Marino v. City of Madison, No. 2008AP1141 (Wis. App. 1/29/2009)
| Decision Date | 29 January 2009 |
| Docket Number | No. 2008AP1141,2008AP1141 |
| Parties | Louis Marino, as Personal Representative of the Estate of Joel Marino, and Seth Nicholson, Plaintiffs-Appellants, V. City of Madison, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Dane County: RICHARD G. NIESS, Judge. Affirmed.
Before Higginbotham, P.J., Vergeront and Bridge, JJ.
This action arises out of a dispute over a twelve-foot-wide strip of land between the east side of West Shore Drive and Monona Bay in Madison, Wisconsin. The owners of two residential lots abutting the west side of West Shore Drive claim title to this land as does the City of Madison. The circuit court concluded that the City of Madison held title to this land, in trust for the public, and could therefore proceed with the construction of a storm sewer outfall.1 The plaintiffs appeal, contending that the court made a number of errors in arriving at its conclusion. For the reasons we explain below, we affirm.
¶ 2 At the time this action was filed, Joel Marino and Seth Nicholson each owned and occupied residential property on the west side of West Shore Drive.2 On the east side of West Shore Drive, across from their lots, there is land running along the shore of Lake Monona Bay approximately twenty-six feet in width, which we will refer to as "the shoreland." Marino and Nicholson maintained and used seasonal piers extending from the shoreland into Monona Bay and made use of the bay for boating, fishing, swimming, and other activities.
¶ 3 Between the two lots is a twelve-foot-wide alley that runs from West Shore Drive to Park Street. Marino, Nicholson, and other property owners have used the alley to access their property, homes, and garages.
¶ 4 The dispute giving rise to this action began with the City's plan to construct a storm sewer outfall structure on the shoreland. The plan was to build on a strip of land twelve feet in width running from the east side of West Shore Drive to the bay, which the City contends is an extension of the twelve-foot-wide alley on the other side of West Shore Drive. We will call this twelve-foot-wide strip of the shoreland "the disputed strip." As planned, the outfall would require relocation of Nicholson's pier.
¶ 5 The plaintiffs filed this action for a declaration that they, not the City, owned the disputed strip and therefore had riparian rights on Monona Bay.3 They also claimed a public nuisance. They sought an injunction permanently enjoining the project at the proposed location as well as a temporary injunction. The circuit court denied the plaintiffs' motion for an injunction temporarily enjoining the beginning of the construction of the project, although the court did order the City to cease trespassing on the plaintiffs' lots and to repair any damage it had caused.
¶ 6 The parties entered into an extensive stipulation of facts and the court held an evidentiary hearing at which additional evidence was presented. The court concluded: (1) the alley was created by the 1854 plat of the Greenbush Addition and dedicated, pursuant to statute, to the Village of Madison, which became incorporated as a city in 1856; (2) because of the statutory dedication, the City holds fee simple to the alley, in trust, and neither plaintiff has any interest therein; (3) under the doctrine of accretion/reclamation, the City also holds fee simple, in trust, to the disputed strip and neither plaintiff has any interest therein; and (4) neither the alley nor the disputed strip was conveyed, vacated, or discontinued by the City. Accordingly the court held, the City was the appropriate applicant for the DNR permit. The court entered judgment denying the plaintiffs a permanent injunction.
¶ 7 On appeal the plaintiffs contend that the court erred in each of its four conclusions. To the extent the plaintiffs challenge findings of fact made by the circuit court, we accept the circuit court's findings unless they are clearly erroneous. WIS. STAT. § 805.17(2) (2007-08).4 Whether the court employed a correct legal standard is a question of law, as is the question whether the court correctly applied the legal standard to the facts it found and to the undisputed facts. McLellan v. Charly, 2008 WI App 126, ¶28, 758 N.W.2d 94. We review questions of law de novo. Id.
¶ 8 The plaintiffs challenge the circuit court's conclusion that the alley was created by the 1854 plat and dedicated pursuant to WIS. REV. STAT. ch. 41, § 5 (1849). First, they contend that it is not clear that the 1854 plat shows the alley's existence. In order to address this argument, we provide some additional factual background.
¶ 9 The 1854 plat of the Greenbush Addition to Madison was the first plat of the area.5 At that time Madison was a village, not a city; it became incorporated in 1856. The plat shows that the shore of Lake Monona Bay was located at approximately the western part of what is now Marino's lot, in Block 25. (As we explain later in more detail, the eastern portion of the plaintiffs' lots, the eastern portion of the alley, West Shore Drive, and the shoreland consist of filled land over the former lakebed.) The plat shows two lines that appear to be an alley between each of the east/west streets from Milton Street to the southernmost street, Erin Street, with a row of lots on each side of each alley. None of these are labeled as alleys, but there is no suggestion in the evidence or from the plaintiffs' briefs that they could be anything other than alleys. South of Erin Street there is one row of lots, including Block 25, and south of this row there is a narrow strip—narrower than the alleys to the north—between the lots and the line showing the southern most boundary of the plat.6 This narrow strip, not labeled as an alley, is what the City contends and the court agreed is the alley that now runs between the plaintiffs' lots, although, as noted above, the eastern portion of this alley, like the eastern portion of the plaintiffs' lots, was under water in 1854.
¶ 10 The surveyor's certification on the plat states that "[t]he alleys are 16 1/2 feet wide, except where otherwise marked." Because the strip that the City contends is the alley is narrower than the alleys to the north and there is no notation that it has a width less than 16 1/2 feet, the plaintiffs contend it is not an alley. However, at the evidentiary hearing there was testimony that this narrow strip was nonetheless an alley.
¶ 11 A professional land surveyor testified that in his opinion this strip was an alley both because of his knowledge of how old plats were drawn, the function that alleys performed, and the surveyor's notes making it clear that there were alleys on the plat. He also testified that the 1916 Spohn-Levander Replat of Block 25 of the Greenbush Addition showed that this was a twelve-foot-wide public alley and did not add to or subtract anything from the alley. Further, several other plats show a twelve-foot-wide alley there as ancillary information. He acknowledged that the surveyor's notes on the 1854 plat indicated that an alley narrower than 16 1/2 feet would be marked and the twelve-foot-wide alley was not so marked, and he could not explain the absence of a notation. However, based on his knowledge of how platting was done at the time, he thought that the narrower alley at the southern boundary resulted from laying out the lots and alleys from north to south and giving the southernmost alley the width that was left over after all the lots and the other alleys had been laid out. The land surveyor also testified that other plats of the neighboring areas had alleys that were not labeled as alleys and some were sixteen feet and some were twelve feet.
¶ 12 The plaintiffs point to no evidence and offer no developed argument supporting the proposition that the strip in question on the 1854 plat was anything other than the "Public Alley 12' Wide" labeled as such on the 1916 Spohn-Levander Replat of Block 25 of the Greenbush Addition. To the extent there may be an ambiguity in the 1854 plat or any conflict in the testimony, it was the circuit court's role as fact finder to resolve the ambiguity or conflict. The circuit court implicitly credited the land surveyor's testimony, and that testimony provides an ample basis for the court's determination that the 1854 plat created the original twelve-foot-wide alley that now, with an extension from the filling of the lakebed, runs between the plaintiffs' lots.
¶ 13 The plaintiffs also appear to challenge the court's conclusion that there was a statutory dedication of the alley pursuant to WIS. REV. STAT. ch. 41, § 5 (1849). That chapter provided for the laying out of plats, and § 5 stated:7
When the plot or map shall have been made out and certified, acknowledged and recorded as required by this chapter, every donation or grant to the public ... marked or noted as such on said plot or map, shall be deemed in law and in equity, a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, and shall be considered to all intents and purposes, a general warranty against such donor or donors, their heirs and representatives, to the said donee or donees, grantee or grantees, for his, her or their use, for the uses and purposes therein named, expressed and intended, and no other use or purpose whatever; and the land intended to be for the streets, alleys, ways, commons or other public uses in any town or city, or addition thereto, shall be held in the corporate name thereof, in trust to, and for the uses and purposes set forth and expressed or intended.
¶ 14 Wisconsin law recognizes two distinct ways that roads, alleys, or other areas may be dedicated for public purposes: statutory and common law. Cohn v. Town of Randall, 2001 WI App 176, ¶6, 247 Wis. 2d 118, 633 N.W.2d...
To continue reading
Request your trial