Figliuzzi v. Carcajou Shooting Club of Lake Koshkonong

• Decision Date: 13 June 1994
• Docket Number: No. 91-2426,91-2426
• Citation: 184 Wis.2d 572,516 N.W.2d 410
• Parties: Vincent FIGLIUZZI, and Mary Jane Figliuzzi, Plaintiffs-Appellants, v. CARCAJOU SHOOTING CLUB OF LAKE KOSHKONONG, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 410

516 N.W.2d 410

184 Wis.2d 572

Vincent FIGLIUZZI, and Mary Jane Figliuzzi, Plaintiffs-Appellants, v. CARCAJOU SHOOTING CLUB OF LAKE KOSHKONONG Defendant-Respondent-Petitioner.

No. 91-2426.

Supreme Court of Wisconsin.

Argued March 29, 1994.

Decided June 13, 1994.

For the defendant-respondent-petitioner there were briefs by Craig R. Johnson, Nicholas J. Loniello and Loniello & Johnson Law Office, Madison and oral argument by Craig R. Johnson.

HEFFERNAN, Chief Justice.

This is a review of a published decision of the court of appeals, Figliuzzi v. Carcajou Shooting Club of Lake Koshkonong, 177 Wis.2d 500, 502 N.W.2d 876 (Ct.App.1993), reversing a declaratory judgment of the Jefferson County Circuit Court, Judge Jacqueline R. Erwin. The circuit court concluded that the Carcajou Shooting Club's property right to hunt and shoot on land owned by Vincent and Mary Jane Figliuzzi constituted an easement and that a development proposed by the Figliuzzis would unreasonably interfere with that easement. The first issue we address on review is whether the hunting and shooting rights are an easement for purposes of sec. 893.33(6), Stats., ¹ which provides an exception to sec. 893.33(2), (3). The latter statutes provide that a claim to an interest in real estate can only be maintained if the claim is based on an instrument that has been recorded with the register of deeds within the previous thirty years. We conclude that the hunting and fishing rights are an easement under sec. 893.33(6). Although in the past we have labeled such rights a "profit a prendre," under Wisconsin law there is no distinction between easements and profits relevant to recording the property interest. Thus, the sec. 893.33(6) provision governing easements encompasses the hunting and fishing rights at issue in this case.

The second issue we address on review is whether the Figliuzzis' proposed development constitutes an unreasonable interference with the Carcajou Shooting Club's (Carcajou's) rights. We agree with the circuit court and conclude that it does. ² The Figliuzzis plan to build twenty-six condominiums in an area presently containing a single family residence. They plan to add a park and playground, as well as walking and horse-riding paths. The number of people on the property would greatly increase, as would car and boat traffic. The increase in the number of people, cars and boats on the property would reduce the number of wild animals that inhabit the property. The increase in the percentage of developed land would reduce the amount of land available for animal use. We agree with the circuit court's conclusion that such development would "virtually destroy" hunting and fishing activity on the Figliuzzis' property.

An 1896 warranty deed indicates that the Carcajou Shooting Club (Carcajou) purchased, for $7500, a parcel of land plus:

the exclusive right to all fishing and shooting privileges which grantors now have upon, in and about and appurtenant to the premises now owned by grantors in Sections 16 and 21 ... and the perpetual right to enter upon and fully and exclusively enjoy and use the same and for that purpose full rights of way and passage are hereby perpetually granted to grantee and its stockholders, hereby intending to convey to grantee and its stockholders the perpetual right to fish and shoot upon and over the lands now owned by grantors ... and the waters adjacent thereto and to kill and take all fish and game thereon and therein.

Testimony at the bench trial and uncontroverted information provided at oral argument indicate that the hunting and fishing rights applied to approximately four hundred acres of land. Carcajou now owns approximately three hundred of those acres. Carcajou last recorded its claim to the hunting and fishing rights in 1942.

In 1987, Vincent and Mary Jane Figliuzzi purchased, from a successor to the original grantor, 42.28 acres of the land to which the earlier grant of hunting and fishing rights applies. The list of exceptions in the Figliuzzis' title insurance policy includes, "[c]ovenants, conditions and restrictions as contained in Warranty Deed ... to Carcajou ... dated June 2, 1896." The seller also informed Mr. Figliuzzi that Carcajou possessed some type of hunting rights. Presently one single family home is contained on the property and the Figliuzzis and one of their children live in this home. At one time the property also contained a barn and several small outbuildings.

The Figliuzzis now wish to build a four building, twenty-six unit condominium complex on the northeast corner of the property, an area farthest from the land Carcajou owns and close to several other residences. Each unit would have two bedrooms and a single car garage. An architect's plans indicate that the area around the condominiums would contain a manicured lawn and a playground, along with walking paths and bridle paths in the undeveloped areas. Boat slips and a deck would be built on the shoreline. The condominium owners would be prohibited from hunting on the property.

During the various hunting seasons in late fall and early winter, the nineteen Carcajou members hunt deer, pheasant, ducks and geese on their property and the Figliuzzis' property. At trial, the Carcajou president indicated on maps the areas where the club hunts. In its decision, the circuit court explained that portions of these areas are included within the area that the Figliuzzis plan to develop. The Carcajou president asserted that the increased human activity and reduced cover for animals would interfere with Carcajou's hunting activities.

After obtaining the necessary government permits for the development, the Figliuzzis filed a declaratory judgment action in Jefferson County Circuit Court to ascertain how Carcajou's hunting and fishing rights affect their property. After a bench trial, the circuit court concluded that Carcajou's property interest is an easement that had been recorded within the applicable time limitations set forth in secs. 893.33(6) and (8), Stats. The circuit court then prohibited the proposed development because it determined that the development would unreasonably interfere with Carcajou's easement. The court based this conclusion on the evidence indicating that as a result of the development, there could be twenty-six times the current number of residents, visitors and vehicles on and about the property. Boat traffic would increase greatly. The Figliuzzis would add a park and playground, along with walking and bridle paths through the undeveloped land. The court determined that such development would "virtually destroy these forty-acres for hunting and fishing purposes."

The court of appeals reversed, concluding that Carcajou's hunting and fishing rights constitute a profit a prendre and that a profit is not an easement for purposes of sec. 893.33(6). Figliuzzi, 177 Wis.2d at 511, 502 N.W.2d 500. The court reasoned that a profit confers greater rights than does an easement. While both generally allow the holder of the interest to enter onto another's land, a profit includes the additional right to take something off the land. Id. The conclusion that Carcajou's interest was not an easement meant that the thirty year limitation on recording property interests, set forth in sec. 893.33(2), was applicable rather than the extended period for recording easements set forth in sec. 893.33(6). Carcajou's property interest had been recorded more than thirty years before the suit and hence the court of appeals' decision meant its rights were unenforceable. Therefore, the court of appeals did not reach the issue of whether the development was an unreasonable interference with Carcajou's rights.

The first issue we address on review is whether Carcajou's hunting and shooting rights constitute an easement under sec. 893.33(6), Stats. Statutory construction is a question of law that this court determines de novo. State v. Olson, 175 Wis.2d 628, 633, 498 N.W.2d 661 (1993).

Section 893.33(2), Stats., sets forth the general rule that an action to enforce a claim to an interest in real property cannot be brought unless that interest has been recorded within the previous thirty years. The principal draftperson of the original version of this statute, sec. 330.15, Stats.1941, states that "[t]he purpose of this legislation is to simplify and shorten the examination of record titles and otherwise reduce the legal costs incident to the sale of real property." Roy Tulane, Title to Real Property--Thirty Year Limitation Statute, 1942 Wis.L.Rev. 258, 259. The general rule is broadly applicable to property interests listed in sec. 893.33(5) , plus "any claim of any nature, however, denominated."

Section 893.33(6), Stats., provides an exception to the general thirty year recording requirement, for easements and restrictive covenants. Although the exception for easements currently requires recording of the interest every forty years, it is undisputed that under sec. 893.33(8), the previous sixty year recording period applies to easements filed by 1942, the year Carcajou filed its interest. Carcajou's interest had been recorded within the sixty year time period prior to the suit and if that interest is an easement, Carcajou can enforce its interest. If Carcajou's property interest is not an easement, the thirty year limitation period is applicable and Carcajou cannot enforce its interest.

Because the term "easement" developed in the common law, we look to the common law to determine whether Carcajou's property interest is an easement under sec. 893.33(6). We conclude that Wisconsin common law has not squarely addressed this issue. In Van Camp v. Menominee Enterprises, Inc., 68 Wis.2d 332, 343, 228 N.W2d 664 (1975), this court concluded that the right to hunt and fish "is a profit a prendre and, as such, an interest in real property." The court quoted several commentators who stated in essence that a profit is the right...