2007 WI App 260
court of appeals of
published opinion
Case No.: |
2006AP2462 |
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Complete Title of Case: |
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Opinion Filed: |
November 20, 2007 |
Submitted on Briefs: |
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Oral Argument: |
October 29, 2007 |
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JUDGES: |
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Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of J. Bushnell Nielsen and Bridget M. Hubing of Reinhart Boerner Van Deuren S.C.,
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Respondent |
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ATTORNEYS: |
On behalf of the defendants-respondents, the cause was
submitted on the brief of Joe Thrasher of Thrasher, Doyle, Pelish & Franti, Ltd., |
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2007 WI App 260
COURT OF APPEALS DECISION DATED AND FILED November 20, 2007 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Judith Anderson and Matthew B. Anderson,
Plaintiffs-Appellants, v. Jacqueline Quinn, John Doe Quinn, James Proeschel, Brenda Proeschel, Audrey Worm, John Doe Worm, Roger Ramseier, Catherine Ramseier, Fisher, Karen Fisher, Bernard Tehany, Jane Doe Tehany, Michael Persson, Deanna D. Persson, Edwin Persson, Dorothy Persson, John Helling, Joan Helling, Robert Hughes and Susan Hughes,
Defendants-Respondents. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PETERSON, J. Judith and Matthew Anderson appeal a judgment enforcing three easements against their property. They argue the easements are unenforceable under the doctrine of merger of title. In the alternative, they argue they are good faith purchasers without notice of the easements, and two of the easements are too indefinite to be enforceable under the statute of frauds.
¶2 We conclude merger of title is not applicable here, and the
Background
¶3 In September 2002, the
¶4 Prior to 1984, the land on which the
(1)
A “non-exclusive
right of ingress and egress over and through that certain road easement as set
forth” in a legal description. The legal
description of the road easement corresponds to the current driveway.
(2)
The
“non-exclusive right for the use of … the entire beach area in front of the
lodge building, not part of this condominium development, for the benefit of
the unit Owners to pass and repass, sit upon, walk on and use as though it were
part of the Condominium.”
(3)
A “non-exclusive
easement for all water lines, electrical lines, and similar utilities,
including septic, whether now in place or needed in the future for the
efficient functioning of the condominium, accross [sic] Declarant’s property
between the two parcels of the condominium.”
Pursuant to the easements, the unit
owners have run water, sewer and electrical lines across the central
parcel. The following diagram shows the
land in question and some of its features:[1]
¶5 The condominium declaration was recorded and indexed under “Black Mallard Condominium.” The plat map of the condominiums was recorded the same day. The declaration was not, however, indexed in the grantor index under “Super” or “Pfeiffer.”[2] This meant that a person searching the register of deeds office for conveyances by the Supers or Pfeiffers would not find the Black Mallard declaration.
¶6 In 2002, the
¶7 When the Andersons purchased the property in September 2002,
they were advised by their broker and title insurer that there were no
easements of record and they would be able to shut down the driveway across
their parcel and build a cabin there. In
May or June 2003, however, on one of the
¶8 The Andersons filed this suit in March 2005. They named the Black Mallard unit owners as defendants, and requested an order voiding the easements in the declaration and a permanent injunction against the unit owners prohibiting exercise of any of their rights under the declaration.[4]
¶9 Both parties moved for summary judgment. The court denied both motions and set the
matter for trial. A bench trial took
place in April 2006. The court, in a
written decision, made a number of fact findings and concluded the easements
were valid and enforceable against the
Discussion
¶10 The Andersons do not dispute any of the circuit court’s fact
findings. Instead, they argue the court
misapplied the common law doctrine of merger of title and Wis. Stat. §§ 706.02 and 706.09.[5] The application of a legal standard to
undisputed facts is a question of law reviewed without deference to the circuit
court. Kenyon v. Kenyon,
2004 WI 147, ¶11, 277
I. Merger of title
¶11 The Andersons first argue the easements are void under the
doctrine of merger of title. The
doctrine of merger of title is based on the property law concept that “no man
can, technically, be said to have an easement in his own land. And the consequence is, that if the same
person becomes owner in fee simple of both estates, the easement is
extinguished.” Mabie v. Matteson,
17
[I]f X owns parcel 1, the dominant tenement, but not parcel 2, the servient tenement, and later purchases parcel 2, the easement will be extinguished…. If X later sells parcel 1, the purchaser takes the property without the right to traverse parcel 2, unless X also grants to the purchaser an easement.
Kallas v. B&G Realty,
169
¶12 When the Supers and Pfeiffers recorded the Black Mallard
declaration, which included the easements, they owned the servient parcel—the
parcel now owned by the
¶13 The unit owners contend the declaration simply defined relationships between parcels that would be sold in the future. Therefore, no easement came into being until the units were sold. When the units were sold, the servient and dominant parcels were not owned by the same person.
¶14 We agree with the unit owners. The unit owners’ argument is consistent with Wis. Stat. ch. 703, which governs condominium ownership. Under Wis. Stat. § 703.07(1), a condominium is created by recording a declaration and a plat. Among other things, the declaration must describe the land, indicate the “owner’s intent to subject the property to the condominium declaration,” and describe the individual units and common areas. Wis. Stat. § 703.09(1)(b)-(d). The declaration must be signed by the owner of the property and the first mortgagee, if any, on it. Wis. Stat. § 703.09(1c). When units are sold, the documents recording the sale need only include “the letter or number … on the condominium plat together with a reference to the condominium instruments….” Wis. Stat. § 703.12.
¶15 These sections anticipate a two-step process. First, the declaration and plat are filed. The declaration and plat define the rights and obligations of future purchasers of units in the condominium. That action is taken unilaterally by the owner of the property. Next, the units themselves are actually sold. Because the master plan—the declaration and plat—is already in place, the units are described simply by reference to the master plan.
¶16 Against this backdrop, the
¶17 More fundamentally, however, the
II. Notice
¶18 The Andersons next argue they are good faith purchasers without notice of the easements, and their interest is superior to those belonging to the unit owners. They rely on Wis. Stat. § 706.09(1):
A purchaser for a valuable consideration, without notice as defined in sub. (2) … shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon:
.…
(b) … Any conveyance, transaction or event not appearing of record in the chain of title to the real estate affected, unless such conveyance, transaction or event is identified by definite reference in an instrument of record in such chain.
Under this statute, then, the
¶19 We conclude the
¶20 Notice here is governed by Wis. Stat. § 706.09(2):
A purchaser has notice of a prior outstanding claim or interest, within the meaning of this section wherever, at the time such purchaser’s interest arises in law or equity:
….
(a) … Such purchaser has affirmative notice apart from the record of the existence of such prior outstanding claim, including notice, actual or constructive, arising from use or occupancy of the real estate by any person at the time such purchaser’s interest therein arises, whether or not such use or occupancy is exclusive; but no constructive notice shall be deemed to arise from use or occupancy unless due and diligent inquiry of persons using or occupying such real estate would, under the circumstances, reasonably have disclosed such prior outstanding interest; nor unless such use or occupancy is actual, visible, open and notorious….
¶21 Under this statute, actual or constructive notice of a claim
can arise from use (1) “by any person” (2) “at the time … the purchaser’s …
interest arises,” (3) “whether or not [the] use … is exclusive….” Wis.
Stat. § 706.09(2). In
addition, constructive notice of a claim can exist only if: (1)
diligent inquiry of persons using the land would have revealed the claimed
interest, and (2) the use is “actual, visible, open and notorious….”
¶22 The circuit court held the
¶23 We agree with the circuit court’s analysis. The
¶24 The Andersons argue this result is contrary to case law,
specifically Taggart v. Warner, 83 Wis. 1, 53 N.W. 33 (1892). In that case, Taggart had crossed another
person’s land to get to Taggart’s property.
[T]he mere existence of a track from [Taggart’s parcel] across [Warner’s parcel] to the public highway gave [Taggart] no legal or equitable right to such continued free passage, much less can it be regarded as notice to Warner, as such purchaser, of any such outstanding right.
¶25 The problem with the
Every conveyance of real estate … not … recorded as provided by law, shall be void, as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.[9]
This statute mirrors current Wis. Stat. § 706.08(1)(a), which provides in relevant part:
[E]very conveyance that is not recorded as provided by law shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate or any portion of the same real estate whose conveyance is recorded first.
The difference between the two,
however, is that “good faith” for purposes of § 706.08(1)(a) exists only
where there is no notice under Wis.
Stat. § 706.09. Associates
Fin. Servs. Co. v. Brown, 2002 WI App 300, ¶¶11-14, 258
¶26 No statute similar to Wis.
Stat. § 706.09 existed in 1892 when Taggart was
decided.[10] The court in Taggart therefore
did not have the benefit of the specific rules in § 706.09(2) governing
notice and the purchaser’s duty to ask any user of the property what rights the
user might have. Instead, the Taggart
court reached its own conclusions about what good faith meant, and concluded
Warner acted in good faith because he asked the seller about the wagon track
and was assured that Taggart did not have a right to use it. Taggart, 83
¶27 Finally, at oral argument the
¶28 The Andersons argue their proffered distinction is supported by
case law and legislative history.
However, we are not at liberty to disregard the plain language of a
statute when interpreting it. State
ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271
Wis. 2d 633, 681 N.W.2d 110 (citation omitted).
The
III. The statute of frauds
¶29 The Andersons finally argue the utility and beach easements are
too indefinite to satisfy the statute of frauds. The statute of frauds provides that a
transaction governed by Wis. Stat. ch.
706 “shall not be valid unless evidenced by a conveyance that … [i]dentifies
the land….” Wis. Stat. § 706.02(1)(b); see also Wis. Stat. § 706.001(1). Courts have interpreted this requirement to
mean the conveyance must identify the property with “reasonable
certainty.” Wiegand v. Gissal,
28
¶30 “Reasonable certainty” means that “by the aid of the facts and
circumstances surrounding the parties at the time the court can with reasonable
certainty determine the land which is to be conveyed….” Kuester v. Rowlands, 250
¶31 In this case, the land burdened by the utility easement can be determined with “reasonable certainty” with reference to the “facts and circumstances surrounding the parties” when the easement was created. See id. at 279. The utility easement grants the unit owners the right to run utilities “accross [sic] Declarant’s property between the two parcels of the condominium.” From looking at the plat, the only reasonable meaning of the phrase “property between the two parcels of the condominium” is the central parcel—the land in front of the lodge from the driveway to the beach. The plat shows an overhead power line running through that parcel. In addition, the utility easement was created in order to allow common utilities for all of the condominiums. Because of the location of the condominium units, utility lines connecting the units would necessarily run through the central parcel.[13]
¶32 The Andersons argue a description of land that is not a legal
description is always indefinite when it describes part of a larger
parcel. They rely on two cases where
conveyances were held to be indefinite because they described buildings or land
features but did not describe the surrounding land. See, e.g., Wiegand, 28
¶33 However, the beach easement does suffer from the same flaw as
the property description in Wiegand. The beach easement describes the burdened
land as “the entire beach area in front of the lodge building.” At oral argument, the unit owners conceded
this language could refer to the area immediately adjacent to the water or to
all of the land between the lake and the lodge.
In other words, this description gives a beginning point for the
burdened parcel—the water—but no clear ending point. As such, it is akin to the description in Wiegand
of only buildings and land features with “no way of knowing the extent of the
land areas surrounding them.” See
Wiegand, 28
By the Court.—Judgment affirmed in part; reversed in part and cause remanded with directions. No costs.
[1] No single survey map including all of the relevant land boundaries and features appears in the record. This diagram is compiled from various survey maps and other record sources, and is roughly to scale.
[2] The grantor index is arranged alphabetically by the name of the grantor. So, a person searching for conveyances by Super and Pfeiffer would look under “S” for Super and “P” for Pfeiffer but not under “B.” See Black’s Law Dictionary 786 (8th ed. 2004).
[3] The
legal description in the
[4] The
[5] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[6] The parties disagree whether the declaration is a “conveyance” for purposes of Wis. Stat. § 706.01(4). We do not express any opinion on this question. Regardless whether the declaration is a conveyance, the key point for purposes of merger of title is that filing a declaration is by definition a unilateral act, not a transfer of rights from one party to another.
[7] Our
conclusion that the
[8] The
[9] Both
the 1898 official compilation and the 1889 unofficial compilation contain this
language. See Wis. Stat. § 2241 (1898); Ann. Stats. of Wis. § 2241 (Sanborn and Barryman 1889). The version of Taggart found in
the Northwest Reporter contains a footnote, apparently by the editor, that also
has this language. Taggart v.
Warner, 53 N.W. 33, 34 n.1 (
[10] Wisconsin Stat. § 706.09 was
created in 1967 as Wis. Stat. § 235.491. 1967
[11] A number of cases, including Ricci, repeat boilerplate language stating that the purchaser must, among other things, consult “the land itself, to discover by observation the rights that arise outside the recording system by virtue of possession or use.” See, e.g., Hoey Outdoor Advert., Inc. v. Ricci, 2002 WI App 231, ¶19, 256 Wis. 2d 347, 653 N.W.2d 763; Kordecki v. Rizzo, 106 Wis. 2d 713, 719 n.5, 317 N.W.2d 479 (1982) (emphasis added). There is nothing inaccurate about this language—a purchaser must indeed consult the land to discover potential prescriptive rights. However, as noted above, Wis. Stat. § 706.09 requires the purchaser to consult the land to discover potential unrecorded rights as well.
[12] The unit owners argue the declaration is not a conveyance, but concede that “common sense” indicates the descriptions in the declaration must be definite. We suggest the reason is that even if the declaration itself is not a conveyance, the deeds conveying each unit are. Because those deeds incorporate the description in the declaration, see Wis. Stat. § 703.12, the deeds will run afoul of the statute of frauds unless the description in the declaration is sufficiently definite. In any event, the unit owners concede the definiteness requirements of the statute of frauds apply to the easements.
[13] While one could conceivably create a larger parcel “between the two parcels of the condominium” by drawing a line between the farthest corners of the parcels, this interpretation is unreasonable. It would give the unit owners the right to run utilities through part of the lodge building. The extra land is also not where utilities connecting the units would be located.
[14] At
oral argument, the unit owners argued the beach easement was based on a mutual
mistake of fact, and therefore is enforceable in equity under Wis. Stat. § 706.04. However, this argument was raised for the
first time during oral argument. The
unit owners did not argue they were entitled to equitable relief at the circuit
court, nor did they brief the issue on appeal.
The issue is therefore waived, and we decline to address it. See