Logghe v. Hebert
| Decision Date | 09 December 2014 |
| Docket Number | No. 2014AP149.,2014AP149. |
| Parties | Peter G. LOGGHE, Plaintiff–Appellant, v. Charles W. HEBERT and Laurie L. Hebert, Defendants–Respondents. |
| Court | Wisconsin Court of Appeals |
Peter Logghe appeals an order granting summary judgment to Charles and Laurie Hebert (the Heberts) in his declaratory judgment action to settle a boundary dispute. Logghe's deed, and those of his predecessors in interest, granted him property bounded, in part, by the northern edge of County Trunk Highway I as it was traveled at the time of the grant in 1938. Logghe claims the Heberts failed to establish a prima facie case for summary judgment because their submissions did not include any averment, made on the basis of personal knowledge, or other competent evidence as to the location of the highway at the relevant time. As such, the parties' respective rights regarding the disputed land remain undetermined. We agree with Logghe, reverse, and remand for further proceedings consistent with this opinion.
¶ 2 This case concerns two properties separately owned by Logghe and the Heberts in Chippewa County. The properties are located on a narrow strip of land between State Trunk Highway 178 and O'Neil Creek. 108th Avenue lies between the properties as shown below:1
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¶ 3 Before 1943, Highway 178 traveled over the general areas shown as 108th Avenue and 159th Street in the illustration above. A bridge known as the Chippewa City Bridge connected what are now 108th Avenue and 159th Street; the road then crossing those areas was known as County Trunk Highway I. Highway 178 was rerouted to its present location some time after 1943. Afterwards, what are now 108th Avenue and 159th Street, as connected by the bridge, were known as Chippewa City Drive. The Chippewa City Bridge was closed in the 1990s and demolished around 2003. When Chippewa County converted to a numbering system for town highways, 108th Avenue and 159th Street were given their current designations.
¶ 4 Logghe and the Heberts trace their titles to a common grantor, Mary Emerson. Logghe's predecessor, Prosper LeDuc, received title on February 7, 1938. That deed contained a metes and bounds description of the property “[c]ommencing at a point on the Westerly line2 of County Trunk Highway ‘I’ as now traveled....” The property grant terminated at “the intersection of the right bank of O'Neill Creek with the Westerly line of County Trunk Highway ‘I’, at what is known as the Chippewa City Bridge; thence Southwesterly along said Westerly line of County Trunk Highway ‘I’, to the point of beginning....” Logghe's deed contains nearly identical language.3
¶ 5 In 1943, Emerson conveyed property to the Heberts' predecessors in interest, Louis and Emily Hebert. That deed's description concluded with several exceptions to the property interest described. As pertinent here, the deed excluded “part of the NE 1/4 of Sec. 16, conveyed by warranty deed Feb. 7th, 1938, to Prosper LeDuc....”
¶ 6 The property comprising the Hebert parcel was successively transferred until the Heberts ultimately obtained title in 1998. The 1998 warranty deed designated their property as running “to the southerly right of way line of Chippewa City Drive, thence Northeasterly along the South right of way line of Chippewa City Drive 160.0 feet, more or less, to the water's edge....”
¶ 7 In 2005, the Heberts recorded a “correction” warranty deed for their parcel, prompted by their belief that the 1998 deed did not convey all of their predecessor's land lying west of O'Neil Creek.4 In particular, the 2005 deed set the boundary of their property at “the northerly right of way of Chippewa City Drive, formerly known as County Trunk I, thence Northeasterly along the north right of way line of Chippewa City Drive, formerly known as County Trunk I, 160.0 feet, more or less, to the water's edge....” (Emphasis added.) In effect, the Heberts claimed ownership of all the land underlying the right of way.
¶ 8 In 2007, Logghe and the Heberts were parties to litigation concerning the vitality of the public right of way over what is now 108th Avenue.5 That litigation, which included additional parties including the State of Wisconsin, concluded in 2010 after the circuit court determined that 108th Avenue had not been abandoned as a public right of way for navigable water access. The court then entered an order adopting a stipulation and side stipulation among all of the parties involved in that litigation. The parties agreed the public easement would extend “twenty feet on either side of the centerline of the highway as it exists as of the date of this stipulation, extending from the right-of-way of [Highway] 178 to the end of the pavement thereof as it currently exists. ” (Emphasis added.) The location of the easement between the eastern edge of the pavement and the shoreline was to be determined by a survey conducted in accordance with the terms of the side stipulation. The survey ultimately setting forth the remaining easement dimensions is known as the Ty Dodge survey.
¶ 9 Logghe filed the present action in 2012. He directly challenged the Heberts' 2005 correction deed, alleging the Heberts “have no right, title or interest to the public right of way or to lands that extend to the north right of way of Chippewa City Drive, now known as 108th Avenue.” As relief, Logghe requested a declaration that the Heberts owned no land beyond the south right of way, and any other relief deemed appropriate.
¶ 10 The Heberts filed a motion for summary judgment. Their motion stated the case “boils down to one simple question—where is the property line between the Heberts' and Logghe['s] properties?” The Heberts argued the boundary was the northern edge of the 108th Avenue right of way, as established by the Ty Dodge survey. They submitted affidavits from Charles Hebert and Larry Hebert, a relative, averring that 108th Avenue is in the same location as where County Trunk Highway I and Chippewa City Drive existed in years past.
¶ 11 Logghe responded that, given the changes to the area over the years, it was not reasonable to conclude that what was County Trunk Highway I in 1938 existed in the precise location as present-day 108th Avenue. He also argued the order, stipulations, and survey that concluded the earlier litigation had no bearing on the present action. Logghe's opposition brief was accompanied by an affidavit from his attorney, Amanda Wieckowicz, which merely attached numerous exhibits, mostly the relevant deeds.
¶ 12 The Heberts submitted a reply brief, which included an affidavit from their attorney, William Thiel. Attached to Thiel's affidavit was an 1849 land survey, which the Heberts asserted, when compared to the deeds, demonstrated their ownership of what would have constituted County Trunk Highway I in 1938.
¶ 13 The court heard argument on the motion and determined the Heberts were entitled to summary judgment. The court deemed it a matter of “semantics” as to what the road was called, and concluded the Ty Dodge survey definitively established “where that road is,” and, consequently, the boundary between the Logghe and Hebert properties at issue.
¶ 14 The court then submitted a written order granting the Heberts' motion. It reached several conclusions, styled “Findings of Fact.”6 Among other things, the court concluded “County Trunk Highway ‘I’ in 1938 is currently 108th Avenue” and the “Westerly line of County Trunk Highway ‘I’ is the same as the westerly right-of-way line of present day 108 th Avenue.” Accordingly, the court determined that the Ty Dodge survey definitively established the parties' property line at the northern boundary of 108th Avenue, including the unpaved portion between the eastern edge of the pavement and the shoreline. The court subsequently denied Logghe's motion for reconsideration.
¶ 15 We review a grant of summary judgment de novo, using a well-established methodology. Palisades Collection LLC v. Kalal, 2010 WI App 38 ¶ 9, 324 Wis.2d 180, 781 N.W.2d 503. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).7 We first examine the moving party's submissions to determine whether they constitute a prima facie case for summary judgment. Palisades Collection LLC, 324 Wis.2d 180, ¶ 9, 781 N.W.2d 503. If so, we then examine the opposing party's submissions to determine whether there are material facts in dispute that entitle the opposing party to a trial. Id.
¶ 16 As the Heberts' summary judgment brief noted, the only real issue in this case is where the property line between the Logghe and Hebert properties is located. That question, as the Heberts put it, must be “answered with reference to the chains of title to their respective parcels of land.” The Heberts acknowledged the deeds “speak for themselves.”8
¶ 17 The first step in interpreting a deed “is to examine what is written within the four corners of the deed, for this is the primary source of the intent of the parties.” Rikkers v. Ryan, 76 Wis.2d 185, 188, 251 N.W.2d 25 (1977). When a deed is unambiguous—that is, the language is susceptible to only one reasonable interpretation—we give effect to that language and will not refer to extrinsic evidence to establish the parties' intent. Id.
¶ 18 It is undisputed that Logghe and the Heberts trace their titles to a common grantor, Mary Emerson. In 1938, Prosper LeDuc took title to property whose location was fixed by “the Westerly line of County Trunk Highway ‘I’ as now traveled ....” (Emphasis added.) In 1943, Emerson conveyed property to the Heberts' predecessors in interest that specifically excluded the parcel conveyed to LeDuc in 1938. In effect, the Heberts' predecessors received title to a portion of Emerson's property not subject to the earlier grant. The legal effect of these deeds is fairly straightforward: generally speaking, the Heberts own...
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