69 N.W.2d 449
Supreme Court of Wisconsin.March 8, 1955 —
April 5, 1955.
APPEAL from a judgment of the circuit court for Milwaukee county: GUSTAVE G. GEHRZ, Circuit judge. Reversed.
Action to compel defendant to replace a certain sidewalk over which plaintiffs claim an easement and to refrain from obstructing it. The relief prayed for was granted by the judgment from which defendant now appeals.
Plaintiffs are husband and wife but hereinafter will be referred to only in the person of the husband.
Prior to August 7, 1947, Northern Realty Company owned a lot approximately 150 feet long and 30 feet wide fronting on the south side of West Forest Home avenue in the city of Milwaukee. On that day Northern Realty Company
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conveyed the south, or rear, 61 feet of this property to the plaintiff. There was a dwelling on the part conveyed to plaintiff and another dwelling on the part retained by Northern Realty Company. The deed of conveyance contained the following clause:
“Whereas, there is a common sidewalk serving the real estate hereinbefore described which said sidewalk leads from the street to the alley located in the rear of the same. . . .
“3. The parties hereto do hereby grant reciprocal easements for the free and uninterrupted passage in and along one certain sidewalk which is partly located on each of the parcels of real estate hereinbefore described and for the free and uninterrupted ingress, egress, and regress thereon by the parties hereto, their respective tenants and guests.”
The sidewalk mentioned in the deed was of concrete and was approximately two and one-half feet wide. It ran north and south about three and one-half feet in from the east lot-line. Dukat’s parcel was lower than the surrounding area and in wet weather water accumulated there. At such times he laid concrete blocks upon the sidewalk and placed planks on top of the blocks so as to use his easement dry-shod.
One Krause, a used-car dealer, owned a used-car lot adjoining the Northern Realty Company’s parcel on the east. For the purpose of enlarging this lot on September 7, 1947, he purchased from Northern Realty Company the portion of its lot which it had not sold to plaintiff and tore down the dwelling there and filled in the excavation. On or about June 21, 1948, he had a conversation with Dukat and told him that he intended to grade his own property and cover it with black-top and that he was willing, at his own expense, to raise the grade of Dukat’s lot and to black-top it in conjunction with the work he proposed to do on his own property. Krause asked Dukat’s permission to do so, which was granted by Dukat in the following written instrument which Dukat signed June 21, 1948.
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“The undersigned, owners of the real estate commonly known as 2031B W. Forest Home avenue, Milwaukee, Wisconsin, hereby give permission to Krause Auto Distributors of 2027 W. Forest Home avenue, Milwaukee, Wisconsin, to lay a composition road material on their property, the extent of which is fully known to the undersigned, and the undersigned hereby releases said Krause Auto Distributors from any and all liability by reason of laying said material.”
Dukat testified at the trial that he interpreted this document to mean that Krause would grade and black-top both properties.
“Q. (Interposing) In other words, somebody told you, — and you say it’s Mr. Krause, — that they would fill the thing up for you on your own lot so that you wouldn’t have so much flowage on your lot? A. That’s right.
“Q. And they would black-top your premises, correct?A. Yes.
“Q. Including the portion of the sidewalk, right? A. Yes.
“Q. And they would also black-top their own premises?A. That’s right.
“Q. Did you raise any question at that time to Mr. Krause that he shouldn’t black-top over the sidewalk? A. I didn’t tell him to put it in there.
“Q. You didn’t tell him not to? A. No.
“Q. You let him go ahead and black-top your own place?A. He black-topped it himself.
“Q. And the black-topping of your premises benefited it, didn’t it? A. I suppose it did.
“Mr. Lewis: just a minute. I object to questioning with reference to the black-topping of his premises.
“The Court: The answer is there and it may stand. Read it.
“(Whereupon the last question and answer were read by the reporter.)
“The Court:
“Q. What do you mean by `supposing it did?’ A. Well, it was low in there and I figured it did do a little improvement.”
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The proposed operation was carried out by Krause at a cost of approximately $625 for the Dukat portion. Thereafter Krause sold his property to one Milbrath who conveyed the same to the defendant July 14, 1949. Defendant still owns it and has leased it to one Fox. Fox, Milbrath, and Krause all conducted used-car businesses and have used the premises as a sales lot. The sidewalk, now covered with black-top, lies through the middle of the combined holdings, now owned by defendant, and cars parked on the lot sometimes obstruct direct passage over the line of the buried sidewalk from Forest Home avenue to plaintiff’s house. Krause and Milbrath told Dukat that he was at liberty to walk over any portion of their black-topped lot and he actually did so. His customary route was over a strip approximately four feet wide extending from front to rear along the west edge of the original Northern Realty Company lot and thus some 25 feet distant from the former sidewalk. Concerning a relocation of the easement, Dukat testified:
“Q. . . . At the time they black-topped — they black-topped your premises, you accepted the benefits there, didn’t you? A. Well, I wouldn’t — I accepted some but I didn’t think that I would accept the whole works.
“Q. And at that time, there was discussion about the passageway, was there not? A. There was something said about that but — but nothing was done.
“Q. And you were told that the black-topping of the surfaces, including your own premises, would take place and that you then, and your family, would have an ingress and egress right of way over the west side of the north premises; is that right? A. No.
“Q. Didn’t you so testify before? A. I had nothing in writing. They said they would put me there and that was all.
“Q. In other words, they said you could have the west line there of the lot for a passageway; right? A. Ya, I suppose temporary, maybe it was.”
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This was on or about June 21, 1948. About two years later, after defendant had succeeded Krause, Dukat complained to defendant that this western passageway was not always unobstructed and he retained an attorney who wrote defendant as follows:
“Please be advised that I have been retained by Mr. John Dukat of 2031B W. Forest Home avenue, who has an easement over the used-car lot owned by you at 2027-2031 West Forest Home avenue, in order to enter his home which is situated in the rear of your lot.
“My client informs me that you or your lessee are violating the terms of said easement by parking cars on the strip of land set aside for this purpose. He also informs me that your immediate predecessor in title unlawfully hooked a sewer into Mr. Dukat’s sewer causing flooding of the premises owned by my client. There is also an iron post upon which there are wires for lighting purposes, which is directly on the portion of the land set aside for the easement.
“I am about to commence an action against you and your predecessors in title to enjoin and restrain you from violating the terms of the easement, but before doing so, I would appreciate hearing from you, stating what your position is or what you intend doing in order to rectify same.”
The post referred to is in the northwest corner of that portion of defendant’s property formerly owned by Northern Realty Company and by Krause.
On receipt of this letter defendant’s secretary and its counsel met Dukat and his lawyer at the premises. Plaintiff testified that he recalled the meeting and its purpose was to obtain assurance that the passageway along the west line would be kept open. Thereafter a yellow line was painted on the black-top from north to south about four feet from the west lotline to mark a passageway where cars should not be parked. Later plaintiff became dissatisfied with this arrangement
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for on November 27, 1950, he executed, and on December 5, 1950, served on defendant a summons and complaint commencing the present action. In it he demanded that the defendant be required to replace the sidewalk in its former condition and original location and be perpetually enjoined from parking cars over it.
The trial court made findings of fact which stated that the easement contained in the conveyance of August 7, 1947, is still in full force and effect and has not been changed by any of the parties or their successors in title and is a covenant running with the land. The court also found as a fact that no permission was given by the plaintiff to Krause to cover the sidewalk; that cars were being parked and driven over the portion reserved for sidewalk purposes and that such sidewalk was not set off or distinguished from the rest of the premises. The court also found that when the defendant purchased the premises it had both actual and constructive knowledge concerning the location of the sidewalk but that notwithstanding plaintiff’s complaint it continued to obstruct the sidewalk easement. Judgment entered upon such findings perpetually enjoined defendant from parking or driving cars over such sidewalk and required the defendant within thirty days after the entry of judgment to restore the concrete sidewalk as it was before it was covered with composition road material and to place safeguards and barriers to prevent cars from being driven over it.
Defendant has appealed and submits that the findings are against the great weight and clear preponderance of the evidence.
For the appellant there was a brief by Stern O’Brien, and oral argument by John M. O’Brien and Philip W. Croen, all of Milwaukee.
For the respondents there was a brief and oral argument by Ben Lewis of Milwaukee.
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BROWN, J.
The finding that the plaintiff did not give permission for Krause to cover the sidewalk is contrary both to the written permission and to plaintiff’s interpretation of the intent of the writing. The finding that the location of the easement originally granted on August 7, 1947, has not been changed by any of the parties to the original conveyance or their successors in title is also contrary to the undisputed evidence. The written demand made by plaintiff’s counsel on June 13, 1950, locates the easement then claimed by plaintiff by reference to an iron post which is on the northwest corner of the original Northern Realty Company lot, whereas the sidewalk in dispute ran south from that lot’s northeast corner, approximately three and one-half feet west of the easterly line of the lot. When the parties met, after defendant had received the written demand, to discuss plaintiff’s objections, plaintiff himself testified that the area immediately adjoining the west line was the easement which he claimed and wished to have kept clear. Plaintiff’s own testimony establishes the fact that the parties had relocated the original easement by mutual consent. The court’s findings to the contrary are against all the credible evidence and when corrected will not support the judgment which therefore must be reversed.
Defendant has asked that this court use its equity powers to define the easement to which plaintiff is entitled. Plaintiff’s original easement was approximately two and one-half feet wide. His demand on defendant for an unobstructed easement along the west lotline was acceded to by defendant by outlining in yellow paint a four-foot strip along that line. This gave plaintiff slightly more width than he had in his original easement but it is clear that it met plaintiff’s demand as to location. We must hold that this easement has been substituted by mutual agreement for the original one.
By the Court. — Judgment reversed, and cause remanded with directions to the trial court to enter judgment locating
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an easement for the benefit of plaintiff’s premises over and upon the westerly four feet in width of defendant’s premises and extending from Forest Home avenue to the northern boundary line of plaintiff’s property, as such premises are described in the judgment previously entered herein.