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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 |
Real
Property
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.
Torts
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.
Worker's
Compensation
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.
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