00-3182 Schultz v. Trascher

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Barbara Trascher appeals from a judgment entered following a court trial dismissing Suzanne Schultz’s claims for adverse possession and prescriptive easement, but concluding that the fence Trascher erected on her own property constituted a private nuisance. The trial court concluded that the placement of the fence unreasonably impaired Schultz’s use and enjoyment of her garage. The trial court ordered Trascher to remove part of the fence she had erected. The trial court also ordered Schultz to pay costs associated with removal of the fence, but found that Schultz was the prevailing party, and ordered Trascher to pay costs accordingly. Schultz cross-appeals from that part of the judgment denying her claim for relief based on an easement by prescription.

Trascher raises numerous points of trial court error, which we condense to three issues: (1) whether the trial court erroneously exercised its discretion by sua sponte orally amending the claim for relief sought by Schultz; (2) whether the trial court record supported the conclusion that a private nuisance occurred; and (3) whether the trial court erroneously exercised its discretion in applying a remedy under Wis. Stat. sec. 844.01.

By way of cross-appeal, Schultz claims the trial court erred as a matter of law in failing to conclude that there was sufficient evidence to entitle her to a prescriptive easement on the north side of Trascher’s property.

Because the trial court did not erroneously exercise its discretion in orally amending the claim, in applying the doctrine of private nuisance, and in applying the remedial provisions of Wis. Stat. sec. 844.01, we affirm on the appeal.

Because of this disposition, we need not address the cross-appeal. Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need to be addressed).

Not recommended for publication in the official reports.

Dist I, Milwaukee County, Malmstadt, J., Wedemeyer, P.J.

Attorneys:

For Appellant: Irving D. Gaines, Milwaukee

For Respondent: William E. Ryan, Milwaukee