Turner v. Taylor

• Decision Date: 25 November 2003
• Docket Number: No. 03-0705.,03-0705.
• Parties: Walter J. TURNER and Kathleen M. Turner, Plaintiffs-Appellants, v. Duane TAYLOR, Kathleen Taylor, Dean R. Taylor, Robert Lorkowski, and Barbara Lorkowski, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

268 Wis.2d 628

2003 WI App 256

673 N.W.2d 716

Walter J. TURNER and Kathleen M. Turner, Plaintiffs-Appellants, v. Duane TAYLOR, Kathleen Taylor, Dean R. Taylor, Robert Lorkowski, and Barbara Lorkowski, Defendants-Respondents.

No. 03-0705.

Court of Appeals of Wisconsin.

Submitted on briefs September 2, 2003.

Decided November 25, 2003.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thomas J. Basting, Jr. and Jack Y. Perry of Briggs and Morgan P.A. of Minneapolis, MN.

On behalf of the defendants-respondents, the cause was submitted on the brief of Gordon K. Morris of Bruce, WI.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

Walter and Kathleen Turner appeal a summary judgment granted in favor of Duane, Kathleen and Dean Taylor, and Robert and Barbara Lorkowski. The circuit court concluded an easement benefiting the Taylors' and Lorkowskis' properties, and burdening the Turners' land, was not extinguished by the bona fide purchaser defense under WIS. STAT. § 706.09(1)(k) because the defense does not apply to easements. Thus, the Taylors and Lorkowskis could enforce the easement pursuant to WIS. STAT. § 893.33(6). Because we conclude the bona fide purchaser defense does apply to easements, we reverse the summary judgment and remand for a determination as to whether the Turners otherwise had notice of the easement at the time they purchased the property.¹

BACKGROUND

¶ 2. This dispute stems from a complicated history of numerous land conveyances. What was once a single parcel of real estate in 1927 has since been divided into a number of smaller parcels. Those relevant to this appeal include a parcel owned by Walter and Kathleen Turner and purchased in 1994; two parcels owned by Duane and Kathleen Taylor, one bought in 1970 and the other in 1990; and one parcel owned by Robert and Barbara Lorkowski, acquired in 1988. Viewing the properties from west to east, the Turners own the first parcel (the Turner Parcel), the Taylors own the following two (the West Taylor Parcel and the East Taylor Parcel), and the Lorkowskis own the last one (the Lorkowski Parcel).

¶ 3. This appeal centers on an easement that was last recorded in 1959 in a deed for the East Taylor Parcel. The easement burdened the Turner Parcel and the West Taylor Parcel by providing the East Taylor Parcel and the Lorkowski Parcel with ingress and egress across the West Taylor and Turner Parcels. The Turners purchased the Turner Parcel in 1994, but there was no mention in the deed of any easements or other interest burdening this land. ¶ 4. On June 21, 2000, the Turners filed suit demanding a declaration of interest eliminating the easement or an order restraining the Taylors and Lorkowskis from using it. See WIS. STAT. § 840.03.² The Turners maintained their property should be free of the easement by virtue of WIS. STAT. § 706.09(1)(k), which provides that a purchaser for valuable consideration and without notice takes the land free and clear of any interest not recorded in the prior thirty years.³ The Taylors and the Lorkowskis counterclaimed to enforce the easement pursuant to WIS. STAT. § 893.33(6) and (8), the statute of limitations to commence an action to enforce recorded easements.⁴

¶ 5. The circuit court granted summary judgment in favor of the Taylors and the Lorkowskis. Even though more than thirty years had passed since the easement's last recording, the court concluded the easement was not extinguished by WIS. STAT. § 706.09(1)(k) for two reasons. First, the State of Wisconsin Abstracting Standards require an abstractor to include easements recorded sixty years prior to the date the abstract was last continued. The court stated there was "no reason for the State Bar of Wisconsin to adopt that abstracting standard if the 30 year statute [§ 706.09(1)(k)] applies." Second, § 706.09(1)(k) was little more than a curative statute amounting to a "stale records law," while WIS. STAT. § 893.33(8) and WIS. STAT. § 893.15(5) (1977), allowed for the enforcement of easements for up to sixty years. Because the easement was recorded within the sixty-year window, the court determined the easement was enforceable and, therefore, it need not determine whether the Turners took the property with affirmative or express notice of the easement.

¶ 6. The matter was then set over for a determination of the precise location of the easement. All parties stipulated to its location, and the court determined its width to be thirty-three feet. Final judgment was entered and the Turners appeal.

DISCUSSION

¶ 7. When reviewing a summary judgment, we perform the same function as the trial court, making our review de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment must be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2).

I. WISCONSIN STAT. § 706.09(1)(k) INCLUDES EASEMENTS

¶ 8. WISCONSIN STAT. § 706.09 operates as a "title curative" statute that corrects defects in titles to real estate. Schapiro v. Security S&L Ass'n, 149 Wis. 2d 176, 185-86, 441 N.W.2d 241 (Ct. App. 1989). It extinguishes interests or claims that are adverse to or inconsistent with merchantable title when the following circumstances are present. See WIS. STAT. § 706.09; see also Badger State Agri-Credit & Realty, Inc. v. Lubahn, 122 Wis. 2d 718, 728-29, 365 N.W.2d 616 (Ct. App. 1985)

. First, the estate or interest must be purchased for valuable consideration, i.e., the purchaser must be bona fide. WIS. STAT. § 706.09(1). Second, the adverse claim or interest must fall into one of the eleven listed situations. WIS. STAT. §§ 706.09(1)(a)-(k). Third, the adverse claim or interest must not be exempt from the statute. WIS. STAT. § 706.09(3). Fourth, the purchaser must not have had affirmative or express notice of the adverse claim or interest at the time the purchaser's interest developed in law or equity. WIS. STAT. §§ 706.09(1), (2).

¶ 9. The limited issue on appeal concerns the second element; specifically whether "any interest not of record within 30 years" includes easements. See WIS. STAT. § 706.09(1)(k) (emphasis added). Statutory interpretation is a question of law we review de novo. German v. DOT, 2000 WI 62, ¶ 7, 235 Wis. 2d 576, 612 N.W.2d 50. The goal of statutory interpretation is to discern the legislature's intent. State v. Byers, 2003 WI 86, ¶ 13, 263 Wis. 2d 113, 665 N.W.2d 729. Statutory language is given its common, ordinary and accepted meaning, although technical words or phrases with a peculiar meaning in the law must be construed according to such meaning. Bruno v. Milwaukee County, 2003 WI 28, ¶ 8, 260 Wis. 2d 633, 660 N.W.2d 656. If the statute's language is facially clear, we need not look any further than the statutory text to determine the statute's meaning. State v. Peters, 2003 WI 88, ¶ 14, 263 Wis. 2d 475, 665 N.W.2d 171.

¶ 10. The language of the statute does not limit the types of interests that fall within its purview. Thus, the resolution of this issue hinges on what an "interest" is and if an easement is an interest. An "interest" is a technical word that has a peculiar meaning in the law; hence, to understand its meaning we look outside the statute. See Bruno, 260 Wis. 2d 633,

¶¶ 7-8. An interest is defined as "[a] legal share in something; all or part of a legal or equitable claim to or right in property." BLACK'S LAW DICTIONARY 816 (7th ed. 1999). An easement is, among other attributes, an "interest in another's land, with a right to enjoy it fully and without obstruction." Krepel v. Darnell, 165 Wis. 2d 235, 244, 477 N.W.2d 333 (Ct. App. 1991); see also Millen v. Thomas, 201 Wis. 2d 675, 691, 550 N.W.2d 134 (Ct. App. 1996). While the definition of easement includes the word interest, of paramount importance is that the meaning of interest is synonymously used. That is, an interest is a right in property and an easement is a right in another's property. Because we see no logical equivocation in the use of the term, WIS. STAT. § 706.09(1)(k) applies to easements as a matter of course.⁵

¶ 11. While it is unnecessary to look beyond the plain language, we observe that this conclusion is bolstered by the public policy embodied in WIS. STAT. § 706.09. The legislature included a statutory declaration within this section that asserts, "[n]othing in this section shall be construed to raise or support any inference adverse or hostile to marketability of titles." WIS. STAT. § 706.09(5). A marketable title is "one that can be held in peace and quiet; not subject to litigation to determine its validity; not open to judicial doubt." Baldwin v. Anderson, 40 Wis. 2d 33, 43, 161 N.W.2d 553 (1968) (citation omitted). It has been described as meaning "good title." Genske v. Jensen, 188 Wis. 17, 19, 205 N.W. 548 (1925). However, "[t]itle that is encumbered by an easement is not a good title." Bankers Trust Co. v. Bregant, 2003 WI App 86, ¶ 18, 261 Wis. 2d 855, 661 N.W.2d 498. Consequently, if we construed § 706.09(1)(k) not to include easements, we would, in effect, encourage an interpretation of the statute that is adverse to the marketability of titles. If such were the case, we would be acting contrary not only to the legislature's clear intent, but also to public policy.

¶ 12. Our conclusion is also in accord with the overall scope and construction of WIS. STAT. ch. 706. WISCONSIN STAT. § 706.001 states, "this chapter shall govern every transaction by which any interest in land is created, aliened, mortgaged, assigned or may be otherwise affected in law or in equity." Here again, the legislature chose to use unrestrained terms regarding what interests the chapter controls. Because an easement is an interest, and because WIS. STAT....