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    Deed Not Specific But Road Easement Location Clear, Appeals Court Says

    Joe Forward

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    Aug. 31, 2015 – A landowner who bought property burdened by a private roadway easement wanted it moved to a different location, and was almost successful. But recently, a state appeals court ruled that the trial court did not have the power to alter the existing easement.

    Thomas Ziel knew that prior deeds established a roadway easement across his land to give neighboring landowners access to a public highway. But the deeds, he argued, did not specifically say where the easement was located. Thus, he was entitled to move it.

    If the easement was moved, neighbor Ronald Berg argued, it would cost almost $36,000 to construct a new driveway linking up to Ziel’s desired easement location. Berg said the easement could not be moved because it was already established.

    In Berg v. Ziel, 2014AP2802 (Aug. 25, 2015), a three-judge panel for the District III Appeals Court sided with Berg, reversing the trial court and concluding that prior parties intended the easement to be where it was, regardless of missing language in the deed.

    Tracking the Deeds

    It all started in the 1960s. A company called Whitehall Packing Plant sold a large plot of land to Howard Hammer, who testified that Whitehall used a dirt road across a southern portion of what is now Ziel’s land to access what is now Berg’s property.

    Hammer sold the back portion of the property (the landlocked property) to Stanley Campbell in 1977. At that time, Campbell required Hammer to lay shale rock on the existing dirt road, a more permanent roadway to access the property he was buying.

    The Hammer-Campbell deed identified the easement as “a right of way for ingress and egress for vehicular traffic from the public road.” While the deed indicated the existence of a roadway easement for Campbell’s benefit, it didn’t say exactly where it was.

    Campbell testified that he and Hammer never discussed moving the easement. He said keeping the private roadway where it already existed seemed most optimal. Campbell owned the property for nearly 25 years before selling it to Steven Schaefer in 2002.

    The Campbell-Schaefer deed narrowed the scope of the easement to the general area where the existing road was located. After two years, Schaefer sold the land to Berg. But like previous deeds, the easement was noted without an explicit location.

    This opened the window for Ziel, who bought the neighboring and public highway adjacent land in 2006. Ziel constructed a new private road along the northern border of his property and demanded that Berg use it to access the Berg property instead.

    But Berg’s residence linked to the old private road. It was going to cost thousands of dollars, more than $35,000, to construct a driveway that linked to Ziel’s road, Berg said.

    Berg Wins on Appeal

    The circuit court in Trempealeau County ruled that Ziel could put the easement anywhere, because prior deeds did not specify exactly where it should be.

    But the appeals court reversed, concluding that prior parties intended for the private road easement to be on the south side of the property, its longstanding location.

    “[T]he undisputed facts demonstrate that the intent of the first deed memorializing the easement was that the existing road would be the location of the easement,” wrote Reserve Judge Thomas Cane, referring to the Hammer-Campbell deed of 1977.

    “Indeed this intent would have been so obvious at the time the deed was drafted that it is not surprising that a specific location was not set forth,” Judge Cane wrote.

    The panel said the easement was long ago “set in stone,” and that existing use transformed an otherwise ambiguous easement into one of specific location.

    Thus, it rejected Ziel’s claim that he lacked notice of the easement when he purchased the property in 2006, concluding instead that Ziel had notice “as a matter of law.”

    The 1977 Hammer-to-Campbell deed and the 2002 Campbell-to-Schaefer deed were recorded with 30 years of the Ziel land acquisition, the panel noted.

    “Both deeds memorialized an easement across all of Ziel’s land crossed by the existing road,” Judge Cane wrote. “Ziel therefore cannot argue he lacked notice of any written recorded easement.”