Jodie Knudson Baacke v. Jill A. Hendricks

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 17, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP143 Cir. Ct. No. 2020CV140

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

JODIE KNUDSON BAACKE,

PLAINTIFF-APPELLANT,

V.

JILL A. HENDRICKS AND JESSE A. MADOCHE,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Door County:
DONALD R. ZUIDMULDER, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Jodie Baacke appeals a judgment, which followed
a grant of summary judgment entered in favor of Jill Hendricks and
No. 2023AP143

Jesse Madoche, dismissing Baacke’s declaratory judgment action. Baacke argues
that the circuit court erred by failing to address what Baacke actually sought in this
action: a determination of the scope of rights reserved by Baacke’s predecessor in
title, which she contends included a “collection of easement reservations”
allowing her to control the use of a private road that runs alongside her property
and neighboring properties. Baacke also argues that the court erred by concluding
that Hendricks and Madoche had an express easement over the private road and
that there was no restriction on the commercial use of the private road.

¶2 We conclude that the plain language in Baacke’s deed grants her title
to her property and a nonexclusive easement over the private road, nothing more.
Because we affirm on that basis, we need not address the parties’ additional
arguments regarding Baacke’s claimed control over the private road and its usage.

BACKGROUND

¶3 In 1990, Marion and Aldred Ash acquired a parcel of real property,
which they later subdivided into several parcels. Indigo Road or Indigo Lane
(hereinafter referred to as “Indigo Road”) is a 66-foot-wide private road that
connects all of the Ashes’ subdivided parcels to State Highway 42 in Egg Harbor,
Wisconsin. Between 1994 and 1997, the Ashes conveyed these parcels to third
parties through either land contracts or warranty deeds, and the legal description in
each of these documents reserved a 33-foot easement “for road purposes.” These
side-by-side 33-foot easements make up Indigo Road. The following map is
helpful for visualizing the size of the Ashes’ original parcel, and it identifies the
parcels, including those we describe below, with the last three or four digits of the
tax parcel number:

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¶4 In 2015, Marion Ash (“Ash”) conveyed one of her parcels,1 known
as 6209 Indigo Road, Tax Parcel No. 0080121292641A, to Baacke pursuant to a
warranty deed. A portion of Indigo Road is located along the eastern boundary of
Baacke’s parcel. The deed conveyed the parcel and an easement, both of which
are described in an attachment and labeled as “Parcel I” and “Parcel II.” Parcel I
provides the legal description of the parcel that Ash conveyed to Baacke.

¶5 Parcel II provides the legal description for a “non-exclusive
easement for ingress, egress and utilities over a 66’ wide private road to access
STH 42.” It further describes the easement’s location with particularity. The
location is described by using the same location of the easement reservations that
the Ashes made in their deeds to other parties, such as the northerly, easterly,
westerly, or southerly 33 feet of the various parcels along Indigo Road. Baacke
asserts that she believed that “by including the entire easement as a parcel

1
Aldred Ash passed away prior to this conveyance.

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transferred by the Warranty Deed, [Ash] was transferring to [Baacke] all rights of
[Ash] in and to [Indigo Road].” Baacke’s deed, however, does not contain any
language conveying the Ashes’ own reservations of rights—including any control
over Indigo Road—to Baacke.

¶6 In 2019, Hendricks and Madoche acquired their parcel, known as
6207 Indigo Lane, Tax Parcel No. 0080121292641L2, through a warranty deed
from Sharon Kuehn. Hendricks and Madoche’s parcel had been acquired through
several conveyances, but it began as two of the Ashes’ subdivided parcels that
were combined into one parcel. Portions of Indigo Road are located along the
eastern and western boundaries of Hendricks and Madoche’s parcel. The deed
conveyed the parcel and an easement, which are both described in an attachment
and labeled as “Parcel I” and “Parcel IA.” Parcel I provides the legal description
of the conveyed parcel.

¶7 Parcel IA provides the legal description for a “non-exclusive
easement for ingress, egress and utilities as set forth in Doc. No. 791037.”
Document No. 791037, titled “Easement: Affidavit of Intent,” is a document Ash
executed on October 16, 2015, and it was recorded on October 19. The Affidavit
of Intent stated that the Ashes previously owned all of the parcels along Indigo
Road, which are legally described in an attached exhibit, and that the Ashes sold
those parcels while “granting and reserving certain rights for a private access and
utility easement known as Indigo Road,” which is also legally described in the
attached exhibit. The legal description for the nonexclusive easement in the
Affidavit of Intent to which Hendricks and Madoche’s deed refers is the same as
the legal description for the nonexclusive easement in Baacke’s deed—i.e., “for
ingress, egress and utilities over a 66’ wide private road to access STH 42.” The

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easement’s location is also described with the same particularity as it is in
Baacke’s deed.

¶8 The Affidavit of Intent also stated that when the Ashes developed
the parcels and granted and reserved rights over Indigo Road, they intended for
each described parcel to “have access rights for ingress, egress, and utilities
between their parcels and the platted right-of-way of State Highway 42 over and
across Indigo Road as described.” Finally, the Affidavit of Intent stated that it was
made to establish the Ashes’ intent as the parcels’ developers and their “intent for
Indigo Road to benefit each parcel for access and utilities to and from said
respective parcels to State Highway 42.”

¶9 After acquiring their parcel, Hendricks and Madoche constructed a
commercial building for mini-storage rentals on the parcel. The driveway to
access the building is on the east side of the parcel and there is no driveway on the
west side of the parcel. Baacke’s parcel is located northwest of Hendricks and
Madoche’s parcel. Thus, the storage unit renters would not cross the portion of
Indigo Road that lies within Baacke’s parcel to access their storage units.

¶10 In November 2020, Baacke commenced this action against
Hendricks and Madoche. Baacke sought a declaratory judgment that Hendricks
and Madoche “do not hold easement rights over Indigo Road”; that “any use of
Indigo Road for commercial purposes is prohibited as being outside of the scope
of the easements reserved or granted”; and that Baacke “is the title holder of all
rights reserved by Ash in and to Indigo Road.” Baacke also sought a permanent
injunction “prohibiting the use of Indigo Road for commercial or business
purposes.”

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¶11 Hendricks and Madoche subsequently moved for summary
judgment. They argued that: (1) Baacke did not “have the right to exclude others
from the portions of Indigo Road outside of the boundaries of her parcel”; (2) they
were “unambiguously granted an express easement through reservations on deeds
and” the Affidavit of Intent, or, if the easement grants and reservations in their title
chain were ambiguous, extrinsic evidence established an easement by express
grant or by necessity; and (3) “[t]here are no restrictions on the easement which
prevent commercial use.”

¶12 The circuit court granted Hendricks and Madoche’s motion for
summary judgment. The court concluded that Baacke’s deed unambiguously
conveyed a nonexclusive easement over Indigo Road, that the deed’s plain
language did not give Baacke “access to Indigo Road ‘to the exclusion of all
others,’” and that, therefore, Baacke could not “limit [Hendricks and Madoche’s]
use of their parcel or their access to Indigo Road.” Noting that it did not need to
reach the content of the Affidavit of Intent, the court also concluded that
Hendricks and Madoche’s deed unambiguously gave them access to and from
their parcel, even though the “deed did not fix the location of the ingress or
egress.” Finally, the court concluded that Baacke failed to present evidence
suggesting that “she acquired the authority to prohibit commercial enterprises on”
Hendricks and Madoche’s parcel, or that Hendricks and Madoche’s deed
prevented commercial activity by them. For these reasons, the court also denied
Baacke’s request for a permanent injunction.

¶13 In May 2023, the circuit court entered a final judgment in favor of
Hendricks and Madoche, awarding them costs and disbursements and dismissing
Baacke’s declaratory judgment action. Baacke now appeals.

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DISCUSSION

¶14 We review a circuit court’s summary judgment decision de novo,
applying the same methodology as the circuit court. See Konneker v. Romano,
2010 WI 65, ¶22, 326 Wis. 2d 268, 785 N.W.2d 432. Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” WIS. STAT. § 802.08(2) (2023-24).

¶15 Baacke contends that she never argued in this case that she had an
exclusive easement over Indigo Road, and, therefore, the circuit court erred by
disposing of her case by simply concluding that she did not have an exclusive
easement. Baacke contends that the court should have addressed the primary issue
related to her claim: determining “the scope of the rights that [Baacke] obtained
from Ash when Ash conveyed to [Baacke] the collection of easement reservations
that Ash had collected over the years.” Baacke asserts that Ash conveyed those
reservations to Baacke as Parcel II in Baacke’s deed. Relatedly, Baacke contends
that evidence in the record shows that those reservations include, at least, rights of
control over Indigo Road. Thus, we turn first to the language in Baacke’s deed.

¶16 Easements and reservations are created by deeds, which “are
construed as are other instruments”—to determine the parties’ intent.2 Konneker,

2
“An easement is an interest in land possessed by another.” Gojmerac v. Mahn, 2002
WI App 22, ¶18, 250 Wis. 2d 1, 640 N.W.2d 178 (2001). “Title does not pass to an easement
holder, ‘but only a right of use or privilege in the land of another.’” Konneker v. Romano, 2010
WI 65, ¶25 n.8, 326 Wis. 2d 268, 785 N.W.2d 432 (citation omitted).

(continued)

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326 Wis. 2d 268, ¶26 (citation omitted); see also Murphy v. Sunset Hills Ass’n,
243 Wis. 139, 143, 9 N.W.2d 613 (1943). “The primary source of the parties’
intent is what is written within the four corners of the deed.” Konneker, 326
Wis. 2d 268, ¶26. If the language in the deed is unambiguous, then extrinsic
evidence is not needed to determine the parties’ intent. Id. If the language is
ambiguous, “then the parties may introduce other evidence to demonstrate the
intent behind the language.” Id.

¶17 Upon examining the language in Baacke’s deed, we conclude that
there is nothing in her deed conveying the Ashes’ own collection of easement
reservations to Baacke, whatever those rights may have been. As Hendricks and
Madoche note, the deed unambiguously conveys two property interests: (1) title to
Baacke’s parcel and (2) the nonexclusive easement “‘for ingress, egress and
utilities over a 66’ wide private road to access STH 42’ over lands described as
Indigo Road.” Contrary to Baacke’s contention, the legal description of the
nonexclusive easement’s location labeled Parcel II in Baacke’s deed does not
convey any additional rights, including those attendant to any reservations that the
Ashes made when they conveyed parcels to other parties between 1994 and 1997.
Although the legal description of the easement’s location in Baacke’s deed
matches the legal description of the location of the Ashes’ easement reservations,

Regarding reservations, Wisconsin courts have noted that the terms “reservation” and
“exception” are often used interchangeably but have distinct meanings. See Schumski v. Village
of Hales Corners, 14 Wis. 2d 301, 304-05, 111 N.W.2d 88 (1961). “A reservation is something
taken back from the grant while an exception is some part of the estate described in general terms
in the deed which is not granted.” Murphy v. Sunset Hills Ass’n, 243 Wis. 139, 143, 9 N.W.2d
613 (1943). In other words, for an exception, a grantor retains title to the portion of the property
excepted in the deed. See Ogden v. Straus Bldg. Corp., 187 Wis. 232, 258-59, 202 N.W.34
(1925). For a reservation, title to all property passes to the grantee, but the grantor reserves a
right to use a portion of that property. See id.

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it is simply a particular description of the easement’s location and not an explicit
conveyance of any easement reservations.

¶18 In her brief-in-chief, Baacke does not point to any language in her
deed stating that Ash conveyed the entire collection of reservations that she held to
Baacke. Instead, she argues, in conclusory fashion, that Parcel II in her deed is
made up of the reservations that the Ashes collected and that the “description of
those reservations as being for ‘road purposes’” is ambiguous. Those descriptions,
however, are found in the deeds from 1994 to 1997 to third parties, not in the
language in Baacke’s deed. In other words, Baacke contends that the reservation
language in descriptions from other deeds is ambiguous, and not the language
from her own deed. As noted above, we examine what is written within the four
corners of Baacke’s deed to determine what was conveyed, and the conveyance
does not include a collection of the Ashes’ reservations made in other deeds.

¶19 In reply, Baacke points to standard language in her deed that she
argues is ambiguous for two reasons. First, she points to the language stating that
Ash conveys to Baacke “the following described real estate, together with the
rents, profits, fixtures and other appurtenant interests.” She then asserts that “if
the [Ashes’] reservations of the easements are appurtenant to the described real
estate, then those easements were necessarily transferred by the deed.”

¶20 Second, Baacke points to language stating that Ash warrants that
“title to the Property is good, indefeasible, in fee simple and free and clear of
encumbrances except … terms, conditions, restrictions and provisions relating to
the use and maintenance of the easement described as Parcel [II] and as defined in

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[the Affidavit of Intent] recorded as Doc. No. ______.”3 She then argues that this
language creates ambiguity because “neither Parcel II in Baacke’s deed, nor the
Affidavit of Intent provide any guidance on the ‘use,’ and especially not the
‘maintenance,’ of the easement described in Parcel II.” Discovery of extrinsic
evidence, Baacke contends, is necessary to resolve these ambiguities.

¶21 As an initial matter, and as noted above, Baacke did not point to the
above language in her brief-in-chief to argue that her deed was ambiguous, but she
instead pointed to language in other deeds. We generally do not consider
arguments raised for the first time in a reply brief. See A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 492-93, 588 N.W.2d 285 (Ct. App. 1998).
Nevertheless, neither set of language on which Baacke relies creates ambiguity as
to what Baacke’s deed clearly conveys: title to the property and the nonexclusive
easement over Indigo Road for limited purposes, including ingress and egress. It
is clear what Ash intended to convey, and that conveyance did not include a
collection of easement reservations.

¶22 Baacke also argues that the more detailed legal description in her
deed of the easement over Indigo Road must mean “that Ash intended to grant
Baacke elevated rights over the easement” because other deeds, such as Hendricks
and Madoche’s deed, do not contain a similar detailed description of the easement.
But Baacke cites no legal authority stating that one party obtains elevated rights
over others by virtue of a more particular description alone. Moreover, the legal
documents conveying title to Hendricks and Madoche do at least purport to

3
Baacke characterizes this language as “nonstandard language”; however, other than the
listed exceptions, the language is standard in a warranty deed. See Lucareli v. Lucareli, 2000 WI
App 133, ¶6, 237 Wis. 2d 487, 614 N.W.2d 60 (noting the standard language in a warranty deed).

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contain the same legal description of the easement as in Baacke’s deed. As noted
above, Hendricks and Madoche’s deed incorporates by reference the Affidavit of
Intent, which contains that very description. Although Baacke takes issue with the
circuit court’s consideration of the Affidavit of Intent and its legal effect,4 at the
very least, the Affidavit of Intent demonstrates an overall intent to convey
easements with the same legal description to all parcel owners.5

¶23 We conclude by noting one final problem with Baacke’s argument.
Assuming Ash conveyed the collection of easement reservations to Baacke, for
Baacke to succeed in this action, the Ashes would have also had to reserve the
right to control or limit the use of Indigo Road, particularly for commercial travel.
As Hendricks and Madoche argue, if the Ashes’ reservations were construed as
allowing the Ashes to control or limit the use of Indigo Road, those reservations

4
It appears the parties engaged in correspondence with the circuit court to address how
to handle the Affidavit of Intent in disposing of the summary judgment motion. The court
provided instructions regarding the Affidavit of Intent, which are not in the record, and both
parties interpret those instructions differently. According to Baacke, the court “indicat[ed] that it
would not consider the Affidavit of Intent of Marion Ash, given that it was the main document
that Baacke sought to rebut through discovery.” According to Hendricks and Madoche, the court
“wanted to consider easements and deeds in the title chain,” of which the Affidavit of Intent was
a part. The transcript from the nonevidentiary hearing held in August 2022 suggests that the
court would not rely on the Affidavit of Intent, given its statement that Hendricks and Madoche
could not rely on the Affidavit of Intent to support one of their arguments.
5
Ash filed the Affidavit of Intent on October 16, 2015, and it was recorded three days
later. It is worth noting that this occurred during the pendency of the land contract between
Hendricks and Madoche’s predecessor in interest, Sharon Ann Kuehn, and the prior owner, who
had been the one to combine the easterly and westerly portions of what became the parcel sold to
Hendricks and Madoche. See supra ¶6. We note this fact because, as Baacke mentions, neither
the land contract nor the warranty deed for this prior transaction completed in 2018—which was
the first conveyance of the combined parcel—made any reference to easements. This omission
was despite the fact that all preceding sales of the easterly portion of the parcel—i.e., the one
Hendricks, Madoche, and their storage unit renters use to access the parcel—included some
reservation of easements related to Indigo Road.

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would operate as a restriction on the free use of Indigo Road by all parcel owners
in the Ashes’ original parcel and thereby violate public policy. We agree.

¶24 Wisconsin public policy “favors the free and unrestricted use of
property”; accordingly, any restrictions in deeds “must be strictly construed to
favor unencumbered and free use of property.” Crowley v. Knapp, 94 Wis. 2d
421, 434, 288 N.W.2d 815 (1980). Thus, a deed restriction that “purports to
operate in derogation of the free use of property must be expressed in clear,
unambiguous, and peremptory terms.” Id. at 435. Here, if we accepted Baacke’s
argument that the Ashes’ reservations are ambiguous, those reservations would
operate as unclear and ambiguous restrictions expressed in the deeds, and they
would be contrary to public policy. Baacke does not point to any language in the
Ashes’ reservations expressing a clear and unambiguous restriction on the use of
Indigo Road. Indeed, Baacke only asserts that it is inappropriate to apply public
policy considerations without the parties having conducted any discovery. We see
no problem in applying the foregoing principles in the current procedural posture
of this case.

¶25 Because we conclude that the plain language of Baacke’s deed does
not convey the Ashes’ collection of reservations to Baacke, the circuit court did
not err by granting summary judgment to Hendricks and Madoche and by
concluding that Baacke had no authority to limit the use of Indigo Road. She, like
all other owners, has only a right of ingress, egress, and utilities across Indigo
Road. Given that Baacke’s declaratory judgment action turns on whether Ash
conveyed the collection of easement reservations to Baacke that allowed Baacke
to control Indigo Road, we need not address Baacke’s additional arguments
because she has no legally protectable interest regarding Hendricks and
Madoche’s use of Indigo Road. See Olson v. Town of Cottage Grove, 2008 WI

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51, ¶29, 309 Wis. 2d 365, 749 N.W.2d 211 (explaining that declaratory judgment
actions require a justiciable controversy, of which a factor is that “[t]he party
seeking declaratory relief must have a legal interest in the controversy—that is to
say, a legally protect[a]ble interest.” (citation omitted)).6

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2023-24).

6
As explained, our conclusion regarding the language of Baacke’s deed is dispositive of
this appeal, and, given that disposition, we need not address the other arguments that she raises.
See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (stating that
we need not address alternative arguments raised by a party when one is dispositive). To the
extent our analysis differs from that of the circuit court, it is of no moment because summary
judgment is a question of law that we review de novo. See Konneker, 326 Wis. 2d 268, ¶22.

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