Ellingsworth v. Swiggum, 94-1812

• Decision Date: 01 June 1995
• Docket Number: No. 94-1812,94-1812
• Citation: 536 N.W.2d 112,195 Wis.2d 142
• Parties: William ELLINGSWORTH, and Helen Ellingsworth, His Wife, Plaintiffs-Respondents, d v. Frederick SWIGGUM, and Susan Swiggum, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 112

536 N.W.2d 112

195 Wis.2d 142

William ELLINGSWORTH, and Helen Ellingsworth, His Wife Plaintiffs-Respondents, ^d v. Frederick SWIGGUM, and Susan Swiggum, Defendants-Appellants.

No. 94-1812.

Court of Appeals of Wisconsin.

Submitted on Briefs April 6, 1995.

Opinion Released June 1, 1995.

Opinion Filed June 1, 1995.

For the defendants-appellants the cause was submitted on the briefs of Thomas A. Maroney of Johnson, Hansen, Shambeau, Maroney and Anderson, S.C., Waupaca.

For the plaintiffs-respondents the cause was submitted on the brief of Thomas W. Johnson of Werner, Lindgren & Johnson, S.C., New London.

Before GARTZKE, P.J., and DYKMAN and VERGERONT, JJ.

VERGERONT, Judge.

Frederick and Susan Swiggum appeal from a declaratory judgment permitting William and Helen Ellingsworth to replace a pier at the end of the Ellingsworths' easement on a riparian lot owned by the Swiggums. The Swiggums had removed the pier. After a trial to the court, the court concluded that the Ellingsworths, as non-riparian owners, were permitted to maintain the pier under § 30.131, STATS., and so had the right to replace the pier. We conclude that § 30.131 does not give the Ellingsworths the right to maintain or replace the pier, and therefore we reverse.

The relevant facts are not in dispute. The Swiggums own property (Lot 29) on McCrossen Lake and the Ellingsworths own property across the road from the Swiggums' lot (Lot 23). The Ellingsworths' lot is not on the lake. The Ellingsworths have an easement over the west end of Lot 29, specifically "a right of way over and across the West 15 feet of Lot 29 of McCrossen Plat, and being a subdivision of Gov. Lot 6, Sec. 34-22-11, for ingress and egress to the Lake." Both lots were at one time owned by John and Mary Gagliano; the Gaglianos also owned Lot 24, a non-riparian parcel adjacent to Lot 23. The Gaglianos granted the easement to Ben Johnson over Lot 29 when they sold Lot 23 to him in 1959. Johnson was a predecessor in title of the Ellingsworths. The trial court found the easement granted ingress and egress to McCrossen Lake. The easement was recorded in 1959.

The trial court found that during the 1960's, the Gaglianos rented out Lot 29 and used Lot 24 as their cottage. The trial court also found that between 1955 and 1960, the Gaglianos built a pier at the end of the easement over Lot 29 for the benefit of the non-riparian Lots 23 and 24. The Gaglianos sold Lot 29 in 1967. After a number of intervening owners, the Swiggums purchased Lot 29 in 1986. Ben Johnson eventually sold Lot 23, and after two intervening owners, the Ellingsworths purchased Lot 23 in 1990, together with the easement over Lot 29. The pier remained in place until the Swiggums removed it in 1992.

The trial court concluded that the pier removed by the Swiggums met the criteria of § 30.131, STATS., 1991-92, ¹ and therefore the Ellingsworths had the right to build another pier of the same dimension as that removed. Section 30.131 provides:

A wharf or pier of the type which does not require a permit under ss. 30.12(1) and 30.13 that abuts riparian land and that is placed in a navigable water by a person other than the owner of the riparian land may not be considered to be an unlawful structure on the grounds that it is not placed and maintained by the owner if all of the following requirements are met:

(1) The owner of the riparian land or the owner's predecessor in interest entered into a written easement that was recorded before December 31, 1986, and that authorizes access to the shore to a person who is not an owner of the riparian land.

(2) The person to whom the easement was granted or that person's successor in interest is the person who places and maintains the wharf or pier.

(3) The placement and maintenance of the wharf or pier is not prohibited by and is not inconsistent with the terms of the written easement.

(4) The wharf or pier has been placed seasonally in the same location at least once every 4 years since the written easement described in sub. (1) was recorded.

(5) The wharf or pier is substantially the same size and configuration as it was on April 28, 1990, or during its last placement before April 28, 1990, whichever is later.

(6) The placement of the wharf or pier complies with the provisions of this chapter, with any rules promulgated under this chapter and with any applicable municipal regulations or ordinances.

The construction of a statute when the facts are not disputed presents an issue of law, which this court reviews de novo without deference to the trial court's determination. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985). We consider first the language of the statute to determine whether the intent of the legislature is clear on its face. Voss v. City of Middleton, 162 Wis.2d 737, 749, 470 N.W.2d 625, 629 (1991).

The plain language of § 30.131, STATS., states that it applies to a "pier ... that is placed in a navigable water by a person other than the owner of the riparian land." Such a pier is not unlawful if it is of the type that does not require a permit under §§ 30.12(1) and 30.13, STATS., 1991-92, and meets certain conditions specified in § 30.131. Sections 30.12(1) and 30.13, STATS., 1991-92, specify the conditions under which a riparian owner may build a pier without a permit. Riparian owners are those who have title to the ownership of land on the bank of a body of water. Stoesser v. Shore Drive Partnership, 172 Wis.2d 660, 665, 494 N.W.2d 204, 207 (1993). The significance of § 30.131 is that it makes piers lawful even if they are built by non-riparian owners, provided the six statutory conditions are met. The first condition is that the riparian owner has granted an easement, recorded prior to December 31, 1986, authorizing access to the shore to a person who is not the riparian owner. Section 30.131(1). The second condition is that the easement holder or that person's successor in interest "is the person who places and maintains the wharf or pier." Section 30.131(2). ²

The first condition is met. The Gaglianos, the riparian owners of Lot 29 at the time, entered into a written easement that was recorded before December 31, 1986, authorizing access to the shore to Johnson, not an owner of Lot 29. With respect to the second condition, the trial court found that the Gaglianos had placed the pier. It made no finding as to who maintained the pier. Our review of the record discloses that there was testimony that Mr. Swiggum and the Swiggums' predecessor in title, Vincent Wojtech, did some maintenance work on the pier. There was also testimony by the Gaglianos' former son-in-law that he did some maintenance work on the pier. There is no evidence indicating the Ellingsworths, or any preceding owner of Lot 23 and holder of the easement over Lot 29, did maintenance work on the pier. The Ellingsworths have not shown that the pier removed by the Swiggums meets the requirement in the introductory language of § 30.131, STATS., that it was placed by a person other than the owner of riparian land. They have not shown that the pier meets the requirement in § 30.131(2) that the person to whom the easement was granted (Ben Johnson) or Johnson's successor in interest (subsequent owners of Lot 23 including the Ellingsworths) placed and maintained the pier. The statute, then, provides no basis for the Ellingsworths' claim to replace the pier.

The Ellingsworths argue, and the trial court agreed, that in spite of the apparent inapplicability of § 30.131, STATS., it does apply because of Godfrey Co. v. Lopardo, 164 Wis.2d 352, 474 N.W.2d 786 (Ct.App.1991). The facts in Godfrey Co. are complicated, and need some explanation in order to discuss the relevance to this case.

Godfrey owned riparian land on which it developed a subdivision, Westmoor. Godfrey's wholly-owned subsidiary, Store Equipment, Inc., developed a subdivision, Southmoor, on adjoining land that did not have lake frontage. Godfrey granted Store Equipment an easement across Lot 3 of Westmoor to give Southmoor owners lake access. Godfrey Co., 164 Wis.2d at 358-59, 474 N.W.2d at 788. Godfrey also built a pier at the end of the easement. After construction of the...