(concurring ). I write separately on two issues. First, I write about my understanding of the ramifications of dual motions for summary judgment. Next, I question the majority's treatment of the Millens' argument that this easement is a nonconforming use.
We face bilateral summary judgment motions. The majority thus cites the rule that this is "the equivalent of a stipulation of facts" which permits us (and the trial court) to move right to the legal issues. Majority op. at 680-81.
Because the parties did not dispute the facts in this case, the majority correctly revealed the appropriate standard in this case. Nonetheless, I wish to emphasize that bilateral summary judgment motions do not always imply that the parties are stipulating to the facts. See Stone v. Seeber, 155 Wis. 2d 275, 278, 455 N.W.2d 627, 629 (Ct. App. 1990). A trial court, or this court, should not automatically conclude that the parties have stipulated to all the facts when each has filed for summary judgment. Of course, by moving for summary judgment, each party implicitly attests to its theory of the facts. Nonetheless, each party may still contest the factual allegations revealed in the opposing party's motion. See id. Therefore, before a trial court, or this court, can safely conclude that no facts are in dispute in these circumstances, the court must independently verify that no material issue *690of fact remains to be resolved. See Grotelueschen v. American Family Mut. Ins. Co., 171 Wis. 2d 437, 462, 463 n.9, 492 N.W.2d 131, 140-41, 141 (1992) (Abrahamson, J., dissenting) (collecting cases). I do not share the opinion, advocated by some, that Wisconsin case law allows trial by affidavit when both parties move for summary judgment. That view contradicts § 802.08, Stats.
I suppose the law does not prohibit the parties from disagreeing as to the facts but agreeing that the trial court may make findings of fact based upon competing affidavits without benefit of a trial. Although I cannot conceive of a good lawyer ever wanting to do such a thing, if the parties want the trial court to make factual findings without the benefit of the trial court observing the demeanor of the witnesses, that would be their choice. However, the parties should explicitly state their choice as part of a stipulation made in open court and approved by the court. Under no circumstances, however, should a party be held to have waived a trial where facts are in dispute simply because that party moves for summary judgment and the opposing party has also so moved. Such a blanket rule makes absolutely no sense, in logic or in law.
My second concern lies with the answer to the Millens' claim that the easement was a "nonconforming pyramiding use." Majority op. at 683.1 agree with the ultimate decision to reject this argument, but I would have followed a shorter, straighter path to get there.
Instead of running through the analysis of whether the Millens had met their burden of showing that this nonconforming use had not been properly maintained, see majority op. at 685-86,1 would cut the Millens off with the primary question of whether an *691easement can be a nonconforming use. Since I believe that an easement can never be a nonconforming use as a matter of law, I would have simply ended the analysis at that point.
In their briefs, the Millens do address this issue. They contend that the county ordinance's definition of an "accessory use" encompasses this type of easement. Waukesha County, Wis, Shoreland and Floodland Protection Ordinance, §2.02(81). They specifically argue that this easement is an "accessory use" because it is "subordinate to and customarily incident to the permitted principal use of the property." Id.
Their analysis nonetheless presupposes that an easement is a "use" of land. This court, however, has defined an easement as a "permanent interest in another's land." Krepel v. Darnell, 165 Wis. 2d 235, 244, 477 N.W.2d 333, 337 (Ct. App. 1991) (emphasis added). I understand that this "interest" provides the owner with the "right to a limited use of the land." See Stoesser v. Shore Drive Partnership, 172 Wis. 2d 660, 667, 494 N.W.2d 204, 207 (1993). But what a person "uses" an easement for does not provide an answer to what the legal definition of an easement is.
Here, Thomas presumably uses this easement to walk down to the pier that she has installed on Beaver Lake. However, showing that her use of the easement violates the county's rule against pyramiding has no bearing on the analysis of whether what she is walking on is a valid interest in land. Accordingly, I would dismiss the Millens' attempt to apply those principles applicable to nonconforming uses in the analysis of whether this easement is valid.
I acknowledge that this distinction between a "use" of land and an "interest" in land is subtle. Still, I believe that it is supported by the case law and *692provides the cleanest and surest answer to this dispute.