Closing Off Part Of A Driveway Easement, in Wisconsin

**larryboyuno** · 05-30-2008, 10:28 AM

I share a u shaped driveway with 5 other houses (driveway comes up on my property - north, swings south past 3 houses and exits on the south end. It cuts off our backyard, and it has been in existance since 1920's. There is no written instrument for the portion that goes behind my house, only an agreement to share the north (where it comes up) with my 1 neighbor to the north. To the south there are 4 houses, some of which abuse the driveway, so since there was no recorded instrument, we closed it off for the safety of our children. There is a statute (893.33) that seems to support me (Schauer v. Baker) however it could be costly if I am not right. I am being sued right now for it. From 893.33 - it seems to state that since it is past it's recording period, to quiet stale claims, they should be barred from suing me, what is your opinion(s)?
Thanks

**Mr. Knowitall** · 06-01-2008, 06:52 AM

You mean you're being sued? Then confirm your actions with a local real estate lawyer because yes, win or lose, it's expensive to be sued.

**larryboyuno** · 06-02-2008, 06:44 AM

So does anyone have an actual reply as to what they theorize my rights might be? I already said I was being sued.

I should mention they won a temporary restraining order allowing them to use it until we mediate this or win/lose. I also wonder if I lose - would the judge still rule on width of it, maintenance, allowable speed? I am hoping for an opinion that doesn't refer me to a 'real estate lawyer'. I have talked to DOZENS of them and none of them seem to have any idea what my rights are at this point.

**Mr. Knowitall** · 06-02-2008, 06:48 AM

Your right to close off an easement in use for almost a century? Pretty slim. Isn't that what your lawyer has already told you?

Discuss with your lawyer the threshold for getting a temporary restraining order - it's usually a showing that the party seeking the injunction is likely to prevail on the merits, in which case the judge has already foreshadowed what's likely to happen based upon the evidence presented to date.

**larryboyuno** · 06-02-2008, 06:54 AM

No, the lawyers don't have any idea - I am in a rural county and they don't seem to be the brightest. There is a famous case Schauer v. Baker which forbid a prescriptive easement because it had been 139 years with no written instrument and it seems by law - the one I quoted initially - that it expired after the 20 years of trespass and then 30 years of prescriptive easement ran ... so it seems since both parties agreed in this case that the use was continual for the duration, that this paved the way for the decision, if they had tried to argue (it seems) that the trespass began within 50 years then they would have probably have a great chance, I just can't confirm my interpretation, thus I am interviewing lawyers ... I wish I could get an unbiased opinion / interpretation ...

Yuo are right, the judge did indicate they had merit, mainly because their were alot of facts that he never heard, and I dumbly didn't have a lawyer with us at this point ...

**VictorD** · 06-03-2008, 12:42 PM

Quoting larryboyuno

No, the lawyers don't have any idea - I am in a rural county and they don't seem to be the brightest. There is a famous case Schauer v. Baker which forbid a prescriptive easement because it had been 139 years with no written instrument and it seems by law - the one I quoted initially - that it expired after the 20 years of trespass and then 30 years of prescriptive easement ran ... so it seems since both parties agreed in this case that the use was continual for the duration, that this paved the way for the decision, if they had tried to argue (it seems) that the trespass began within 50 years then they would have probably have a great chance, I just can't confirm my interpretation, thus I am interviewing lawyers ... I wish I could get an unbiased opinion / interpretation ...

Yuo are right, the judge did indicate they had merit, mainly because their were alot of facts that he never heard, and I dumbly didn't have a lawyer with us at this point ...

I'm not a lawyer, so this is not legal advice or legal opinion.

But I Googled "wisconsin law 893.33" and found that this is a rather interesting situation. An article in the July 2004 edition of "Wisconsin Lawyer" discusses prescriptive easements in this context. According to the author of this article, it may depend on when various events occurred in (relatively) ancient history.

Let's say that your neighbors (or their predecessors in title) started using the driveway on what is now your land in 1920. Then for 20 years (until 1940), they were trespassing. By 1940, their trespass would have ripened into a prescriptive easement which they could have claimed in court. But 893.33 says that they have to claim the easement within 30 years. They didn't do that by 1970, so they lost their right to make a claim.

BUT (and here is the nasty part), in 1970, they started trespassing again, and by 1990 their trespass had ripened into another prescriptive easement. Now your neighbors have 30 years from 1990 in which to claim and record a prescriptive easement on the driveway on your land. And, apparently, that's exactly what they are doing.

Well, anyway, that's the interpretation of the guy who wrote the "Wisconsin Lawyer" article.

It seems to me that this is an example of a law with unintended consequences, but that's what's on the books.

Do you REALLY, REALLY want to fight this?

**larryboyuno** · 06-03-2008, 01:09 PM

Well the problem then lies in his math (I read his article as well) because in the case S v. B I quoted initially, the property in question had been agreed upon to have been in use for 139 years ... and if you calculate this by the 20 Trespass/ 30 Pres. Eas - then he should have had a prescripive easement right? But clearly he lost his action to get a prescriptive easement by the appeals court. So I think the intent of the law is to forbid actions like this that aren't within the 30 year recording period, like logging trails, etc...

What do you think?
I emailed the author but got no response ...

Yes I certainly do want to fight this but at what cost - is my question ... I don't want to lose but I don't want my children at risk. Our relations with our neighbors are already terrible, but they brought it on themselves ...

By the way my neighbors have agreed this has been in use past for about 80 years, so well beyond the 20/30. So I am going off of the statute and REAL case and not off of the author, though he is widely known in the my states easement law. S v. B clearly faults his logic though?

**currencia** · 10-26-2008, 08:23 PM

LarryBoyUno:

Well, I guess no one helped you and you are now at the mercy of a lawyer taking lots of your money and that lawyer knows little of what they are talking about either. Sorry, to say, the local judges in Wisconsin Circuit Courts are even dumber than your lawyer when it comes to this kind of law.

Easements, adverse possession, permissive easements, perscriptive easements are certainly confounding situations and slippery slopes. The lawyers will eat all of your and your ooponents money till you all cry uncle. However, I bet your adversaries are splitting the legal fees and you arepaying all of yours?!

Hey, look LarryBoy, neighbors have been using that road as their driveway for years right? They were using that driveway when you bought your plcae, no?

Since there was no written agreement after the years, you decided to rely upon that absence of writing and close the road, thinking you could get away with it because nothing was in writing? WRONG . So, to justify th action of closing the long employed roadway across your land, you make the excuse that you were only protecting your children from the long used roadway, right?! GET REAL.

On the one hand, adverse possession can (should) only be upheld when their is "open, outward, hostile holding of another's property from them , with all flags flying for 20 years". You failed to mention any activity to restrain these people from using your property over the 20 years. Did you give them permission? If you gave them permission, did you do it in writing? If so, send another letter to withdraw the permission. They cannot claim property by adverse possession when they had permission to use it and nobody was fighting about it for 20 years.

You failed to mention whether your lot and the neighbors lots were created by a subdivision under Wistat Chapter 236. If so, the plat had to be approved by zoning after being prepared by a surveyor. Each lot in the subdivision had to have road access that met zoning ordinance ane be reviewed by the zoning administrator. Without a private road access that eventually gets these lots to a public road, none of these lots should have been created. Is the road across your land the only way these 4 other lots had access to the public road?

Are you still in litigation or did you all give up? What is the result?

I think that if you became unhappy about maintenance and safety issues after all the years, you should have left the road open and went to court seeking a declaration of interest in real property whereby the neighbors might contribute to the road maintenance and abide by safety rules as an order of the Court.

I see people everyday blaming things on or making excuse of "oh, for my children,...". Quite silly and disengenuine, really.