John P. Werler v. Douglas Berends

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.
November 12, 2024
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. 2023AP827 Cir. Ct. No. 2018CV3

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

JOHN P. WERLER AND NANCY H. WERLER,

PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS,

V.

DOUGLAS BERENDS,

DEFENDANT-APPELLANT-CROSS-RESPONDENT.

APPEAL and CROSS-APPEAL from an order of the circuit court
for Burnett County: DANIEL J. TOLAN, Judge. Affirmed in part; reversed in
part and cause remanded with directions.

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).
No. 2023AP827

¶1 PER CURIAM. Douglas Berends appeals and John P. and
Nancy H. Werler cross-appeal from the circuit court’s order, entered after a bench
trial, concluding, among other things, that the Werlers do not have an easement
over Berends’ property. Berends argues that the court erred by failing to
unequivocally state that the Werlers have no easement to any part of Berends’
property, by ruling that the Werlers have access over Berends’ lot to their existing
driveway, by not granting Berends the right to access a portion of the Werlers’
property, and by not ordering the Werlers to remove a pole barn and a stone
support structure that Berends claims were erected in violation of zoning setback
requirements. The Werlers, for their part, assert that the court erred by concluding
that the Werlers do not have a valid easement over Berends’ property to access a
public highway.

¶2 For the reasons that follow, we conclude that the Werlers have a
valid easement over Berends’ property; thus, we reverse the circuit court’s order
on that basis and remand the matter for the court to enter a revised order consistent
with this opinion. We affirm the court’s order as to the remaining issues.

BACKGROUND

¶3 This case involves a dispute over an interest in real property. At
issue are four parcels of real property, which are located on Tabor Lake in Burnett
County, Wisconsin. At the present time, Berends owns the northernmost parcel

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No. 2023AP827

(the Berends Lot), and the Werlers own three parcels located directly to the south
(Werler Lots 1, 2, and 3).1

¶4 Historically, the lots were accessible by a roadway, which ran along
the eastern boundary line of the Berends Lot and Werler Lots 1 and 2 and ran
through Werler Lot 3 (hereinafter, Old Tabor Lake Road). Although Old Tabor
Lake Road was located on private property, the Town of Swiss (the Town)
maintained the roadway. In the early 1990s, the Town built a new roadway,
moving the location of the road further to the east of the Berends Lot and Werler
Lots 1, 2, and 3, so that the road no longer cut through the eastern part of Werler
Lot 3 but instead ran through its southern part (hereinafter, Tabor Lake Drive).

¶5 The Werlers’ cabin is located on Werler Lot 2, which has a driveway
that connects to Old Tabor Lake Road at the end of their eastern lot line. Thus,
after Tabor Lake Drive was opened, the Werlers still needed to use Old Tabor
Lake Road to access their property,2 whereas Berends had access to his property
from the north. It is undisputed that Berends owns the property under Old Tabor
Lake Road lying north of Werler Lot 3 and east of Werler Lots 1 and 2.

¶6 Once Tabor Lake Drive opened, the Town eventually stopped
maintaining Old Tabor Lake Road. According to the testimony presented at trial,

1
Until 1967, Emil and Pearl Mares (Mares) owned all four of the lots. Between 1967
and 1974, they—and later Pearl alone—sold all four parcels to Berends’ and the Werlers’
predecessors in title. The Berends Lot was conveyed by warranty deed to Berends in 1990, and
Werler Lots 1, 2, and 3 were conveyed by warranty deed to the Werlers in 1992.
2
In contrast, Berends testified that the Werlers have “a 1960[s] driveway” that “goes all
the way [south] down to the lake, which you can’t see because of the trees,” that “[they] could
refurbish and use.” Berends was unable to identify the location of that driveway on the trial
exhibits, however.

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No. 2023AP827

the Town last patched the asphalt on Old Tabor Lake Road in 1992 or 1993, and it
last plowed the snow in October 1991. Moreover, Berends modified a section of
Old Tabor Lake Road on his property by clearing the asphalt and laying down
grass seed. The Werlers also installed a gate at the intersection of Old Tabor Lake
Road and Tabor Lake Drive on Werler Lot 3 and later added a lock to the gate and
boulders on either side.

¶7 Eventually, in June 2007, the Town board voted to vacate Old Tabor
Lake Road “subject to” an easement “created in favor of [the Werlers] for ingress,
egress and utilities over and across” a portion of the Berends Lot (hereinafter, the
2007 Resolution).3 The 2007 Resolution described a forty-foot-wide access
easement positioned generally over Old Tabor Lake Road on the Berends Lot,
running along the entire eastern edge of Werler Lot 2 and about half of the eastern
edge of Werler Lot 1. This easement provided direct access to Werler Lots 1 and
2 from Tabor Lake Drive. It is on this basis that the Werlers claim an access
easement over the Berends Lot.

¶8 Thereafter, in 2015, the Werlers decided to build a garage on their
property, which appears to have sparked the conflict underlying this case. The
Werlers applied for a permit with the Town in 2016, which the Town granted, and
they subsequently erected a pole barn near where Werler Lot 1 borders the

3
A town can discontinue a highway by following specific procedures. WIS. STAT.
§§ 82.10, 82.11, 82.12 (2021-22); see also WIS. STAT. § 82.19 (2021-22). There is no dispute
that the Town discontinued Old Tabor Lake Road by the 2007 Resolution, which became a
“highway order” within the meaning of § 82.12 (2021-22), by recording it with the Burnett
County Register of Deeds on June 27, 2007. See also WIS. STAT. § 82.01(3) (2021-22).

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP827

Berends Lot to the north. To build the pole barn, the Werlers removed trees and
grass along their property line bordering the Berends Lot. The pole barn is
situated thirty-nine feet from the eastern boundary and ten feet from the northern
boundary of Werler Lot 1. The Werlers also built up the ground under the pole
barn using soil and installed “riprap” around the base of the pole barn to keep that
soil in place.4 Further, the Werlers created a new driveway area, connecting the
pole barn to Old Tabor Lake Road where they claimed an easement.

¶9 According to Berends, the Werlers created three new driveways, and
Berends informed them that he objected to the driveways, but construction
continued. As a result, Berends began parking approximately eleven to twelve
“junk” vehicles to block the Werlers’ access to his property, which the Werlers
claimed blocked their driveway. The Werlers allege that attempts to discuss the
issue with Berends were ignored.

¶10 Therefore, the Werlers brought this lawsuit to determine their
easement rights, and Berends responded with counterclaims. Both parties sought
declaratory judgments clarifying the existence of an easement and their respective
claims of ownership, injunctions barring the other from entering their respective
properties, and damages for the other’s alleged trespasses. In addition, Berends
claimed that the Werlers’ pole barn violated setback requirements in the Burnett
County Code of Ordinances (the zoning code), that the Werlers had removed trees
from his property, and that the riprap was a nuisance.

4
“Riprap” is “a foundation or sustaining wall of stones or chunks of concrete thrown
together without order (as in deep water).” Riprap, MERRIAM-WEBSTER DICTIONARY,
https://merriam-webster.com/dictionary/riprap (last visited Oct. 31, 2024).

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No. 2023AP827

¶11 The parties filed cross-motions for summary judgment. After
briefing, the circuit court issued its oral ruling,5 which was memorialized in a
written order. Based on the court’s finding of material issues of fact, the court
denied both Berends’ and the Werlers’ cross-motions for summary judgment.

¶12 The case proceeded to a bench trial on May 11 and 12, 2021.6
Thereafter, the circuit court issued its oral ruling on December 20, 2021. The
court concluded that the Town never had an easement over the Berends Lot;7
therefore, the Werlers did not have a valid easement because the Town could not
have assigned an easement that it did not have. As a result, the court stated that
the Werlers were required to move the new driveway on Werler Lot 1 but that they
would still have “access to the existing driveway on Werler Lot 2 over Berends’
property.” The court further determined that the Werlers owned the property
located under Old Tabor Lake Road within Werler Lot 3 and that Berends did not
own or have an easement over that area.

5
It does not appear that a transcript of the circuit court’s oral ruling, which occurred on
August 5, 2020, was included in the record on appeal.
6
In its oral ruling following the bench trial, the circuit court stated that this was a
four-day trial, conducted from May 11-15, 2021. However, only two days’ worth of transcripts
were included in the appellate record, and CCAP states that the trial occurred on May 11 and 12,
2021.
7
In reaching this conclusion at trial, the circuit court ordered its “previous finding” at the
summary judgment stage—that the Town did have an easement over Old Tabor Lake Road—
“vacated.” We note that a circuit court does not make factual findings on summary judgment;
instead, it simply determines whether there is a genuine issue of material fact for trial.
See Continental Cas. Co. v. Milwaukee Metro. Sewerage Dist., 175 Wis. 2d 527, 533-34, 499
N.W.2d 282 (Ct. App. 1993). The court explained in its oral ruling after the trial, however, that
its previous “finding was based upon what was believed to be a concession in the parties’
pleadings that the Town of Swiss did in fact have an easement.”

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No. 2023AP827

¶13 The circuit court also rejected Berends’ claims that the Werlers’ pole
barn and riprap violated the zoning code’s setback requirements. It ultimately
awarded each party $100 in nominal damages for their respective trespass claims
and denied punitive damages. The court further awarded Berends $3,000 in
damages for the Werlers’ removal of trees and vegetation on the Berends Lot but
granted no damages for nuisance as a result of stones falling from the riprap.
Finally, the court permanently enjoined both parties from using Old Tabor Lake
Road on each other’s lots. Berends appeals, and the Werlers cross-appeal.

DISCUSSION

¶14 Following a bench trial, we review a circuit court’s decision under a
well-established standard. Our review is highly deferential to the court’s findings
of fact. Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶11, 290 Wis. 2d
264, 714 N.W.2d 530. “On review of a factual determination made by a [circuit]
court without a jury, an appellate court will not reverse unless the finding is
clearly erroneous.” Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d
575 (Ct. App. 1983) (citing WIS. STAT. § 805.17(2)). “A circuit court’s findings
of fact are clearly erroneous when the finding is against the great weight and clear
preponderance of the evidence.” Royster-Clark, Inc., 290 Wis. 2d 264, ¶12.
“Under the clearly erroneous standard, ‘even though the evidence would permit a
contrary finding, findings of fact will be affirmed on appeal as long as the
evidence would permit a reasonable person to make the same finding.’” Id.
(citation omitted). We also search the record for evidence supporting the court’s
decision. Id. In contrast, “[t]his court reviews conclusions of law independently
and without deference to the decision of the circuit court.” Id., ¶13 (citation
omitted).

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No. 2023AP827

¶15 On appeal, Berends presents several issues for our review: (1) the
circuit court erred “by limiting its finding [that the Werlers did not have an
easement] by stating that the Werlers have no easement to only a part of the
Berends Lot, leaving a possible interpretation that the Town … did convey to the
Werlers an easement to part of the Berends Lot”; (2) the court erred by “ruling that
the Werlers have access over part of [the Berends Lot]”; (3) the court erred by not
granting Berends the right to a portion of Werler Lot 3; and (4) the court erred by
not ordering the Werlers to remove the pole barn and riprap.

¶16 Conversely, the Werlers’ cross-appeal presents only one issue: the
circuit court erred by ruling that the Werlers do not have a valid easement over
Old Tabor Lake Road within the Berends Lot. Given that our resolution of the
cross-appeal will resolve or clarify the issues presented in Berends’ appeal, we
will address the cross-appeal first.

I. The Werlers’ Cross-Appeal

¶17 In their cross-appeal, the Werlers claim that the circuit court erred by
concluding that the Town did not have a valid easement over the Berends Lot. As
noted previously, see supra ¶12 & note 7, during its decisions on the
cross-motions for summary judgment, the court concluded that the Town had an
easement over the Berends Lot. After trial, the court vacated its previous decision,
stating:

The problem with this case and the [c]ourt’s decision is
that there is no record of any easement in favor of the Town
of Swiss nor any of the written requirements of [WIS.
STAT. §] 706.02 creating an easement in favor of the Town
of Swiss. Therefore, the [c]ourt’s finding that the Town of
Swiss had an easement was made in error and is hereby
vacated. If there were a valid easement to the Town of
Swiss, they could have transferred it to the Werlers.

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No. 2023AP827

The court alternatively concluded that the Town could not have granted the
Werlers an easement by the 2007 Resolution because the Town had already
abandoned Old Tabor Lake Road by that time.

¶18 The Werlers assert that “the circuit court misapplied several statutes
and principles of property law” to reach these conclusions. Whether the court
properly interpreted and applied the relevant statutes and the case law are
questions of law that we review de novo. See McNeil v. Hansen, 2007 WI 56, ¶7,
300 Wis. 2d 358, 731 N.W.2d 273 (statutes); Movrich v. Lobermeier, 2018 WI 9,
¶15, 379 Wis. 2d 269, 905 N.W.2d 807 (property law). For the reasons that
follow, we agree with the Werlers that the court erred.

¶19 We first address the circuit court’s conclusion that no record of an
easement to the Town existed. “An easement ‘is a permanent interest in another’s
land, with a right to enjoy it fully and without obstruction.’” Konneker v.
Romano, 2010 WI 65, ¶25, 326 Wis. 2d 268, 785 N.W.2d 432 (citation omitted).
“The ‘dominant estate’ enjoys the privileges granted by the easement, and the
‘servient estate’ permits the exercise of those privileges.” Id. (citation omitted).
There are several types of easements, including express easements, prescriptive
easements, easements by necessity, and easements by implication. AKG Real
Est., LLC v. Kosterman, 2006 WI 106, ¶15 n.4, 296 Wis. 2d 1, 717 N.W.2d 835.

¶20 In this case, there is no evidence in the record that the Town was the
fee owner of Old Tabor Lake Road, nor is there evidence demonstrating when or
how the road was created. The record is silent as to precisely how Old Tabor Lake
Road became a public highway or, in other words, how the Town acquired an
interest in the road—i.e., whether the Town acquired Old Tabor Lake Road by
written grant, mutual agreement, or condemnation. See WIS. STAT. § 82.14

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No. 2023AP827

(providing that “[u]nless the acquisition can be made by mutual agreement, the
town board shall utilize the procedures under [WIS. STAT. §] 32.05 to acquire
rights to land for the purpose of laying out or altering a town highway”).
Nevertheless, Old Tabor Lake Road is referred to as “town road” in a deed
conveying one of the lots in 1968, meaning that Old Tabor Lake Road has existed
since at least that time.

¶21 WISCONSIN STAT. § 82.31(2)(a) provides, in pertinent part: “[A]ny
unrecorded highway that has been worked as a public highway for 10 years or
more is a public highway and is presumed to be 66 feet wide.” The term
“worked,” as used in § 82.31(2)(a), “means action of the town in regularly
maintaining a highway for public use, including hauling gravel, grading, clearing
or plowing, and any other maintenance by or on behalf of the town on the road.”
WIS. STAT. § 82.01(11). The parties do not dispute that the Town maintained Old
Tabor Lake Road until sometime in the early 1990s. Thus, for the purpose of this
decision, how, when, or why Old Tabor Lake Road was created is irrelevant
because there is no dispute that Old Tabor Lake Road, prior to the
2007 Resolution, was a public highway.

¶22 Berends argues, however, that satisfaction of WIS. STAT.
§ 82.31(2)(a) “does not equate to ownership or easement rights.” We disagree. A
public highway situated across privately owned land creates a public easement of
travel, which permits the public to use the highway at will. See Walker v. Green
Lake County, 269 Wis. 103, 111, 69 N.W.2d 252 (1955) (“When it is of such
character and for such length of time as to establish a highway by prescription or
long user, user of land as a highway vests in the public an easement in, or right to
use, the land for highway purposes.” (citation omitted)); Geyso v. Daly, 2005 WI
App 18, ¶9, 278 Wis. 2d 475, 691 N.W.2d 915 (2004) (observing that “members

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No. 2023AP827

of the public[] have but an ‘easement of passage’ in the right-of-way and may use
it only for highway purposes” (citation omitted)); see also WIS. STAT.
§ 340.01(22) (defining “[h]ighway” as “all public ways and thoroughfares and
bridges on the same. It includes the entire width between the boundary lines of
every way open to the use of the public as a matter of right for the purposes of
vehicular travel” (emphasis added)).

¶23 As the Werlers assert, a public highway on private land represents
the “government’s interest in land that is possessed by the private fee owner.”
They explain that “[i]t grants the public the nonpossessory right to enter that
private land and to use it as a right-of-way for travel. And it obligates the private
fee owner to not interfere with the public’s right to do so.” Thus, where the
government does not own the land underlying a public highway in fee simple, the
existence of the public highway satisfies the definition of an easement.
See Berger v. Town of New Denmark, 2012 WI App 26, ¶¶13-15, 339 Wis. 2d
336, 810 N.W.2d 833 (“Absent express language to the contrary, our courts
presume that the grantor of land to be used for roadways intended to convey only
an easement.”); Village of Brown Deer v. Balisterri, 2013 WI App 137, ¶15, 351
Wis. 2d 665, 841 N.W.2d 59 (noting that case law supports the contention that
roads are easements).

¶24 The circuit court nevertheless concluded that “[e]asements need to
be in writing” and that because there was no document presented that satisfies the
statute of frauds, the Town did not have an easement. On appeal, Berends
presents no legal authority for the proposition that public highway easements must
be in writing, nor does Berends develop an argument showing why a writing is

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No. 2023AP827

required for a public highway easement.8 We need not consider arguments that
are unsupported by references to legal authority. See State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633 (Ct. App. 1992).

¶25 Regardless, we agree with the Werlers that by operation of the
provisions of WIS. STAT. ch. 82, easements for public highways operate differently
from traditional conveyances of interests in land. The easement in this case exists
by operation of law because Old Tabor Lake Road was a public highway.
See WIS. STAT. § 82.31(2)(a). Thus, no writing is necessary because WIS. STAT.
§ 706.001(2)(a) excludes from the statute of frauds an interest in land affected
“[b]y act or operation of law.” The fact that Old Tabor Lake Road was used as a
public highway for over fifty years is sufficient to satisfy § 82.31(2)(a) and
conclusively establishes that the Town had a valid easement.9

¶26 Next, the Werlers claim that the circuit court erred by finding that
Old Tabor Lake Road was abandoned before the easement was transferred to the
Werlers. A highway “shall be considered discontinued” if it is “entirely
abandoned as a route of vehicular travel” and had no highway funds spent on it for

8
But see Negus v. Madison Gas & Elec. Co., 112 Wis. 2d 52, 58, 331 N.W.2d 658
(Ct. App. 1983) (“The assignment of an easement as an interest in land is governed by [WIS.
STAT.] ch. 706.”); WIS. STAT. § 706.001(1) (“[T]his chapter shall govern every transaction by
which any interest in land is created, aliened, mortgaged, assigned or may be otherwise affected
in law or in equity.”); WIS. STAT. § 706.02 (listing the formal requirements for transactions under
§ 706.001(1)).
9
Berends also argued before the circuit court that the Town merely had a license. We
disagree with Berends’ assertion. An easement is an interest in land, and the rights granted by an
easement are not revocable at the will of the grantor. Negus, 112 Wis. 2d at 58. A license is not
an interest in the land itself, and a license is revocable by the grantor. See id. We agree with the
Werlers that a public highway cannot be a license granted to the government by the landowner
because that would allow a public highway to cease to exist based on the whims or the death of
the landowner.

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No. 2023AP827

five years. WIS. STAT. § 82.19(2)(b)2. Discontinuance under § 82.19 must be
proven by clear and convincing evidence. Town of Schoepke v. Rustick, 2006 WI
App 222, ¶¶11-14, 296 Wis. 2d 471, 723 N.W.2d 770.

¶27 In this case, the circuit court found, based on the evidence in the
record, that “Old Tabor Lake Road was abandoned by the Town … after [it]
constructed Tabor Lake Drive which was sometime in the 1990s.” According to
the court, the Town “stopped all maintenance at least five years prior to 2005 and
2007 and therefore did not expend any funds on the maintenance,” and Old Tabor
Lake Road “was not open to the public as a thoroughfare” because the Werlers
controlled access to the road’s southern entrance “through the use of a gate and a
boulder.”

¶28 On appeal, the Werlers assert that this evidence is “drastically
insufficient to constitute clear and convincing evidence that Old Tabor Lake Road
was ‘entirely abandoned’ under” WIS. STAT. § 82.19. In support, the Werlers rely
heavily on Markos v. Schaller, 2003 WI App 174, 266 Wis. 2d 470, 668 N.W.2d
755, which they claim is “virtually indistinguishable” from this case. In Markos,
the dispute involved whether a portion of a road had been entirely abandoned
under WIS. STAT. § 80.32(2) (1997-98), the previous version of § 82.19(2)(b)2.
Markos, 266 Wis. 2d 470, ¶1. There, no highway funds were expended on the
disputed portion of the road for more than five years, and the property owners had
erected gates and controlled who had permission to access the road. Id., ¶¶5-10.
Nevertheless, the plaintiffs, and the prior owners, accessed their property using a
portion of the road that crossed the defendants’ property. Id. Ultimately, we held
that a road was not entirely abandoned even though the road was used only by the

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No. 2023AP827

property owners to access their land.10 Id., ¶12 n.5, ¶¶18-20; see also Lange v.
Tumm, 2000 WI App 160, ¶¶9-10, 237 Wis. 2d 752, 615 N.W.2d 187 (“The key
inquiry is whether the highway has remained open to all who had occasion to use
it.”).

¶29 We agree with the Werlers that the circuit court’s finding that Old
Tabor Lake Road had been entirely abandoned prior to the 2007 Resolution was
clearly erroneous. Under WIS. STAT. § 82.19(2)(b)2., a highway “shall be
considered discontinued” provided that both requirements are met. One
requirement was indisputably met: the Town had not spent highway funds on Old
Tabor Lake Road for over five years. See § 82.19(2)(b)2. As to the second
requirement, the record does not support the court’s finding that Old Tabor Lake
Road had been “entirely abandoned as a route of vehicular travel.” See id. The
court specifically found, “based upon the testimony of the Werlers and

10
Berends attempts to distinguish Markos v. Schaller, 2003 WI App 174, 266 Wis. 2d
470, 668 N.W.2d 755, on several bases that we do not find persuasive. In general, Berends
claims that this case is different from Markos because the Town did not have an easement over
Old Tabor Lake Road. However, as we determined above, the Town did have a valid easement.
Further, Berends claims that “the roadway [in Markos] remained fully usable by the public,”
whereas “Old Tabor Lake Road was not fully usable by the public after 2000, when Berends
replaced much of the roadway on his property with grass.” The court in Markos specifically
rejected this argument when it stated that “[a]n owner may not convert a public highway to a
private road by taking control of a road and leading others to believe that they need permission to
use it, even when the state or local government has discontinued maintenance of the road.”
Id., ¶14. Like in Markos, at “no point in time” did Berends “obtain[] the right to treat the public
highway as his … private property.” See id. Berends’ limitation of the use of, or destruction of,
Old Tabor Lake Road does not mean that it was entirely abandoned under the law.

We also note that Berends cites an unpublished per curiam opinion in an attempt to
narrow or distinguish Markos’s holding. Berends’ citation to an unpublished per curiam opinion
is a violation of WIS. STAT. RULE 809.23(3). Under RULE 809.23(3)(a), “[a]n unpublished
opinion may not be cited in any court of this state as precedent or authority … except as provided
in par. (b),” which pertains to authored opinions. RULE 809.23(3)(a), (b). A per curiam opinion
is not an authored opinion. We admonish counsel that future violations of the Rules of Appellate
Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2023AP827

Mr. Berends,” that Old Tabor Lake Road is “still used by [the] Werlers to the
current date.” Indeed, the record included evidence that Berends, as well as other
lakeshore neighbors, continued using Old Tabor Lake Road. This evidence is
sufficient under Markos to establish that Old Tabor Lake Road was not “entirely
abandoned.”

¶30 Berends next challenges the 2007 Resolution, claiming that the
Town intended to create, rather than transfer, an easement. The 2007 Resolution
provided, in pertinent part, as follows:

It appearing that all of the affected property owners
received the appropriate notice and that in addition, said
notice was published in accordance with the law and it
further appearing that all parties will have access as shown
on the final Tabor Lake Road Relocation Project
Map … pursuant to easements designated on said map;

Now, therefore, be it resolved by the Town
[b]oard … that Old Tabor Lake Road is hereby vacated
subject to the following:

1. An easement is hereby created in favor of [the
Werlers], their heirs and assigns, for ingress, egress and
utilities over and across the following described parcel of
land ….

¶31 According to Berends, the 2007 Resolution “is a legislative act,” and
our “analysis of the Town’s decision must therefore [be] a matter of statutory
interpretation.” Assuming, without deciding, that the 2007 Resolution was a
legislative act, we agree that we are to review that resolution—which is a highway
order under WIS. STAT. § 82.12(2)—as we do other written instruments, including
statutes. Cf. Walt v. City of Brookfield, 2015 WI App 3, ¶19, 359 Wis. 2d 541,
859 N.W.2d 115 (2014) (stating that we review court orders and judgments as we
do other written instruments). The purpose of our interpretation is to discern the
meaning of the 2007 Resolution. See Landis v. Physicians Ins. Co. of Wis., 2001

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No. 2023AP827

WI 86, ¶14, 245 Wis. 2d 1, 628 N.W.2d 893; State ex rel. Kalal v. Circuit Ct. for
Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110 (explaining that
we assume intent is expressed in the text of the statute). To this end, we give the
text its common, ordinary, and accepted meaning and interpret that language “in
the context in which it is used; not in isolation but as part of a whole; in relation to
the” surrounding language. See Kalal, 271 Wis. 2d 633, ¶¶45-46. Further, we
interpret the text of a written instrument reasonably, to avoid absurd or
unreasonable results. See id.

¶32 Here, the meaning of the 2007 Resolution is clear. It plainly
demonstrates that the Town sought to ensure “that all parties will have access” to
Tabor Lake Drive after the Town vacated Old Tabor Lake Road. Further, the
2007 Resolution is clear that Old Tabor Lake Road was “vacated subject to” the
Werlers’ easement “for ingress, egress and utilities,” which maintained the same
access to Tabor Lake Drive that the Werlers and the previous owners of the
property previously enjoyed to Old Tabor Lake Road.

¶33 Berends argues, however, that the Town’s use of the term “create” in
the 2007 Resolution, rather than “transfer,” suggests that the Town intended to
give the Werlers a new easement instead of transferring the ownership of an
existing one. Berends relies on dictionary definitions of those terms and asserts
that because the Town used the word “create,” which is defined as “to bring into
existence,” the Town did not “intend[] to transfer an existing easement.” Thus,
Berends contends that because “the Town did not have the legal authority to create
a new easement on property it did not own,” the 2007 Resolution “had no legal
effect.”

16
No. 2023AP827

¶34 We agree with the Werlers that Berends’ argument improperly puts
form before substance and fails to appreciate other definitions. “Create” is also
defined as “to invest with a new form, office, or rank” and “to produce or bring
about by a course of action or behavior.” Create, MERRIAM-WEBSTER
DICTIONARY, https://www.merriam-webster.com/dictionary/create (last visited
Nov. 4, 2024). Either of these definitions would appropriately describe the
Town’s intended action in this case, without needing to bring something new into
existence. Language “should not be applied with a hyper-technicality that swamps
common sense.” See Dorbritz v. American Fam. Mut. Ins. Co., 2005 WI App
154, ¶13, 284 Wis. 2d 442, 702 N.W.2d 406 (citation omitted). Whether the Town
used the word “create” or “transfer,” the 2007 Resolution’s meaning and purpose
is plain: to leave the Werlers with right-of-way access they had previously
enjoyed after the Town vacated Old Tabor Lake Road. The Town was cognizant
that moving the road meant that the Werlers no longer had the same access to their
property, and the Town sought to protect the Werlers’ access by transferring or
retaining a portion of that public right-of-way specifically for the Werlers.11

¶35 In summary, we conclude that regardless of how the Town originally
gained an interest in Old Tabor Lake Road, the Town had an easement over
Berends’ and the Werlers’ properties because Old Tabor Lake Road was a public
highway under our state statutes. The Town then assigned the Werlers a portion
of that easement before it vacated Old Tabor Lake Road by complying with the

11
Berends does not appear to challenge either the circuit court’s or the Werlers’ assertion
that an easement, if held, may be transferred. See Negus, 112 Wis. 2d at 58. Although Berends
challenges the Werlers’ citation of the RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES, he
does not specifically argue that if the Town had a valid easement, then it could not transfer its
easement to the Werlers. Berends also does not assert that the 2007 Resolution failed to comply
with the statute of frauds.

17
No. 2023AP827

terms of WIS. STAT. chs. 82 and 706.12 The circuit court’s order is reversed on this
basis.

II. Berends’ Appeal

a. Limiting the easement finding

¶36 Berends’ first argument on appeal is that because the circuit court
concluded that the Town did not have an easement and could not have transferred
an easement to the Werlers, “the court erred by limiting its finding by stating that
the Werlers have no easement to only a part of the Berends Lot, leaving a possible
interpretation that the Town … did convey to the Werlers an easement to part of
the Berends Lot.” According to Berends, the court’s order “should have read,
‘The Werlers do not have an easement to the Berends property.’”

¶37 Our conclusion in the Werlers’ cross-appeal determines this issue.
The Town granted the Werlers a valid easement within the 2007 Resolution.
Therefore, we agree with Berends that the circuit court erred, but the court did so
by failing to conclude that the Werlers have an easement over Berends’ property
as described in the Town’s 2007 Resolution.13

12
The Werlers also contend that the circuit court violated their due process rights by
deciding pre-trial that the Town had a valid easement and then vacating that decision post-trial,
when the issue could no longer be litigated. Because we reverse the court’s decision on this
issue, we need not address whether the Werlers’ due process rights were violated.

Given our conclusion on this issue, we do not address the Werlers’ alternative
13

argument that we should affirm their continued access to the existing driveway as an easement by
estoppel.

18
No. 2023AP827

b. “Access” over the Berends Lot

¶38 Berends’ second argument is that the circuit court erred by ruling,
based on “the concession of the parties,” that the “Werler[s] still ha[ve] access to
the existing driveway on Werler Lot 2 over the Berends’ property.” According to
Berends, the court “evidently struggled with the contradiction that Berends
adamantly denied that the Werlers have any easement to his property, but
[Berends] continues to accommodate the Werlers by permitting them to use his
property to drive to their driveway.”

¶39 Again, this issue is resolved by our determination that the Werlers
have an easement over Berends’ property. Due to the Werlers’ easement, their use
of Berends’ property to access their driveway is not merely by permission. Thus,
the circuit court properly determined that the Werlers have access to their existing
driveway on Werler Lot 2, but the access results from the easement and not from
Berends’ permission.

c. Berends’ rights to Werler Lot 3

¶40 Berends’ third argument is that the circuit court should have
dismissed the Werlers’ cause of action for trespass because the deed by which the
Werlers’ predecessors in title acquired their property excepted and reserved to the
grantor ownership and access across Old Tabor Lake Road (hereinafter, Mares
Deed 1). Mares Deed 1 provided, in pertinent part, as follows: “Excepting and
reserving from said land a forty foot strip of land running east and west along the
south part of said tract and thru parts of said tract along the east edge of said tract
now used as a highway.” Based on this language, Berends claims that he either
owns fee title to this strip of land because the word “excepting” means that the
former owner did not convey it to the Werlers’ predecessor or the word

19
No. 2023AP827

“reserving” means that Berends has access rights to this property. On that basis,
Berends claims that the court “erred when it failed to enjoin the Werlers from
excluding or interfering with Berends’[] access, whether through locks, gates,
boulders, vegetation, or other means” and when it found “that Berends ha[d]
trespassed on the southern section of [Old Tabor Lake Road] and grant[ed] the
Werlers $100 [in] damages for the trespass.”

¶41 In contrast, the Werlers argue that once the Town discontinued Old
Tabor Lake Road, the land underneath the road on Werler Lot 3 belonged to them
in fee simple. According to the Werlers, it is irrelevant whether Mares conveyed
Werler Lot 3 “reserving” or “excepting” any portion of it because none of the
property was subsequently conveyed to the predecessor in title of the Berends
Lot: “There is no chain of title [of an interest in Werler Lot 3] from Mares to
Berends.” Thus, the Werlers argue, Berends has no claim of ownership or
easement.

¶42 We agree with the Werlers that regardless of the meanings of the
terms “excepting” and “reserving” contained in Mares Deed 1, the deed conveying
the Berends Lot does not demonstrate an intent to convey other land or an interest
in other land.14 See Gilbert v. Geiger, 2008 WI App 29, ¶10, 307 Wis. 2d 463,
747 N.W.2d 188 (“The primary source for determining intent is what is written
within the four corners of the deed.”); Traeger v. Traeger, 35 Wis. 2d 708,
712-13, 151 N.W.2d 681 (1967) (observing that “an exception or a reservation
depends not so much upon the words used as upon the nature of the right or thing

14
The construction of a grant in a deed is a question of law that we review de novo.
Lucareli v. Lucareli, 2000 WI App 133, ¶5, 237 Wis. 2d 487, 614 N.W.2d 60.

20
No. 2023AP827

excepted or reserved” and that “the meaning can best be arrived at by ascertaining,
if possible, the intention of the parties, as evidenced by the words of the deed, the
object they had in view, and the circumstances under which the deed was
executed” (citation omitted)).

¶43 The deed contained in the record clearly conveyed, from Mares to
Berends’ predecessor in title, a fee simple with a legal description of the Berends
Lot (hereinafter, Mares Deed 2). Mares Deed 2 unambiguously conveyed no other
land or interest in land such as that exempted or reserved in Mares Deed 1. Thus,
any claim that Mares intended to retain ownership of Old Tabor Lake Road within
Werler Lot 3, or speculation as to the reason that she sought to “exempt[]” or
“reserv[e]” that land, is immaterial, given that Mares failed to transfer that alleged
ownership interest in the land to Berends’ predecessor.15

15
That being said, Mares Deed 2 does include the following sentence: “Subject to
easements and restrictions of record.” Again, however, there is no language in Mares Deed 2
conveying an easement over the disputed strip within Werler Lot 3 to the purchaser of the
Berends Lot; thus, Mares Deed 2 fails to satisfy two basic requirements of the statute of
frauds: that the land and the interest conveyed be identified. See WIS. STAT. § 706.02(1)(b),
(1)(c); see also Gojmerac v. Mahn, 2002 WI App 22, ¶24, 250 Wis. 2d 1, 640 N.W.2d 178 (“The
deed granting the easement defines the relative rights of the landowners. The use of the easement
must be in accordance with and confined to the terms and purposes of the grant.” (citations
omitted)). As the Werlers argue, “[i]t is impossible to determine the scope of rights that Mares
intended to reserve when conveying Werler Lot 3, especially since an easement to travel on what
was then a public highway—and for nearly 30 years afterwards—would have been wholly
superfluous.”

Further, property law would be reduced to chaos if owners had to search within other
deeds to find evidence of a reservation of or an exception to a conveyance of land not involved in
the sale. But see AKG Real Est., LLC v. Kosterman, 2006 WI 106, ¶44, 296 Wis. 2d 1, 717
N.W.2d 835 (“The long-established rule is that an express easement ‘passes by a subsequent
conveyance of the dominant estate without express mention in the conveyance.’” (citation
omitted)). Thus, even if Mares retained certain interests in Werler Lot 3, there is no evidence that
she conveyed, or even that she intended to convey, those interests within Mares Deed 2.

21
No. 2023AP827

¶44 Berends admits that “it is true that Mares did not execute a deed
explicitly granting the land under the roadway to her successors in interest to the
Berends Lot,” but he asserts that “there is no other claimant who (l) is a successor
in interest to Mares, the last known owner of that section of the roadway; and
(2) is not specifically excluded by their deed from ownership.” Thus, Berends
claims, “[t]he ‘excepting and reserving’ language benefits the Berends Lot and is
an appurtenant right to the owner of the Berends Lot.”

¶45 We agree with the circuit court’s conclusion that, given that Old
Tabor Lake Road has now been vacated or discontinued, the land belongs to the
Werlers by operation of WIS. STAT. § 66.1005(1). Section 66.1005(1) provides, in
pertinent part: “When any highway or public ground acquired or held for highway
purposes is discontinued, the land where the highway or public ground is located
shall belong to the owner or owners of the adjoining lands.” The court found that
the Werlers own the property on both sides of Old Tabor Lake Road in Werler
Lot 3. Therefore, the land under the portion of Old Tabor Lake Road traversing
Werler Lot 3 belongs to the Werlers. See § 66.1005(1).

¶46 Berends argues that this result “would be the case if the Town
owned the land occupied by the roadway, but not when the Town did not own that
land.”16 Berends fails, however, to support this claim with references to legal

16
According to the Werlers,

[i]f Mares excepted the road from Werler Lot 3 but did not
convey it as part of the Berends Lot, the land would presumably
have escheated to the state upon her death, as there is no record
of any heir. WIS. STAT. § 852.01(3). Thus, the land would have
become “public ground … held for highway purposes” within
the meaning of WIS. STAT. § 66.1005.

22
No. 2023AP827

authority establishing that WIS. STAT. § 66.1005 applies only where the
municipality owns the land under the public highway in fee simple or to argue
why the result, regardless of ownership, should not be the same under the
circumstances here. See Pettit, 171 Wis. 2d at 646.

¶47 In the alternative, Berends claims that he obtained an easement by
prescription to the part of Old Tabor Lake Road passing through Werler Lot 3.
“An easement by prescription requires the following elements, (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 (1979). According to Berends, after the Werlers placed their gate and
boulders to obstruct access to Old Tabor Lake Road, Berends continued to use the
road by driving on it when the gate was open, by snowmobiling on it, and by
walking on it. Berends further contends that this adverse use continued until the
commencement of this litigation and therefore lasted more than twenty years.

¶48 As we determined above, see supra ¶¶26-29, Old Tabor Lake Road
was a public highway until the Town vacated it in 2007. Thus, until that time,
Berends would have been unable to use Old Tabor Lake Road adversely simply by
traveling on that road because it was, as a matter of law, available for public
travel. We agree with the Werlers, then, that “the earliest anyone could establish a
prescriptive easement would be twenty years after the Town discontinued [Old
Tabor Lake Road]—that is, the year 2027.” Berends’ alternative claim of a
prescriptive easement therefore fails. Because Berends did not have an easement
over Werler Lot 3, the circuit court correctly enjoined him from using it.

23
No. 2023AP827

d. Zoning code setback requirements

¶49 Berends’ final argument is that the circuit court erred by failing to
order the removal of the pole barn and the riprap on the Werlers’ property.
According to Berends, the language of the zoning code clearly defines front, rear,
and side yards, but the court erroneously applied these definitions to conclude that
the “front” of the Werlers’ property was along its eastern, rather than southern,
border. As to the riprap, Berends claims that the court erred by determining that
the riprap did not constitute a retaining wall and that the riprap was not taller than
three feet based on a picture introduced at trial.

¶50 We will address the pole barn first. As it pertains to the pole barn,
we agree that the circuit court’s analysis is reasonable and that there is evidence in
the record to support it. As relevant to this appeal, the zoning code provides the
definition of a front setback as follows:

Setback, front means an open, unoccupied space on the
same lot with the building between the front line of the
building and the front line of the lot and extending the full
width of the lot. Front is considered the side for which the
site address of the lot is determined from and which is used
to access the parcel. This access must be maintained and
meet the driveway requirements of this chapter.

BURNETT COUNTY, WIS., CODE OF ORDINANCES § 30-4 (Oct. 14, 2024) (second
emphasis added).17 The zoning code dictates that the setback requirements for the
Werlers’ property are thirty feet from the front lot line and ten feet from the side
lot line. See CODE OF ORDINANCES § 30-413.

17
All references to the BURNETT COUNTY, WIS., CODE OF ORDINANCES in this decision
are to the October 14, 2024 amendment. The parties do not argue that the relevant zoning code
provisions have been amended since the trial in this case.

24
No. 2023AP827

¶51 Based on the definition of front setback, the circuit court determined
that the zoning code was ambiguous as it pertained to the Werlers’ property. As
the court explained, the zoning code definition of front setback appears to consider
both the site address of the lot “and” the access point of the property. See CODE
OF ORDINANCES § 30-4. Because the Werlers’ address is on Tabor Lake Drive—
to the south of the Werlers’ property—but they access their driveway from Old
Tabor Lake Road—to the east of the property—there is no “side” of the Werlers’
property that satisfies both requirements for the front setback.18

¶52 Based on this purported ambiguity, the circuit court considered a
letter from and the trial testimony of Jason Towne, the Burnett County Zoning
Administrator, to conclude that the pole barn did not violate the setback provisions
in the zoning code. The court stated that it “makes sense that the east line of the
property is the front of the property because that is where the access to the
property is and that is where the driveway to the front of the cabin is located off of
[Old Tabor Lake Road] when [the Werlers] purchased it.” Thus, the court
determined that the pole barn’s location—thirty-nine feet from the front and ten
feet from the side of the property—complied with the setback requirements. This
conclusion was not clearly erroneous.

¶53 Berends faults the circuit court for relying on Towne’s testimony
because Towne “fail[ed] to apply the [z]oning [c]ode as written.” But, as
explained above, the plain terms of the zoning code, using the conjunctive “and,”

18
Because Werler Lots 1, 2, and 3 are “[a]djoining lands of common ownership,” the
zoning code states that they “shall be considered a contiguous parcel even if divided by a public
or private road, easement or navigable rivers or streams.” See CODE OF ORDINANCES § 30-4
(defining “Lot”).

25
No. 2023AP827

cannot be applied to Werler Lots 1, 2, and 3 because the site address is determined
from a different direction than the direction used to access the parcel. We have
previously explained that “[z]oning ordinances are in derogation of the common
law and, hence, are to be construed in favor of the free use of private property.”
HEEF Realty & Invs., LLP v. City of Cedarburg Bd. of Appeals, 2015 WI App
23, ¶7, 361 Wis. 2d 185, 861 N.W.2d 797 (alteration in original; citation omitted).
“To operate in derogation of the common law, the provisions of a zoning
ordinance must be clear and unambiguous.” Id. Thus, when interpreting a zoning
ordinance, we construe any ambiguity against the municipality and in favor of the
free use of private property. See id. Under these circumstances, the court’s
interpretation, adopting the direction that the property is accessed as the “front,” in
reliance upon the zoning administrator’s application of the zoning code, is not
unreasonable. See State v. Duychak, 133 Wis. 2d 307, 317, 395 N.W.2d 795
(Ct. App. 1986) (observing that the terms “and” and “or” may be interpreted
interchangeably if it is consistent with legislative intent); State ex rel. Wis. Dry
Milk Co. v. Circuit Ct. of Dodge Cnty., 176 Wis. 198, 204, 186 N.W. 732 (1922)
(same).

¶54 Next, as it pertains to the riprap, the zoning code also provides
setback requirements for retaining walls. As relevant under the facts of this case, a
retaining wall greater than three feet tall is subject to an applicable setback of ten
feet. CODE OF ORDINANCES § 30-491(a)-(c). It is undisputed that the term
“retaining wall” is not defined in Chapter 30 of the zoning code; thus, the circuit
court turned to dictionary definitions. See Door Cnty. Highway Dep’t v. DILHR,
137 Wis. 2d 280, 293-94, 404 N.W.2d 548 (Ct. App. 1987) (noting that a term’s
ordinary and accepted meaning can be established by reference to a recognized
dictionary). The court observed that the dictionary defines “retaining wall” as “a

26
No. 2023AP827

wall that is built to keep the land behind it from sliding.” Retaining wall,
MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/retaining%20wall (last visited Nov. 5, 2024). The court
also noted the definition of “[r]iprap” as “a foundation or sustaining wall of
stones.” See supra note 4.

¶55 Based on these definitions and the testimony provided at trial, the
circuit court concluded that the riprap was not a retaining wall. According to the
court, the riprap “was not a wall, but rather a support for the structure.” The
court’s finding is consistent with the definition of riprap—i.e., that it could either
be a wall or a foundation. As the Werlers argue, the “court found that the primary
function of the riprap here was vertical, not horizontal: it supported the pole
barn’s floor and kept it up and level rather than simply pushing the dirt and
keeping it from sliding sideways onto the Berends Lot.” Therefore, we conclude
that the court’s finding that the riprap is not a retaining wall was not clearly
erroneous.

¶56 Even if we were to conclude that the riprap is a retaining wall, we
would also agree with the circuit court’s finding that Berends failed to meet his
burden to establish that the riprap violated the zoning code. The court specifically
found that “[e]ven if the riprap was a retaining wall … no one testified or gave
measurements of the height of the riprap at ten feet.” On appeal, Berends argues
that a photo of John standing next to the pole barn is sufficient evidence that the
retaining wall is more than three feet tall. According to Berends, John testified at
trial that he is five feet six inches tall; the photo introduced at trial demonstrates
that the riprap is “much taller than” John; and based on that photo, Towne agreed
with the statement that it “appear[s] that the riprap being used is more than three

27
No. 2023AP827

feet tall.” Thus, Berends asserts that the court erred by finding that the height of
the riprap had not been established at trial.

¶57 First, we note that it appears the circuit court misstated the zoning
code during its oral ruling. Prior to issuing its ruling on the riprap, the court
discussed the zoning code, stating: “Any retaining wall with a height greater than
three feet and less than six feet is allowed to be placed within a road right-of-way
setback of ten feet. These retaining walls will also have a side, front, and rear
setback of ten feet.” (Emphasis added.) In contrast, the zoning code
provides: “Any retaining wall with a height greater than three feet and less than
six feet is allowed to be placed with a road right-of-way setback of ten feet.”
CODE OF ORDINANCES § 30-491(b) (emphasis added). “Within” is not the same as
“with.” “Within” suggests that the retaining wall could be constructed inside the
ten-foot setback, while “with” means that the retaining wall would need to be
constructed outside those ten feet. Thus, to the extent that the court believed that
the zoning code approved of a retaining wall higher than three feet within the ten-
foot setback, that belief was clearly erroneous.

¶58 Regardless, we conclude that the circuit court’s finding that the
height of the riprap was not conclusively established at trial was not clearly
erroneous. The actual height of the riprap is a question of fact, and the court
certainly could have determined that the photograph was not credible evidence of
its height. See Rice v. United States, 179 F.2d 26, 28 (D.C. Cir. 1949)
(“[P]erspective in two dimensional pictures does not give one an accurate idea of
relative sizes and distances without some ascertainable scale to which various
objects can be compared.”); Somersall v. New York Tel. Co., 418 N.E.2d 373, 376
(N.Y. 1981) (“Interpretation of the photographs in evidence involved evaluations
of angle and perspective that are the essence of the jury’s function.”).

28
No. 2023AP827

¶59 Aside from the photograph, Berends does not point to any additional
evidence presented at trial regarding the height of the riprap inside the ten-foot
setback area. For example, it does not appear that the Werlers were asked how
high they built the riprap—although John was asked about the height of the pole
barn—or that Berends was asked to provide an opinion regarding the riprap’s
height. Even Towne, who opined that the riprap is more than three feet tall, did so
based on his review of the photograph, not based on his own observation of the
property. A photograph may not always accurately demonstrate the relative size
or relation of objects at varying distances and vantage points, and there does not
appear to be additional evidence in the record to support a finding regarding the
height of the riprap within the side setback area. Accordingly, we conclude that
the circuit court’s finding that Berends had not met his burden to prove the
riprap’s actual height within the setback area was not clearly erroneous.

¶60 Thus, on remand, we direct the circuit court to declare that the
Werlers have an access easement over the Berends Lot as described in the
2007 Resolution, that the Werlers will only need to move their new driveway
access to Werler Lot 1 if the driveway accesses Old Tabor Lake Road outside of
the easement, and that the injunction enjoining the Werlers from using Old Tabor
Lake Road on Berends’ property does not apply within the easement.

¶61 No costs to either party.

By the Court.—Order affirmed in part; reversed in part and cause
remanded with directions.

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

29