PUBLISHED OPINION
Case No.: 96-0570
Complete
Title
of
Case:ROBIN H. ARNOLD,
Plaintiff-Appellant,
v.
JOHN C. ROBBINS, JR. and LINDA
ROBBINS,
Defendants-Respondents.
Submitted
on Briefs: December 12, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: March 13, 1997
Opinion
Filed: March
13, 1997
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Lafayette
(If
"Special" JUDGE: William
D. Johnston
so
indicate)
JUDGES: Eich,
C.J., Vergeront and Roggensack, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the briefs of Duane M. Jorgenson of Jorgenson
Law Office of Darlington.
Respondent
ATTORNEYSFor the defendants-respondents the
cause was submitted on the brief of Sheila Stuart Kelley of Kopp,
McKichan, Geyer and Skemp of Platteville.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED March
13, 1997 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0570
STATE OF WISCONSIN IN
COURT OF APPEALS
ROBIN
H. ARNOLD,[1]
Plaintiff-Appellant,
v.
JOHN
C. ROBBINS, JR. and
LINDA
ROBBINS,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Lafayette County: WILLIAM
D. JOHNSTON, Judge. Reversed.
Before
Eich, C.J., Vergeront and Roggensack, JJ.
ROGGENSACK,
J. Robin Arnold appeals a judgment declaring the boundary line
between her property and that of her neighbors, John and Linda Robbins, to be
one marked by a common grantor, rather than the lot line established by the
recorded plat map. Because we conclude
that the facts found by the trial court are insufficient to satisfy the common
grantor exception to the doctrine of acquiescence, which requires that the lots
be purchased pursuant to a common reference line, we reverse and remand with
directions to enter judgment consistent with this opinion.
BACKGROUND
The
parties in this case own Lots 4 and 5 in the unincorporated village of New
Diggings. Both lots had been owned by
Robert and Rebecca Seymour at one point in their chains of title. The Seymours conveyed Lot 4 to the
defendants John and Linda Robbins in 1983, and Lot 5 to Robert and Betty
Thompson in 1984. Ten years later, the
Thompsons sold Lot 5 to the plaintiff, Robin Arnold. Each conveyance was made pursuant to a warranty deed, which
described the property according to lot numbers in the recorded plat for
Cothern's Addition to the Village of New Diggings.
In
1978, when the Seymours owned Lot 4, but had not yet purchased Lot 5, they
drilled a well on what they mistakenly believed to be a part of Lot 4. When they sold Lot 4 to the Robbinses,
Robert Seymour told them that the property line ran down the middle of a 500
gallon propane tank, which then stood on two concrete pads. Seymour also specifically pointed out the
well and explained that it was about three feet within the Lot 4 boundary.
Later,
when the Seymours sold Lot 5 to the Thompsons, they did not show or describe
any boundary line to them. The
Seymours' deed to the Thompsons describes the property by lot number according
to the recorded plat. Two months after
the Thompsons purchased Lot 5, they had the property surveyed, and discovered
that the well was located 1.25 feet within Lot 5. They brought their apparent ownership of the well to the
Robbinses' attention and talked about a well agreement, but none was made.
When
the Thompsons sold to Arnold, they explained the boundary dispute to her before
she purchased Lot 5. After her
purchase, Arnold initiated this action, seeking declaratory judgment that she
held good title to all the land in Lot 5, as described in the recorded plat map
for Cothern's Addition to the Village of New Diggings. The Robbinses raised the doctrine of
acquiescence as an affirmative defense, and the trial court found in their
favor.
DISCUSSION
Standard of Review.
We will not disturb the
trial court’s findings of the representations made during the course of a sale,
unless they are clearly erroneous.
Section 805.17(2), Stats.;
see also Beasley v. Konczal, 87 Wis.2d 233, 235, 275
N.W.2d 634, 635 (1979). However,
whether established facts satisfy a legal standard, such as whether they are
sufficient to invoke the doctrine of acquiescence, is a question of law which
this court reviews de novo. See
Janesville Community Day Care Center, Inc. v. Spoden, 126 Wis.2d
231, 237, 376 N.W.2d 78, 81 (Ct. App. 1985).
Acquiescence.
The
doctrine of acquiescence allows land to be acquired by adverse possession,
without the usual adverse intent, when the true owner has acquiesced in
another’s possession for a period of twenty years. Buza v. Wojtalewicz, 48 Wis.2d 557, 563, 180 N.W.2d
556, 559 (1970). However, there is
well-settled exception to the requirement that the true owner acquiescence for
twenty years which occurs when:
[a]djoining owners take conveyances from a common
grantor which describe the premises conveyed by lot numbers, but such grantees
have purchased with reference to a boundary line then marked on the ground,
such location of the boundary line so established by the common grantor is
binding upon the original grantees and all persons claiming under them,
irrespective of the length of time which has elapsed thereafter.
Thiel v. Damrau, 268 Wis. 76, 81, 66 N.W.2d 747, 750 (1954). Once the facts establishing acquiescence, or
purchase from a common grantor by the use of a common boundary reference, are proven,
the true owner is estopped from claiming title to the disputed land. See Buza at 567,
180 N.W.2d at 561.
It
is undisputed that the land at issue has been adversely occupied for less than
twenty years. There is also no dispute
that the parties in this case own adjoining lots that at one point in time had
a common owner. The issues raised are,
first, whether improvements such as a well or cement slabs, on which a propane
tank once sat, may qualify as a boundary “then marked on the ground,” and second,
whether a grantee may be said to have “purchased with reference” to a “marked”
boundary when he had seen the property prior to purchase, but the grantor did
not point out the landmarks, which it is now maintained, set the true boundary.
Arnold
argues that a boundary line can be “marked” only by survey stakes for common
reference purposes, limiting Thiel to its facts. However, we decline to read the case that
narrowly. The purpose of the Thiel
rule is to ascertain the intention of the parties with respect to the
land they thought was conveyed. See Kraus
v. Mueller, 12 Wis.2d 430, 439, 107 N.W.2d 467, 471 (1961), rev’d on
other grounds. Moreover,
improvements, such as buildings, may constitute monuments which may be material
in establishing disputed boundary lines.
See, e.g., City of Racine v. J.I. Case Plow Co., 56 Wis.
539, 541, 14 N.W. 599, 600 (1883). We
conclude that the use of an easily visible well or cement pads on the ground as
boundary markers may operate to mark a boundary on the ground, and that the
trial court’s finding that the Seymours had marked a line three feet west of
the well which runs through the cement pads, as the boundary between lots 4 and
5, when they sold to the Robbinses, is not clearly erroneous.
We
next consider whether or not Arnold's predecessor in interest, the Thompsons,
purchased with reference to the boundary line marked by the Seymours. The trial court found that the Thompsons
were aware of the well pipe and cement pads when they purchased Lot 5. It also found the Seymours had never pointed
out these "markers" to them or told them the boundary between Lots 4
and 5 was determined by reference to them.
Nevertheless, it concluded that the Thompsons “acquiesced” in the
boundary line running through the center of the cement pads three feet west of
the well. However, locating a boundary
line by reference to landmarks on the ground “does not rest upon acquiescence
in an erroneous boundary,” but upon the proposition that when a common grantor
makes common representations, what was represented becomes the true boundary,
and the subsequent conveyance is made with reference to it. Thiel, 268 Wis. at 82, 66
N.W.2d at 751. Therefore, while the
Thompsons’ mistaken belief that the well was located on Lot 4 would be relevant
to an analysis of whether they had acquiesced to an erroneous boundary line for
a period of twenty years, it does not resolve the question of whether they
purchased Lot 5 with reference to a boundary marked by concrete cement pads.[2] Such reference requires communication
between the grantor and the grantee at the time of the conveyance. Thiel, 268 Wis. at 81, 66 N.W.
at 750. The only communication the
Seymours made to the Thompsons regarding the boundary was that Lot 5 did not
include the well. The Thompsons cannot
be held to have purchased with reference to markers which were not pointed out
to them at the time of the conveyance.
We conclude that the survey line established by the recorded plat map
controls the terms of the title they obtained from the Seymours, and as the
Thompsons were Arnold's grantors, she takes whatever title they had.[3]
CONCLUSION
While a boundary line
for lots conveyed by a deed that makes reference to lot numbers, rather than
metes and bounds measurements, may be established by reference to such fixed
objects as cement pads, a common grantor must designate those markers as the
land's boundaries to each of the parties to whom he conveys land in order for
the boundary to be controlled by landmarks marked on the ground. That did not occur here; therefore the terms
of the deed control.
By
the Court.—Judgment
reversed.
[1] The middle initial, "A," appears on the caption before the court of appeals, but the complaint and the deed, on which it is based, use "H" as Ms. Arnold's middle initial.
[2] When the Robbinses purchased Lot 4, the cement pads had a 500 gallon propane tank standing on them, which tank the Robbinses removed before the Thompsons purchased Lot 5. These pads were located approximately three feet further into Lot 5 than the well, which was about 1.25 feet into the easterly boundary of Lot 5. However, it was with reference to the propane tank as the common boundary between Lot 4 and Lot 5 that the Robbinses purchased.