[T]the court of appeals held that a servient estate could unilaterally terminate an express right-of-way easement once the servient estate provided an alternate route of ingress and egress to the dominant estate.
AKG Real Estate, LLC v. Kosterman
Louis and Angeline Chvilicek bought 84 acres of vacant land and gave four acres of it to their son and daughter-in-law. Along with this they gave an easement 30 feet in width and later another 66 feet wide.
Plaintiff later acquired the remaining 80 parcels and the 30-foot easement, and defendants acquired the dominant 4-acre estate. Plaintiff desired to build a subdivision on the estate and needed to relocate the road for traffic flow. Defendant objected to this, as it would put their house in an odd place, change their address, and lengthen their route off the property. AKG then sought a declaratory judgment.
The circuit court held that the 30-foot easement would terminate once plaintiff provided public road access, but that the 66-foot easement would remain in effect even afterwards.
Can an express easement be relocated without the owner's consent?
The purpose of the 66-foot easement was to provide ingress and egress until public road access was provided, but the subsequent developments have rendered it useless because DOT regulations prohibit constructing a road there.
The purpose of the easement was actually to provide ingress and egress to the dominant estate over the described course. An easement also does not terminate in Wisconsin when its purpose does.
The Restatement (Third) of Property: Servitudes § 7.10 and § 4.8(3) should be adopted which agree that an easement terminates when its purpose does and says that an easement should be reasonably changed to promote development.
Property rights should be preserved over possible economic benefits. The Restatement would promote too much litigation, too much penalty to the owners of dominant estates, inconsistency with prior Wisconsin precedent, and makes property rights too uncertain.
[T]he owner of a servient estate cannot unilaterally relocate or terminate an express easement.