Vol. 77, No. 7, July
Equity, Old Facts, and Wisconsin's Law of Easements
Two recent cases make the establishment of easements by necessity or
by prescription more complicated and less certain. In light of these
cases, read what lawyers need to know to advise clients who seek to gain
or to prevent a right of access.
Jesse S. Ishikawa
ountless tracts of land in Wisconsin can be
reached only by hunting paths, logging roads, or driveways over
neighboring lands. Frequently, there is no written document that grants
legal access to these tracts. Often, access has continued unchallenged
for more than 100 years. The right of access, if any, arises out of an
easement by necessity or by prescription.
As a result of two recent cases, establishing easements by necessity
or by prescription has become more complex. It is no longer enough to
prove, in the case of an easement by necessity, that a landlocked parcel
was created by division of a commonly owned parcel. And it is no longer
enough to prove, in the case of a prescriptive easement, that one party
has continuously and adversely used the lands of another for more than
The Wisconsin Supreme Court, in McCormick v.
Schubring,1 held that trial courts
considering whether to grant an easement by necessity must now apply an
equitable "balancing test." The Wisconsin Court of Appeals, in
Schauer v. Baker,2 held that Wis.
Stat. section 893.33(2) applies to prescriptive easements. As a result,
trial courts may now be required to examine ancient facts - possibly
going back to the nineteenth century, in certain cases - to establish
the validity of a prescriptive easement.
McCormick, Equity, and Easements by Necessity
Background: Easements by Necessity. An easement by
necessity is created when the grantor conveys lands that have no outlet
to a public road except over the grantor's remaining lands.3 The easement by necessity arises in favor of a
property owner if the owner can prove 1) common ownership of the
proposed servient and dominant estates at the time of the severance that
created the landlocked condition; and 2) that the landlocked parcel had
no access to a public roadway after it was severed and such lack of
access continues.4 In such a case, an
easement by necessity is created over the grantor's remaining lands to
allow the grantee access to the public road. Common ownership of the
benefited and burdened parcels before the conveyance occurred is a
necessary precondition for establishing a way of necessity.5 Easements by necessity may be created even if
separation of two parcels under common ownership results from an
involuntary transfer, such as a tax sale.6
Until the Wisconsin Supreme Court's decision in Schwab
v. Timmins,7 no reported appellate
case in Wisconsin had addressed whether a party that had landlocked its
own parcel could claim an easement by necessity over lands owned by
In Schwab, the owners of three parcels of land (the
"Northern Parcels") sought an easement of necessity over several parcels
to the south (the "Southern Parcels") to connect to a public
right-of-way located to the south of the Southern Parcels. The Northern
Parcels and the Southern Parcels had not been under common ownership
since all were owned by the United States in 1854. The owners of the
Northern Parcels had conveyed away lands that had connected the Northern
Parcels to a public right-of-way to the east. The supreme court did not
reach the issue of whether the United States' ownership of all of the
lands prior to 1854 satisfied the "common ownership" requirement, since
the Northern Parcels were not landlocked at the time ownership of the
Northern Parcels was separated from ownership of the Southern
The owners of the Northern Parcels argued, among other things, that
without an easement, their property would be virtually useless and that
the benefits of developing otherwise useless land would far outweigh any
anticipated costs to the burdened property. The Wisconsin Supreme Court
denied the easement of necessity on the ground that the Northern Parcels
had been landlocked by their owners' own acts in conveying away their
"An easement by necessity only exists where an owner sells a
landlocked parcel to another, in which case the law will recognize a way
of necessity in the grantee over the land retained by the grantor.
Rock Lake Estates Unit Owners Ass'n v. Township of Lake Mills,
195 Wis. 2d 348, 372_73, 536 N.W.2d 415 (Ct. App. 1995) (citing
Ludke, 87 Wis. 2d at 229_30). The petitioners in this case are
the grantors, not the grantees, and as in Rock Lake Estates,
the conveyances which resulted in their landlocked property were made by
the petitioners when they sold off the property above the bluff."8
The owner of the landlocked Northern Parcels urged that the court
adopt a "reasonable use" test that balanced the equities by weighing the
benefit of allowing access by easement against the burden placed on the
neighboring parcel over which the easement by necessity would run. The
owner further argued that the benefit of and policy toward development
of otherwise useless land far outweighed any anticipated costs to the
The Schwab court specifically rejected the "reasonable use"
test in determining whether an easement by necessity should be
"In order to adopt the petitioners' proposal, we would have to ignore
not only long-standing precedent in this state, but also
well-established public policy as illustrated in our recording and
conveyance statutes. Long ago this court recognized:
'It is so easy, in conveying a defined piece of land, to express
either any limitations intended to be reserved over it, or to be
conveyed with it over other land, that the necessity of raising any such
grant or reservation by implication is hardly apparent. Courts of equity
can afford relief where the grant is not of that understood by both
parties to be conveyed, or so understood by one by inducement of the
other. Such rights outside the limits of one's proper title seriously
derogate from the policy of both our registry statutes and our statute
against implication of covenants in conveyances. That policy is that a
buyer of land may rely on the public records as information of all the
conveyances, and upon the words of the instruments for all rights
The Schwab court also noted that a purchaser of real estate
had three sources of information from which to learn of rights to the
land: 1) reviewing the chain of title; 2) searching other public records
that might reveal other nonrecorded rights, such as judgments or liens;
and 3) inspecting the land itself. These sources, the court noted, may
be irrelevant if someone with a landlocked piece of property desired a
right-of-way through another's property in the interest of development
and was able to invoke a reasonable use test to claim such a right.
Adoption of the "Reasonable Use" Test
In McCormick v. Schubring, 10
the Wisconsin Supreme Court dealt once again with a case in which a
grantor had landlocked its own parcel.
In McCormick, the ownership of a commonly owned parcel
consisting of 120 acres was separated when the front 40 acres were sold
at a tax sale, landlocking the rear 80 acres. The purchaser of the rear
80 acres sought a way of necessity over the front 40 acres. In stark
contrast to the approach taken in Schwab, the court applied a
"balancing of the equities" test and upheld the trial court's finding
that a way of necessity existed in favor of the 80-acre parcel, even
though the 80-acre parcel originally was the grantor's (rather than the
Although the court recognized that an easement by necessity required
the two elements of common ownership and severance of access, it held
that such elements, by themselves, may not be sufficient to support an
easement of necessity in every case. The court held that an easement of
necessity generally does not arise as a matter of law, but rather
through the exercise of a circuit court's discretion. Even where the two
elements exist, "the equities that drive the creation and the scope of
an easement may vary, requiring the circuit court to weigh the burdens
and benefits the easement would create."11
These "equities" may include weighing the relative benefits and burdens
to the servient and dominant parcels.
The factors that weighed in favor of finding an easement by necessity
in McCormick included the extremely limited use that could be
made of the landlocked property without vehicular access; the fact that
the land was "very wild" and used solely for hunting; that the
landlocking was due to a seizure at a tax sale and not to a voluntary
act of the grantor; and that a dirt road had existed and continued to be
used before and after separation of ownership.
The factors that weighed against finding an easement by necessity
included actual knowledge by the buyer of the landlocked parcel that it
had no legally enforceable right to use the road and that without
permission to use it, the 80-acre parcel would be landlocked; that the
owner of the 40-acre parcel, prior to purchasing the parcel, had not
seen the dirt road; that the owner of the 40-acre parcel, prior to
purchasing the parcel, had checked for an easement "by word of mouth,"
and had made inquiries to the town and county clerks regarding documents
pertaining to the property; that if the owner of the 40-acre parcel
chose to construct a building on the parcel, he would be unable to do so
because the land is most suitable for building in the area of the road;
and that the 40-acre parcel was less valuable with a legally enforceable
easement across it. After weighing these equities, the court held that
an easement by necessity in fact existed.
The approach followed in McCormick is precisely the approach
that the court had rejected only five years earlier in Schwab.
McCormick arguably muddles what had been a straightforward,
objective formula for determining whether an easement by necessity
exists, and permits trial courts to liberally apply "equitable"
considerations in deciding claims of easements by necessity. The end
result is that purchasers of real estate can no longer rely solely on
the public record and physical inspection to determine the status of
Schauer, Ancient History, and Prescriptive Easements
Prescriptive easements can be established under Wis. Stat. section
893.28(1), which provides:
"(1) Continuous adverse use of rights in real estate of another for
at least 20 years, except as provided in s. 893.29 establishes the
prescriptive right to continue the use. Any person who in connection
with his or her predecessor in interest has made continuous adverse use
of rights in the land of another for 20 years, except as provided by s.
893.29 [relating to adverse possession claims against the state of
Wisconsin or political subdivisions], may commence an action to
establish prescriptive rights under ch. 843."
Jesse S. Ishikawa,
Michigan 1980, practices real estate law in the Madison office of
Reinhart Boerner Van Deuren s.c. He is the author of The Wisconsin Law
of Easements, the second edition of which has just been published by
State Bar of Wisconsin CLE Books. The author thanks attorney Joseph J.
Hasler, Reedsburg, for participating in a discussion that led to this
Wis. Stat. section 893.33(2) provides that, with certain exceptions,
no action affecting the possession or title of any real estate may be
commenced, and no defense or counterclaim may be asserted, by any person
if the action is founded on any event occurring more than 30 years
before the date of the action, unless within 30 years after the date of
the event there is recorded in the office of the register of deeds in
the county in which the real estate is located either of the following:
an instrument referring to the existence of the claim or defense, or a
notice setting forth the name of the claimant and a description of the
real estate affected and of the event on which the claim or defense is
This section bars enforcement of interests in real estate that came
into being based on unrecorded events unless, within 30 years after the
date of the event giving rise to the easement, a written instrument or
notice is recorded. The 30-year period is measured from the date the
easement first came into existence. Thus, in a situation in which a
prescriptive easement resulted from 20 years' adverse use under Wis.
Stat. section 893.28, the 30-year period was held to begin at the
conclusion of the 20-year period.12
The 30-year recording requirement set forth in Wis. Stat. section
893.33(2) does not apply to any action commenced by any person
who, at the time the action is commenced, is in possession of the real
estate involved as owner.13 This is
commonly referred to as the "owner in possession" exception to the
30-year recording requirement. The Wisconsin Supreme Court has held that
an adverse possessor is an owner under Wis. Stat. section 893.33(5) and
that the adverse possessor's claim of ownership was therefore not barred
by Wis. Stat. section 893.33(2).14 In
Schauer v. Baker,15 the Wisconsin
Court of Appeals held that the holder of a prescriptive easement is
not an "owner" under Wis. Stat. section 893.33(5) and therefore
cannot take advantage of the exception set forth in Wis. Stat. section
893.33(5) to the 30-year recording requirement.
Given that easements in Wisconsin have historically been considered
nonpossessory interests, the court was on solid ground logically in
holding that the holder of an easement could not qualify for the "owner
in possession" exception to the 30-year recording requirement. Easement
holders have never been considered "owners" or "possessors" of real
estate in Wisconsin.16
That having been said, Schauer highlights a fundamental
problem created by Wis. Stat. section 893.33(2). The historical purpose
of a statute of limitation on real estate actions is to "quiet ... men's
estates."17 Section 893.33(2), especially
as applied to easements in Schauer, does anything but.
Consider this example: the owner of Blackacre, and the owner's
successors and assigns, have used a path across Whiteacre from 1900 to
the present, in a manner that meets the requirements for establishing a
prescriptive easement. Throughout that time they never recorded a notice
under Wis. Stat. section 893.33(2). What have their legal rights been
since the trespass began in 1900? As a result of Wis. Stat. section
893.33(2), as applied in Schauer, the owner of Blackacre would
have been a trespasser until 1920; in 1920 the trespass would have
ripened into a prescriptive easement; in 1950 the prescriptive easement
would have lapsed; in 1970 the trespass would have ripened into a
prescriptive easement again; and in 2000 the prescriptive easement would
have lapsed once again. If, however, in 2004 the current owner of
Blackacre could convince a court that the trespass began not in 1900 but
in 1906, the prescriptive easement would be then in existence, after
all. Alternatively, if in 2004 the current owner of Blackacre could show
that there was an interruption in continuity of use of the road in 1956
sufficient to reset the 20-year clock in that year, the prescriptive
easement would still be in effect in 2004. It takes little imagination
to see how messy litigation over prescriptive easements can become when
no written instrument or notice has been recorded under Wis. Stat.
Conclusions and Practice Tips
Historically, a bona fide purchaser of land without knowledge or
actual or constructive notice of the existence of an easement took title
to the land free of the easement.18 This
was the case even when the purchaser had record notice that the property
purchased totally surrounded a landlocked parcel.19
As a result of the holding in McCormick, however, anyone who
purchases a parcel that had previously been under common ownership with
an adjacent landlocked parcel may find that the purchased parcel is
burdened by an easement by necessity. The decision whether such an
easement exists is no longer a matter of law but is within the trial
court's equitable discretion. Purchasers of such parcels can best
protect themselves by buying an owner's policy of title insurance.
Whether title insurers will be willing henceforth to insure against
potential easements by necessity remains to be seen.
As a result of the Schauer holding, anyone who owns land
served by ,a prescriptive easement, easement by necessity, or other
unwritten easement, should record an affidavit setting forth the facts
that gave rise to the easement.
Because adverse possessors can take advantage of Wis. Stat. section
893.33(5)'s "owner in possession" exception to the 30-year recording
requirement, any lawyer representing a person who has trespassed upon
another's land for a continuous period of more than 50 years and who has
not recorded a notice of claim should, to the extent the facts allow,
characterize the client as an adverse possessor rather than as the
holder of a prescriptive easement.
A lawyer litigating a prescriptive easement based on a trespass more
than 50 years old will have to pay particularly close attention to the
date on which the trespass began.
12003 WI 149, 267 Wis. 2d 141, 672
22004 WI App 41, _Wis. 2d _, 678
3Backhausen v. Mayer, 204
Wis. 286, 288, 234 N.W. 904 (1931).
4McCormick, 2003 WI
5Ruchti v. Monroe, 83 Wis.
2d 551, 556, 266 N.W.2d 309 (1978); Richards v. Land Star Group
Inc., 224 Wis. 2d 829, 845-46, 593 N.W.2d 103 (Ct. App. 1999).
6Ruchti, 83 Wis. 2d at
556; Richards, 224 Wis. 2d at 845-46.
7224 Wis. 2d 27, 589 N.W.2d 1
8Id. at 40-41.
9Id. at 41-42 (quoting
Miller v. Hoeschler, 126 Wis. 263, 268-69, 105 N.W. 790
102003 WI 149, 267 Wis. 2d 141,
672 N.W.2d 63.
12Leimert v. McCann, 79
Wis. 2d 289, 255 N.W.2d 526 (1977).
13Wis. Stat. §
14O'Neill v. Reemer,
2003 WI 13, 259 Wis. 2d 544, 657 N.W.2d 403.
152004 WI App 41, __ Wis. 2d __,
678 N.W.2d 258.
16See, e.g., Millen
v. Thomas, 201 Wis. 2d 675, 678, 550 N.W.2d 134 (Ct. App.
17Mills, Statute Law of the Isle
of Man 94 (1821).
18Schmidt v. Hilty-Forster
Lumber Co., 239 Wis. 514, 522, 1 N.W.2d 154 (1941).