Ebert v. Innswood Whitetails, LLC
| Decision Date | 31 October 2019 |
| Docket Number | Appeal No. 2018AP2459 |
| Citation | 936 N.W.2d 423 (Table),2019 WI App 65,389 Wis.2d 378 |
| Parties | Joseph EBERT, Dale Ebert, Arlis Ebert and Ronald C. Ebert, Plaintiffs-Appellants, v. INNSWOOD WHITETAILS, LLC and Frank B. Rasch, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
¶1 This is an appeal of a final judgment resolving property disputes between the owners of two adjacent parcels of land in Monroe County. The parties dispute the location of a portion of an easement, as well as the width of the entire easement. They also dispute the boundary line between their parcels.
¶2 Joseph, Dale, Arlis, and Ronald Ebert (the "Eberts") contend that the circuit court erred by "relocating" the southern terminus of the eastern fork of the easement (which we refer to as the "disputed portion"), and by "limiting" the entire easement’s width. We conclude that the court did not erroneously exercise its discretion when it established the location of the disputed portion of the easement and the entire easement’s width.
¶3 The Eberts also contend that the circuit court erred by relieving Innswood Whitetails, LLC and Frank Rasch (collectively, "Rasch") of their unambiguous stipulation that the "historic fence line" would be the property boundary. We agree that the court erred by diverging from the unambiguous stipulation between the parties when it set the boundary line between the parcels.
¶4 Accordingly, we affirm in part, reverse in part, and remand to the circuit court for proceedings consistent with this opinion.
¶5 This case has a lengthy and involved procedural history. There were two separate trials, issues that appeared to have been resolved were later revived, key witnesses testified on multiple occasions, and the circuit court ultimately issued three sets of findings of fact and conclusions of law. For ease of reading, we summarize the most pertinent facts here and then present additional evidence, testimony, and findings as needed in the discussion section below.
¶6 This dispute concerns two adjacent parcels of land in Monroe County. Innswood owns the parcel to the north (the "Rasch Property"), and Innswood’s sole members, Frank Rasch and his wife, live on the property. The Eberts own the wooded parcel to the south (the "Ebert Property"), and the Ebert family has used it for grazing cattle, hunting, picnics, and, most pertinent to this appeal, logging.
¶7 Both properties were originally part of a single parcel. In 1944, the Eberts’ predecessors-in-title divided the property in two and sold the northern parcel to Rasch’s predecessors-in-title. As part of the sale, the Eberts’ predecessors forever reserved "the right of ingress and egress over and across the [Rasch Property] by vehicle, on foot, team and otherwise" for themselves and "their heirs, administrators, and assigns."
¶8 The deed did not identify the location of this easement, but at some point after the sale, the Eberts’ predecessors established its general location through use. For the reader’s reference, we attach "Exhibit No. 3," an aerial photograph admitted during the first trial that contains (among other things) a rough sketch of the easement’s location as established by use. The easement has the appearance of an upside-down Y. Starting at the north of the Rasch Property, there is a single route of travel that follows Rasch’s driveway, passes between Rasch’s home and outbuildings, and reaches a three-way junction, or Y intersection. One branch turns to the east, travels southeast through pastures and fields, and eventually reaches the eastern portion of the Ebert Property. (The precise location of the terminus of this eastern branch is one subject of this appeal.) The western branch travels west and southwest from the junction, eventually reaching the western portion of the Ebert Property.
¶9 The Eberts grew up using the Ebert Property and eventually inherited it. Rasch purchased the Rasch Property in 1987. Starting in 2005 or 2006, Rasch began to take actions that interfered with the Eberts’ use of their easement. Among other things, Rasch put up a gate and attempted to change the path of the easement so that it would not pass near his house. The Eberts objected to Rasch’s proposed change.
¶10 In addition to their dispute over the easement, the parties also disputed the boundary line between their parcels. According to the 1944 deed, the property line consists of straight lines. The line starts at the parties’ shared western boundary, travels due east, takes a 90 degree turn to the north, and then takes a 90 degree turn to the east until it hits the shared eastern boundary. The parties have not, however, consistently recognized the deeded line as their boundary. Historically, there was a fence between the parcels, and the parties and their predecessors treated at least some portions of that curving fence line as the boundary. Exhibit No. 3 depicts the straight lines from the deed and the curved line that the Eberts contend is the historical fence line.
¶11 The Eberts initiated this lawsuit in 2016. Just prior to a scheduled bench trial, the parties entered into a stipulation to resolve the boundary dispute. They stipulated that the "boundary will be placed in the location of the historic fence line," and that "in general," the location of the historic fence line was "as depicted on Exhibit No. 3." The parties further stipulated that a surveyor "will establish ... the location of the historic fence line." Given their stipulation about the boundary, the parties agreed that the sole remaining disputes for trial related to the easement.
¶12 After the first trial, the circuit court determined that the location of the easement had been established by use "in the area described as the historic easement location on Exhibit #3" and that the court "cannot relocate the easement." It further determined that Rasch had intentionally interfered with the easement and ordered him to stop doing so. Finally, the court permitted the Eberts to "obtain a survey to obtain a description for the easement," and it retained jurisdiction of the matter "to amend this judgment to include such legal description." The court did not address the location of the boundary because the parties believed that this issue had been resolved by way of the stipulation quoted above.
¶13 After the first trial, the parties hired a surveyor, Gary Dechant, to provide legal descriptions of both the easement and the boundary. Dechant surveyed the established easement and the existing fence line (the "Dechant Survey"), and he prepared a legal description for quit claim deeds, which would establish ownership on both sides of the boundary. These deeds were never executed because the parties disputed the easement’s width and Rasch refused to sign them. The circuit court scheduled a second trial to address the dispute about the easement’s width.
¶14 At the outset of the second trial, Rasch informed the circuit court that two additional disputes needed to be addressed, one regarding the easement and the other regarding the boundary line. First, Rasch asked the court to address the location of the southern terminus of the eastern branch (the "disputed portion") of the easement, where, according to Dechant, there was no evidence of an existing traveled way. Second, Rasch asked the court to address the location of the property boundary on the western side of the parcels where, according to Rasch, there was no evidence of a historic fence line. The Eberts argued that these disputes had already been decided in the first trial or by stipulation, but the court agreed to hear the evidence.
¶15 Regarding the location of the disputed portion of the easement, the Eberts argued that the centerline should pass through the center of Rasch’s alfalfa field. Rasch argued that the centerline should pass south of the field.
¶16 Regarding the boundary, the Eberts presented the Dechant Survey, which depicts a line labeled "EXISTING FENCING" that appears to essentially track the hand-sketched "location of historic fence line" depicted on Exhibit No. 3. Rasch disputed the existence of any historic fence line to the west of a corner post noted on the Dechant Survey on the basis that the fencing that Dechant found west of the corner post differed in quality from the historic fence line to the east of the corner post. Rasch proposed that east of the corner post, the boundary should track the historic fence line, but that in the absence of a proven fence line west of the corner post, the boundary should track the line created by the deed.
¶17 The circuit court did not make any rulings at the close of the second trial. After the parties submitted written closing arguments, the court signed the proposed findings of fact, conclusions of law, and amended judgment submitted by Rasch without amendment or supplementation.1
¶18 The circuit court determined that, since there was no evidence of an existing traveled way at the disputed portion of the easement, it would place the disputed portion in the location that would not bisect Rasch’s alfalfa field. It further determined that the entire easement would be 12 feet wide, consistent with the width of the widest portion of the existing traveled way, and that such width was sufficient for ingress and egress including for logging. Finally, turning to the boundary line, the court concluded that there was insufficient evidence of the historic fence line west of the corner post and adopted Rasch’s proposal.
¶19 The Eberts contend that the circuit court erred by "relocating" the disputed portion of the easement’s eastern branch to Rasch’s preferred route, by "limiting" the width of the easement to 12 feet (which they argue is too narrow to accommodate modern logging equipment), and by determining that the property boundary would follow the deed line on the west end of the property. We address the location and width of the Eberts’ easement over the Rasch Property in ...
To continue reading
Request your trial