COURT OF APPEALS

DECISION

DATED AND FILED

May 12, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP2023 Cir. Ct. No. 2017CV505

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

LARRY A. WENDTLAND AND JANICE L. WENDTLAND,

 PLAINTIFFS-RESPONDENTS,

 V.

DAVID J. FRAHM, SR. AND CONSTANCE J. FRAHM,

 DEFENDANTS-APPELLANTS,

DAVID JOSEPH FRAHM, SR. & CONSTANCE JANE FRAHM REVOCABLE 

TRUST, ROGER ROSS AND RICHARD ROSS,

 DEFENDANTS.

APPEAL from a judgment of the circuit court for Marathon County: 

MICHAEL MORAN, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, JJ.
No. 2018AP2023

2

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

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

¶1 PER CURIAM. David J. Frahm, Sr., and Constance J. Frahm (the 

Frahms) appeal from a judgment determining the location and width of a 

right-of-way easement. The Frahms also appeal from an award of double costs 

stemming from their refusal of a statutory offer of settlement. We affirm. 

BACKGROUND

¶2 In 1958, a perpetual easement was recorded granting a right of way 

“across” forty acres in the town of Rib Falls. Larry and Janice Wendtland 

purchased the original forty acres (the servient land) in 1991—but in 2006 they 

sold the south 10.57 acres to adjacent farmers Roger and Richard Ross. The 

David Joseph Frahm, Sr. and Constance Jane Frahm Revocable Trust (the Trust)

purchased the adjacent land east of the forty acres (the Frahm Trust property), 

which benefitted from the easement. The Frahms are trustees of the Trust. The 

Frahm Trust property was previously owned by Tigerton Lumber Company, 

which utilized the right-of-way easement to transport logs across the forty acres to 

an adjacent highway to the west side of the forty acres. 

¶3 A dispute arose when the Wendtlands were unable to complete the 

sale of their property to a third party who intended to construct a home on their

servient land. The Wendtlands commenced the present lawsuit alleging that the 

Frahms claimed the right-of-way easement “covers every square inch of the 

Original 40 Acres.” The Wendtlands sought a declaration of interest in property,
No. 2018AP2023

3

pursuant to WIS. STAT. ch. 841 (2017-18),

1

to establish the location and width of 

the easement. The complaint alleged the northern two-thirds of the servient forty 

acres had a significant wetland rendering a right of way impossible, meaning the 

right of way had to be south of the wetland. The complaint also alleged the only 

use of the right of way during the Wendtlands’ ownership of the property “has

been near the south boundary line ... where the Right-Of-Way Easement properly 

was established and exists.” The Wendtlands sought a declaration that the 

right-of-way easement “is the south 1 1⁄2 rods wide of [the original 40 acres,]

extending from [the highway] to [the Frahm Trust property].” 

¶4 The Frahms and the Trust moved for summary judgment, arguing 

the easement was unambiguous, and it provided them with unlimited access 

throughout the entire servient forty acres. The circuit court denied the motion in a 

written decision. The court stated:

This court finds the easement is ambiguous and vague. The 

language really doesn’t give a clear description of the 

easement. The words right-of-way across [are] overly 

broad in this fact situation and is not clear in regard to the 

description according to my review of the document. 

 ....

[T]he easement as written makes essentially the entire 40 

acre parcel servient rendering it unusable ... or able to be 

developed in any way ....

¶5 The circuit court subsequently conducted a bench trial and heard 

evidence to determine the location and width of the right-of-way easement. The 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 
No. 2018AP2023

4

Wendtlands testified that the “south 40 line” was the highest land in the original 

forty acres; that it would be the best and easiest place to put an easement road for 

access from the highway straight to the Frahm Trust property; and that the 

southern boundary had been used in the past for logging. Roger Ross testified at 

trial in the Wendtlands’ case-in-chief, and he agreed with the Wendtlands that the 

location of the easement should follow the south boundary of the forty acres:

Q: And you’ve heard the Wendtlands testify. Would you 

agree that within this 40 acres, the highest ground and best 

possible ground for an easement would be along the south 

40 line of that 40 acres?

A: Yes, that’s most logical.

Q: No wetland there?

A: No.

Q: No creek?

A: No.

Q: Good, high, firm ground?

A: Yes.

Q: Easy to put a road in there?

A: Yes.[2]

¶6 Following the trial, the circuit court issued an oral decision. The 

court stated:

I have to look at it from a perspective of what is fair to 

everyone? That’s what equity means. What’s fair, and this 

Court has those equitable powers to do that, and what is 

 

2

 Roger Ross further testified that during the period of his ownership of land within the 

original forty acres, he had never witnessed the Frahms or any members of the public cross any 

area of the property to gain access to the Frahm Trust property. 
No. 2018AP2023

5

reasonable and suitable and convenient to all parties. 

That’s really what we’re looking at here, and that’s what 

the law calls us to do.

 ....

I want to make sure that Mr. Frahm has the ability to use 

his property as he sees and have access to it. I mean, that’s 

really what we’re here to do. I want him to have full access 

to his property and be able to use it in any way he wishes to 

do so, and that would, in my understanding, be hunting, 

recreation. It would also be logging. ... I want it to be 

convenient and reasonable for him to do that.

At the same time, I want it to be reasonable and convenient 

for the Wendtlands if they wish to sell this property and to 

have their – what I would say enjoyment of the use of their 

property and not be unreasonably interfered with .... 

So I have to weigh those different things ....

¶7 The circuit court determined the right-of-way easement would be 

two rods wide and follow the southern edge of the forty acres from the highway to 

the Frahm Trust property.

3

 The court reasoned:

I think that gives everybody the absolute best ingress and 

egress to the property. In fact, whatever has been logged 

before, it’s always been logged down through that corner, 

and right out even south of there through the use of a road

....

If we’re going to log this property and we’re going to run 

logs across what I would say are two-thirds wetlands to get 

up to a dry area in the corner, I can’t see a logging 

company even considering that as something they would 

do. ... It makes no sense to me. 

¶8 The circuit court also found that an easement across the southern 

border of the original forty acres would not decrease the value of the forty acres. 

 

3

 Two rods is thirty-three feet. 
No. 2018AP2023

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Rather, the court stated “it probably enhances the value of the property because 

there would be a nice road that is going to be 2 rods wide.”

¶9 Following the circuit court’s decision on the location and width of 

the easement, a dispute arose over the bill of costs. Prior to trial, the Wendtlands 

had served a written statutory offer of settlement upon the Frahms, individually, 

and upon the Trust, offering to locate an easement two rods and one-inch wide 

along the southern boundary of the original forty acres. Following the court’s 

ruling on the easement, the Wendtlands sought a double costs award because the 

Wendtlands’ trial result was more favorable than the statutory offer. A hearing 

was held following an objection to costs, and the court determined that double 

costs were proper against the Frahms and the Trust. The Frahms now appeal.

DISCUSSION

¶10 Whether a deed establishing an easement is ambiguous is a question 

of law we decide independently. Eckendorf v. Austin, 2000 WI App 219, ¶7, 239 

Wis. 2d 69, 619 N.W.2d 129. A circuit court has equitable powers to determine 

the location and width of an easement. See Atkinson v. Mentzel, 211 Wis. 2d 628, 

641, 566 N.W.2d 158 (1997). If the location is not expressly defined, the right of 

easement cannot be exercised over the whole of the land. Id. Rather, a reasonably 

convenient and suitable way is presumed to have been intended. In that regard, a 

circuit court may look to extrinsic evidence, “and the practical construction given 

to it by the acts of the parties is of great force in determining its construction.” See 

Berg v. Ziel, 2015 WI App 72, ¶¶13-14, 365 Wis. 2d 131, 870 N.W.2d 666

(citation omitted). The test is whether the owner of the dominant estate can 

reasonably use the servient property as intended. Atkinson, 211 Wis. 2d at 645-

46. Stated differently, the easement must be interpreted so as to accomplish its 
No. 2018AP2023

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purpose while bearing in mind the reasonable convenience of both parties. Id. at 

646. An equitable determination will not be disturbed unless it is contrary to the 

great weight and clear preponderance of the evidence. In re Acme Brass & Metal 

Works, 225 Wis. 74, 78, 272 N.W. 356 (1937). 

¶11 The Frahms argue “[t]he description of the easement encompasses 

the entire subservient [sic] estate and is not ambiguous.” We need not reach the 

merits of this issue, however, because a party cannot appeal from a judgment or 

order unless they are aggrieved by it. See La Crosse Trust Co. v. Bluske, 99 

Wis. 2d 427, 428, 299 N.W.2d 302 (Ct. App. 1980). The Frahms, individually,

did not own the property benefitted by the right-of-way easement. It is undisputed 

that the Trust owned the dominant estate benefitted by the easement, and the Trust 

did not appeal the circuit court’s judgment, even though it was a party below. The 

notice of appeal confirms that only “David J. Frahm and Constance J. Frahm”

appealed from the judgment. The Frahms, individually, were not aggrieved by the 

court’s determination of the location and width of the right-of-way easement. 

Because the Trust did not appeal, no aggrieved party appealed from the court’s 

determination regarding the right-of-way easement. 

¶12 The Frahms contend that “as both the beneficiaries and the trustees 

of [the Frahm Trust], the Frahms are personally impacted and aggrieved by any 

detrimental or adverse effect on the [T]rust.” In this regard, the Frahms cite 

generally to In re Hunt’s Will, 122 Wis. 460, 462-63, 100 N.W. 874 (1904). That 

case involved a person named as a legatee under an earlier will, which “might be 

valid if that [will] under consideration were rejected.” Id. at 463. In the present 

case, there is nothing in the record on appeal establishing that the Frahms are 

either “beneficiaries” or legatees. In re Hunt’s Will is thus inapplicable.
No. 2018AP2023

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¶13 The Frahms also cite generally to McKenney v. Minahan, 119 Wis. 

651, 97 N.W. 489 (1903). The Frahms argue that “as trustees and as proper 

representatives of the [T]rust that is adversely impacted by the decision, both of 

the Frahms are considered an ‘aggrieved party.’” In McKenney, the court stated:

It was the duty of the administrator to preserve the property 

of the estate, so far as he legally could, for transmission to 

the heirs of the deceased. In the settlement of claims 

against the estate he stood for them. Any injury to their 

interests, in legal effect, was a grievance to him within the 

meaning of the appeal statute. 

Id. at 654.

¶14 The Frahms have not developed any argument explaining what 

interests the Frahms represented, individually, that were equivalent to the 

relationship between an administrator of an estate and its beneficiaries. Nor have 

the Frahms explained how—or to what extent—they are “proper representatives of 

the [T]rust.” The Frahms similarly fail to explain what interests they represented

in the circuit court that would differ from the interests represented by the Trust 

itself. Here, the Trust itself was named and appeared as a party in the circuit court 

proceedings—and the Trust, as the easement’s owner, was the party that was 

aggrieved by the court’s determination of the location and width of the 

right-of-way easement. Accordingly, the Trust was, and remains, the aggrieved 

party regarding the location and width of the easement, but it was apparently

satisfied with that decision and did not choose to appeal. 

¶15 The Frahms thus do not provide citation to any legal authority on 

point. Absent any applicable legal authority cited by the Frahms, we have no basis 

to alter our conclusion that the Frahms, individually, were not aggrieved by the 

circuit court’s determination of the location and width of the right-of-way 
No. 2018AP2023

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easement. Because the Trust did not appeal, there is no aggrieved party that

appealed from the circuit court judgment. 

¶16 We turn now to the issue of double costs. We reach the merits of the 

Frahms’ appeal from the double costs issue because on that issue, the Frahms, 

individually, have standing irrespective of the Trust.4 That standing exists because 

double costs were assessed against the Frahms, individually, as well as against the 

Trust. Accordingly, as to the issue of double costs, the Frahms are aggrieved 

parties. 

¶17 On the merits of the double costs issue, the Frahms raise several 

issues. The Frahms contend double costs were improper because the circuit 

court’s determination of the location and width of the right-of-way easement was 

not more favorable to the Wendtlands than their offer of settlement. The Frahms 

contend that the language of WIS. STAT. § 807.01(3) allows an offer of settlement 

to seek three categories of relief: “a plaintiff’s offer may demand payment of a 

sum of money, the transfer of property, or other specified relief sought in the 

action.” According to the Frahms: “Historically, courts compare the monetary 

amounts to determine whether a result is more favorable or not, however the 

judgment in this case does not involve a monetary amount.” This argument is 

meritless. 

¶18 WISCONSIN STAT. § 807.01(3) provides: “If the offer of settlement 

is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff 

 

4

 Again, because the Trust did not appeal, we do not address the Trust’s liability for 

double costs; we only address the issue of liability for double costs in regard to the Frahms, 

individually.
No. 2018AP2023

10

shall recover double the amount of the taxable costs.” (Emphasis added.) The 

Wendtlands’ offer of settlement was to locate an easement two rods and one-inch 

wide along the southern boundary of the original forty acres. The circuit court 

determined the easement was two rods wide along the southern boundary of the 

original forty acres. The Wendtlands recovered a more favorable judgment

because the court located the easement as they sought, rather than across the entire 

forty acre servient estate, and it was narrower than the offer of settlement by one 

inch. Whether a recovery is more favorable is not limited by § 807.01 to monetary 

amounts.

¶19 The Frahms also argue:

Although the trial court order granted the easement as two 

rods wide and the settlement offered two rods plus one

inch, the more favorable outcome should not be measured 

by the size of the granted easement. Rather, the 

favorability should be measured in accordance with the 

purpose of the statute: finality. In the event that the 

Frahms did accept the settlement offer, there would not be 

finality because post-litigation expenses and issues could 

have arisen such as an objection by Richard Ross or Roger 

Ross. 

¶20 This argument is speculative as to what could have happened but did 

not occur regarding the Rosses. Here, a statutory offer of settlement was served 

upon the Frahms, individually, as well as upon the Trust, through its attorney. It is 

undisputed that the statutory offer of settlement was not accepted by the Frahms,

individually, or by the Trust. The circuit court properly awarded double the 

amount of taxable costs in the amount of $3,003.36 against the Frahms and the 

Trust, as the Wendtlands recovered a more favorable judgment. 

¶21 Costs were not awarded against Roger Ross or Richard Ross. 

Although Roger Ross and Richard Ross admitted service of the summons and 
No. 2018AP2023

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complaint, they did not enter an appearance, file an answer to the complaint or 

other responsive pleading, file cross-claims for indemnification, or otherwise file 

any pleadings in the litigation. The Rosses are thus bound by the circuit court’s 

determination of the location and width of the easement, and they forfeited the 

right to contest the matter or to object to costs awarded pursuant to a declined 

statutory settlement offer served upon the Frahms, individually, and the Trust. See 

State v. Ndina, 2009 WI 21, ¶¶29-30, 315 Wis. 2d 653, 761 N.W.2d 612 (stating 

that forfeiture is the failure to make the timely assertion of a right). 

¶22 Nevertheless, the Frahms argue that “[a]t the time the settlement 

offer was served upon the Defendants, there was no default judgment on the 

record entered against Roger Ross or Richard Ross.” This argument is 

undeveloped, and the Frahms provide no citation to legal authority in support of it. 

We shall therefore not further address it. See State v. Pettit, 171 Wis. 2d 627, 

646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶23 The arguments discussed above are the only arguments the Frahms 

raised on appeal regarding double costs. Significantly, the Frahms do not develop 

any argument regarding whether they should have liability for costs irrespective of

the Trust. The Frahms also fail to develop an argument that they cannot be 

responsible for double costs because the Trust owned the dominant property, and 

therefore the Frahms, individually, could not have accepted the statutory offer of 

settlement to locate an easement two rods and one-inch wide along the southern 

boundary of the burdened property. 

¶24 In this regard, we note that the complaint alleged at paragraph three 

that the Trust was the titled owner of the property benefitted by the easement. 

Attorney Dejan Adzic filed a notice of retainer in the circuit court representing 
No. 2018AP2023

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both the Frahms, as well as the Trust. Attorney Adzic also answered the 

complaint on behalf of both the Frahms and the Trust, and the answer admitted the 

allegations of paragraph three. Despite the stipulated fact that the Trust owned the 

property benefitted by the easement, the Frahms, individually, never moved for 

dismissal from the lawsuit. The Frahms remained parties in the case, and they 

were still defendants when the circuit court entered judgment determining the 

location and width of the right-of-way easement. The Wendtlands had made 

statutory offers of settlement, served upon “David J. Frahm, Sr., Constance J. 

Frahm and David Joseph Frahm, Sr. and Constance Jane Frahm Revocable Trust,”

through their joint attorney Dejan Adzic. The offers of settlement were not 

accepted, the Wendtlands recovered a more favorable judgment, and the court 

awarded double costs against the Frahms, individually, and the Trust. 

¶25 To the extent any issues may exist regarding the legal differences 

between the Frahms and the Trust and the liability of the Frahms for costs

irrespective of the Trust, the Frahms failed to raise the arguments on appeal. We 

will not abandon our neutrality to develop a party’s arguments. See M.C.I., Inc. v. 

Elbin, 146 Wis. 2d 239, 244-45, 430 N.W.2d 366 (Ct. App. 1988). 

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.