477 N.W.2d 333 (Wis.App. 1991), 91-0140, Matter of Parcel of Land Located on Geneva Lake, Town of Linn, Walworth County
|Citation:||477 N.W.2d 333, 165 Wis.2d 235|
|Opinion Judge:||The opinion of the court was delivered by: Nettesheim|
|Party Name:||In re the Matter of a PARCEL OF LAND LOCATED ON GENEVA LAKE, TOWN OF LINN, WALWORTH COUNTY, Wi. Lou KREPEL and Linda Krepel, his wife, Petitioners-Appellants, v. Esther DARNELL, a single person, Albert Steffen and Shirley Steffen, his wife, and Susie Tschurtz, a single person, Respondents-Respondents, William Snellgrove and Marjorie Snellgrove, his|
|Attorney:||On behalf of the defendants-appellants, the cause was submitted on the briefs of Cheryl A. Mick of Gray & Mick of Lake Geneva.|
|Case Date:||October 23, 1991|
|Court:||Court of Appeals of Wisconsin|
Submitted on Briefs Aug. 9, 1991.
Opinion Released Oct. 23, 1991.
[165 Wis.2d 237] Cheryl A. Mick of Gray & Mick of Lake Geneva, for defendants-appellants.
David Allen Rasmussen of Darnell and Tschurtz, Walworth, for plaintiff-respondent.
Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.
NETTESHEIM, Presiding Judge.
In this property rights case, the circuit court dismissed at summary judgment Lou and Linda Krepel's action for declaration of their claimed easement/access rights in property owned by Esther Darnell on Geneva Lake in Walworth county. The court dismissed the action because the Krepels based their easement claim upon conveyances outside the chain of title to their
property. The circuit court also denied the Krepels' motion for reconsideration.
We conclude that the Krepels' easement claim does appear in their chain of title. Alternatively, we conclude that the Krepels' right to maintain this action is not governed by the chain of title to their property. Therefore,[165 Wis.2d 238] we reverse the orders and remand for further proceedings.
The Krepels own one of seven properties along Shadow Lane, a roadway which is bounded by Geneva Lake to the east and South Shore Drive to the west in the Town of Linn, Walworth county. The seven lots were originally part of a single, long, rectangular tract of land which was owned in fee by a husband and wife, Jerome and Emma Ingalls. The seven lots were created as the original tract was divided and the lots then sold at various times between 1922 and 1959. Of these seven properties, only one--Lot 6, a parcel now owned by respondent Darnell--fronts on Geneva Lake. The remaining six lots are off the water.
Although we ultimately decide this case on basic principles governing the law of easements, we, at the admitted risk of confusion, find it necessary to recount in some detail the sequence of historical transactions germane to this case. For convenience, we will refer to the lots by the last digits of their tax parcel numbers.
Jerome and Emma Ingalls owned a rectangular parcel of land lying adjacent to Geneva Lake. In 1922, the Ingalls carved out from their land an off-water parcel, Lot 6A, and conveyed it to their daughter, Edna Fassbinder. This lot is now owned by the Krepels, the petitioners-appellants in this declaratory action. This deed contains no language creating or granting an easement.
In 1926, the Ingalls created and conveyed another parcel, Lot 5, to Walter and Nellie Snell. This deed, however, contained a grant of easement to the Snells and their "successors and assigns" for purposes of access to Geneva Lake. This grant was expressed as "a covenant [165 Wis.2d 239] running with the land being a right appurtenant to the land herein conveyed...."
Thereafter, Jerome Ingalls died and, pursuant to his will and the 1928 final judgment in the estate proceedings, Jerome's interest in the remaining property was awarded to his wife Emma and his daughter Edna Fassbinder, who already owned Lot 6A pursuant to the 1922 transaction we have already described.
In 1929, Emma and Edna executed mutual conveyances to each other concerning this inherited property. 1 By these reciprocal transactions, Edna and Emma created Lot 4 and Edna deeded her interest in Lot 4 to Emma. In return, Emma deeded her interest in the inherited parcel to Edna. This conveyance contained the following easement language which is important to this case:
As part consideration for the execution of this deed, it is covenanted and agreed that the grantee, her heirs, successors and assigns, shall receive and exercise certain rights which it is agreed are appurtenant to the premises herein conveyed, which rights shall consist of an unrestricted use in common with other lot owners in the former Jerome Ingalls estate of a parcel of lake frontage constituting a tract One Hundred (100) feet in width East and West and varying in its North and South measurement from Ninety (90) feet on the East to Seventy (70) feet on the West. Said tract of lake frontage is to be kept free and clear [165 Wis.2d 240] of all buildings or other obstructions of any kind and is to be used solely for park, beach and docking purposes by purchasers of lots in the Jerome Ingalls estate, their successors and assigns. [Emphasis added.]
Thus, following this transaction, Emma owned Lot 4, the Snells owned Lot 5, and Edna owned Lot 6A (the Krepels' present lot) plus the remainder of the original parcel. Also, following this transaction, the inherited parcel was burdened with an easement.
In 1950, Edna conveyed Lot 6A to Harry and Frances Banks by warranty deed. This deed is silent as to any easement. However, in 1952, Edna executed a corrective deed to the Bankses, "reconveying" Lot 6A. By this conveyance Edna also granted a "personal easement" to use her lakefront property to the Bankses and "their heirs so long as the [Bankses] or their heirs personally own" Lot 6A. Also important to this case is that this...
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