S.S. Kresge Co. v. Winkelman Realty Co.

260 Wis. 372, 50 N.W.2d 920 (1952)

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Nature of the Case

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Facts

Plaintiff owns the south half of two lots (Lots 5 and 6) located on a city block. The western edge of the property consists of an alleyway. Defendants are all owned by the same company, and either own or lease portions of adjoining lots (Lots 2, 3, and 4). Prior to D, one Tisch owned Lot 2, which contained a plumbing shop, garage, and retail plumbing store. Dern owned the western half of Lot 3, and used the lower floor of the building on the lot as a barber shop, while he lived on the upper floor. Tisch later bought Dern's half of Lot 3 and used it along with Lot 2 as a single retail store. While Tisch still owned the lost, P attempted to close the alleyway on its property. Tisch brought an action to establish his right to use the alleyway. The court found that Tisch had an appurtenant easement in the alleyway for purposes of ingress and egress to and from the western half of Lot 3. D later purchased Tisch's property, along with the easement. D used the basement of the Tisch buildings as a single storeroom for all the stores it operated on the property and used the easement to access the basement, from which it distributed merchandise to all its other stores. P sued to prevent D from using the alleyway for the benefit for any portion of its property other than the western half of Lot 3. The trial court found that the easement was appurtenant only to Lot 3, but that D had made regular and substantial use of the easement for the benefit of its other property. The court further found that such additional use was not within the contemplation of the parties which created the easement and that the additional use was a burden on the servient estate. Title was quieted in P, subject to D's easement for access to the western half of Lot 3. D was enjoined from using the easement for the benefit of any of its property other than the western half of Lot 3. P appealed, seeking a modification of the easement which would enjoin any use of the easement.