Arnold v. Robbins

• Decision Date: 13 March 1997
• Docket Number: No. 96-0570,96-0570
• Citation: 209 Wis.2d 428,563 N.W.2d 178
• Court: Wisconsin Court of Appeals
• Parties: Robin H. ARNOLD, 1 Plaintiff-Appellant, v. John C. ROBBINS, Jr., and Linda Robbins, Defendants-Respondents.

Page 178

563 N.W.2d 178

209 Wis.2d 428

Robin H. ARNOLD, ¹ Plaintiff-Appellant, v. John C. ROBBINS, Jr., and Linda Robbins, Defendants-Respondents.

No. 96-0570.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 12, 1996.

Opinion Released March 13, 1997.

Opinion Filed March 13, 1997.

For the plaintiff-appellant the cause was submitted on the briefs of Duane M. Jorgenson of Jorgenson Law Office of Darlington.

For the defendants-respondents the cause was submitted on the brief of Sheila Stuart Kelley of Kopp, McKichan, Geyer and Skemp of Platteville.

Before EICH, C.J., and VERGERONT and ROGGENSACK, JJ.

ROGGENSACK, Judge.

Robin Arnold appeals a judgment declaring the boundary line between her property and that of her neighbors, John and Linda Robbins, to be one marked by a common grantor, rather than the lot line established by the recorded plat map. Because we conclude that the facts found by the trial court are insufficient to satisfy the common grantor exception to the doctrine of acquiescence, which requires that the lots be purchased pursuant to a common reference line, we reverse and remand with directions to enter judgment consistent with this opinion.

BACKGROUND

The parties in this case own Lots 4 and 5 in the unincorporated village of New Diggings. Both lots had been owned by Robert and Rebecca Seymour at one point in their chains of title. The Seymours conveyed Lot 4 to the defendants John and Linda Robbins in 1983, and Lot 5 to Robert and Betty Thompson in 1984. Ten years later, the Thompsons sold Lot 5 to the plaintiff , Robin Arnold. Each conveyance was made pursuant to a warranty deed, which described the property according to lot numbers in the recorded plat for Cothern's Addition to the Village of New Diggings.

In 1978, when the Seymours owned Lot 4, but had not yet purchased Lot 5, they drilled a well on what they mistakenly believed to be a part of Lot 4. When they sold Lot 4 to the Robbins, Robert Seymour told them that the property line ran down the middle of a 500 gallon propane tank, which then stood on two concrete pads. Seymour also specifically pointed out the well and explained that it was about three feet within the Lot 4 boundary.

Later, when the Seymours sold Lot 5 to the Thompsons, they did not show or describe any boundary line to them. The Seymours' deed to the Thompsons describes the property by lot number according to the recorded plat. Two months after the Thompsons purchased Lot 5, they had the property surveyed, and discovered that the well was located 1.25 feet within Lot 5. They brought their apparent ownership of the well to the Robbins' attention and talked about a well agreement, but none was made.

When the Thompsons sold to Arnold, they explained the boundary dispute to her before she purchased Lot 5. After her purchase, Arnold initiated this action, seeking declaratory judgment that she held good title to all the land in Lot 5, as described in the recorded plat map for Cothern's Addition to the Village of New Diggings. The Robbins raised the doctrine of acquiescence as an affirmative defense, and the trial court found in their favor.

DISCUSSION

Standard of Review.

We will not disturb the trial court's findings of the representations made during the course of a sale, unless they are clearly erroneous. Section 805.17(2), STATS.; see also Beasley v. Konczal, 87 Wis.2d 233, 235, 275 N.W.2d 634, 635 (1979). However, whether established facts satisfy a legal standard, such as whether they are sufficient to invoke the doctrine of acquiescence, is a question of law which this court reviews de novo. See Janesville Community Day Care Center, Inc. v. Spoden, 126 Wis.2d 231, 237, 376 N.W.2d 78, 81 (Ct.App.1985).

Acquiescence.

The doctrine of acquiescence allows land to be acquired by adverse possession, without the usual adverse intent, when the true owner has acquiesced in another's possession for a period of twenty years. Buza v. Wojtalewicz, 48 Wis.2d 557, 563, 180 N.W.2d 556, 559 (1970). However, there is well-settled exception to the requirement that the true owner acquiesce for twenty years which occurs when:

[A]djoining owners take conveyances from a common grantor which describe the premises conveyed by lot numbers, but such grantees have purchased with reference to a boundary line then marked on the ground, such location of the boundary line so established by the common grantor is binding upon the original grantees and all persons claiming under them, irrespective of the length of time which has elapsed thereafter.

Thiel v. Damrau, 268 Wis. 76, 81, 66 N.W.2d 747, 750 (1954). Once the facts establishing acquiescence, or purchase from a common grantor by the use of a common boundary reference, are proven, the true owner is estopped from claiming title to the disputed land. See Buza at 567, 180 N.W.2d at 561.

It is undisputed that the land at issue has been adversely occupied for less than twenty years. There is also no dispute that the parties in this case own adjoining lots that at one point in time had a common owner. The issues raised are, first, whether improvements such as a well or cement slabs, on which a propane tank once sat, may qualify as a boundary "then marked on the ground," and second, whether a grantee may be said to have "purchased with reference" to a "marked" boundary when he had seen the property prior to purchase, but the grantor did not point out the landmarks, which it is now maintained, set the true boundary.

Arnold argues that a boundary line can be "marked" only by survey stakes for common reference purposes, limiting Thiel to its facts. However, we decline...