City of Beaver Dam v. Cromheecke

• Decision Date: 29 October 1998
• Docket Number: No. 98-1215,98-1215
• Citation: City of Beaver Dam v. Cromheecke, 587 N.W.2d 923, 222 Wis.2d 608 (Wis. App. 1998)
• Parties: CITY OF BEAVER DAM, Petitioner-Respondent, v. Richard J. CROMHEECKE, Tri-C Development, Inc., Robert J. Eilbes and Mildred Eilbes, Respondents-Appellants.
• Court: Wisconsin Court of Appeals

Page 923

587 N.W.2d 923

222 Wis.2d 608

CITY OF BEAVER DAM, Petitioner-Respondent, v.Richard J. CROMHEECKE, Tri-C Development, Inc., Robert J Eilbes and Mildred Eilbes, Respondents-Appellants.

No. 98-1215.

Court of Appeals of Wisconsin.

Submitted on Briefs July 15, 1998.

Opinion Released Oct. 29, 1998.

Opinion Filed Oct. 29, 1998.

On behalf of the respondents-appellants, the cause was submitted on the briefs of Phillip J. Eckert of O'Meara, Eckert, Pouros Gonring, West Bend.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Herman D. Schacht, Beaver Dam.

Before EICH, VERGERONT and DEININGER, JJ.

DEININGER, J.

Tri-C Development, Inc., a real estate development company, its president Richard Cromheecke, and Robert and Mildred Eilbes, the grantors of land developed by Cromheecke, appeal an order granting summary judgment to the City of Beaver Dam in the City's declaratory judgment action concerning the ownership of a parcel of land.The parcel had been offered to the City for dedication as a public street by virtue of a restriction in the Eilbes' deed to Cromheecke's company.Cromheecke contends that the offer of dedication was withdrawn before the City accepted it.We conclude, however, that although the City's formal resolution of acceptance was passed after it had received a document from the Eilbes purporting to withdraw the offer of dedication, the offer had been effectively accepted by the actions of city officials, and the common-law dedication of the parcel was thus complete.Accordingly, we affirm the trial court's grant of summary judgment to the City.

BACKGROUND

In 1989, Robert and Mildred Eilbes conveyed by warranty deed a 66' X 1340' strip of land to C & H Development, the predecessor to Tri-C Development.C & H conveyed the parcel to Tri-C via quit-claim deed on November 30, 1995.Richard Cromheecke is president of Tri-C Development, and we will refer to him and the corporations collectively as "Cromheecke" except where it is necessary to separately identify these parties.

The Eilbes' deed to Cromheecke contained the following restriction:

Premises described herein are to be used for a public right of way only and it is the intent of the parties that the Buyer will dedicate said premises to the City of Beaver Dam for a public street only.

The strip of land ran through the middle of a larger parcel that became the Georgetown Heights Fourth Addition, a subdivision that Cromheecke platted in 1992.In Cromheecke's proposed plat, most of the strip of land became an extension of Farwell Road, running north and south through the Fourth Addition.The last 120 feet of the strip, however, at the northern limit of the Fourth Addition, was platted as "Outlot 1" and reserved as private land.Thus, Farwell Road terminated at Eilbes Avenue, an east-west street, and did not run the last 120 feet to the northern limit of the Fourth Addition.

The Beaver Dam Board of Public Works initially conditioned its approval of Cromheecke's Fourth Addition plat on having Outlot 1 designated as a potential future public street right-of-way.Cromheecke, however, ultimately persuaded the City to forego this requirement, and in the approved plat, Outlot 1 is not shown as part of the Farwell Road right-of-way.The City was, at the time, unaware of the restriction in the Eilbes' deed that required Cromheecke to dedicate the entire 1340-foot strip, and Cromheecke apparently made no mention of it.

For approximately five years, Cromheecke and the City treated Outlot 1 as Cromheecke's private property.Cromheecke permitted the owner of a lot adjacent to Outlot 1 to use Outlot 1 as a driveway.In 1992, Cromheecke paved Outlot 1 and he has cleared the snow from it since then.Cromheecke has also paid property taxes on Outlot 1.

Subsequent to its platting, areas beyond the Fourth Addition were apparently being developed, and the City again wanted to acquire Outlot 1 for an extension of the Farwell Avenue right-of-way.On February 19, 1997, the City Plan Commission proposed placing Outlot 1 on the official city street map as a proposed street right-of-way.On February 24, 1997, the City's Board of Public Works directed the city attorney to acquire Outlot 1 by condemnation, pursuant to § 32.05, STATS.While conducting a title search in preparation for the condemnation proceeding, the city attorney discovered the restriction in the Eilbes' deed.The city attorney abandoned the condemnation process, and attempted instead to accept what he construed as an offer of dedication of Outlot 1 in the Eilbes' deed.

The city attorney filed a Petition for Declaratory Judgment on March 14, 1997, seeking a declaration of the City's rights to Outlot 1.The Board of Public Works introduced a resolution accepting the dedication of Outlot 1 at its 7:00 p.m. meeting on March 17.After the Board of Public Works meeting, but before the 8:00 p.m. meeting of the City Council, Cromheecke presented to the city clerk a "Withdrawal of Reservation to Dedicate," signed by the Eilbes.The document purported to rescind the "public right-of-way" restriction in the 1989 deed as to Outlot 1.Shortly thereafter, the City Council passed the resolution formally accepting the dedication of Outlot 1 at its 8:00 p.m. meeting on March 17.Also at this meeting, the City Council formally adopted the Plan Commission proposal to add Outlot 1 to the official city street map.

Both the City and Cromheecke moved for summary judgment in the declaratory judgment action.The trial court denied Cromheecke's motion and granted summary judgment to the City, concluding that it had accepted the offer before it was withdrawn, and that therefore the City had acquired Outlot 1 by common-law dedication.Tri-C, Cromheecke and the Eilbes appeal the order granting summary judgment to the City.

ANALYSIS

We review the trial court's grant of summary judgment using the same methodology as the trial court.SeeM & I First Nat'l Bank v. Episcopal Homes Management, Inc., 195 Wis.2d 485, 496, 536 N.W.2d 175, 182(Ct.App.1995).That methodology is well known, and we need not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Seeid. at 496-97, 536 N.W.2d at 182;see also§ 802.08(2), STATS.In reviewing a summary judgment, we, like the trial court, are limited to a consideration of the pleadings and evidentiary facts submitted in support of and opposition to the motions.SeeSuper Valu Stores, Inc. v. D-Mart Food Stores, Inc., 146 Wis.2d 568, 573, 431 N.W.2d 721, 724(Ct.App.1988).

Wisconsin recognizes both statutory and common-law dedication.See§ 80.01, STATS.;K.G.R. v. Town of East Troy, 191 Wis.2d 446, 450, 529 N.W.2d 231, 232(1995);Galewski v. Noe, 266 Wis. 7, 15, 62 N.W.2d 703, 707(1954).At issue here is a common-law dedication."The essential requisites of a valid common-law dedication are that there must be an intent to dedicate on the part of the owner and an acceptance of the dedication by the proper public authorities or by general public user."Gogolewski v. Gust, 16 Wis.2d 510, 514, 114 N.W.2d 776, 779(1962)(quotingGalewski v. Noe, 266 Wis. 7, 12, 62 N.W.2d 703, 706(1954)).An offer to dedicate may be withdrawn at any time before it is accepted.SeeGalewski at 14, 62 N.W.2d at 707.

Cromheecke does not dispute that the original owners, the Eilbes, intended to dedicate Outlot 1, along with the rest of the strip described in the 1989 deed, to the City for use as a street.The restriction in the Eilbes' deed constituted an offer of dedication of the strip to the City.SeeSchumski v. Village of Hales Corners, 14 Wis.2d 301, 111 N.W.2d 88(1961)(offer of common-law dedication can be made via deed restriction);cf.§ 80.01(5), STATS.¹The Beaver Dam City Council first acted to formally accept the offer of dedication moments after Cromheecke delivered the Eilbes' purported revocation of the offer via the "Withdrawal of Reservation to Dedicate" on the night of March 17.Thus, the issue on appeal, as it was in the trial court, is whether the offer was informally, but effectively, accepted before it was withdrawn by the Eilbes.²

Informal acceptance of a common-law dedication may be accomplished either by the actions of "the proper public authorities or by general public user."Galewski, 266 Wis. at 12, 62 N.W.2d at 706; see also 11A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 33.47(3d ed.1991).The general public itself may accept an offer of dedication by using the offered property for a "considerable length of time."SeeGalewski, 266 Wis. at 14, 62 N.W.2d at 707.It is not necessary that large numbers of the public make use of the offered property, so long as the extent and nature of the public use is consistent with the purpose for which the property was dedicated.SeeMCQUILLIN, supra, § 33.50.

We cannot conclude on the record before us that the general public used Outlot 1 at all.The parties do not dispute that Cromheecke's company--either Tri-C or its predecessor C & H Development--had paved and removed snow from Outlot 1 since the plat of the Fourth Addition was approved in 1992.The only use of Outlot 1 cited by either party is related to a residence which fronts on Eilbes Avenue and is situated adjacent to Outlot 1.Outlot 1 provides driveway access to the residence, and Outlot 1 is consequently used by the owners, their family and friends.Such use of Outlot 1 is as consistent with the use of a private road as it is with that of a public street, and the use does not necessarily establish acceptance of the dedication of Outlot 1 by general public user.³

The acceptance of an offer of dedication may also be accomplished "by implication from the acts of municipal officers."SeeMCQUILLIN, supra, § 33.47;see alsoGalewski, 266 Wis. at 13, 62 N.W.2d at 706-07.Acceptance may be...