text:
    Shearer and another, Trustees for Harvard Lake Geneva Club, Respondents, v. Congdon and another, Appellants.

      October 30

    November 24, 1964.

      For the appellants there were briefs by Brown, Black & Armstrong of Racine, and oral argument by Harley Brown.

    For the respondents there was a brief by Kenney, Korf & Pfeil of East Troy, and oral argument by Francis J. Korf.

   Wilkie, J.

Whether or not a temporary injunction is granted is a matter within the discretion of the trial court. The sole issue on this appeal is whether the trial court erred in granting the injunction. The test is not whether this court would have granted the injunction in the first place, but whether there was an abuse of discretion on the part of the trial court. Appellants complain of numerous errors, the first being that an unincorporated association has no legal capacity to sue. The suit was not brought in the name of the association, but rather in the name of two trustees for the Association. Sec. 260.12, Stats., permits class actions and because of their joint interest in its property, a few members can bring a suit in behalf of the association.

Appellants next contend that the complaint fails to state a cause of action in the following respects:

First, an absence of an allegation of continuous and uninterrupted use. Respondents allege that the club members have used the road “for more than sixty (60) years last past” and “that at all times since [1937] . . . the members of Harvard Club have continued to use the entire roadway. . . .” As pleadings are to be liberally construed, these allegations are sufficient.

Second, that the complaint fails to mention the location of the drive in question or which part of the Harvard Club property is benefited by the road. The location of the road is sufficiently alleged and pinpointing a particular area benefited is unnecessary.

Third, that there is no allegation of present legal title. While there is no definite assertion of ownership, the complaint recites that in 1875 two men took title to the land in trust for the Harvard Club, that the club has “continue [d] to occupy” that lot since then, and that the plaintiffs are present trustees. This is an adequate averment of present ownership.

Fourth, that there is no allegation of the present status of the club or the identity of its members. Such allegations would not even be necessary to create a cause of action.

A liberal construction discloses that the complaint states a cause of action.

Even if the complaint states a cause of action, a temporary injunction depends upon a showing of a reasonable probability of plaintiffs’ ultimate success. If the proof sustains the allegations that club members have used the drive for sixty years, that they have paved and maintained portions of the road, and that they have knocked down barricades designed to bar their use, there is a reasonable probability that plaintiffs will succeed in establishing a prescriptive easement.

Appellants maintain, however, that the temporary injunction gives respondents the ultimate relief sought in contravention of Consolidated Vinegar Works v. Brew which held that:

“Such an order is not intended to change the position of the parties or to require the doing of an act which constitutes all or a part of the ultimate relief sought in the action. Its purpose is not to decide the action before trial.”

Respondents ultimately desire a prescriptive easement in the drive. The temporary injunction does not grant this relief, but merely prohibits appellants from obstructing the road until the easement question can be resolved. The injunction neither gives respondents new rights nor alters the positions of the parties. This rule was spelled out in the early De Pauw Case as follows:

“. . . where the complaint states a cause of action and the motion papers disclose a reasonable probability of plaintiff’s ultimate success, it is well-nigh an imperative duty of the court to preserve the status quo by temporary injunction, if its disturbance pendente lite will render futile in considerable degree the judgment sought, or cause serious and irreparable injury to one party; especially if injury to the other is slight, or of character easily compensable in money; and that the discretion vested in the court is largely over the question of terms of the restraint and the protection of rights by bonds from one party to the other.”

Thus, the function of a temporary injunction is to maintain the status quo, and that is what the trial court’s order does here.

Relying on Gimbel Brothers v. Milwaukee Boston Store appellants also argue that respondents have not shown substantial damage and are therefore not entitled to injunctive relief. Gimbel Brothers dealt with the problem of granting a permanent, not a temporary injunction. It is only reasonable that there be substantial injury before irrevocably fixing relationships between parties. But in a situation, like the one in the case at bar, where one party is prohibited from acting only until the question of legal rights can be resolved, a showing of irreparable damage would not be as critical. At any rate, respondents assert in their complaint that “the use of the roadway is an essential to the members of Harvard Club for ingress and egress.” Access is necessary not only for members, but also for tradesmen with deliveries and for fire and police protection. In addition, since fire recently destroyed six cottages, there must be an open route to haul in construction materials and to allow carpenters to gain entrance. Thus, even if a showing of injury is a necessary condition to- temporary injunctive relief, respondents have met this requirement.

Finally, appellants cite Lipinski v. Lipinski as authority for the proposition that because there was no showing of a . lack of an adequate remedy at law, the respondents are precluded from obtaining injunctive ■ relief. The plaintiffs in Lipinski were ousted from lands *of which they were the record owners by the intrusion of the defendants. The court refused to grant the injunctive relief sought by plaintiffs because the legal remedy of. ejectment was available. An ejection suit is not appropriate here. Except for a small section lying on both properties, .the Harvard Club does not own the road in dispute, and furthermore, respondents do not object to appellants’ use of tjle road. Rather respondents are merely desirous of keeping the road open for their own use. As there is no legal remedy, which will accomplish this, the injunctive route is available.

It is true, as appellants assert, that injunctions restraining trespass will not ordinarily be granted unless plaintiff’s title is either admitted or established because this amounts to trying the title to land. However, this rule is not controlling as this action is not to enjoin appellants from trespassing on respondents’ land. This is not a title suit. Respondents neither claim ownership of the road nor that appellants trespassed, but merely seek a prescriptive easement.

We conclude that the trial judge did not abuse his discretion in granting the temporary injunction.

By the Court. — Order affirmed.

        Codept, Inc., v. More-Way North Corp. (1964), 23 Wis. (2d) 165, 127 N. W. (2d) 29; Culligan, Inc., v. Rheaume (1955), 269 Wis. 242, 68 N. W. (2d) 810.

        Culligan, Inc., v. Rheaume, supra, footnote 1.

        Herman v. United Automobile, Aircraft & Agricultural Implement Workers (1953), 264 Wis. 562, 59 N. W. (2d) 475.

       Sec. 263.27, Stats.

        Vredenburg v. Safety Devices Corp. (1955), 270 Wis. 36, 39, 70 N. W. (2d) 226, 229; Welch v. Chippewa Sales Co. (1948), 252 Wis. 166, 168, 31 N. W. (2d) 170, 171; Halsey, Stuart & Co. v. Public Service Comm. (1933), 212 Wis. 184, 196, 248 N. W. 458, 462; De Pauw v. Oxley (1904), 122 Wis. 656, 659, 100 N. W. 1028, 1029.

       “ When it is shown that there has been the use of an easement for twenty years, unexplained, it will be presumed to have been under a claim of right and adverse, and will be sufficient to establish a right by prescription, and to authorize the presumption of a grant, unless contradicted or explained. . . Shellow v. Hagen (1960), 9 Wis. (2d) 506, 510, 101 N. W. (2d) 694, 696.

       (1902), 112 Wis. 610, 613, 88 N. W. 603, 604.

        De Pauw v. Oxley, supra, footnote 5, at page 659, 100 N. W. 1028, 1029.

       See also Codept, Inc., v. More-Way North Corp., supra, footnote 1; Mogen David Wine Corp. v. Borenstein (1954), 267 Wis. 503, 66 N. W. (2d) 157.

       (1915), 161 Wis. 489, 154 N. W. 998.

       (1952), 261 Wis. 327, 52 N. W. (2d) 922.

        Lipinski, supra, footnote 11.


source: Caselaw Access Project

author: Beilfuss, J.

license: Public Domain

text:
    L. L. Freeman, Inc., Respondent, v. Howell Plaza, Inc., Appellant.

      October 30

    November 24, 1964.

      For the appellant there was a brief by Hersh, Corry & Bachman of Milwaukee, and oral argument by Frederick Hersh.

    • For the respondent there was a brief by Brown & Black of Racine, and oral argument by Harley Brown.

   Beilfuss, J.

The defendant’s principal contention is that the evidence does not sustain the findings of the trial court.

“The case was a trial to the court, and it is an elementary principle of law of this court that the findings of the trial court will not be set aside on appeal unless they are contrary to the great weight and clear preponderance of the evidence. Barker Barrel Co. v. Fisher (1960), 10 Wis. (2d) 197, 102 N. W. (2d) 107.” Thompson v. Beth (1961), 14 Wis. (2d) 271, 279, 111 N. W. (2d) 171.

The plaintiff, L. L. Freeman, Inc., was engaged in the business of mortgage banking, and other related activities. It was a loan correspondent for Franklin Life Insurance Company. It sought out prospective borrowers and negotiated loans and charged the borrower a fee for its services. Mr. Leon L. Freeman was the president of the company and its dominant officer.

The defendant, Howell Plaza, Inc., was organized for the purpose of developing a shopping center in Oak Creek. Mr. Frederick Hersh was the secretary and attorney for this corporation.

Practically all of the crucial negotiations were between Mr. Freeman on behalf of the plaintiff and Mr. Hersh on behalf of the defendant.

In June of 1961, defendant owned a 60-acre tract located in Oak Creek, Wisconsin, which it purposed to develop into the shopping center. Defendant intended to develop 2.7 acres of this land with two buildings, which would be rented to the United States postal department and the Oak Creek Marine National Bank at minimum rentals. The location of the post office and bank in its shopping center, defendant believed, would be an attraction for other businesses to locate there. Accordingly, defendant meant to sell the buildings once they were built and rented, taking a loss if necessary. The buildings would have performed their functions as “loss leaders.”

On July 24, 1961, defendant applied through plaintiff to the Franklin Life Insurance Company for a $225,000 construction loan to be secured by a mortgage on the property. On August 2, 1961, Franklin Life issued a commitment to plaintiff for a $225,000 loan. The commitment was subject to a number of conditions. One was receipt of a two percent standby fee, to be retained by Franklin Life if the loan was not closed. Another was noncancelable leases from the post office department and the bank for stated terms and annual rentals. The other conditions are not material here. On August 4th plaintiff broker issued its commitment to defendant for a mortgage loan in the same amount, subject to the conditions of the Franklin Life commitment to plaintiff, a copy of which was furnished to defendant. Plaintiffs commitment was also conditioned on payment of a one percent premium charge. The Franklin Life commitment expired December 31, 1961. Plaintiff’s commitment expired December 30, 1961. Plaintiff reserved the right to charge defendant an additional fee should extension of the commitment be required. On August 18th defendant accepted plaintiff’s commitment in writing. On August 19th plaintiff forwarded to Franklin Life defendant’s check for $4,500, the amount of the standby fee.

Thereafter, defendant had some difficulty in completing the negotiation of its leases with the post office department and the bank. It asked for an extension of plaintiff’s commitment. Plaintiff extended the commitment to February 1, 1962, by letter dated November 27, 1961. On November 28th plaintiff wrote defendant a follow-up letter reminding defendant that all the conditions ef the Franklin Life commitment must be complied with before the loan could be closed and that, as yet, compliance had not been had with a number of these conditions.

On December 15, 1961, the bank notified Franklin Life that the rental it would be obligated to pay would be reduced. On December 22d Franklin notified the bank that it had reissued its commitment to plaintiff for a reduced loan of $217,500 on the basis of the reduction in rent. This commitment was to expire on January 31, 1962. On December 27, 1961, plaintiff sent a commitment to defendant for the reduced amount. This commitment was to expire on January 20, 1962. It was never accepted in writing by defendant. Defendant protested the reduced amount by letter dated December 28, 1961, stating, “We will get a finalized cost agreed to by the Marine Corporation which will be the basis for determining the maximum Mortgage.”

Defendant continued to have difficulties with its prospective tenants. By letter dated January 26, 1962, plaintiff extended its commitment of August 4th to February 28th.

During the month of February, 1962, defendant asked for another extension. At this same time defendant was negotiating with a prospective purchaser of the property before the leases had been executed. By letter dated February 23, 1962, its secretary informed plaintiff’s president that the purchaser would know shortly whether it would have its own financing or take over the commitment to defendant. Plaintiff granted defendant another extension to March 31st. On March 21, 1962, defendant’s secretary informed plaintiff’s president that the purchasers had obtained a commitment for $240,000 from other sources.

All commitments ultimately expired on April 1, 1962. Defendant sold the buildings to purchasers who arranged their own financing.

Additional factual detail appearing in the record is not necessary for this opinion.

The trial judge in his memorandum opinion stated:

“The Court is of the opinion that the defendant cannot now take the position that it owes the plaintiff nothing on the premise that the original commitment was cancelled and a revised commitment substituted therefor, which it never signed. Mr. Hersh, who is an attorney and secretary of the defendant, conducted the negotiations with the plaintiff. He was aware of the fact that the plaintiff was making a charge for his services in securing a loan commitment. The fee to be charged was one per cent of the amount of the commitment, and a reasonable fee for extensions. While the second or revised application for loan was never signed by any one for the defendant, it interposed no objection to any of its provisions and continued to deal with the plaintiff and avail itself of its services as it had under the original application.
“The revised loan commitment was only a modification in amount of the old. If the position of the defendant were correct, and the parties considered the old commitment as a closed transaction, Franklin would have been entitled to forfeit the 2 per cent standby fee and the plaintiff would have been entitled to its fee under the original loan application. However, Franklin carried over the 2 per cent standby fee into the revised commitment and the plaintiff made no charge for its fees at that time, but carried over into the revised application for loan and commitment the same provision for fees as contained in the original application.
“The Court is satisfied, that' the plaintiff has met the burden of proof to establish its right to receive a fee of one per cent of the amount of the substituted or revised loan commitment of Franklin; and also the further fee of one and one half per cent of the amount of said commitment for three extensions at one half per cent each, all of which the Court finds to be reasonable. The ultimate commitment by-Franklin being in the principal sum of $217,500, the plaintiff is entitled to judgment in the amount of two and a half per cent of $217,500, or $5,437.50.”

Not only has the defendant-appellant failed to meet its appeal burden, namely, to show that findings of the trial court are contrary to the great weight and clear preponderance of the evidence, but we agree with the trial court that evidence clearly preponderates in favor of the plaintiff. The plaintiff had performed the services it agreed to furnish. The delays and inability to complete the transaction were the responsibility of the defendant. The extensions were at the request of and for the benefit of the defendant. The plaintiff is entitled to compensation for its services. Dunn & Stringer Investment Co. v. Schaefer (1932), 209 Wis. 299, 245 N. W. 85.

By the Court. — Judgment affirmed.


author: Per Curiam.

text:
    State ex rel. Eastman, Petitioner, v. Burke, Warden, Respondent.

      November 27, 1964.

      Forest Rodd of Rhinelander, for the petitioner.

      George Thompson, attorney general, and William A. Platz, assistant attorney general, for the respondent.
   The following opinion was filed November 27, 1964:

Per Curiam.

On August 10, 1944, Ira W. Eastman was convicted of the murder of one Selma Strauch. Selma Strauch was slain on August 1, 1944, in the town of Laona, Forest county, Wisconsin. The petitioner was apprehended on August 9, 1944, at Crandon, Wisconsin. On August 10, 1944, he was taken before Circuit Judge Arold F. Murphy in proceedings of the circuit court for Forest county, held at the courthouse in the city and county of Marinette, Wisconsin. Allan M. Stranz, district attorney of Forest county, Wisconsin, appeared for the State of Wisconsin and the defendant, Ira W. Eastman, appeared in person. The following is a complete transcript of the arraignment proceedings :

“The Court: State of Wisconsin versus Ira Eastman. (District Attorney Stranz reads Information charging defendant with violation of sec. 340.02 of the Wisconsin Statutes.)
“The Court: Ira Eastman, you have heard the reading of the Information. What is your plea ? Defendant: Guilty.
"The Court: You realize that charges you with First Degree Murder? Defendant: Yes, sir.
“The Court: You know that is a mandatory life sentence? What I mean by that, under that kind of a plea I am compelled to sentence you to life, do you understand that? Defendant: Yes.
“The Court: Have you anything to say now why the judgment and sentence of the Court should not be passed on you? Defendant: No.
“The Court: Upon your plea of Guilty, the Court finds you Guilty; and the judgment and sentence of the Court is that you be committed to the State Prison at Waupun, Wisconsin, for the rest of your natural life, your sentence commencing this day noon at twelve o’clock, and there to remain until discharged by due course of law.”

The defendant Ira Eastman was taken to the Wisconsin state prison at Waupun and has remained imprisoned there since his conviction and sentence.

On July 17, 1964, Ira W. Eastman filed a petition for a writ of habeas corpus to test the legality of his imprisonment in the state prison. He asserted that he had been denied counsel in connection with his conviction and sentencing proceedings and had not intelligently waived counsel. The return of the respondent recites the above-quoted transcript of the arraignment proceedings, admits “that petitioner was of low intelligence and only about two years of rudimentary education at the time of his conviction;” and admits “that there is no evidence that he knew of his right to have counsel appointed for him by the court at public expense or that he intelligently waived such right.” Both the attorney general, by William A. Platz, assistant attorney general, and Forest Rodd, counsel appointed by this court to represent the petitioner in these proceedings, have informed our clerk that the state and petitioner waive briefs and argument.

The arraignment proceedings were totally inadequate to advise the petitioner of his right to counsel or to obtain an intelligent waiver of his right to counsel. State ex rel. Drankovich v. Murphy (1946), 248 Wis. 433, 22 N. W. (2d) 540; State ex rel. Burnett v. Burke (1964), 22 Wis. (2d) 486, 126 N. W. (2d) 91, and cases cited therein; State ex rel. Barth v. Burke (1964), 24 Wis. (2d) 82, 128 N. W. (2d) 422.

We are obliged to determine that Eastman was not advised of his right to counsel and that he did not freely and intelligently waive his right to counsel and his conviction must, therefore, be set aside.

By the Court. — The petitioner having had a hearing such as he would have had, had the writ of habeas corpus been issued, it is considered that the issuance of the writ be omitted, and it is adjudged that the judgment and sentence of the circuit court is vacated and that the warden of the state prison deliver the petitioner to the sheriff of Forest county to be held by him for further proceedings according to law.


author: CANE, C.J.

text:
    Gary G. Gojmerac and Pamela Gojmerac, Plaintiffs-Appellants, v. James R. Mahn and Sandra Mahn, Defendants-Respondents.
    Court of Appeals

      No. 01-0825.

      Oral argument November 12, 2001.

    Decided December 4, 2001.

    2002 WI App 22
    (Also reported in 640 N.W.2d 178.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs and oral argument of James Wedemeyer of Schmitt & Koppelman, S.C. of Merrill.
    On behalf of the defendants-respondents, the cause was submitted on the brief and oral argument of George G. Russell of Russell & Tlusty of Merrill.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. Gary and Pamela Gojmerac appeal from a portion of a judgment declaring that owners of numerous subdivision lots have a valid easement for ingress and egress over the western portion of the Gojmeracs' property. We conclude that only those lots that were part of the dominant estate at the time the easement was created are entitled to use the easement. The two lots that were not part of the dominant estate do not have a valid easement. Therefore, we affirm in part and reverse in part the portion of the judgment declaring the rights of the owners of particular lots. Because neither party challenges the court's other rulings, the remainder of the judgment is affirmed.

Background

¶ 2. In 1975, Paul and Helen Smith dedicated and recorded a plat called the Birch Acres Addition. The addition was bordered on the east by Big Eddy Road and on the south by Birch Hill Road. Vacant, land bordered the addition on the north and west.

¶ 3. The addition contained two blocks of lots of varying sizes divided by a public road. The public road, approximately sixty feet wide, ran north from Birch Hill Road and then curved west, where it was to terminate in a cul-de-sac. Block One, west and south of the public road, contained five lots, numbered 1 through 5. Block Two, located east and north of the public road, contained seven lots, numbered 1 through 7.

¶ 4. The layout of the addition has remained the same since 1975, although some landowners own more than one lot and others own partial lots. A total of nine lots abut what was platted as the public road. Starting at the intersection of the public road and Birch Hill Road, the lots running north and curving west along the road are Lots 3, 2,1 and 5 of Block One on the west (in that order), and Lots 3, 4, 5, 6 and 7 of Block Two on the east (in that order). Lot 4 of Block One is located directly west of Lots 2 and 3 of Block One. Lots 1 and 2 of Block Two are located directly east of Lots 3 and 4 of Block Two, and they abut Big Eddy Road on the east.

¶ 5. The public road was never paved, but a gravel and dirt road less than sixty feet wide exists in its place. For instance, where the road intersects Birch Hill Road, it is no more than forty-one feet wide. The remaining width of the road is wooded.

¶ 6. At the Smiths' request, the public road was vacated on September 26, 1990, and is now a private road. On October 2, 1990, the Mahns' son, David, purchased property from the Smiths, including Lots 1, 2, 5 and part of 4, all in Block One. David also purchased the recently vacated road located between Blocks One and Two, and received a right of first refusal to purchase Lots 6 and 7 of Block Two.

¶ 7. David subsequently purchased Lots 3 and 4 of Block Two. Lot 3 is located on the northeast corner of the intersection of the vacated road and Birch Hill Road. David constructed a home on Lot 3 and decided to sell it. In order to give the future owners full use of a circular driveway and to increase the lot size, David sold a portion of the vacated road along with Lot 3.

¶ 8. On July 28, 1995, the Gojmeracs purchased from David Lot 3 of Block Two and a 180-foot-long, forty-one-foot-wide portion of the vacated road located directly west of Lot 3. David and his wife, the grantors, reserved an easement:

Grantors reserve a perpetual easement for purposes of ingress and egress over that portion of the vacated road formerly lying between Block One (1) and Block Two (2) of Birch Acres Addition described above. Said easement includes the right to install utilities. Maintenance of the easement shall be maintained by the grantor.

David reserved the easement so that he could continue to travel from his remaining lots to Birch Hill Road via the vacated road (the Gojmeracs1 forty-one-foot-wide strip was the only portion of the road that was passable where the vacated road met Birch Hill Road).

¶ 9. On the day the easement was created, David owned the following property that abuts the vacated road: Lots 1, 2 and 5 of Block One and Lot 4 of Block Two. David was also in the process of negotiating the purchase of additional land from the Smiths. That purchase was completed on November 15, 1995, when David bought Lots 5, 6 and 7 of Block Two.

¶ 10. After purchasing Lots 5, 6 and 7 of Block Two, David owned all land abutting the vacated road except Lot 3 of Block One, which is located on the northwest corner of the intersection of the vacated road and Birch Hill Road, and Lot 3 of Block Two, now owned by the Gojmeracs.

¶ 11. In 1996 and 1997, David sold three of the lots that abut the vacated road. David sold Lot 4 of Block Two (as well as Lot 2 of Block Two) to Michael and Larana Broeren, who can access Big Eddy Road on the east. David sold Lot 5 of Block Two to Robert Kobialka, who also has access to Big Eddy Road on the east. Finally, David sold Lot 2 of Block One to John Cirilli, who accesses Birch Hill Road using a driveway over Cirilli's other property, Lot 3 of Block One.

¶ 12. In 1998, David encountered financial problems. He sold all of his land in the Birch Acres Addition, including Lots 1, 5 and part of 4 in Block One and Lots 6 and 7 of Block Two, to River Valley State Bank, which then sold the same property to David's parents, James and Sandra Mahn. David, however, continued to manage the property for his parents and constructed a home on Lot 6 and part of Lot 7 of Block Two.

¶ 13. At some point, the Gojmeracs became troubled by the Mahns1 (i.e., David's) use of the easement over the Gojmeracs' land. In 1998, the Gojmeracs filed this suit seeking an injunction barring the owners of Lots 6 and 7 of Block Two from using the easement.

¶ 14. On April 30, 1999, while this suit was pending, the Mahns sold the home located on Lot 6 and part of Lot 7 of Block Two to John and Jessica Pelka. As part of this sale, the Mahns granted the Pelkas an easement to use all portions of the vacated road that the Mahns still owned to access Birch Hill Road, including the nineteen-foot-wide strip of wooded land adjacent to Birch Hill Road. In a separate document, entitled "Easement," the Mahns gave the Pelkas an easement over the Gojmeracs' 180-foot-long, forty-one-foot-wide strip of land. The Mahns and the Pelkas signed the document.

¶ 15. The Gojmeracs objected to the Pelkas' use of their land to access Lots 6 and 7 of Block Two, just as they had objected to the Mahns' use of the easement to access those same lots. They contended that although the Mahns could use the easement to access their remaining lots in Block One, the easement did not extend to Lots 6 and 7 of Block Two. The litigation concerning this issue continued, and a bench trial was held on September 13, 2000.

¶ 16. The trial court decided that the Pelkas could use the easement over the Gojmeracs' property. Specifically, the judgment stated that the easement could be used for ingress and egress by Lots 1, 2 and 5 of Block One, and Lots 4, 6 and 7 of Block Two. The judgment also stated that the lots in Blocks One and Two could not be further subdivided to create additional lots that would use the easement, and that the easement cannot be used to access fifteen acres of undeveloped land located west of Block One. This appeal followed.

Issues

¶ 17. The Gojmeracs contend that Lots 1, 2 and 5 of Block One and Lots 5, 6 and 7 of Block Two "are not appurtenant to the servient estate" and, therefore, are not entitled to use the easement. The Mahns dispute this assertion, contending that the "lots are appurtenant to the easement because the Mahns had an interest in said lots and the discontinued roadway at the time the easement was created." Because easements are generally said to be appurtenant, or annexed, to a dominant estate, as opposed to other lots or to a servient estate, it became clear to this court that the parties are using the term "appurtenant" to mean adjacent to, or abutting. This conclusion was confirmed at oral argument. Resolution of this case provides us with an opportunity to clarify the meaning of the word "appurtenant" and to address whether dominant and servient estates must be adjacent to one another.

Applicable Law

¶ 18. We begin by restating general easement law. An easement is an interest in land possessed by another. See Atkinson v. Mentzel, 211 Wis. 2d 628, 637, 566 N.W.2d 158 (Ct. App. 1997). Easements are of two classes, appurtenant easements and easements in gross. See Union Falls Power Co. v. Marinette County, 238 Wis. 134, 138, 298 N.W. 598 (1941). "Appurtenant" means that the rights or obligations of a servitude are tied to ownership or occupancy of a particular unit or parcel of land. Restatement (Third) of Property: Servi-tudes § 1.5 at 30 (2000). "In gross" means that the benefit or burden of a servitude is not tied to ownership or occupancy of a particular unit or parcel of land. Id.

¶ 19. An appurtenant easement creates two distinct property interests: the dominant estate (or tenement), which enjoys the privileges granted by an easement; and the servient estate (or tenement), which permits the exercise of those privileges. See Atkinson, 211 Wis. 2d at 637; see also Reise v. Enos, 76 Wis. 634, 638, 45 N.W 414 (1890) (particular lot to which the easement is appurtenant is the dominant estate and lot over which the easement is enjoyed is the servient estate). The dominant owner does not obtain an estate in the servient property, but only a right to use the land consistent with the general property rights of the servient owner. See Hunter v. McDonald, 78 Wis. 2d 338, 344, 254 N.W.2d 282 (1977).

¶ 20. Although dominant and servient estates are often adjacent to one another, the majority rule is that an easement may be appurtenant to noncontiguous property if both estates are clearly defined and if it was the parties' intent that the easement be appurtenant. See Verzeano v. Carpenter, 815 P.2d 1275, 1278 (Or. App. 1991); see also 7 Thompson on Real Property § 60.02(f)(4) (1994) ("In an easement appurtenant, the servient tenement need not necessarily be adjacent to land it serves (for example, there might be an easement over servient tenement parcel a, through servient tenement parcel b, to reach dominant tenement parcel c)".).

¶ 21. Although we are aware of no Wisconsin case that has directly addressed whether an easement may be appurtenant to nonadjacent property, our courts have recognized easements where the dominant and servient estates are not adjacent. See, e.g., Millen v. Thomas, 201 Wis. 2d 675, 679-80, 550 N.W2d 134 (Ct. App. 1996) (dominant and servient estates separated by road). Accordingly, in the absence of contrary authority, we apply the majority rule.

¶ 22. It is the essence of an appurtenant easement that it exists for the benefit of the dominant estate alone. See Vliet v. Sherwood, 35 Wis. 229, 235 (1874). Thus, an easement can be used only in connection with the dominant estate to which it is appurtenant. See S.S. Kresge Co. v. Winkelman Realty Co., 260 Wis. 372, 376, 50 N.W.2d 920 (1952); see also Restatement (Third) of Property: Servitudes § 4.11 at 619 (2000) .

¶ 23. Additionally, the dominant estate cannot be enlarged. In Reise, 76 Wis. at 639, our supreme court explained:

[The easement is] appurtenant to lot 3, to which it is annexed, and cannot be enjoyed separate and distinct from the lot to which it belongs. Nor could [the owner of lot 3], to whom the right was originally granted, enlarge the right, and subject the servient estate to a new species of burden.. . . [I]t is well settled that, if a person has a right of way over the land of another to a particular close, he cannot enlarge it or extend it to other closes.

See also 28A C.J.S. Easements § 10 at 183 (1996) ("An easement appurtenant may not be extended by the owner of the dominant estate to accommodate other lands which he may own and for which the easement was not originally intended."). Further, an easement cannot be enlarged to include property acquired after the creation of the dominant estate. See Restatement (Third) of Property: Servitudes § 4.11 cmt. b at 620 (2000) (Unless the easement was intended to benefit land to be acquired in the future, the easement beneficiary is not entitled to use it to serve land that is subsequently acquired even if no additional use of the easement or burden on the servient estate would ensue.).

¶ 24. The deed granting the easement defines the relative rights of the landowners. See Hunter, 78 Wis. 2d at 342-43. "The use of the easement must be in accordance with and confined to the terms and purposes of the grant." Id. at 343. If the language within the four corners of the deed is unambiguous, the court need not look further for the parties' intent. See Rikkers v. Ryan, 76 Wis. 2d 185, 188, 251 N.W.2d 25 (1977). Whether the deed's language is ambiguous is a question of law and will be reviewed de novo. See Atkinson, 211 Wis. 2d at 638.

¶ 25. Where an easement is appurtenant to an estate, it follows every part of the estate into the hands of those who purchase or inherit the estate, as long as the burden on the servient estate is not increased. See Reise, 76 Wis. at 639; see also 25 Am. Jur 2d Easements & Licenses § 105 at 676 (1996) (As a general rule, if the dominant estate is transferred in separate parcels to different persons, each grantee acquires a right to use easements appurtenant to the dominant estate, provided that the easements can be enjoyed as to the separate parcels without any additional burden on the servient estate.). An easement passes by a subsequent conveyance of the dominant estate without express mention in the conveyance. In re Land on Geneva Lake, 165 Wis. 2d 235, 245, 477 N.W.2d 333 (Ct. App. 1991).

Discussion

¶ 26. Application of these principles leads us to conclude that Lots 6 and 7 of Block Two were never part of the dominant estate and, therefore, the easement was never appurtenant, or annexed, to those two lots. Accordingly, the owners of Lots 6 and 7 of Block Two have no right to use the easement. Furthermore, we conclude that the easement is appurtenant to Lots 1, 2 and 5 of Block One and Lot 4 of Block 2 because these lots are part of the dominant estate. Therefore, the owners of those lots have a right to use the easement, unless and until the Gojmeracs prove that the easement should be extinguished for a particular, recognized reason, such as that the use has increased the burden on the servient estate.

A. Identity of the dominant estate

¶ 27. It is undisputed that the easement is the right to ingress and egress over the forty-one-foot-by-180-foot strip of land that forms the western edge of the Gojmeracs' property. The servient estate is the Gojmeracs1 property. The disputed issue is the identity of the dominant estate.

¶ 28. The parties disagree whether the deed language establishing the easement is ambiguous. The Gojmeracs assert that the language is unambiguous and clearly implies that the dominant estate is the land adjacent to Lot 3 of Block Two that was owned by David Mahn at the time he sold Lot 3 to the Gojmeracs. Under the Gojmeracs' analysis, the dominant estate contains Lots 1, 2 and 5 of Block One, the vacated road, and Lot 4 of Block Two.

¶ 29. The Mahns disagree, contending that the deed is ambiguous because it does not specifically identify the dominant estate. The Mahns urge this court to look at extrinsic evidence of the parties' intent, including facts found by the trial court. They argue that these facts prove that the dominant estate was intended to include the same lots identified by the Gojmeracs, as well as the two lots on which the Mahns had a right of first refusal: Lots 6 and 7 of Block Two.

¶ 30. We conclude that the deed is not ambiguous. Although the dominant estate is not explicitly identified in the deed, the obvious meaning of the language is that David intended to use the easement to access the chunk of land adjacent to Lot 3 of Block Two from which Lot 3 was being separated. The parties agree that the dominant estate contains Lots 1, 2 and 5 of Block One, the vacated road, and Lot 4 of Block Two. The only dispute is whether Lots 6 and 7 of Block Two were also intended to be part of the dominant estate. We conclude that they were not.

¶ 31. The Restatement provides: "[I]f the intent to benefit land owned by another, or land to be acquired in the future, is not clearly apparent, the usual presumption ... is that the dominant estate is limited to land owned by the grantee at the time the easement. . . is created." See Restatement (Third) of Property: Servi-tudes § 4.11 cmt. b at 620 (2000). We conclude that application of this presumption is consistent with Wisconsin law. See, e.g., Hunter, 78 Wis. 2d at 342-43 (We look to the easement to construe 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.).

¶ 32. The Mahns further assert that a right of first refusal to purchase property is equal to an ownership interest in property. We disagree. First, the Mahns were unable to provide us with any authority for that proposition. Our independent research has revealed no Wisconsin case directly on point, although language in Reise suggests that a court generally expects that a party has already acquired title to a piece of property when the party asserts easement rights associated with the property. See id., 76 Wis. at 637 (noting that an easement cannot be enlarged so that it can be used or maintained in connection with any other lot to which a party subsequently acquires a title).

¶ 33. Second, the definition of a right of first refusal contradicts the Mahns' assertion that the right is equal to an ownership interest. "A right of first refusal is essentially a conditional option dependent upon the decision or the desire of the [landowner] to sell." Last v. Puehler, 19 Wis. 2d 291, 297, 120 N.W.2d 120 (1963). It is distinguishable from an ordinary option in that it provides the prospective purchaser the right to buy upon specified terms only if the seller decides to sell. Edlin v. Soderstrom, 83 Wis. 2d 58, 68, 264 N.W.2d 275 (1978). Given these definitions, we cannot agree that land on which David had a right of first refusal was land "owned by the grantee at the time the easement" was created. See Restatement (Third) of Property: Servitudes § 4.11 cmt. b at 620 (2000).

¶ 34. Applying the presumption that the dominant estate is limited to land owned by the grantee at the time of the easement's creation unless the deed manifests a clear intent to include future purchases in the dominant estate, we conclude that Lots 6 and 7 of Block Two are not part of the dominant estate. Here, the deed lacks any specific reference to Lots 6 and 7 or to future land purchases. Accordingly, the deed provides no notice of intent to include future land purchases in the dominant estate, and does not even mention that David has a right of first refusal on other land. There is no "clearly apparent" intent to include in the dominant estate lands that David has not yet purchased. See id.

¶ 35. The only reasonable interpretation of the deed as written is that the dominant estate includes those lands David owned at the time of the sale. Accordingly, we conclude that Lots 6 and 7 of Block Two are not entitled to use the easement because they were never part of the dominant estate, which, by law, cannot be expanded. See S.S. Kresge, 260 Wis. at 376; Reise, 76 Wis. at 639. In other words, the easement was never appurtenant to Lots 6 and 7.

B. Whether division of the dominant estate affects easement rights

¶ 36. We must next decide whether, as a matter of law, the owners of Lot 2 of Block One and Lot 4 of Block Two can use the easement. Both lots were part of the dominant estate when the easement was created and were part of a single parcel owned by David. The fact that the lots have now been sold separately to different landowners does not, as a matter of law, affect the landowners' rights to continue to use the easement. The Restatement explains, in part:

When property benefited or burdened by a servitude is divided into separately owned parcels, the rights and obligations that run with each of the separately owned parcels are as follows unless the terms of the servitude provide otherwise:
(1) Each separately owned parcel is entitled to make the uses privileged by an easement or profit; provided, however, that if apportionment is required to avoid an unreasonable increase in the burden on the servient estate, the use rights are appropriately apportioned among the parcels.

Restatement (Third) of Property: Servitudes § 5.7 at 50-51 (2000). Although we have been directed to no Wisconsin authority for this proposition, our review of cases from other jurisdictions convinces us that the Restatement correctly states the law. See, e.g., Crawford Realty Co. v. Ostrow, 150 A.2d 5, 19 (R.I. 1959) (If a dominant tenement is subdivided between two or more owners, the easements appurtenant to it become subdivided and attach to each separate part of the subdivided dominant tenement unless this result is prohibited by the terms of its conveyance.).

¶ 37. The Gojmeracs do not appear to dispute the proposition that a dominant estate can be subdivided, but they contend that only those subdivided pieces that are "appurtenant to the servient estate" can continue to use the easement. It is clear from the context of this statement, as well as from oral argument, that the Gojmeracs are using the term "appurtenant" synonymously with "abutting" or "adjacent." Their argument, therefore, is that subdivided parcels of the dominant estate that are not adjacent to the servient estate cannot use the easement.

¶ 38. The Gojmeracs rely on Reise, stating that the case is instructive as to what constitutes "appurtenant." Reise involved three parcels of land. See Reise, 76 Wis. at 635-37. Lot 4 was bordered by Clinton Street on the west. The owner of Lot 4 sold to Reise Lot 3, located directly east of Lot 4. The owner granted Reise an easement over Lot 4 so that Reise could access Clinton Street. Six years later, Reise purchased Lot 2, located directly east of Lot 3. Seventeen years after purchasing Lot 2, Reise sold Lot 3, reserving to himself the right to cross Lot 3 to reach Lot 4, which he would then cross to access Clinton Street. Id.

¶ 39. Francis Enos bought Lot 4. Id. at 637. Enos objected to Reise's use of Lot 4 access Clinton Street and tried to block Reise's access, which led to litigation. See id. at 634. The court concluded that when Lot 3 was conveyed to Reise, the easement was appurtenant to Lot 3. See id. at 637. Furthermore, Reise stated, the right to use the easement over Lot 4 to access Clinton Street "cannot be enlarged so that it can be used or maintained in connection with any other lot to which [Reise] subsequently acquired a title [because the easement] was to be enjoyed by the owner of [L]ot 3, and could not be applied to another estate." See id. Therefore, the court concluded that Reise had no right to use the easement over Lot 4 except as the owner of Lot 3. See id. at 639.

¶ 40. The Gojmeracs argue that Reise supports their position that only land adjacent to a servient estate can use an easement over the servient estate, stating, "The Reise Court held that the right of way across Lot 4 was only appurtenant to Lot 3 and was not to Lot 2." The Gojmeracs' summary of Reise is correct, except to the extent that the Gojmeracs use the term "appurtenant" to mean "adjacent to." Reise concluded that Lot 2 could not use the easement because Lot 2 was never part of the dominant estate — not because Lot 2 was never adjacent to the easement. Therefore, we disagree that Reise supports the Gojmeracs' position.

¶ 41. The Gojmeracs also rely on Milieu's discussion of Reise, arguing Milieu held that only those portions of the dominant estate that are adjacent to, or abutting, the servient estate can use an easement. We reject this argument. The facts in Milieu were similar, but not identical, to those in Reise. The landowner of the dominant estate acquired additional land abutting the dominant estate. See Millen, 201 Wis. 2d at 681. The servient estate sought a declaration that the easement was void because the landowner had "illegally expanded" the dominant estate. Id. at 682, 683. Milieu rejected the servient estate's assertion that the mere purchase of additional land extinguished the easement, stating: "We do not read Reise to say that if additional property is added onto the land which is appurtenant to the easement, the easement ceases to exist. Rather, Reise merely requires the easement to be appurtenant to the dominant estate." Id. at 685.

¶ 42. The Gojmeracs interpret this last sentence to mean that an easement must be adjacent to, or abutting, the servient estate. We disagree. The court in Millen was not called upon to address the situation where the dominant estate is divided. Instead, Millen contemplated whether the purchase of additional land adjacent to a dominant estate extinguishes the easement as a matter of law. See id. at 683. Thus, Millen never addressed the issue of whether only those portions of the dominant estate adjacent to, or abutting, the servient estate can use an easement.

¶ 43. Additionally, although there is no case on point in Wisconsin, persuasive authority from other jurisdictions suggests that even if the division of a dominant estate results in certain parcels no longer abutting the servient parcel, the easement is not automatically extinguished as to those parcels. For example, Crawford stated that the subdivided parcels of a dominant estate can continue to use the easement "even where . . . the subdivision separates one of the subdivided parts from the passageway." See Crawford, 150 A.2d at 19; see also Krause v. Taylor, 343 A.2d 767, 769 (N.J. Super. Ct. 1975) ("Except as limited by the terms of its creation or transfer and subject [to concerns regarding the increased burden on the servient estate], a subsequent owner of a part of the dominant estate to which a right of way is appurtenant has the right to use such right of way to his particular part of the land, even though his subdivided parcel does not abut upon such way.").

¶ 44. Crawford is consistent with the general majority rule, which we apply here, that the dominant and servient estates need not be adjacent. See 7 Thompson on Real PRoperty § 60.02(f)(4) (1994) ("In an easement appurtenant, the servient tenement need not necessarily be adjacent to land it serves.").

¶ 45. According to Crawford, an easement is not automatically extinguished when the division of a dominant estate creates parcels of land that no longer abut the servient estate. Crawford recognized, however, that an easement may no longer be available in some circumstances: "If the land is so divided that a portion thereof is completely deprived of access to the passageway, the easement can no longer be used for the benefit of the subdivided portion and thus it is extinguished." Crawford, 150 A.2d at 20. Additionally, Reise recognized that an easement may be limited if the burden on the servient estate is increased. See Reise, 76 Wis. at 639.

¶ 46. Here, the Gojmeracs do not assert that the terms of the deed contemplate terminating the easement when a portion of the dominant estate no longer abuts the servient estate. Also, they do not argue that Lot 2 of Block One and Lot 4 of Block Two are completely deprived of access to the easement (because they can access the easement using the remainder of the vacated road). Finally, they have not alleged that easement use by those two lots has increased the burden on their servient estate. Accordingly, there is no reason to extinguish the easement as to Lot 2 of Block One and Lot 4 of Block Two.

¶ 47. In summary, we conclude that Lot 2 of Block One and Lot 4 of Block Two have a right to use the easement until such time as the Gojmeracs prove that the easement should be extinguished for a particular, recognized reason, such as that the use has increased the burden on the servient estate.

C. Use of the easement by Lots 1 and 5 of Block One

¶ 48. Although the Gojmeracs do not object to the Mahns' use of the easement for ingress to and egress from Lots 1 and 5 of Block One, they suggest that the easement will no longer be valid as to those lots if the Mahns sell the lots or the vacated road connecting the . lots to the servient easement. For the same reasons articulated with respect to Lot 2 of Block One and Lot 4 of Block Two, we conclude that any subsequent owners of parcels that were originally part of the dominant estate would not automatically be prohibited from using the easement. As with Lot 2 of Block One and Lot 4 of Block Two, use of the easement to access Lots 1 and 5 of Block One would be permitted until such time as the Gojmeracs prove that use of the easement should be extinguished for a particular, recognized reason, such as that the use has increased the burden on the servient estate.

Conclusion

¶ 49. We reverse the trial court's conclusion that Lots 6 and 7 of Block Two have the right to use the easement over the Gojmeracs' land. We affirm the judgment in all other respects.

OFFICIAL WISCONSIN REPORTS Court of Appeals

By the Court. — Judgment affirmed in part; reversed in part. Costs denied to both parties.

       James and Sandra Mahn cross-appealed; the cross-appeal was voluntarily dismissed, pursuant to Wis. Stat. Rule 809.18 (1999-2000).

       To assist the reader, we have prepared a diagram of the addition, which we have attached as Exhibit A. We stress that this exhibit is our drawing based on the parties' briefs, oral argument and the appellate record. It is not an exhibit from the trial court proceedings, nor is it drawn to scale. Rather, it is a simplified diagram of the lots and easement at issue.

       Although David had to travel over the Gojmeracs' land if he used the vacated road to access Birch Hill Road, he was also able to access Birch Hill Road from his property using a less-developed logging road located west of Block One.

       The trial court also considered a counterclaim by the Mahns that sought an injunction preventing the Gojmeracs from interfering with the Mahns' use of the easement. The court dismissed the counterclaim, concluding that an injunction was not necessary. The Mahns do not challenge that ruling on appeal and, therefore, their counterclaim will not be addressed further.

       Interests that are held in gross may be either transferable or personal. Restatement (Third) of Peoperty: SERVITUDES § 1.5 cmt. b at 32 (2000). They do not run with land and are transferred by assignment or delegation. If personal, they are not transferable. Id.

       Black's Law Dictionaey provides a definition of the word "appurtenant" that is consistent with Reise v. Enos, 76 Wis. 634, 45 N.W. 414 (1890): "Annexed to a more important thing." Black's Law DictionaRY 98 (7th ed. 1999). Thus, it is said that an easement is appurtenant, or annexed, to the dominant estate.

         Reise refers to an increased burden, but more recent caselaw considers whether a servient estate has been unreasonably burdened. See Hunter v. Keys, 229 Wis. 2d 710, 715, 600 N.W.2d 269 (Ct. App. 1999). Because resolution of this case does not require us to examine any changes in the burden on the servient estate, we decline to address whether this change in language signifies a change in the applicable legal analysis.

       Although the parties recognize that the owners of Lot 2 of Block One and Lot 4 of Block Two are not currently using the easement because their other lots provide access to Birch Hill Road and Big Eddy Road, the judgment addresses the rights of those landowners, explicitly stating that these two lots may use the easement. The Gojmeracs have appealed that conclusion. Accordingly, it is appropriate that we address the legal status of Lot 2 of Block One and Lot 4 of Block Two. We note, however, that our decision is based only on the facts available at this time. If, for example, the owners of these two lots begin using the easement and there is an issue of increased burden, the Gojmeracs remain able to challenge the landowners' use of the easement on that basis.


author: BROWN, J.

text:
    In the Interest of Stephen T., a person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Stephen T., Defendant-Appellant.
    Court of Appeals

      No. 00-3045.

      Submitted on briefs October 17, 2001.

    Decided December 5, 2001.

    2002 WI App 3
    (Also reported in 643 N.W.2d 151.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Raymond M. Dall'Osto of Gimbel, Reilly, Guerin & Brown of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Phillip A. Koss, district attorney, and Diane M. Resch, assistant district attorney.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       This case was converted from a one-judge appeal to a three-judge appeal pursuant to Wis. Stat. § 809.41(3) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

   BROWN, J.

Factual Background

¶ 2. Ten-year-old Stephen was charged with having sexual contact with two girls younger than him, one incident in August 1996 involving six-year-old S.R.H. and one incident in May 1997 involving seven-year-old C.A.M. The 1996 allegations arose out of a children's game of "truth or dare" that involved Stephen, his sisters, S.R.H. and other children who lived in the neighborhood. The 1997 allegations arose out of a children's game of "capture the flag," again involving Stephen, his sisters, S.R.H., C.A.M. and other children from the subdivision. The games were played outdoors in the backyards of various neighbors.

¶ 3. At trial, S.R.H. testified that she and some neighborhood children were involved in a game of "war." During this game, S.R.H. reported that Stephen made a rule that the girls had to pull up their shirts in order to get out of jail. C.A.M. also testified that Stephen had made up the rule that the girls had to expose their breasts when they were captured. C.A.M. further testified that Stephen had touched one of her breasts during the "war" game. Stephen denied ever touching C.A.M.

¶ 4. The trial court found Stephen guilty of touching C-A.M.'s breast with his hand during the "capture the flag" game. With respect to the issue of intent, the trial court found that "the only logical reason" Stephen would have had contact with the girls' private parts was for sexual gratification. "That's not to say he could get it or not. I don't know."

¶ 5. The trial court further reasoned that since Stephen had previously been exposed to materials of a sexual nature, Stephen "was thinking along the terms exploratory ... or trying to get this excitement. As I say, I don't know whether he actually got excited by it. So his purpose was to obtain sexual gratification." The trial court concluded that based on Stephen's particular age, it did not make sense that he had sexually assaulted the girls in order to degrade or humiliate them.

¶ 6. At the March 24, 1998 disposition hearing, the trial court ordered that Stephen be placed on one-year supervision, with placement to remain in his home, and with several conditions including psychological counseling, restitution and community service. The trial court also ordered Stephen to provide a DNA sample and to register as a sex offender.

¶ 7. Stephen subsequently filed a motion and briefs urging the court to consider a stay of the sex offender registration and DNA testing requirements in light of the passage of 1997 Wis. Act 130. The trial judge held two hearings on the motion, ultimately ruling that while it did not want to order sex offender registration for Stephen, it understood that the statute requiring mandatory registration gave the court no discretion to do otherwise. The trial judge also concluded that 1997 Wis. Act 130, which allows judges to exercise discretion under the sex offender registration law, did not apply to Stephen because the legislation is substantive and therefore prospective in application. The court ordered a stay of the sex offender registration pending appeal, but did not stay the DNA testing.

¶ 8. Stephen then filed a motion for postdisposition relief, alleging that the State failed to prove beyond a reasonable doubt that he touched the breast of C.A.M. with the specific intent of sexual arousal or gratification. He also claimed the performance of his trial counsel was defective for not investigating Stephen's sexual and psychological maturity prior to trial and not presenting expert testimony that a child of Stephen's age and physical development could not form the same intent to become sexually aroused or gratified as an adult. The trial court extended the dispositional order to March 24, 2000, and scheduled a Machner hearing for August 24, 2000.

¶ 9. At the Machner hearing, the State argued that the trial court had lost jurisdiction because the dispositional order had expired. The trial court agreed with the State's position but decided to hold the hearing in order to provide a complete record on appeal. The State then stipulated to the evidentiary submissions offered by the defense counsel. After reviewing the affidavits of Drs. Dean Tomasello and David Taylor, and hearing the testimony of Dr. Charles Lodi on whether prepubescent ten-year-olds have the same capacity to become sexually aroused or gratified as adults, the trial court denied Stephen's motion to vacate the delinquency finding.

Discussion

¶ 10. As a threshold issue the State argues that this appeal is moot because the trial court lacked jurisdiction to consider Stephen's postdisposition motions after the dispositional order expired. See Sallie T. v. Milwaukee County DHHS, 219 Wis. 2d 296, 303-04, 581 N.W.2d 182 (1998). In Sallie T, however, the supreme court held that even if mootness exists because of the expiration of the dispositional order during the pendency of postdisposition motions and appeal, the appellate court "will reach issues of 'great public concern' " or "cases where 'the precise situation arises so frequently that a definitive decision is essential to guide the trial courts.'" Id. at 304 (citations omitted). The court then ruled that the trial court had erred by applying an improper presumption that a parent's compliance with a dispositional CHIPS order is dispositive of the child's best interests. Id. at 311. Nonetheless, the court was compelled to uphold the appellate court's affirmance of the trial court decision based on the jurisdictional issue: "We cannot remand for further proceedings consistent with this opinion" because the trial court "lost its competence to adjudicate matters concerning [the child]." Id. at 311-12.

¶ 11. We are not persuaded that this appeal is moot. Stephen's DNA is on file pursuant to court order and we are asked to determine whether he must also register as a sex offender; these are controversies that survive the expiration of the dispositional order. Therefore, our judgment in this matter will have a practical legal effect upon a real party to an existing controversy. See State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 228, 340 N.W2d 460 (1983) (a moot case is one which can have no practical legal effect on an existing controversy). However, assuming arguendo that the State is correct regarding mootness, this case presents both characteristics described in Sallie T. The main issue Stephen raises on appeal — whether a ten-year-old may be inferred to possess the same specific intent to become sexually aroused or gratified as an adolescent or adult — is an issue of great public importance that is likely to resurface whenever Wisconsin's revised juvenile delinquency code is applied to preadolescents alleged to have had sexual contact with other children. We now address the merits of the legal question presented.

¶ 12. The crux of this case is whether the trial court erred as a matter of law by excluding expert testimony and other evidentiary submissions regarding Stephen's psychosexual maturity as irrelevant to the specific intent element of the charge of sexual assault. "Expert testimony is admissible only if it is relevant," State v. Pittman, 174 Wis. 2d 255, 267, 496 N.W.2d 74 (1993), and if it will assist the trier of fact to understand the evidence or to determine a fact in issue. Wis. Stat. § 907.02. Whether expert evidence is relevant and whether the evidence will assist the trier of fact are discretionary decisions. State v. Ross, 203 Wis. 2d 66, 80, 552 N.W.2d 428 (Ct. App. 1996). We affirm a trial court's discretionary ruling if it is supported by a logical rationale, is based on facts of record and involves no error of law. Shawn B.N. v. State, 173 Wis. 2d 343, 367, 497 N.W.2d 141 (Ct. App. 1992).

¶ 13. We begin with the premise that due process requires the State to prove beyond a reasonable doubt every element necessary to constitute the crime charged. State v. Krueger, 2001 WI App 14, ¶ 10, 240 Wis. 2d 644, 623 N.W.2d 211. Intent is a fact to be proved like any other. See Winburn v. State, 32 Wis. 2d 152, 165, 145 N.W.2d 178 (1966). "A petition based on a violation that requires criminal intent cannot result in a finding of delinquency when the conduct was either unintended or. . . there was a failure to form the requisite intent." Id. In a prosecution for sexual assault, the State must prove as an element of the crime that the perpetrator had the specific intent to touch the victim for the purpose of sexual arousal or gratification. State v. Nye, 100 Wis. 2d 398, 403, 302 N.W2d 83 (Ct. App.), aff'd, 105 Wis. 2d 63, 312 N.W2d 826 (1981). Therefore, in this case, the State was required to prove beyond a reasonable doubt that Stephen not only intended to touch C.A.M.'s breast, but that he did so with the intent to become sexually aroused or gratified. See Wis. Stat. § 948.01(5)(a).

¶ 14. We recognize that the State is allowed to prove intent by inference from the defendant's conduct and from the general circumstances of the case. State v. Drusch, 139 Wis. 2d 312, 326, 407 N.W.2d 328 (Ct. App. 1987). The State was therefore entitled to argue for an inference from the facts that Stephen was capable of having sexual contact for the purpose of sexual arousal or gratification. The facts the State relied upon included Stephen's exposure to media of a sexual nature and the sexual contact itself. As the prosecutor argued during closing statements: "[H]is curiosity, having seen the Playboy magazines, trying to make out the things on the Playboy channel, describing the body parts or the acts. . . . Stevie is a sexual being. All of us are from birth forward. Stevie was acting on that sexual arousal and sexual desire. He just is too young, and he did not have a willing partner who was old enough to consent." In response to the defense argument that the circumstances of the children's game belied any criminal intent, the prosecutor opined that "[t]his is just as wrong as an adult playing these games with little kids." She further urged the court not to entertain the "slippery slope defense argument" that requires some proof of sexual maturity on the part of the perpetrator before liability for sexual assault can be established.

¶ 15. In its decision, the trial court concurred with the views of the State. "I have no reason, again, to doubt [C.A.M.] that Stephen touched her on the bare breast, and the only logical conclusion is that... he did so for purposes of sexual gratification... . He wanted to do what I think he'd seen on programs."

¶ 16. We agree that the statute does not require the State to offer proof of a defendant's sexual maturity in order to secure a conviction of sexual assault. We further agree with the State and the trial court that the inference of intent drawn from these facts was reasonable. We part ways, however, on whether expert testimony of Stephen's sexual and psychological immaturity is relevant as an affirmative defense to rebut this inference. The trial court rejected introduction of this evidence, both at trial and at the Machner hearing, as irrelevant as a matter of law.

¶ 17. For example, at trial, defense counsel had Dr. Taylor testify in an offer of proof to show what prepubescent would mean with respect to Stephen's ability to form the intent to become aroused. Dr. Taylor testified that Stephen was prepubertal at an examination in 1996. On cross-examination, he testified that prepubertal children and even infants can be sexually aroused or gratified and that it was common for children to participate in sexual play. Dr. Taylor also testified that while sexual arousal occurs in prepubescent children, "it does not mean the same thing as it does to a post-adolescent." The trial court rejected this offer of proof, ruling that "I thought at first his testimony was that this child could not become sexually gratified. But he can. Therefore, it has no relevance, the fact that he's prepubescent."

¶ 18. At the Machner hearing, Stephen's counsel more fully developed the relevance of Stephen's prepubescent sexual immaturity to the formation of intent in his sexual conduct. Counsel offered the affidavits of two doctors who both placed Stephen at stage one of the Tanner scale of maturity. Dr. Lodi testified that a child at Tanner stage one does not have the same erotic sense, thoughts and capacities that an adult or post-adolescent has when the child engages in sexual behavior. In particular, according to Dr. Lodi, a ten-year-old child has not developed the capacity to be sexually aroused or gratified or to seek out sexual gratification with the intent prohibited under the criminal law. Dr. Lodi also pointed to psychological studies showing that the kind of touching Stephen was alleged to have committed with C.A.M. is common and may occur in 12% to 40% of boys ages seven to twelve. Again, however, the trial court rejected this offer of proof, finding no distinction in the law with respect to a child's intent to become aroused and an adult's intent to seek arousal.

¶ 19. The trial court's conclusion echoed the sentiments of the prosecutor, who argued that the law does not distinguish between childhood sexual exploration and intent to have sexual contact for purposes of sexual arousal: "Was the touching done out of curiosity or prepubescent exploration, like playing doctor, or was it just goofy child's play, with the participants not realizing the sexual or legal import of such? To me that's all one and the same. That's sexual curiosity; that's acting with that intent."

¶ 20. We reject this line of reasoning. We do not agree that the law "criminalizes" sexual contact between children on the basis that they are "sexual beings" capable of seeking out sexual gratification. Nor do we believe that "goofy child's play" or "exploration" is within the parameters of first-degree sexual assault. To the contrary, the law "criminalizes" a child's sexual contact with another child only when the perpetrator possesses the intent to become sexually aroused in a manner that is inconsistent with childhood behavior. In other words, it "criminalizes" children when they behave like adults, not when they behave in a manner normative to their age. This is why we determine that Stephen's theory of defense was eminently reasonable as a means to rebut the inference established by the State. The essence of his theory was that he was at a level of psychosexual development where he did not experience sexual arousal or gratification in the same manner as adults or adolescents and, therefore, his intent was not criminal.

¶ 21. Based on our understanding of criminal intent, we determine that the expert testimony and other evidentiary submissions were highly relevant to Stephen's theory of defense. The trial court rejected the submissions based on the mistaken belief that as long as Stephen intended to become sexually aroused, he "fit[] in the same gambit as adults." We conclude that the trial court's discretionary ruling was in error. Moreover, because the erroneous ruling deprived Stephen of the opportunity to present an affirmative defense, we determine that the error was not harmless.

¶ 22. We now address the appropriate remedy in this case in light of the fact that Stephen has already completed the terms of the dispositional order and the order has expired. We bear in mind that the paramount consideration in juvenile proceedings has always been the welfare of the juvenile. D.H. v. State, 76 Wis. 2d 286, 304 n.12, 251 N.W.2d 196 (1977). The express intent of the current version of the juvenile justice code is to "protect the community, impose accountability for violations of law and equip juvenile offenders with competencies to live responsibly and productively." Wis. Stat. § 938.01(2). In addition to protection of the public and accountability, the statute seeks to provide care and treatment of a juvenile offender's needs. Sec. 938.01(2)(f).

¶ 23. In this instance, the trial court determined that the most effective disposition was to place Stephen on one-year supervision, to make restitution, to perform community service, and to attend counseling. Apparently, he has complied with all of these requirements. We conclude that the public interest in protection and accountability and Stephen's interest in rehabilitation have been served. If Stephen were again adjudicated delinquent following remand for a new trial, no further interest or purpose would be served. Given the futility of a new trial, we reverse the orders of the trial court without remand and dismiss the adjudication of delinquency, with the instruction that Stephen's DNA sample on file be removed or destroyed.

By the Court. — Orders reversed.

       The right to a trial by jury in juvenile delinquency cases has been eliminated by the legislature. See State v. Hezzie R., 219 Wis. 2d 848, 859, 580 N.W2d 660 (1998).

       During the trial, the children referred to this game both as "war" and "capture the flag."

       The trial court also found Stephen guilty of the counts against S.R.H. However, at the subsequent disposition hearing, the court concluded that in light of newly discovered evidence pertaining to S.R.H., it could not find Stephen guilty of first-degree sexual assault beyond a reasonable doubt. Therefore, this appeal concerns only the allegations of sexual assault involving C.A.M.

       Although these findings were made in the context of the allegations involving S.R.H., the record makes clear that the court's comments pertain to the incident involving C.A.M. as well.

        State v. Machner, 92 Wis. 2d 797, 285 N.W2d 905 (Ct. App. 1979).

       The Tanner stages of maturity are known to pediatricians and physicians as standards for assessing puhertal development.

       We appreciate the fact that an adjudication of delinquency is not a conviction of a crime. Wis. Stat. § 938.35(1). Nonetheless, the juvenile justice system takes on the character of "crime and punishment" because of the consequences of the juvenile disposition which may include social stigma, dissemination of juvenile records to school and law enforcement authorities, and removal from the home. See Winburn v. State, 32 Wis. 2d 152, 161-63, 145 N.W2d 178 (1966). The "crime and punishment" character of the disposition is magnified when sex offender registration is required.

       Stephen argues that his trial counsel was ineffective for failing to bring to the court's attention the Tanner standards of assessment and other medical and psychological proofs. We appreciate that his postconviction counsel provided more informed experts to support his theory of defense that in view of his immaturity he could not intend to become sexually aroused or gratified. Based on our review of the record, however, we are not convinced that trial counsel's performance was deficient.

       We understand that the court in Sallie T. v. Milwaukee County DHHS, 219 Wis. 2d 296, 311-12, 581 N.W.2d 182 (1998), affirmed rather than reversed the erroneously-based decision because of the jurisdictional issue. However, we are not compelled to affirm based on a conclusion that the trial court lacks jurisdiction to hold a new trial; we simply note the futility of remand even if a new trial were held.

       Because of our holding in this case, Stephen is not required to register as a sex offender and therefore we do not reach the issue of whether 1997 Wis. Act 130 is remedial and subject to retroactive application. If, for whatever reason, his name appears on the sex offender registry or any other official records, we instruct the State to remove it.


text:
    Racine County, Plaintiff-Respondent, v. William R. Cape, Christopher Cape, and Warren R. Cape, Cape Bros. Realty and Equipment and James Cape and Sons Co., Defendants-Appellants.
    Court of Appeals

      No. 01-0740.

      Submitted on briefs November 8, 2001.

    Decided December 5, 2001.

    2002 WI App 19
    (Also reported in 639 N.W.2d 782.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of R. William Phenicie and John E. Hotvedt oí Lloyd, Phenicie, Lynch & Kelly, S.C. of Burlington.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Matthew W. McVey, assistant corporation counsel.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review denied 2-19-02.

   BROWN, J.

¶ 1. This case concerns the modernization of equipment at James Cape and Sons Co., a business that, among other things, crushes and recycles concrete, which is a nonconforming use under Racine County ordinances. Cape contends that its operation of the modernized crusher system only increases the frequency, intensity and volume of its recycling capabilities and presents no identifiable change in use. We agree with Cape's contention and reverse the order of summary judgment in favor of Racine County. We remand with directions that the trial court enter an order for summary judgment for Cape.

¶ 2. Cape is a road and utility construction business located in the town of Caledonia since the early 1960s. Its construction activities include highway projects, erosion control projects, underground sewer installation, water main construction and other general construction. In the course of its operations, Cape removes concrete from construction sites, stockpiles the material on its property and eventually reuses the concrete in future projects. This provides Cape with a competitive advantage in bidding for projects by reducing overhead and other operating expenses.

¶ 3. In 1970, the County enacted a zoning ordinance that prohibits recycling, stockpiling or crushing operations in the area of Cape's property. Cape continued its concrete salvaging activities as a legal nonconforming use. Cape utilized several methods to break down the concrete into smaller pieces for recycling. These methods included using dozer tracks to run over and crush larger chunks, use of a front-end loader to drop large pieces on top of one another, hydraulic hammers, and dropping frost balls from a crane.

¶ 4. In 1992, Cape acquired a portable concrete crusher to use in its recycling operations. After neighbors complained of the noise generated by the crusher, the County cited Cape for a zoning violation. Cape then petitioned the County to rezone a portion of its property to allow crushing. The County denied the petition and filed this lawsuit in 1998, requesting a court order prohibiting all of Cape's crushing and stockpiling activities. As an affirmative defense, Cape asserted that crushing is a legal nonconforming use that was in operation prior to enactment of the 1970 ordinance. Both parties moved for summary judgment. The trial court granted summary judgment to the County, holding that the crusher apparatus is an illegal expansion of use over the previous method of crushing by frost ball, and that such illegal expansion invalidated that entire nonconforming use. Cape asserts that the wrong party was granted summary judgment and seeks reversal.

¶ 5. In reviewing the grant or denial of a summary judgment motion, we are required to apply the standards set forth in Wis. Stat. § 802.08 (1999-2000) in the same manner as the trial court. Foresight, Inc. v. Babl, 211 Wis. 2d 599, 602, 565 N.W.2d 279 (Ct. App. 1997). Those standards have been recited numerous times; we need not repeat them here. Id. Whether a particular use is an identifiable change or expansion of a legal nonconforming use is a question of law that we review de novo. Id.

¶ 6. The parties agree that the outcome of this case is governed by Waukesha County v. Seitz, 140 Wis. 2d 111, 409 N.W.2d 403 (Ct. App. 1987) (Seitz I) and Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 522 N.W.2d 536 (Ct. App. 1994) (Seitz II). Seitz I concerned a marina owner who operated a lake resort providing cottage rentals, boat livery, and fuel and bait services. Seitz I, 140 Wis. 2d at 114. Subsequent to an ordinance that rendered Seitz's use nonconforming, he expanded the resort by enlarging his pier and docking more boats. Id. We rejected the County's argument that this development constituted an illegal expansion of a nonconforming use. We wrote: "If an increase in volume, intensity or frequency of use is coupled with some element of identifiable change or extension, the enlargement will invalidate a legal nonconforming use.... However, a mere increase in the volume, intensity or frequency of a nonconforming use is not sufficient to invalidate it." Id. at 117-18 (citations omitted). We noted that before the ordinance, Seitz dry-docked three to five boats whereas after the ordinance, he dry-docked fifty-four boats and wet-docked thirty-five boats. Id. at 114. Thus, Seitz engaged in the same activities after the ordinance as he did previously; he simply engaged in them on a larger scale. Id. at 121. On that basis, we held that the expansions in Seitz I were mere increases resulting from a change in the volume, intensity or frequency of the nonconforming use already existing. Id.

¶ 7. By the time Seitz II commenced, Seitz had added a retail store and a place for lounging and entertainment. Seitz II, 187 Wis. 2d at 20. He also engaged in boat sales. Id. We noted that the material issue was not whether these new uses were related to a marina, but rather, "what kind of marina enterprises existed at the time of the ordinances' enactment and have those marina enterprises changed." Id. at 27 n.3. We articulated the rule that an identifiable change occurs when the type of service provided changes or "[i]f what the business puts into the stream of commerce changes." Id. We then affirmed the jury's conclusion that the extensions since Seitz I represented an identifiable change in the type of services rendered and the products sold. Id. at 27. Thus, business activities that had once provided the enterprise with its "true resort and marina flavor," Seitz I, 140 Wis. 2d at 116, had undergone an identifiable change such that the enterprise became "a multi-faceted enterprise that happens to be on a lake and in a marina-like setting." Seitz II, 187 Wis. 2d at 27.

¶ 8. Cape argues that this is a Seitz I situation, that the increase in production of its salvaging operation by use of the crusher is an increase in frequency and intensity but does not change the character of the use. It asserts that an integral feature of its business has always been the reduction of large chunks of concrete into smaller pieces and that the crusher is an improvement to that operation. It emphasizes that the essential nature of the recycling is unchanged — Cape imports concrete only from its job sites, stockpiles it, breaks it down and then reuses the material in its own projects. This is still a single, albeit more efficient, enterprise, Cape urges, rather than a "multi-faceted enterprise" that is merely related to construction activities.

¶ 9. The County responds that the crusher is a new use because it produces gravel, which is a new product that Cape could not have made using other methods of breaking down concrete. The County also argues that the crusher is not a mere replacement or modernization of the frost ball because by Cape's admission, the frost ball may still be used. Finally, according to the County, modernization of a nonconforming use is contrary to the principle articulated by Wisconsin courts that the spirit of zoning is to restrict a nonconforming use and to eliminate such uses as speedily as possible. Seitz I, 140 Wis. 2d at 116.

¶ 10. We begin with the premise that Cape conducted breaking and recycling activities prior to enactment of the ordinance in 1970 and that this use of the property is a legal nonconforming use. Our task is to determine whether the change in the method of breaking down concrete on Cape's work site is an identifiable change in use. As we discuss below, we are persuaded that the crusher is an instrumentality that has expanded the frequency, intensity and volume of use but that the essential character of the use is unchanged.

¶ 11. We disagree with the County's argument that an identifiable change has occurred because the crusher produces gravel which is a new product in the stream of commerce. See Seitz II, 187 Wis. 2d at 27 n.3. The affidavits indicate that the crusher produces gravel, which is concrete reduced to approximately an inch and one-half in diameter, at a rate of 225 tons per hour. The frost ball, on the other hand, produces 300 to 400 tons per day and generates material that is irregular in size and shape. Furthermore, while a frost ball can produce a product six inches in diameter, it cannot economically break down concrete into gravel. Thus, we agree that at the time the ordinance was enacted, Cape's recycling operations did not produce gravel.

¶ 12. None of the affidavits the County offers, however, demonstrate that the gravel is a product that Cape puts into the stream of commerce. The gravel is simply produced and recycled into Cape's construction projects as its recycled materials always have been. We cannot conclude, therefore, that Cape's production of gravel for its own use is a change in the type of services offered or products sold. If the facts demonstrated that Cape had purchased concrete from other sources, broken it down into gravel and then sold it to outside customers, then we might conclude that an identifiable change in use had occurred. This scenario might indeed comprise a "multi-faceted enterprise" of buying and selling gravel in addition to Cape's construction activities. This is not the case presented to us, however. Cape's acquisition and use of the crusher allows it to accomplish in a more efficient manner a single enterprise in which it was engaged prior to enactment of the ordinance, namely, recycling its own concrete for the purpose of reducing overhead and operating expenses and to provide Cape with a competitive edge in its industry.

¶ 13. We also point out that the ordinance in this case does not prohibit the production of gravel; it prohibits crushing and stockpiling of concrete. Therefore, the County's focus on the product rather than the prohibited activity misses the mark. By comparison, in Seitz I the ordinance prohibited marinas and boat liveries. Seitz I, 140 Wis. 2d at 113 n.2. We focused our inquiry on whether Seitz conducted the same type of marina enterprises after the ordinance as he had before. We concluded that enlargement of the dry-docking and wet-docking facilities was simply an extension of what had gone on before the ordinance was effective. See Seitz II, 187 Wis. 2d at 27 n.3 (discussing our holding in Seitz I). Applying that analysis in this case, we look to see whether Cape's prohibited crushing activity is simply an extension of the crushing activity that went on before. We agree with Cape that prior to the 1970 ordinance, it was engaged in a similar recycling operation. The methods utilized were crude and incapable of producing a fine, regularly shaped product, but the overall process was the same: breaking down unusable chunks into smaller, recyclable pieces. With the crusher, put into use after 1970, Cape was able to break down the unusable chunks into a finer, more useful material. As in Seitz I, Cape was simply engaging in its pre-ordinance activity on a larger scale.

¶ 14. We also reject the County's argument that modernization of equipment is contrary to Wisconsin law. We firmly established in Seitz I that Wisconsin law protects expansion of a legal nonconforming use so long as the essential character of the use is not identifiably changed. Seitz I, 140 Wis. 2d at 121. Consistent with Seitz I, we now conclude that a change in the method or quantity of production of a nonconforming use is not an entirely new use when the original character of the use remains the same. This holding allows the operator of a nonconforming use to incorporate modern technology into his or her business without fear of losing that business. In this case, it allows Cape to innovate its outdated "Fred Flintstone" rock-breaking process with a mechanized production plant that produces gravel consistent with its intent to remove, stockpile and recycle its own concrete.

¶ 15. Having concluded in this particular case that a change in the method of production is not an identifiable change in use, we also reject the County's argument that continuing use of the frost ball by Cape invalidates the nonconforming use. As the facts in this case demonstrate, the older methods were not entirely obsolete; they were simply time consuming and costly for purposes of producing a finer product. Use of the frost ball or hydraulic hammer in tandem with the crusher allows Cape to recycle its used materials more efficiently. There is nothing in Seitz I or II that invalidates a legal nonconforming use based upon an operation's more efficient performance of such a use.

¶ 16. Finally, we recognize there may be circumstances where a more modern instrumentality would so drastically alter the nonconforming use as to render it a new and different use under the zoning ordinance. We are not faced with such circumstances in this instance. What we have here is a company that has increased its volume of production due to the greater efficiency of modernized equipment. The acquisition of that equipment is not a change in use in the manner that the addition of an entertainment lounge and retail store was a change in Seitz II.

¶ 17. Cape requests that we not only reverse the trial court's grant of summary judgment to the County, but also that we reverse the trial court's denial of Cape's motion for summary judgment. We grant the request. We are entitled to assess not only the trial court's grant of summary judgment to the County, but also its denial of summary judgment to Cape. See State v. Courtney E., 184 Wis. 2d 592, 598-99, 516 N.W.2d 422 (1994). As we said at the outset of this opinion, we do both de novo, in the same manner as the trial court. We reverse the trial court's judgment finding that the use of the crusher is an illegal expansion of the nonconforming use. We further reverse the trial court's denial of Cape's summary judgment motion asserting that the use of the crusher is a valid nonconforming use. We remand with directions that the trial court enter an order for summary judgment consistent with this opinion.

By the Court. — Judgment reversed and cause remanded with directions.

       William R. Cape, Christopher Cape and Warren R. Cape are partners doing business as Cape Bros. Realty and Equipment and as James Cape and Sons Co. We refer to all of these parties as "Cape."

       A frost ball, also known as a demolition ball, is made of iron, weighs between two and one-half to seven and one-half tons, and uses mechanical force to break concrete into smaller pieces.

       The crusher is a million dollar mechanized piece of equipment that, unlike other methods of crushing concrete, produces a small product of uniform shape.

       The judgment allowed Cape's continued use of the property for stockpiling.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       At oral argument before the trial court, the County argued first, that Cape had not established active and actual use prior to 1970, and second, that Cape had not established continuous use. See Wis. Stat. § 59.69(10). Failure to establish these elements would defeat Cape's legal nonconforming use defense. However, resolution of these issues requires factual findings that are not appropriate on motions for summary judgment. We therefore limit our review to the issues as the parties present them to us on appeal.