COURT OF
APPEALS DECISION DATED AND
RELEASED February
28, 1996 |
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. 95-0712
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
SAMUEL
BONANNO,
MARILYN
BONANNO and
EILEEN
ROTHSTEIN,
Plaintiffs-Respondents-
Cross Appellants,
v.
LEWIS
BORSELLINO and
DIANNE
BORSELLINO,
Defendants-Appellants-
Cross Respondents,
AL ARMONDO,
LOUIS C. KOLE, EDNA KOLE,
GREENWALD, MAIER, HUDEC &
GRAY, P.C., n/k/a THOMAS E.
GREENWALD, P.C., and
COLUMBIA NATIONAL BANK OF
CHICAGO,
Interested Parties.
APPEAL
and CROSS-APPEALS from an order of the circuit court for Walworth County: JOHN R. RACE, Judge. Reversed.
Before
Anderson, P.J., Brown and Snyder, JJ.
SNYDER,
J. This
action commenced when Samuel and Marilyn Bonnano and Eileen Rothstein sought a
declaratory judgment to confirm their rights to retain a shared pier. The pier extended from a twelve-foot wide
strip of land utilized by their respective properties to access Lake
Geneva. The strip of land runs adjacent
to a third lot owned by Lewis Borsellino.
Following a motion for summary judgment, the trial court found that the
access strip was owned in fee simple by Borsellino, but was subject to a
permanent easement and right-of-way shared by the Bonnanos and Rothstein,
giving them riparian rights to the lake.
Borsellino
appeals that part of the order granting the Bonnanos and Rothstein riparian
rights from the easement. The Bonnanos
cross-appeal from the trial court's holding that Borsellino owns the access strip in fee simple. Rothstein cross-appeals from Borsellino's
standing to contest the use of a boat lift.
Because we conclude that the Bonnanos are the fee simple owners of the
access strip, we reverse.
The
three lots, Lot A (Borsellino's),[1]
Lot B (the Bonnanos')[2]
and Lot C (Rothstein's), were originally owned as a single parcel by Paul
and Catherine Wurtz. In 1966, the
Wurtzes subdivided their property and recorded a certified survey map
delineating three lots. On its southern
border, Lot A fronts on Lake Geneva.
Lot B is directly upland from Lot A.
The third lot, Lot C, is also upland and directly east of Lot B.
The
certified survey map also labels a twelve-foot “right-of-way,” which is made up
of twelve feet of property running the length of the eastern edge of Lots A and
B. This right-of-way extends from the
lake on the south to the northern edge of Lot B, where it connects with a
private road. The northern portion of
the access strip, contiguous with Lot B, is a shared driveway which is utilized
by all three lots. Use and ownership of
this portion of the access strip are not in dispute.
The
southern portion of the access strip, extending south from the southern edge of
Lot B to Lake Geneva, provides the means for Lots B and C to access the
lake. Prior to the commencement of this
action and for the past twenty-four years, the owners of Lots B and C had
placed a shared pier in the lake at this point of access. A pier agreement entered into in 1968 by the
owners of Lots B and C, Wurtz and Thomas Moorhead, documents the shared
nature of the pier.[3]
Following
a dispute with Borsellino over the placement and use of the shared pier, the
Bonnanos and Rothstein commenced an action requesting a declaratory judgment to
confirm their riparian rights. They
based this upon a belief that (1) one or both of the Bonnanos and/or Rothstein
are the fee simple interest owners of the access strip or (2) their interest is
an easement protected under § 30.131, Stats. Borsellino's counterclaim requested relief
in the form of a quiet title action to the disputed twelve-foot strip, as well
as various claims related to the use of the access strip and pier by Lots B and
C.
The
trial court entered summary judgment, finding that the disputed portion of the
access strip is owned in fee simple by Borsellino (Lot A), but is encumbered by
a permanent right-of-way and shared easement for Lots B and C. The trial court also granted Lots B and C
riparian rights through estoppel.
Borsellino now appeals, and the Bonnanos and Rothstein cross-appeal from
the order of the trial court.
DISCUSSION
In
an appeal from a grant of summary judgment, this court applies the same
standards as the trial court. See
Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d
816, 820 (1987). When evidence is
documentary, this court may interpret such evidence de novo and is as equally
competent as the trial court to do so. Zurbuchen
v. Teachout, 136 Wis.2d 465, 471, 402 N.W.2d 364, 368 (Ct. App. 1987).
A
determination of the relative rights of the three lot owners first requires an
examination of their respective deeds.
The first step in construction of a deed is to ascertain what is written
within the four corners of the deed, as this is the primary source of the
intent of the parties. Rikkers v.
Ryan, 76 Wis.2d 185, 188, 251 N.W.2d 25, 27 (1977). If the language of the deed is unambiguous,
then its construction is purely a question of law. Id. Where a
deed is unambiguous, extrinsic evidence may not be referred to in order to show
the intent of the parties. Id.
We
begin the discussion by noting that each of the lots has been conveyed multiple
times since the original subdivision, but the deeds and description of the
property conveyed have remained consistent for each individual lot. Therefore, only those conveyances which are
necessary to a determination of the rights of the various parties to the
disputed portion of the access strip will be included in the opinion.
Conveyance of
Lot C
After
subdividing the original property into three lots, Wurtz sold Lot C on
July 18, 1966, to Moorhead. The
relevant portions of the deed read as follows:
Lot
“C” of Certified Survey No. 22 as recorded in the Office of the Register of
Deeds ....
Also,
an equal undivided 1/2 interest in and to the following described right-of-way
described as follows, to-wit:
[legal description of the entire access strip, both
north and south].
A plain reading of this first deed shows that Lot C was
given an undivided one-half interest in a right-of-way, which ran the length of
Lots B and A. This conformed with the
survey map's description of a “Right-of-way for owners of Lots A-C.”
Conveyance of
Lot A
The
next lot conveyed was Lot A, which Wurtz sold to Paul and Stephanie Diekelman
on October 22, 1966. That deed recited
in relevant part:
Lot A
of Certified Survey No. 22 as recorded in the Office of the Register of Deeds
... with the exception of that portion of said lot [Lot A] shown on the plat
as “Right-of-way for owners of Lots A-C” being 12 feet in width,
together
with an equal undivided one-half interest in common with the owner of Lot B ...
in the north 283.12 feet of the following described parcel of land, to-wit:
[legal
description of the entire access strip, both north and south].
It is
understood that the above described parcel is a driveway to provide access to
the lands owned by the owners of Lots A, B and C, and that the remaining equal
undivided one-half interest has been conveyed to the owner of Lot B and none
other and shall be appurtenant to such Lot B.
The owners of Lots A and B ... do hereby each grant to the other a
perpetual easement and right-of-way over and across such premises to provide
access to their respective parcels of land. [Emphasis added.]
A determination of the precise property conveyed by this
deed to Lot A requires the construction of the clause “with the exception of
that portion of said lot shown on the plat as ‘Right-of-way for owners of Lots
A-C.’”
The
issue presented is whether the phrase “with the exception of that portion of
said lot” operated as an exception to the grant of Lot A, or a grant in fee
simple of the strip, with a reservation.
In the construction of a deed, a part excepted is held to be something
not granted, which does not pass from the grantor, while a reservation is the
taking back of something included in the grant. Traeger v. Traeger, 35 Wis.2d 708, 712, 151 N.W.2d
681, 683 (1967). If this language is an
exception, then the ownership of Lot A does not include fee simple ownership of
the disputed access strip. If, however,
the above language merely reserved an easement in the access strip, then the
owners of Lot A also own the southern portion of the access strip.
While
there is a technical legal distinction between an exception and a reservation,
the determination as it pertains to a particular clause in a deed depends more
upon the nature of the thing excepted or reserved than upon the actual language
employed. Id. at 712-13,
151 N.W.2d at 683. The court must
attempt to ascertain the true intent of the parties from the instrument as a
whole. See id. at
713, 151 N.W.2d at 683.
In
this case, because of the initial subdivision of the three lots and the fact
that each was initially conveyed by the same grantor, the construction of the
exception clause requires an examination of the conveyance of Lot B. See id. at 714, 151
N.W.2d at 684 (stating that consideration of the whole transaction was proper
in order to ascertain the intent of the parties). We turn next to the subsequent conveyance of Lot B in order to
ascertain whether the exception clause in the deed for Lot A withheld the grant
of the contiguous portion of the access strip, or merely reserved an easement
in the strip.
Conveyance of
Lot B
On
November 8, 1968, Wurtz conveyed the third lot, Lot B, to William and Irene
Sannwald. The deed described the
property conveyed as follows:
Lot B of Certified
Survey No. 22 as recorded in the
Office of the Register of Deeds ... with the exception of that portion of said
lot [Lot B] shown on the plat as “Right-of-way for owners of Lots A-C” being 12
feet in width; and commencing at the [legal description of the entire access
strip, both north and south], with the exception of that interest in said
Lot B conveyed to Paul Diekelman by deed dated October 22, 1966 ... and subject
to the right of way conveyed to Thomas Moorhead dated July 18, 1966 .... [Emphasis added.]
This
deed begins with language similar to the deed for Lot A, with an exception for
that portion of the right-of-way that is contiguous to the lot conveyed. However, unlike the Lot A deed, after
excepting the contiguous portion of the access strip,[4]
the Lot B deed then goes on after the semicolon with a continuing description
of the property conveyed when it recites “and commencing at ....” This is the only deed of the three lots to
include this provision.
The
continuing description of the property conveyed recites the legal description
of the entire access strip, north and south, and then immediately notes that
this grant is subject to “that interest in said Lot B conveyed to Paul
Diekelman [the equal undivided one-half interest in the northern 283.12
feet of the strip] ... and subject to the right of way conveyed to Thomas
Moorhead [an equal undivided one-half interest in and to the entire access
strip] ....”
A
plain reading of the legal description of Lot B leads us to conclude that Lot B
was granted a fee simple interest in the southern portion of the access
strip. The deed to Lot B does not
include a specific interest or easement in this portion of the access
strip. If Lot A owned the disputed
strip, this omission would leave Lot B without a protected interest in the lake
access.[5]
Having
concluded that Lot B holds the fee simple interest in the southern portion of
the access strip, it therefore follows that the clause in the Lot A deed
excepting the contiguous portion of the right-of-way strip was an exception,
rather than a reservation. If it is
possible, construction of a deed should give effect to all provisions. Joseph Mann Library Ass'n v. City of
Two Rivers, 272 Wis. 441, 445, 76 N.W.2d 388, 391 (1956). The exception clause withheld the fee simple
interest to the contiguous portion of Lot A.
It then follows that the identical exception clause in Lot B's deed also
withheld the fee simple interest in that portion of Lot B to which Lots A and C
held an equal undivided one-half interest.[6]
Although
the Lot A deed withheld the fee simple interest in the southern portion of the
access strip, the grant of the one-half interest in the northern portion of the
access strip recognized Lot A's need for protected access to the shared
driveway.[7] Because Lot A was situated on the shoreline
of Lake Geneva, Lot A's deed does not confer any protected interest in the
southern portion of the access strip.
A
reading of all subsequent deeds after the first conveyance of each lot shows
that the individual properties were conveyed to each subsequent owner with
matching property descriptions. We
therefore conclude that the current owners of Lot B, the Bonnanos, own the
southern portion of the twelve-foot access strip, subject only to the
aforementioned interests.
Because
we have concluded that the Bonnanos own the disputed portion of the access
strip in fee simple, they therefore hold the riparian rights to their
twelve-foot portion of lake frontage, subject to the right-of-way granted to
Lot C and the shared pier agreement.
Consequently, all other issues raised by the parties in the appeal and
cross-appeals are moot. A matter is
moot if any determination sought cannot have a practical effect on an existing
controversy. City of Racine v.
J-T Enters. of Am., 64 Wis.2d 691, 700, 221 N.W.2d 869, 874
(1974). A reviewing court will usually
decline to address such issues. See
State ex rel. Wis. Envtl. Decade v. Joint Comm'n for Review of Admin.
Rules, 73 Wis.2d 234, 236, 243 N.W.2d 497, 498 (1976).
Because
we deny Borsellino's appeal on the merits, his motion for costs, fees and
attorney's fees pursuant to § 809.25(3), Stats.,
is also denied.
By
the Court.—Order reversed.
Not
recommended for publication in the official reports.
[1] When this action
commenced, the complaint stated that Lewis Borsellino was the owner of Lot
A. Because the Borsellinos were in the
process of obtaining a divorce, Dianne Borsellino was also named as a party
because of an interest in Lot A.
[2] Lot B has been
deeded to the “Samuel and Marilyn Bonnano Revocable Trust.” For purposes of simplicity, the owners will
be referred to as the Bonnanos even though Lot B is trust property.
[3] This agreement
stated that the owners of Lots B and C would have the equal and coexisting
right to the use of the pier, and that the expense of the maintenance, repair
or replacement of the pier would be shared equally between Lots B and C. This agreement was made binding upon the
parties, their executors, administrators and assigns.
[4] In the case of
the Lot B deed, the excepted portion of the lot is the northern portion of the
access strip, which is the shared driveway allowing all three lots to reach the
private road north of the property.
[5] We note that the
deed language for each lot carefully defines that property owner's rights in
relation to the other two lots. In
Wurtz's deposition, he stated that as the grantor it was his intent that the
back lots have lake rights and that the property division was meant to give
Lots B and C “12 feet of frontage.”
[6] Borsellino
contends that “the identical language in the Borsellino and Bonanno deeds ‘with
the exception of ... right of way ...’ proves that the Bonannos bought the
entire Lot B subject to the Borsellino and Rothstein easement. ... Likewise, the Borsellinos bought the entire
Lot A subject to the Bonanno and Rothstein easement to the lakeshore over Lot
A.” Borsellino's broadly-worded
argument overlooks the very detailed language in each of the three deeds, which
is very specific as to the various interests conveyed to particular portions of
the access strip.
[7] We further note
that Lot A's deed grants a one-half interest in the northern 283.12 feet of the
access strip. From the survey map, that
part of the access strip which lies directly along the eastern property line of
Lot B is 247.96 feet long. By granting
Lot A the interest in 283.12 feet of the strip, Lot A is granted a right-of-way
which extends 35.16 feet south of its property line in order to access the
shared driveway. If Lot A were the fee
simple owner of the disputed portion of the access strip, such a right-of-way
would be unnecessary to access the driveway.