Hajec v. Novitzke
| Decision Date | 31 March 1970 |
| Docket Number | No. 95,95 |
| Citation | 175 N.W.2d 193,46 Wis.2d 402 |
| Parties | Ben HAJEC, Respondent, v. Louis NOVITZKE et al., Appellants. |
| Court | Wisconsin Supreme Court |
The plaintiff-respondent, Ben Hajec, and his wife have since 1948 owned and operated a 160-acre farm in the southeast quarter of fractional section 19 in the town of Guenther, Marathon county. This land is on the north side of county trunk C. County trunk C is the southern boundary line of section 19 as well as the northern boundary line of section 30. The Hajecs have a stone fence line generally running in a north/south direction on the western portion of their property.
The defendants-appellants, Louis Novitzke and Joseph Lang, own as tenants in common a 132-acre farm, known as the Pachniak farm, in section 30. This farm is immediately south and west of the Hajecfarm, the two farms being separated by county trunk C.
On this Pachniak farm there was only one usable well located east of the farm buildings. This well was the only existing source of water for the house and other buildings on this farm. Lang and Novitzke had purchased this farm for investment purposes and neither lived there.
In the fall of 1964, Mrs. Hajec met Novitzke at a neighborhood auction sale. She told him that if he and Lang were going to split the Pachniak farm into parcels she and her husband would be interested in the 40 acres across the road from their farm.
In January or February of 1965, Lang and Novitzke went to the Hajec farm for further discussions concerning the sale of a portion of the Pachniak farm. There is sharp dispute between the parties as to what was said and done at this meeting.
The Hajecs claim that Lang and Novitzke told them they wanted to sell 60 acres to the south of the Hajec farm and that from this conversation the Hajecs believed they were to receive the 60 acres. Lang and Novitzke deny any acreage was mentioned and claim that the parties agreed to transfer that portion of the Pachniak farm that would be encompassed if the stone fence on the western portion of Hajec's farm were extended due south. Lang and Novitzke claim that this stone fence line is the west boundary line of Hajec's property.
The Hajecs, on the other hand, contend that they repeatedly told Lang and Novitzke that the stone fence was not their true boundary line and that they should not use it as such. Lang and Novitzke deny this.
Lang and Novitzke contend that there was a discussion as to what effect extending the fence line south would have on the well on the Pachniak farm. Lang and Novitzke claim that Hajec told them not to worry because the well would be at least 25 feet west of the line as extended and, therefore, it would not be part of the deal. In fact, Lang and Novitzke went out and sighted down this stone fence line on the Hajec's property and concluded that the well would indeed be west of the proposed extended line by some 25 feet. In addition, they claim that Hajec told them even if the fence line did take in the well, he would give them an easement to use the well because he didn't need it.
Sometime thereafter a price was agreed upon. During examination of the title, the lender discovered that there were only 55 acres in the parcel. When Hajec was told of this, he wanted to get out of the deal. He then went out and sighted down on what he thought was the west boundary line and found that the well would be included in the parcel that he was to get. Hajec claims he still wanted out of the deal and even told Lang that the well would be on the parcel in order to get the sellers to call off the deal.
However, at a meeting with Lang and Novitzke at their lawyer's office, they insisted that the deal go through.
Lang and Novitzke denied that Hajec claimed to either of them that the well would be on the parcel to be deeded.
A deed was drafted by the lawyer for Lang and Novitzke and on April 22, 1965, the following described property was conveyed by Lang and Novitzke to Hajec:
'The Northwest quarter (NW 1/4) of the Northeast quarter (NE 1/4); and the North Thirty (30) rods of the Southwest quarter (SW 1/4) of the Northeast quarter (NE 1/4), all in Section Thirty (30), Township Twenty-six (26) North, Range Eight (8) East.'
Several weeks after the closing Lang came out to the Hajec property and the two of them, along with David Vercimak, a neighbor farmer to the east of Hajec's new property, made measurements relating to boundary lines. They started at the road running approximately along the east side of section 30 and measured west along the south side of highway C. A marker of some kind was placed along the highway, east of the fence between Hajec's new land and the Vercimak property. Thus the implication was that Vercimak's property did not extend as far west as his fence would indicate. However, Mr. Vercimak did not object to the placement but subsequently testified that he did not believe the marker was placed on the true boundary.
Another marker was placed on Hajec's new property as the western boundary of it. This marker placed the boundary line east of the well. Thus the implication was that the well was not included in the property deeded to Hajec. Hajec subsequently testified that the marker did not seem right to him. However, Hajec neither agreed nor disagreed with the placement of the marker.
Subsequently, Lang and Novitzke sold the remaining portion of the Pachniak farm to Otis Beggs on a land contract. Beggs and Hajec took an informal survey for the purpose of laying out a fence line. They placed a stake along highway C, one or two rods west of the end of Hajec's stone fence. Thus the implication this time was that the well was on Hajec's property.
In April of 1966 Beggs assigned his interest in the Pachniak farm to Francis Morris, who contacted Hajec about the well. Hajec informed Morris that Hajec was claiming the well and suggested to Morris that he obtain some written protection about the well from Lang and Novitzke. Morris obtained a written guaranty signed by Lang and Novitzke, guaranteeing that a water-producing well was located on the portion of the Pachniak farm that Morris was buying. Subsequently, Hajec capped the well to prevent Morris from using it. Prior to this time, Hajec had not attempted to interfere with the use of the well.
Hajec finally decided to have the line surveyed. In order to avoid paying extra charges to the surveyors, Hajec claims that he started cutting the brush and trees along what he considered his side of the line. Morris saw that Hajec was cutting the trees and reported this to Lang and Novitzke. Lang and Novitzke went out to the property and saw which trees had been cut. Novitzke then went to see his lawyer and told him that Hajec was cutting trees on Novitzke's land. His lawyer took him to see the district attorney for Marathon county. Upon Novitzke's complaint that Hajec was cutting timber on his (Novitzke's) property, the district attorney, after a fifteen-to-thirty-minute conference with Novitzke and Lang and their lawyer, issued a summons to Hajec to appear to answer a charge of violating sec. 26.04, Stats. 1965, 1 unlawfully cutting forest products on the land of another. The district attorney issued this summons without the benefit of a survey and without any independent investigation of his own other than reference to a plat book which he had in his office.
The plaitniff was arraigned in county court in Wausau and had a trial date set. He thereafter had Leonard Lampert, a registered surveyor, survey the property. This survey, made in January of 1967, indicated that all of the bushes and trees cut, and also the well, were in the northwest quarter of the northeast quarter of section 30, or in other words, on the land conveyed to the Hajecs by Lang and Novitzke. Based on this information, the district attorney dismissed the complaint.
Thereafter, Hajec brought this instant action against Lang and Novitzke for malicious prosecution. The defendants counterclaimed for reformation of the deed. Trial was before the court without a jury and Judge Keberle subsequently entered judgment on February 26, 1968, based on Lampert's survey, denying defendants' counterclaim for reformation, and awarded the plaintiff, Hajec, $1,000 against defendant, Novitzke, for malicious prosecution and awarded Hajec $1 damages for trespass.
The defendants Lang and Novitzke appeal from the whole of this judgment and Hajec has filed a motion for review of the trial court's award of only nominal damages for the trespass.
Krueger & Thums, Wausau, for appellants.
Tinkham, Smith, Bliss & Patterson, Wausau, for respondent.
On defendants' appeal three issues are presented:
1. Is the trial court's finding that the deed from Lang and Novitzke of April 22, 1965, conveyed to Hajec the portion of the property on which the well and trees which Hajec subsequently cut were located not against the great weight and clear preponderance of the evidence?
2. Did Lang and Novitzke establish that they were entitled to reformation of the deed?
3. Did Novitzke have probable cause to sign the complaint against Hajec?
It is clear that Lang and Novitzke intended to convey to Hajec the property described in the deed. What is not so clear is whether the parties knew where the westerly boundary of that description was. Neither Hajec nor Lang nor Novitzke had the property surveyed prior to the execution of the deed. Only after Hajec was charged with timber trespass following his entry on the property to cut trees did he hire Leonard Lampert to do a survey to determine the western boundary line of his property. Lampert's survey indicated that the western boundary line was approximately five feet west of the well. Under this survey the well and the trees were all on the land deeded to Hajec.
On the other hand, the defendants waited until after the malicious prosecution action was started against them and...
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