Rikkers v. Ryan

• Decision Date: 01 March 1977
• Docket Number: No. 75-116,75-116
• Citation: 251 N.W.2d 25,76 Wis.2d 185
• Parties: Judson RIKKERS and Dorothy Rikkers, Appellants, v. Robert E. RYAN, Respondent.
• Court: Wisconsin Supreme Court

Page 25

251 N.W.2d 25

76 Wis.2d 185

Judson RIKKERS and Dorothy Rikkers, Appellants, v. Robert E. RYAN, Respondent.

No. 75-116.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 2, 1977.

Decided March 1, 1977.

The appeal is taken by the plaintiffs-appellants, Judson Rikkers and Dorothy Rikkers, from a judgment dismissing the plaintiffs-appellants' causes of action for nuisance and trespass.

Robert E. Ryan, defendant-respondent, is the owner of a parcel of land in Green Lake, Wisconsin. It is bounded on the north by Illinois Avenue and on the south by Green Lake. Immediately adjacent to the east of Ryan's lot and 320 feet south of Illinois Avenue lies a parcel of land owned by Judson and Dorothy Rikkers, plaintiffs-appellants.

The issue in this case arises over the boundary of an easement, purportedly on the Rikkers' parcel, created by the Rikkers' predecessor in title, William Burling. Prior to 1952, Burling owned both parcels in question, as well as the land north of the Rikkers' parcel up to Illinois Avenue. This entire piece of land, bounded on the north by Illinois Avenue, on the south by Green Lake and owned by Burling, was known as Lot 1 and the west 80 feet of Lot 2 of Mason Brayman's Subdivision, Lot 1 lying to the east of Lot 2.

Burling granted the easement in question along with the conveyance of the parcel now owned by Ryan to Ryan's predecessor by a warranty deed dated May 8, 1952. That warranty deed conveyed:

"The west 110 feet of Lot 1 of Mason Brayman's Sub-division (parcel now owned by Ryan) . . . together with an easement for ingress and egress 20 feet wide in and over the property immediately abutting to the east of the parcel hereby conveyed and running south from the north line of said Lot 1, to a point opposite such garage as grantees may locate on the parcel hereby conveyed, such point however, in no event to be more than 400 feet south of said line."

Subsequently, Burling conveyed the rest of his land to others, including the parcel he conveyed to the Rikkers, adjacent to Ryan's land and 320 feet south of Illinois Avenue.

The record shows that Ryan took possession of his parcel on May 20, 1971, and the Rikkers took possession of their parcel on or about May 30, 1971. At the time Ryan took possession, a fence commenced at Illinois Avenue, ran along the east boundary of the Ryan parcel, between the parcel and the easement, and stopped at the edge of the lake. An opening existed in the fence at a point approximately 360 feet south of Illinois Avenue to permit entrance onto the Ryan property from the easement driveway. Apparently, at this time, the roadway upon the easement terminated at this opening. Almost immediately after he took possession and just before the Rikkers took possession, Ryan extended the roadway to a point 400 feet from the southern edge of Illinois Avenue. He further constructed a second opening in the fence at the end of the newly extended driveway to facilitate turning an automobile around, by going in one opening and out the other, for ingress and egress.

The Rikkers commenced this action, alleging Ryan had extended the driveway beyond the southern boundary of the easement and thus caused a nuisance and trespass. Their major contention at trial was that the 400 feet easement was to be measured from the centerline, not the southern edge, of Illinois Avenue.

After a trial to the court, the trial judge concluded the easement commenced at the southern edge of Illinois Avenue and dismissed the complaint. The Rikkers appeal.

Henry B. Buslee, Fond du Lac, for appellants.

Vernon Molbreak Law Office, Madison, for respondent.

HANLEY, Justice.

The following issue is presented on appeal: Is the extent of the easement to be measured from the south line of Illinois Avenue?

This case involves the construction of the deed granting the easement to Ryan's predecessor in 1952. Deeds are construed as are other instruments, Joseph Mann Library Ass'n. v. Two Rivers, 272 Wis. 441, 446, 76 N.W.2d 388, 391 (1956), and thus the purpose of the court is to ascertain the intention of the parties. Flynn v. Palmer, 270 Wis. 43, 47, 70 N.W.2d 231, 233 (1955).

Our first step in construction of 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. Grosshans v. Rueping, 36 Wis.2d 519, 528, 153 N.W.2d 619, 623 (1967). If the language of the deed is unambiguous, then its construction, as the construction of other unambiguous instruments, is purely a question of law for the court, but when there is an ambiguity, the sense in which the words therein are used presents a question of fact. 6 Thompson, Real Property sec. 3022, at 450 (1962); 26 C.J.S. Deeds sec. 108, at 912-13 (1956); Patti v. Western Machine Co., 72 Wis.2d 348, 353, 241 N.W.2d 158, 161 (1976).

Also, where a deed is susceptible to only one interpretation, extrinsic evidence may not be referred to in order to show the intent of the parties. Grosshans v. Rueping, supra 36 Wis.2d at 528, 153 N.W.2d at 623.

In support of their contention that the language "north line of Lot 1" means the centerline of the adjacent Illinois Avenue, the Rikkers primarily rely upon the rule of law that the conveyance of property abutting on a street or highway transfers the legal title to the land to the center of the adjacent street or highway, in the absence of a clear intent to the contrary. Grunwaldt v. Milwaukee...