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POVOLNY v. TOTZKE

No. 02-3011.

266 Wis.2d 852 (2003)

2003 WI App 184

668 N.W.2d 834

James M. POVOLNY and Deborah A. Povolny, Plaintiffs-Appellants, v. James B. TOTZKE, Dawn M. Totzke, Bremer Bank National Association, Fleet Mortgage Corporation, Town of Cady, and All Other Persons Concerned, Defendants-Respondents.

Court of Appeals of Wisconsin.

Decided July 29, 2003.

Attorney(s) appearing for the Case

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thomas J. Basting, Jr., Jack Y. Perry, and Briggs and Morgan, P.A., of Minneapolis, Minnesota.

On behalf of the defendants-respondents, the cause was submitted on the brief of Catherine R. Munkittrick and Rodli, Beskar, Boles & Krueger, S.C., of River Falls.

On behalf of defendant-respondent Town of Cady, the cause was submitted on the brief of Robert A. Parsons, Steven B. Goff, and Bye, Goff & Rohde, Ltd., of River Falls.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. HOOVER, P.J.

James and Deborah Povolny appeal a judgment that held the town road, over which their easement by necessity crosses, had been abandoned. As a result of the judgment, the road is discontinued and therefore governed by the easement, which is limited to personal and agricultural uses. The Povolnys contend that the road has been continuously used. Thus, it has not been entirely abandoned and cannot be deemed discontinued. We disagree and affirm...

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