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Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Civil Procedure | Criminal Law |
| Criminal Procedure | Real Property |
| Torts | Worker's Compensation |

Landlocked Property - Easements by Implication and Necessity

Schwab v. Timmons, No. 97-1997 (filed 12 Feb. 1999)

The petitioners and respondents in this case all own property located on Green Bay in Door County. The properties are situated between the waters of Green Bay on the west and a bluff ranging in height from 37 feet to 60 feet on the east. Prior to 1854 the property was owned by the U.S. government and, at the time the government conveyed the lots to the parties' predecessors in title, the lots were comprised of property both above and below the bluff with access to a public roadway from above. The petitioners inherited properties that included land below and above the bluff. However, they sold off those properties above the bluff that had highway access. At present, the petitioners' parcels are bordered by water on the west and the bluff on the east. Because their properties are between the lake and the bluff, they claim their only access is over the land to the south that is owned by the respondents, to which they do not have a right-of-way.

The petitioners brought a declaratory judgment action requesting an easement by necessity or by implication for both ingress and egress and utilities over the properties owned by the respondents in order to gain access to their landlocked parcels. The circuit court and the court of appeals concluded that the historical circumstances in this case do not fit the typical situation from which ways of necessity are implied.

Before the supreme court the petitioners claimed that they are entitled to an easement by necessity or by implication over the respondents' properties; in the alternative, they sought an expansion of the common law of Wisconsin to recognize an easement by necessity where property is landlocked due to geographical barriers and due to the actions of the common owner and grantor, in this case, the U.S. government.

In a unanimous decision authored by Justice Wilcox, the court concluded that the petitioners have failed to establish entitlement to an easement by implication or by necessity either because of actions by the federal government or by geographical barriers. Not only were the parcels at issue not landlocked at the time of conveyance by the government, but the petitioners themselves created their landlocked parcels when they conveyed away their highway access. The court declined to overturn a century of common law to accommodate such actions.

Easements by implication and by necessity are similar though legally distinguishable concepts. Since the early 1900s, the public policy of Wisconsin has strongly opposed the implication of covenants of conveyance.

An easement by implication arises when there has been a separation of title, a use before separation took place that continued so long and was so obvious and manifest as to show that it was meant to be permanent, and it must appear that the easement is necessary to the beneficial enjoyment of the land granted or retained. Implied easements may be created only when the necessity for the easement is so clear and absolute that without the easement the grantee cannot enjoy the use of the granted property for the purposes for which similar property is customarily devoted.

In this case the petitioners failed to establish a claim for an easement by implication. While a landlocked parcel may satisfy the necessity element, it is apparent from the pleadings that the private road on the respondents' properties which the petitioners seek to extend does not and has never extended to the petitioners' properties. They also failed to allege that any use by the United States was so obvious, manifest, or continuous as to show that it was meant to be permanent.

The court thought that the petitioners' claim was more akin to an easement by necessity. An easement by necessity arises where an owner severs a landlocked portion of his or her property by conveying such parcel to another. To establish an easement by necessity, a party must show common ownership of the two parcels prior to severance of the landlocked parcel and that the owner of the now-landlocked parcel cannot access a public roadway from his or her own property. Because in this case the United States never severed a landlocked portion of its property that was inaccessible from a public roadway, the petitioners have failed to establish the elements for an easement by necessity.

Wisconsin courts have never before recognized geographical barriers alone (such as the bluff in this case) as circumstances warranting an easement by necessity. While the petitioners have provided evidence that the cost of building a road up over the bluff would have been exorbitant, the fact is that the petitioners had access to a public road which they sold off. Thus, their current ownership of landlocked property resulted not from a grant of property to them but by their own acts in conveying away their highway access.

Immunity - Suspected Shoplifters - Pursuit

Peters v. Menard Inc., No. 97-1514 (filed 2 March 1999)

This appeal involves liability arising out of the death of a suspected shoplifter who drowned while pursued by security guards. Store security guards observed Brian Peters shoplifting a drill from a Menard's hardware store. They watched Peters leave the store, go to a parked truck, and place the drill box inside. Peters himself later entered the truck and was seated in the backseat when security guards confronted him about the alleged theft. Peters got out of the truck, denied knowledge about the drill, and when asked to accompany guards back into the store, Peters bolted away. Several guards pursued Peters on foot. On two occasions they unsuccessfully attempted to tackle him. At some point Peters apparently jumped into the rain-swollen La Crosse River in a failed attempt to get away. The guards tried to rescue Peters who was clearly in distress, but the current carried him downstream and he drowned.

Peters' survivors brought a wrongful death action against Menard and the security agency. The circuit court ruled that the defendants were statutorily immune from liability under Wisconsin's retail theft statute, section 943.50(3). The court of appeals certified the case to the supreme court on the issue of whether statutory immunity extended to attempts to detain suspects in pursuits that are off the premises.

The supreme court, in an opinion written by Justice Crooks, affirmed. The court held that "sec. 943.50(3) provides immunity to a merchant or its agents for action taken while attempting to detain a person, including pursuit, as long as the statute's three 'reasonableness' requirements are met: (1) there is a reasonable cause to believe that the person violated sec. 943.50; (2) the detention and the actions taken in an attempt to detain are 'reasonable in manner'; and (3) the detention and the actions taken in an attempt to detain last only for a 'reasonable length of time.'" The court also held that as a matter of law, Peters' own negligence exceeded any negligence by the guards; thus, plaintiffs were barred from recovery on public policy grounds. The supreme court did not discuss whether the three reasonableness requirements were satisfied in this case.

Immunity - State Officials

Eneman v. Richter, No. 96-2893 etc., (filed 3 March 1999)

This appeal involved the liability of various University of Wisconsin officials in connection with injuries suffered by spectators at a campus football game. The court divided equally on whether to reverse or affirm the court of appeals, an impasse that effectively affirmed the court of appeals' decision. Chief Justice Abrahamson did not participate.

Injury on Employer Premises - Personal Errands

Ide v. Labor and Industry Review Commission, No. 97-1649 (filed 26 February 1999)

Ide worked at MacFarlane Pheasant Farm Inc. and normally commuted to and from work either by riding with coworkers or by riding his bicycle. On the date of his injury Ide asked for and was given permission by the MacFarlane president to use a company van to go grocery shopping after work. After concluding his work for the day, Ide began to leave the MacFarlane property with the van, but experienced a flat tire while he was still on that property. As Ide was changing the tire, he injured his lower back. He thereafter filed for worker's compensation.

The administrative law judge, while not explicitly finding that Ide's original injury was work-related, did grant him a partial award. The Labor and Industry Review Commission (LIRC) reversed the ALJ. In its memorandum opinion, LIRC found that at the time of the injury, Ide was not performing services growing out of and incidental to his employment. See Wis. § 102.03(1)(c)2. Rather, LIRC concluded that Ide had completed work at the time of the injury and that his injury occurred after he began a purely personal errand: going to the grocery store. LIRC also determined that using the van was not the usual or ordinary method by which Ide left work each day.

The circuit court affirmed LIRC's decision. The court of appeals thereafter reversed. The appellate court agreed that there was sufficient credible evidence to support virtually all of LIRC's findings of fact but nevertheless reversed, concluding that because someone had to change the tire, Ide's attempting to do so constituted a benefit for his employer ­ a compensable event.

In a unanimous decision authored by Justice Wilcox, the supreme court reversed the court of appeals. It concluded that there was credible and substantial evidence supporting LIRC's determination that Ide's back injury was not compensable under the Worker's Compensation Act because he was not performing a service growing out of or incidental to his employment; rather, he was finished working for the day and had begun a purely personal errand when he was injured.

In its decision the supreme court noted that Ide was not responsible for the maintenance of the van as part of his employment and changing a vehicle tire was not part of his duties or incidental to his employment. The fact that the injury occurred on MacFarlane Farm's property would not alone bring about liability for the employer nor would the fact that the president gave Ide permission to drive the van after hours support a finding that the latter was acting within the scope of his employment.

Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.