Borek Cranberry Marsh, Inc. v. Jackson County

Decision Date21 July 2010
Docket NumberNo. 2008AP1144.,2008AP1144.
Citation785 N.W.2d 615,2010 WI 95,328 Wis.2d 613
PartiesBOREK CRANBERRY MARSH, INC., Plaintiff-Appellant, v. JACKSON COUNTY, Defendant-Respondent-Petitioner.
CourtWisconsin Supreme Court

For the defendant-respondent-petitioner there were briefs by Mark B. Hazelbaker and Hazelbaker & Associates, S.C., Madison, and oral argument by Mark B. Hazelbaker.

For the plaintiff-appellant there was a brief by Dan Arndt and Arndt, Buswell & Thorn, S.C., Sparta, and oral argument by Dan Arndt.


¶ 1 This is a review of a published decision of the court of appeals 1 reversing an order granting summary judgment to Jackson County.2 In 1977, Carl Nemitz purchased an easement from the County granting him sand removal and water flowage rights to County land adjacent to his property. The water flowage rights were granted to "CARL NEMITZ, his heirs, and assigns" while the sand removal rights were granted to "the Grantee," who is described in the deed as "CARL NEMITZ." Nemitz later transferred his land, along with his sand removal rights and water flowage rights, to Julius and Darlene Borek (the "Boreks"), who then transferred them to Borek Cranberry Marsh, Inc. ("BCM").

¶ 2 When BCM attempted to exercise the sand removal rights (now almost 30 years after the original conveyance to Nemitz), the County objected on the grounds that the sand removal rights were non-transferable. BCM brought suit, and the circuit court agreed with the County that the sand removal rights were non-transferable because they had been granted to Nemitz alone, and not "Nemitz, his heirs, and assigns" as the water flowage rights had been granted. The court of appeals reversed, holding thatWis. Stat. § 706.10(3) (1977-78),3 which makes words of inheritance unnecessary and creates a presumption in favor of transferability, required the court to interpret the deed as conveying transferable sand removal rights.

¶ 3 Thus, the question before us is whether the 1977 easement granted Nemitz a transferable right to remove sand from County land. We hold that it did. Wisconsin Stat. § 706.10(3) provides that every conveyance of an interest in land conveys full title to that interest unless the language of the conveyance indicates otherwise by express language or necessary implication. We conclude that the easement does not contain an express statement or necessary implication that only a limited, non-transferable right to remove sand was conveyed. We therefore affirm the decision of the court of appeals and remand for the circuit court to enter an order granting BCM's motion for summary judgment.


¶ 4 In 1977, Carl Nemitz, who owned marsh land adjacent to forest land owned by Jackson County, purchased an easement from the County for $500.00. That easement granted Nemitz water flowage rights and sand removal rights to the neighboring County land for the purpose of cranberry cultivation on Nemitz's marsh.4

[785 N.W.2d 618, 328 Wis.2d 618]

¶ 5 The deed granting Nemitz water flowage and sand removal rights is entitled "Easement for Flowage Rights" ("1977 deed").5 It contains the following relevant language:

THIS EASEMENT, made this 12th day of May, 1978, between JACKSON COUNTY, a Municipal Corporation, Grantor, and CARL NEMITZ, of RFD 1, Warrens, Wisconsin, Grantee.
WITNESSETH, That for and in consideration of the sum of Five Hundred ($500.00) dollars, paid by the Grantee to the Grantor, ... the Grantor does hereby grant and convey to CARL NEMITZ, his heirs, and assigns, an easement for flowage with full right and privilege to flow with water the following described lands situated in the Town of Knapp, Jackson County, Wisconsin....
THAT THIS EASEMENT, shall be perpetual providing that the flowage rights hereby granted are being used for the purpose of cranberry culture.
AND, the Grantor does hereby grant and convey to the Grantee the further right and privilege to removesand from the above described lands to be used for the purpose of cranberry culture upon the Grantee's adjacent lands.

(Emphasis added.)

¶ 6 In 1978, Nemitz sold the cranberry marsh to the Boreks. Besides transferring the land itself, the deed transferring the marsh from Nemitz to the Boreks ("1978 deed") also transferred the flowage and sand removal rights that Nemitz purchased from the County in 1977.6 The Boreks later transferred the land and their interest in the flowage and sand removal rights to BCM.7

¶ 7 For decades, BCM used sand from its own land to supply its cranberry cultivation needs. At some point prior to the commencement of this suit, BCM informed the County that it intended to start removing sand from County land pursuant to the 1977 deed. The County disputed BCM's right to remove sand, arguing that the sand removal rights sold to Nemitz were personal to Nemitz and therefore not transferable to the Boreks or BCM.

¶ 8 On April 13, 2007, BCM filed suit in Jackson County Circuit Court, John A. Damon, Judge, seeking (1) a declaratory judgment that BCM is the legal owner of the sand removal rights; (2) compensatory damages in the form of lost profits; and (3) reimbursement ofexpenses arising as aresult of the controversy. On cross-motions for summary judgment, the circuit court granted summary judgment to the County and dismissed BCM's claims. The court concluded that the necessary implication of the inclusion of "heirs and assigns" in the flowage grant and the omission of that language in the sand removal grant, is that the parties intended for the former to be transferable and the latter be personal to Nemitz (and thus not transferable to or enforceable by BCM).

¶ 9 BCM appealed. In a published opinion, the court of appeals reversed the circuit court, finding that the right to remove sand was not personal to Nemitz and was thus transferable to the Boreks and thence to BCM. Borek Cranberry Marsh, Inc. v. Jackson County, 2009 WI App 129, ¶ 14, 321 Wis.2d 437, 773 N.W.2d 522. More specifically, the court held that the presumption of transferability of interests in Wis. Stat. § 706.10(3) applied because there was no express language to the contrary, and the omission of "heirs and assigns" in the sand removal grant did not create a necessary implication that the parties intended that right to be non-transferable. Id., ¶¶ 12-14. It further held that the instruction in Brody v. Long8 that deeds should be construed in favor of municipalities does not apply here because this case is not a close call. Id., ¶ 16.

¶ 10 The County then petitioned this court for review, which we granted.


¶ 11 This case comes before us on summary judgment. We review the grant of a motion for summaryjudgment de novo, and apply the methodology specified in Wis. Stat. § 802.08. Apple Valley Gardens Ass'n, Inc. v. MacHutta, 2009 WI 28, ¶ 12, 316 Wis.2d 85, 763 N.W.2d 126. That is, we determine whether there is any genuine issue as to any material fact, and if not, which party is entitled to judgment as a matter of law. Id.

¶ 12 The present case requires us to determine the meaning and scope of an easement. Easements are created by deeds, and we construe deeds according to the intentions of the parties to the deed. Konneker v. Romano, 2010 WI 65, ¶ 26, 326 Wis.2d 268, 785 N.W.2d 432. The proper construction of an easement is a question of law that we review de novo. Hunter v. Keys, 229 Wis.2d 710, 715, 600 N.W.2d 269 (Ct.App.1999).


¶ 13 The question before us is whether the sand removal rights conveyed in the easement between the County and Nemitz were personal to Nemitz, or whether they were fully transferable.

¶ 14 An easement is an interest in land possessed by another. Gojmerac v. Mahn, 2002 WI App 22, ¶ 18, 250 Wis.2d 1, 640 N.W.2d 178. "An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." Restatement (Third) of Prop.: Servitudes § 1.2(1) (2000). Easements may be either appurtenant easements or easements in gross. Gojmerac, 250 Wis.2d 1, ¶ 18, 640 N.W.2d 178. An easement appurtenant ties the rights or obligations ofa servitude to ownership or occupancy of the land, and thus it is transferred with the land. Id. An easement in gross does not tie the benefits or burdens of a servitude to the land, and may be personal or transferable. Id., ¶ 18 & n. 5.

¶ 15 At common law, the sand removal rights at issue here would be classified as a profit à prendre. Like an easement, a profit à prendre, now generally known simply as a "profit" ( see Restatement (Third) of Prop.: Servitudes § 1.2 cmt. f), is also an interest in land that involves the additional power to acquire or remove things from the land. Van Camp v. Menominee Enters., Inc., 68 Wis.2d 332, 343, 228 N.W.2d 664 (1975). Rights often associated with a profit include hunting and fishing rights, mineral and timber rights, and, as in the case at bar, sand removal rights. Id.; Figliuzzi v. Carcajou Shooting Club, 184 Wis.2d 572, 581, 516 N.W.2d 410 (1994); Gray v. Handy, 349 Mass. 438, 208 N.E.2d 829, 831-32 (1965). Both an easement and a profit were distinguished in the common law from a mere license, which did not qualify as an interest in real property and was revocable by its very nature. Van Camp, 68 Wis.2d at 344, 228 N.W.2d 664. In 1994, this court held that there is no meaningful legal distinction between an easement and a profit. Figliuzzi, 184 Wis.2d at 583, 516 N.W.2d 410. The Restatement in fact defines a profit as an easement with additional rights. Restatement (Third) of Prop.: Servitudes § 1.2(2) & cmt. e (2000).

¶ 16 It is clear that the water flowage rights and the sand removal rights in the deed between Nemitz and the County each constitutes an interest in the land. Both parties concede that the interpretive instructions in Wis. Stat. § 706.10(3) play a role in the proper interpretation of conveyances of land and interests in...

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