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S.S. Kresge Co. v. Winkelman Realty Co.

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S.S. Kresge Co. v. Winkelman Realty Co., 50 N.W.2d 920 (Wis. 1952), was a real property case involving a prescriptive easement and the additional burden caused by increased use.

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Contents

Summary of Case Facts

Winkelman purchased property adjoining S.S. Kresge. The property was previously owned by a barber and used as a barber shop and living quarters. The property had a previously recorded prescriptive easement allowing the former barber ingress and egress to his property across an alleyway on S.S. Kresge’s property. When Winkelman purchased the property, Winkelman began operating three businesses out of the property (Department Store, Men’s Store, Realty) and used the alleyway easement for storage and transportation of goods for all three operations. Kresge sued to enjoin Winkelman from using any portion of his property except for the use of the easement as prescribed – ingress and egress, as the burden on his servient estate had been increased from the increased use.

Issue

May a prescriptive easement for one purpose be added to by a subsequent use and still be upheld?

Holding and Law

No. Though Winkelman has an easement to use Kresge’s property, the property still belongs to Kresge and Winkelman cannot increase that burden beyond the terms of the original easement’s purpose. “A prescriptive right acquired by a particular use of the property cannot ordinarily justify an added use in connection with the dominant estate in a manner far different from that employed under the original use.” In this case, Winkelman has greatly changed the use of the dominant estate from what was originally contemplated in the prescriptive easement.

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