How to Obtain an Easement by Necessity for Landlocked Property in Wisconsin

Finding a deeply discounted piece of hunting land in Northern Wisconsin or inheriting a secluded family cabin sounds like a dream. However, that dream quickly turns into a nightmare if you discover the property is "landlocked"-meaning it has absolutely no legal access to a public road. You cannot simply drive your truck across a neighbor's field to reach your land. If you do, you are trespassing.

Many Wisconsin landowners mistakenly believe that state law automatically grants every parcel of land access to a public highway. This is false. Obtaining legal access to a landlocked parcel requires either negotiating a private purchase with a neighbor or filing a complex civil lawsuit to establish an easement. This guide details the strict legal thresholds for forcing an easement in court, and why negotiating a purchased right-of-way is often the smarter alternative.

Understanding Wisconsin Law on Landlocked Property

When you take a neighbor to court to force them to give you access to your land, you are asking a judge to seize a portion of their private property rights. Because Wisconsin fiercely protects private property, the courts only grant forced easements under very strict historical circumstances.

The Legal Threshold for an Easement by Necessity

An "easement by necessity" is a common law concept. In the landmark case Schwab v. Timmons, 224 Wis. 2d 27 (WI Supreme Court 1999), the Wisconsin Supreme Court established rigid rules for these claims. The court ruled that you cannot create your own landlocked parcel (by selling off your road access) and then demand an easement by necessity from a neighbor. To win an easement by necessity, you must prove that your property is completely, 100% landlocked and that the necessity existed at the exact moment the land was originally divided.

Easement by Implication: How Historical Severance Affects Your Claim

Closely related to necessity is an "easement by implication." To establish this, you must dive deep into the county archives at locations like the Brown County Register of Deeds, Green Bay. You must prove two things:

• Common Ownership: You must prove that at some point in history, your landlocked parcel and the neighbor's parcel (the one you want to cross) were owned by the exact same person.
• Severance: You must prove that when this common owner split the land and sold a piece, it was clearly implied that the landlocked parcel would continue to use the existing path or road over the front parcel. If you cannot trace the chain of title back to a common owner, the judge will dismiss your lawsuit.

Negotiating a Purchased Right-of-Way Easement

Because proving historical severance in court is incredibly difficult and expensive, the most practical solution is often to buy access. You can approach the adjoining landowner and offer to pay them for a "Deeded Right-of-Way Easement."

If the neighbor agrees, your attorney will draft a formal easement agreement detailing the exact width of the road, who pays for snowplowing, and restrictions on use (e.g., residential use only). This document must comply with conveyancing laws under Wis. Stat. § 706.02. Once both parties sign, it is recorded with the county and permanently attaches to your property, instantly curing the landlocked status.

The Step-by-Step Process of Suing for an Easement

If the neighbor refuses all cash offers and you have proof of historical common ownership, you will have to litigate. Here are the steps.

Step 1: Hire a Title Search Professional

Your lawyer will order a "chain of title" search going back decades (sometimes to the 1800s) to find the moment the common ownership was severed.

Step 2: Hire a Land Surveyor

You must present the court with a precise legal description of the easement you are demanding. A surveyor will map the least intrusive route across the neighbor's property.

Step 3: File a Civil Complaint for Declaratory Judgment

Your attorney will file a lawsuit asking the judge to declare the existence of the easement. For example, if the land is in Door County, you will file an individualized summons and complaint pursuant to Wis. Stat. § 801.095 with the Door County Circuit Court, Sturgeon Bay.

Step 4: Present Evidence at Trial

At trial, you will present the historical deeds and surveyor maps to prove that the strict legal elements of implication or necessity are met.

How Much Does it Cost to Litigate an Easement in Wisconsin?

Litigating an easement by necessity is one of the most expensive types of real estate lawsuits because it relies heavily on historical research and expert testimony.

Frequently Asked Questions (FAQ)