2015 WI App 48
court of appeals of wisconsin
Complete Title of Case:
Anthony C. Muellenberg,
State of Wisconsin Department of Transportation,
Gerald Baber, Barbara Baber, Dale Handevidt
and Joseph T. Brennan,
May 14, 2015
Submitted on Briefs:
February 6, 2015
Blanchard, P.J., Higginbotham, and Sherman, JJ.
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Richard G. Jensen and Julia J. Douglass of Fabyanske, Westra, Hart & Thomson, P.A., Minneapolis, Minnesota.
On behalf of the defendant-respondent, the cause was submitted on the brief of Jennifer L. Vandermeuse, assistant attorney general, and J.B. Van Hollen, attorney general.
COURT OF APPEALS
DATED AND FILED
May 14, 2015
Diane M. Fremgen
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
Cir. Ct. No.
STATE OF WISCONSIN
IN COURT OF APPEALS
Anthony C. Muellenberg,
State of Wisconsin Department of Transportation,
Gerald Baber, Barbara Baber, Dale Handevidt
and Joseph T. Brennan,
APPEAL from a judgment of the circuit court for Dane County: john w. markson, Judge. Affirmed.
¶1 BLANCHARD, P.J. Anthony Muellenberg appeals the circuit court’s decision to modify a portion of an express, recorded easement that benefits Muellenberg’s property and that runs, in part, across land owned by the Wisconsin Department of Transportation. The court concluded that it had discretionary authority to modify the easement, because the Department’s construction activities on a bridge project had eliminated a driveway abutting the easement, which rendered fulfillment of the primary purpose of the easement impossible, absent the court’s modification. Muellenberg contends that this conclusion was an error of law. Muellenberg also argues that the court improperly exercised its discretion through the manner in which it modified the easement, and in determining that Muellenberg was not entitled to compensation from the Department as a result of the modification.
¶2 For the following reasons, we agree with the circuit court that it had discretionary authority to modify the easement pursuant to Mnuk v. Harmony Homes, Inc., 2010 WI App 102, 329 Wis. 2d 182, 790 N.W.2d 514, to include a new trail and to terminate a portion of the easement. We also conclude that the court did not improperly exercise its discretion in modifying the easement or in determining that Muellenberg is not entitled to compensation as a result of the modification. Accordingly, we affirm.
following facts are not in dispute. At
issue are five adjoining parcels of land located between the St. Croix River on
the south and what was, prior to the Department’s actions at issue here, the
right-of-way for State Highway 35 (the highway) on the north. Following the lead of the parties and the
circuit court, we refer to these as parcels A, B, C, D, and E, running west to
¶4 In the spring
of 2010, the Department purchased the two westerly parcels, A and B, as part of
a proposed bridge project. In the fall
of 2010, Muellenberg purchased parcel D.
express, recorded easement at issue arose because a bluff separates the
northern and southern portions of each of the five parcels. For this reason, none of the parcel owners
can directly access the southern portions of their parcels from the northern
portions of their parcels. To address
this shared impediment to river access, all five parcels are subject to a
reciprocal easement. The purpose of this
easement, under its terms, is “to provide a means of easier access to [the St.
Croix River] by the owners [of parcels A, B, C, D, and E] only, and for no
other parties …. Use … shall be
restricted to automobile or foot traffic.”
¶6 We now
describe the path of the easement before it was modified by the court, which we
will frequently refer to as the original easement. The original easement began, at its northern
end, in the northwest corner of parcel B, abutting the highway
right-of-way. The easement then ran
briefly to the southwest, then curved to the southeast, as it crossed parcels
C, D, and E, eventually leading to the St. Croix River, in parcel E.
to understanding the issues raised on appeal are uncontested facts that we now
summarize regarding limited highway access to the original easement. More specifically, we address the means by
which Muellenberg accessed the original easement from the highway before the
modification, which was to use a driveway only by the permission of the owners
of parcels A and B.
¶8 While the
original easement’s northern end began at the boundary of the highway
right-of-way, the original easement did not have the benefit of a right of
access to the highway. That is, the
original easement did not include any portion of the highway or the highway
right-of-way that extends 75 feet to either side of the highway centerline. Instead, Muellenberg and the other parcel
owners accessed the easement from the highway by way of a driveway that ran
south from the highway. Just to the
south of the driveway’s junction with the highway, the driveway forked into two
separate driveway branches, one proceeding to the residence on parcel A and the
other to the residence on parcel B. The
branch of the driveway that led to the parcel B residence ran entirely within
the highway right-of-way up to the point at which it met the original easement
in the northwest corner of parcel B.
¶9 Only the
owners of parcels A and B held a Department-issued permit to use and maintain
the driveway and driveway branches.
However, before the Department project at issue here, lack of a permit
had not presented an easement access problem to Muellenberg, as owner of parcel
D, nor to the owners of parcels C and E.
This is because the owners of parcels A and B granted them permission to
access the original easement from the highway by traveling down A and B’s joint
driveway, onto the branch of the driveway that met the original easement’s path
in parcel B.
to the chronology, at some point in 2011, Muellenberg became aware that the
Department’s bridge project had been approved.
He learned specifically that, as part of the project, the Department
planned to eliminate in its entirety the forked driveway described above. He further learned that, because removal of
the forked driveway would make it impossible for parcel owners such as
Muellenberg to access the original easement from the highway, the Department
planned to create a new trail to allow highway access for all owners of the
easement. We discuss these Department
plans in more detail below.
¶11 In response
to this information about the Department’s plans, Muellenberg filed this action
in September 2012, seeking a declaration and enforcement of his interest in the
original easement pursuant to Wis. Stat.
§§ 841.01 and 775.10 (2013-14), and an
order enjoining the Department from relocating the original easement, expanding
its scope, or interfering with Muellenberg’s use of the original easement.
¶12 On April 4,
2013, Muellenberg filed a motion for partial summary judgment. As to his request that the Department be
enjoined from relocating the original easement, Muellenberg argued that,
pursuant to AKG Real Estate, LLC v. Kosterman, 2006 WI 106, 296 Wis. 2d 1,
717 N.W.2d 835, the Department “is not authorized to relocate the Easement”
because the Department is the owner of the servient estate, that is, the owner
of the land serving or subject to the original easement.
¶13 In response
to Muellenberg’s motion for partial summary judgment, the Department argued, in
part, that Muellenberg’s argument missed the mark because the Department was
not proposing to relocate the original easement. Rather, the Department stated that it planned
only to remove the existing forked driveway, including that portion where the
driveway met the easement in parcel B.
The Department argued that it had statutory authority to remove the
driveway pursuant to Wis. Stat. ch. 86,
which authorizes certain Department activities, and that Muellenberg had no
legal interest in the driveway. The
Department planned to remove the forked driveway to allow for construction of a
bridge abutment and to provide for a new highway right-of-way.
the Department took the position that its planned removal of the forked
driveway would render fulfillment of the purpose of the original easement
impossible, because the driveway provided parcel owners such as Muellenberg
with their only access to the easement from the highway. To address this issue, the Department planned
to create a new trail, also on land the Department owned (in parcel B),
connecting the highway with most of the length of the path followed by the
original easement, in order to allow all owners of the original easement access
from the highway to the easement. The
Department argued that, because fulfillment of the purpose of the original
easement would be rendered impossible by the necessity of removing the driveway
for its project, modification of the original easement to include the new trail
would be an available remedy under Mnuk.
in October 2013, while this litigation was pending before the circuit court, as
part of its project, the Department removed the driveway, making the driveway
area impassable, including where the driveway had abutted the original
easement, and the Department also created the new trail. The new trail begins where the highway
right-of-way abuts parcel B and meets the original easement in the middle of parcel
B, southeast of where the former driveway had met the easement in the northwest
corner of parcel B.
¶16 On December
3, 2013, the circuit court denied Muellenberg’s motion for partial summary
judgment on the ground that whether the Department planned to relocate or change
a part of the original easement was a disputed issue of material fact. This action eventually proceeded to a bench
trial, the circuit court made the following determinations. The Department had acted pursuant to its
statutory authority when it removed the driveway, and Muellenberg had no
interest in the driveway. When the
Department removed the driveway as part of its project, the purpose of the
original easement became impossible to fulfill, because without the driveway,
Muellenberg could no longer access the easement by car or on foot from the
highway. The court also found, based on
expert testimony, that the new trail is comparable in all material respects to
that portion of the original easement that the new trail replaces, including
that the new trail does not increase the risk of erosion. That is, the court found that the new trail
left Muellenberg and the other property owners “no worse off than they were
before” and allowed them to access to their easement from the highway.
¶18 Based on
these determinations, the circuit court concluded that, pursuant to Mnuk,
it had discretionary authority to modify the original easement to include the
new trail and to terminate the portion of the original easement that the new
trail replaces, and that the court would order such a modification to permit
the purpose of the easement to be accomplished.
Thus, under the court’s ruling, the easement as modified is made up of
the new trail, which begins at the highway and intersects with the original
easement in parcel B, together with the remaining portion of the path of the
original easement that proceeds from the point in parcel B where it intersects
with the new trail and runs to the southeast into parcels C, D, and E. The portion of the original easement that was
located in parcel B to the northwest of the new trail is terminated. The court also denied Muellenberg
compensation for the modification, explaining that there is no factual basis
“for any award of compensation to any of the private parcel owners” based on the
modification. Muellenberg now appeals.
of the Easement
makes three arguments that the circuit court erred as a matter of law in
concluding that, pursuant to the reasoning of Mnuk, the court had
authority to modify the easement to include the new trail and to terminate the
northwest portion of the original easement based the court’s view that the Department’s
removal of the forked driveway rendered fulfillment of the purpose of the
easement impossible. First, Muellenberg
argues that the court erred in relying on Mnuk, as opposed to AKG,
which Muellenberg argues is “controlling precedent in this case.” Second, Muellenberg argues that Mnuk
does not authorize a court to modify an easement due to impossibility when the
owner of a servient estate has created the impossibility by altering the
easement, and that here, the Department took actions that altered the original
easement and those actions created the impossibility. Third, Muellenberg argues that, even if the
court had authority to modify the easement, it erroneously exercised its
discretion in modifying it to include the new trail and to terminate the
portion of the original easement replaced by the new trail. We reject each argument in turn.
¶20 Whether a
circuit court has authority to modify an easement based on impossibility is a
question of law that we review de novo. See Mnuk,
329 Wis. 2d 182, ¶¶34-39. Whether
to modify an easement, and how to do so if the court employs that remedy, are
decisions within the discretion of the circuit court. Id., ¶39. A circuit court properly exercises its
discretion when it applies the applicable law to the facts in the record and
reaches a conclusion a reasonable judge could reach. See
v. S.G. New Age Prods., Inc., 2005 WI App 169, ¶9, 285 Wis. 2d
663, 702 N.W.2d 449. We will uphold the
circuit court’s findings of fact unless they are clearly erroneous. Sellers v. Sellers, 201 Wis. 2d 578,
586, 549 N.W2d 481 (Ct. App. 1996).
¶21 Turning to
Muellenberg’s first argument, based on AKG, we reject this argument on the
ground that it is premised on a misinterpretation of AKG. In AKG, the supreme court considered
whether it should apply the Restatement
(Third) of Property: Servitudes
§ 7.10 (2000)
to conclude that a court has authority to modify an easement at the request of
the servient estate where fulfillment of the purpose of the easement has become
unduly burdensome for the servient estate. AKG, 296 Wis. 2d 1, ¶¶30-39. In rejecting application of the Restatement on the facts before it, and
concluding that the court did not have such authority, the court in AKG
explained that allowing a court to modify an easement on the ground that
fulfillment of the easement had become unduly burdensome on the servient estate
would undermine the longstanding rule that “[a]bsent any mention of
modification or relocation in the instrument creating an easement, … the owner
of the servient estate cannot unilaterally modify an express easement.” See id.,
¶22 However, as
this court explained in Mnuk, the court in AKG
did not address whether a court has authority to modify an easement under
circumstances in which the fulfillment of the primary purpose of the easement
has become not merely unduly burdensome but impossible. As the Mnuk court explained,
the court [in AKG] rejected the proposition that a landowner could obtain an easement modification for economic reasons when the primary purpose could still be accomplished. However, the court did not reach the question of a court’s authority to provide relief when it is impossible to accomplish the primary purpose. This was unnecessary in AKG because the court determined it was still possible in that case to accomplish the primary purpose. In short, AKG leaves open the question whether a court should apply Restatement (Third) of Property: Servitudes § 7.10(1) in a case where it is impossible to accomplish an easement’s primary purpose.
Mnuk, 329 Wis. 2d 182, ¶31 (citation omitted). We reject Muellenberg’s argument that the
circuit court erred in failing to rely on AKG because, unlike in AKG,
the issue here is whether the court has authority to modify an easement based
on impossibility. While Muellenberg
states at one point in his principal appellate brief that “the purpose of the
Easement has not been fully extinguished,” he does not develop this assertion
into an argument. Further, elsewhere Muellenberg
concedes that “[a]t trial, the parties agreed that the Easement as originally
situated was no longer usable due to [the Department’s] actions.” We therefore take Muellenberg to concede that
it had become impossible to fulfill the purpose of the easement, and we
conclude that the court did not err in determining that AKG is distinguishable on
¶23 We turn
next to Muellenberg’s argument that the rationale of Mnuk does not apply here
because the Department created the impossibility by altering the original
easement. We first explain this court’s
decision in Mnuk, and then explain why we reject Muellenberg’s attempts to
¶24 In Mnuk,
this court upheld a modification of an easement under circumstances in which
fulfillment of the primary purpose of an easement had been rendered
impossible. Mnuk, 329 Wis. 2d 182, ¶3. The Mnuks and Harmony Homes were parties to
an agreement that created reciprocal easements over property owned by the Mnuks
and property owned by Harmony Homes. Id.,
¶¶7, 10. The easements were to provide
pedestrian and vehicular access to the respective properties by way of a paved
driveway. Id., ¶5-10. However, before the paved driveway could be
completed, a portion of the area on which the driveway was to be located was
designated as a wetland by state officials.
Id., ¶10. Due to the
wetland designation, both Mnuk and Harmony Homes agreed that the easement’s
primary purpose could no longer be fulfilled if the paved driveway followed the
route expressed in the easement. Id.,
¶37. The Mnuks filed suit, seeking a
modification of the easements to allow for a paved driveway that would follow a
path that avoided the wetland area. Id.,
¶11. Harmony Homes moved for summary
judgment, arguing, in part, that the circuit court lacked authority to modify
the easement. Id., ¶12. The circuit court decided in favor of the
Mnuks, concluding that it had authority to modify the easements. Id., ¶12.
¶25 This court
upheld the circuit court’s modification of the easement, albeit on different
grounds than the circuit court. The Mnuk
court relied on the Restatement (Third)
of Property: Servitudes
§ 7.10(1), which is stated supra
at footnote 5. The Mnuk court explained that
application of § 7.10(1) was
appropriate under the circumstances because, while “[i]t would be undesirable
to give a broad interpretation to the phrase ‘impossible as a practical matter
to accomplish the purpose for which the [easement] was created[,]’” the parties
agreed that impossibility existed, and, thus, the case came “within the proper
scope of § 7.10.” Id.,
¶37 (quoting Restatement (Third) of
§ 7.10(1)). Further, the Mnuk
court explained that § 7.10(1) is properly interpreted to allow a court to
either terminate or modify an easement whose purpose it is no longer possible
to fulfill. Id., ¶¶34-36. Having concluded that § 7.10(1) was the
proper rule to apply, the Mnuk court explained that decisions
whether to modify or terminate an easement, and the manner in which to do so,
are within the discretion of the circuit court.
¶26 With that
understanding of Mnuk, we turn to Muellenberg’s attempts to distinguish it. Muellenberg argues that Mnuk does not support the
court’s decision to modify the easement here because the Department, as the
owner of the servient estate, created the impossibility by altering the
original easement. Muellenberg concedes
that he had no interest in the driveway and that the Department had statutory
authority to remove the driveway.
However, Muellenberg asserts that the Department “not only removed a
driveway [but also] … decimated an entire section of the Easement on parcel
B.” According to Muellenberg, “the
impossibility was created by [the Department’s] obliteration of the easement, not the relocation of the driveway.… [D]ue
to [the Department’s] destruction of the physical terrain, the easement is no
longer passable.” (Emphasis added.)
¶27 We assume
without deciding that Mnuk does not support a court’s
authority to modify an easement due to impossibility where the impossibility
was created through a servient landowners’ alteration of an easement. However, the circuit court here explicitly
determined that fulfillment of the purpose of the easement had become
impossible due to the Department’s removal
of the driveway while acting within its proper authority, and did not
determine that the Department created the impossibility by altering the
original easement. The circuit court
explained that the Department “took action that was within its regulatory
authority” when it “removed the driveway connection” to the easement, and
that “as a result” of this action, the original easement “simply cannot fulfill
its purpose.” Muellenberg does not
specify what other alleged action of the Department amounting to an alteration
of the original easement caused the fulfillment of the purpose of the easement
to become impossible. As support for his
argument, Muellenberg cites to portions of the record that do not, on their
face, explain what actions the Department purportedly took that altered the
original easement or why it is that we should determine that these actions, and
not removal of the driveway, created the impossibility. We reject this argument on this ground.
¶28 At times in
his briefing, Muellenberg also appears to argue that the circuit court lost
authority to modify the easement after the Department removed the driveway and
constructed the new trail without having first moved for and obtained an order
from the court modifying the easement.
If this is an argument that Muellenberg means to make, we reject it
because he does not develop it with citation to legal authority, and we are
aware of no such authority. See State
v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992). An additional reason to reject
this argument is that Muellenberg fails to direct us to a place in the record
reflecting that he made this argument to the circuit court. See
v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612.
rejected Muellenberg’s arguments that the circuit court erred as a matter of
law in relying on the reasoning of Mnuk, we turn to the issue of
whether the Restatement (Third) of
Property: Servitudes § 7.10(1) should be applied to the
facts before us, as it was applied in Mnuk. The Mnuk court explained that “courts
should be cautious about either modifying or terminating an easement on the
ground of impossibility.” Mnuk,
329 Wis. 2d 182, ¶37. However, the court
further explained that, because the parties agreed that the primary purpose of
the easements at issue in Mnuk could no longer be fulfilled,
“these facts come within the proper scope of § 7.10.” Id.
As we have already explained, Muellenberg does not make a developed
argument that the fulfillment of the purpose of the easement is no longer
possible, and we conclude that application of the Restatement is appropriate
¶30 Because we
conclude that the circuit court had authority to modify the easement on the
ground that fulfillment of its purpose was no longer possible, the remaining
issue is whether the court erroneously exercised its discretion in deciding to
modify the easement and in the manner of modification. We acknowledge, as Muellenberg points out,
that the facts underlying the Mnuk court’s decision differ from
the facts presented here. However, we
conclude that the circuit court did not erroneously exercise its discretion in
modifying the easement. We see no
inequity in the fact that fulfillment of the easement’s purpose was rendered
impossible through the Department’s use of its statutory authority to remove a
driveway over which Muellenberg and the other easement holders had no
interest. Muellenberg does not seek as a
remedy that the easement be terminated and that he be compensated for
termination, but, rather, he asks us to “order [the Department] to restore
the Easement to its preexisting condition.”
Such a remedy would obviously conflict with the Department’s authority
to proceed with the bridge project and would require it to reconfigure
construction work already completed.
Moreover, modification of the easement provides the easement holders
with direct access from the highway to the St. Croix River, by way of an
easement that is comparable to the original easement, while simultaneously
allowing the Department to complete the bridge project.
¶31 Turning to
the manner in which the court modified the easement, although Muellenberg’s
argument on this topic is somewhat difficult to track, we understand him to
argue that the court erroneously exercised its discretion in modifying the
easement to include the new trail, on the ground that the new trail includes a
portion of the highway right-of-way, for two reasons.
Muellenberg argues that the parties agreed at trial “that the recorded Easement
did not and could not include any land within the highway right of way.” However, as the Department points out, while
the parties agreed that the original easement did not include land within the
highway right-of-way, the parties did not agree that if the court modified the
easement, it could not do so in a manner that included a portion of the highway
Muellenberg argues that “purporting to place the Easement in the public
right-of-way directly contravenes the express terms of the Easement, which
restricts its use to private use for accessing [the] St. Croix.” However, the circuit court explicitly
addressed this issue by explaining that the Department erected a gate where the
new trail meets the highway to deter the public from using the new trail. Muellenberg fails to address this finding or
to explain why the circuit court’s reasoning constitutes an erroneous exercise
¶34 For these
reasons, we affirm the decision of the circuit court to modify the easement to
include the new trail and to terminate the northwest portion of the original
argues that the circuit court erroneously exercised its discretion when it
determined that there was no basis to award him damages based on the
modification. As best we can discern,
Muellenberg makes two arguments.
¶36 First, he
argues that the court should not have reached the topic of damages:
Based on the nature of the claim that … Muellenberg has made against the state in this action, he could not be awarded damages, and he did not present any evidence at trial concerning the amount or calculation of his damages. Therefore, the circuit court’s findings with regard to that issue [are] unnecessary and therefore improper.
argues that the court was prohibited from awarding damages because Muellenberg
brought this action pursuant to Wis.
Stat. §§ 841.01 and 775.10.
Section 775.10 provides that while the State may be made a defendant in
an action for a declaration of interests, “no judgment for the recovery of
money or personal property or costs shall be rendered in any such action
against the state.”
¶37 This argument
appears to fail on a number of grounds, but it is sufficient to explain that it
is at least defeated by Muellenberg’s contrary concession in his reply brief on
appeal that, in accordance with Mnuk, a court may address the issue
of compensation when the court modifies an easement. See
329 Wis. 2d 182, ¶3 (A court “has the authority to award compensation for
harm resulting from either modification or termination” of an easement.).
Muellenberg argues that “there was no factual or evidentiary basis in the record
on which the circuit court could determine that [he was not] entitled to
damages” because “no expert or witness testified about the compensatory
difference” between the original easement and the modified easement. We disagree.
The court’s finding that Muellenberg is “no worse off than [he was]
before” was based on extensive evidence that supports the court’s finding that
the new trail does not materially differ from the original easement in grade,
slope, curve, or risk of erosion.
Muellenberg does not persuade us that these factual findings are clearly
erroneous. To the extent Muellenberg is
arguing that he should have the opportunity to present other evidence regarding
the “compensatory difference” between the original and modified easement, he does
not explain what this evidence might be.
Nor does Muellenberg argue that he was not afforded a reasonable
opportunity to elicit evidence on this topic at trial, and we note that he in
fact took advantage of his opportunity to do so.
¶39 For the
foregoing reasons, we affirm the decision of the circuit court to modify the
easement and deny Muellenberg compensation.
By the Court.—Judgment affirmed.
 The owners of parcels C and E were joined to this suit as defendants in an amended complaint, but they have not filed briefs in this appeal.
 For the sake of simplicity, given the arguments raised on appeal, we frequently draw a distinction between the original easement and the easement as modified. However, we clarify this simplified usage in two respects. First, as we explain below, there is extensive overlap between the path of the original easement and the path of the easement as modified. Second, and more fundamentally, there is in fact only one easement, which the court modified over a portion of its length.
 All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
 “The supreme court has explained that its ‘long-standing practice has been to review and decide whether to adopt sections from the Restatements on a case-by-case basis as [it] deem[s] it necessary.’” Mnuk v. Harmony Homes, Inc., 2010 WI App 102, ¶34 n.15, 329 Wis. 2d 182, 790 N.W.2d 514 (quoting Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶19 n.7, 318 Wis. 2d 622, 768 N.W.2d 568).
 The Restatement (Third) of Property: Servitudes § 7.10 (2000) provides in pertinent part:
(1) When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude. Compensation for resulting harm to the beneficiaries may be awarded as a condition of modifying or terminating the servitude.
(2) If the purpose of a servitude can be accomplished, but because of changed conditions the servient estate is no longer suitable for uses permitted by the servitude, a court may modify the servitude to permit other uses under conditions designed to preserve the benefits of the original servitude.