Figliuzzi v. Carcajou Shooting Club of Lake Koshkonong
| Decision Date | 13 May 1993 |
| Docket Number | No. 91-2426,91-2426 |
| Citation | 502 N.W.2d 876,177 Wis.2d 500 |
| Parties | Vincent FIGLIUZZI, and Mary Jane Figliuzzi, Plaintiffs-Appellants, d ]] v. CARCAJOU SHOOTING CLUB OF LAKE KOSHKONONG, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
This appeal involves the hunting and fishing rights of the Carcajou Shooting Club in the land Vincent and Mary Jane Figliuzzi own in Jefferson County. If, as the trial court held, by virtue of those rights, the club possesses an easement over their land, then the Figliuzzis acquired title subject to the club's hunting and fishing rights. Then the question is whether, as the court held, Figliuzzis' proposed condominium development on their land unreasonably infringes the club's rights. If the club does not possess an easement, then the Figliuzzis acquired their land free of the club's rights and the reasonableness of the development is not an issue. We conclude that the club possesses a profit a prendre rather than an easement. 1 We therefore reverse and remand with directions to enter judgment declaring that the proposed development may proceed.
The historical facts are undisputed. In 1896, the club paid $7,500 for a warranty deed conveying to it a parcel which apparently contained a building. The grantors also conveyed to the club
and its stockholders 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.
The trial court made no finding regarding the total amount of land owned by the 1896 grantors to which the club's hunting and fishing rights attached. At the bench trial, two club shareholders variously estimated the amount to be 300 to 400 acres.
In July 1987, a successor to the 1896 grantors conveyed to the Figliuzzis 42.28 acres which were included in the grant of hunting and fishing rights to the club. The Figliuzzis propose to construct twenty-six condominium units on part of their land. They brought this action for a judgment declaring their right to do so, notwithstanding the club's objection that the development would interfere with the club's rights. They appeal from the judgment in favor of the club.
The easement issue arises because of Wisconsin's "thirty-year statute," originally adopted as sec. 330.15, Stats. (1941), ch. 293, Laws of 1941, and now sec. 893.33, Stats. The attorney primarily responsible for drafting the statute described it as follows:
Chapter 293, Laws of 1941, provides in substance that no action shall be brought to enforce any claim to real estate which is based upon an instrument recorded more than thirty years previously or upon any unrecorded instrument or transaction more than thirty years old. The 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.
Tulane, Title to Real Property--Thirty Year Limitation Statute, 1942 WIS.L.REV. 258, 259 (footnote omitted).
In its present form, the statute, sec. 893.33(2), Stats., provides in pertinent part:
Except as provided in subs. (5) to (9), no action affecting the possession or title of any real estate may be commenced, and no defense or counterclaim may be asserted, by any person ... after January 1, 1943, which is founded ... upon any instrument recorded more than 30 years prior to the date of commencement of the action ... unless ... within 30 years after the date of recording of the recorded instrument ... there is recorded in the office of the register of deeds of the county in which the real estate is located, some instrument expressly referring to the existence of the claim or defense, or a notice setting forth the name of the claimant, a description of the real estate affected and of the instrument or transaction or event on which the claim or defense is founded, with its date and the volume and page of its recording, if it is recorded, and a statement of the claims made.
A partial exception applies to easements and restrictive covenants. 2 Section 893.33(6), Stats., provides in pertinent part:
Actions to enforce easements, or covenants restricting the use of real estate, set forth in any recorded instrument shall not be barred by this section for a period of 40 years after the date of recording such instrument, and the timely recording of an instrument expressly referring to the easements or covenants or of notices pursuant to this section shall extend such time for 40-year periods from the recording.
Section 893.33(8), Stats., provides:
If a period of limitation prescribed in s. 893.15(5), 1977 stats., has begun to run prior to July 1, 1980, an action shall be commenced within the period prescribed by s. 893.15, 1977 stats., or 40 years after July 1, 1980, whichever first terminates.
Section 893.15(5), Stats. (1977), provided a sixty-year period of limitation as to easements. The parties agree that in 1942 the club last recorded an instrument germane to its hunting and fishing rights and meeting the requirements of sec. 893.33(6), Stats. The parties also agree as to the effect of that recording: If the club possesses an easement over the Figliuzzis' land, the sixty-year limitation applies and the club's rights are enforceable as against the Figliuzzis. If the club does not possess an easement, the thirty-year limitation in sec. 893.33(2), Stats., applies, and since the Figliuzzis commenced their action in 1990, the club's 1942 recording does not protect its hunting and fishing rights vis-a-vis the Figliuzzis.
Whether the club's hunting and fishing rights are an easement is a question of law. We decide questions of law without deference to the trial court's decision. First Nat'l Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).
The common law rule is that a property owner may convey to another the right to hunt and fish on the owner's property. "[S]uch a right is a profit a prendre and, as such, an interest in real property." Van Camp v. Menominee Enters., Inc., 68 Wis.2d 332, 343, 228 N.W.2d 664, 670 (1975). The Van Camp court did not decide whether a profit is an easement. The question before the Van Camp court was whether hunting and fishing rights are an "interest in lands" for purposes of the statute of frauds, sec. 240.06, Stats. (1969), and the court held that they are. The court quoted several definitions to the effect that a profit is the right to acquire by severance or removal from another's land something that was a part of the land, such as wood, coal, minerals, sand and gravel, as well as the right to take game and fish on another's land. Van Camp, 68 Wis.2d at 343, 228 N.W.2d at 670. No quotation used by the Van Camp court includes a definition of an easement or alludes to whether a profit is an easement.
No appellate decision in this state, before or since Van Camp, has decided whether a profit is an easement. An earlier case, Gadow v. Hunholz, 160 Wis. 293, 297, 151 N.W. 810, 811 (1915), cited authorities pertaining to profits, and described the right to enter the property of another to harvest ice as "in its nature and kind a grant to take something which is a part of the soil or a product thereof and is denominated a right in the nature of an easement." A later case defined an easement "as a liberty, privilege, or advantage in lands, without profit, and existing distinct from the ownership of the soil." Colson v. Salzman, 272 Wis. 397, 401, 75 N.W.2d 421, 423 (1956). The Colson court did not decide whether a profit is or includes an easement. Thus, almost one hundred years after the Carcajou Shooting Club obtained its hunting and fishing rights, whether those rights are an easement is an open question.
Relying on the American Law Institute's decision in 1944 to refer to easements as including profits, the trial court concluded that easements and profits are indistinguishable and therefore the club possesses an easement over the Figliuzzis' land. See RESTATEMENT OF PROPERTY (SERVITUDES) § 450, at 2901-02 (1944), special note following the definition of an easement. The note states that in phrasing the rules applicable to easements and profits, "in no case was there a rule applicable to one of these interests which was not also applicable to the other." Id. at 2902. 3
Continued reliance on the note in the RESTATEMENT OF PROPERTY (1944) is risky. The ALI is revising the RESTATEMENT OF PROPERTY. The introduction to Tentative Draft No. 1 of the RESTATEMENT OF PROPERTY (SERVITUDES) (1989), states, Id. at xxvi. 4
Moreover, since 1944 several jurisdictions have continued to distinguish between profits and easements. See, e.g., McDonald v. Board of Mississippi Levee Commissioners, 646 F.Supp. 449, 466-67 (N.D.Miss.1986) (), aff'd, 832 F.2d 901 (5th Cir.1987); Reeves v. Alabama Land Locators, 514 So.2d 917, 918 (Ala.1987) (...
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Figliuzzi v. Carcajou Shooting Club of Lake Koshkonong
...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......