K.G.R. v. Town of East Troy

• Decision Date: 02 February 1994
• Docket Number: No. 92-2508,92-2508
• Citation: 182 Wis.2d 215,513 N.W.2d 622
• Parties: K.G.R., a Wisconsin general partnership, Plaintiff-Appellant-Cross Respondent, v. TOWN OF EAST TROY, Defendant-Respondent-Cross Appellant. d
• Court: Wisconsin Court of Appeals

Page 622

513 N.W.2d 622

182 Wis.2d 215

K.G.R., a Wisconsin general partnership Plaintiff-Appellant-Cross Respondent, v. TOWN OF EAST TROY, Defendant-Respondent-Cross Appellant.^d

No. 92-2508.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 1, 1993.

Opinion Released Feb. 2, 1994.

Opinion Filed Feb. 2, 1994.

Before ANDERSON, P.J., NETTESHEIM and SNYDER, JJ.

SNYDER, Judge.

K.G.R., a general partnership engaged in real estate development, appeals from a judgment establishing the Town of East Troy as the owner of a parcel of land by virtue of its acceptance in 1990 of a 1966 offer to dedicate the land to the Town for use as a public park. Because we hold that the death of a dedicator revokes a previously unaccepted offer, we reverse that portion of the judgment establishing the Town as the owner of the disputed land. The Town cross-appeals from that portion of the judgment invalidating an agreement between the Town and various landowners of a subdivision owned by K.G.R. requiring that the remaining lots in the subdivision be sold in pairs. Because we conclude that there was no evidence to support a contrary verdict, we affirm the trial court's directed verdict and that portion of the judgment holding the agreement unenforceable.

FACTS

This case arises out of a dispute over a parcel of land located near Lake Beulah in the Town of East Troy. In 1953, Katherine Christenson recorded a plat of land known as Clearview Subdivision which contained three blocks. ¹ Christenson designated a fifty-foot strip of land in the three blocks leading to Lake Beulah as a road known as Oak Ridge Avenue. After the 1953 platting, Christenson offered lots in Blocks 1 and 2 to prospective purchasers and claimed that they would have access to Lake Beulah via Oak Ridge Avenue. She also designated Block 3, which abuts Lake Beulah, for the use of launching and dry-docking the lot owners' watercraft.

In 1956, the supreme court issued a decision regarding Christenson's dedication of Block 3 and held, inter alia, that: (1) Oak Ridge Avenue had been properly dedicated and accepted by public usage as a public road, and (2) the remainder of Block 3 could not be used for boat launching and storage because such usage was contrary to the residential use restriction of the original deed and contrary to the residential zoning of Block 3. See Lake Beulah Protective & Improvement Ass'n v. Christenson, 272 Wis. 493, 497-98, 76 N.W.2d 276, 278 (1956). In 1966, Christenson filed certain amended plat restrictions for Clearview Subdivision, which contained an offer to dedicate Block 3 of the subdivision to the "public" and the "lot owners" as a public park. ²

On August 31, 1968, Katherine transferred all of her rights in Clearview to Millard L. and Jennie B. Christenson. Katherine died on November 9, 1969. It is undisputed that prior to her death, the Town failed to take any action to accept her offer to dedicate Block 3 as a public park. The dedication remained unaccepted for approximately the next twenty years.

During the time after Katherine's death, ownership in the Clearview lots was transferred to various parties, including Floyd Roberts. In 1987, Roberts and some other lot owners in Blocks 1 and 2 signed an agreement with the Town of East Troy which purported to "double-up" most of the lots. Since the double-up agreement is the subject of the Town's cross-appeal, we will recite further relevant facts when addressing the cross-appeal in detail.

In March of 1989, K.G.R. obtained a majority of the Clearview subdivision lots by warranty deed from Liberty Bank, which had obtained the lots through a foreclosure action. Although the parties dispute the date K.G.R. acquired legal title to Block 3, it is clear that K.G.R. believed and acted as though it owned Block 3 by virtue of a quitclaim deed from Liberty Bank. ³ During negotiations and meetings with the town board, K.G.R. expressed concern over the restriction that reserved Block 3 for use as a public park. K.G.R. made it known that it wanted Block 3 to be park space for the exclusive use of the lot owners in the subdivision, which it apparently believed to be an important selling point for the further development of the subdivision.

At some point the town board became concerned that K.G.R. was ultimately planning further development of Block 3 contrary to the dedication and recorded restrictions. After a meeting on March 14, 1990, the Town passed a resolution formally accepting Christenson's 1966 offer to dedicate Block 3 as a public park.

K.G.R. filed suit seeking declaratory relief barring the Town from claiming any right or title to Block 3. K.G.R. alleged that the Town's claim to Block 3 was invalid because K.G.R. as a successor in interest to the property revoked the offer of dedication, the offer of dedication expired upon the death of the original dedicator, Katherine Christenson, or the Town was estopped from acceptance of the dedication based upon its conduct. K.G.R. also alleged that the lot double-up agreement signed by Roberts and the Town in 1987 was invalid. The Town subsequently moved for summary judgment declaring that both the 1966 offer dedicating Block 3 as a public park and the Town's acceptance in 1990 were valid and that the double-up agreement entered into with Roberts is binding on K.G.R. and any future owners.

The trial court granted summary judgment in part. The court determined that: (1) the death of a dedicator subsequent to the transfer of the dedicator's interest in the land did not revoke the dedication, and (2) K.G.R. was not the sole owner of all of Clearview Subdivision and therefore could not revoke the dedication. Consequently, the court ruled that unless estoppel was proved, Block 3 was a public park owned by the Town because it had been properly dedicated as such and was accepted by the Town prior to any valid revocation of the dedication.

A six-member jury trial was held on the remaining issues of whether the Town was estopped by its conduct and dealings with K.G.R. from accepting Block 3 as a public park and whether K.G.R. was bound by the 1987 double-up agreement. After all of the evidence was presented, the trial court granted K.G.R.'s motion for directed verdict, holding that the double-up agreement was invalid. Regarding the estoppel issue, the jury found that the Town was not estopped from accepting the dedication. A judgment was subsequently entered declaring the Town as the owner of Block 3 and the double-up agreement invalid.

K.G.R. appeals from the portion of the judgment establishing the Town as the owner of Block 3 by virtue of its acceptance of the 1966 dedication. The Town cross-appeals from the portion of the judgment declaring the double-up agreement to be unenforceable. ⁴

OWNERSHIP OF BLOCK 3

The trial court granted the Town's motion for summary judgment, finding that the 1990 acceptance of the 1966 dedication of Block 3 was valid. The grant of summary judgment in this case depends on a legal question of first impression. Whether summary judgment should have been granted is a question of law. Fortier v. Flambeau Plastics Co., 164 Wis.2d 639, 651-52, 476 N.W.2d 593, 597 (Ct.App.1991). We independently apply the summary judgment methodology set forth in § 802.08(2), STATS., to the record de novo. Wegner v. Heritage Mut. Ins. Co., 173 Wis.2d 118, 123, 496 N.W.2d 140, 142 (Ct.App.1992). Summary judgment should be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. Because we conclude as a matter of law that the death of a dedicator revokes an unaccepted offer of dedication, we reverse that portion of the judgment establishing the Town as the owner of Block 3.

In order for a dedication of land to be complete, there must be both an offer and an acceptance in some form. Galewski v. Noe, 266 Wis. 7, 11, 62 N.W.2d 703, 705 (1954). " 'The essential requisites of a valid common-law dedication are that there must be an intent to dedicate on the part of the owner and an acceptance of the dedication by the proper public authorities or by general public user.' " Id. at 12, 62 N.W.2d at 706 (quoting Knox v. Roehl, 153 Wis. 239, 243, 140 N.W. 1121, 1122-23 (1913)). To be timely, acceptance must occur before the offer to dedicate is withdrawn or revoked. Id. at 14, 62 N.W.2d at 707.

Whether the death of a dedicator revokes an offer of dedication is a question of first impression in Wisconsin. Most jurisdictions which have considered the issue have ruled that a common-law dedication is revoked if no acceptance occurs before the death of the grantor. ⁵ We agree with the majority of jurisdictions and conclude that the death of the dedicator acts as an implied revocation of the offer to dedicate. Such a rule is analogous to the basic tenet of contract law which provides that an offeree's power of acceptance is terminated when either

party dies. See RESTATEMENT (SECOND) OF CONTRACTS § 48, at 126 (1979); 1 SAMUEL WILLISTON, A TREATISE ON THE LAW OF CONTRACTS § 5:2 (4th ed. 1990).

It is undisputed that Katherine offered to dedicate Block 3 in 1966 and that she died in 1969. It is further undisputed that the Town did not act to accept the offer until 1990. Applying the rule to these facts, Katherine's unaccepted offer to dedicate Block 3 terminated upon her death in 1969. Accordingly, the Town has no ownership interest in Block 3 because its acceptance of the offer was precluded by Katherine's intervening death.

The trial court held that the death of the dedicator did not revoke the offer to dedicate in this case because Katherine did not have an ownership interest in the property at the time of her death, having transferred it to Millard and Jennie Christenson. Therefore, Katherine "had no power to revoke the dedication herself, whether intentionally or by act of her death." Based upon our review of Wisconsin case law, we disagree.

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