Werler v. Berends

1

JOHN P. WERLER AND NANCY H. WERLER, PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS, v. DOUGLAS BERENDS, DEFENDANT-APPELLANT-CROSS-RESPONDENT.

No. 2023AP827

Court of Appeals of Wisconsin, District III

November 12, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL and CROSS-APPEAL from an order of the circuit court for Burnett County: Cir. Ct. No. 2018CV3 DANIEL J. TOLAN, Judge. Affirmed in part; reversed in part and cause remanded with directions.

Before Stark, P. J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

PER CURIAM

¶1 Douglas Berends appeals and John P. and Nancy H. Werler cross-appeal from the circuit court's order, entered after a bench trial, concluding, among other things, that the Werlers do not have an easement over Berends' property. Berends argues that the court erred by failing to unequivocally state that the Werlers have no easement to any part of Berends' property, by ruling that the Werlers have access over Berends' lot to their existing driveway by not granting Berends the right to access a portion of the Werlers' property, and by not ordering the Werlers to remove a pole barn and a stone support structure that Berends claims were erected in violation of zoning setback requirements. The Werlers, for their part, assert that the court erred by concluding that the Werlers do not have a valid easement over Berends' property to access a public highway.

¶2 For the reasons that follow, we conclude that the Werlers have a valid easement over Berends' property; thus, we reverse the circuit court's order on that basis and remand the matter for the court to enter a revised order consistent with this opinion. We affirm the court's order as to the remaining issues.

BACKGROUND

¶3 This case involves a dispute over an interest in real property. At issue are four parcels of real property, which are located on Tabor Lake in Burnett County, Wisconsin. At the present time, Berends owns the northernmost parcel (the Berends Lot), and the Werlers own three parcels located directly to the south (WerlerLots 1, 2, andS).^[1]

¶4 Historically, the lots were accessible by a roadway, which ran along the eastern boundary line of the Berends Lot and Werler Lots 1 and 2 and ran through Werler Lot 3 (hereinafter, Old Tabor Lake Road). Although Old Tabor Lake Road was located on private property, the Town of Swiss (the Town) maintained the roadway. In the early 1990s, the Town built a new roadway, moving the location of the road further to the east of the Berends Lot and Werler Lots 1, 2, and 3 so that the road no longer cut through the eastern part of Werler Lot 3 but instead ran through its southern part (hereinafter, Tabor Lake Drive).

¶5 The Werlers' cabin is located on Werler Lot 2, which has a driveway that connects to Old Tabor Lake Road at the end of their eastern lot line. Thus, after Tabor Lake Drive was opened, the Werlers still needed to use Old Tabor Lake Road to access their property,^[2] whereas Berends had access to his property from the north. It is undisputed that Berends owns the property under Old Tabor Lake Road lying north of Werler Lot 3 and east of Werler Lots 1 and 2.

¶6 Once Tabor Lake Drive opened, the Town eventually stopped maintaining Old Tabor Lake Road. According to the testimony presented at trial the Town last patched the asphalt on Old Tabor Lake Road in 1992 or 1993, and it last plowed the snow in October 1991. Moreover, Berends modified a section of Old Tabor Lake Road on his property by clearing the asphalt and laying down grass seed. The Werlers also installed a gate at the intersection of Old Tabor Lake Road and Tabor Lake Drive on Werler Lot 3 and later added a lock to the gate and boulders on either side.

¶7 Eventually, in June 2007, the Town board voted to vacate Old Tabor Lake Road "subject to" an easement "created in favor of [the Werlers] for ingress, egress and utilities over and across" a portion of the Berends Lot (hereinafter, the 2007 Resolution).^[3] The 2007 Resolution described a forty-foot-wide access easement positioned generally over Old Tabor Lake Road on the Berends Lot, running along the entire eastern edge of Werler Lot 2 and about half of the eastern edge of Werler Lot 1. This easement provided direct access to Werler Lots 1 and 2 from Tabor Lake Drive. It is on this basis that the Werlers claim an access easement over the Berends Lot.

¶8 Thereafter, in 2015, the Werlers decided to build a garage on their property, which appears to have sparked the conflict underlying this case. The Werlers applied for a permit with the Town in 2016, which the Town granted, and they subsequently erected a pole barn near where Werler Lot 1 borders the Berends Lot to the north. To build the pole barn, the Werlers removed trees and grass along their property line bordering the Berends Lot. The pole barn is situated thirty-nine feet from the eastern boundary and ten feet from the northern boundary of Werler Lot 1. The Werlers also built up the ground under the pole barn using soil and installed "riprap" around the base of the pole barn to keep that soil in place.^[4] Further, the Werlers created a new driveway area, connecting the pole barn to Old Tabor Lake Road where they claimed an easement.

¶9 According to Berends, the Werlers created three new driveways, and Berends informed them that he objected to the driveways, but construction continued. As a result, Berends began parking approximately eleven to twelve "junk" vehicles to block the Werlers' access to his property, which the Werlers claimed blocked their driveway. The Werlers allege that attempts to discuss the issue with Berends were ignored.

¶10 Therefore, the Werlers brought this lawsuit to determine their easement rights, and Berends responded with counterclaims. Both parties sought declaratory judgments clarifying the existence of an easement and their respective claims of ownership, injunctions barring the other from entering their respective properties, and damages for the other's alleged trespasses. In addition, Berends claimed that the Werlers' pole barn violated setback requirements in the Burnett County Code of Ordinances (the zoning code), that the Werlers had removed trees from his property, and that the riprap was a nuisance.

¶11 The parties filed cross-motions for summary judgment. After briefing, the circuit court issued its oral ruling,^[5] which was memorialized in a written order. Based on the court's finding of material issues of fact, the court denied both Berends' and the Werlers' cross-motions for summary judgment.

¶12 The case proceeded to a bench trial on May 11 and 12, 2021.^[6]Thereafter, the circuit court issued its oral ruling on December 20, 2021. The court concluded that the Town never had an easement over the Berends Lot;^[7]therefore, the Werlers did not have a valid easement because the Town could not have assigned an easement that it did not have. As a result, the court stated that the Werlers were required to move the new driveway on Werler Lot 1 but that they would still have "access to the existing driveway on Werler Lot 2 over Berends' property." The court further determined that the Werlers owned the property located under Old Tabor Lake Road within Werler Lot 3 and that Berends did not own or have an easement over that area.

¶13 The circuit court also rejected Berends' claims that the Werlers' pole barn and riprap violated the zoning code's setback requirements. It ultimately awarded each party $100 in nominal damages for their respective trespass claims and denied punitive damages. The court further awarded Berends $3,000 in damages for the Werlers' removal of trees and vegetation on the Berends Lot but granted no damages for nuisance as a result of stones falling from the riprap. Finally, the court permanently enjoined both parties from using Old Tabor Lake Road on each other's lots. Berends appeals, and the Werlers cross-appeal.

DISCUSSION

¶14 Following a bench trial, we review a circuit court's decision under a well-established standard. Our review is highly deferential to the court's findings of fact. Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI 46, ¶11, 290 Wis.2d 264, 714 N.W.2d 530. "On review of a factual determination made by a [circuit] court without a jury, an appellate court will not reverse unless the finding is clearly erroneous." Noll v Dimiceli's, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983) (citing WIS. STAT. § 805.17(2)). "A circuit court's findings of fact are clearly erroneous when the finding is against the great weight and clear preponderance of the evidence." Royster-Clark, Inc., 290 Wis.2d 264, ¶12. "Under the clearly erroneous standard, 'even though the evidence would permit a contrary finding, findings of fact will be affirmed on appeal as long as the evidence would permit a reasonable person to make the same finding.'" Id. (citation omitted). We also search the record for evidence supporting the court's decision. Id. In contrast, "[t]his court reviews conclusions of law independently and without deference to the decision of the circuit court." Id., ¶13 (citation omitted).

¶15 On appeal, Berends presents several issues for our review (1)the circuit court erred "by limiting its finding [that the Werlers did not have an easement] by stating that the Werlers have no easement to only a part of the Berends Lot, leaving a possible interpretation that the Town ... did convey to the Werlers an easement to part of the Berends Lot"; (2) the court erred by "ruling that the Werlers have access over part of [the Berends Lot]"; (3) the court erred by not granting Berends the...