|
COURT OF APPEALS
DECISION
DATED AND RELEASED
MAY 7, 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(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. 95-2694
STATE
OF WISCONSIN IN
COURT OF APPEALS
COUNTY OF LANGLADE,
Plaintiff-Respondent,
v.
MICHAEL N. KASTER and
JACQUELINE T. KASTER,
husband and wife,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Langlade County:
JAMES P. JANSEN, Judge. Reversed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Michael N. and Jacqueline T. Kaster appeal
a judgment declaring Langlade County's ownership of a road running through
their property as a public highway pursuant to § 80.01(2), Stats., because the County "worked"
the road for ten years. We conclude
that the evidence is insufficient as a matter of law to show the road has been
worked as a public highway for purposes of § 80.01(2). The evidence established only that, over a
twenty-five-year period, the County once repaired a bridge on the road to
accommodate snowmobilers who used the road with express permission of the
landowner, and on three occasions required that loggers using the road restore
the road to the condition in which they found it. We reject the County's
alternate argument that it gained prescriptive rights for use of the road
because the County and the public used the road with permission. Therefore, we
reverse the judgment. We express no
opinion whether the County obtained the road by common law dedication because
the issue was not pleaded or raised at trial.
In the 1920s, the
Civilian Conservation Corps developed a fire lane on the property now owned by
the Kasters, which remains an unnamed road.
Prior owners of the property gave the state an easement for the fire
lane in 1938, but the state unconditionally released the easement in 1970. The easement was limited to agents and
representatives of the Wisconsin Conservation Commission.
The public has used the
road for at least twenty-five years.
The unnamed road runs through the property the Kasters purchased from
the estate of Peter Rasmussen in 1994.
Rasmussen's son testified at trial that his father always intended the
public to use the road running through his property as they pleased.
In the late 1980s, at
the request of a snowmobile club, the County repaired a bridge on the road
running through the Kasters' property.
The repairs cost approximately $1,200.
The Rasmussens were not given prior notice of the repairs. County forestry employees testified they did
not recall ever brushing, grading or graveling the road, and the County never
placed culverts on the road.
The road provides the
only year-round access to adjoining public lands. On three occasions since 1970, the County has logged the
adjoining public land and the loggers have gained access to the public land
through use of the road. Under the
timber sale contracts, the County required the loggers to restore the road to
its condition before logging.
Shortly after the Kasters
purchased the property, they erected a gate across the road. The County filed suit seeking a declaration
of its ownership rights in the road and an order permanently enjoining the
Kasters from excluding the public from using the road. The County sought relief based on two
theories: (1) the County worked the
road for a period of ten years and therefore it is a public highway pursuant to
§ 80.01(2), Stats.,
and (2) the County has obtained an ownership interest in the road through
adverse possession under § 893.25, Stats. The parties tried the case to the
court. The court concluded that the
property owners lost ownership in the road and that it became a public highway
because the County had worked the road for a period of ten years. The court did not address the County's
adverse possession argument.
The issues presented
involve the construction and application of §§ 80.01(2) and 893.28, Stats.
Construction of a statute and application to a particular set of facts
are questions of law we review de novo.
State v. Block Iron & Supply Co., 183 Wis.2d 357, 363,
515 N.W.2d 332, 334 (Ct. App. 1994). We
affirm the trial court's factual findings unless they are clearly
erroneous. Section 805.17(2), Stats.
WHETHER THE ROAD WAS WORKED AS A PUBLIC
HIGHWAY
Section 80.01(2), Stats., provides that roads "which
have been worked as public highways 10 years or more are public highways
...." Whether evidence is
sufficient to meet a statutory standard is a question of law. Beacon Bowl, Inc. v. WEPCO,
176 Wis.2d 740, 783, 501 N.W.2d 788, 805 (1993).
The trial court
concluded that the County worked the road when it replaced the bridge in
approximately 1988 and when, in 1970, 1977 and 1989, it required loggers to
restore the road to its condition before logging began on adjacent county
land. The Kasters dispute whether the
loggers actually worked on the road and, if so, whether the loggers' work
constituted County work for the purposes of § 80.01(2), Stats.
We do not address those issues because we conclude that even if the
loggers' work is attributed to the County for purposes of § 80.01(2), the
law requires the public entity to work the road in a manner that demonstrates
ownership. As discussed later herein,
the County's motive for requiring the road be restored to its prior condition
is ambiguous and therefore insufficient to show it was worked as a "public
highway."
In
Ruchti v. Monroe, 83 Wis.2d 551, 556-57, 266 N.W.2d 309, 313
(1978), our supreme court stated:
Whether based upon a theory of common law
prescription by use over 20 years or upon sec. 80.01(2), Stats., by maintenance over 10 years, the
town does not acquire prescriptive rights in the road if its use of the road
was merely permissive. ...
Generally,
unexplained use of an easement over enclosed, improved or occupied lands for 20
years is presumed to be adverse.
Likewise, under sec. 80.01(2), Stats., where work has been done and
public money expended on a road under the direction of public officials, there
is sufficient public use to establish it as a highway. Thus, upon a showing by the town of use by
the public for more than 20 years or maintenance by the town for 10 years, the
landowner has the burden of proving permissive use under some license
indulgence or special contract. (Emphasis added, citations omitted.)
A use that is permissive
in the beginning can be changed into one that is hostile only by the most
unequivocal conduct on the part of the user.
Lindokken v. Paulson, 224 Wis. 470, 475, 272 N.W. 453, 455
(1937). The trial court found that
Rasmussen, the former owner of the Kasters' land, "invited the public to
use the road at will." The County's
use of the road was originally permissive.
The County did not
assert a right to use the road beyond the scope of Rasmussen's permission by
repairing the bridge. Rasmussen
expressly permitted the public to use the road for snowmobiling. The County repaired the bridge at the
request of a snowmobile club. A $1,200
County expenditure to improve the road for snowmobiling is a natural extension
of the public's permitted use.
The County also did not
assert ownership rights over the road by requiring that the loggers return the
road to its preexisting condition. The
trial court found that Rasmussen gave the public an open invitation to use the
road. This finding is consistent with
the inference that Rasmussen was aware neighboring landowners (including the
County) may use the road for logging.
Rasmussen himself contemplated logging his land. Further, the County's agreement with the
loggers is not unequivocal evidence of a claim of ownership on the part of the
County. It was in the County's interest
to keep a private road in good repair because it had a financial interest in
the logging contracts and would benefit from the road repairs. Improving the road to efficiently log these
areas and returning the road to its preexisting state is at least as consistent
with a permissive use of the road as it is with a hostile claim of
ownership.
We conclude that under
the facts found by the trial court, the road has not been "worked as a
public highway 10 years or more" under
§ 80.01(2), Stats. The test is whether the work demonstrates
the public's ownership of the road so that the public's use of the road is not
merely permissive. See Ruchti,
83 Wis.2d at 556, 266 N.W.2d at 313.
This test gives the landowner sufficient notice to claim the road as his
or her own if a public entity works on the road. Without establishing a bright‑line test for the "worked"
requirement, we note that continuous work on a road by a public entity is more
likely to demonstrate ownership than sporadic work.
ACQUISITION
BY PRESCRIPTION
Next, the County
contends that it acquired the right to use the road by prescription. The County bases its claim on testimony that
the public used the road for more than twenty years. See § 893.28(1), Stats. A prescriptive easement requires the
following elements: (1) adverse use
that is hostile and inconsistent with the exercise of the titleholder's
possessive rights (2) that is visible, open and notorious (3) under an open
claim of right (4) and is continuous and uninterrupted for twenty years. Mushel v. Town of Molitor, 123
Wis.2d 136, 144, 365 N.W.2d 622, 626 (Ct. App. 1985). Hostile intent does not exist if the use is pursuant to the
permission of the true owner. Northwoods
Dev. Corp. v. Klement, 24 Wis.2d 387, 392, 129 N.W.2d 121, 123
(1964). Pursuant to § 893.28(3), Stats., the use of a way over
unenclosed land is presumed to be permissive and not adverse. A user must present positive evidence to
establish a prescriptive easement, and every reasonable presumption must be
made in favor of the landowner. Mushel,
123 Wis.2d at 145, 365 N.W.2d at 626.
The County did not
acquire a prescriptive easement over the road because the public used the land
permissively, not in an adverse or hostile manner. The County does not challenge the trial court's finding that
"the public was invited to use the road at will." Based on the trial court's finding and the
presumption in § 893.28(3), Stats.,
we conclude that use of the road was permissive.
COMMON
LAW DEDICATION
For the first time on
appeal, the County raises the issue whether Rasmussen's conduct constituted a
common law dedication of the road to the public. A common law dedication requires an intention to dedicate and an
acceptance of the dedication by the proper public authorities or by the general
public user. Mushel, 123
Wis.2d at 145-46, 365 N.W.2d at 627. We
will not address this issue because determining Rasmussen's intention to
dedicate the land is a question of fact that was not resolved at trial. See City News & Novelty v.
City of Waukesha, 170 Wis.2d 14, 20-21, 487 N.W.2d 316, 318 (Ct. App.
1992).
The County argues that
testimony that Rasmussen intended to permanently let the public use his land
shows his intent to dedicate the land to the public. We agree that such evidence would be sufficient to support a
verdict finding an intent to dedicate.
In Lemon v. Hayden, 13 Wis. 177, 185 (1860), our supreme
court concluded that "acquiescence of the owner in the free use and
enjoyment of the way as a public road for the period of twenty years, has been
deemed sufficient evidence of the dedication, though there was no further proof
of an intention to dedicate."
However, we conclude that while such evidence is sufficient, it does not
by itself establish an intent to dedicate as a matter of law. The parties did not try the case on a theory
of common law dedication. Therefore,
evidence pro or con of Rasmussen's intent to dedicate the land was not
presented. Because Rasmussen's intent
to dedicate is a question of fact not resolved at trial, we will not address
the issue of common law dedication. See
City News & Novelty, 170 Wis.2d at 20-21, 487 N.W.2d at 318.
CONCLUSION
We conclude that the
road did not become a public highway under § 80.01(2), Stats., because the County did not work
it in a manner that demonstrated ownership of the road. We also conclude that the County did not
obtain a prescriptive easement or adverse possession rights to the road because
its use and the public's use of the road was permissive. Finally, we do not address the issue whether
Rasmussen dedicated the road to public use because that determination requires
resolution of factual questions not decided at trial.
By
the Court.—Judgment reversed.
