Arvo Eilau v. Dennis Roff

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.
October 25, 2022
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. 2021AP396 Cir. Ct. No. 2019CV17

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

ARVO EILAU AND JOYCE DZIK,

PLAINTIFFS-RESPONDENTS,

V.

DENNIS ROFF,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Florence County:
LEON D. STENZ, Judge. Affirmed in part and reversed in part.

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

¶1 GILL, J. Dennis Roff appeals from an order declaring as ambiguous
an easement for ingress and egress over his property to permit Arvo Eilau and
Joyce Dzik (collectively, “Eilau”) access to an island they own that is located
offshore from Roff’s property. In addition to challenging the circuit court’s
No. 2021AP396

conclusion regarding ambiguity, Roff argues that the court made clearly erroneous
factual findings surrounding the historical use of the easement when it ruled that the
intent of the easement was to allow the owners of an island to drive vehicles across
the entirety of his property to a boat dock and to park for an unspecified period of
time. Roff further argues the court erred by ordering that Eilau can install gravel on
the easement.

¶2 We agree with Roff that the easement is unambiguous. We further
conclude that the text of the easement provides for Eilau’s vehicular traffic across
Roff’s property to the boat dock. It does not, however, permit parking at the boat
dock. Applying general easement principles, we also conclude that the easement
permits Eilau to turn vehicles around at the boat dock, and that Eilau is responsible
for part of the easement’s maintenance, but that Eilau cannot install gravel on the
easement without unreasonably burdening Roff. Accordingly, we affirm in part and
reverse in part.

BACKGROUND

¶3 Eagle Island, a true island, sits roughly between Bass Lake and
Middle Lake, two lakes on the Spread Eagle Chain of Lakes. To the east of Eagle
Island is a shoreline and then a public road. The road, Carpenter Road, runs largely
parallel to the north and south of Bass Lake and Middle Lake. Running north
between the shoreline and Carpenter Road are six lots of land—Lots 49 through 54.

¶4 Long before the dispute in this case, Robert Hubbard owned at least
five relevant parcels of land—Eagle Island and Lots 49, 50, 51, and 52. In 1955,
Hubbard conveyed Eagle Island by warranty deed (the 1955 Deed) to individuals
who are not parties to this case. The 1955 Deed contained the following language
creating an easement (“Easement”) over Lot 49:

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Also, hereby granting to the said second parties, their heirs
or assigns, an easement for ingress and egress to and from
the above described Eagle Island over any road now situated
on lot Forty-nine (49) of Point Patten Plat, Spread Eagle, or
over any road hereafter constructed on said lot Forty-nine
(49); reserving however, to the said first parties, their heirs
or assigns, the right ay [sic] any time hereafter, or from time
to time, to change the location of any road of said lot Forty-
nine (49); and also granting to the said second parties, their
heirs or assigns, the right to construct a boat dock or landing
of said lot forty-nine (49) at a location approved by the said
first parties, their heirs or assigns, and the right to use the
same for landing boats and for ingress an egress to and from
the said Eagle Island above described.

¶5 It is undisputed that the Easement runs from Carpenter Road, over
Lot 49, to Bass Lake. It consists of a dirt “roadway” 1 that starts at Carpenter Road
on Lot 49 and ends roughly 100 feet from Bass Lake, near a cottage (“Birch
Cottage”).2 At the end of the roadway are two posts with a removable, sliding pipe
between them (“Barrier”). Beyond the Barrier, the Easement consists of a “lawn”3
until it reaches Bass Lake, at which point there is a boat dock. There are also a small
number of parking spaces next to Birch Cottage.

¶6 Of relevance to this appeal, in 1978, Lots 49, 50, 51, and 52 were
conveyed by warranty deed to Roff’s corporation, Green Bay Entertainment Center,

1
At the circuit court level, the “roadway” was also referred to as, among other things, a
“driveway” and a “road.” For consistency, unless referencing the record, we will refer to it as a
“roadway,” but we do not attach any legal meaning to the description by doing so.
2
Birch Cottage is a vacation rental cabin. Surrounding Birch Cottage are three smaller
rental cabins. Hence, Birch Cottage was often referred to as the “big cabin” or the “big cottage”
during the trial. Since 1978, Roff has operated a cottage rental business on Lot 49.
3
The circuit court characterized the area as a “lawn,” and we will refer to it as the same.

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Inc. The lots were eventually conveyed to Roff himself in 1988. In 2015, Eagle
Island and parts of Lots 53 and 54 were conveyed by trustee’s deed4 to Eilau.

¶7 The current dispute began shortly after Eilau purchased Eagle Island
and parts of Lots 53 and 54. Following Eilau driving vehicles beyond the Barrier
and temporarily parking them on the lawn, Eilau claimed that Roff responded by
intentionally “placing large objects across the Easement” and by “harassing and
accosting [Eilau] about [using] … the Easement, and not allowing [Eilau] to use the
full length of the Easement.” Eilau filed the present action against Roff in 2019.
Eilau sought declaratory relief setting forth the parties’ rights and obligations with
respect to the Easement, as well as injunctive relief requiring Roff to cease
interfering with Eilau’s use of the Easement, including Eilau’s right to “drive on”
and “park vehicles” on the Easement. Roff responded by arguing, among other
things, that the Easement is unambiguous as to its terms. Roff therefore sought
relief “declaring that [Eilau’s] use of the [E]asement is limited to the unambiguous
purposes set forth therein.”

4
The 2015 trustee’s deed did not contain the entire language concerning the Easement
from the 1955 Deed. Instead, it provided: “Also an easement for ingress and egress to and from
the above described Eagle Island over any road now situated on Lot 49….” It also stated that the
2015 trustee’s deed was:

subject to, conditioned upon and limited by … [t]he location,
nature and extent of use by Grantees and others of the easement
pertaining to [Eagle Island] and obligations concerning
maintenance thereof or any loss, damage or liability resulting from
the existing road(s) traversing lands not a part of said easement,
as evidenced [by the 1955 Deed].

It appears that, on appeal, both parties agree that the current Easement over Lot 49 for ingress and
egress to Eagle Island is controlled by the language in the 1955 Deed. To the extent the parties do
not agree on the controlling language, both parties abandoned any argument to the contrary by not
raising it on 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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¶8 The case eventually proceeded to a bench trial. Prior to the start of
the trial testimony, the circuit court visited the Easement with the parties.
Afterward, the parties testified themselves and called their respective witnesses.

¶9 The circuit court ultimately determined that the Easement was
ambiguous. After making factual findings regarding the Easement’s historical use,
the court orally concluded that Eilau is not “responsible for maintaining the
driveway as it is now from [Carpenter R]oad to [Birch Cottage]…. You wanted a
maintenance type of agreement. I don’t know if I need to do that. Um, apparently,
Mr. Roff is responsible for the maintenance of that. It is for his property.” Further,
the court stated that any maintenance for the portion of the Easement beyond the
Barrier “may be the responsibility of [Eilau].”

¶10 Thereafter, the circuit court issued a written ruling, stating that Eilau

shall have the right to maintain and improve the existing
Lot 49 [E]asement road and dock, or any newly constructed
road designated by Roff, including installation of gravel and
removing obstructions which in any way impair their
peaceful, lawful, broad legal use of the [E]asement road.

….

[Eilau] shall have the right to leave vehicles on the
[E]asement while they are at the island. [Eilau] shall have
the right to park on the easement, turn vehicles, and drive
from Carpenter Road to the dock. [Eilau] shall have the right
to park a reasonable number of vehicles on the Lot 49
[E]asement road at the dock in a manner that such use does
not impose an undue burden on the servient estate.

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The written order also stated that Eilau may install gravel all the way to the boat
dock. Roff now appeals.5

DISCUSSION

¶11 This case calls upon us to interpret a deed of easement6 to determine
if an easement is ambiguous, which is a question of law that we review de novo.
See Konneker v. Romano, 2010 WI 65, ¶23, 326 Wis. 2d 268, 785 N.W.2d 432.
“However, if the language of [a] deed is ambiguous, then the intent behind the
language presents a question of fact.” Id.; see also WIS. STAT. § 805.17(2)
(2019-20)7 (“Findings of fact shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the credibility of
the witnesses.”).

¶12 In addition to governance by granting documents, express easements
are also governed by principles that apply to all easements unless the principles
“conflict with the express terms” in the granting document. See Grygiel v. Monches
Fish & Game Club, Inc., 2010 WI 93, ¶18, 328 Wis. 2d 436, 787 N.W.2d 6 (citing

We note that Roff challenges only the circuit court’s rulings that: (1) the Easement is
5

ambiguous; (2) Eilau can travel by vehicle all the way to Bass Lake; (3) Eilau can park vehicles on
the Easement; and (4) Eilau can install gravel all the way to the boat dock.

Roff does not challenge the circuit court’s other rulings, including that: (1) Roff is
responsible for the maintenance of the Easement from Carpenter Road to the Barrier; and (2) Eilau
can remove Roff’s pipe Barrier if it is unreasonably interfering with the use of the Easement.
Accordingly, we do not address those rulings.
6
“A deed of easement is a document that contains the terms of a written easement.” Garza
v. American Transmission Co., 2017 WI 35, ¶24 n.10, 374 Wis. 2d 555, 893 N.W.2d 1. A deed
of easement is also sometimes referred to as an express easement. See Berg v. Ziel, 2015 WI App
72, ¶14, 365 Wis. 2d 131, 870 N.W.2d 666. We use the terms interchangeably throughout this
opinion.
7
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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RESTATEMENT (THIRD) OF PROP.: SERVITUDES §§ 4.8, 4.11 (AM. L. INST. 2000)).
Our application of general easement principles to an easement is de novo and
“without deference to the [circuit] court’s determination[s].” See Hunter v. Keys,
229 Wis. 2d 710, 714-15, 600 N.W.2d 269 (Ct. App. 1999); see also Bohm v.
Leiber, 2020 WI App 52, ¶15, 393 Wis. 2d 757, 948 N.W.2d 370 (“The meaning
and scope of an easement is a question of law we review de novo.”).

I. General principles of easement law

¶13 “An easement ‘is a permanent interest in another’s land, with a right
to enjoy it fully and without obstruction.’” Konneker, 326 Wis. 2d 268, ¶25
(citation omitted). “It is a liberty, privilege, or advantage in lands, without profit,
and existing distinct from the ownership of the land.” AKG Real Est., LLC v.
Kosterman, 2006 WI 106, ¶2, 296 Wis. 2d 1, 717 N.W.2d 835. An appurtenant8
easement, like the Easement in this case, creates two property interests: The
dominant estate—in this case owned by Eilau—“which enjoys the privileges as to
other land granted by an easement,” and the servient estate—in this case owned by
Roff—“which permits the exercise of those privileges.” See id., ¶3. “The dominant
estate holder’s ‘use of the easement must be in accordance with and confined to the
terms and purposes of the grant.’” Garza v. American Transmission Co., 2017 WI
35, ¶23, 374 Wis. 2d 555, 893 N.W.2d 1 (citation omitted).

¶14 In the absence of directions in an easement to the contrary, easements
are governed by several general principles. First, an easement cannot be enlarged
by the dominant estate. Gojmerac v. Mahn, 2002 WI App 22, ¶23, 250 Wis. 2d 1,
640 N.W.2d 178 (2001) (enlarging an easement refers to extending it to other

8
An appurtenant easement “means that the rights or obligations of a servitude are tied to
ownership or occupancy of a particular unit or parcel of land.” Gojmerac v. Mahn, 2002 WI App
22, ¶18, 250 Wis. 2d 1, 640 N.W.2d 178 (2001).

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property not intended to be covered by the granting document). Second, the
dominant estate is granted “all rights that are incident or necessary to the reasonable
and proper enjoyment of the easement.” Keys, 229 Wis. 2d at 715. As such, “the
servient estate may not intrude into the easement in such a way as to interfere with
the dominant estate’s easement rights.” Id. at 716. Third, the dominant estate “may
make changes in [an] easement for the purpose specified in [a] grant as long as the
changes are reasonably related to the easement holder’s right and do not
unreasonably burden the servient estate.” Id. at 715 (citation omitted). Lastly,
“[a]bsent an agreement to the contrary, the [dominant estate] must repair the
easement.” Shanak v. City of Waupaca, 185 Wis. 2d 568, 584, 518 N.W.2d 310
(Ct. App. 1994); Koch v. Hustis, 113 Wis. 599, 604, 87 N.W. 834 (1901) (stating
the “owner of an easement upon another’s land is bound to make all necessary
repairs”).9

II. Application of easement principles

¶15 A written instrument is ambiguous when it “is susceptible to more
than one reasonable interpretation.” Konneker, 326 Wis. 2d 268, ¶26. As stated
previously, the 1955 Deed granted the Easement in this case, and therefore we “must

9
We note that

[w]hen the owner of the servient estate and the beneficiary of an
easement … both make the use of the servient estate that is
authorized by the easement …, they are both liable to contribute
to the costs reasonably incurred for repair and maintenance of the
portion of the servient estate and the improvements they use in
common.

RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.13(d) (AM. L. INST. 2000). Again, Roff does
not challenge the circuit court’s order requiring him to maintain the portion of the Easement from
Carpenter Road to the Barrier, see supra n.5, and we will therefore not address that particular area
of maintenance.

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look to that instrument in construing the relative rights of the landowners.” See id.
(quoting Hunter v. McDonald, 78 Wis. 2d 338, 342-43, 254 N.W.2d 282 (1977)).

¶16 When interpreting a deed of easement, “the purpose of the court is to
ascertain the intention of the parties” who drafted the deed. Id. (citation omitted).
“The primary source of the parties’ intent is what is written within the four corners
of the deed.” Id. In interpreting the intent of the drafters, we will consider extrinsic
evidence only if a deed of easement is ambiguous. See id.

A. The Easement unambiguously grants Eilau ingress and egress over Roff’s
property to access Eagle Island.

¶17 On appeal, Eilau contends that the Easement is ambiguous, in part,
because it is silent as to its “length, width, direction, location, [and] lack of survey.”
Roff argues that “the intent of the parties is unambiguously found within the
Easement’s express language: to allow the owners of Eagle Island a path for ingress
and egress to Eagle Island.” We agree with Roff that the Easement is unambiguous
regarding the right to ingress and egress. As we will explain, an easement is not
necessarily ambiguous by virtue of its dimensional silence.

¶18 Pursuant to the terms of the 1955 Deed, the Easement provides, in
pertinent part, for “ingress and egress to and from the above described Eagle Island
over any road now situated.” “Ingress and egress” is defined as “[t]he right to use
land to enter and leave another’s property.” Ingress and egress easement, BLACK’S
LAW DICTIONARY (11th ed. 2019).

¶19 It therefore cannot be argued, and neither party does on appeal, that
the “road” referenced in the Easement ends where the “roadway” ends (i.e., at the
Barrier). Such an interpretation would be contrary to both the legal definition of
“ingress and egress easement” and to the intent of the Easement’s drafters, who

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provided for “ingress and egress to and from” Eagle Island. If the “road” referenced
in the Easement ended at the Barrier, there would be no ingress and egress to the
island because the Barrier is located 100 feet from Bass Lake.

¶20 Therefore, the text of the Easement provides the dominant estate
ingress and egress over the servient estate using the “road” to Bass Lake, not only
to the Barrier. As such, there is no ambiguity regarding the Easement’s length or
location. See Berg v. Ziel, 2015 WI App 72, ¶¶7-8, 18-20, 365 Wis. 2d 131, 870
N.W.2d 666 (concluding the easement was not ambiguous, despite no legal
description, where “an owner of either the dominant or servient estate had selected
the existing access road as the easement’s location” in a deed).

¶21 Similarly, there is no ambiguity regarding the Easement’s width. As
stated, both parties agree that the Easement begins at Carpenter Road where the
roadway begins. The roadway runs to the Barrier. Thus, the width from Carpenter
Road to the Barrier is the width of the roadway. Beyond the Barrier, as we will
explain, vehicles are allowed for ingress and egress along the “road” to Bass Lake.
Therefore, the width of the Easement’s road must be as wide as the roadway, as
determined by Roff, unless the roadway is not wide enough upon which a vehicle
may drive.

B. The Easement unambiguously grants Eilau the right to use any
reasonable mode of transportation on the Easement, including motor
vehicles.

¶22 Eilau also argues that the Easement is ambiguous because it is silent
as to vehicle use. Roff counters that the Easement unambiguously permits Eilau
only “to drive on the established road, cross the lawn by foot, and leave their
vehicles on the easement only long enough to load and unload them.” Roff adds,
however, that when Eilau “infrequently transport[s] large objects to or from the

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island, [Eilau] may briefly drive all the way to the dock for the sole purpose of
loading or unloading the object, so long as the conditions are dry so the lawn area
is not disturbed or rutted.”

¶23 We disagree with both Eilau and Roff. The Easement is not
ambiguous merely due to its silence regarding the mode of transportation on any or
all of it. Unless otherwise expressly limited by the text of the granting document,
easements for ingress and egress allow for both vehicle and foot traffic. See
RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10(d) (AM. L. INST. 2000). If
the drafters of the Easement wanted to specify a permitted mode of transportation
that differed from the general rule, they could have done so. Because the 1955 Deed
is silent regarding the mode of transportation permitted, Eilau may use any
reasonable10 mode of transportation on the Easement, including vehicles.

¶24 This conclusion is consistent with our case law. For example, we have
previously stated that an easement granting a dominant estate the right to “construct
and maintain and use perpetually a roadway for the purpose of ingress and
egress … to lands lying north of and adjacent to the following described real estate”
created “no reasonable dispute that the purpose of [the] easement [was] to afford the
easement holder a means of vehicular access” across the entire easement. Bohm,
393 Wis. 2d 757, ¶¶2, 17, 19 (emphasis omitted).

¶25 Like the easement in Bohm, the Easement here does not limit ingress
and egress to a particular mode of transportation. Instead, it grants “ingress and
egress to and from the above described Eagle Island over any road now situated on

10
The dominant estate is granted “all rights that are incident or necessary to the reasonable
and proper enjoyment of the easement.” Hunter v. Keys, 229 Wis. 2d 710, 715, 600 N.W.2d 269
(Ct. App. 1999) (emphasis added).

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lot Forty-nine (49).” To conclude, as Roff does, that the Easement does not provide
for vehicular traffic beyond the Barrier requires us to consider evidence outside the
four corners of the 1955 Deed. Our review of an unambiguous deed of easement is
limited to the four corners of the granting document, see Konneker, 326 Wis. 2d
268, ¶26, which, in this case, unambiguously provides for ingress and egress to
Eagle Island.

¶26 Roff also contends that even if the Easement unambiguously allows
for vehicular traffic beyond the Barrier, the use of vehicles places too great a burden
on the servient estate. Our supreme court addressed a similar argument in Grygiel.
There, a dominant estate argued “that to determine whether certain conduct violates
the express terms of an easement, under [Millen v. Thomas, 201 Wis. 2d 675, 685,
550 N.W.2d 134 (Ct. App. 1996), courts] are required to analyze the added burden,
if any, imposed on the servient estate.” Grygiel, 328 Wis. 2d 436, ¶21. The court
disagreed with the dominant estate and held that the “Millen’s burden analysis does
not apply when the servient estate owner simply seeks a declaration that the terms
of an express easement have been contravened.” Grygiel, 328 Wis. 2d 436, ¶25.
The court concluded that

requiring a showing of added burden in regard to proving
that the terms of an express easement have been contravened
encourages “difficult litigation over the question whether
increased use unreasonably increases the burden on the
servient estate.”

[W]hen faced with an express easement, a court’s focus
should be on the language of the easement grant, and not on
the presence or absence of added burden, in determining
whether certain conduct contravenes the terms of the express
easement. That analysis honors the expectations of the
contracting parties and creates predictability in the
respective parties’ property rights.

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See id., ¶¶29, 30 (citing RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.11
(AM. L. INST. 2000)).

¶27 Like the court in Grygiel, we need not address the added burden issue.
We conclude that the Easement unambiguously allows for vehicular traffic beyond
the Barrier to the boat dock because of the 1955 Deed’s use of “ingress and egress”
to permit access to Eagle Island.

C. Eilau has the right to turn vehicles around adjacent to the boat dock.

¶28 The circuit court ruled that Eilau has the right to turn vehicles on the
Easement, and that the Easement must be of sufficient width to do so. On appeal,
Eilau argues that the Easement’s silence regarding turning vehicles creates
ambiguity. Eilau also echoes the court’s ruling and contends that Eilau can create a
“turnaround area” at the end of the Easement by Bass Lake. Eilau does not explain
the extent of the “turnaround area.” Roff’s only argument against a turnaround area
is that vehicular traffic is not permitted beyond the Barrier. To that end, Roff
contends that the Birch Cottage parking area provides an adequate turnaround spot.

¶29 We agree with the circuit court and Eilau that the Easement permits
turning vehicles around near the boat dock, but we disagree that the Easement’s
silence regarding turning vehicles around creates ambiguity. First, we conclude it
would be unreasonable to interpret the Easement to not allow vehicles to turn
around. In other words, it is unreasonable to allow a vehicle to be driven to Bass
Lake, but then force that driver to back up to either the roadway or, alternatively, all
the way to Carpenter Road. As such, the Easement is not ambiguous as to turning
vehicles around. Our conclusion is compounded by the fact that the Easement
provides for ingress and egress for the purpose of reaching a true island.

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¶30 Thus, the question becomes whether creating a more distinct
“turnaround area” is a use “for [a] purpose specified in the grant [that is] reasonably
related to the [E]asement holder’s right and do[es] not unreasonably burden the
servient estate.” See Keys, 229 Wis. 2d at 715. We conclude that creating a more
distinct “turnaround area” using anything but the lawn would unreasonably burden
the servient estate because Roff expressly has the right to move the Easement at any
time. In other words, creating a paved turnaround area, or even a dirt turnaround
area, would unreasonably burden the servient estate because it would create too
large a burden for Roff to relocate the “road.” That said, as we will explain later,
the dominant estate is responsible for maintaining and repairing the Easement
beyond the Barrier. Hence, to the extent that the turnaround is used in a fashion that
damages Roff’s property, it will be Eilau’s responsibility to repair it.

D. Parking is not permitted on the Easement.

¶31 Eilau next contends that the Easement’s silence regarding parking
creates ambiguity, while Roff counters that the Easement unambiguously does not
allow parking. We conclude that the Easement unambiguously does not allow for
parking because the drafters of the 1955 Deed did not expressly include parking.

¶32 The drafters included in the Easement the option to construct a boat
dock and use it “for landing boats.” If the drafters intended to include parking at
any location on the Easement, they could have done so. Indeed, they knew the
Easement was for access to and from an island, yet they did not include a vehicle
parking provision. In the absence of such a provision, we are left with “ingress and
egress,” which again is defined as “[t]he right to use land to enter and leave
another’s property.” Ingress and egress easement, BLACK’S LAW DICTIONARY
(11th ed. 2019) (emphasis added); see also Keys, 229 Wis. 2d at 713 (holding an

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“easement for ingress and egress over and across” a road did not allow dominant
estate to install utility poles); cf. Atkinson v. Mentzel, 211 Wis. 2d 628, 638-39, 566
N.W.2d 158 (Ct. App. 1997) (holding an easement was not limited to ingress or
egress where it provided “access for all uses of said property other than retail sales”).
Thus, the only reasonable interpretation of parking on the Easement is that parking
is not allowed.

¶33 Eilau also contends that parking on the Easement is “reasonably
necessary to enjoy the [E]asement.” (Citation omitted.) As outlined previously, the
dominant estate is granted “all rights that are incident or necessary to the reasonable
and proper enjoyment of the easement.” Keys, 229 Wis. 2d at 715. However, we
do not need to reach Eilau’s contention. We conclude that in absence of a specific
statement in the 1955 Deed, the drafters clearly did not intend to permit parking on
the Easement. We will therefore not second-guess the reasonableness of the
drafters’ contractual decisions. See Grygiel, 328 Wis. 2d 436, ¶¶16, 18, 30.

E. Eilau must maintain the Easement, but may not lay gravel on the
Easement.

¶34 We further disagree with Eilau that the Easement is ambiguous
because it is silent as to maintenance, the right to place gravel, and make other
general improvements. Eilau fails to cite to any authority dictating that an
easement’s silence as to maintenance or improvements creates ambiguity. “Absent
an agreement to the contrary, the [dominant estate] must repair the easement.”
Shanak, 185 Wis. 2d at 584. Because the 1955 Deed is silent regarding repairs and
maintenance across Roff’s property to Bass Lake, it is clear, as the circuit court

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ruled, that Eilau must repair and maintain the Easement beyond the Barrier. See
id.11

¶35 The circuit court, however, did not determine what repairs and
maintenance Eilau was required to provide and neither party directly appeals the
court’s decision regarding maintenance or repair. That said, we will clarify the
rights and duties of the parties in this regard because we conclude that Eilau is
permitted under the Easement to travel via vehicle across Roff’s property to
Bass Lake and, as previously concluded, to turn vehicles around near the boat dock.
See State ex rel. S.M.D. v. F.D.L., 125 Wis. 2d 529, 532, 372 N.W.2d 921 (Ct. App.
1985) (“[A]n appellate court may, sua sponte, consider an issue not raised by the
parties.” (emphasis omitted)).

¶36 Repairs are necessary to the Easement to “prevent [the] unreasonable
interference with the enjoyment of the servient estate, or [to] avoid liability of the
servient-estate owner to third parties.” RESTATEMENT (THIRD) OF

PROP.: SERVITUDES § 4.13 (AM. L. INST. 2000). Here, Roff testified at trial that he
uses Lot 49 largely for renting cabins, including Birch Cottage, to vacationers.
Other testimony provided that the renters of the cabins on Lot 49 would access boats
and Bass Lake via the lawn. Evidence admitted at trial detailed how Eilau’s driving
on the Easement beyond the Barrier damaged parts of the lawn. Specifically, Roff’s
trial counsel entered a series of photographs into evidence, which showed a number
of “ruts” that were made in the lawn. Arvo Eilau testified that he “did [cause] some
of the ruts” in the photographs, but he was not sure if he caused all of them. He

11
It should be noted that in Shanak v. City of Waupaca, 185 Wis. 2d 568, 586, 518
N.W.2d 310 (Ct. App. 1994), we held that “[b]ecause the City has the duty to maintain and repair
the [easement], it is liable to [the servient estate] for their damages resulting from the breach of that
duty.” There are no alleged damages on appeal in this case.

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No. 2021AP396

further testified that he “went back and tried to repair a little bit. It was the first time
that we had driven down there so I didn’t know much better.” Based upon the
Restatement, we conclude that any damage to the lawn caused by Eilau must be
repaired to prevent unreasonable interference with the servient estate.

¶37 We also disagree that the Easement’s silence regarding Eilau’s right
to place gravel on the Easement creates ambiguity. Applying general easement
principles, we also conclude that the circuit court erred in allowing Eilau to place
gravel on the Easement. Along with the duty to repair the Easement as needed, see
Shanak, 185 Wis. 2d at 584, the dominant estate also has the right to improve the
Easement. See Keys, 229 Wis. 2d at 715. In this case, the court granted Eilau the
right to put gravel on the Easement as an improvement. Roff argues, inter alia, that
placing gravel on the Easement would “effectively erase[] Roff’s right to move the
road[way].”12 We agree with Roff and conclude that the court erred in this respect
because improving the Easement with gravel would unreasonably burden the
servient estate given the express terms of the Easement. See id.

¶38 We acknowledge that absent express terms to the contrary, an
easement for ingress and egress generally allows the dominant estate the ability to
pave a road. See Keys, 229 Wis. 2d at 716 (“The trial court therefore properly
concluded that the grant of an easement for access and egress authorizes the
easement holder to improve the roadway so as to facilitate access to his [or her]
property, as long as the road improvements do not unreasonably burden the servient
estate.”); Knuth v. Vogels, 265 Wis. 341, 345, 61 N.W.2d 301 (1953) (dominant

12
For the first time in his reply brief, Roff argues that placing gravel on the Easement
between the Barrier and Bass Lake would violate WIS. STAT. § 59.692 and WIS. ADMIN. CODE
§ NR 115.05(b) (Jan. 2017). Because Roff raised this issue for the first time in his reply brief, we
will not consider it. See A.O. Smith Corp., 222 Wis. 2d at 492 (appellants cannot raise issues for
the first time in a reply brief).

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No. 2021AP396

estate had right to replace cinder driveway with concrete driveway because doing
so placed no added burden on the servient estate). Also absent contrary language,
“[t]he ‘longstanding default rule in Wisconsin [is] that a servient estate … cannot
unilaterally relocate … an express easement.’” See Berg, 365 Wis. 2d 131, ¶14
(citation omitted). Both parties, however, agree that the Easement expressly
provides the servient estate the right to move the Easement at any time. As such,
placing gravel on the Easement would place an unreasonable burden on Roff.

¶39 To be sure, in the circuit court’s oral decision, the court gave a
hypothetical back-and-forth that could take place between the dominant and servient
estates. Namely, if Eilau gravels the Easement and Roff decides to move the
Easement afterward, then Eilau could gravel the new location, and so on. The result
would be that Roff “will [eventually] have a front yard full of gravel because every
time that he moves it, [Eilau is] going to want to maintain it and make it suitable for
their access.” Even if Eilau agreed to remove all of the gravel of an old road if Roff
desired to move the road, this would result in additional wear to the land and,
moreover, we question the efficacy of such a proposal as the gravel would be placed
on a grass area. If Roff decides to move the Easement in the future, he must be able
to do so. However, as the court’s hypothetical shows, graveling the Easement would
make that move virtually impossible.

¶40 Lastly, we are also not persuaded by Eilau’s general contention that
the Easement is ambiguous simply because it is for ingress and egress to a true
island. Although uncommon, an easement to a true island does not, by itself, create
ambiguity. The question remains whether the text of the 1955 Deed is susceptible
to more than one reasonable interpretation. In this case, that answer is no.

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No. 2021AP396

¶41 We conclude that the Easement unambiguously allows for ingress and
egress to Eagle Island from Carpenter Road to Bass Lake. Because the 1955 Deed
does not address the mode of transportation, the drafters of the 1955 Deed intended
the dominant estate’s owners to be permitted to travel the Easement by any
reasonable mode of transportation, including by vehicle. The Easement makes it
clear that the drafting parties did not intend to permit parking on the Easement, but
they did intend to allow the dominant estate to turn vehicles around near Bass Lake.
That said, creating a more distinct “turnaround area” would unreasonably burden
the servient estate. General easement principles provide that the dominant estate is
responsible for maintenance and repairs from the Barrier to Bass Lake. However,
under the Easement here, the dominant estate cannot lay gravel on the Easement
because doing so would place too unreasonable a burden on the servient estate
should Roff attempt to move the road, as the Easement expressly permits.

¶42 No costs to either party.

By the Court.—Order affirmed in part and reversed in part.

Not recommended for publication in the official reports.

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