Yurmanovich v. Johnston

• Decision Date: 02 April 1963
• Citation: 120 N.W.2d 707,19 Wis.2d 494
• Parties: Steve YURMANOVICH et al., Appellants, v. Roy Willard JOHNSTON et al., Respondents.
• Court: Wisconsin Supreme Court

Page 707

120 N.W.2d 707

19 Wis.2d 494

Steve YURMANOVICH et al., Appellants, v. Roy Willard JOHNSTON et al., Respondents.

Supreme Court of Wisconsin.

April 2, 1963.

Walter & Hopp, Sheboygan, for appellants.

Gruhle, Fessler, Wissbroecker & Van De Water, Paul L. Axel, Sheboygan, for respondents.

BROWN, Chief Justice.

Suit was commenced by several appellant lot owners against several respondent lot owners and against the Town of Lyndon to compel them to remove certain obstructions alleged to have been unlawfully placed and maintained on certain routes and easements over which appellants allege they are entitled to travel. Trial was to the court which made findings of fact in favor of respondents. Appeal is from the judgment dismissing the complaint.

Appellants own lots located on top of a hill which slopes down to Lake Ellen, a navigable lake in a subdivision called Lake Ellen Heights in the Town of Lyndon, Sheboygan county. The respondents, other than the Town of Lyndon, own lots between them and the lake. Appellants desire to use certain routes extending across the land of respondents as indicated by recorded plat which would give them access to the lake. By their complaint appellants alleged in part as follows:

'10. There was recorded in the office of the Register of Deeds for Sheboygan County, Wisconsin, on October 31, 1921, in Vol. 5 of Plats, page 2, a Plat named Lake Ellen Heights, containing six blocks, said Plat having been made by William H. Heins, at the request of Roy Johnston, all as appears from the Certification and Acknowledgment recorded with said Plat; that said Plat has designated thereon certain streets and alleys which are the streets and alleys which are referred to hereafter in this complaint, and further that said Plat is made a part hereof by reference thereto as though set forth herein in complete detail.

'11. The said Roy Johnston, who caused the Plat of Lake Ellen Heights to be created and recorded, is the predecessor in title to the real estate owned by all of the parties to this action, and referred to hereinafter, except for the Town of Lyndon.

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'20. The plaintiffs herein purchased their respective properties because they were among other things interested in the recreational facilities made available to them, their families and friends, because of their proximity to Lake Ellen, and the road-ways and easements to the waters-edge as they in the past existed, and as they were platted, and laid out by virtue of the recorded plat of Lake Ellen Heights, as stated in Paragraph #10 of this complaint, and that they from time to time in the past were able to exercise their access, but that at the present time the use of access roads to Lake Ellen have been denied them, * * *

'21. The acts of the defendants aforementioned have caused the plaintiffs to be denied the full enjoyment of their respective properties, and has depreciated the value of said properties, and further that said acts have denied the general public of its rights of usage.'

The complaint also recited that all of the deeds in question were conveyed with reference to the plat.

The record shows that the deeds of conveyances from the original grantor, Roy Johnston, father of respondent Roy Willard Johnston, and from his grantees were to give appellants access to the routes and to the beach.

During the trial testimony established that the plat was never officially accepted by the Town of Lyndon. However, a sharp conflict of testimony developed between appellants and their witnesses and respondents and their witnesses with respect to the question of whether there was a common law dedication. The trial judge, accompanied by counsel, viewed the areas in dispute on two separate occasions. There were five obstructions involved but only two were actually found to be obstructing appellants. These were numbered and described by the trial judge as:

'No. 4: A fence six feet high maintained by the defendants, Johnstons, and built directly across the platted roadway; also a part of their residence and a patio across the platted roadway.

'No. 5: A fence maintained by the defendant, Ten Haken, similar in nature to the fence described under No. 4 and being an extension thereof.'

After viewing all the evidence the trial court held:

'I therefore conclude that this case, as far as the individual defendants are concerned, (the situation insofar as it affects the Town of Lyndon will be separately considered) turns upon a question as to whether or not there has been such use of the rights of way by the public as to constitute an acceptance. On this point there is, admittedly, a conflict of evidence. I am not going to review such evidence in detail. I assure counsel that I have spent much time going over my notes, and viewing the various exhibits, particularly the photographs. My conclusion is that I am not satisfied by the evidence to a degree of reasonable certainty that there has been such user as to constitute an acceptance of the plat.'

The court also held there was no cause of action against the Town of Lyndon for not maintaining the roadways as streets.

The issues raised on this appeal are:

(1) Whether the findings of the trial court that there was no public acceptance of the roadways in the plat are against the great weight and clear preponderance of the evidence.

(2) Whether upon the evidence we can hold as a matter of law that a prescriptive easement exists.

(3) Whether landowner-respondents are estopped from denying appellants were granted easements over the roadways indicated on the recorded plat and referred to in their deeds of conveyance.

(4) Whether there was a dedication to the public by estoppel.

1. Finding of No Public Acceptance. As we have stated many times we will not set aside a finding of the trial court unless it is against the great weight and clear preponderance of the evidence. A review of the entire record indicates that the evidence is manifestly in conflict on the issue of whether there was an acceptance of the plat by the public. The finding that there was no such acceptance in light of the extensive testimony for both appellants and respondents is not against the great weight and clear preponderance of the evidence, and the finding cannot be disturbed. Central Refrigeration, Inc. v. Monroe (1951), 259 Wis. 23, 25, 47 N.W.2d 438.

2. Prescriptive Easement. Although the issue of the existence of easements was presented to the trial court the record does not indicate that the trial court made any specific findings with respect to the existence of prescriptive easements over the roadways shown on the plat. Rather, the findings against the appellants and in favor of respondents generally are that appellants or the public do not have any right to use the roadways as indicated on the plat where obstructions in fact prevent them from being used.

We will assume that when a finding is not made on an issue which appears from the record to exist that it was determined by the trial court to be in favor of or in support of the judgment. Sohns v. Jensen (1960), 11 Wis.2d 449, 453, 105 N.W.2d 818, 84 A.L.R.2d 643. Therefor...