Property — easements

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Wisconsin Court of Appeals

Civil

Property — easements

A grant of property to a municipality for a right of way is an easement rather than a transfer of title.

“If, as the Town asserts, the parties intended to grant Brown County title to the land, their choice of the phrase ‘right of way’ is certainly curious. A right of way, ‘in its strict meaning, is “the right of passage over another man’s ground,” and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to public use, or by purchase.’ Williams v. Western Union Ry. Co., 50 Wis. 71, 5 N.W. 482 (1880). ‘It would be using the term in an unusual sense, by applying it to an absolute purchase of the fee-simple of lands to be used for a railway or any other kind of way.’ Id. Thus, the phrase ‘right of way’ strongly suggests that Brown County received easements, gaining ‘only the right to a reasonable and usual enjoyment’ of the land, with the Selners retaining ‘all the rights and benefits of ownership consistent with the easement.’ See Kleih v. Van Schoyck, 250 Wis. 413, 418-19, 27 N.W.2d 490 (1947); see also Tibbitts v. Anthem Holdings Corp., 694 N.W.2d 41, 44 (S.D. 2005); Ogg v. Mediacom, L.L.C., 142 S.W.3d 801, 811 (Mo. Ct. App. 2004) (use of terms like ‘right of way’ is a ‘strong, almost conclusive’ indication that interest conveyed is an easement).”

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP1807-FT Berger v. Town of New Denmark

Dist. III, Brown County, Hammer, J., Cane, J.

Attorneys: For Appellant: Goehre, Kurt A., Green Bay; For Respondent: Sickel, James R., Green Bay