Beasley v. Konczal
| Decision Date | 30 January 1979 |
| Docket Number | No. 76-178,76-178 |
| Citation | 87 Wis.2d 233,275 N.W.2d 634 |
| Parties | John BEASLEY, Appellant, v. James J. KONCZAL, and Geraldine M. Konczal, his wife, Respondents. |
| Court | Wisconsin Supreme Court |
Michael P. Lehner and Lisheron Law Office, Princeton, on brief, for appellant.
Edward J. Hart and Hart & Hart, Waupaca, on brief, for respondents.
This is an appeal from a judgment entered June 21, 1976 by the county court for Waushara County, the Honorable David C. Willis, presiding, determining the location of the north line of the southwest quarter of the southeast quarter of Section 25, Township 19 North, Range 9 East was established by the May 7, 1973 Palmer survey adversely to the plaintiff, John Beasley. The plaintiff appeals.
The question is whether the finding of the trial court as to the correct location of the north boundary line of the southwest quarter of the southeast quarter of Section 25, Township 19 North, Range 9 East is against the great weight and clear preponderance of the evidence. The land is in the Town of Deerfield, Waushara County.
Exhibits to follow.
Fig. 1
Figure 1 is based on the plat map of Karin Shores. The dark portion is the plat of Karin Shores. The unshaded triangle at the left end of the plat is the property claimed by John Beasley. The Defendants, James T. Konczal and Geraldine M. Konczal, his wife own land south of the triangle shown by hatch lines.
The deed to Mr. Beasley described the land conveyed to him as:
The deed to the Konczals described their property in Section 25 as:
John Beasley, the plaintiff and appellant in this case, initiated this action for trespass in October, 1973 when the defendants, Mr. and Mrs. James J. Konczal, began to use certain real estate fronting on White River Mill Pond which Beasley claimed he owned.
Before 1955, Beasley's parcel was owned by the White River Power Company as a part of the north half of the southeast quarter of section 25. The White River runs across the north 80 acres. A mill dam on the east line of the 80 creates an artificial body of water known as the White River Mill Pond, also referred to as the White River Lake. This mill pond covers most of the eastern part of the northwest quarter of the southeast quarter of the section. A small bay extends across the south line of the northwest forty into the southwest quarter of the southeast quarter of the section. A small triangle of land lies between the south shore of the mill pond and the south line of the northwest quarter of the southeast quarter, east of where the bay extends into the southwest quarter of the southeast quarter.
The northeast quarter of the southeast quarter is about half covered by the mill pond. The high land on these forty acres surrounds the east end of the mill pond. In September, 1955, Leonard Krueger bought the entire northern half of the southeast quarter section, and platted the available lands east of the lake as Karin Shores.
Kruger had George E. Phillips survey the exterior boundaries of the land he had purchased and subsequently he had Phillips prepare the plat of Karin Shores. The Phillips survey was not admitted into evidence by the trial court.
A small triangle at the lower left end of the plat was not included in the plat. Krueger sold this triangle to Beasley on May 7, 1956.
Beasley maintained that he owned to the line marked by the Phillips survey as the boundary line between the southwest and northwest quarters of the southeast quarter. He and his family used the property for fishing, boating, and walking. If the south boundary line of Beasley's parcel is correctly established by the Phillips survey, it completely cuts off the Konczal parcel from access to the mill pond.
The parties discussed sale of a strip of property to the Konczals to provide them access to the lakefront, but no agreement was ever reached. The boundary line between their property was not in dispute until 1973 when the Konczals asked Waushara County Surveyor Donathan Palmer to survey their property. The Palmer survey showed the north boundary of the southwest quarter of the southeast quarter of section 25-19-9 to be north of the line established by the earlier Phillips survey. This meant that the Konczals had about 125 feet of lake frontage. As a result, the Konczals took possession of the disputed strip of land at the end of May, 1973, putting in a pier and using the property to the lake front. This occurred about seventeen years and one month after Beasley bought the triangle.
An earlier survey done in 1948 by Waushara County Surveyor George Vergin showed that the parcels subsequently owned by the Konczals extended to the shore of the mill pond. In addition, Beasley's attorney at a pretrial conference in this case requested the court to appoint a surveyor. The survey, performed by Harold E. King, showed that the location of the forty line between the southwest and northwest quarters of the southeast quarter was that established by the Palmer survey.
Beasley argues first, that the Palmer survey must be disregarded because it establishes the north line of the southwest quarter of the southeast quarter further north than the neighboring north line of the southeast quarter as established by the recorded plat of Karin Shores. The plat of Karin Shores was based on the private survey done in 1955 by George Phillips. The Phillips survey itself was not admissible at trial because it was a private survey, and the surveyor did not testify. Gahan v. Lymer, 196 Wis. 313, 317, 220 N.W. 532 (1928). Beasley does not argue that the Phillips survey falls within any of the exceptions to the hearsay rule in sec. 908.03, Stats. (1975).
The trial court did consider the plat of Karin Shores, however, and stated in its opinion:
Thus, it appears the plat of Karin Shores did not definitely establish the boundary line between the northeast and southeast forties, nor the boundary line between the northwest and southwest forties.
Findings of fact by the trial court will not be upset on appeal unless they are against the great weight and clear preponderance of the evidence. The evidence supporting the findings of the trial court need not in itself constitute the great weight and clear preponderance of the evidence; nor is reversal required if there is evidence to support a contrary finding. Rather, to command a reversal, such evidence in support of a contrary...
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