Ronkowski, Edward et al v. United States of America
Filing
34
OPINION AND ORDER denying 11 Plaintiffs' Motion for Summary Judgment; granting 20 Defendant's Motion for Summary Judgment. Signed by District Judge Barbara B. Crabb on 5/23/18. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - EDWARD E. RONKOWSKI, JR. and
JOANN RONKOWSKI,
OPINION AND ORDER
Plaintiffs,
17-cv-226-bbc
v.
UNITED STATES OF AMERICA,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiffs Edward E. Ronkowski, Jr. and JoAnn Ronkowski own real property in
Bayfield County, Wisconsin. They filed this suit against the United States of America under
the Quiet Title Act, 28 U.S.C. § 2409a, seeking to: (1) quiet title on any claim by the
United States for a purported easement or public access inside the boundaries of plaintiffs’
property; and (2) confirm an access easement over a small segment of road on land owned
by the United States Forest Service, an agency of the United States Department of
Agriculture. Both sides have filed motions for summary judgment which are ready for
decision. Dkt. ##11, 20.
I conclude that the United States has submitted a valid disclaimer to plaintiffs of any
interest in the segment of road running across plaintiffs’ property and therefore, this court
has no jurisdiction over plaintiffs’ first claim. With respect to the second claim, I conclude
that plaintiffs have failed to show that they have an easement under any legal theory.
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Therefore, I am granting defendant’s motion for summary judgment in full and denying
plaintiffs’ motion.
From the parties’ proposed findings of fact and responses, I find the following facts
to be material and undisputed unless otherwise noted.
UNDISPUTED FACTS
A. The Parties’ Property
Plaintiffs own approximately 120 acres of undeveloped real property in the Town of
Drummond in Bayfield County, Wisconsin, identified as Township 44 North, Range 8 West
and part of Section 12. Plaintiffs and their guests have used the property for a variety of
recreational and sporting activities since plaintiffs acquired ownership of the property in
1972. Defendant United States owns the real property located directly to the north, east
and south of plaintiffs’ property.
B. Historical Ownership of Plaintiffs’ and Defendant’s Property
In 1887, the Rust-Owen Lumber Company Limited acquired a large tract of land,
including the property now owned by plaintiffs. In 1914, Rust-Owen acquired additional
land adjacent to the property now owned by plaintiffs. In 1918, Rust-Owen transferred 80
acres of land to Tony Altobelli, and in 1919, it transferred an additional 40 acres of adjacent
land to Altobelli, for a total of 120 acres. Ownership of the 120 acres changed over the
years, but the entire 120 acres was deeded to plaintiffs and Josephine Ronkowski in 1972.
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Josephine Ronkowski died in 2000, leaving plaintiffs as the exclusive owners of the 120
acres.
In 1935, Rust-Owen sold large tracts of land bordering plaintiffs’ property to the
United States. Defendant’s property is now managed by the United States Forest Service
as part of the Chiquamegon-Nicolet National Forest.
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C. Access to Plaintiffs’ Property
The only road that reaches plaintiffs’ property is a Forest Service road, FR822A,
which enters plaintiffs’ property near the southeast corner by way of land owned by
defendant. At the southeast corner of plaintiffs’ property, FR822A travels east through
defendant’s land for about half a mile, until shortly before the border of property owned by
Eric Allen. FR822A then turns south until it reaches Oswald Road, a public road, at the
southern border of the Forest Service land. At the point where FR822A turns south, a short
access road connects FR822A through defendant’s land, to a road that runs east-west
through the private property owned by Eric Allen, just below the tip of the arrow shown on
the photograph of the area. (Throughout this opinion, I will refer to this small portion of
road on Forest Service land as the “access road.” Plaintiffs’ January 2018 survey shows the
current location of the small access road.
Dkt. #30-4.
Although neither side states
specifically the length of this access road, it appears from maps that it is only about 200 feet
long.) The east-west road running through Allen’s property eventually reaches Blue Moon
Road, another public road.
Since acquiring the property, plaintiffs have gained access to their property several
times a year by traveling from Blue Moon Road across Eric Allen’s property and the small
access road to the segment of FR822A that reaches their property. Allen has given plaintiffs
a written easement that permits them to use the road on Allen’s land. FR822A is a Forest
Service road open to the public. Plaintiffs do not have any written easement or special use
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permit to use the small access road owned by defendant.
Defendant has not spent money maintaining FR822A or the small access road. Over
the years, plaintiffs have maintained the small access road by removing downed trees and
branches, cutting saplings and brush on the roadside and filling large ruts and potholes in
the roadway with sand, clay, dirt and gravel so that the road remains accessible for motor
vehicles. In September 2013, plaintiffs hired a company to log a portion of their property.
They directed a bulldozer operator to bulldoze the entire length of road from the Allen
property to plaintiffs’ property to smooth the existing route for logging trucks going in and
out of plaintiffs’ property. As a result of their efforts, many different types and sizes of
vehicles can traverse this route without damaging their undercarriage or exterior paint.
The parties disagree about whether plaintiffs can reach their property without relying
on the “access road.” Defendant says plaintiffs can do so using FR822A. Specifically,
defendant says that plaintiffs could drive west on Oswald Road, then turn north onto
FR822A, and follow FR822A north and west until it eventually reaches plaintiffs’ property.
Defendant says the condition of FR822A between Oswald Road and plaintiffs’ property is
similar to the condition of the access road plaintiffs now use and for which plaintiffs seek
confirmation of an easement. Defendant submitted a 16-minute videotape made and
narrated by Randy Erickson, a forest land surveyor for defendant, dkt. #9-19, in which
Erickson drives the full length of FR822A from Oswald Road to plaintiffs’ property in June
2017. He does so in a two-wheel drive Jeep Patriot and asserts that the road has good
drainage and is in decent condition from spring into the fall, when it is popular with hunters.
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Plaintiffs dispute the accuracy of Erickson’s statements in the video and state that the
north-south segment of FR822A between Oswald Road and plaintiffs’ property does not
provide a reasonable, year-round means of access to plaintiffs’ property because it is in worse
condition than the route by which plaintiffs can reach their property now, which includes
the access road. Specifically, plaintiff Edward Ronkowski says that when he drove the northsouth segment of FR822A, it was extremely narrow, had deep ruts that filled with water
when it rained and had overlapping vegetation that slapped the windshield and sides of his
vehicle. (Defendant concedes that water may pool on the road after it rains, but not for
much longer than one day.) Plaintiffs say these conditions require drivers to slow to no more
than a few miles per hour. Additionally, plaintiffs say FR822A becomes impassable for any
vehicle without high clearance and four-wheel drive for a few days after a rain. Finally,
plaintiffs say that the route from Oswald Road via FR822A is longer than the route from
Blue Moon Road, although they do not say how much longer. (In the video submitted by
defendant, Erickson drove the length of FR822A from Oswald Road to the intersection of
the access road in approximately six minutes.)
D. Historical Evidence of FR822A and the Access Road
Plaintiffs have adduced no evidence that any portion of FR822A or the “access road”
between what is now plaintiffs’ property and Blue Moon Road existed when Rust-Owen
conveyed property to Tony Altobelli in 1919. Maps created before 1919 do not depict any
road connecting plaintiffs’ property to any public road. Beginning in 1920, various maps
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show a road running eastward from the south-eastern corner of plaintiffs’ property to Blue
Moon Road. Historical maps show the road running in a generally straight line from Blue
Moon Road to plaintiffs’ property, straddling the section line between Section 7 and Section
18 of Township 44 North, Range 8 or running just south of it. Dkt. ##7-17, 7-15, 15-1.
At some point, the portion of the east-west road that is now known as FR822A began
curving northward at the eastern boundary of plaintiffs’ property, veering into Section 7,
then turning south into Section 18 before leveling out along what appears to be the border
of Sections 7 and 18. The segment of FR822A that runs southward to Oswald Road appears
on maps as early as 1938, although the road was not officially designated as a public Forest
Service road until 2008. Dkt. #7-16.
At the time Rust-Owen conveyed what is now plaintiffs’ property to Tony Altobelli
in 1918 and 1919, it owned much of the land on which FR822A and the access road now
run. However, Rust-Owen did not own an 80-acre parcel in the eastern half of the southwest
corner of Section 7, abutting the west side of what is now the Allen property; the company
had conveyed that 80-acre parcel to John Johnstone in 1916. (Johnstone conveyed the 80acre property back to Rust-Owen on August 21, 1931.)
The parties dispute the location of FR822A and the access road during the time that
Johnstone owned the 80-acre parcel. Citing a 1920 Wisconsin Historical Society map,
plaintiffs say that during Johnstone’s ownership of the specified property, the access road
was located either just south of the Johnstone property line and through property still owned
by Rust-Owen, or on the property line between the Johnstone property and property owned
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by Rust-Owen to the south. Dkt. ##7-14, 9-13. Defendant disputes the accuracy of the
maps, stating that the actual location of the road is reflected on the more recent survey from
2018, which shows a road running fully onto the former Johnstone property before traveling
onto other land now owned by the United States. Dkt. #30-4.
E. Plaintiffs’ Efforts to Obtain Confirmation of Easement from Defendant
On May 27, 2008, plaintiff Edward Ronkowski, Jr. submitted an application to the
United States Forest Service, seeking “to maintain existing historic road easement the width
of a motor vehicle across .56 miles of National Forest Lands to his landlocked 120 acres of
private property,” and to have the Forest Service “acknowledge this easement appurtenant
to his 120 acres for recreation, hunting, forest management, and possible future seasonal
dwelling.”
The application form is titled “Application for Transportation and Utility
Systems and Facilities on Federal Lands.” Dkt. #7-20. On July 24, 2008, the Forest Service
requested additional documentation from Ronkowski to prove that he was unable obtain
access from private lands to the north, northwest or southwest of plaintiffs’ property. On
July 31, 2008, Ronkowski responded that he could not obtain an easement from any owner
of private property surrounding plaintiffs’ property, and reaffirmed his position that there
was an existing easement through Forest Service land.
In July 2008, the Forest Service’s website listed a Schedule of Proposed Actions.
Among other matters, the Schedule stated that a decision was expected on plaintiff
Ronkowski’s application by February 2009, and included the notation: “Affects about 2
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miles of existing, unclassified road. Some maintenance will be needed.” On July 15, 2009,
Ronkowski met with Forest Service forest land surveyor Randy Erickson and Forest Service
realty specialist Joan Cervenka. At this meeting, Erickson told Ronkowski that the Forest
Service had never before received a request to acknowledge an existing easement, and that
his application had been processed incorrectly for the previous two years as a request for a
special use permit. Erickson also told Ronkowski that he had viewed the 1938 aerial
photographs and agreed that they showed the same road that was requested in Ronkowski’s
application. Erickson offered to inform the Forest Service police not to ticket or arrest
Ronkowski for working on the access road.
Between August 2009 and December 2012, the Forest Service asked plaintiff
Ronkowski for additional information about his claim to an easement, but made no decision
on his application. In 2011, Erickson told Ronkowski he could “continue using as you
have.” Finally, on August 26, 2016, the Forest Service notified Ronkowski that it did not
believe he had “proved [his] claim of an easement of necessity or an easement by
implication,” and that plaintiffs could obtain access to their property by traveling on
FR822A. The Forest Service also advised Ronkowski that continued use and construction
on the claimed easement route would violate federal law. Finally, the Forest Service stated
that it could consider granting special use authorization to plaintiffs to use the access road.
Dkt. #8-13. Plaintiffs have not applied for a special use permit.
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F. Segment of FR822A on Plaintiffs’ Property
Beginning in 2008, the Forest Service began publishing maps that identified FR822A
as a public road starting at Oswald Road and continuing through plaintiffs’ property.
Plaintiff Edward Ronkowski, Jr. wrote to the Forest Service in 2008 objecting to the
encroachment of FR822A through plaintiffs’ property and demanding that all future motor
vehicle use maps that did not depict the road inside plaintiffs’ property. The Forest Service
acknowledged receipt of Ronkowski’s objection, but did not change any future motor vehicle
use maps.
As a result, members of the public began using FR822A more frequently,
especially during the fall hunting season. (During the spring and summer, most of the use
of FR822A is by people driving all-terrain vehicles.) Some people have crossed through
plaintiffs’ property while using FR822A, and some individuals have stolen a trail camera, left
garbage and urinated on plaintiffs’ property.
OPINION
Plaintiffs seek confirmation under the Quiet Title Act, 28 U.S.C. § 2409a, that: (1)
the United States does not have an easement or other right of access to the portion of
FR822A that lies within the boundaries of plaintiffs’ property; and (2) plaintiffs have an
easement, appurtenant to their property, to use the non-public small access road that crosses
Forest Service land owned by the United States. I address each claim below.
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A. Segment of FR822A on Plaintiffs’ Property
Plaintiffs contend that the United States has infringed their property rights by
designating a federal road, FR822A, across their property without providing any
compensation to plaintiffs. They seek a declaration that the portion of FR822A that crosses
the boundaries of their property is not a legally recognized road and that plaintiffs are
entitled to exclusive use of their property.
The undisputed evidence establishes that defendant could have, but did not, follow
the procedures for obtaining an easement through non-federal land set forth in 36 C.F.R. §
212.7(b). That regulation permits the United States to acquire easements for roads and
trails through “purchase, condemnation, donation, or as a reciprocal for permits or
easements.” Id. In this instance, defendant began printing maps identifying FR822A as a
public road running through plaintiffs’ property without obtaining permission from
plaintiffs, let alone purchasing, condemning or otherwise negotiating with plaintiffs.
However, in response to plaintiffs’ claim, defendant says it is “disclaiming” any
interest in those portions of FR822A that lie within the boundaries of plaintiffs’ property.
Specifically, defendant states in its brief in support of summary judgment that it disclaims
“any easement interest, or any other property interest, with respect to any portion of
FR822A that occupies the Ronkowski Property.” Dft.’s Br., dkt. #21, at 9. Subsequently,
defendant filed a document titled “Disclaimer of Interest” to the same effect, signed by
Shawn A. Olson, Director of Air, Water, Lands, Soils and Minerals of the Eastern Region
of the National Forest Service. Dkt. #31-1. Defendant also states that the Forest Service’s
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intention is not to show on any future maps “any part of FR822A that lies on the Ronkowski
Property.” Dft.’s Reply Br., dkt. #31, at 3. Defendant argues that its disclaimer deprives
this court of jurisdiction over plaintiffs’ claim for declaratory relief under 28 U.S.C. §
2409a(e). That provision states:
(e) If the United States disclaims all interest in the real property or interest therein
adverse to the plaintiff at any time prior to the actual commencement of the trial,
which disclaimer is confirmed by order of the court, the jurisdiction of the district
court shall cease unless it has jurisdiction of the civil action or suit on ground other
than and independent of the authority conferred by section 1346(f) of this title.
28 U.S.C.A. § 2409a(e).
Plaintiffs concede that this court will lose jurisdiction over their quiet title claim if the
court confirms defendant’s disclaimer, but they maintain that the court should not confirm
the disclaimer because it was made in “bad faith.” In particular, plaintiffs contend that
defendant should have disclaimed an interest in plaintiffs’ property in 2008, when plaintiffs
first objected to the maps depicting FR822A as crossing plaintiffs’ property. They object to
allowing defendant to wait until after plaintiffs filed suit before submitting a disclaimer.
Additionally, plaintiffs say that there is no guaranty that the Forest Service will cease
printing maps that show FR822A running across plaintiffs’ property.
The Quiet Title Act itself does not address the circumstances under which a district
court should “confirm” a disclaimer, although several courts have considered the question.
As the Court of Appeals for the Seventh Circuit has stated, “there is some tension in the case
law as to whether a district court, prior to confirming the United States’s disclaimer, is to
ascertain the validity of the United States’s justification for issuing the disclaimer, or
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whether confirmation is a mere formality.” Samuel C. Johnson 1988 Trust v. Bayfield
County, Wisconsin, 520 F.3d 822, 828 (7th Cir. 2008) (comparing Donnelly v. United
States, 850 F.2d 1313, 1317 (9th Cir. 1988) (discussing how district court confirmed
disclaimer as “valid” in light of United States’ proper conveyance of disputed property in
accord with governing statute), with W.H. Pugh Coal Co. v. United States, 418 F.Supp. 538,
539 (E.D. Wis. 1976) (“confirmation of the disclaimer of the United States is deemed a
formality and one which this court should not deny”)). However, the court of appeals stated
that “confirmation of a disclaimer could be withheld if the United States were found to have
acted in bad faith.” Samuel C. Johnson 1988 Trust, 520 F.3d at 834. See also Donnelly,
850 F.2d at 1317 (noting that district court found disclaimer to be made in “good faith”);
W.H. Pugh Coal Co., 418 F. Supp. at 539 (after confirming disclaimer, stating, “If this were
a situation in which the state and federal authorities were attempting to whipsaw the
plaintiff and to harass it so as to avoid a resolution of this dispute, I would be reluctant to
grant the dismissal.”).
In this instance, I conclude that defendant’s disclaimer is not made in bad faith and
should be confirmed. Plaintiffs have not shown that this is a situation in which defendant
was attempting to harass plaintiffs and avoid resolution of a dispute. For example, plaintiffs
do not allege that they objected repeatedly to the depiction of FR822A on public maps.
Instead, plaintiffs say they objected once, in 2008. Additionally, plaintiffs do not allege that
the Forest Service ever responded directly to plaintiffs’ objection by claiming any interest in
plaintiffs’ property. Instead, the Forest Service responded to plaintiffs’ objection with a form
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letter acknowledging receipt of plaintiffs’ communication. It is not clear whether anyone
with the Forest Service actually reviewed plaintiffs’ objection and considered whether a
change should be made to the public maps. Instead, the road appears to have been a low
priority for the Forest Service, in light of the fact that no funds have been used to maintain
it. Thus, understandable as plaintiffs’ frustration is, I cannot conclude that the lack of
communication from the Forest Service is evidence of bad faith. Therefore, I will confirm
defendant’s disclaimer of any easement interest or any other property interest, with respect
to any portion of FR822A that occupies plaintiffs’ property, which means that this court
lacks jurisdiction over plaintiffs’ claim relating to the segment of FR822A running across
plaintiffs’ property. Therefore, that claim will be dismissed for lack of subject matter
jurisdiction.
B. Plaintiffs’ Claim for Easement over Federal Land
Plaintiffs’ second claim relates to the small, non-public access road that runs through
Forest Service land owned by the United States between Eric Allen’s property and FR822A.
Plaintiffs contend that they have an easement to the access road because (1) the road was
historically a public road; and (2) they are entitled to an easement by necessity, implication
and prescription. Defendant contends that plaintiffs’ claim is barred by the applicable
statute of limitations and that, in any event, plaintiffs have no legitimate claim to an
easement.
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1. Scope of plaintiffs’ easement claim
As an initial matter, it is necessary to clarify the scope of plaintiffs’ easement claim.
Plaintiffs contend that they are seeking confirmation of an easement not only with respect
to the small, non-public access road on defendant’s property, but also over the segment of
road on Eric Allen’s property and the segment of FR822A that plaintiffs use to gain access
to their property. Plts.’ Reply Br., dkt. #27, at 14. However, plaintiffs have not shown the
existence of any ripe dispute regarding any segment of road other than the small access road.
Instead, plaintiffs concede that they do not need an easement to traverse FR822A, because
it is a public road, and they concede also that they have a written easement that permits
them to cross Allen’s property. Thus, no “case or controversy” regarding access to the Allen
property or FR822A exists over which this court would have jurisdiction. Flying J Inc. v.
City of New Haven, 549 F.3d 538, 544 (7th Cir. 2008) (court lacks subject matter
jurisdiction if there is no case or controversy ripe for review). Moreover, Allen would be a
necessary party to any claim for judicial confirmation of an easement burdening his property.
Because he is not a party, I will not consider any claim regarding an easement on his
property. Richards v. Land Star Group, Inc., 224 Wis. 2d 829, 851, 593 N.W.2d 103, 112
(Ct. App. 1999) (stating that any landowner affected by requested easement is necessary
party). For these reasons, I will consider only plaintiffs’ claim for confirmation of an
easement across the small access road on defendant’s land.
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2. Statute of limitations
The statute of limitations for quiet title suits against the United States is 12 years
after a claim “accrues.” 28 U.S.C. § 2409a(g). The statute states that “[s]uch action shall
be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or
should have known of the claim of the United States.” Id. Whether a plaintiff “knew or
should have known” of a federal claim of interest in property is governed by a “test of
reasonableness”: when would a reasonable person have known that the United States
claimed an adverse interest in the property in question. Wisconsin Valley Improvement Co.
v. United States, 569 F.3d 331, 334 (7th Cir. 2009); Kingman Reef Atoll Investments,
L.L.C. v. United States, 541 F.3d 1189, 1198 (9th Cir. 2008); Spirit Lake Tribe v. North
Dakota, 262 F.3d 732, 738 (8th Cir. 2001); Warren v. United States, 234 F.3d 1331, 1335
(D.C. Cir. 2000); Bank One Texas v. United States, 157 F.3d 397, 402 n. 11 (5th Cir.
1998); Richmond, Fredericksburg & Potomac Railroad Co. v. United States, 945 F.2d 765,
770 (4th Cir. 1991); Knapp. v. United States, 636 F.2d 279, 283 (10th Cir. 1980).
Defendant contends that plaintiffs’ easement claim is time-barred because plaintiffs
failed to file suit within 12 years of the time they knew or should have known that defendant
had an interest adverse to plaintiffs’ alleged easement rights. It says that plaintiffs should
have known of its adverse interest at any one of three times: (1) 1935, when defendant
acquired title to the land on which the access road lies; (2) 1972, when plaintiffs acquired
their property, knowing that defendant owned the neighboring properties; or (3) 1985, when
the Forest Service erected a gate at the eastern end of the access road, blocking access from
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the Allen property through defendant’s land. (The parties dispute the existence of the gate,
and defendant submitted no evidence that it was the Forest Service or any government
agency that erected the alleged gate in 1985. Defendant appears to abandon its argument
about the gate in its reply brief, stating that “[w]hether or not a gate ever existed is
immaterial.” Dkt. #31 at 8. Thus, I will not consider this argument further.) For their part,
plaintiffs contend that they did not know and could not have known that defendant had a
claim adverse to plaintiffs’ until August 26, 2016, when defendant officially denied plaintiffs’
request for confirmation of easement rights.
Plaintiffs’ argument is more persuasive. Courts have explained that the dispositive
question is not just whether the United States had some interest in the land, but whether
the United States’ interest was “adverse” to the plaintiffs’ claimed interest.
See, e.g.,
Wisconsin Valley Improvement, 569 F.3d at 334; F.E.B. Corp. v. United States, 818 F.3d
681, 692–93 (11th Cir. 2016) (citing as “common sense proposition that the statute of
limitations is not triggered by just any government interest in property, but rather only a
claimed interest that is inconsistent with—that is, adverse to—the plaintiff's asserted
interest”). Thus, “when the plaintiff claims a non-possessory interest such as an easement,
knowledge of a government claim of ownership may be entirely consistent with a plaintiff's
claim.” Michel v. United States, 65 F.3d 130, 132 (9th Cir. 1995). See also George v.
United States, 672 F.3d 942, 947 (10th Cir. 2012) (“[G]overnment’s claim of title to land
isn’t always and inherently inconsistent with private ownership of an easement over that
land. Easements and servient estates can (and usually do) peaceably coexist.”) For a
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plaintiff to have notice of an adverse interest, there must be facts that would “lead a
reasonable person to conclude that the claim of easement was open to question, and thus to
prompt inquiry.” Wisconsin Valley, 569 F.3d at 334-35. A contrary rule “would lead to
premature, and often unnecessary, suits,” as citizens currently enjoying access to government
land “would be compelled to sue to protect against the possibility, however remote, that the
government might someday restrict [their] access.” F.E.B., 818 F.3d at 693 (citations
omitted). See also Van Den Heuvel Tr. of 1994 v. U.S. Army Corps of Engineers, No.
15-CV-275, 2015 WL 4113328, at *4 (E.D. Wis. July 8, 2015) (“If the limitations period
began to run even before knowledge of any adverse interest, there would be a perverse
incentive for property owners to file preemptive actions even when there is no reason to
believe there is any dispute at all.”).
Thus, in Wisconsin Valley, the court held that filings by the Forest Service in
proceedings before the Federal Energy Regulatory Commission placed a private company on
notice that the Forest Service did not agree that the company had a flowage easement over
Forest Service land. Id. See also Michel, 65 F.3d at 131-32 (holding that plaintiffs’ “claim
of access to roads and trails across the refuge did not accrue until [they] knew or should have
known the government claimed the exclusive right to deny their historic access to the trails
and roads across the refuge”); Werner v. United States, 9 F.3d 1514, 1516-17 (11th Cir.
1993) (finding plaintiff's Quiet Title Act action for easement across government property
accrued not when plaintiff knew government owned property in general, but when plaintiff
realized government claimed title without access easement).
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In this case, there is no evidence that plaintiffs had notice that defendant’s ownership
of the land was adverse to plaintiffs’ use of the access road until defendant denied plaintiffs’
request for confirmation of an easement in 2016, or, at the very earliest, when defendant
failed to promptly approve plaintiffs’ request for confirmation of an easement in 2008.
Until then, plaintiffs had no reason to believe that defendant objected to their use of the
road. No government official had directed plaintiffs to stop using the road and no barriers
or signs had been erected by defendant; in fact, Forest Service employee, Randy Erickson,
had told plaintiff Edward Ronkowski as late as 2011 that he should continue using the road
as he had been. Therefore, the statute of limitations on plaintiffs’ Quiet Title Act claim did
not begin to run until 2008 at the earliest and plaintiffs’ claims are not barred by the 12-year
statute of limitations.
3. Legal right to an easement
Although plaintiffs’ claim is not time-barred, they must still prove that they are legally
entitled to an easement. Plaintiffs seek declaration of an easement under four alternative
legal theories: (1) easement by statute because the access road is a public road that has not
abandoned; (2) easement by necessity; (3) easement by implication; and (4) easement by
prescription. Both sides agree that although plaintiffs’ easement claims are brought under
the Quiet Title Act, they are governed by Wisconsin law, so long as state law does not
conflict with the federal purposes of the United States’ property ownership. Dft.’s Br., dkt.
#21, at 7; Plts.’ Br., dkt. #12, at 7. Thus, I will apply Wisconsin law to plaintiffs’ easement
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claims. Hoyt v. Benham, 813 F.3d 349, 353 (7th Cir. 2016) (applying Indiana law to claim
for easement brought under Quiet Title Act).
a. Public right of way
Plaintiffs say that when defendant acquired its property in 1935, the “access road”
had been “mapped as a public road” in local maps of the area. Plts.’ Br., dkt. #12, at 12.
They contend that because their predecessors in interest had been using this “public road”
as a right of way to gain access to their property, defendant took ownership of its property
subject to the right of way. Id. Plaintiffs argue that they are entitled to “an easement by
statutory law as a town road that has not been abandoned.” Id. at 21.
Plaintiffs do not specify the “statutory law” that supports their claim of an easement
over a “town road.” Instead, they cite several Wisconsin state court cases involving disputes
about whether public roads have been abandoned by a municipality or converted to private
roads. E.g., City of Jefferson v. Eiffler, 16 Wis. 2d 123, 113 N.W.2d 834 (1962); Town of
Schoepke v. Rustick, 2006 WI App 222, 296 Wis. 2d 471, 723 N.W.2d 770; Markos v.
Schaller, 2003 WI App 174, 266 Wis. 2d 470, 668 N.W.2d 755; Lange v. Tumm, 2000 WI
App 160, 237 Wis. 2d 752, 615 N.W.2d 187. However, these cases are not on point for
two reasons. First, plaintiffs have not shown that the access road at issue in this case was
ever platted or designated as a “public road” or “public highway” under Wisconsin law.
Second, the cited cases are not about easements, but about whether a road is even open to
the public.
This makes sense. A member of the public would not generally need an
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easement to gain access to a “public” road. Moreover, plaintiffs cannot bring a claim under
the Quiet Title Act for a declaration that a road qualifies as a public road under state law.
Southwest Four Wheel Drive Assn. v. Bureau of Land Management, 363 F.3d 1069, 1071
(10th Cir. 2004) (members of public cannot claim title in public roads and therefore cannot
maintain Quiet Title action regarding public road); Long v. Area Manager, Bureau of
Reclamation, 236 F.3d 910, 915 (8th Cir. 2001) (right of individual to use public road is
not right or interest in property for purpose of Quiet Title Act); Alleman v. United States,
372 F. Supp. 2d 1212, 1226 (D. Or. 2005) (plaintiffs’ interest as members of public is
“insufficient to bring an action to have the roads declared” public highways under Quiet
Title Act).
Plaintiffs state in their reply brief that they are not seeking a declaration that the
access road is a “public road” under Wisconsin law, but merely a declaration that plaintiffs
themselves have an easement over the access road. However, they do not explain how any
of their arguments about the “public” nature of the road or their citations to various cases
involving disputes about public highways are relevant to their easement claim. Therefore,
plaintiffs have not shown they are entitled to an easement based on a theory that the access
road is a public road that has not been abandoned.
b. Easement by necessity
Next, plaintiffs argue that they have a claim for easement by necessity. Easements
by necessity are generally sought “when an owner of a landlocked property wants public
21
highway access and has been unable to obtain it from an adjoining landowner.” McCormick
v. Schubring, 2003 WI 149, ¶ 9, 267 Wis. 2d 141, 148, 672 N.W.2d 63, 66. In Wisconsin,
a property owner seeking declaration of an easement by necessity must prove the following
elements: (1) common ownership of the proposed servient and dominant estates at the time
of the severance that created the landlocked condition; and (2) the landlocked parcel had no
access to a public roadway after it was severed and such lack of access continues. Id., at ¶
11, 267 Wis. 2d at 149, 672 N.W.2d at 66-67. If they can make this showing, courts then
consider any additional relevant factors and weigh the burdens and benefits the easement
would create. Id. at ¶ 16.
Defendant contends that plaintiffs’ claim fails on the first factor because plaintiffs
have not shown common ownership of defendant’s property (the proposed servient estate)
and plaintiffs’ property (the proposed dominant estate) at the time plaintiffs’ property
became landlocked in 1919, when it was conveyed by Rust-Owen Lumber Company.
Instead, the evidence shows that between 1916 and 1931, a portion of the proposed servient
estate on which the access road lies was owned by John Johnstone, not Rust-Owen.
Defendant is correct that starting in 1920 a road depicted on maps appears to run on
or across portions of property owned by Johnstone between 1916 and 1931. In particular,
the Johnstone parcel encompassed the eastern half of the distance from what is now the
Allen property to plaintiffs’ property. As depicted on plaintiffs’ survey, the Johnson parcel
was the eastern half of the land lying between the two dashed lines running north-south on
the survey. Dkt. #30-4. The survey also shows that the route plaintiffs now use to gain
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access to their property runs through the former Johnstone parcel. Thus, defendant argues,
plaintiffs cannot show a history of common ownership of the land in dispute. Accordingly,
plaintiffs have no right to an easement by necessity over any portion of the former Johnstone
parcel.
However, it is not clear from the parties’ arguments or the maps they have submitted
whether the segment of road running through the former Johnstone parcel is the current
FR822A or the small “access road” over which plaintiffs seek an easement. Plaintiffs’ recent
survey shows that the access road may fall south of the former Johnstone parcel, in Section
18, on land that was owned by Rust-Owen at the time plaintiffs’ parcel was severed in 1918
and 1919. Dkt. #30-4. If this is the case, plaintiffs’ claim could still satisfy the common
ownership element of their easement claim.
Even if this is true, plaintiffs cannot show that the easement is necessary for them to
have access to a public roadway from their property. Under Wisconsin law, “[a]n easement
by necessity continues only as long as the need for it continues to exist.” Jorns v. Fischer,
2010 WI App 159, ¶ 9, 330 Wis. 2d 497, 792 N.W.2d 240 (unpublished) (citing Niedfeldt
v. Evans, 272 Wis. 362, 364-65, 75 N.W.2d 307 (1956)). Thus, “if the owner of landlocked
property acquires another way to access the property, any previously granted easement by
necessity will terminate.” Id. In this instance, plaintiffs can reach their property using
FR822A from Oswald Road, as is confirmed by defendant’s video showing Randy Erickson
traveling the entire length of FR822A from Oswald Road to plaintiffs’ property, as well as
by evidence that other members of the public use FR822A.
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Plaintiffs say that FR822A is not a good alternative because it is bumpy, overgrown
with vegetation that can scratch vehicles and has deep ruts that can make the roadway
impassable after a heavy rainfall. However, much of plaintiffs’ evidence and argument
regarding the condition of FR822A relates to a portion of FR822A that runs to the west of
plaintiffs’ property. Plts.’ Br., dkt. #12, at 17. Because plaintiffs would not need to use that
western segment of road to get to their property, its condition is irrelevant.
Plaintiffs’ only evidence relating specifically to the north-south segment of FR822A
that plaintiffs would travel to reach their property from Oswald Road is plaintiff Edward
Ronkowski, Jr.’s statement that “[w]hen [he] ha[s] tried to drive down this segment of
FR822A, the road is extremely narrow, contains many deep ruts, and is replete with
overlapping vegetation that slaps the windshield and sides of [his] vehicle.” Ronkowski Aff.,
dkt. #15, ¶ 57. These statements are too vague to create a genuine dispute about whether
FR822A provides an adequate alternative route, however, because Ronkowski does not say
how often he has tried to drive down this segment of road, what type of vehicle he was
driving or when he most recently attempted to drive it. Ronkowski also submitted two
photographs from July and August 2017 of this segment of road, but they are not helpful.
One photograph shows a dirt road with a large puddle in it, dkt. #15-8, while the other
shows a dirt road with small branches growing across it. Dkt. #15-7. Neither picture shows
a road that appears to be impassable, at least for a vehicle with sufficient clearance.
Additionally, plaintiffs provide no information about where in particular the photographs
were taken. Thus, although plaintiffs argue repeatedly that FR822A does not provide an
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acceptable route, they have not submitted evidence sufficient to create a genuine factual
dispute on this issue.
Moreover, “[a]n easement of necessity . . . is not merely one of convenience.”
Richards v. Land Star Group, Inc., 224 Wis. 2d 829, 850, 593 N.W.2d 103, 112 (Ct. App.
1999) (citing Backhausen v. Mayer, 204 Wis. 286, 288, 234 N.W. 904, 905 (1931)).
“Wisconsin courts have consistently held that geographic barriers alone are insufficient to
warrant an easement by necessity.” Jorns, 2010 WI App 159, ¶ 12, 330 Wis. 2d 497, 792
N.W.2d 240 (citing Schwab v. Timmons, 224 Wis.2d 27, 39, 589 N.W.2d 1 (1999). For
example, in Schwab, the Wisconsin Supreme Court rejected an argument that a property was
landlocked because of cliffs and rocky terrain between the property and a public road. The
Court stated that although “it may be more convenient for the petitioners to seek an
extension of the private road to their parcels rather than travel across the property above the
bluff and navigate the bluff,” convenience alone “does not create the right to an easement
by necessity.” Id. “A grantor is not landlocked when he or she has difficulty getting from
his or her land to a public road as long as he or she can get from his or her land to a public
road.” Id. Applying the reasoning from Schwab to this case, I conclude that plaintiffs have
not shown that they need an easement on the small access road to reach a public road.
Although reaching Oswald Road by using FR822A may be inconvenient, difficult or require
a high clearance vehicle, plaintiffs have submitted no evidence that it is impossible.
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c. Easement by implication
Next, plaintiffs argue that they are entitled to an easement by implication. Easements
by implication are generally disfavored in Wisconsin. Schwab, 224 Wis. 2d at 36, 589
N.W.2d at, 6; House v. Pasko, 2010 WI App 120, ¶ 6, 329 Wis. 2d 270, 789 N.W.2d 754
(unpublished) (citing Bullis v. Schmidt, 5 Wis. 2d 457, 460-61, 93 N.W.2d 476 (1958)).
Under Wisconsin law, easements by implication are “similar” to easements by necessity, but
are “legally distinguishable concepts.” Schwab, 224 Wis. 2d at 36, 589 N.W.2d at 6. “An
easement by implication arises when there has been a ‘separation of title, a use before
separation took place which continued so long and was so obvious or manifest as to show
that it was meant to be permanent, and it must appear that the easement is necessary to the
beneficial enjoyment of the land granted or retained.’” Id. (citation omitted). Additionally,
“[i]mplied easements may only be created when the necessity for the easement is ‘so clear
and absolute that without the easement the grantee cannot enjoy the use of the property
granted to him for the purposes to which similar property is customarily devoted.’” Id.
(citation omitted).
The first question then, is whether plaintiffs have shown prior to the severance of
their property from the larger tract, the use of the small road then owned by Rust-Owen
Lumber Company was “so obvious, manifest or continuous as to show that it was meant to
be permanent.” Id. at 37. The second question is whether plaintiffs have shown a “clear and
absolute” necessity for an easement over the small access road. Id. Plaintiffs have not
submitted evidence sufficient to satisfy their burden on either question.
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First, there is no evidence that the small access road even existed before the severance
of plaintiffs’ property in 1918 and 1919 from the larger tract, let alone that use of the road
was so “obvious, manifest or continuous to show that it was meant to be permanent.” In
their reply brief, plaintiffs concede that the access road “was not depicted on any map”
before the severance, but argue that from the location of public roads at the time, it “may
easily be concluded that” users of the land now owned by plaintiffs must have traveled along
the access road to reach a public road. Plts.’ Reply Br., dkt. #27, at 20. An argument based
on speculation and unsupported by any factual basis or supporting evidence about the
existence, location and use of the access road before 1918 is not sufficient to withstand
summary judgment.
Additionally, plaintiffs have not shown a clear and absolute necessity for an easement
by implication. For the same reasons discussed above, plaintiffs have not shown that it is
impossible to gain access to their property by traveling on FR822A from Oswald Road.
Moreover, “a clear and absolute necessity” “does not exist where an alternative means to
enjoy the land may be acquired for a reasonable sum.” House, 2010 WI App 120, ¶ 7, 329
Wis. 2d 270, 789 N.W.2d 754. Defendant has offered plaintiffs the opportunity to apply
for a special use permit to use the access road, as well as to perform maintenance work on
the access road and the portion of forest roads plaintiffs use to reach their property. (The
current cost of a special use permit is not clear from the record, although defendant offered
plaintiffs the opportunity to apply for a permit in 2007 for $375.) This opportunity to gain
access by obtaining a special use permit is another reason plaintiffs cannot establish a right
27
to easement by implication.
d. Easement by prescription
Finally, plaintiffs argue that they have a prescriptive easement over the access road.
In Wisconsin, an individual claiming an easement by prescription must show: “(1) adverse
use hostile and inconsistent with the exercise of the titleholder’s rights; (2) which is visible,
open and notorious; (3) under an open claim of right; (4) and is continuous and
uninterrupted for twenty years.” Ludke v. Egan, 87 Wis. 2d 221, 230, 274 N.W.2d 641,
646 (1979). Plaintiffs contend they have a prescriptive easement because there has been
“hostile and open use of the access road which continued for a period in excess of 20 years,”
Plts.’ Br., dkt. #12, at 21, but the Quiet Title Act precludes plaintiffs’ claim for a prescriptive
easement against the United States.
It states that “[n]othing in this section shall be
construed to permit suits against the United States based upon adverse possession.” 28
U.S.C. § 2409a(n). Courts have interpreted this provision as prohibiting claims of easement
by prescription, because prescriptive easements are created by “adverse” use. Hoyt v.
Benham, 813 F.3d 349, 353 (7th Cir. 2016) (“[E]asements (called “prescriptive”) can’t be
acquired over federal land.”); United States v. Vasarajs, 908 F.2d 443, 447 (9th Cir. 1990)
(“[P]rescriptive rights cannot be obtained against the federal government.”). The one
possible exception is that a prescriptive easement against the United States might exist if the
United States acquired land already burdened by a prescriptive easement. Hoyt, 813 F.3d
at 353 (“[T]he federal government can purchase land that is already subject to a prescriptive
28
easement.”). However, plaintiffs state expressly that they are not arguing that a prescriptive
easement existed at the time the United States purchased the property, Plts.’ Reply Br., dkt.
#27, at 22, presumably because plaintiffs’ property had been owned for a period of only 15
years by the time the United States acquired its property from Rust-Owen in 1935. Because
plaintiffs cannot obtain an easement by adverse use against the United States directly, their
claim to a prescriptive easement fails.
In sum, plaintiffs have not shown that they are entitled to any easement over the
access road under any legal theory. Accordingly, I will deny plaintiffs’ motion for summary
judgment on their easement claim and grant defendant’s motion.
ORDER
IT IS ORDERED that
1.
Defendant United States of America’s disclaimer of interest, dkt. #31-1, is
CONFIRMED under 28 U.S.C. 2409a(e).
2. Defendant’s motion for summary judgment, dkt. #20, is GRANTED.
3. Plaintiffs Edward E. Ronkowski, Jr. and Joann Ronkowski’s motion for summary
judgment, dkt. #11, is DENIED.
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4. The clerk of court is directed to enter judgment for defendant and close this case.
Entered this 23d day of May, 2018.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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