit court, that easement
by estoppel is recognized in Wisconsin and is premised on the idea that “when a
recorded map used as a basis for the conveyance discloses on its face the existence
of an easement, the lot owners cannot deny its existence.” (Formatting altered.)
To an extent, Wiskerchen and Novak agree. They state that “[a] number of cases
in Wisconsin have held that when there is … a dedication [pursuant to WIS. STAT.
ch. 236] in a plat to the public or to private owners, other lot owners of the plat are
estopped from challenging use in accordance with the dedication.”

¶34 The parties disagree, however, whether CSMs can form the basis for
an easement by estoppel claim if they do not comply with the plat requirements in
WIS. STAT. ch. 236. Wiskerchen and Novak assert that the CSMs in this case did
not comply with the plat requirements in ch. 236 and, consequently, cannot form
the basis for the Smiths’ claim. Conversely, the Smiths argue that although the
Wisconsin cases applying easement by estoppel considered plats rather than
CSMs, “the rationale underlying their holdings should extend to [CSMs].”
(Formatting altered.) The circuit court appeared to adopt the Smiths’ position in
granting their motion for summary judgment on this claim.

¶35 The easement by estoppel doctrine dictates that “[o]ne who buys lots
with reference to a plat which shows certain streets, ways and places in common,
is entitled with all other lot owners in the platted area or subdivision to the use
with them of the streets, ways and places in common.” Schimmels, 288 Wis. 2d
790, ¶11 (citation omitted). “Lot owners in the same subdivision whose lots are

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purchased with reference to the same plat are estopped to deny the use in common
with other lot owners in the subdivision.” Id. (citation omitted). Stated
differently,

[w]hen the grantee of a lot so platted, purchases it, the
existence of the streets as platted, inasmuch as they add
value to the lot by the conveniences or advantages which
they promise, is an inducement to the purchaser, and so
enters into the consideration, as between the grantor and
grantee, and operates by way of … estoppel.

Id. (citation omitted).

¶36 The Smiths do not cite any binding authority holding that CSMs
may form the basis of an easement by estoppel claim.7 Indeed, the Wisconsin
requirements for plat maps and CSMs are vastly different. These differences are
significant because the easement by estoppel doctrine is premised on the idea that
a plat that complies with WIS. STAT. ch. 236 is dispositive evidence of ownership
and use of an easement. See Baurer v. Sokoloff, 254 Wis. 273, 276, 36 N.W.2d
61 (1949).

¶37 Under WIS. STAT. § 236.29(1),

When any plat is certified, signed, acknowledged and
recorded as prescribed in this chapter, every donation or
grant to the public or any person, society or corporation
marked or noted as such on said plat shall be deemed a
sufficient conveyance to vest the fee simple of all parcels of
land so marked or noted, and shall be considered a general
warranty against such donors, their heirs and assigns to the
said donees for their use for the purposes therein expressed

7
Rather, the Smiths rely on an excerpt from a Wisconsin-based secondary source, where
the authors acknowledge that Wisconsin’s easement by estoppel jurisprudence concerns “plats
rather than certified survey maps” but opined that “the rationale underlying [those cases] should
extend to certified survey maps.” See Melanie S. Lee, et al., Wisconsin Law of Easements and
Restrictive Covenants, § 2.25 (6th ed. 2022).

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and no other; and the land intended for the streets, alleys,
ways, commons or other public uses as designated on said
plat shall be held by the town, city or village in which such
plat is situated in trust to and for such uses and purposes.

Most notably, to entitle a plat to be recorded, a certificate “by the owner of the
land” shall appear on the plat. WIS. STAT. § 236.21(2)(a). The certificate must be
in substantially the following form:

As owner I hereby certify that I caused the land described
on this plat to be surveyed, divided, mapped and dedicated
as represented on the plat. I also certify that this plat is
required by [WIS. STAT. §§] 236.10 or 236.12 to be
submitted to the following for approval or objection: (list of
governing bodies required to approve or allowed to object
to the plat).

The certificate “shall be signed by the owner, the owner’s spouse, and all persons
holding an interest in the fee of record or by being in possession and, if the land is
mortgaged, by the mortgagee of record.” Id.

¶38 A CSM “may be used for dedication of streets and other public
areas, and for granting easements to the public or any person … when owners’
certificates and mortgagees’ certificates which are in substantially the same form
as required by [WIS. STAT. §] 236.21(2)(a) have been executed” and the pertinent
governing bodies “involved have approved such dedication or grant.” WIS. STAT.
§ 236.34(1m)(e) (emphasis added). Only when these requirements have been met
will a CSM “have the force and effect provided by [WIS. STAT. §] 236.29.”
Sec. 236.34(1m)(e). The Smiths do not contend that the CSMs at issue complied
with § 236.34(1m)(e).

¶39 Under the facts of this case, we see no basis to extend the doctrine of
easement by estoppel based on CSMs that undisputedly do not satisfy the
recording standard in WIS. STAT. § 236.34(1m)(e). Without compliance with

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§ 236.34(1m)(e), the CSMs at issue do not dispositively evidence ownership and
use as would a recorded plat.

¶40 Accordingly, we reverse the circuit court’s order granting the
Smiths’ motion for summary judgment, and we remand for further proceedings on
that claim consistent with this opinion. As part of this disposition, and in
particular, we reverse and remand with directions for the circuit court to grant
Wiskerchen and Novak’s motion for summary judgment on the Smiths’ easement
by estoppel claim.

By the Court.—Order reversed and cause remanded with directions
and for further proceedings.

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

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