Grosshans v. Rueping

• Decision Date: 31 October 1967
• Citation: 36 Wis.2d 519,153 N.W.2d 619
• Parties: Edward W. GROSSHANS et al., Plaintiffs-Appellants, v. Paul R. RUEPING, Defendant-Respondent, Charles W. Rudolph et al., Impleaded Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 619

153 N.W.2d 619

36 Wis.2d 519

Edward W. GROSSHANS et al., Plaintiffs-Appellants, v. Paul R. RUEPING, Defendant-Respondent Charles W. Rudolph et al., Impleaded Defendants-Respondents.

Supreme Court of Wisconsin.

Oct. 31, 1967.

Rehearing Denied Dec. 29, 1967.

Cross, Langer & Krainik, Baraboo, for appellants.

Hill, Miller & Quale, Baraboo, for defendant-respondent.

Arthur, Tomlinson & Gillman, Madison, Ray A. Tomlinson and Bruce Gillman, Madison, of counsel, for respondents Denzer and Strait.

Hans O. Helland, Wisconsin Dells, for respondents Rudolph.

HANLEY, Justice.

The Grosshanses and Rueping are adjoining landowners, and a dispute arises out of two conveyances by the common grantors, Virgil Strait and his wife. Prior to August 16, 1947, the Straits owned all of the land presently owned by the Grosshanses and Rueping, the description in their deed reading as follows:

'The North Half (N 1/2) of Southwest Quarter (SW 1/4) of Section Ten (10), Township Twelve (12) North, of Range Six (6) East, except a parcel of .354 acres as described in a highway conveyance from the grantors to Sauk County, recorded in Volume 144 of Deeds, page 73 Records of Sauk County, Wisconsin.'

By a deed executed August 16, 1947, the Straits conveyed a portion of this tract to respondents Merlin L. Denzer and wife, to wit:

'One and one-quarter acres located in the north west corner of the north one-half of the south west one-quarter of section 10, township 12, north of range 6 east, excepting only, that portion of said tract heretofore conveyed for highway purposes to Sauk County, recorded in Volume 144 of Deeds, on page 73 in the office of the Register of Deeds for Sauk County, Wisconsin, said one and one-quarter acres to be 15.8 rods north and south and 12.65 rods east and west.'

The Denzers later conveyed to respondents Charles Rudolph and wife, using the same land description as in the deed from the Straits. On August 16, 1962, the Rudolphs conveyed to Rueping. The description used in the Rueping deed reads as follows:

'One and one-fourth (1 1/4) acres in the Northwest corner of the Northwest Quarter of the Southwest Quarter (N.W. 1/4 S.W. 1/4), Section Ten (10), Township Twelve (12) North, of Range Six (6) East, being 15.8 rods North and South and 12.65 rods East and West. 1.25 acres.'

In 1949, two years after conveying the corner parcel to the Denzers, the Straits conveyed to Cyril H. Gasner and Marcella Gasner, his wife, who subsequently conveyed to appellants, both deeds containing the following description:

'The north one-half of the southwest quarter (N 1/2 SW 1/4) of section ten (10), township twelve (12) north, of range six (6) east; except one and one-quarter (1 1/4) acres located in northwest corner of said eighty acres as described in warranty deed to Merlin L. Denzer and Della M. Denzer, his wife, recorded in Volume 202 of Deeds, page 224, Sauk County records; and except a parcel of .354 acres as described in highway conveyance to Sauk County, recorded in Volume 144 of Deeds, page 73, Sauk County records.'

The dispute arose because of the existence of two highways: U.S. 12, the centerline of which coincides with the west line of the north one-half of the southwest quarter of the section; and a town road, the centerline of which coincides with the north line of the north one-half of the southwest quarter of the section.

There has been no conveyance of record for the land occupied by the town road on the north. In 1929 there was a conveyance to the county for the widening only of U.S. 12, to wit:

'A parcel of land in the NW 1/4 of the SW 1/4 of Section 10, T12N, R6E, Town of Delton, Sauk County.

'Said parcel includes all the land lying within 45 feet east of the following described centerline:

'Commencing at a point 2575 feet west of the S 1/4 corner of Section 10; thence N4 11 W, 1315.9 feet to the point of beginning and south property limits of the grantor; thence continuing on said course 1286 feet to the north property limits of the grantor.

'This parcel excludes all land already in use for highway purposes and encroachment and contains 0.354 acres more or less.'

This amounted to a 12-foot strip running the distance from the northern to southern boundaries of the common parcel adjacent to the lands already in use as part of U.S. 12. There has been no conveyance for that part of the quarter section used by U.S. 12 prior to the time of the above conveyance.

The appellants in support of their motion for summary judgment filed an affidavit setting forth the description of the disputed area as follows:

'That part of the North one-half (N 1/2) of the Southwest quarter (SW 1/4) of Section Ten (10) Township twelve (12) North, of Range Six (6) East, Sauk County, Wisconsin, described as follows: Commencing at the Northwest corner of the North half (N 1/2) of the Southwest quarter (SW 1/4) of Section Ten (10), Township twelve (12) North, Range six (6) East; then South 15.8 rods along the West line of Section Ten (10) to the point of beginning; thence Easterly 12.65 rods more or less; thence Northely 15.8 rods to a point on the North line of the North half of Southwest quarter (SW 1/4) of Section Ten (10) aforesaid; thence Easterly along said North line 52 feet more or less; thence Southerly 293.70 feet more or less; thence Westerly 261 feet more or less to the West line of the Southwest quarter of Section Ten (10), thence Northerly along said line 33 feet more or less to the point of beginning.'

They then set out the land descriptions contained in the various deeds both in Rueping's and their own chain of title from the common grantors, the Straits, and the deed to Sauk county for the additional highway lands. They are thus asking this court to construe their deed to encompass the lands in dispute and direct summary judgment ejecting Rueping from the lands.

It is Rueping's contention that the parcel conveyed from the Straits to the Denzers should not be measured from the northwest corner of the southwest quarter of the section but rather from the right-of-way lines of U.S. 12 and the town road. Thus, the land in dispute which is L-shaped and lies south and east of the land indisputably owned by Rueping, is an amount equal to the portions of U.S. 12 and the town road which would be within the calls of Rueping's deed if it were construed to begin at the northwest corner of the southwest quarter of the section. On the east, however, it is apparent that respondent Rueping is claiming a strip seven feet wider than the lands occupied by U.S. 12. This is due to the fact they claim adversely lands held by his predecessor in title, Rudolph, under lease from Gasner.

In an affidavit from Rueping in opposition to the motion for summary judgment, he alleges that since the highway conveyance to the state took place prior to the conveyance from the Straits to the Denzers, they obviously could not convey such land to them and that the west line of his parcel is not the center but the edge of U.S. 12. He further alleges that the north line of the parcel was established by the Straits and the Denzers as a south line of the town highway and that the parties evidenced their intention by erecting a fence around the property.

Gasner and wife also exeucted an affidavit wherein they stated that at the time they purchased, in 1949, from the Straits (Gasners are in the Grosshans chain), there existed a line fence between their property and the Rueping parcel, then owned by the Denzers; and that the fence continued to exist throughout the time they owned the property until it was conveyed to the plaintiffs, with the exception that in 1952 or 1953, they leased along the easterly boundary of the Rueping parcel, then owned by the Rudolphs; that the Rudolphs moved the fence eastward to enclose the leased lands; that the Rudolphs subsequently terminated the lease in 1953 or 1954 but that the affiants are without recollection as to whether the fence was moved back or not; and finally that affiants never encountered any dispute concerning the boundary.

The...