Werkowski v. Waterford Homes, Inc.
| Decision Date | 12 April 1966 |
| Citation | 141 N.W.2d 306,30 Wis.2d 410 |
| Parties | Edward WERKOWSKI et al., Respondents, v. WATERFORD HOMES, INC., Defendant, Benjamin G. Bakke, Appellant. |
| Court | Wisconsin Supreme Court |
Lepp & Lepp, Kenosha, for appellant.
Helm, Myers, Gillett & Christensen, Racine, for respondents.
The plat was prepared in 1927. The subdivision lies along the easterly shore of the Fox River. A public highway between Rochester and Waterford runs along the easterly boundary of the subdivision. The area was divided into blocks and lots, drives, and park areas. The plat shows a channel which joins the river at its north and south ends, and the island between the channel and river was originally designated Fox Grove Park. Apparently the channel never existed, but was a proposed development. On the map Fox Grove drive runs from the channel at its west end to the highway at its east end.
On July 14, 1945, Ida Roesing, the owner of the subdivision, conveyed three parcels to the Werkowskis. Parcel 1 lay outside the plat. Parcels 2 and 3 were within it. Although the parcels were described by metes and bounds, it is apparent that parcel 2 corresponds to the part of the subdivision south of Fox Grove drive, and south of Fox Grove drive if extended west to the easterly shore of the river, except for five lots at the southerly end of the subdivision. Parcel 3 corresponds to lots 1 and 2 of block 3, with the northerly line of lot 2 and the south line of lot 1 extended westerly to the easterly shore of the river. Thus parcel 3 lies immediately north of Fox Grove drive, and north of Fox Grove drive if extended west to the easterly shore of the river. Parcel 2 was contiguous to the public highway. Parcel 3 was 'landlocked.'
In 1945 Fox Grove drive east of the west line of River View drive was in use as a road and although the degree of development as a street is not shown, this portion will be referred to as the developed portion. The portion of Fox Grove drive to the west will be referred to as the undeveloped portion.
At the end of the description of Parcel 3, the following appears:
'Also: a right-of-way from the public highway to the parcel above described over the parcel designated as Fox Grove Drive in the plat of Fox Grove Subdivision, unrecorded.'
The deed continues: 'Parcels 2 and 3 above described are subject to the following restrictions, to-wit. * * *' There follow a number of provisions, most of which are restrictions upon use, and Mrs. Roesing, the grantor, also covenanted that all parcels later sold in Fox Grove would be subject to similar restrictions.
One of the provisions reads of follows:
'(5) Parties of the second part shall have the full and free right to use any of the parks and streets set aside and developed by first parties in said entire tract, as shown on the unrecorded plat and map thereof in common with first parties, their heirs, executors, administrators and assigns, and the other grantees of first parties, their heirs, executors, administrators and assigns in said tract.'
On May 31, 1963, the heirs of Ida Roesing conveyed a number of a parcels in the subdivision to Waterford Homes, Inc. Parcel Three was described at one point as 'Blocks Five (5) and Six (6) and strips as land which are designated as outlots for roadways referred to as Fox Grove Drive, Wood Drive, and River View Drive.' There is also a metes and bounds description which includes a strip corresponding to an extension of Fox Grove drive west to the river. The description of Parcel Three closes with the following: 'Subject to rights-of-way as a means of ingress and egress to the public highway running from Rochester to Waterford across those outlots designated on the unrecorded plat of Fox Grove Subdivision as Fox Grove Drive and that part of River View Drive running northerly and northeasterly from Fox Grove Drive to a terminus on aforesaid public highway running from Rochester to Waterford.'
Just before the action was started, Waterford conveyed to Bakke the undeveloped portion of Fox Grove drive and its extension west to the river. The house in question is being constructed on this parcel.
Werkowski testified he had made some use of the undeveloped portion of Fox Grove drive. He said he put in a ditch to drain it, parked his car on it, and had driven across it to reach his lots. There was also testimony that none of this use was apparent in 1963.
The principal problem is the proper interpretation of the provision granting the right of way, appurtenant to parcel 3, and of the provision for the right to use streets, appurtenant to both parcels 2 and 3. The learned county judge apparently concluded that both provisions essentially described the same type of right or easement, and he held that the right of way appurtenant to parcel 3 was coextensive with the parcel designated Fox Grove drive. He deemed it immaterial whether the streets shown on the map had been developed in 1945 when the deed was delivered, and concluded that construction of a house on the undeveloped portion of Fox Grove drive was an obstruction which violated Werkowskis' right of way.
Appellant Bakke also concludes that the right of way appurtenant to parcel 3 is essentially the same in extent as the right to use streets, but he stresses the word 'developed' in the latter provision and argues that neither the right of way nor the right to use streets applied to any parcel except those which had been developed as streets in 1945. Thus he contends that the right of way granted as an appurtenance to parcel 3 gave Werkowski no more than the right to use the developed portion of Fox Grove drive and gave him no right at all to use the undeveloped portion of Fox Grove drive.
We take a different view, which gives different meaning...
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Philip Mnuk v. Harmony Homes Inc., 2009AP1178.
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