Kapinus v. Nartowicz

• Citation: 404 Wis.2d 19,978 N.W.2d 216,2022 WI App 39
• Decision Date: 03 June 2022
• Docket Number: Appeal No. 2021AP1027
• Parties: Jack KAPINUS, Renee Kapinus and Kapinus Family Trust, Plaintiffs-Respondents, v. Joseph NARTOWICZ, Karen Nartowicz, Gina Newell and Robert Newell, Defendants-Appellants, Chazz Huston, Eric Fitzgerald, Shannon Fitzgerald, David Minear Roahen and Lucy M. Flesch Revocable Trust, David M. Junck, Steven D. Alf, Shannon R. Alf, Harry E. Van Camp, Susan S. George, Brian E. Penington, Tonya N. Penington, Adrienne R. Hampton, Sarah M. Dorn, Jonathon Cornell, Jill Cornell, Kristin M. Kerschensteiner, Suzanne M. Brewer, Richard F. & Doris L. McLaughlin Living Trust, Jacqueline P. Moore, Jonathan C. Schmidt, Jennie E. Schmidt, Don Goben, Julie R. Kubicek, SAJS Trust and Amy & Kevin Coombe Revocable Living Trust, Defendants.
• Court: Court of Appeals of Wisconsin

404 Wis.2d 19
978 N.W.2d 216
2022 WI App 39

Jack KAPINUS, Renee Kapinus and Kapinus Family Trust, Plaintiffs-Respondents,
v.
Joseph NARTOWICZ, Karen Nartowicz, Gina Newell and Robert Newell, Defendants-Appellants,

Chazz Huston, Eric Fitzgerald, Shannon Fitzgerald, David Minear Roahen and Lucy M. Flesch Revocable Trust, David M. Junck, Steven D. Alf, Shannon R. Alf, Harry E. Van Camp, Susan S. George, Brian E. Penington, Tonya N. Penington, Adrienne R. Hampton, Sarah M. Dorn, Jonathon Cornell, Jill Cornell, Kristin M. Kerschensteiner, Suzanne M. Brewer, Richard F. & Doris L. McLaughlin Living Trust, Jacqueline P. Moore, Jonathan C. Schmidt, Jennie E. Schmidt, Don Goben, Julie R. Kubicek, SAJS Trust and Amy & Kevin Coombe Revocable Living Trust, Defendants.

Appeal No. 2021AP1027

Court of Appeals of Wisconsin.

Submitted on Briefs: November 19, 2021
Opinion Filed: June 3, 2022

On behalf of the defendants-appellants, the cause was submitted on the briefs of Josh C. Kopp of von Briesen & Roper, S.C., Madison.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Nicholas J. Loniello and Max A. Meier, of Loniello, Meier & Associates, LLC, Madison.

Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.

KLOPPENBURG, J.

978 N.W.2d 219

404 Wis.2d 23

¶1 This case arises from a dispute regarding the rights of owners of residential

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lots (the "lot owners") created by the plat of Wa-che-etcha as to three non-residential lots (the "lake access lots") created by the plat.¹ Jack and Renee Kapinus, individually and as trustees of the Kapinus Family Trust, sued Joseph and Karen Nartowicz alleging causes of action for private nuisance, public nuisance, and trespass, and seeking declaratory judgment in connection with the Nartowiczes’ pier and boat hoist facilities (the "Nartowicz pier") that have been seasonally erected at the shore line of one of the three lake access lots, which is adjacent to and shares a common boundary with the residential lot owned by Kapinus.²

¶2 Kapinus argued in a motion for summary judgment that the Nartowiczes and the rest of the lot owners have an interest in the lake access lots that is only in the nature of an easement. Therefore, Kapinus argued, the Nartowicz pier is unlawful and both a public and private nuisance because the pier is placed by a non-riparian owner pursuant to an easement and it is undisputed that the pier fails to meet the requirements of WIS. STAT. § 30.131, which prohibits a non-riparian

404 Wis.2d 25

owner from placing a pier pursuant to an easement on riparian land unless certain requirements are met.³

¶3 Nartowicz argued in a cross-motion for summary judgment, as Nartowicz argues now on appeal, that a notation in the 1911 plat which "reserved" the lake access lots for the use of the lot owners was a "dedication" that effectively conveyed to all of the lot owners fee simple title ("fee title") in the lake access lots. Accordingly, Nartowicz argued, by virtue of their holding fee title to the lake access lots, the lot owners are all riparian owners, and riparian ownership carries with it the right to install and maintain piers at the shoreline of the lake access lots. See Town of East Troy v. Flynn , 169 Wis. 2d 330, 338, 485 N.W.2d 415 (Ct. App. 1992) ("Because each subdivision owner has a fee simple title in Beulah Alley, each owner is a riparian owner."). As a result, Nartowicz contended, WIS. STAT. § 30.131, which governs the placement of piers by non-riparian owners, is inapplicable.

¶4 The circuit court granted Kapinus's motion and denied Nartowicz's motion, ruling that Nartowicz and the rest of the lot

978 N.W.2d 220

owners have an interest in the lake access lots that is only in the nature of an easement, and therefore any pier installed at the shoreline of the lake access lots is unlawful under

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WIS. STAT. § 30.131. On the same ground, the court ruled that the Nartowicz pier is both a private and public nuisance.

¶5 We conclude from the language in the plat notation that the plat drafter intended to convey to the lot owners an interest in the lake access lots that is only in the nature of an easement. Accordingly, we affirm.

BACKGROUND

¶6 The following facts are undisputed. The plat of Wa-che-etcha ("the plat") was recorded on June 3, 1911, and created thirty residential lots as well as the three lake access lots labeled A, B, and C. The thirty residential lots are separated into three blocks on the plat. Blocks one and two contain a total of seventeen lots, and each lot has frontage on Lake Waubesa. We refer to these lots as the "riparian lots" and to the owners of these lots as the "riparian owners." Block three of the plat contains the remaining thirteen lots, none of which have any lake frontage. We refer to these lots as the "non-riparian lots" and to the owners of these lots as the "non-riparian owners."

¶7 The three lake access lots are thin strips of riparian land that provide access to Lake Waubesa from the street that separates the riparian lots in blocks one and two from the non-riparian lots in block three. Each lake access lot extends from the street to the lakeshore and is four feet wide, except that lots A and C widen to ten feet at the lakeshore and lot B widens to fourteen feet at the lakeshore. The 1911 plat contains the following notation regarding the lake access lots: "Lots A, B, and C are reserved for the use of lot owners in this plat only, including boat house and pier privileges for said lot owners."

404 Wis.2d 27

¶8 In 2018, Kapinus acquired title to a riparian lot (the "Kapinus lot") immediately north of lake access lot B, where the Nartowicz pier was seasonally installed. The Kapinus lot was separated from lot B by a three-foot wide strip of land. In 2019, Kapinus acquired the three-foot wide strip of land so that the Kapinus lot shares its southerly boundary with lot B.⁴

¶9 The property owned by the Nartowiczes is a non-riparian lot located in block three of the plat. The Nartowiczes have been seasonally installing, maintaining, and using the Nartowicz pier at the shoreline of lot B since 1983.⁵

¶10 The Nartowicz pier that was installed at the shoreline of lot B in 2018, 2019, and 2020 extended beyond the northern boundary of the "riparian zone" of lot B and into the "riparian zone" of the Kapinus lot.⁶

404 Wis.2d 28

Kapinus filed a complaint against the

978 N.W.2d 221

Nartowiczes in May 2020, alleging causes of action for private nuisance, public nuisance, and trespass, and seeking declaratory judgment.

¶11 The Nartowiczes moved to dismiss based on Kapinus's failure to join necessary and indispensable parties. The circuit court dismissed the action and required Kapinus, if Kapinus was to proceed, to file an amended complaint naming all of the lot owners as defendants. Of the total thirty-two lot owners later joined as defendants, nineteen did not participate in the case; they either defaulted or were dismissed on a stipulation to be bound by the outcome of the case.

¶12 Kapinus filed a motion for summary judgment and a statement of proposed undisputed facts.⁷ In the motion, Kapinus asserted that the seasonally installed Nartowicz pier at the shoreline of lot B is unlawful for failure to satisfy all six requirements of WIS. STAT. § 30.131.⁸

404 Wis.2d 29

¶13 Of the remaining fifteen defendants who were not dismissed from the action, eleven filed a joint response opposing Kapinus's motion for summary judgment and making a cross-motion for summary judgment. Those eleven defendants included the Nartowiczes and the Newells.⁹ In the cross-motion for summary judgment, Nartowicz did not dispute any of the proposed undisputed facts filed by Kapinus. Nartowicz also did not dispute Kapinus's argument that the seasonal pier cannot satisfy the requirements of WIS. STAT. § 31.131 in order to be "grandfathered in" as a lawful pier installed by non-riparian owners pursuant to an easement. Rather, Nartowicz argued that the plat notation regarding the lake access lots "dedicated" the lake access lots to the owners of all of the lots in the plat, which had the effect of transferring

978 N.W.2d 222

fee title to

404 Wis.2d 30

them. Accordingly, Nartowicz argued, because each lot owner is a riparian owner of the lake access lots, each lot owner has the right to install and maintain piers at the shorelines of those lots.

¶14 In reply, Kapinus argued that, because Nartowicz did not dispute any of the proposed undisputed facts, only one question of law remained: whether the plat notation regarding the lake access lots conveyed ownership of the lake access lots to the lot owners (which would allow any lot owner to install a pier as a riparian owner of the lake access lots) or instead merely conveyed an interest in the lake access lots that is in the nature of an easement. Kapinus argued that the plat conveyed an interest that is only in the nature of an easement and that, because Nartowicz did not dispute that the six requirements of WIS. STAT. § 30.131 are not met, the easement does not include the right to install and maintain piers at the shoreline of the lake access lots.

¶15 At the hearing on the cross-motions for summary judgment, the parties agreed that there were no disputes of material fact and that only questions of law remained. The parties also agreed that, because none of the piers at the shoreline of the lake access lots, including the Nartowicz pier, meet the requirements to be "grandfathered in" under WIS. STAT. § 30.131, if the circuit court concluded that the plat conveyed an interest that is only in the nature of an easement, the piers would be unlawful and summary judgment should be granted for Kapinus.

¶16 The circuit court granted Kapinus's motion for summary judgment and denied Nartowicz's motion.

¶17 This appeal follows.

404 Wis.2d 31

DISCUSSION

¶18 "Whether the circuit court properly granted summary judgment is a question of law that this court reviews de novo." Schmidt v. Northern States Power Co. , 2007 WI 136...