Cobb v. King

Decision Date06 July 2022
Docket Number2020AP925
Citation403 Wis.2d 198,976 N.W.2d 410 (Mem),2022 WI 59
Parties James COBB and Judith Cobb, Plaintiffs-Appellants-Cross-Respondents-Petitioners, v. Gary A. KING, Defendant-Respondent-Cross-Appellant.
CourtWisconsin Supreme Court

For the plaintiffs-appellants-cross-respondents-petitioners, there were briefs filed by George Burnett, Laina P. Stuebner, and Law Firm of Conway, Oleniczak & Jerry, S.C., Green Bay. There was an oral argument by George Burnett.

For the defendant-respondent-cross-appellant, there was a brief by Josiah R. Stein and Law Office of Josiah R. Stein, LLC, Green Bay. There was an oral argument by Josiah R. Stein.

Per curiam. ANN WALSH BRADLEY, J., filed a concurring opinion, in which DALLET, J., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a dissenting opinion.


¶1 James and Judith Cobb petitioned for review of a decision of the court of appeals, Cobb v. King, No. 2020AP925, 2021 WL 1882634, unpublished slip op. (Wis. Ct. App. May 11, 2021), which affirmed the circuit court's grant of summary judgment to Gary King. After reviewing the record and the briefs, and after hearing oral arguments, we conclude that this matter should be dismissed as improvidently granted.

By the Court. —The review of the decision of the court of appeals is dismissed as improvidently granted.

ANN WALSH BRADLEY, J. (concurring).

¶2 I write separately because, as I have written in the past, I believe that this court should explain to the litigants and the public the reason for the dismissal. See Fond du Lac County v. S.N.W., 2021 WI 41, ¶3, 396 Wis.2d 773, 958 N.W.2d 530 (Ann Walsh Bradley, J., dissenting).

¶3 Although the court has been inconsistent, in my view the court's general practice should be to provide an explanation for a dismissal of a petition for review as improvidently granted. See id., ¶¶6-10. It is the least we can do for parties who have expended substantial time, energy, and money litigating this case and seeking a resolution from this court.

¶4 After reviewing the court of appeals opinion, together with the record and the briefs, and after hearing oral arguments, this review is deemed improvidently granted. The issues for which we took the case will not lead to any further development, clarification, or harmonization of the law. See Wis. Stat. § (Rule) 809.62(1r) (2019-20). Thus, further review by this court and publication of an opinion would not serve any purpose.

¶5 For the foregoing reasons, I respectfully concur.

¶6 I am authorized to state that Justice REBECCA FRANK DALLET joins this concurrence.



It must not be. There is no power in VeniceCan alter a decree established.‘Twill be recorded for a precedent,And many an error by the same exampleWill rush into the state. It cannot be.

William Shakespeare, The Merchant of Venice act 4, sc. 1, ll. 215–19 (Jay L. Halio ed., 1993) (statement of the character Portia ).

¶8 A majority of this court forgoes an opportunity to correct an objectively erroneous interpretation of law. In Borek Cranberry Marsh, Inc. v. Jackson County, this court created a flawed—yet binding—precedent, which requires lower courts to ignore the plain meaning of Wis. Stat. § 706.10(3).

2010 WI 95, 328 Wis. 2d 613, 785 N.W.2d 615. This court should adopt a meaning grounded in the statutory text.

¶9 Wisconsin Stat. § 706.10(3) states, "[i]n conveyances of lands words of inheritance shall not be necessary to create or convey a fee, and every conveyance shall pass all the estate or interest of the grantor unless a different intent shall appear expressly or by necessary implication in the terms of such conveyance." In Borek, this court held both clauses of § 706.10(3) apply to easements, although it acknowledged "a cursory reading of § 706.10(3) might suggest that its provisions do not govern easements[.]" 328 Wis. 2d 613, ¶22, 785 N.W.2d 615. It then muddled the language of the two clauses and concluded § 706.10(3) creates a presumption that an easement runs with the land unless the deed creating the easement "expressly or by necessary implication" says otherwise. Section 706.10(3) has nothing to say about whether an easement runs with the land or is personal and non-transferrable.

¶10 Applying a textual methodology of statutory interpretation leads inexorably to the conclusion that the statute's first clause governs only a document creating or conveying a fee. See generally State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110 (embracing the textualist approach to statutory interpretation). The court was not asked to interpret such a document in Borek, nor has it been asked to in this case.

¶11 "An easement is something quite different from a fee or a limited fee. In the one case title does not pass, but only a right of use or privilege in the land of another. In the other cases the title does pass, even though the use be limited." Polebitski v. John Week Lumber Co., 157 Wis. 377, 381, 147 N.W. 703 (1914) ; see also Colson v. Salzman, 272 Wis. 397, 401, 75 N.W. 2d 421 (1956) (citing Polebitski as establishing "that an easement differs from a fee or a limited fee in that in case of an easement title does not pass but only a right to use or privilege in the land of another"). This court did not address Polebitski or other cases reciting this black letter law, although the dissent relied heavily on them. Borek, 328 Wis. 2d 613, ¶57–63 & nn.7–9, 785 N.W.2d 615 (Abrahamson, C.J., dissenting).

¶12 The second clause, while applicable to easements, was irrelevant in Borek, and it is in this case as well. After an easement is created, the second clause codifies a strong presumption that a transfer of the easement passes all interest in the easement. If the interest is only personal, attempting to transfer it does not create a right of transferability. Id., ¶67.

¶13 Only this court can fix its misinterpretation of Wis. Stat. § 706.10(3) in Borek. See Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶21, 399 Wis. 2d 623, 967 N.W.2d 469 (quoted source omitted). Short of legislative action, unless this court overturns Borek, its erroneous rule will continue to govern easements. This need not be the case. "Because these decisions are objectively wrong, we must overturn them in fulfilling our duty to properly interpret the law." Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, ¶42, ––– Wis. 2d ––––, ––– N.W.2d –––– (Rebecca Grassl Bradley, J., concurring) (citing Wenke v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405 ). I respectfully dissent from the majority's decision not to decide the law.


¶14 This case involves a dispute among neighbors. The record contains the diagram below. Gary King's property, shown in purple, is landlocked. The Cobbs’ property is shown in yellow. King moves through the Cobbs’ property, along the path marked by a series of red "X"s, to enter and exit his property. Whether he has an ingress/egress easement giving him a legal right to move along the path for this purpose turns on whether the Cobbs’ predecessors-in-interest conveyed to King's predecessors an easement running with the land or merely a personal, non-transferrable easement.

¶15 In 1978, the Cobbs’ predecessors, the Rierdons, granted an ingress/egress easement to the Hessils, King's predecessors. In relevant part, the deed creating the easement states:

The undersigned, BARBARA RIERDON, GERALD GEHLING AND MARGARET GEHLING, wife of GERALD GEHLING, being holders and owners to the same, do hereby, in consideration of One Dollar and other good and valuable consideration, grant, convey, give over and allow to HERBERT HESSIL and JEAN HESSIL, his wife, a right of ingress and egress for the purpose of vehicular traffic only to the following described property[.]

The easement was recorded with the Oconto County Register of Deeds.

¶16 In the 1980s, the Rierdons sold their land to the Cobbs. The land contract noted the property was "SUBJECT to an easement[.]" In 2009, the Hessils conveyed their property to King and Melissa Hermes. This conveyance did not mention the easement. Hermes subsequently executed a quitclaim deed to King.

¶17 The Cobbs sued King, seeking a declaration that the easement conveyed by the Rierdons to the Hessils was personal to the Hessils, i.e., that King has no right to the easement. They also sought injunctive relief. King counterclaimed for a declaration that the easement ran with the land and was transferred to him by the Hessils.

¶18 King moved for summary judgment, which the circuit court granted.1 The circuit court reasoned that words of inheritance, such as "heirs and assigns," are unnecessary for an easement to run with the land. The Cobbs appealed and lost because the court of appeals was bound by Borek.2 The court of appeals explained:

King correctly argues that Borek ... controls our decision of whether Wis. Stat. § 706.10(3) applies to easements....
The Borek decision made clear that ... § 706.10(3) applies to easements, thus precluding the Cobbs’ argument that the statute does not apply in this case. We are bound by this controlling precedent.[3 ]

This court granted the Cobbs’ petition for review.


¶19 This case presents a question of statutory interpretation, which this court reviews independently. Eau Claire Cnty. Dep't of Hum. Servs. v. S.E., 2021 WI 56, ¶13, 397 Wis. 2d 462, 960 N.W.2d 391 (citing State v. Stephenson, 2020 WI 92, ¶18, 394 Wis. 2d 703, 951 N.W.2d 819 ). Whether to dismiss a petition as improvidently granted is a discretionary decision. Cf. Wis. Stat. § (Rule) 809.62(1r) (explaining whether to grant a petition is "a matter of judicial discretion").4

A. Borek & Its Clear Errors

¶20 Borek’s facts are indistinguishable from the facts of this case. Carl Nemitz purchased an easement from Jackson County. 328 Wis. 2d 613, ¶1, 785 N.W.2d 615....

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