Cohn v. Town of Randall

• Decision Date: 03 July 2001
• Docket Number: No. 00-2176.,00-2176.
• Citation: 247 Wis.2d 118,633 N.W.2d 674,2001 WI App 176
• Parties: Barbara COHN, Bob Rohr, David Ott, Larry Yakutis, Stan Stawaaz, Mary Mavon, Richard Vogt, Valerie Kunde, Barbara Mertes-Wysocki, Brent Matson, Jeff Zwolak, John Dovgin, Carolyn Dovgin, Richard Peck, Marleen Peck, Edward Mooney, Steve Gutschick, Nadine Radtke, Victoria Rogers, Barry Shechtman, Kay Watters, Daniel Aronson, Ken Johnson, Kimberly Bernard, Maureen Alcorn, Roberta Weisner, Richard Poteracki and Rachelle Poteracki, Plaintiffs-Respondents-Cross-Appellants, v. TOWN OF RANDALL, Defendant-Appellant-Cross-Respondent.
• Court: Wisconsin Court of Appeals

247 Wis.2d 118

2001 WI App 176

633 N.W.2d 674

Barbara COHN, Bob Rohr, David Ott, Larry Yakutis, Stan Stawaaz, Mary Mavon, Richard Vogt, Valerie Kunde, Barbara Mertes-Wysocki, Brent Matson, Jeff Zwolak, John Dovgin, Carolyn Dovgin, Richard Peck, Marleen Peck, Edward Mooney, Steve Gutschick, Nadine Radtke, Victoria Rogers, Barry Shechtman, Kay Watters, Daniel Aronson, Ken Johnson, Kimberly Bernard, Maureen Alcorn, Roberta Weisner, Richard Poteracki and Rachelle Poteracki, Plaintiffs-Respondents-Cross-Appellants,¹ v. TOWN OF RANDALL, Defendant-Appellant-Cross-Respondent.

No. 00-2176.

Court of Appeals of Wisconsin.

Oral argument May 16, 2001.

Decided July 3, 2001.

On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Raymond J. Pollen and Deborah S.R. Hoffmann of Crivello, Carlson, Mentkowski, Steeves, S.C. and Larry Steen of Larry Steen Law Office, Milwaukee. There was oral argument by Raymond J. Pollen and Larry Steen.

On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the brief of Adrian P. Schoone of Schoone, Leuck, Kelley, Pitts & Knurr, S.C. and Robert E. Hankel of Knuteson, Powers & Wheeler, S.C., Racine. There was oral argument by Robert E. Hankel.

Before Brown, P.J., Anderson and Snyder, JJ.

¶ 1. BROWN, P.J.

The Town of Randall appeals from a summary judgment finding no dedication of roadways for public use. Residents who live in the subdivisions containing the roadways cross-appeal the dismissal of their suit for certiorari review of the actions of the Town Board. Because we determine that there has been an effective common law dedication of roadways for public use, we reverse the judgment in favor of the residents. Regarding the cross-appeal, we determine that there has been no misuse of discretion by the Town Board.

¶ 2. This case arises in the context of a contemplated road improvement project to certain streets located in the South Nippersink area of the Town. The contemplated project was substantial and resulted in a special assessment on a parcel unit basis in the amount of $13,297.47. Thereafter, owners of forty-five parcels in the South Nippersink area filed notifications with the Town Board that any purported dedication of land owned by them to the Town for public purposes was revoked. In light of the residents' opposition to the road project, the Town Board delayed approval of the project in order to allow the residents an opportunity to present an alternative plan for improving the roads.

¶ 3. On October 26, 1999, the residents presented an alternative plan in a public hearing. The residents believed their plan would allow the roads to be improved with far less expense and disruption to their properties. Nevertheless, that evening, the Town Board voted to approve the original, more elaborate improvement project and declared the South Nippersink subdivision roads as public roads.

¶ 4. On appeal, the Town challenges the trial court's conclusion that the plats disclose an intent to create private rather than public roads. The residents request that we overturn the decision of the Town Board to lay out roads and levy assessments as arbitrary and capricious. We heard oral argument from the parties on May 16, 2001, in Racine.

Standard of Review

[1, 2]

¶ 5. The court of appeals reviews summary judgment motions de novo. Blazekovic v. City of Milwaukee, 225 Wis. 2d 837, 840, 593 N.W.2d 809 (Ct. App. 1999), aff'd, 2000 WI 41, 234 Wis. 2d 587, 610 N.W.2d 467. For summary judgment to be granted, there must be no genuine issue of material fact and the moving party must be entitled to judgment as a matter of law. Calbow v. Midwest Sec. Ins. Co., 217 Wis. 2d 675, 679, 579 N.W.2d 264 (Ct. App. 1998). Furthermore, the interpretation of a written instrument is a question of law that this court decides without deference to the trial court. Jones v. Jenkins, 88 Wis. 2d 712, 722, 277 N.W.2d 815 (1979). Whether the language in the instrument is ambiguous is also a question of law. See Moran v. Shern, 60 Wis. 2d 39, 46-47, 208 N.W.2d 348 (1973). Where ambiguity exists, the court may consider extrinsic evidence to determine the intent of the parties. Id. at 48.

Discussion

1. Dedication for public use.

[3-5]

¶ 6. The first legal issue to address is whether there has been an offer and acceptance of a dedication of roads for public purposes. "Dedication is defined to be the act of giving or devoting property to some proper object, in such a way as to conclude the owner." Kennedy v. Barnish, 244 Wis. 137, 141, 11 N.W.2d 682 (1943). Wisconsin recognizes two distinct types of dedication— statutory and common law. Galewski v. Noe, 266 Wis. 7, 15, 62 N.W.2d 703 (1954). Statutory dedication consists in whatever conduct is prescribed by statute, which usually requires the execution and filing of a plat in accordance with local law.² KENNETH H. YOUNG, ANDERSON'S AMERICAN LAW OF ZONING § 25.26 (4th ed. 1997). Common law dedication requires an explicit or implicit offer to dedicate land, and an acceptance of the offer by the municipality or by general public use. Galewski, 266 Wis. at 12. Intent to dedicate to the public use is an essential component of either statutory or common law dedication, since the municipality cannot accept that which is not offered in the first instance. Therefore, in a question of common law dedication, the threshold issue to our inquiry is the intent of the grantor at the time the subdivisions were created. Although the Town contends that there was both statutory dedication and common law dedication, we need only discuss common law dedication as that will resolve this matter.

[6, 7]

¶ 7. The issue of intent in common law dedication is usually resolved by the trier of fact and, upon review by this court, is subject to the clearly erroneous rule. In this case, the grantor has long since passed away and the only evidence available to glean his intent is documentary evidence in the form of recorded plats and deeds. We are in just as good a position as the trial court to make factual inferences based on documentary evidence and we need not defer to the trial court's findings. State ex rel. Sieloff v. Golz, 80 Wis. 2d 225, 241, 258 N.W.2d 700 (1977). Moreover, an interpretation of documentary evidence involves a question of law to be reviewed independently on appeal. See DeLap v. Inst. of Am., Inc., 31 Wis. 2d 507, 510, 143 N.W.2d 476 (1966). Inferences drawn from documentary evidence do not bind this court. Id. However, despite our de novo standard of review, we nonetheless value the trial court's decision. Kailin v. Rainwater, 226 Wis. 2d 134, 147, 593 N.W.2d 865 (Ct. App. 1999).

¶ 8. On August 1, 1918, E.G. Shinner acquired land which became the 5th and 6th Additions to Nippersink Park. On July 6, 1926, the plat map of Shinner's 5th Addition was recorded with the register of deeds. The Surveyor's Certificate stated that the land was subdivided into nine blocks and "again into lots as shown together with certain streets dedicated as common property to the owners of this subdivision and of any future adjacent subdivision." The Town approved the subdivision plat, noting that "certain streets are laid out and dedicated as common property to the owners of their subdivision and any future adjacent subdivision."

¶ 9. Shinner's 6th Addition was recorded on June 1, 1929, with the surveyor subdividing the property into blocks and lots, "together with certain streets, walks and park, dedicated as common property as in former subdivisions to this park." The Town approved this plat also, stating "whereby certain streets, walks and park are laid out to the satisfaction of the Town Board therefor be it resolved ... that the said map of said subdivision ... is accepted and approved for the purpose shown therein."

¶ 10. Other than the language emphasized above, there are no markings on the plat maps to indicate whether the roads are public or private. Therefore, we must construe the words "dedicated as common property to the owners," which appear explicitly or by incorporation in both plats, to determine whether Shinner intended to dedicate these roads for public use. The residents present a strong argument that common property to owners can only mean that Shinner intended these roads to be private, for the sole use of the homeowners. This would ensure that all owners of property in the subdivisions would have access along private roadways to public roads.

¶ 11. The Town contends that because the first plat refers to future adjacent subdivisions, Shinner must have intended that the roads would be used by the public as the subdivisions developed. The Town further argues that the word "common," when used in plats of that time period, signaled the intent to dedicate for public use. See, e.g., Mueller v. Schier, 189 Wis. 70, 79-80, 205 N.W. 912 (1926) (interpreting "the [land] to remain perpetually as a private common park, containing a common carriage drive and walk," as intent to create a public street).³ [8]

¶ 12. We determine that the theories advanced by both sides are reasonable and the plats are therefore ambiguous with respect to Shinner's intent to dedicate for public use. Under the current version of the law, such ambiguity is resolved in favor of the Town: platted streets that are not marked private are presumed to be public. See WIS. STAT. § 236.20(4)(c). However, this legislation was not in existence at the time these plats were recorded. To resolve the ambiguity we may, under principles of common law dedication, look beyond the plat maps and surveyors' certificates to other supporting documents and circumstances to discern Shinner's intent. See Galewski, 266 Wis. at 12 (offers to dedicate need not be in writing or in any particular form).

¶ 13. In 1928, Shinner sold several lots in the 5th Addition and recorded a deed that contained the following language:

This deed is made with the following

...