Opinion
December 4, 1951 —
January 8, 1952.
APPEAL from a judgment of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.
For the appellants there were briefs by Smith, Okoneski, Puchner Tinkham of Wausau, and oral argument by R.E. Puchner and Richard P. Tinkham.
For the respondent there was a brief by Genrich Terwilliger, attorneys, and Emil A. Wakeen, Walter H. Piehler, and Neil M. Conway of counsel, all of Wausau, and oral argument by Herbert Terwilliger.
This action involves an easement across a small tract of land located in block number 13 of the original plat of the village (now city) of Wausau, Wisconsin. This block is bounded on the north by Jefferson street, on the west by Second street, on the south by Washington street, and on the east by Third street. The block consists of eight lots. Lots 1, 2, 3, and 4 are located in the south half of the block and are numbered in that order from west to east. Lots 5, 6, 7, and 8 are in the north half of the block and are numbered in that order from east to west.
The plaintiff is the owner of the south half of lots 5 and 6. The west eleven and one-half feet of the plaintiff's property consists of an alleyway. The defendant Winkelman Realty Company is the owner of lot 2 and the west half of lot 3, the south 96.85 feet of the east half of lot 3, and the south 96.85 feet of lot 4. The defendant Winkelman Department Store leases all of its real estate from Winkelman Realty Company, and in turn subleases lot 2 and a portion of the west half of lot 3 to Winkelman's Men's Store. All of the defendant corporations are controlled by the same group and will be referred to as the "defendants." They operate a department store on the east half of lot 3 and on lot 4, and an appliance store on the west half of lot 3, and a men's store on lot 2.
For several years prior to 1936, one Max Tisch was the owner of lot 2 and had a commercial building thereon, consisting of a plumbing shop, garage, and retail plumbing store. One Albert Dern was the owner of the west half of lot 3 and used the lower floor of the building thereon for a barbershop and the second floor for living quarters. In 1934, Tisch bought the Dern property. He remodeled the building thereon and leased it with the building on lot 2 to Sears Roebuck Company, which used the entire property as a retail store. In 1936, the Kresge Company tried to close the alleyway which extends across the west eleven and one-half feet of its property. Tisch thereupon brought an action to establish his right to use the alleyway in question against the Kresge Company, and judgment was entered in said action on September 16, 1936, wherein Tisch was adjudged to have a perpetual right of way for all purposes of ingress and egress across said alleyway to and from the west half of lot 3. In 1943, the defendants purchased the Tisch property with the appurtenant easement. Thereafter the basement of the Tisch buildings, the area under the alleyway from Washington street, and the area under the sidewalks were treated as one storeroom for all of the buildings. Merchandise consigned to the different Winkelman stores was delivered across the plaintiff's alleyway to the former Dern building, from which it was distributed to the other stores.
The complaint herein set forth two causes of action: The first, to establish the claim of the plaintiff against any claim of the defendants except their easement for ingress and egress to the west half of lot 3; and second, to enjoin the defendants from using any portion of plaintiff's real estate except as a right of way for ingress and egress to the west half of lot 3, and to enjoin defendants from conveying or transporting merchandise to or from the men's store or the department store by way of the former Dern property.
The trial court found that the easement acquired by the defendants from Tisch is appurtenant only to the west half of lot 3 and is not appurtenant to any of the other property owned by the defendants, but that the defendants had made regular and substantial use of said easement for the transportation of merchandise for the other stores. The trial court further found that such use was not within the contemplation of the owners of the premises at the time the easement was acquired by prescription, and that said unauthorized use is an added burden upon the servient estate owned by the plaintiff.
The judgment quieted title to the alleyway in question in the plaintiff, but recognized the easement for ingress and egress to the west half of lot 3 in the defendant Winkelman Realty Company. The judgment further enjoined the defendants from imposing a different kind of use or species of burden upon said easement right than was acquired by prescription and established by the judgment of September 16, 1936, and defendants were specifically enjoined and restrained from using said easement for the purpose of bringing or taking goods, merchandise, supplies, or other articles to and from lot 2, the east half of lot 3, and lot 4 in said block across the alleyway of the plaintiff.
The defendants appeal from the judgment entered January 20, 1951, and the plaintiff served notice of review thereof and asked for modification of said judgment to enjoin any use of the easement by the defendants.
The defendants claim that the owner of land has a right to use it to its fullest economic value. With this general statement there can be no quarrel. However, the plaintiff is the owner of the alleyway in question, subject to the easement established by the judgment of 1936. There is another general statement of law that an easement can be used only in connection with the estate to which it is appurtenant. Reise v. Enos, 76 Wis. 634, 45 N.W. 414; Guse v. Flohr, 195 Wis. 139, 217 N.W. 730. A prescriptive right acquired by a particular use of the property cannot ordinarily justify an added use in connection with the dominant estate in a manner far different from that employed under the original use. Defendants' easement was established because of use of the alleyway by the owner of a building used for a barbershop and living quarters. The fact that in 1934 the property was used in connection with lot 2 as a retail store had not established any prescriptive rights in 1936. In this case the defendants have greatly changed the use of the dominant estate in that it is now used as a retail outlet for appliances and as a storage warehouse for other merchandise that is not to be sold upon the premises. The trial court's finding that this was an added burden upon the servient estate is clearly supported by the evidence.
The facts in this case are similar to those in the case of McCullough v. Broad Exch. Co. 101 App. Div. 566, 92 N Y Supp. 533. In that case an easement permitted the use of an alley for ingress and egress over a servient estate. Later the dominant estate was included as part of a larger tract of land upon which an office building was erected. The building was heated by a single plant on the dominant estate, which was located so that the alley could be used in hauling coal to and removing ashes from the building. The court there held that the owner of the office building had no right to use the dominant estate to generate heat which he transmitted to portions of the building not located on the dominant estate. This was held to be an added burden upon the servient estate and an improper attempt to enlarge upon the original easement.
The defendants further contend that they have not unreasonably burdened or changed the nature of the use of the alleyway. It was held in the case of Lindokken v. Paulson, 224 Wis. 470, 272 N.W. 453, that an easement for a specified purpose may be enlarged by subsequent adverse user. The owner of the servient estate is not required to wait until his property has been unreasonably burdened and thereby permit additional rights to be gained by prescription but he may proceed when any additional burden is placed upon his property and whenever the defendants improperly attempt to increase their rights under their easement.
The plaintiff, by motion for review, asks for modification of the judgment to enjoin any use of the easement by the defendants on the ground that it is difficult to distinguish the increased burden from the lawful use of the easement to which the defendants are entitled. The judgment granted all of the relief prayed for by the plaintiff in its complaint. Sec. 270.57, Stats., provides:
"The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded m his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue."
The defendants having answered, the court could have granted any relief consistent with the allegations of the complaint. He did not choose to enjoin the defendants from making any use of their easement, and since there was no abuse of judicial discretion, there is no basis for plaintiff's motion for review.
By the Court. — Judgment affirmed.