The intersection of access easement rights and timber rights presents an interesting question for attorneys practicing in rural areas.

Access easements often become overgrown with and blocked by trees and other vegetation, especially in wooded areas of northern Wisconsin. When this happens, both the benefited and burdened property owners may ask “what right does the easement holder have to cut timber on the burdened property?”

Unfortunately, this question does not have an easy answer, though Wisconsin’s statutes and case law do provide some guidance.

Timber Trespass

The unauthorized cutting of trees can give rise to both civil and criminal liability in Wisconsin. Commonly, this liability is civil in nature and comes in the form of a claim for timber trespass under Wis. Stat. section 26.09(2)(a).

This statute prohibits the unauthorized cutting, removal, or transportation of raw forest products in Wisconsin. In certain scenarios, liability can also be found under Wisconsin’s Timber Theft statute, Wis. Stat. section 26.05.

An easement holder may also subject themselves to criminal liability for receiving stolen property and theft pursuant to Wis. Stat. sections 943.34(1) and 943.20, respectively.

The Question of Authorization

A common theme in all sources of liability is that the cutting, transportation, and removal of the forest products must be unauthorized for liability to attach. Thus, the all-important question becomes “what actually is authorized, as far as cutting of timber, under the terms of the easement?”

In analyzing a party’s rights under a written easement, “[t]he primary source of the parties' intent [as to rights and obligations] is what is written within the four corners of the deed.”¹

In addition to the express language contained in an easement grant, the benefited parcel owner has the right to do what is reasonably necessary to enjoy the rights granted in a deed of easement, provided no undue burden is placed on the burdened property.²

However, the exercise of these rights must be limited in scope to those terms and purposes granted within the easement.³

Often the written easement is silent as to the benefited parties’ rights to cut or remove timber. In this situation, the benefited parcel owner must analyze what is reasonably necessary to enjoy the rights granted by the easement. Said differently, one must determine what the main purpose or intended use of the easement is, and then decide what is reasonably necessary to allow for that type of use.

For example, for an agricultural access easement, it may be reasonably necessary to clear cut the entirety of the easement area to allow passage of large farm equipment. But if the easement is a generic access easement that is primarily traveled on foot, such as to walk to a hunting stand, it would be unreasonable remove any trees that do not completely bar pedestrian access. Here, it may only be reasonably necessary to clear minimal brush obstructing the path.

Notice Is Key

When the easement is silent as to the right to cut timber within the easement area, extreme caution must be exercised. Clients wishing to cut trees in their easement should coordinate any cutting within the easement area with the burdened property owner. Where practical, notice should be given to the burdened property owner in advance and arrangements made to return any timber so removed to its proper owner.

In cases where a dispute exists as to whether the right to cut timber exists, it may be necessary to file a declaratory judgment action prior to the removal of any trees, to construe the parties’ respective rights.

While nobody wants to incur the costs associated with litigation, those costs are potentially significantly outweighed by the civil and criminal liability associated with the improper removal of timber from the burdened property.

Conclusion: Address Issues in the Written Easement Before Removal

Of course, most, if not all, of these issues can be avoided by adequately addressing the right to remove timber, within the easement area, in the written easement itself.

The nature and scope of easement rights, including the right to cut timber, is a fact intensive analysis which may not always provide an obvious answer.

These rights should be clarified prior to the removal of any trees within the easement area, as significant liability can attach for improper cutting and removal of timber.

This article was originally published on the State Bar of Wisconsin’s Solo/Small Firm & General Practice Blog of the Solo/Small Firm & General Practice Section. Visit the State Bar sections or the Solo/Small Firm & General Practice Section web pages to learn more about the benefits of section membership.

Endnotes

¹In re Garza, 2017 WI 35, ¶ 24, 374 Wis. 2d 555, 567, 893 N.W.2d 1, 6 (citing Konneker v. Romano, 2010 WI 65, ¶26, 326 Wis.2d 268, 785 N.W.2d 432.

²In re Garza, 2017 WI 35, ¶ 43.

³In re Garza, 2017 WI 35, ¶ 25 (quoting Stoesser v. Shore Drive P’ship, 172 Wis.2d 660, 668, 494 N.W.2d 204 (1993)).