Berger v. Town of New Denmark, 2011AP1807–FT.

• Citation: 2012 WI App 26,810 N.W.2d 833,339 Wis.2d 336
• Decision Date: 10 January 2012
• Docket Number: No. 2011AP1807–FT.,2011AP1807–FT.
• Parties: Wade BERGER and Ilona Berger, Plaintiffs–Appellants, v. TOWN OF NEW DENMARK, Defendant–Respondent,William Kreuger and Norbert Buresh, Defendants.
• Court: Court of Appeals of Wisconsin

2012 WI App 26
339 Wis.2d 336
810 N.W.2d 833

Wade BERGER and Ilona Berger, Plaintiffs–Appellants,
v.
TOWN OF NEW DENMARK, Defendant–Respondent,William Kreuger and Norbert Buresh, Defendants.

No. 2011AP1807–FT.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 13, 2011.Opinion Filed Jan. 10, 2012.

[810 N.W.2d 834]

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Kurt A. Goehre, of Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay.

On behalf of the defendant-respondent, the cause was submitted on the brief of James R. Sickel and Alexander J. Sickel of Hinkfuss, Sickel, Petitjean & Wieting, Green Bay.

Before HOOVER, P.J., PETERSON, J., and THOMAS CANE, Reserve Judge.

CANE, J.

[339 Wis.2d 338] ¶ 1 Wade and Ilona Berger appeal an order dismissing their action challenging the Town of New Denmark's determination that their two parcels are of insufficient acreage for development. They assert that the parcels are of sufficient size when property underlying a county highway abutting their land is included in the acreage calculation. Further, they argue that the circuit court erroneously determined that fee title to the underlying highway property had been conveyed to Brown County by the Bergers' predecessors-in-interest.

¶ 2 We conclude that the Bergers' predecessors-in-interest conveyed nothing more than easements to Brown County. Because this conclusion is sufficient to warrant reversal, we need not also consider whether the parcels are buildable under the Town's zoning ordinances. Accordingly, we reverse and remand for further proceedings.

BACKGROUND

¶ 3 The Bergers own two abutting parcels of land in the Town of New Denmark, Brown County. The parcels are numbered ND–176–2 and ND–309. Both are zoned A–1 Agricultural,¹ and both are bordered on the east by County Highway T.

¶ 4 Since 2003, the Bergers have unsuccessfully sought building permits from the Town of New Denmark for both parcels. The applicable zoning regulations require a minimum area of 35 acres and zoning lot frontage of at least 500 feet.²

[339 Wis.2d 339] ¶ 5 In 2009, the Bergers requested that the Town Board clarify whether ND–176–2 and ND–309 were buildable lots comprising at least 35 acres. The board minutes show that Wade Berger presented a plat showing that property from ND–309 had been added to ND–176–2 to make ND–176–2 compliant with the 35–acre requirement. Similarly, the plat indicated that the Bergers added to ND–309 property purchased from a third party to make ND–309 compliant. After these conveyances, the Bergers' plat showed each parcel contained 35.190 acres. The board ultimately referred the matter to the Town Plan Commission to verify the size of the parcels.

¶ 6 Several months later, the Bergers requested that the Town Board approve building permits for ND–176–2 and ND–309. The Bergers' requests were denied,

[810 N.W.2d 835]

in part based on the acreage requirement. The board concluded that the zoning ordinance required exclusion of roads when calculating the total amount of acreage. Excluding land occupied by County Highway T, the parcels each contained approximately 34.5 acres.³

¶ 7 The Bergers filed suit, seeking a declaration that their parcels were buildable under the ordinance. The Town filed a motion to dismiss, accompanied by a brief asserting that the lots were not buildable because Brown County, not the Bergers, owned the land on which County Highway T was located.⁴ The Town attached to its brief copies of two conveyances, one each [339 Wis.2d 340] dated 1951 and 1956, purporting to show that Louis and Mary Selner, the Bergers' predecessors-in-interest, had conveyed full title of the land to Brown County. ⁵

¶ 8 Brown County paid the Selners $109.38 and $230.20, respectively, for the land conveyed in 1951 and 1956. Both documents contain the same form language regarding the conveyance:

It having been deemed necessary for the proper improvement or maintenance of a county aid highway, and so ordered, to change or relate a portion thereof through lands owned by Louis Selner and Mary Selner ... in the Town of New Denmark, Brown County, and a plat showing the existing location, the proposed change and the right of way to be acquired, having been filed with the County Clerk of said County by the County Highway Commission as required by Section 83.08, Wisconsin Statutes; ....

KNOW ALL MEN BY THESE PRESENTS, That the said owner ... for ... valuable consideration, ... the receipt of which is hereby acknowledged, do ... hereby grant and convey to Brown County, Wisconsin, for highway purposes as long as so used, the lands of said owner necessary for said relocation shown on the plat and described as follows ...

[Legal description of property omitted]

A covenant is hereby made with the said Brown County that the said grantor holds the above described premises by good and perfect title; having good right and lawful authority to sell and convey the same; that said premises are free and clear from all liens and encumbrances whatsoever except as hereinafter set forth[.]

[339 Wis.2d 341] ¶ 9 The circuit court granted the Town's motion. It determined that “ Parcels ND–176–2 and ND–309 are not buildable lots in that they do not meet the 35 acre requirement and, as such, the Town of New Denmark was not incorrect in its determination....” It rejected the Bergers' argument that the 1951 and 1956 conveyances granted only an easement, stating, “But I think there's a big jump, quite frankly, to assume that because it was a conveyance of land for highway purpose it was by definition an easement.... It looks to me

[810 N.W.2d 836]

as if the county for whatever reason wanted to own this property.”

DISCUSSION

¶ 10 We review a grant of summary judgment de novo, and we apply the same standard as the trial court. Mach v. Allison, 2003 WI App 11, ¶ 14, 259 Wis.2d 686, 656 N.W.2d 766. “A party is entitled to summary judgment if there are no disputed issues of fact and that party is entitled to judgment as a matter of law.” Id.; see also Wis. Stat. § 802.08(2). In this case we must examine the language of the...