COURT OF APPEALS DECISION DATED AND RELEASED December 3, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2419
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
The Hearst
Corporation,
a Delaware
Corporation,
Plaintiff-Respondent,
v.
Weigel Broadcasting
Company,
an Illinois
Corporation and
Milwaukee County, a
Wisconsin
Municipal Corporation,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Milwaukee County:
FRANK T. CRIVELLO, Judge. Affirmed
in part, reversed in part and cause remanded.
Before Wedemeyer, P.J.,
Schudson and Cane, JJ.
PER CURIAM. Weigel Broadcasting Co. and Milwaukee
County appeal from a declaratory judgment and permanent injunction prohibiting
Weigel from using any part of an easement and a leasehold interest held by the
Hearst Corporation. The appeal results
from Weigel's desire to use property owned by the County for ingress and
egress. Weigel and the County contend
that the trial court misconstrued the agreement creating Hearst's interests and
that the court's judgment grants Hearst rights it does not have. They also contend that the trial court
impermissibly denied the County its right to assign rights it specifically
retained in the agreement. Finally,
they contend that the permanent injunction exceeds Hearst's rights and is
impermissibly broad.
We conclude that the
County cannot grant Weigel the right to use any part of Hearst's leasehold
interest. We also conclude that the
agreement is ambiguous regarding whether the County may grant Weigel an
easement for ingress and egress across the land subject to Hearst's
easement. Consequently, the trial court
may enter a permanent injunction that prohibits Weigel from conducting any
activities on the leased land; however, any prohibition of activities in the
easement area must await resolution of factual issues. Weigel does not contest the permanent
injunction's prohibition against the use of Hearst's easement for Weigel's
antenna tower or transmitter building, and we affirm that provision. Therefore, we affirm the judgment and
permanent injunction in part and reverse in part. The case is remanded to the trial court for further proceedings.[1]
BACKGROUND
Hearst owns a television
antenna tower, earth station satellite receivers, and service building located
in a wooded area of Lincoln Park.
Hearst's predecessor in title constructed the antenna tower and service
building when it owned the land.
Hearst's predecessor conveyed the land to the County and retained
easements allowing it to use the antenna tower and service building.
In 1984, Hearst wanted
to adjust the areas subject to its easement and to obtain the use of additional
land for earth stations to receive satellite transmissions. The County and Hearst negotiated a new
agreement that superseded prior documents.
In the 1984 agreement, Hearst obtained a ninety-nine-year lease for the
land it needed for the earth stations (earth station clearance area). The lease reserved to the County the right
to supervise changes in the vegetation in the earth station clearance area and
to approve the plans and specifications for the earth stations.
The 1984 agreement also
contained the following provision granting an easement in an area identified as
the tower easement area:
County
hereby grants to [Hearst] a perpetual and exclusive easement for the purposes
of maintaining, restoring, and replacing the [t]ower and the guy wires and
anchor points which support the [t]ower, and for the purposes of maintaining,
restoring, and replacing the service building presently located near the base
of the [t]ower and the paved service drive and parking area leading from the
Milwaukee River Parkway to said service building, and for the purpose of
limiting the height of trees and underbrush ....
The
legal description for the tower easement area is composed of three separately
identified parcels. One of the parcels
encompasses a paved service drive, which is a driveway from a public street to
the service building. The second parcel
is for the tower, guy wires and anchors, and the third is for the transmitter
building and its environs.
A provision in the
easement portion of the agreement expressly gave Hearst the right to replace
the improvements in the tower easement area prior to dismantling the existing
structures. Hearst also obtained the
right to install a locking gate across the service drive to "prevent
vehicular access to the site by the general public." Hearst agreed to provide the County with a
key to the gate so the County could "use the service drive for access (not
including access by the general public) to [c]ounty lands not demised" to
Hearst by the agreement. As with the
earth station clearance area, the County retained the right to supervise the
clearance of vegetation within the tower easement area.
The present controversy
arises out of Weigel's attempt to locate a site for a television antenna tower
and transmitter building. Weigel
approached the County about the possibility of locating the facilities in a county
park. As an incentive, Weigel offered
use of the proposed antenna tower for the County's fire and emergency radio
transmissions. The site the County
initially selected for the Weigel antenna tower was approximately 250 feet from
Hearst's antenna tower. At that location,
the guy wires for the Weigel antenna tower would not only cross the Hearst
easements, they would intersect with the guy wires for the Hearst antenna
tower. When Hearst was unable to
dissuade the County from its selected site, Hearst filed the present action for
injunctive relief. While the litigation
was pending, Weigel and the County determined that Weigel's antenna tower
should be located on the bank of Lincoln Creek, a greater distance away from
the Hearst antenna tower. They continue
to claim, however, that the County can assign Weigel a right of ingress and
egress across the land burdened with Hearst's interests.
The trial court decided
the case on Hearst's motion for summary judgment. The court stated that the only consideration was the property
rights created by the 1984 agreement.
The court concluded that the agreement was not ambiguous and that only
Hearst and the County could use the paved service drive. The court concluded that if Weigel acted on
its agreement with the County, Weigel would unreasonably interfere with
Hearst's contractual rights. The court
then entered a permanent injunction prohibiting Weigel from engaging in the
following activities:
a)Cutting across, walking upon, or
trespassing upon certain areas that are the subject of this lawsuit[;]
b)Inserting, suspending, installing,
occupying, maintaining, or leaving any structures, guy wires, survey markers,
frames or anchors in or above certain areas[;]
c)Using or traveling on [Hearst's]
driveway due to the fact that [Hearst] has an easement for the purpose of
constructing and maintaining the driveway...[; and]
d)Engaging
in any activity near or immediately around certain areas as will cause
interference or disturbance of any [of Hearst's] television, radio, and
microwave broadcasts or receptions from within its area or which creates any
risk of bodily injury or property damage to persons or property on areas at
issue.
Weigel
and the County are not challenging the injunction to the extent that it
prevents Weigel from using Hearst's easement or leasehold interests for its own
antenna tower or related equipment. On
appeal, they focus on the denial of ingress and egress across the Hearst
interests and on prohibition d.
GENERAL LEGAL PRINCIPLES
As stated by the trial
court, the issue in this case is the clarification of vested property rights
created by the language of the 1984 agreement.
In their brief, Weigel and the County discuss the public benefit of the
County's use of Weigel's tower and of a stronger broadcast signal, and they
accuse Hearst of attempting to stifle competition. Hearst argues that Weigel has other access routes to the Lincoln
Creek site and that it does not need to cross the land burdened with Hearst's
interests. These extraneous matters are
irrelevant to the issues in the case.
Both Hearst and the County are entitled to enforcement of their
respective vested rights in the tower easement area and the earth station
clearance area as those rights were created in the 1984 agreement. To determine the validity of the trial
court's judgment, only the 1984 agreement and the laws governing easements and
leases are relevant.
Summary judgment is used
to determine whether there are disputed issues for trial. U.S. Oil Co. v. Midwest Auto Care
Servs., Inc., 150 Wis.2d 80, 86, 440 N.W.2d 825, 827 (Ct. App.
1989). When reviewing a grant of
summary judgment, we apply the same methodology as the trial court. Id. Summary judgment is appropriate when material facts are not
disputed and the moving party is entitled to judgment as a matter of law. Section 802.08(2), Stats. All doubts on
factual matters are resolved against the party moving for summary
judgment. Williamson v.
Steco Sales, Inc., 191 Wis.2d 608, 624, 530 N.W.2d 412, 419 (Ct. App.
1995).
The goal of judicial
construction of a legal document is to determine what the parties agreed to in
a legal sense as evidenced by the language they used. Sampson Inv. v. Jondex Corp., 176 Wis.2d 55, 62, 42 N.W.2d 177, 180
(1993). If the terms of the document
are plain and unambiguous, it is the court's duty to construe the document
according to its plain meaning even though the parties may have construed it
differently. Kreinz v. NDII Secs.
Corp., 138 Wis.2d 204, 216, 402 N.W.2d 164, 169 (Ct. App.
1987). The determination of whether a
document is ambiguous presents a question of law, Erickson v. Gundersen,
183 Wis.2d 106, 115, 515 N.W.2d 293, 298 (Ct. App. 1994), as does construction
of an unambiguous document, Kreinz, 138 Wis.2d at 216, 406 N.W.2d
at 169. Appellate courts need not defer
to the trial court's conclusions on questions of law. Id. If the
document is ambiguous, the consideration of extrinsic evidence is appropriate,
and summary judgment must be denied. See
Erickson, 183 Wis.2d at 118, 515 N.W.2d at 299.
The trial court's
decision to grant an injunction is discretionary. State v. Seigel, 163 Wis.2d 871, 889, 472
N.W.2d 584, 591 (Ct. App. 1991). The
trial court's exercise of discretion will be sustained if it involves a
rational reasoning process based on the facts of record and the application of
the appropriate law. Id.
at 889, 472 N.W.2d at 592. A permanent
injunction is to be tailored to the specific needs of the case, and because it
is preventative, not punitive, it should be no broader than equitably
necessary. Id. at 890,
472 N.W.2d at 592. Additionally, it
must be specific regarding the acts and conduct prohibited. W.W.W. v. M.C.S., 185 Wis.2d
468, 496, 518 N.W.2d 285, 295 (Ct. App. 1994).
When an injunction
enjoins an unreasonable interference with an easement, a mixed question of law
and fact is presented. Figluizzi v.
Carcajou Shooting Club, 184 Wis.2d 572, 588, 516 N.W.2d 410, 417
(1994). In general, we uphold a trial
court's factual determination regarding the landowner's proposed use of the
land and how the use will affect the easement holder's use of the easement
unless the findings of fact are clearly erroneous. Id. at 589, 516 N.W.2d at 517. Consequently, summary judgment may only be
granted if these factual issues are not disputed. Whether the proposed use is an unreasonable interference with the
easement presents a question of law that is intertwined with the factual
findings. Id. at 589-90,
516 N.W.2d at 517. As a result, we
review the legal questions independently, but give weight to the trial court's
conclusion. Id. at 590,
516 N.W.2d at 517.
CONTROVERSY REGARDING SERVICE DRIVE
Weigel claims the right
to traverse the property subject to Hearst's interests to reach its antenna
tower site on Lincoln Creek. It bases
its claim on a partial assignment of the County's retained right to use the
service drive. Weigel further claims
that the service drive consists of both a paved portion and an unpaved
portion. The paved portion is the driveway
identified in the tower easement area.
Weigel and the County allege that the unpaved portion extends from the
paved drive to Lincoln Creek. They also
argue that the County's retained use of the service drive includes both the
paved and the unpaved portions.
According to exhibits
filed by Hearst, the alleged unpaved portion crosses the southern half of the
earth station clearance area and the southern edge of the parcel of the tower
easement area identified for the transmitter building and its environs. The alleged unpaved portion also crosses
through one leg of the easement for the tower guy wires and anchors.
To support its assertion
that the service drive has an unpaved portion, Weigel relies on affidavits from
Irving Heipel, the County's former landscape architect, and Dennis Carey, who
had had management responsibility for Lincoln Park. Both men assert that the service drive extends from a public
street to Lincoln Creek and that use of the entire length is necessary for the
County to have vehicular access to its land.
Hearst denies that the
County may partially assign its right to use the service drive. It also denies that an unpaved portion
exists. Gerald Robinson, a
vice-president of engineering at Hearst, prepared an affidavit in which he
asserted that the paved service drive is the only road or drive at the
site. He claims that what Weigel calls
the unpaved portion of the service road is merely a natural clearing or open
area of high grasses, weeds, and underbrush over which a field vehicle,
snowmobile, or dirt bike can travel.
Hearst also denies that the 1984 agreement created an exception to
Hearst's right to exclusive possession of the earth station clearance area.
As previously indicated,
the 1984 agreement created a leasehold estate in the earth station clearance
area and an easement over the tower easement area. The rights of an easement owner and of a lessee vis-a-vis
the owner of the land are different.
Thus, to determine whether the dispute regarding the service drive presents
a material issue of fact, we must separately examine the respective rights of
Hearst and the County in the easement and in the leased property.
TOWER EASEMENT AREA
An easement is an
interest in another's land that grants the easement holder the right to use the
land for specific purposes. Hunter v.
McDonald, 78 Wis.2d 338, 344, 254 N.W.2d 282, 285 (1977). The language of the grant determines the
primary purposes of the easement. See
3 Richard R. Powell and Patrick J.
Rohan, Powell on Real Property § 34.12[1] (1996). In addition, the easement holder has those
supplemental or secondary rights necessary to utilize the easement for its
intended purposes. Id. The grant of an easement for specific uses
does not, however, include additional uses not necessary to accomplish the
stated purposes. Thus, an easement for
swimming and boating in a lake does not include the additional right to fish in
the lake. See Alexander Dawson,
Inc. v. Fling, 396 P.2d 599, 602 (Colo. 1964).
Generally, the
owner of land burdened by an easement may use the land for any purpose,
provided the use does not unreasonably interfere with the easement holder's use
of the easement. Hunter,
78 Wis.2d at 343, 254 N.W.2d at 285.
The landowner is legally obligated to protect the easement holder's
right to use the easement. Id.
at 344, 254 N.W.2d at 285. The easement
holder may enforce this obligation through an injunction against an
unreasonable interference. Lintner v.
Augustine Furniture Co., 199 Wis. 71, 73, 225 N.W. 193, 194 (1929)
(blockage of alley for five minutes several times a day was material and
unreasonable).
If the easement is not
exclusive, the landowner may grant additional easements, provided any
additional easements do not unreasonably interfere with the original easement
holder's use of the easement. Lintner
v. Office Supply Co., Inc., 196 Wis. 36, 49, 219 N.W. 420, 425
(1928). In Office Supply,
the court stated that the "owner of a right of way, unless expressly made
exclusive, does not acquire dominion over the property affected, but is
entitled ‘only to a reasonable and usual enjoyment thereof.’" Id. at 50, 219 N.W. at 425
(citation omitted). An exclusive
easement, however, gives the easement holder a limited right to exercise
control over the property because the landowner may not grant third parties
easements for the same purposes. F. Thompson on Real Property, Thomas
Edition, § 60.04(b)(2) (David A. Thomas, ed. 1994); see also
Office Supply, 196 Wis. at 49, 219 N.W. at 425.
A frequent question in
cases involving exclusive easements is whether the landowner may use the
easement, i.e., whether the landowner may use his or her own land for the same
purposes as the easement holder. Jon W. Bruce and James W. Ely, Jr., Law
of Easements and Licenses in Land ¶1.06[3] (Revised ed. 1996). Exclusive easements create three possible
interests: an easement giving the
easement holder the right to prevent anyone from using the easement area for
the easement's purposes; an easement giving the easement holder the right to
prevent anyone but the landowner from using the easement area for the
easement's purposes; or, if the easement creates a substantial burden on the
land, such as a right of way, a fee simple estate in the easement holder. Latham v. Garner, 673 P.2d
1048, 1052 (Idaho 1983). Exclusive
easements are generally not favored by the courts, Thompson on Real Property supra, § 60.04(b)(2),
and a clear intent to exclude the landowner must be apparent from the creating
document, Latham, 673 P.2d at 1050-51.
Hearst has a perpetual,
exclusive easement in the tower easement area for the purposes of
"maintaining, restoring, and replacing" the antenna tower, its guy
wires and anchors, the service building, and the paved service drive and
parking area and for the purpose of controlling vegetation within the
easement. The primary purposes are
"maintaining, restoring, and replacing" the identified structures and
paved service drive and "controlling" vegetation. Because the easement is exclusive, the
County may not grant another entity or person an easement for these purposes
within the tower easement area.
Additionally, Hearst has a legal right under the 1984 agreement to
construct replacements for the antenna tower or the service building without
first demolishing the existing facility.
Consequently, the County may not grant a third party a use that will
unreasonably interfere with Hearst's ability to construct a replacement
facility adjacent to an existing facility.
Hearst's secondary
rights in the tower easement area included the right of access to its
facilities. Consistent with the courts'
general disfavor of exclusive easements, this incidental secondary right would
not be exclusive unless there is evidence that the parties intended it to be or
unless exclusivity is necessary to protect the easement holder's exclusive use
of the easement for its primary purposes.[2]
The 1984 agreement is
ambiguous on the issue of whether Hearst's secondary right of ingress and
egress was intended to be exclusive.
The tower easement area is part of a public park, open to everyone for
recreational uses. The agreement
granted Hearst the right to install a locking gate to "prevent vehicular
access to the site by the general public." Clearly, the service drive is not a public road open to all.[3] The agreement's language does not, however,
explicitly preclude the use of the driveway as a "private road,"
i.e., a means of ingress and egress for a restricted number of third parties
who use the road for a reason other than recreation in the park. Thus, the agreement is ambiguous regarding
whether the County can grant one or more additional easements to persons or
entities who need ingress and egress across the service drive for reasons other
than general park usage.
The alleged unpaved
portion of the service drive presents additional issues. The first is whether there is an unpaved
portion sufficiently identifiable to be considered a service drive. If so, does
the term "service drive" as used in the paragraph discussing the
locking gate mean something more than the paved service drive? Consideration must also be given to the
affect a grant of an easement for ingress and egress to third parties will have
on Hearst's use of the easement. Even
if Hearst's secondary right of access is not exclusive, the County cannot grant
additional easements if they will unreasonably interfere with Hearst's
exclusive rights. Resolution of the
issue of whether the County may grant additional easements for ingress and
egress over the paved service drive and over other land in the tower easement
area requires consideration of extrinsic evidence. Summary judgment should not have been granted.
We reject Weigel's
argument that the County can partially assign its retained right to use the
service drive even if Hearst's right is exclusive. Weigel relies on the general rule that rights in property are
assignable. See 6A C.J.S. Assignments § 13
(1975). The general rule of
assignability must, however, give way to the additional, more specific rule
that the holder of an exclusive easement may prevent anyone but the landowner
from using the easement. If the
landowner could freely assign its retained right to use the easement, such
assignments would destroy the exclusive character of the easement. Weigel also relies on the provision in the
1984 agreement that provides the agreement shall "bind and benefit the
parties hereto and their respective successors and assigns." This provision is part of a provision titled
"Covenants With The Land." It
does not specifically authorize a partial assignment of any right created by
the agreement, and it is not sufficient to make otherwise unassignable rights
assignable.
EARTH STATION CLEARANCE AREA
Hearst's right to the
earth station clearance area is based on a ninety-nine-year lease. The lease was created in a portion of the
1984 agreement titled "Lease for Earth Station Area." While the County retained the right to
supervise changes Hearst made to the vegetation in the area and to approve
construction plans for the earth stations, it did not specifically reserve the
right to enter upon or cross the leased premises. Additionally, the various paragraphs dealing with the lease and
its terms do not refer to the service drive.
A basic concept of a
leasehold estate is that the tenant obtains possession of the property. Restatement
(Second) of Property, Landlord and Tenant § 1.2 and cmt. a
(1977). Unless the document creating
the leasehold estate provides otherwise, the tenant is entitled to exclusive
possession of the leased premises, subject to the landlord's access to inspect
and repair. Section 704.05(2), Stats.
Weigel and the County
argue that the County's retained use of the service drive in the 1984 agreement
created an exception to Hearst's exclusive possession; however, the agreement
does not support their argument. As
noted, the references to the service drive are only in the easement portion of
the agreement. Additionally, the
agreement provided that Hearst would give the County a key to the locking gate
so the County could have access to county lands not "demised" to
Hearst by the agreement.
"Demise" means to lease or to convey or create an estate for
years or life. See Black's Law Dictionary 431 (6th ed.
1990). The County specifically did not
retain the right to access the land that it leased, i.e., the earth station
clearance area. Thus, 1984 agreement
did not create an exception to Hearst's exclusive possession of the earth station
clearance area, and it cannot be used for ingress and egress to Weigel's
proposed site.[4]
VALIDITY OF PERMANENT INJUNCTION
We have concluded that
the 1984 agreement did not unambiguously grant Hearst the exclusive use of the
service drive for ingress and egress. A
question of fact exists as to whether the County may grant third parties
easements for ingress and egress over the service drive and the additional land
in the tower easement area. Therefore,
the permanent injunction prohibiting Weigel from cutting across, walking on, or
trespassing on the tower easement area and using or traveling on the driveway
is premature and must be reversed.
We have also concluded
that Hearst has the right to exclusive possession of the earth station
clearance area. Thus, a permanent
injunction prohibiting Weigel from cutting across, walking on, or trespassing
on the earth station clearance area does not exceed Hearst's rights in the
parcel.
Weigel contends that the
provision in the injunction prohibiting it from engaging in any activity, near
or immediately around Hearst's interests, that interferes with Hearst's
broadcasting activities or creates a risk of bodily injury or property damage
exceeds the relief available to an easement holder, engrafts tort law onto the
enforcement of property rights, and is overly broad and vague. We do not specifically address Weigel's
arguments; however, we agree that this dragnet provision is an erroneous
exercise of discretion and must be reversed.
The permanent injunction
adopts the language of the preliminary injunction entered at the time Weigel
intended to build its antenna tower within 250 feet of Hearst's antenna
tower. Arguing for the preliminary
injunction, Hearst raised claims that the close proximity of Weigel's antenna
tower would be hazardous for Hearst's agents performing maintenance on Hearst's
antenna tower, would increase the risk of damage or destruction of Hearst's
facilities, and would increase the risk of bodily injury or property
damage. Because the Weigel antenna
tower will not be located so close to the Hearst antenna tower, it appears that
Hearst's concerns about safety and increased risks are moot. A permanent injunction that includes a broad
prohibition directed at a set of facts that has been abandoned is not tailored
to the needs of the case and is broader than equitably necessary.
In summary, we affirm
the judgment and permanent injunction insofar as it prohibits Weigel from using
the property subject to Hearst's interests for its own antenna tower or
transmitter building because Weigel has not challenged this prohibition. We reverse the remainder of the judgment and
permanent injunction and remand the case to the trial court for further
proceedings. Hearst can exclude Weigel
from the earth station clearance area in which Hearst has a leasehold interest,
and the trial court may reinstate a properly drafted permanent injunction
prohibiting Weigel's entry onto this property.
Summary judgment was not properly entered in Hearst's favor regarding
the tower easement area because there is a question of material fact regarding
whether the County may grant easements for ingress and egress across the tower
easement area and whether Weigel's proposed use of the land for ingress and
egress to its antenna tower site would unreasonably interfere with Hearst's
exclusive use of its easement.
Resolution of these issues requires fact-finding.
Neither party is
entitled to costs.
By the Court.—Judgment
affirmed in part, reversed in part and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Hearst asks that, if we reverse the judgment and remand the case, we clarify that the preliminary injunction continues. The factual status of the case has changed since the entry of the preliminary injunction, and our decision in this opinion narrows and clarifies the issues. We leave to the trial court the determination of the appropriateness and scope of a preliminary injunction.
[2] The 1984 agreement did not specifically grant Hearst the exclusive right to have an antenna tower, guy wires, anchors, or service building within the tower easement area because "maintain" implies acts of repair or preservation rather than the passive continued existence of something. See Webster's Third New International Dictionary 1362 (1976) ("maintain" - to keep in state of repair, efficiency, or validity or to preserve from failure or decline). The secondary rights include the right to use the easement as a location for the pre-existing facilities. It appears that, by implication, this secondary right would be exclusive. If a third party is allowed to locate any part of its own antenna tower, guy wires, or service building within the antenna easement area, the third party would, by necessity, have to use the easement to maintain those facilities, and doing so would violate Hearst's exclusive rights.
[3] "Public" refers to the people or citizenry as a whole, and "general" implies no differentiation is made among the members of the whole. Webster's, supra note 2, 1836, 944.
[4] The Carey affidavit appears to represent that the County has crossed the earth station clearance area to inspect vegetation, remove diseased trees, check for vandalism, and obverse the condition of its property. Hearst is not challenging the County's past entry onto the leased land and the injunction prohibits actions by Weigel and not the County; therefore, we need not address the propriety of the County's entry onto the land.