COURT OF APPEALS DECISION DATED AND FILED January 29, 2009 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
from a judgment of the circuit court for
Before Higginbotham, P.J., Vergeront and Bridge, JJ.
¶1 VERGERONT, J. This action arises out of a
dispute over a twelve-foot-wide strip of land between the east side of
BACKGROUND
¶2 At the time this action was filed, Joel Marino and Seth
Nicholson each owned and occupied residential property on the west side of
¶3 Between the two lots is a twelve-foot-wide alley that runs
from
¶4 The dispute giving rise to this action began with the City’s
plan to construct a storm sewer outfall structure on the shoreland. The plan was to build on a strip of land twelve
feet in width running from the east side of
¶5 The plaintiffs filed
this action for a declaration that they, not the City, owned the disputed strip
and therefore had riparian rights on
¶6 The
parties entered into an extensive stipulation of facts and the court held an
evidentiary hearing at which additional evidence was presented. The court concluded: (1) the alley was created by the 1854
plat of the Greenbush Addition and dedicated, pursuant to statute, to the
Village of Madison, which became incorporated as a city in 1856; (2) because
of the statutory dedication, the City holds fee simple to the alley, in trust,
and neither plaintiff has any interest therein; (3) under the doctrine of
accretion/reclamation, the City also
holds fee simple, in trust, to the disputed strip and neither plaintiff has any
interest therein; and (4) neither the alley nor the disputed strip was
conveyed, vacated, or discontinued by the City.
Accordingly the court held, the City was the appropriate applicant for
the DNR permit. The court entered
judgment denying the plaintiffs a permanent injunction.
DISCUSSION
¶7 On
appeal the plaintiffs contend that the court erred in each of its four
conclusions. To the extent the
plaintiffs challenge findings of fact made by the circuit court, we accept the circuit
court’s findings unless they are clearly erroneous. Wis.
Stat. § 805.17(2) (2007-08).[4] Whether the court employed a correct legal
standard is a question of law, as is the question whether the court correctly
applied the legal standard to the facts it found and to the undisputed facts. McLellan v. Charly, 2008 WI App 126,
¶28, 758 N.W.2d 94. We review questions
of law de novo.
I. Statutory Dedication of the Alley
¶8 The plaintiffs challenge the circuit court’s conclusion that the alley was created by the 1854 plat and dedicated pursuant to Wis. Rev. Stat. ch. 41, § 5 (1849). First, they contend that it is not clear that the 1854 plat shows the alley’s existence. In order to address this argument, we provide some additional factual background.
¶9 The 1854 plat of the Greenbush Addition to
¶10 The surveyor’s certification on the plat states that “[t]he alleys are 16 1/2 feet wide, except where otherwise marked.” Because the strip that the City contends is the alley is narrower than the alleys to the north and there is no notation that it has a width less than 16 1/2 feet, the plaintiffs contend it is not an alley. However, at the evidentiary hearing there was testimony that this narrow strip was nonetheless an alley.
¶11 A professional land surveyor testified that in his opinion this strip was an alley both because of his knowledge of how old plats were drawn, the function that alleys performed, and the surveyor’s notes making it clear that there were alleys on the plat. He also testified that the 1916 Spohn–Levander Replat of Block 25 of the Greenbush Addition showed that this was a twelve-foot-wide public alley and did not add to or subtract anything from the alley. Further, several other plats show a twelve-foot-wide alley there as ancillary information. He acknowledged that the surveyor’s notes on the 1854 plat indicated that an alley narrower than 16 1/2 feet would be marked and the twelve-foot-wide alley was not so marked, and he could not explain the absence of a notation. However, based on his knowledge of how platting was done at the time, he thought that the narrower alley at the southern boundary resulted from laying out the lots and alleys from north to south and giving the southernmost alley the width that was left over after all the lots and the other alleys had been laid out. The land surveyor also testified that other plats of the neighboring areas had alleys that were not labeled as alleys and some were sixteen feet and some were twelve feet.
¶12 The plaintiffs point to
no evidence and offer no developed argument supporting the proposition that the
strip in question on the 1854 plat was anything other than the “Public Alley 12′
Wide” labeled as such on the 1916 Spohn-Levander Replat of Block 25 of the Greenbush
Addition. To the extent there may be an
ambiguity in the 1854 plat or any conflict in the testimony, it was the circuit
court’s role as fact finder to
resolve the ambiguity or conflict. The
circuit court implicitly credited the land surveyor’s testimony, and that
testimony provides an ample basis for the court’s determination that the 1854
plat created the original twelve-foot-wide alley that now, with an extension
from the filling of the lakebed, runs between the plaintiffs’ lots.
¶13 The plaintiffs also appear to challenge the court’s conclusion that there was a statutory dedication of the alley pursuant to Wis. Rev. Stat. ch. 41, § 5 (1849). That chapter provided for the laying out of plats, and § 5 stated:[7]
When the plot or map shall have been made out and certified, acknowledged and recorded as required by this chapter, every donation or grant to the public … marked or noted as such on said plot or map, shall be deemed in law and in equity, a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, and shall be considered to all intents and purposes, a general warranty against such donor or donors, their heirs and representatives, to the said donee or donees, grantee or grantees, for his, her or their use, for the uses and purposes therein named, expressed and intended, and no other use or purpose whatever; and the land intended to be for the streets, alleys, ways, commons or other public uses in any town or city, or addition thereto, shall be held in the corporate name thereof, in trust to, and for the uses and purposes set forth and expressed or intended.
¶14
¶15 The plaintiffs do not contend that the 1854 plat was not “made out and certified, acknowledged and recorded as required by [the statute].” Wis. Rev. Stat. ch. 41, § 5 (1849). They make a brief statement that the alley was not “marked or noted” as an alley. See id. However, a narrow strip was shown on the 1854 plat in a location that is consistent with being an alley. The plaintiffs do not develop an argument to support the proposition that the evidence presented at the evidentiary hearing, which the circuit court implicitly credited, was not sufficient to establish that this was a twelve-foot-wide alley that the owner intended to dedicate as a public alley. Accordingly, we conclude the alley was dedicated pursuant to Wis. Rev. Stat. ch. 41, § 5 (1849) by the recording of the 1854 plat.
II. Effect of Statutory Dedication
¶16 The plaintiffs contend that the circuit court erred in concluding that, as a result of the statutory dedication, the Village of Madison (and, after 1856, the City of Madison) held fee simple to the alley, qualified by the trust for the public use. In their view, case law establishes that, with respect to roads and alleys, the abutting lot owners hold title to the center of the road or alley, subject to an easement for public use.[8] The City responds that this is true only for common law dedication and that, because the dedication here occurred pursuant to statute, the City acquired fee simple to the alley qualified by the trust, as specified in the statute.[9]
¶17 The cases provided by the parties contain apparently
inconsistent statements of the law on this point, which were made in the course
of deciding issues that are, for the most part, significantly different from
the issue presented on this appeal. Heise
v. City of Pewaukee, 92
¶18 In Heise, 92
¶19 The lot owner in Heise contended that the extension of
since the village owned the land known as
¶20 We recognize that the parties in Heise did not dispute
that the 1887 recording of the original plat constituted a statutory dedication
of Lake Street to the village, whereas in this case the plaintiffs dispute that
the 1854 plat constituted a statutory dedication of the then-existing
alley. However, we have concluded that
there was a statutory dedication of the alley.
Heise describes the effect of that statutory dedication as “the
village own[ing] the land known as
¶21 We also recognize that the court in Heise does not describe
the village’s interest as “fee simple.”
However, it is necessarily implicit from the court’s use of the terms
“title,” “own,” and “ownership” that the village’s interest was not an easement
and that the abutting landowner had no interest in
¶22 We therefore conclude that the effect of the statutory dedication was that the City acquired title, or fee simple, to the alley shown on the 1854 plat by virtue of the statutory dedication qualified by the trust specified in the statute.
III. Application of the Accretion/Reclamation Doctrine
¶23 As noted above, the eastern portion of the plaintiffs’ lots,
the eastern portion of the alley,
¶24 The filling of the former lakebed occurred pursuant to city
ordinances and state legislative enactments and was accomplished in 1907 and
1908, with the property owners around the bay contracting for the filling. These property owners entered into a 999-year
lease in October 1907 with the Madison Park and Pleasure Drive Association
(MPPDA), which was created pursuant to a statute providing for the
incorporation of organizations to create and maintain parks and drives and hold
them in trust for certain classes of cities. Under the lease the property owners agreed
that, upon filling
¶25 We now turn to the plaintiffs’
arguments that Heise does not support the application of the accretion/reclamation
doctrine because of the different facts in this case. First, the plaintiffs point out that it was
unclear in Heise how the new land was created. In contrast, they contend, it is clear how
this occurred here, and there was an agreement on the rights in the new land,
as documented in “the lease, MPPDA minutes, the City ordinances, and state
statute [which] unmistakably reserved all riparian rights to the landowners on
the shore except the ends of Erin, Drake, and
¶26 The
plaintiffs also argue that in Heise there was a 1908 replat that
showed Lake Street extending to the water, while here the 1912 plat of the Addition
to West Bay and the 1917 Spohn-Levander Replat of Block 25 of the Greenbush
Addition do not show an extension of the alley, but show it stopping at what is
now called West Shore Drive. However,
while the 1908 replat was recounted by the Heise court when setting forth the
facts of the case, id. at 336, 338-39, it was not referred to in the discussion of
the issue of who held title to the disputed portion of
¶27 Third, the plaintiffs assert that, because an alley exists only
within a block, it cannot be continued on the other side of a street—in this
case, West Shore Drive—under the doctrine of accretion/reclamation. The statutory definitions of alley that the
plaintiffs rely on are varied and are from several different statutory contexts,
none of which are tied directly or indirectly to the doctrine of
accretion/reclamation.[14] The
purpose of the doctrine is to protect the riparian owner’s access to the
water. De Simone v. Kramer, 77
¶28 Finally,
the plaintiffs contend that the record in this case shows that only certain
designated streets were intended to extend over the new shoreland to the water
and there was no such intent for this or any other alley. They point to a provision in the 1906 city
ordinance establishing the new dock line that stated that three streets would
be extended as public streets out to that dock line. They also point to the dotted line running
down the center of Erin Street on the 1917 Spohn-Levander Replat of the
Greenbush Addition that continues to cross the new drive and ends on the east
side of the new drive, now West Shore Drive.
(This dotted line does not appear to cross the new shoreland to the new
shoreline.) However, the plaintiffs do
not provide any authority for the proposition that the City’s failure to assert
an extension for the alley at that time precludes application of the
accretion/reclamation doctrine, and we see no support for this proposition in
the case law provided.
¶29 Based on the arguments presented, we conclude that the doctrine of accretion/reclamation applies in this case and the City has title to the disputed strip by virtue of its ownership of the original alley up to the original shoreline.[15]
IV. Discontinuance
¶30 The plaintiffs contend that, even if the City at one time owned the disputed strip, it has discontinued use of this strip under Wis. Stat. § 82.19(2)(a) and (2)(b)2. Section 82.19(2) provides:
(2)(a) Every highway shall cease to be a public highway 4 years from the date on which it was laid out, except the parts of the highway that have been opened, traveled, or worked within that time.
(b) 1. In this paragraph, “vehicular travel” means travel using any motor vehicle required to be registered under ch. 341 or exempt from registration under s. 341.05.
2. Any highway that has been entirely abandoned as a route of vehicular travel, and on which no highway funds have been expended for 5 years, shall be considered discontinued.
(c) This subsection does not apply to state or county trunk highways or to any highway, street, alley, or right-of-way that provides public access to a navigable lake or stream.
¶31 The City responds that Wis. Stat. § 82.19(2)(c) plainly precludes the application of subsec. (2) in this case because it states that the subsection does not apply to any “alley, or right-of-way that provides public access to a navigable lake.…” The plaintiffs reply that in the context of this case para. (2)(c) is ambiguous because the 999-year lease already provides public access along the entire shoreland and for this reason we should construe the subsection not to apply in this case.
¶32 We agree with the City that the meaning of Wis. Stat. § 82.19(2)(c) is plain and disagree with the plaintiffs that the facts in this case create an ambiguity. The disputed strip does provide public access to a navigable lake. Nothing in the statutory language suggests that para. (2)(c) does not apply if the public has other means of access to the navigable lake or river. Accordingly, we apply the plain meaning of para. (2)(c), see State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110, and conclude subsec. (2) does not provide grounds for discontinuance.
V. Equitable Estoppel
¶33 In the context of other arguments, the plaintiffs assert that, based on Paine Lumber Co. v. City of Oshkosh, 89 Wis. 449, 61 N.W. 1108 (1895), the City is equitably estopped from asserting title to the disputed strip now. The circuit court did not address equitable estoppel in its written opinion. We are uncertain whether this argument was presented in the circuit court with sufficient prominence so that the circuit court understood it was being called upon to rule on it. In any case we conclude that Paine Lumber does not support the plaintiffs’ position.
¶34 In Paine Lumber application was made to the city council to open a
platted street for public use.
¶35 We do not discuss equitable estoppel further because the plaintiffs have limit their argument on this point to Paine Lumber.
CONCLUSION
¶36 The circuit court correctly declared that the City holds title to the disputed strip in trust for the public. Because the plaintiffs’ public nuisance claim depended upon the City not having title to the disputed strip, the circuit court properly ruled against the plaintiffs on that claim. Accordingly, the circuit court properly denied the plaintiffs’ request for a permanent injunction.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] The outfall is the sewer opening that permits the storm water to drain into the lake.
[2] The Estate of Joel Marino was substituted for Marino as a plaintiff after Marino’s death, which occurred while the action was pending in the circuit court. Unless necessary to distinguish between Marino and the Estate, we use the term “the plaintiffs” to mean either Marino and Nicholson or the Estate and Nicholson.
[3] At the time this action was filed there was a proceeding pending on the City’s application to the Wisconsin Department of Natural Resources (DNR) for a permit under Wis. Stat. ch. 30 to install the proposed storm sewer outfall. The plaintiffs requested a contested case hearing after DNR granted the permit and brought this action after the administrative law judge (ALJ) determined that the issue of title to the disputed strip had to be resolved by the court, not the administrative agency.
[4] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[5] This plat was recorded on October 3, 1854, as document no. 117.
[6] The 1854 plat does not include the location of Nicholson’s lot because
his lot is in the Addition to
[7] Wisconsin Rev. Stat. ch. 41, § 5 (1849) has been renumbered several times while retaining essentially the same language. See Wis. Rev. Stat. ch. 47, § 5 (1858); Wis. Rev. Stat. ch. 101, § 2263 (1878); Wis. Stat. § 236.11, enacted by 1925 Wis. Laws, ch. 4; Wis. Stat. § 236.12, enacted by 1935 Wis. Laws, ch. 186, § 2; and the current version, Wis. Stat. § 236.29(1) (2007-08), enacted by 1955 Wis. Laws, ch. 570, § 4.
[8] We understand the parties to implicitly agree that there is no distinction between statutorily dedicated roads and streets, on the one hand, and statutorily dedicated alleys, on the other hand, for purposes of the statute’s effect on the interest the municipality acquires under the statute.
[9] The
term “fee simple” describes “[a]n interest in land that, being the broadest
property interest allowed by law, endures until the current holder dies without
heirs….” ABKA Ltd. P’ship v. DNR,
2001 WI App 223, ¶28, 247
[10] In
Kimball
v. City of Kenosha, 4
Were it not for
this statute, [Wis. Rev. Stat. ch.
41, § 5] the deed of Crosit would have conveyed to the plaintiff the fee of
the land to the centre of the street, subject to the public easement. This is
the uniform doctrine in regard to roads and streets, or lands bounded thereon,
in the country, and in villages.
(Citations omitted, emphasis in original.)
Under Kimball,
then, it appears that the City holds a qualified fee—that is, fee qualified by
a trust—in the statutorily dedicated alley.
However, the later case of Thorndike v. City of Milwaukee, 143
By a long line of decisions in this state with reference to streets and roads it has become the settled law of this state that in the case of a road or street, whether acquired by condemnation, conveyance, by common-law dedication or by statutory dedication, the city, town, or village takes only an easement for highway purposes, while the fee is held by the abutting landowner. This brings all roads and streets within an uniform rule; but whether the ruling was originally correct as regards statutory dedication by plat under the statutes quoted is doubtful. However this may be, the rule has been so often applied and is of such long standing that it has become a rule of property with reference to roads and streets and cannot now be departed from.
The plaintiffs
rely on the above indented quote. The
City responds that it is dicta, because the issue in Thorndike was whether the
owners of lots that did not abut a square dedicated to the public or the
streets around the square could sue on their own behalf to challenge the use
the city proposed to make of the square.
The City also contends that the Thorndike court mistakenly cites Gardiner
v. Tisdale, 2
While the City’s points may be well taken, we
are not at liberty to disregard a more recent decision in favor of an earlier
decision even if we think the earlier decision, not the later decision,
correctly states the law. See Ambrose
v. Continental Ins. Co., 208
[11] The
original language in the opinion says “existing as of 1877.” Heise v.
[12] Accretion
is a process whereby land is created through the gradual deposit of soil by
operation of natural causes, whereas reliction is a process whereby there is a
permanent receding or withdrawal in a lake or river bed.
[13] We note that in Heise, in discussing a second issue—whether title to the disputed strip had reverted to the lot owner as a successor to the original grantors under a warranty deed that purported to convey the new land extending beyond the original termination of Lake Street to the village—the court made this statement:
It is undisputed that the owner of land
abutting a public highway holds title to the center of the highway subject to
the public easement.
92
[14] The plaintiffs rely on the following statutory definitions. For purposes of describing the land, the owners of which must sign a petition to discontinue a public way or an objection to a resolution to discontinue, “[t]he beginning and ending of an alley shall be considered to be within the block in which it is located.” Wis. Stat. § 66.1003(2), (4)(c). For purposes of Wis. Stat. ch. 236 “Platting Lands and Recording and Vacating Plats,” an alley is “a public or private right-of-way shown on a plat, which provides secondary access to a lot, block or parcel of land.” Wis. Stat. § 236.02(1). In Wis. Stat. chs. 340-349 and 351, which relate to vehicles and operating motor vehicles, an alley is “every highway within the corporate limits of a city, village or town primarily intended to provide access to the rear of property fronting upon another highway and not for the use of through traffic.” Wis. Stat. § 340.01(2).
[15] We do not understand the plaintiffs to argue that the City does not have title to the eastern portion of the alley—the portion on the filled land—under the doctrine of accretion/reclamation if the City acquired title to the original alley by virtue of statutory dedication. If they do intend to argue this, we clarify here that the accretion/reclamation doctrine operates to give the City title to the eastern portion of the alley for the same reasons the doctrine applies to the disputed strip.