Tina Trahan v. Albert J. Hinton

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.
June 23, 2021
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. 2020AP35 Cir. Ct. No. 2018CV332

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

TINA TRAHAN,

PLAINTIFF-APPELLANT-CROSS-RESPONDENT,

STONE MANOR CONDOMINIUM ASSOCIATION, INC.,

PLAINTIFF-CO-APPELLANT-CROSS-RESPONDENT,

V.

ALBERT J. HINTON, AS TRUSTEE OF THE ALBERT J. HINTON &
GERALDINE L. HINTON JOINT REVOCABLE TRUST DATED AUGUST 24,
1998 AND GERALDINE HINTON, AS TRUSTEE OF THE ALBERT J.
HINTON & GERALDINE L. HINTON JOINT REVOCABLE TRUST DATED
AUGUST 24, 1998,

DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS.

APPEAL and CROSS-APPEAL from a judgment of the circuit court
for Walworth County: DANIEL STEVEN JOHNSON, Judge. Affirmed.
No. 2020AP35

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

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. This action involves the interpretation of a ten-foot
lake easement (the easement) granted to Albert Hinton in 1973. Tina Trahan, a
current owner of the servient estate, and Stone Manor Condominium Association,
Inc. argue that, as a matter of law, a pier is not allowed under the easement.1
Stone Manor challenges the trial court’s finding on partial summary judgment that
the easement implicitly allowed for some sort of pier. The court held that a
material question of fact existed as to whether the Hintons’ pier complied with the
terms of the easement. Following a four-day trial, the jury found that the Hintons’
pier was reasonable and that the Hintons had not committed a trespass or a
nuisance in the use of the easement. Stone Manor appeals from the final judgment
in favor of the Hintons. The Hintons cross-appeal the court’s denial of their claim
preclusion and prescriptive easement arguments.

1
Trahan owns six of the seven condominium units in a converted historic house located
along the shores of Lake Geneva. Stone Manor owns the common elements surrounding the
condominium. We will refer to the Plaintiffs-Appellants-Cross-Respondents as “Stone Manor.”
Albert and Geraldine Hinton own property near Stone Manor, and prior to the creation of the
easement, the Hintons were co-owners with others in Geraldine Hinton’s family—the Kurlands.
We will refer to the Hintons and the Kurlands collectively and individually as “the Hintons.”

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¶2 We affirm. Prior to April 9, 1994, Wisconsin recognized the ability
of a riparian landowner2 to convey riparian rights by easement.3 Konneker v.
Romano, 2010 WI 65, ¶27, 326 Wis. 2d 268, 785 N.W.2d 432. A landowner’s
riparian rights include the right to construct a pier. Id. As will be shown below,
the Hintons’ pre-1994 easement, while being silent as to whether a pier was
allowed, did convey riparian rights to the Hintons, including the right (subject to
Department of Natural Resources (DNR) regulations and express terms of the

2
“‘Riparian’ means ‘[o]f, relating to, or located on the bank of a river or stream (or
occasionally another body of water, such as a lake).’” Konneker v. Romano, 2010 WI 65, ¶5 n.5,
326 Wis. 2d 268, 785 N.W.2d 432 (alternation in original) (citing Riparian, BLACK’S LAW
DICTIONARY (7th ed. 1999)). “In the legal sense, a landowner whose property borders on a body
of water has ‘riparian rights,’ meaning ‘the right to make reasonable use of the water.’” Id.

3
In Stoesser v. Shore Drive Partnership, 172 Wis. 2d 660, 494 N.W.2d 204 (1993),
superseded by statute, WIS. STAT. § 30.133 (2019-20), as recognized in ABKA Partnership v.
DNR, 2002 WI 106, ¶60, 255 Wis. 2d 486, 648 N.W.2d 854, our supreme court explained:

Riparian rights are well defined in Wisconsin law. They
include: the right to reasonable use of the waters for domestic,
agricultural and recreational purposes; the right to use the
shoreline and have access to the waters; the right to any lands
formed by accretion or reliction; the right to have water flow to
the land without artificial obstruction; the limited right to intrude
upon the lake bed to construct devices for protection from
erosion; and the right now conditioned by statute, to construct a
pier or similar structures in aid of navigation.

Stoesser, 172 Wis. 2d at 666 n.2 (citing Cassidy v. DNR, 132 Wis. 2d 153, 159, 390 N.W.2d 81
(Ct. App. 1986)). All references to the Wisconsin Statutes are to the 2019-20 version unless
otherwise noted.

“Beginning on April 9, 1994, … no owner of riparian land that abuts a navigable water
may grant by an easement or by a similar conveyance any riparian right in the land to another
person, except for the right to cross the land in order to have access to the navigable water.” WIS.
STAT. § 30.133(1). Additionally, the “right to cross the land may not include the right to place
any structure … in the navigable water.” Id. Section 30.133 was the legislative response to
Stoesser, which held that riparian rights can be conveyed by easement to nonriparian landowners.
Konneker, 326 Wis. 2d 268, ¶36; ABKA P’ship, 255 Wis. 2d 486, ¶60; but see WIS. STAT.
§ 30.131.

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easement) to place a pier in the lake bed. As the Hintons had riparian rights to
place a pier, the only question was one of fact for the jury: was the Hintons’ pier
reasonable given the express terms of the easement? The evidence presented at
trial was sufficient to support the jury’s verdict.

Facts

¶3 On September 10, 1973, the Hintons conveyed by warranty deed a
parcel of land that they owned, adjacent to Stone Manor, to Stone Manor’s
predecessors in interest. It is further undisputed that within that conveyance the
Hintons reserved to themselves and their heirs and assigns a ten-foot easement
over the property:

Excepting and reserving from the above described real
estate to the Grantors and each of them and each of his or
her heirs and assigns a permanent easement upon the South
ten (10) feet of said above described real estate or, if said
South ten (10) feet is not passable then such 10 foot
easement may be used at any point in the above described
real estate, such easement to be used for passage of
vehicles and persons on and across said real estate to the
shore of Lake Geneva, said easement to be appurtenant to
the Grantors’ real estate located on the East side of Willow
Street across from the above described parcel being sold;
Grantor Hinton, his heirs and assigns, also retains the right
to maintain either an existing boat buoy in the lake in front
of the above described easement or a boat lift station on the
shore of Lake Geneva at lake end of easement and to store
a small row boat on the shore of Lake Geneva at the lake
end of said easement; Grantors and each of them, their
heirs and assigns, shall also have the right to park not more
than two vehicles at the same time on said easement;
provided that use of said easement or rights shall not
interfere with Grantee’s driveway or parking lot on the land
above described.

The above easement herein reserved with all of its
provisions shall run with the land and shall inure to the
benefit and use of each of the above named Grantors as the
owners of contiguous land lying on the East side of Willow
Street, their heirs and assigns.

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(Emphasis added.)

¶4 Stone Manor brought suit against the Hintons in 2018. Stone Manor
sought judgment declaring the easement unenforceable, an injunction, and
judgment on its nuisance and trespass claims. The Hintons counterclaimed for a
declaration of an express easement, or in the alternative, a prescriptive easement.
The parties filed cross-motions for summary judgment. After a hearing, the trial
court granted partial summary judgment to the Hintons, denying the motion to the
extent that it sought dismissal of Stone Manor’s claims, but declaring that the
“[e]asement provides the Hintons with the right to place and maintain a pier to get
from the shore of Geneva Lake to their boat lift station.” 4 The court determined
that there was an issue of fact as to whether the current pier was reasonable under
the easement. After a trial, the jury found in favor of the Hintons on all issues, and
the court entered judgment.

Standard of Review

¶5 The question presented in this appeal requires us to review a
decision on summary judgment and the interpretation of a deed of easement.
Whether the trial court properly granted partial summary judgment is a question of
law that this court reviews de novo, and we apply the same methodology used by

4
The trial court held a second summary judgment hearing on two additional issues: the
prescriptive easement counterclaim and the Hintons’ claim preclusion argument. The Hintons
filed a motion for summary judgment on the issue of claim preclusion, arguing that the
predecessor in interest to Stone Manor filed a lawsuit in 1982 seeking an injunction requiring the
Hintons to remove the pier and restraining them from maintaining a pier on the property. The
Hintons asserted the 1973 easement as an affirmative defense and argued that the Hintons “had
maintained a ‘walkway’ to his boat lift off the Easement for ten years prior to the 1982 Action.”
The court dismissed the 1982 action with prejudice for failure of the plaintiffs to appear at trial.
There was a delay in alerting the court to the claim preclusion issue, as the Hintons allegedly
forgot about the 1982 action. The court denied summary judgment on both issues.

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the trial court. Konneker, 326 Wis. 2d 268, ¶22; see also WIS. STAT. § 802.08.
“Summary judgment is appropriate only where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Konneker, 326 Wis. 2d 268, ¶22 (citation omitted).

¶6 Whether a deed is ambiguous is a question of law that we review
independently, and if ambiguous, then the intent behind the language presents a
question of fact. Id., ¶23. The construction of an unambiguous deed is a question
of law. Id.

Discussion

¶7 “An easement grants a right to use another’s land.” Garza v.
American Transmission Co., 2017 WI 35, ¶23, 374 Wis. 2d 555, 893 N.W.2d 1
(citing Konneker, 326 Wis. 2d 268, ¶25). The “dominant estate” (the Hintons)
enjoys those privileges granted pursuant to the easement, and the “servient estate”
(Stone Manor) permits the exercise of those privileges. See id. “While the
servient estate may not unreasonably interfere with the dominant estate’s right to
use the easement, ‘[t]he use of the easement must be in accordance with and
confined to the terms and purposes of the grant.’” Konneker, 326 Wis. 2d 268,
¶25 (alteration in original) (quoting Stoesser v. Shore Drive P’ship, 172 Wis. 2d
660, 668, 494 N.W.2d 204 (1993)); Hunter v. McDonald, 78 Wis. 2d 338, 343,
254 N.W.2d 282 (1977).

¶8 As the Hintons’ easement was created by deed, we look to that
instrument in construing the relative rights of the landowners. Konneker, 326
Wis. 2d 268, ¶26. “‘Deeds are construed as are other instruments’; accordingly,
‘the purpose of the court is to ascertain the intention of the parties.’” Id. (quoting
Rikkers v. Ryan, 76 Wis. 2d 185, 188, 251 N.W.2d 25 (1977)). The information

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No. 2020AP35

contained in the four corners of the deed serve as the primary source to discern the
parties’ intent. Id. “If the language is unambiguous, it would be improper to
resort to extrinsic evidence to ascertain the parties’ intent.” Id. Conversely, if the
deed is ambiguous, meaning that it is susceptible to more than one reasonable
interpretation, then we may look to extrinsic evidence to ascertain the parties’
intent. Id.

¶9 In Konneker, the issue was whether a “lakefront easement, created
by a deed that is otherwise silent as to the easement’s use and purpose, grants
riparian rights, including the right to construct and maintain a pier.” Id., ¶¶2, 27.
As our supreme court stated in Konneker, “one of” “the riparian rights,” that could
be conveyed to nonriparian owners prior to 1994, was the right to place a pier. Id.,
¶27. However, the court made clear that the conveyance of riparian rights does
not “inherently” allow for construction of a pier—rather, the question is whether
the conveyance of riparian rights includes the right to construct and maintain a
pier, which depends on the terms and purposes of the easement. Id., ¶27 nn.9, 11.

¶10 In Konneker, the court found the deed ambiguous, as the easement
language was “otherwise silent as to the easement’s use and purpose”: “In
particular, it is not clear from the deed whether the parties intended the easement
holder to have riparian rights, including the right to construct and maintain a pier.
Accordingly, the deed is ambiguous, and the court must resort to extrinsic
evidence to ascertain the parties’ intent.” Id., ¶¶5-6, 30. The court concluded that
summary judgment was not a proper remedy to either the dominant or servient
estate, as genuine issues of material fact existed as to whether the parties creating
the deed intended the easement holder to have riparian rights, including the ability
to have a pier. Id., ¶¶32-33.

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¶11 In the case before us, unlike in Konneker, the language of the
easement is clear that the Hintons were granted riparian rights, and that the
purpose was to use the lake shore for access to the lake and for boating. We, like
the trial court, conclude that the Hintons’ deed is unambiguous; thus, we look to
the four corners of the deed. The deed clearly grants the Hintons some riparian
rights, as the deed grants the Hintons access to Geneva Lake (“passage of vehicles
and persons on and across said real estate to the shore of Lake Geneva”) as well as
the “right to maintain either an existing boat buoy in the lake in front of the above
described easement or a boat lift station” in the lake bed. Thus, as the trial court
found, the plain language indicates that the purpose of the easement was to
provide access to Geneva Lake for boating. The 1973 easement thus provides the
riparian right to place a pier. See Stroesser, 172 Wis. 2d at 668, 670 (the deed
expressly providing the right “to use the lake shore for bathing, boating or kindred
purposes” granted riparian rights to access the lake from the lake shore).

¶12 While the above analysis is dispositive, we further reject Stone
Manor’s argument that the easement’s explicit reference to a row boat and boat lift
effectively eliminates access via a pier. “We have long recognized that, implied in
every easement, unless otherwise stated, is the right of the dominant estate to do
what is reasonably necessary to enjoy the easement.” Garza, 374
Wis. 2d 555, ¶29. The court in Garza explained,

[T]he holder of an easement … is entitled to use the
servient estate in a manner that is reasonably necessary for
the convenient enjoyment of the servitude. The manner,
frequency, and intensity of the use may change over time to
take advantage of developments in technology and to
accommodate normal development of the dominant estate
or enterprise benefited by the servitude.

Id. (citation omitted).

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¶13 Beyond the easement’s grant of riparian rights that include the right
to construct and maintain a pier, the pier placed by the Hintons was “reasonably
necessary” to enjoy the easement under its plain terms. As the Hintons argue on
appeal, “[b]y arguing that the Easement allows no pier at all, Stone Manor is
saying that the Easement contemplates that the Hintons will wade into Geneva
Lake to get to their boat lift, lower their boat, and clamber over the sides of the
boat from the water. This is not a plausible interpretation of the Easement.” We
agree.5 By example, in Hunter v. Keys, 229 Wis. 2d 710, 712, 600 N.W.2d 269
(Ct. App. 1999), we concluded that “the grant of an access and egress easement
necessarily implies the right to create and maintain a suitable access way.”
Despite a lack of language allowing the holder of the easement to fill in wetlands
or pave a road, we found these actions reasonably necessary to accomplish the
purpose of the easement. Id. at 715-17; see also Garza, 374 Wis. 2d 555, ¶¶39-40
(despite explicit contradictory language in easement calling for “wood pole
structures,” court concluded that allowing other materials like steel was consistent
with the easement’s purpose). The pier was reasonably necessary to enjoy the
purpose of the easement.

¶14 Stone Manor separately argues that the court erroneously exercised
its discretion when it prevented an expert from testifying that “a pier is not
necessary for use of the 1973 Easement.” We review a trial court’s decision to
exclude expert testimony under the erroneous exercise of discretion standard.

5
Stone Manor acknowledges that the boat lift must be in the water to be used.
Nevertheless, they contend the Hintons could also use a row boat to get to their boat lift,
contemplating that, instead of wading in the water, the Hintons could climb from one boat to
another, including transporting gear and supplies. We find this interpretation to be equally
implausible, as doing so would not only be difficult, particularly for those who are elderly or less
agile, but would also be, at times, unwieldy and unsafe.

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Seifert v. Balink, 2017 WI 2, ¶93, 372 Wis. 2d 525, 888 N.W.2d 816. We need
not fully analyze this argument given our conclusions above. The only issue for
the jury was whether the pier placed by the Hintons was reasonable given the
language of the easement. The parties presented evidence as to the reasonableness
of the Hintons’ pier. Stone Manor’s expert’s opinion that “a pier is not necessary
for use of the 1973 Easement” was not the question before the jury, and therefore
the court did not erroneously exercise its discretion in excluding that opinion. 6
(Emphasis added.)

¶15 Finally, Stone Manor appeals from the trial court’s denial of its
motions after verdict pursuant to WIS. STAT. § 805.14(5)(c). Stone Manor argues
that the jury’s answers to Questions No. 1 and 3 should have been changed from
“no” to “yes,” as “the jury’s answers ignored what was undisputed evidence and
despite what should have been a ruling on a point of law.”7 “When considering a
motion to change the jury’s answers to verdict questions, we view the evidence in
the light most favorable to the verdict and affirm the verdict if it is supported by
any credible evidence.” Kubichek v. Kotecki, 2011 WI App 32, ¶14, 332 Wis. 2d

6
The trial court also made clear that it questioned the expert’s conclusions as they
contained “no explanation” as to why the Hintons did not need a pier. We see no error in the
court’s exercise of discretion.
7
Question No. 1 asked, “Have the Hintons violated the Easement by placing,
maintaining and using a boat lift and pier that are wider than the Hintons’ riparian zone?”
Question No. 3 asked, “Have the Hintons violated the Easement by placing their pier into Geneva
Lake and attaching their boat lift in its current placement?” The jury answered both of these
questions in the negative.

To the extent that Stone Manor is arguing that the questions should have never gone to
the jury, as they involved a question of law, we note that the record indicates that Stone Manor
never objected to these special verdict questions; in fact, they requested them. Failure to object at
the jury instruction or verdict conference stage “constitutes a waiver of any error in the proposed
instructions or verdict.” WIS. STAT. § 805.13(3). As Stone Manor’s arguments also focus on the
sufficiency of the evidence, we will address its arguments.

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522, 796 N.W.2d 858; see also WIS. STAT. § 805.14(1). “The standard of review
is even more stringent where, as here, the [trial] court upheld the jury’s findings on
motions after verdict.” Kubichek, 332 Wis. 2d 522, ¶14. We will uphold the
jury’s verdict absent “a complete failure of proof that the verdict must be based on
speculation.” Id. (quoting Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723
(1979)).

¶16 As addressed above, given the conclusion that the Hintons were
within their rights to construct a pier, the question before the jury was whether the
pier, as constructed, was consistent with the language of the easement. We
conclude that the jury’s verdict was supported by credible evidence. Jeff Reed,
owner of Reed Construction, a company that does work building, placing, and
repairing piers and rock sea walls on Geneva Lake, testified at trial. He explained
that he had worked on a previous version of the Hintons’ pier decades earlier in
the 1980s when he was in his teens. According to Reed and based on his
experience in the industry, the current location of the Hintons’ boat lift, and thus
implicitly the attached pier, is reasonable for use of their boat, given water levels
and fluctuations. Reed further testified that in his opinion, the Hintons’ pier does
not “interfere[] with the riparian rights of any other riparian owners,” including
Stone Manor, and that he had no “problems” maneuvering “big barges” between
the Hintons’ pier and Stone Manor’s pier to do his work each year. See Garza,
374 Wis. 2d 555, ¶29 (“Unless authorized by the terms of the servitude, the holder
is not entitled to cause unreasonable damage to the servient estate or interfere
unreasonably with its enjoyment.” (citation omitted)). Accordingly, there was
some evidence from which the jury could conclude that the current placement of
the pier was reasonable and not a violation of the terms of the easement.

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¶17 Specifically, Stone Manor takes issue with the “riparian zone”
language in Question No. 1, explaining that the expert witness testified as to the
size of the riparian zone based on WIS. ADMIN. CODE § NR 326.07(2), which he
found to be no wider than the ten-foot width of the easement.8 Stone Manor
suggests that the expert’s testimony was uncontroverted. As the trial court
recognized, the language of the easement does not include any discussion of a
“riparian zone.” Further, Stone Manor did not present any credible evidence that
the parties intended to incorporate a riparian zone within the terms of the
easement, nor has Stone Manor cited any legal authority for the conclusion that the
easement limits the water access to a certain riparian zone. As the Hintons had
riparian rights and the easement itself did not expressly prohibit the pier, then the
issue of the placement and size of the pier is under DNR control.9

¶18 There was contradictory evidence presented at trial in this case, and
the jury was within its right to accept or disregard a witness’s testimony. See
Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 389-90, 541 N.W.2d 753
(1995) (“When there is any credible evidence to support a jury’s verdict, ‘even
though it be contradicted and the contradictory evidence be stronger and more
convincing, nevertheless the verdict … must stand.’” (citation omitted)); Brogan

8
The present pier extends “65 feet into Geneva Lake.” While the Hintons state it is “12
feet wide,” we note that the photos show a much narrower pier at the shoreline, but with the boat
lift at its side, the width appears to be twelve feet at the end of the pier.
9
“[WISCONSIN STAT. ch.] 30 embodies a system of regulation of Wisconsin’s navigable
waters pursuant to the public trust doctrine.” ABKA P’ship, 255 Wis. 2d 486, ¶11. “Regulation
and enforcement of this public trust rests with both the legislature and the DNR.” Id., ¶12; see
also WIS. ADMIN. CODE § NR 326.07 (indicating “the department shall” utilize the proscribed
methods “to determine whether a pier or boat shelter interferes with the right of an adjacent
riparian”). Thus, the DNR and the legislature decide if one’s use of riparian rights violate a
riparian owner’s rights.

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v. Industrial Cas. Ins. Co., 132 Wis. 2d 229, 239, 392 N.W.2d 439 (Ct. App.
1986) (“When the parties offer conflicting testimony by qualified experts, the
issue becomes one of weight of the testimony and credibility of the witnesses,
which is within the province of the jury. The jury may accept or disregard expert
testimony.” (citation omitted)). The jury finding can be summarized in its
negative answer to Question No. 3 of the special verdict, which asked: “Have the
Hintons violated the Easement by placing their pier into Geneva Lake and
attaching their boat lift in its current placement?” We see no error in the court’s
failure to grant Stone Manor’s motions after verdict.

¶19 In this case, the installation and use of a pier to access the boat lift is
directly related to the purpose for which the easement was created: access to the
lake for boating. As the court was correct that a pier was contemplated by the
terms and purposes of the easement and as sufficient evidence supports the jury’s
verdict as to the reasonableness of the pier, we affirm.

Cross-Appeal

¶20 The Hintons cross-appeal in the alternative, claiming that Stone
Manor’s action was subject to claim preclusion and that they have a prescriptive
easement for the pier. The court disagreed, concluding that claim preclusion did
not apply and that the Hintons’ assertion of a prescriptive easement failed as a
matter of law. The Hintons note in their brief that as their cross-appeal is “in the
alternative,” if we affirm the judgment on the jury’s verdict “there will be no need
to address the cross-appeal issues.” We need not reach the cross-appeal. As we
affirm the judgment in favor of the Hintons, a determination on the Hintons’
alternative arguments will have no bearing on the issues in the case. Only

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dispositive issues need be addressed. See Lake Delavan Prop. Co., LLC v. City of
Delavan, 2014 WI App 35, ¶14, 353 Wis. 2d 173, 844 N.W.2d 632.

¶21 No costs to either party.

By the Court.—Judgment affirmed.

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

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