Schimmels v. Noordover, 2004AP2794.
| Decision Date | 21 December 2005 |
| Docket Number | No. 2004AP2794.,2004AP2794. |
| Parties | William J. SCHIMMELS, Plaintiff-Appellant, v. John A. NOORDOVER, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John W. Hein and Melinda A. Hein of Godfrey, Braun & Frazier, L.L.P., Milwaukee.
On behalf of the defendant-respondent, the cause was submitted on the brief of Robert B. Moodie and Lori J. Fabian of Hippenmeyer, Reilly, Moodie & Blum, S.C., Waukesha.
Before SNYDER, P.J., NETTESHEIM and ANDERSON, JJ.
William J. Schimmels appeals from an order declaring his rights as against John A. Noordover to the use of a private road designated in a recorded plat and an order denying reconsideration. Schimmels contends that the circuit court erred in deciding the action based upon the language of the deeds rather than upon the recorded plat. We agree and reverse.
¶ 2 Schimmels and Noordover own lots in Peterson's Plat (Plat). The Plat, containing nine original lots, was recorded with the Waukesha County Register of Deeds on October 5, 1913, as document no. 83262. Four of the lots, 6 through 9, have direct access to Okauchee Lake. The remaining five lots, 1 through 5, do not have direct lake access. The Plat contains a "private road" that provides all nine lots with access to the public highway. At one juncture, the private road splits, with one artery providing public highway access to Lots 6 through 9, and the other artery providing access to Okauchee Lake.
¶ 3 That portion of the private road leading to Okauchee Lake is known as Tweeden Lane.1 Tweeden Lane, a 20-foot wide by approximately 113-foot long grassy strip of land, is the subject of this lawsuit. On August 26, 1914, the original Lot 6 was divided into two lots, creating ten separate lots in Peterson's Plat rather than nine. When the original owners divided Lot 6, they referred to that portion of road now known as Tweeden Lane as a "private road."
¶ 4 Noordover acquired his Lot 6 parcel on May 13, 1985, and Schimmels acquired his Lot 6 parcel on March 6, 1992. Noordover's deed recites that the conveyance includes "the use of a private road abutting said premises in common with others having the right to the use thereof and leading to the public highway." Schimmels' deed contains similar language. Neither deed references Tweeden Lane or access to Okauchee Lake, but both expressly refer to the original recorded plat in the legal description of the property.
¶ 5 In 1997, Noordover constructed a retaining wall and planted hostas entirely within the Tweeden Lane area. In response, Schimmels sued to abate Noordover's use of Tweeden Lane in a manner that he claimed interfered with his property rights as the co-owner of Lot 6.2
¶ 6 The action was tried to the circuit court. On January 15, 2004, an oral decision was issued which held in part:3
I do not decide what rights [exist] in relationship to Lots 1, 2, 3, 4 and 5.... [Or] against Lots 7, 8 and 9.
....
Lot 6 was divided. [And Schimmels] has the right triangle of Lot 6 and [Noordover] has the left triangle of Lot 6. And I only decide what are the rights between the owners of Lot 6.
....
Now, I understand here the argument is that it's a private roadway and the plat map shows the extension. But as indicated earlier, this deed doesn't show it was for ingress and egress to the lake, nor does the testimony establish that that was the purpose for use by the right-hand half of Lot 6.
In these [Lot 6] deeds, language states: "Together with the use in common with others of a private road abutting said premises leading to the highway." These deeds completely lack any reference that the purpose of this private road known as Tweeden Lane was for the purpose of ingress and egress to the lake for purposes of using a bathing beach or fishing or otherwise.
[I]t will be the decision of this Court that the deeds do not grant to [Schimmels] a right of ingress and egress to Okauchee Lake. However, the law of this case allows [Schimmels] the use of Tweeden Lane for ingress and egress to Okauchee Lake and to the public highway. The Court will have to define what ingress and egress to Okauchee Lake can be utilized by [Schimmels].
[T]he ingress and the egress that is granted to [Schimmels] is for the limited purpose of fishing and of swimming.
¶ 7 Findings of Fact and Conclusions of Law memorializing the oral decision were entered on June 16, 2004. The circuit court deleted several items from the Conclusions of Law prior to its approval of the final judgment, including, over Schimmels' objection, the following conclusions:
1. The 1913 Plat is valid and binding on each subdivision owner.
2. The Plat was recorded pursuant to secs. 101.2261, 101.2268 and 101.2269, Stats. (1913).
3. The Private Road on said Plat is held in joint ownership by dedication.
Thus, as of June 16, 2004, the court's conclusions were, in relevant part:
4. The recorded Plat and recorded deeds do not afford permitted users of the portion of said Private Road that lies between defendant's lot and Okauchee Lake (the "Subject Roadway") ingress and egress to Okauchee Lake.
6. When Lot 6 was divided, that was the opportunity to clearly reserve certain rights, if they existed, to owners of the right-hand portion of Lot 6.
7. The court's decision is limited to the rights between the plaintiff, William Schimmels, and the defendant, John Noordover, as they relate to the Subject Roadway.
8. It is the law of the case that the plaintiff and defendant have the use of the Subject Roadway for ingress and egress to Okauchee Lake. This ingress and egress shall be limited to fishing and swimming. The subject roadway may not be used for the storage of items, parking of cars, launching boats or taking out things such as a pier or a boat lift.
¶ 8 Schimmels moved for reconsideration or a new trial. He sought reinstatement of the stricken Conclusions of Law as well as reconsideration on several other issues. Noordover responded that "the Court properly struck Conclusions of Law 1, 2, 3 ... since those were not aspects of the case" and that Schimmels failed "to raise those kinds of issues" during the trial proceedings.
¶ 9 At the reconsideration hearing, Schimmels also requested that Conclusion of Law No. 4, which held that the recorded deeds and Plat do not afford permitted users ingress and egress to Okauchee Lake, be struck from the judgment as unnecessary and inconsistent with Conclusion of Law No. 8, which holds that the law of the case is that Schimmels and Noordover have rights of ingress and egress to Okauchee Lake. Noordover took no position on this request. The circuit court denied the motion to strike Conclusion of Law No. 4 in its entirety, but did substitute "the plaintiff" for "permitted users" in the provision, resulting in a final revision of the Conclusions of Law on August 3, 2004.4 Schimmels appeals from the original order and from the order denying his motion for reconsideration.
¶ 10 Noordover concedes that "[t]he purpose of Schimmels' lawsuit was in fact to declare the interest of the parties in Tweeden Lane." The central issue on appeal is the legal effect of the existence and placement of the grant of access to Okauchee Lake by way of Tweeden Lane as part of the private road included in Peterson's Plat. We accept the circuit court's determination that the grant of the private road right to Plat owners, including Tweeden Lane, is unambiguous.5 The meaning of unambiguous documents is a question of law which we review de novo. Negus v. Madison Gas & Elec. Co., 112 Wis.2d 52, 60, 331 N.W.2d 658 (Ct.App. 1983).
¶ 11 In the circuit court's final determination, Schimmels' right to access Okauchee Lake by Tweeden Lane was as follows:
The recorded Plat and recorded deeds do not afford [Schimmels] the portion of said Private Road that lies between defendant's lot and Okauchee Lake (the "Subject Roadway") ingress and egress to Okauchee Lake.
We cannot agree. The law regarding platted land and the rights of lot owners reaches back over a century and is well summarized as follows:
[W]hen the grantee of a lot so platted, purchases it, the existence of the streets as platted, inasmuch as they add value to the lot by the conveniences or advantages which they promise, is an inducement to the purchaser, and so enters into the consideration, as between the grantor and grantee, and operates by way of implied covenant, implied grant, estoppel, or dedication, whichever way of operation may be the truer, to secure to the grantee a right of way over such platted streets, and reciprocally to subject any interest which the grantee may acquire therein to a right of way for the benefit of the other platted lots.
Chapin v. Brown, 15 R.I. 579, 10 A. 639, 641 (1887). More recently, Wisconsin's approach to this historic rule was captured by the Seventh Circuit Court of Appeals:
One who buys lots with reference to a plat which shows certain streets, ways and places in common, is entitled with all other lot owners in the platted area or subdivision to the use with them of the streets, ways and places in common. Lot owners in the same subdivision whose lots are purchased with reference to the same plat are estopped to deny the use in common with other lot owners in the subdivision.
Threedy v. Brennan, 131 F.2d 488, 490 (7th Cir.1942) (citing McFarland v. Lindekugel, 107 Wis. 474, 83 N.W. 757 (1900)); Donohoo v. Murray, 62 Wis. 100, 22 N.W. 167 (1885); Gardiner v. Tisdale, 2 Wis. 153, 60 Am. Dec. 407 (1853). Our supreme court confirmed the impact of a recorded plat on the rights of lot owners when it explained:
[T]he recording of the plat and conveyance of lots by the owner with reference to the plat constitute[s] the granting of an easement to the purchasers of lots within the subdivision to ingress and egress over...
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