Perpignani v. Vonasek

Decision Date17 June 1987
Docket NumberNo. 84-2445,84-2445
Citation408 N.W.2d 1,139 Wis.2d 695
PartiesMarino PERPIGNANI, Plaintiff-Respondent, v. Thomas VONASEK, as Personal Representative of the Estate of Bernt S. Brekke, Deceased, and Helen C. Brekke, Defendants and Third-Party Plaintiffs-Respondents, David A. Pieper and Arleen J. Pieper, his wife, Third-Party Defendants-Appellants, Helen Rasmussen, Third-Party Defendant-Co-Appellant, Washburn County Abstract Company, Third-Party Defendant.
CourtWisconsin Supreme Court

Joe Thrasher, Rice Lake, argued, for third-party defendants-appellants; Weisel, Thrasher, Doyle & Pelish, Ltd, Rice Lake, on brief.

Hugh H. Gwin, Hudson, argued, for third-party defendant-co-appellant; Gwin & Gwin, Hudson, on brief.

DAY, Justice.

This is a review of a decision of the court of Appeals, Perpignani v. Vonasek, 129 Wis.2d 478, 386 N.W.2d 59 (Ct.App.1986), reversing a judgment of the circuit court for Washburn county, Hon. Harry F. Gundersen, awarding ownership of a portion of land along the shore of Shell Lake to Marino Perpignani, (Plaintiff) and rejecting a claim of adverse possession under color of title to such land.

The issues presented are: 1) Does a deed conveying a part of Government Lot 2 by a metes and bounds description constitute color of title to land, under the terms of section 893.06, Stats. (1971), 1 which is, through a court-approved reliction apportionment, determined to be part of adjoining Government Lot 3;? 2) Did the Defendants-Respondents Brekke establish continued adverse possession, for the requisite time period, under section 893.07, 2 of any land whose ownership is subject to dispute in this case;? 3) May the court award title by adverse possession under color of title when the claimant acquires such land less than ten years prior to commencement of an action adjudicating rights to the property;? 4) If the court determines that "tacking" is available, has it been shown that the prior owner of one of the Brekke parcels adversely possessed the land under section 893.07, Stats., (1971), so that the combined sum of adverse possession would meet the required statutory period of ten years?

There are two deeds involved in the instant case: 1) The first is a 1960 conveyance from Third-Party Defendants, David A. and Arleen J. Pieper, to Defendant Helen C. Brekke and Bernt Brekke. We determine the color of title question with regard to this deed; 2) The second deed is a 1972 conveyance from Third-Party Defendant, Helen Rasmussen, also to the Brekkes. The ownership of land within the parcels conveyed and described in the foregoing two deeds is in dispute.

We conclude that the 1960 Pieper deed clearly establishes color of title under section 893.06, Stats., (1971). This conveyance adequately describes the land which the Brekkes have occupied since that time. Ambiguity arises only when the metes and bounds description is viewed in tandem with the 1984 trial court determination that reliction apportionment required adjustment of the government lot lines. In determining whether there has been adverse possession, the court is concerned only with the period of time prior to commencement of the action. During this period there is no question as to the meaning of the description.

We conclude that, as to the parcel of land conveyed in the 1960 Pieper deed, the Brekkes have established all statutory elements of adverse possession under sections 893.06 and 893.07, Stats., (1971). As to this parcel, we affirm the court of appeals' decision and award possession to the Brekkes.

As to the parcel conveyed in the 1972 Rasmussen deed, we conclude that the doctrine of "tacking" is available here. However, the Brekkes cannot establish the required ten years of continuous adverse possession as to this parcel. We are persuaded that evidence of the nature of the Rasmussen's ownership is insufficient to establish ownership by adverse possession and that portion of the Rasmussen parcel west of the court approved reliction line belongs to Plaintiff. We remand to the trial court in order that evidence may be entered on the value of the parcel. We direct that the parties be allowed to introduce expert testimony on the subject.

The facts essential to resolving this case are as follows: There are two lots of land which border the south side of a bay area of Shell Lake in Washburn county. These lots are adjacent to one another. The west lot is Government Lot 3; the east lot is Government Lot 2.

Government Lot 3 is owned by Plaintiff. Plaintiff also owns the south twenty acres of Government Lot 2. The lakeside or northern portion of Government Lot 2 is owned by Defendant Helen C. Brekke (Brekkes). 3 The Brekkes acquired their land through two conveyances. The western portion was conveyed by deed from the Third-Party Defendants, David A. Pieper and Arleen J. Pieper, (Piepers). 4 This deed was dated December 5, 1960, and recorded September 16, 1960. The eastern parcel was conveyed by deed from Third-Party Defendant, Helen Rasmussen (Rasmussen). 5 The latter deed was dated September 1, 1972 and recorded September 11, 1972.

As noted, both Lot 2 and 3 are bordered on the north by Shell Lake. As is customary, a "meander line" 6 had been established to approximate the shoreline of the lake for surveying purposes. The dispute in this case concerns ownership of land lying at the lot line between Lot 3 and Lot 2, and more specifically, land lying between the meander line and the actual shoreline of the lake. 7

Property disputes typically arise when some occurrence brings to light questions concerning ownership. The precipitating event in the instant case was Plaintiff's re-survey of his land. In the spring of 1980, the Plaintiff hired a surveyor to monument the boundaries of his land. In the course of his work, Plaintiff's surveyor noted that the level of Shell Lake had dropped. When the water level of a lake drops, exposing land, "reliction" 8 is said to have taken place.

The presence of relicted land is important in the present case because of the effect relicted land may have on determining property boundaries. When reliction takes place, the new, exposed land should be apportioned in an equitable manner amongst property owners on the lake. 9 There are various methods employed by surveyors in apportioning relicted land. 10

Plaintiff's surveyor proceeded to accommodate for the relicted land and to fix a new division line between Lot 3 and Lot 2. It has been Plaintiff's argument throughout that his surveyor used the "straight-line" method and apportioned the relicted land. 11

Government lots 2 and 3 are divided, from their southern boundary to the Government meander line, by a straight line which runs North/South. In using the "straight line" method, the Plaintiff's surveyor simply extended the property division line, in a straight line, from the meander line north to the actual shoreline. The problem with this method, from the Brekkes' perspective, is that they were occupying the land to the west of the surveyor's proposed boundary line--land which arguably was owned not by the Brekkes, but by the Plaintiff.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

An excerpt from Exhibit 16 illustrates the significance of the new division line proposed by Plaintiff's surveyor:

Line D represents the reliction line drawn by Plaintiff's surveyor. The diagram reveals that, should line D be determined the division line between Government Lots 2 and 3, the Brekkes' house and a small part of their garage encroach on Lot 3.

The enclosed box in the diagram, bordered on the west by Line B and east by Line C, represents the parcel conveyed to the Brekkes in the 1960 Pieper deed. Property conveyed by the 1972 Rasmussen deed is East of Line C. It will be noted that the majority of the disputed land (west of Line D) falls under the Pieper deed, while only a small triangle abutting the shoreline is the subject of the Rasmussen deed. Line A represents the reliction line as drawn by Defendants' surveyor using the "pie" or "cove" method. 12 It is apparent that, employing Defendant surveyor's method, there is no encroachment upon Plaintiff's property, Plaintiff's property all lying west of line A and the house and garage to the east of line A.

Reasoning that the Defendant was encroaching upon his property, Plaintiff filed suit on September 9, 1980, seeking a declaration of interest in the property. Plaintiff sought judgment awarding him immediate possession of the property, requiring the Brekkes to remove all structures or encroachments, and $10,000 in damages.

On November 20, 1980, the Brekkes filed a third-party complaint against the Piepers, Helen Rasmussen, and Washburn County Abstract Company. The Brekkes sought to tender the defense of the principal action brought by Plaintiff to these Third-Party Defendants, asking that they be liable for any damages and costs arising out of the principal action. The theory of the third-party complaint was that the warranty deeds provided that the Third-Party Defendants "would warrant and defend said title against any and all persons claiming any adverse interest herein." The Brekkes contended that they had been deeded the property which was the subject of dispute and that the adverse interest claim was properly handled by the grantors and the abstract company, based on what had been warranted.

The Brekkes also filed an answer to Plaintiff's complaint, pleading several affirmative defenses. The chief affirmative defense was the assertion that the Brekkes own the property by virtue of adverse possession. The Brekkes also pled affirmative defenses of acquiescence and estoppel.

The case was tried in circuit court on April 28, 1983. The trial court issued a memorandum opinion on January 19, 1984. The...

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