Leimert v. McCann
| Decision Date | 01 July 1977 |
| Docket Number | No. 75-469,75-469 |
| Citation | 79 Wis.2d 289,255 N.W.2d 526 |
| Parties | Mary LEIMERT, Plaintiff-Respondent, v. Harold McCANN, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Plaintiff-respondent Mary Leimert brought an action seeking a perpetual easement to use the road through defendant-appellant Harold McCann's property. Plaintiff and defendant are both property owners on Birch Island a ten-acre island in Birch Island Lake in Burnett county. The only land connection of the island to the mainland is a two-tenths of a mile causeway built on a natural sandbar abutting the island on its northern side where defendant's property is located. Plaintiff's property is located on the southern portion of the island. Except for access by water, it is necessary to use the road across defendant's land to reach plaintiff's parcel of land from the causeway.
Plaintiff's predecessor in title is her father, one Marc Law. In 1929, Law leased the southern portion of the island from Kilkare Lodge, Inc., which had bought Government Lot 1, including all of Birch Island, in 1928. In 1941 and 1942, Marc Law bought the land now owned by plaintiff outright from Kilkare.
In 1940, defendant's predecessor in title, Evelyn De Normandie, bought from Kilkare Lodge, Inc., the land which defendant now owns. Over the years the causeway between mainland and island on the sandbar was built up and used as a means of access for those traveling back and forth to properties on the island. In 1948, defendant's predecessor in title placed a gate across the causeway. In 1953, plaintiff's predecessor in title commenced a lawsuit to have the gate removed. That action was appealed to this court, which held that plaintiff's predecessor in title was using the causeway permissively and had not acquired an easement by prescription. Law v. De Normandie, 5 Wis.2d 546, 93 N.W.2d 332, 335 (1958).
In 1961, plaintiff, who had previously used the property in question as a family member, acquired a warranty deed from her parents. In 1968, defendant purchased his property from Evelyn De Normandie. At the time of the defendant's purchase, he drove on the roadway, observing that it extended beyond the limits of his newly acquired property. Defendant did not ask plaintiff whether she claimed the right to use the road, although he was aware that others owned property on the island.
Subsequently a dispute arose between plaintiff and defendant, the latter informing plaintiff he did not want her to use the road for access to her property. Such use of the road had been continuous by plaintiff and her predecessor in title since 1929.
After trial to the court, the trial judge granted judgment in favor of the plaintiff, granting her the easement sought. The trial court determined an easement by prescription had been established. From that judgment defendant appeals to this court. Plaintiff seeks review of that part of the judgment which denied that an easement by necessity was established by this record.
Nelson & Nelson, St. Paul, Minn., for appellant.
Doar, Drill, Norman & Bakke, New Richmond, for respondent.
The primary challenge on this appeal is to the trial judge's factual finding of twenty years of adverse user and the concomitant conclusion of law that an easement by prescription had thus been established.
However, before reaching this issue, we must first deal with the claim of estoppel by record. The doctrine of estoppel by record prevents a party from litigating again what was actually litigated or might have been litigated in a former action. 1 Closely related is the doctrine of res judicata. This latter doctrine has the effect of making a final adjudication conclusive in a subsequent action between the same parties, or their privies, 2 not only as to all matters which were litigated, but also as to all matters which might have been litigated in the former proceedings. 3
In order for either doctrine to apply as a bar to a present action, there must be both an identity between the parties or their privies which we have here and an identity between the causes of action or the issues sued on, which we may not have here. 4
The threshold question presented is whether the issues here litigated were or could have been litigated in the earlier injunction-seeking action between the predecessors in title of the parties here. 5 The prior action was commenced to enjoin defendant McCann's predecessor in title from interfering with the right of plaintiff Leimert's predecessor in title to use and enjoy his interest in the causeway. 6
The trial court in the prior case had concluded that the access-blocking gate was not a nuisance, and that plaintiff "had acquired no rights of user in the causeway." 7 In affirming that decision, our court held that "there is a convincing inference that plaintiff's use of the causeway was permissive because of the lease," 8 under which he held the land from 1929-1940. On the question of nuisance, our court decided such finding was unnecessary to the determination of the case but permitted it to stand "only on the basis that it shall not be res judicata in any future action where the issue might be interference with the use and enjoyment of plaintiff's property." 9
This sharp limitation on the reach and effect of the judgment in the earlier case makes it difficult to hold that the present lawsuit dealing with the roadway, not the causeway and claiming interference with the use and enjoyment of plaintiff's property on Lot 8, is barred either by estoppel of record or by res judicata.
In affirming the trial court holding that neither estoppel by record nor res judicata here applies, we rely in part on our holding in Estate of Schmalz. 10 There this court found no estoppel by record as to a claim of a constructive trust in a will contest, finding that such issues raised in the objections to admission of a will ". . . were irrelevant for the purpose of determining whether the will should be admitted to probate." 11
Since we view the prior decision of Law v. De Normandie as limited to determining respective interests in the causeway, not the roadway, and since that prior judgment expressly does not apply to future actions relating to use and enjoyment of the lot here involved, we agree that the action here was not barred by the doctrines of estoppel by record or res adjudicata.
Coming then to the trial court's finding of twenty years of adverse use, we begin by noting that such finding of fact and a determination based thereon must be sustained on appeal unless such finding of fact is against the great weight and clear preponderance of the evidence. 12 It is not sufficient for reversal that there is evidence to support a contrary finding. 13 To command such reversal, such evidence in support of a contrary finding must itself constitute the great weight and clear preponderance of the evidence. 14 Thus, the standard for reversal is heavily weighted on the side of sustaining trial court findings of fact in cases tried without a jury. 15
In the case before us, the trial court found the plaintiff and her predecessor in title had used the road across defendant's property "openly, notoriously, continuously and adversely" since plaintiff's father leased the lot involved and built two cabins on it, back in 1929. Plaintiff's father purchased the lot in 1940, and thus the trial court found an easement by prescription to exist.
While there is evidence in this record to support a contrary finding, the trial court resolves questions of credibility and disputes in testimony. Defendant here claims the use of the road by plaintiff was not "hostile," but our court has made clear that "hostile" does not mean "unfriendly intent" or require "a manifestation of ill will." 16 Rather an act is "hostile" in this context ". . . when it is inconsistent with the right of the owner and not done in subordination thereto." 17
Accordingly, we affirm the finding of fact of the trial court concerning adverse use as not being against the great weight and clear preponderance of the evidence, and as meeting the criteria for establishing an easement by prescription in Wisconsin. 18 With the required period for creation of such easement by adverse use being twenty years, 19 we agree with the trial court that certainly from the year 1940, when the defendant's predecessor in title bought the defendant's property, the prescriptive period began to run and was completed in 1960.
We note defendant's contention that the plaintiff here is precluded from asserting her claim of easement because she failed to file timely notice of claim in the office of the register of deeds. Defendant relies upon sec. 893.15(1)-(6), Stats. Sub. (1) of the statute provides that no claims affecting the title of any real estate shall be commenced more than thirty years after the transaction or event on which they are based.
Our court has held, as to this subsection: 20 Applying the Herzog holding to the case at bar, we have a period of prescriptive use beginning in 1941 and running for the required twenty-year period until 1961. It is at that point in 1961 that the thirty-year limitation attaches. Thus the present claim of easement by prescription would not be barred until 1991.
We also note, no more, defendant's contention that he was a good faith purchaser for value without notice of any claim of easement against his land and thus his purchase of the land from the previous owner extinguished plaintiff's unrecorded easement. The applicable statute provides that a purchaser can have notice of use and occupancy of real estate even if unrecorded. 21
The trial court refused...
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