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COURT OF APPEALS DECISION DATED AND RELEASED January 4, 1996 |
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. 95-2131-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IIW ENGINEERS &
SURVEYORS,
Plaintiff,
v.
ALBERT RICHTER,
Defendant-Third Party Plaintiff-Appellant,
AMERICAN ENVIRONMENTAL
AND INDUSTRIAL
SERVICES, INC.,
Defendant-Third Party Plaintiff,
VILLAGE OF CASSVILLE,
a Municipal
Corporation,
Third Party Defendant-Respondent.
APPEAL from an order of
the circuit court for Grant County:
GEORGE S. CURRY, Judge. Reversed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. Albert Richter appeals from an order granting the
Village of Cassville's summary judgment motion. The issue is whether the Village showed a prima facie
defense to Richter's claim. We conclude
it did not. We reverse.[1]
This lawsuit has
involved numerous claims and several parties.
However, the only part of the litigation at issue in this appeal is the
claim by Richter against the Village.
Richter's complaint alleged that he is the former owner of certain lots
in the Village which he had sold by land contract. During June 1993, the purchaser advised Richter that underground
storage tanks had been discovered during construction on Amelia Street, the
road abutting the lots. Officials from
the Village and the "State Highway Department" claimed the tanks were
on the Richter property and must be removed immediately. Richter arranged for removal of the
tanks. After completion of the job,
Richter's contractor informed him that the tanks were not on his lots, but
entirely within the limits of Amelia Street.
The complaint alleged that the expense of tank removal is imposed on the
owner of the land on which the tanks are situated, and that the Village, as
owner of Amelia Street, is responsible for those costs. The Village's answer denied the
complaint. The Village moved for
summary judgment. The trial court
granted the motion.
The parties agree that
these tanks were not in use, and that the removal is the responsibility of the
"owners" of the land pursuant to Wis.
Adm. Code § ILHR 10.732.
"Owner" means, in the case of any underground storage tank
system not in use, "the person owning the property" on which the tank
system is located. Wis. Adm. Code § ILHR
10.01(65)(b).
Summary judgment
methodology is well established, and need not be repeated here. See Grams v. Boss, 97
Wis.2d 332, 338-39, 294 N.W.2d 473, 476-77 (1980). A moving defendant must show a defense which would defeat the
plaintiff. Id. We turn to the Village's motion. The Village argues it is not the owner of
Amelia Street because case law establishes that the abutting landowner owns the
land to the middle of the street, while the Village holds only an
easement. The Village cites several
cases that so state, including Johnston v. Lonstorf, 128 Wis. 17,
22, 107 N.W. 459, 461 (1906) and Thorndike v. Milwaukee Auditorium Co.,
143 Wis. 1, 15, 126 N.W. 881, 886 (1910).
It appears these cases ultimately trace their lineage back to Kimball
v. City of Kenosha, 4 Wis. 336 [*321] (1855).
However, while that may
be the general rule, there are also other cases showing it is not true that the
abutting owner always owns to the middle of the street, or that villages
are entirely precluded from owning a street.
For example, the court said in Pettibone v. Hamilton, 40
Wis. 402 (1876):
In Kimball ..., it was held that the
grantee of a lot bounded by a public street in a recorded town plat ... takes
to the center of such street, subject only to the public easement, unless
the street is expressly excluded from the grant by something appearing upon the
plat, or by the terms of the conveyance.
Id. at
410-11 (emphasis added).
In Walker v. Green
Lake County, 269 Wis. 103, 69 N.W.2d 252 (1955), the court quoted with
approval from Am. Jur.:
In the absence of a statute expressly providing
for the acquisition of the fee, or of a deed from the owner expressly
conveying the fee, when a highway is established by dedication ... the
public acquires merely an easement of passage, the fee title remaining in the
landowner.
Id. at
111, 69 N.W.2d at 257 (emphasis added).
In Heise v. Village
of Pewaukee, 92 Wis.2d 333, 285 N.W.2d 859 (1979), cert. denied,
449 U.S. 992 (1980), the opinion states there was no dispute that the recording
of a plat in 1887 was a statutory dedication of Lake Street to the
village. Id. at 342-43,
285 N.W.2d at 863. The opinion goes on
to describe the village as "owning" Lake Street. Id. at 343, 345, 285 N.W.2d at
863, 864.
Therefore, we conclude
it is not solely a question of law whether Richter owns to the middle of Amelia
Street. Rather, the question is partially
one of fact which depends on the history of the property and relevant
conveyances.[2] Although the Village asserts it was granted
only an easement by the plat,[3]
it did not submit affidavits regarding the plat or the history of the property.[4] Because the Village did not provide such
information, it failed to show a prima facie defense. Its motion should not have been
granted. Therefore, we reverse.
By the Court.—Order
reversed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[2] The trial court was aware of the potential
relevance of the nature of the dedication:
"[T]he Village may have had more than just an easement. But, upon reviewing the file, the affidavits
and supporting documents did not show the original grantor's intent." (Apparently the trial court misspoke in
referring to affidavits, since it appears none were filed.)
The
court later stated:
In
this case, there hasn't been any showing that the Village is a holder of more
than an easement. In other words, I
don't know what the grantor intended when the deed was originally given to the
Village. I don't know if the Village
obtained the land patent in the first place.
So since there wasn't any showing of the grantor's intent to give more than an easement, which might have possibly resulted in a different decision by me, and since there wasn't any showing that the land patent ran directly to the Village[,] which may have also resulted in a different decision by me, I have concluded that, based on the current status of the record ... the owner [is Richter].