Michael Bohm v. Michael Leiber

2020 WI App 52
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP728

Complete Title of Case:

MICHAEL BOHM AND GIGI BOHM,

PLAINTIFFS-RESPONDENTS,

V.

MICHAEL LEIBER AND KATRINA LEIBER,

DEFENDANTS-APPELLANTS.

Opinion Filed: July 8, 2020
Submitted on Briefs: January 22, 2020

JUDGES: Reilly, P.J., Gundrum and Davis, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendants-appellants, the cause was submitted on the
briefs of John M. McTernan of Alia, DuMez & McTernan, S.C.,
Kenosha.

Respondent
ATTORNEYS: On behalf of the plaintiffs-respondents, the cause was submitted on the
brief of Thomas M. Devine of Devine Hahn, S.C., Racine.
2020 WI App 52

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 8, 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. 2019AP728 Cir. Ct. No. 2017CV950

STATE OF WISCONSIN IN COURT OF APPEALS

MICHAEL BOHM AND GIGI BOHM,

PLAINTIFFS-RESPONDENTS,

V.

MICHAEL LEIBER AND KATRINA LEIBER,

DEFENDANTS-APPELLANTS.

APPEAL from an order of the circuit court for Racine County:
EUGENE A. GASIORKIEWICZ, Judge. Affirmed in part; reversed in part and
cause remanded.

Before Reilly, P.J., Gundrum and Davis, JJ.
No. 2019AP728

¶1 GUNDRUM, J. Michael and Katrina Leiber appeal an order of the
circuit court declaring as valid an easement over their property in favor of Michael
and Gigi Bohm, the Leibers’ neighbors to the north. The Leibers claim the court
erred in determining on summary judgment that the easement was not abandoned.
They alternatively contend that even if the easement remains valid, the Bohms
nonetheless cannot build their planned driveway on it as the driveway does not
constitute a “roadway,” which is the easement’s specified purpose. We conclude
that there is a factual question as to whether the easement was abandoned, and thus
reverse on that issue, but agree with the circuit court that if the easement was not
abandoned, the Bohms’ proposed driveway is an acceptable use under the easement.

Background

¶2 Prior to 1972, the Leibers’ property and the Bohms’ property were
owned by Eugenia Meyer. In 1972, Frederick and Jane Fowle purchased a parcel
from Meyer, and in 1978, purchased an additional parcel. In conjunction with the
1978 purchase, the Fowles received an easement over Meyer’s remaining property,
which was adjacent and to the south of the Fowles’ property. In relevant part, the
easement document states that the seller (Meyer)

grants for herself, her heirs, representatives and assigns, the
right of easement to the parties of the second part, their heirs,
representatives and assigns, to construct and maintain and
use perpetually a roadway for the purpose of ingress and
egress by the said parties of the second part, their licensees
and invitees to lands lying north of and adjacent to the
following described real estate ….

(Emphasis added.) The document further describes the easement as being “66 feet”
wide.

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¶3 In 2000, the Bohms purchased the Fowles’ property, including the
easement on the adjacent property to the south. At some point, Michael Bohm
(Bohm), with the permission of the then-owners of the southern property (now the
Leibers’ property), planted numerous trees, created an approximately one-foot
berm, and installed “removable solar landscape lighting” within the easement area.
As to the trees, Michael Leiber (Leiber) averred that they consist of “at least 61 new
trees in the middle of the easement corridor,” including “a grove of fruit trees,
dozens of cedars, other conifers, and a redwood tree.”

¶4 In 2016, the Leibers purchased the southern property over which the
easement lies. Leiber averred that prior to the purchase, Bohm told Leiber that
Bohm “had no intention of ever building a roadway on the easement property.”
After the purchase, the Leibers became concerned with tenants of the Bohms using
a portion of the easement as a “parking lot.” As a result, the Leibers posted the
property and erected fencing to prohibit this use. They also constructed a driveway
which enters onto a portion of the easement area.

¶5 The Bohms subsequently filed this declaratory judgment action
requesting “a declaration of their right to the easement,” an injunction prohibiting
the Leibers from interfering with their right to use of the easement, and the removal
of the Leibers’ fencing and new driveway. The Bohms also sought damages based
upon alleged trespass by the Leibers. The Leibers counterclaimed, alleging trespass
by the Bohms. The Bohms moved for declaratory judgment.

¶6 While this litigation was pending, the Bohms made plans to install a
sixteen-foot-wide driveway on the easement. This led to the amendment of the
Leibers’ counterclaim in order to allege that the driveway is not a permitted use of
the easement as the easement only allows for construction of a “roadway” and the

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No. 2019AP728

proposed driveway does not constitute a roadway. Following the filing of the
amended counterclaim, the Bohms moved for declaratory and summary judgment
and the Leibers moved for declaratory judgment.

¶7 The circuit court entered an order, in favor of the Bohms, declaring
that the easement was not abandoned, and is thus still valid, and that the Bohms’
proposed driveway is a permissible use. The court also granted an injunction to the
Leibers prohibiting the Bohms from continuing their use of the easement area for
“arboretums, parking lots, or … private landscaping” as those were not permissible
uses. The court further ruled that the Leibers may continue to utilize their already-
constructed driveway as long as it does not interfere with the Bohms’ easement
right. The Leibers appeal the court’s rulings that the easement is still valid and the
Bohms’ proposed driveway is a permissible use. The Bohms do not appeal the
rulings in favor of the Leibers.

Discussion

¶8 Our review of a circuit court’s decision on summary judgment is de
novo. Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶11, 318 Wis. 2d 622,
768 N.W.2d 568. Summary judgment is appropriate if there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law. Id.
“An issue of fact is genuine if a reasonable jury could find for the nonmoving party.”
Nielsen v. Spencer, 2005 WI App 207, ¶10, 287 Wis. 2d 273, 704 N.W.2d 390. At
the summary judgment stage, all facts and reasonable inferences must be viewed in
the light most favorable to the nonmoving party, here, the Leibers. Lambrecht v.
Estate of Kaczmarczyk, 2001 WI 25, ¶23, 241 Wis. 2d 804, 623 N.W.2d 751.

¶9 “The grant or denial of a declaratory judgment is addressed to the
circuit court’s discretion. However, when the exercise of such discretion turns upon

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No. 2019AP728

a question of law, we review the question independently of the circuit court’s
determination.” Olson v. Farrar, 2012 WI 3, ¶24, 338 Wis. 2d 215, 809 N.W.2d 1
(citation omitted).

Validity of the Easement

¶10 The Leibers argue the circuit court erred in declaring upon summary
judgment that the easement is still valid. They insist there is a genuine issue of
material fact as to whether the easement was abandoned due to the forty-year period
in which a roadway had not been installed coupled with Bohm’s planting of sixty-
one trees in the easement area and his later comment that he “had no intention of
ever building a roadway on the easement.” We agree there is a genuine issue of
material fact.

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No. 2019AP728

¶11 Whether an easement has been abandoned is “ordinarily a question of
fact.” See Pollnow v. DNR, 88 Wis. 2d 350, 362, 276 N.W.2d 738 (1979)1; see
also Burkman v. City of New Lisbon, 246 Wis. 547, 557, 18 N.W.2d 4 (1945).

¶12 In Spencer v. Kosir, 2007 WI App 135, ¶3, 301 Wis. 2d 521, 733
N.W.2d 921, we considered whether an easement providing “a right of way for road
purposes” was abandoned. Doing so, we turned to comments (c) and (d) of the
RESTATEMENT OF THE LAW OF PROPERTY, § 504 (AM. LAW INST. 1944), which
state:

c. Conduct as to use. An intentional relinquishment of an
easement indicated by conduct respecting the use authorized
by it constitutes an abandonment of the easement. The
intention required in the abandonment of an easement is the
intention not to make in the future the uses authorized by it.
The benefit of an easement lies in the privilege of use of the
land subject to it. There is no abandonment unless there is a
giving up of that use. The giving up must be evidenced by
conduct respecting the use of such a character as to indicate
an intention to give up the use for the future as well as for
the present. Conduct, when inconsistent with the

1
In a footnote, the Bohms challenge the Leibers’ citation to Pollnow v. DNR, 88
Wis. 2d 350, 276 N.W.2d 738 (1979), for the proposition that the question as to whether an
easement was abandoned is one of fact. The Bohms assert that Pollnow “does nothing to preclude
the imposition of summary judgment in the context of a private easement,” because Pollnow
concerned the abandonment of an easement by a public utility. Of note, the Bohms cite no case
law suggesting the question of whether an easement was abandoned is one of law instead of fact.
Moreover, the question centers around whether there was an “intentional relinquishment” of the
easement “indicated by conduct respecting the use authorized by it,” see Spencer v. Kosir, 2007
WI App 135, ¶8, 301 Wis. 2d 521, 733 N.W.2d 921 (citing RESTATEMENT OF THE LAW OF
PROPERTY, § 504 (AM. LAW INST. 1944)), and questions of intent are generally left to a factfinder,
see Tri-Tech Corp. of America v. Americomp Servs., Inc., 2002 WI 88, ¶30 n.5, 254 Wis. 2d 418,
646 N.W.2d 822 (“[T]he issue of intent is generally not readily susceptible of determination on
summary judgment.”); see also, e.g., WIS JI—CIVIL 3078 “Abandonment: Mutual” (stating in the
context of mutual abandonment of a contract that abandonment “is purely a matter of intent to be
ascertained from the facts and circumstances existing at the time the abandonment is alleged to
have occurred.”). Furthermore, our reference in Spencer to comment (d) of the Restatement
provides strong indication the question of abandonment is for a factfinder as that comment
provides: “The duration of the period of nonuse, though never conclusive as to the intention to
abandon, is ordinarily admissible for the purpose of showing intention in that regard.” See Spencer,
301 Wis. 2d 521, ¶8 (emphasis added; citation omitted).

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No. 2019AP728

continuance of the use, indicates an intention to give it up.
The conduct required for abandonment cannot consist of
verbal expressions of intention. Such expressions are
effective to extinguish an easement only when they comply
with the requirements of a release and operate as such.
Verbal expressions of an intention to abandon are relevant,
however, for the purpose of giving meaning to acts which
are susceptible of being interpreted as indicating an
intention to give up the use authorized by an easement, but
which do not of themselves conclusively demonstrate the
intention which animated them.

….

d. Non-use. Conduct from which an intention to abandon
an easement may be inferred may consist in a failure to make
the use authorized. Non-use does not of itself produce an
abandonment no matter how long continued. It but
evidences the necessary intention. Its effectiveness as
evidence is dependent upon the circumstances. Under some
circumstances a relatively short period of non-use may be
sufficient to give rise to the necessary inference; under other
circumstances a relatively long period may be insufficient.
The duration of the period of nonuse, though never
conclusive as to the intention to abandon, is ordinarily
admissible for the purpose of showing intention in that
regard.

(Emphasis added.)

¶13 As these Restatement comments and our reliance upon them in
Spencer2 indicate, Bohm’s comment that he had “no intention of ever building a
roadway on the easement,” by itself, would be insufficient to constitute
abandonment. Nor does the fact that the easement area never has been utilized as a
roadway, by itself, conclusively show abandonment. These facts, however, could
“giv[e] meaning” to Bohm’s act of planting sixty-one “new trees in the middle of
the easement corridor,” including “a grove of fruit trees, dozens of cedars, other
conifers, and a redwood tree.” See RESTATEMENT OF THE LAW OF PROPERTY, § 504

2
Our supreme court first relied upon these Restatement comments in Burkman v. City of
New Lisbon, 246 Wis. 547, 556, 18 N.W.2d 4 (1945).

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No. 2019AP728

cmt. (c) (AM. LAW INST. 1944). In particular, Bohm’s substantial planting is at least
“susceptible of being interpreted as indicating an intention to give up the use
authorized by [the] easement,” i.e., the construction and maintenance of a roadway
for ingress and egress.3 While the planting of trees alone may or may not
“conclusively demonstrate” an intention to permanently abandon the easement,
when coupled with the forty-year period of nondevelopment of a roadway, including
the nearly seventeen years of nondevelopment following the Bohms’ purchase of
the property, and Bohm’s “no intention” comment, there is a question of fact as to

3
In that regard, this case is distinguishable from Spencer, which found no abandonment
despite a significant period of nonuse and acquiescence by the easement holder in the property
owner’s use of the property in a manner that was inconsistent with the use permitted by the
easement. Spencer, 301 Wis. 2d 521, ¶¶9-10. We noted the requirement that there be an
“affirmative act” by the easement holder, rather than the property owner, to show abandonment.
Id., ¶10 (“The affirmative act required to demonstrate an intent to abandon must be that of the
easement holder.”). As discussed above, and unlike Spencer, here there is evidence of an
“affirmative act” by the Bohms sufficient to raise an issue of fact on abandonment.

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No. 2019AP728

whether the easement was abandoned.4 We reverse and remand for a trial on this
issue.5

Scope of the Easement

¶14 The Leibers contend that even if the easement is valid, the driveway
the Bohms plan to construct “would not qualify as a permitted use because a private
driveway is not the same as a ‘roadway.’” The Leibers read the easement too
restrictively.

The Leibers also assert that even if the easement remains valid, because of Bohm’s
4

planting of the trees and his “no intention” comment to Leiber, purportedly made prior to the
Leibers’ purchase of their property, the Bohms should be equitably estopped from exercising their
easement rights. We do not address this assertion for two reasons. First, the Leibers fail to develop
an argument based on case law in support of estoppel. Instead, they cite to two Restatement
provisions, with no indication they have been adopted by a Wisconsin court and without even
developing an argument for their adoption. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992) (holding that “[w]e may decline to review issues inadequately
briefed”). Second, “estoppel” is an affirmative defense enumerated in WIS. STAT. § 802.02(3) that
needed to be set forth in the Leibers’ answer to the Bohms’ complaint. See Maple Grove Country
Club Inc. v. Maple Grove Estates Sanitary Dist., 2019 WI 43, ¶¶44-45, 386 Wis. 2d 425, 926
N.W.2d 184 (holding that affirmative defenses, other than those enumerated in WIS. STAT.
§ 802.06(2)(a) (which are not applicable here), “must be raised in a responsive pleading.”(emphasis
added)). Because the Leibers failed to raise their estoppel defense in their answer, they have waived
it. See Maple Grove, 386 Wis. 2d 425, ¶56 (holding that where an affirmative defense is not set
forth in an answer and the answer has not been amended to include it, the defense “is deemed
waived”).
5
WISCONSIN STAT. § 893.33(6) provides:

Actions to enforce easements, or covenants restricting the use
of real estate, set forth in any recorded instrument shall not be
barred by this section for a period of 40 years after the date of
recording such instrument, and the timely recording of an
instrument expressly referring to the easements or covenants or of
notices pursuant to this section shall extend such time for 40-year
periods from the recording.

No party has suggested that this provision has any impact upon this case; therefore, we do not
consider it.

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No. 2019AP728

¶15 The meaning and scope of an easement is a question of law we review
de novo. Hunter v. Keys, 229 Wis. 2d 710, 715, 600 N.W.2d 269 (Ct. App. 1999).

¶16 While the “dominant estate [here, the Bohms’ property] cannot be
enlarged” by a proposed easement use and such use may not “contravene[ ] the
express terms of the easement,” Grygiel v. Monches Fish & Game Club, Inc., 2010
WI 93, ¶¶16, 19, 33-35, 328 Wis. 2d 436, 787 N.W.2d 6, “[t]he owner of an
easement may make changes in the easement for the purpose specified in the grant
as long as the changes are reasonably related to the easement holder’s right and do
not unreasonably burden the servient estate,” Hunter, 229 Wis. 2d at 715. “[T]he
test is whether the owner of the dominant estate can reasonably use the property as
intended…. [T]he easement must be interpreted so as to accomplish its purpose
bearing in mind the reasonable convenience of both parties.” Atkinson v. Mentzel,
211 Wis. 2d 628, 645-46, 566 N.W.2d 158 (Ct. App. 1997).

¶17 While the Leibers quibble about whether a sixteen-foot-wide
driveway technically constitutes a “roadway,” and go even further in contending the
only acceptable construction on the easement would be a full sixty-six-foot-wide
“street,” there can be no reasonable dispute that the purpose of this easement is to
afford the easement holder a means of vehicular access at this particular location to
the western portion of the Bohms’ property. As the circuit court noted, “the deed
easement is simply allowing access to and from Newman Road along a specific
geographic route for the sole purpose of ingress and egress…. [T]he sole purpose
of the easement was and is to allow ingress and egress.”

¶18 Here, the Bohms’ proposed means of ingress and egress, the
driveway, does not “contravene[]” the terms of the easement, see Grygiel, 328
Wis. 2d 436, ¶¶19, 33-35, but rather is “reasonably related to the easement holder’s

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No. 2019AP728

right,” see Hunter, 229 Wis. 2d at 715. Furthermore, far from enlarging the Bohms’
property or unreasonably burdening the Leibers’ property, the Bohms’ proposed
sixteen-foot-wide driveway would utilize far less of the easement area and place far
less burden on the Leibers’ property than would a sixty-six-foot-wide roadway. As
the circuit court stated:

[T]he [Bohms’] proposed access route actually preserves a
50-foot strip of land for use by the [Leibers]. While it is true
that the easement allows for construction and maintenance
of a 66-foot wide path by the [Bohms], construction of a 16-
foot wide path is not contrary to the right granted by the
easement. If such a restriction were contemplated, the
language of the deeded easement fails in that regard. This
Court reads the easement to allow the construction and
maintenance of access within the geographical corridor of
the easement up to and inclusive of a 66-foot wide access
route. Nothing prevents construction of a route less wide
than 66 feet.

While it appears the easement, if it is still valid, may be wide enough to
accommodate a city street,6 we agree that nothing in the easement language suggests
that sixty-six feet is not only the maximum width of the easement but also the only
acceptable width for a roadway.

¶19 The easement allows for the construction and maintenance of an
access route affording a means of vehicular ingress and egress at this particular
location to the western portion of the Bohms’ property, a route that could be up to
sixty-six-feet wide but not exceed that. The Bohms’ proposed driveway is
consistent with this purpose. Thus, if upon remand it is found that the easement was
not abandoned, the Bohms’ proposed driveway is permissible.

6
See Village of Mount Pleasant Ordinance §§ 70-41(1), 74-190 (providing that “[a]ll
proposed streets ... shall conform to the minimum right-of-way width as specified by Chapter 70
of this Code” and “the minimum right-of-way for a local street shall be 66 feet”).

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No. 2019AP728

By the Court.—Order affirmed in part; reversed in part and cause
remanded.

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