Roche v. Bois

• Decision Date: 12 January 1937
• Citation: 271 N.W. 84,223 Wis. 438
• Parties: ROCHE v. DU BOIS et al.
• Court: Wisconsin Supreme Court

223 Wis. 438

271 N.W. 84

ROCHE

v.DU BOIS et al.

Supreme Court of Wisconsin.

Jan. 12, 1937.

Appeal from a judgment of the Circuit Court for Sauk County; A. G. Zimmerman, Judge.

Modified and affirmed.

Action by Irene Roche against Deane Du Bois and others, commenced December 14, 1935. From a judgment for the plaintiff entered March 13, 1936, the defendants appeal.

The action was brought to have certain premises adjudged the homestead of the plaintiff and freed from the apparent lien of separate judgments procured against her by the several defendants. The judgments were entered subsequent to the purchase of the premises by the plaintiff.

The premises consist of about three acres of land, not within city or village limits, located adjoining and near the entrance to Devils Lake State Park. There are on the premises sixteen cottages or wooden “shacks,” in one of which the plaintiff and her husband and family live, except during three or four winter months of each year when they join the innumerable throng of “tin-can” tourists that invade the South at that season. The rest of these buildings are rented out during the summer season to tourists and persons on vacation. There are also on the premises a small chicken coop and a small roadside stand from which vegetables and soft drinks are sold. About half an acre is occupied by a garden in which vegetables for family use and for sale are raised. The cottages are supplied with water piped from a reservoir on the premises fed from a deep well by an electric pump. A dance hall formerly on the premises was converted by the plaintiff's husband into a two-story building of twenty rooms and operated as a summer hotel until it burned down. The premises are commonly known as the “Panoramic.” The plaintiff also owns property on the outskirts of Baraboo on which during part of the period involved was a hotel known as the “Rialto,” now burned down, which the defendants claim should be held to have been the plaintiff's homestead when the judgments were procured.Grotophorst, Quale & Langer, and Warren M. Dana, all of Baraboo, for appellants.

La Follette, Rogers & Roberts and John Ernest Roe, all of Madison, for respondent.

FOWLER, Justice.

The trial court found that the premises had been lived in by the plaintiff and her husband and family since 1929, except during three or four of the winter months each year. There was testimony that for a part of this time the family lived in other property in Baraboo during the summer months. But on the point of actual living in and occupying the property involved the finding of the trial court cannot be held to be “against the great weight and clear preponderance of the evidence” and must be upheld.

[1] Of course, that occupation of property shall constitute it a homestead, it must be occupied with the present intent of occupying and holding it as such. Upon this point the testimony of plaintiff and her husband is that they have always had that intent ever since they purchased it, and that in 1929 the husband started to dig a basement for a dwelling house on the premises which they were prevented from erecting because unable to procure funds therefor. The court might rightly believe this testimony, and the finding of the trial court on the question of intent must be sustained.

[2][3] The appellants claim that this evidence of intent is wholly overcome by the voting of the respondent and her husband during the period in the city of Baraboo instead of the town of Baraboo, where the premises involved are located. Evidence of place of voting usually has strong bearing on the question of intent. Pederson v. Nielsen, 212 Wis. 608, 612, 250 N.W. 400. Still the fact is not absolutely controlling. Minnesota Stonewear Co. v. McCrossen, 110 Wis. 316, 85 N.W. 1019, 84 Am.St.Rep. 927. The trial court's findings upon this point must be sustained.

[4][5] The respondent claims that the premises were occupied for agricultural purposes. Such part of them as were used to raise vegetables were so occupied no doubt, but that part of them that was occupied by cottages rented out to tourists cannot be considered as used for agricultural purposes in a precise or strict sense. However, the word “agricultural” in the homestead statute (St.1993, § 272.20) has been construed to have been used merely to distinguish rural from city or village property, rather than in a technical sense. Binzel v. Grogan, 67 Wis. 147, 29 N.W. 895. Within the ruling of that case the whole premises must be held to have been used for agricultural purposes, unless the maintenance of the summer cottages thereon for renting to tourists warrants excluding the portion so used from the homestead.

The appellants contend that the cottages rented to tourists cannot be held to be homestead property, and that this use of the premises gives character to the whole occupation and prevents the respondents from claiming any of the property as a homestead. Under a statement of the California court, McKay v. Gesford, 163 Cal. 243, 124 P. 1016, 41 L.R.A.(N.S.) 303, Ann.Cas. 1913E, 1253, this would seem to depend on whether the business of renting the cottages is conducted for the purpose of maintaining a home or Mr. Roche is incidentally occupying the premises for the purpose of carrying on the business of renting cottages. The findings indicate that the trial court was of the opinion that the situation first stated obtained, so that, if this rule be applied, the trial court's conclusion must be upheld.

The appellants claim that, even though the cottage occupied by the family and the garden be considered as a homestead, the part occupied by the cottages rented to tourists cannot be considered under the rule early established in this state that premises may be divided vertically and part be considered a homestead and part not. This was originally laid down as the rule as to city and village property. Schoffen v. Landauer, 60 Wis. 334, 19 N.W. 95. Respondent claims that, since the amendment of the homestead statute limiting the amount of the exemption to $5,000, this rule no longer obtains, as the limitation of the exemption renders inapplicable the reason for it, which was that without vertical division one might by erection of valuable buildings on his one-fourth acre for rental or business purposes obtain exemption of property of unlimited value. We need not pass upon this contention, however, as we consider that the character and the use of the buildings rented to tourists are not such a use as warrants division even if the maintenance of separate dwellings or other buildings rented to tenants on the quarter acre of city or village property would require it. Nor do we need to consider whether the maintenance of other buildings as suggested on property outside city or village limits would require such division. Here we have what may rightly be considered a dwelling house and garden occupied as a homestead with fourteen small structures used as lodgings or sleeping rooms by tourists in the summertime for which the owner exacts a nightly or weekly charge. The situation is not materially different from an owner's living in and operating a hotel on premises. Premises so occupied and used constitute a homestead. Harriman v. Queen Ins. Co., 49 Wis. 71, 72, 5 N.W. 12. Nor is it materially different from a large...