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  1. #1
    Join Date
    May 2008
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    19

    Default Can a Judge Expand Your Easement

    Hi everyone, - we are in Wisconsin.

    My lawyer went to a status hearing, and the judge informed everyone, even though the motion hasn't been heard yet, that the people suing us to use an easement (there is no written instrument - been around for 80 years - they are not landlocked if they would not get rights to cross my property) will win their motion on July 1 to set the width (of a yet to be determined easement) to 14 feet. The problem?

    A. We haven't even had the motion seeing how it is going to be Jul 1.
    B. Our whole north property (100 feet) has a 13 foot driveway. The people suing us have a 10 to 13 foot driveway, then in between us there are 2 connecting houses where the driveway runs 16 feet to 22 feet wide. Can this clown judge really order us to pave an extra foot, or allow people to use this extra foot when it has never been used and there is nothing written about this thing. Does this seem right? The lawsuit hasn't even come up at all yet (and we are planning on filing a summary judgement). I should also mention that after this hearing, my neighor went out to pave an extra 1 to 3 feet to the existing width of the easement.

    Do we really need to have it surveyed before the end of this lawsuit? Seems ridiculous, what if by chance I appeal, because I know this *judge* will probably have us losing and we will appeal this thing. Do we get reimbursed? No probably not ... so where is the rationale?

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
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    2,584

    Default Re: Can a Judge Expand Your Easement

    Valid unwritten rights in real estate are superior to valid written rights. This can be a difficult legal concept but is generally true.

    Eighty years of use trumps any theory you might have about a lack of written easement. This is obvious to the "clown" judge but not to you.

    I have the feeling that you have not quite stated all the the pertinent facts of this case. Why are you being sued?

  3. #3
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Judge Expand Your Easement

    http://www.expertlaw.com/forums/showthread.php?t=50737

    http://www.expertlaw.com/forums/showthread.php?t=50995

    larry, you really shouldn;t start another thread about this. All you info is in another thread (actually 2, I didn't see your first thread)

  4. #4
    Join Date
    May 2008
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    19

    Default Re: Can a Judge Expand Your Easement

    Landsurveyor, I appreciate your response but there is a statute in Wisconsin - 893.33 and some case law to back up extinguishing claims for prescriptive easements and adverse possession claims when their 30 year recording period has passed.

    jk, I started a new thread because it is a completely different topic, though related. I didn't know that 1 person could only start one thread on this site, and couldn't start different threads on different subjects.

    I still asked if a judge can expand an existing 'easement' that has been around for 80 years. E.g. if it has been 10 feet wide for 80 years, and your neighbors decide, arbitrarily in negotiations to have it 14 feet - should I be burdened with this - being the already burdened party.

  5. #5
    Join Date
    Oct 2007
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    Ohio
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    Default Re: Can a Judge Expand Your Easement

    It sounds as if your goal is to invalidate the entire easement. This is not just about a one foot strip, right? If you win under 893.33 you will extinguish the entire easement. What might your neighbor do at that point?

    893.33 might offer some protection against an easement but how will you defend yourself from an adverse possession claim, which is an exception to the 30 year recording requirement per 893.33(5), which also appears to be backed up by case law (the"owner in possession" exception).

    I think that you and your neighbor are going to be getting into some real money as you take this case to the appeals court and then the supreme court.

  6. #6
    Join Date
    May 2008
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    19

    Default Re: Can a Judge Expand Your Easement

    I can certainly see the appeals court coming into play.

    First off - my instincts may be completely wrong, but I have read 40 or 50 cases in circuit and appellate court for wisconsin, ...

    Yes I seek to extinguish the portion that runs west behind my house but in front of my back yard. The north end, which run up to my garage is a valid easement agreement, so my neighbor to the north has legal rights to use this. I don't wish for my children to get run over because these teenagers, drunks and hillbillies can't drive a safe speed.

    How do I explain the adverse possession ... well, first and most important is that they do not (I believe) meet the requirement for adverse possession on one large point: they haven't 'unusually cultivated or improved' our property like you would see in successful cases and the case law. Circumstances seem to be things like mowing, planting trees along the edge ... stuff like that. They also do not have an absolute neccessity as they can go out through the other side. Adverse possession cases also give make everyone owner then of my portion, and Wisconsin Courts seem to make it clear that other people cannot own anothers land unless they have met all the requirements (some of which I posted above).

    My problem is I am unsure of how I look at this whole thing, the judge already without looking at the case (as he says himself "I have 600 cases a year and I don't have time to spend on crap like this") has determined I believe since he is elected, that it is better to satisfy 5 voters and screw one, then to satisfy 1 voter and screw 5. Or he is just so overwhelmed he thinks it is frivolous and doesn't want to spend time to actually look anything up. In that case I hope I can get it to Appeals.

    Thanks for any advice!

  7. #7
    Join Date
    Oct 2007
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    Ohio
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    Default Re: Can a Judge Expand Your Easement

    I don't wish for my children to get run over because these teenagers, drunks and hillbillies can't drive a safe speed.
    This sounds very possessive and adverse to me. I have seen a judge hang his hat on less than this.

    I know how I think adverse possession cases should go, based on precedent, but I have seen it done even to RAILROADS and that is not supposed to happen.

    Your trial judge has wide discretion in deciding your case. You apparently have the funds and the will to go to appeal and that is your right of course. But half the cost of that might easily buy your neighbor out of his claim.

  8. #8
    Join Date
    May 2008
    Posts
    19

    Default Re: Can a Judge Expand Your Easement

    Not to be flip, but no one is giving any opinion on if a judge is within his legal right to make an easement larger, and further burden me? Like I have stated this thing has been around 80+ years - and has been paved to 13 feet before I moved in - so how can someone expand this - and thus expand my burden unless Mr. Judge Almighty is just not paying attention to Mr. Statutes and Mr. Caselaw?

  9. #9
    Join Date
    Oct 2007
    Location
    Ohio
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    Default Re: Can a Judge Expand Your Easement

    Your trial judge has wide discretion in deciding your case.
    Perhaps I wasn't clear enough with that statement. It was intended to sound like an opinion.

    Your judge can do anything he wants to do with you and your case. And he probably will. If you appeal and overturn him, he won't be going to jail or losing his Corvette.

    Not to be glib, but I think that your question has been answered. And never intending to argue at all but to give you my own opinion which is entirely anecdotal and not legal advice of course.

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