Konneker v. Romano

• Decision Date: 07 July 2010
• Docket Number: No. 2008AP1546.,2008AP1546.
• Citation: 326 Wis.2d 268,785 N.W.2d 432,2010 WI 65
• Parties: Robert D. KONNEKER and Ann M. Konneker, Plaintiffs-Respondents-Petitioners, v. Robert S. ROMANO and Francis A. Romano, Defendants-Appellants, Norman E. Nelson and Lawrence A. Nelson, Defendants.
• Court: Wisconsin Supreme Court

326 Wis.2d 268 785 N.W.2d 432 2010 WI 65 Robert D. KONNEKER and Ann M. Konneker, Plaintiffs-Respondents-Petitioners, v. Robert S. ROMANO and Francis A. Romano, Defendants-Appellants, Norman E. Nelson and Lawrence A. Nelson, Defendants. No. 2008AP1546. Supreme Court of Wisconsin. Argued Feb. 11, 2010. Decided July 7, 2010.

For the plaintiffs-respondents-petitioners there were briefs by Steven R. Sorenson, Emily E. Dinegan, and the Sorenson Law Office, Ripon, and oral argument by Steven R. Sorenson.

For the defendants-appellants there was a brief by Jeffrey J. Liotta, Lisa M. Arent, and Whyte Hirschboeck Dudek S.C., Milwaukee, and oral argument by Lisa M. Arent.

An amicus curiae brief was filed by Thomas D. Larson and Wisconsin REALTORS® Association, Madison, on behalf of the Wisconsin REALTORS® Association.

An amicus curiae brief was filed by William P. O'Connor, Mary Beth Peranteau, and Wheeler, Van Sickle & Anderson, S.C., Madison, on behalf of the Wisconsin Association of Lakes.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of an unpublished per curiam decision of the court of appeals¹ that reversed an order of the Green Lake County Circuit Court, Judge William M. McMonigal presiding, which granted summary judgment to Robert and Ann Konneker (the Konnekers) and denied summary judgment to Robert and Francis Romano (the Romanos) and Norman and Lawrence Nelson (the Nelsons). The court of appeals remanded, directing the circuit court to enter summary judgment in favor of the Romanos.² The Konnekers petitioned this court for review, and we accepted. We now reverse the decision of the court of appeals and remand the case to the circuit court for further proceedings.

¶ 2 This case presents the following issues: (1) whether this lakefront easement, created by a deed that is otherwise silent as to the easement's use and purpose, grants riparian rights, including the right toconstruct and maintain a pier; and (2) what impact, if any, do Wis. Stat. §§ 30.131 and 30.133 (2007-08) ³ haveon this case.⁴

¶ 3 We conclude that summary judgment was improper in this case. The language of the deed, which created the Konnekers' easement, is ambiguous. The deed conveys to the Konnekers a 20-foot wide lakefront easement along the west side of the Romanos' and Nelsons' property but is otherwise silent as to the easement's use and purpose. It is therefore not clear from the deed whether the parties intended the easement holder to have riparian rights, including the right to construct and maintain a pier. Because the parties' competing affidavits raised a genuine issue of material fact concerning the intent behind the easement, summary judgment was improper. We therefore reverse the decision of the court of appeals and remand the case to the circuit court for further proceedings.

¶ 4 We further conclude that Wis. Stat. §§ 30.133 and 30.131 are inapplicable to this case. It is undisputed that the easement was originally conveyed well before the effective date of § 30.133. In addition, the issue inthis case is whether the easement grants riparian rights, including the right to construct and maintain a pier, not whether a pier-if and once constructed by the easement holder-constitutes a lawful structure under § 30.131.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 5 On October 29, 2004, the Konnekers obtained via deed property on Orchard Avenue in Green Lake County, Wisconsin, more particularly described as follows: "Lot One (1) of Certified Survey Map 2643 recorded in Volume 13 of Certified Survey Maps on Page 2643 and 2643B, being a division of Lot Two (2) of Certified Survey Map No. 770, being a part of the SE 1/4 of the SW 1/4 of Section 34, T16N, R12E." The conveyance included an easement across riparian ⁵ property identified as Lot 3:

TOGETHER WITH an easement 20 feet in width along the Westerly side of Lot Three (3) of Certified Survey Map No. 289 as recorded in the office of the Register of Deeds for Green Lake County, Wisconsin on September1, 1965 in Volume 1 of Certified Survey Maps at page 289 being a part of the S 1/2 of the SW 1/4 of Section 34, T16N, R12E, extending from Orchard Avenue to Beyer's Cove. All of the above lying and being in the Township of Princeton, County of Green Lake, State of Wisconsin.

(Emphasis added.) Lot 3, co-owned by the Romanos and the Nelsons, is lakefront property that borders a portion of Green Lake known as Beyer's Cove. Lot 3 is located across the street from the Konnekers' property, on the opposite side of Orchard Avenue. Accordingly, the Konnekers, unlike the Romanos and the Nelsons, are non-riparian landowners. The Konnekers' easement is "20 feet in width" and "extend[s] from Orchard Avenue to Beyer's Cove" along the west side of the Romanos' and Nelsons' property. The easement is the subject of this dispute.

¶ 6 The easement was first created and conveyed in 1983 by Barbara D. Ciszek, Edward Ciszek, Peter J. Ciszek, and Angeline L. Ciszek (the Ciszeks). ⁶ That conveyance and each subsequent conveyance ⁷ contained the same substantive language, describing theeasement as 20 feet in width along the westerly side of Lot 3 of Certified Survey Map No. 289, extending from Orchard Avenue to Beyer's Cove.

¶ 7 The Ciszeks were also predecessors in interest to Lot 3. According to an affidavit signed by Edward Ciszek and Barbara D. Ciszek on August 13, 1984, and maintained in the Register of Deeds Office for Green Lake County, as of that date, seven different parcels of land were entitled to use Lot 3 "as an access to Beyer[']s Cove, being a part of Green Lake." The affidavit further states that "it was the intention of all parties in granting the above-described access easements, that said easements should be appurtenant to and run with the ownership of the respective lots which they service."

¶ 8 On November 5, 1985, the Ciszeks conveyed Lot 3 to Richard A. Fagar and Catherine M. Fagar and the Nelsons, as tenants in common. On May 1, 1987, the Fagars conveyed their one-half interest in Lot 3 to the Romanos. Accordingly, the Romanos and the Nelsons are the current co-owners of Lot 3.

¶ 9 According to the Nelsons' affidavit, sometime prior to May 1, 1990, the Nelsons "constructed a pier on or close to the 20 foot easement for mooring their boat." Beginning in May 1990, the Romanos and the Nelsons leased to Grant Gardner, a predecessor in interest to the Konnekers' property, see supra note 7, "a portion of Lot # 3 ... for the purpose of berthing [his] boat thereon." For annual rent of $150, Gardner was permitted "to place a boat lift and a limited number of pier sections to moor" a particularly described boat through the end of the 1994 boating season. The lease advised Gardner that he "may not sublet or assign [his] space to others" and that "seven other property owners have access rights on and to the subject premises" with whichhe may not interfere. On January 24, 1994, Robert Romano sent a letter to Lake Realty "concerning the sale of Grant Gardner's home" and reiterated that the pier rights under the lease were "not transferable and were only extended to Grant Gardner and his [ ] boat."

¶ 10 Thereafter, the Romanos and the Nelsons entered into a similar lease with Arne Carlsson, the Gardners' successor in interest, see supra note 7. For annual rent of $200, Carlsson was "allowed to place a boat lift and a limited number of pier sections to moor" a particularly described boat along Lot 3. The original term of the lease was May 1, 1994, to October 1, 1994, but the parties initialed a lease extension from May 1, 1995, to October 1, 1995. In an undated letter, Robert Romano informed Hagstrom/Schneider Real Estate that "[their] agreement with the Carlssons [was] not transferable."

¶ 11 As stated by Robert Konneker in his affidavit, when the Carlsson Trust conveyed Lot 1 to the Konnekers, the Konnekers understood that they would also have access to the piers on the Romanos' and the Nelsons' property.

¶ 12 At some point, the Konnekers installed their own pier along Lot 3. The Romanos and the Nelsons objected to the pier in a letter to Robert Konneker, dated October 10, 2006:

On October 7, 2006 we learned that you placed a boat pier in the water on Lot 3 of [Certified Survey Map] 289 in Green Lake, Wisconsin. As you are well aware, you are neither an owner nor a lessee of this property and we consider your actions in placing the pier to be unlawful and to constitute trespassing.

Your assertion that your property's easement somehow conveys riparian rights and entitles you to unilaterally place a pier is both incorrect and contrary to Wisconsin law. It was made clear to you prior to your purchase ofyour property and numerous times thereafter, that you do not have the right to place a pier in Lot 3.

If you do not remove the pier immediately we will arrange to have it removed....

The Romanos and the Nelsons subsequently removed the Konnekers' pier.

¶ 13 On March 1, 2007, the Konnekers filed this action, seeking a declaratory judgment that the easement granted to them riparian rights, including the right to erect and maintain a pier on the easement. In their answer, the Romanos alleged that the complaint failed to state a legally cognizable claim and should be dismissed. The Romanos counterclaimed for trespass and sought an order prohibiting the Konnekers from erecting any future structures on the easement. In their answer, the Nelsons likewise sought a declaration that the Konnekers do not have riparian rights under the easement and are not entitled to erect any structures on the easement.

¶ 14 The parties filed cross motions for summary judgment. The Romanos argued that the Konnekers were not granted riparian rights under the easement, which provides only "for a 200-foot [sic] easement from Orchard Avenue to Beyer[']s Cove," indicating "that the easement is to simply provide ingress and egress to the lake." The Romanos further asserted that no pier was installed at the time the easement was originally...