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COURT OF APPEALS DECISION DATED AND RELEASED April 8, 1997 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2932-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
JERRY K. SAEGER,
Plaintiff-Counter-Defendant-Respondent,
v.
DAVID E. LUNDGREN and
KATHLEEN A. LUNDGREN,
his wife,
Defendants-Counter-Plaintiffs-Appellants.
APPEAL from a judgment
of the circuit court for Oconto County:
LARRY L. JESKE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. David and Kathleen
Lundgren appeal a declaratory judgment awarding Jerry Saeger a triangular piece
of real estate with a base of 45.3 feet and a length of 1310.43 feet,
comprising approximately .7 of an acre of land.[1] The Lundgrens contend that the trial court
erred by failing to determine the grantor's intent. Because we conclude that the deeds are unambiguous, the trial
court could not consider extrinsic evidence of the grantor's intent to
determine the ownership of the disputed triangle of land. We therefore affirm the judgment.
The grantor to both
Saeger and Harold and Sandy Linssens was Thomas and Marilyn Gryboski. The Gryboskis owned a forty-acre tract in
the northeast quarter of the northeast quarter of section 31, township 32
north, range 16 east, in the Town of Riverview, Oconto County, Wisconsin. In July 1985, the Gryboskis issued a
warranty deed to Harold and Sandy Linssen using a description prepared by a
surveyor, Paul N. Smith, who had surveyed the area prior to the Gryboskis'
acquisition of this forty-acre corner section.
In October 1985, the Gryboskis sold a contiguous ten-acre parcel east of
the Lundgrens' parcel to Saeger. The
legal description in the deed of the property sold to the Linssens was:
Part of the East Half of the Northeast
Quarter (E½ of NE¼) in Section 31, Township 32 North, Range 16 East, Town of
Riverview, Oconto County, Wisconsin described as follows:
The point of beginning being the
Northwest corner of the Northeast Quarter of the Northeast Quarter (NE¼ of NE¼)
of Section 31, T. 32N, R. 16E; thence North 89º 42' 45" East 330 feet on
the North section line to a point.
Thence South 1º 46' 55" East approximately 1310.43 feet to a point
on the South line of the NE¼ of NE¼ of Section 31, T. 32N, R. 16E; thence South
89º 45' 47" West approximately 305 feet to a survey marker; thence South
43º 50' West 34.77 feet; thence North 2º 06'43" West 25 feet; thence North
1º46'55" West 1310.43 feet back to the point of beginning.
EXCEPTING that part of Star Lake Road and
Elbe Road as now used for Town Highway.
The legal description of
the property sold to Saeger is:
Part of the East Half of the Northeast
Quarter (E½ of NE¼) of Section 31, Township 32 North, Range 16 East, Town of
Riverview, Oconto County, Wisconsin, more particularly described as follows:
Beginning at the Northwest corner of the
NE¼ of NE¼ of Section 31, Township 32 North, Range 16 East;
thence North 89º42'45" East, 330
feet, on the North Section line to the point of beginning of parcel to be
described:
Thence continuing on the Easterly line, a
distance of 330 feet to a point; thence South 01º46'55", approximately
1310.43 feet, to a point on the South line of the NE¼ of NE¼ of Section 31,
Township 32 North, Range 16 East; thence South 89º45'47" West, 330 feet,
to a point;
thence North 01º46'55" West, 1310.43
feet back to the point of beginning; (being a part of the NE¼ of NE¼ of Section
31, Township 32 North, Range 16 East, ONLY);
EXCEPTING
that part of Star Lake Road now used for Town Highway.
The
Linssens subsequently deeded their property to the Lundgrens utilizing the same
language from their deed. After a
subsequent land survey showed a boundary error of forty-five feet, Saeger filed
suit to attain title to the disputed property.
Deeds are construed the
same as other instruments, with the court's purpose being to ascertain the
intent of the parties. Rikkers v.
Ryan, 76 Wis.2d 185, 188, 251 N.W.2d 25, 27 (1977). The first step in construing a deed is to
examine what is contained in the four corners of the deed, as the deed itself
is the primary source of the intent of the parties. Id. If the
language of a deed is unambiguous, its construction is a matter of law. Id. When there is an ambiguity in the deed, the meaning of the ambiguous
words presents a question of fact. Id.
Further, "where a
deed is susceptible to only one interpretation, extrinsic evidence may not be
referred to in order to show the intent of the parties." Id. (citing Grosshans v.
Rueping, 36 Wis.2d 519, 528, 153 N.W.2d 619, 623 (1967)). "[P]arol evidence is not admissible to
vary or explain the terms of a deed, and the acts of the parties are not
admissible to show a practical construction where the language of the deed is
neither ambiguous nor indefinite."
Kleih v. Van Schoyck, 250 Wis. 413, 419, 27 N.W.2d 490,
493 (1947). "[W]here the language
of the deed is plain, certain, and unambiguous, the surrounding facts and
circumstances will not be considered."
26 C.J.S. Deeds § 92 at 850 (1956). These principles of law require that any ambiguity in the
document be determined from an examination limited to the four corners of the
document.
In this case, the deeds
in question are not ambiguous. The
calls of the deeds establish a definite, certain and ascertainable area of
land. Therefore, after examining the
four corners of the deed, we conclude that there is no ambiguity in the
deed. The fact that the descriptions in
these deeds may be in error by 45.3 feet does not alter the clarity of the
descriptions. The trial court, after
hearing evidence, decided to simply apply the calls of the deeds. This is in accord with the fact that the
deeds do not contain an ambiguity and without such an ambiguity extrinsic
evidence is inadmissible. See Rikkers,
76 Wis.2d at 188, 251 N.W.2d at 27.
Because we conclude the deeds are not ambiguous, we apply the calls of
the deeds and affirm the judgment.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.