In Walker v. Green Lake Cnty., 269 Wis. 103, 111, 69 N.W.2d 252 (1955), a county asserted it had gained full title to land underlying a highway by virtue of adverse possession.Summary of this case from Berger v. Town of New Denmark
February 7, 1955 —
March 8, 1955.
APPEAL from a judgment of the circuit court for Green Lake county: RUSSELL E. HANSON, Circuit judge. Affirmed in part; reversed in part.
For the appellants there was a brief and oral argument by Robert C. Born of Ripon, attorney, and Arthur W. Lueck of Beaver Dam of counsel.
For the respondent there was a brief and oral argument by J. J. McMonigal, district attorney.
This is an action to quiet title to certain lands located in Green Lake county, Wisconsin, described as follows:
Swan Point, section thirty-four (34), township sixteen (16) north of range thirteen (13) east in the town of Green Lake (plat of Forest Glen Beach).
The complaint alleges that Swan Point is more accurately described as follows:
"Commencing at a point on the east line of section 34-16-13, 1,794.0 feet N. 5° 30' west of the east quarter corner of said section, thence northerly along said E. line said section 860.0 feet, thence westerly, southwesterly, and southerly along the original meander of the east shore of Green Lake to a point 176.0 feet S. 84° 30' W. of the place of beginning, thence N. 84° 30' E. 176.0 feet to beginning."
The plaintiffs assert title through various conveyances starting with a tax deed from Green Lake county to one A. J. Amend dated January 17, 1919. In each of said conveyances the lands were described as first stated above. Another issue raised by the pleadings, and which all parties asked to be resolved, was the determination of the section line between sections 34 and 35, which constitutes the township line between the towns of Green Lake and Brooklyn in said county. The two towns participated in the trial only to the extent that they were interested in such determination of the section line. Taxes have been paid upon said lands by plaintiffs and their predecessors in title since 1913.
In 1925 and 1926 the county constructed a county trunk highway, known as the "Inlet road," in a northerly and southerly direction across the property claimed by the plaintiffs. In the years 1935 and 1936 the county widened and extended the Inlet road by placing gravel and other road-building materials along the west side of the then-existing roadway and placed riprap of rock along the westerly edge thereof to protect the same from damage by the water of Green Lake.
The plaintiffs contend that the highway and extension were improperly laid out and that the county acquired no rights to said lands. The answer of the county denied that the Inlet road was built across lands owned by the plaintiffs and that the same was constructed without authority, and alleges that said highway was constructed in an entirely proper manner and in the manner provided by statute. The county also contended that the highway was used for more than twenty years and that the county had become the owner of the land so used by adverse possession. At the conclusion of the trial, the county was permitted to amend its answer to include a request that the plaintiffs be permanently restrained from any private use of the lakeshore to the west of the existing highway and the filled-in area.
The lands in question are located at the east end of Green Lake, which is navigable, This area was originally surveyed by government surveyors about the year 1835 and the meander lines of Green Lake were then established. No other meander lines have since been officially established. About the year 1850 a dam was erected at the village of Green Lake which caused the level thereof to be raised approximately seven feet and later, in the early 1900's, the water level was again raised approximately two feet by raising the height of the dam.
In 1898 a plat of Forest Glen Beach was accepted by the town and county and a plat thereof was duly recorded in the office of the register of deeds. Included upon the plat so recorded was a drawing of an area of land which was labeled "Swan Point." This was not a portion of the Forest Glen Beach plat but it indicated that the south line of Swan Point was the north line of Forest Glen Beach; that the east line thereof was the section line between sections 34 and 35, and that to the north and west it was bounded by the shore of Green Lake.
In 1931 Swan Point was conveyed by A. J. Amend to Earl and Katherine Walker, who conveyed the same to Raymond and Helen Walker, the plaintiffs here, in 1947. In 1931 Earl Walker erected two cottages east of the highway which were later joined together, which he operated as a store for the sale of articles usually sought by persons using the lake for swimming, fishing, and boating. He also erected a pier or dock on the west side of the road where he operated a boat livery. There was a conflict in the testimony as to the amount of dry land that existed at various times from 1898 to the date of the trial on both the east and west sides of the highway.
The trial court found that Swan Point is not measured or described in legal terms and that it is impossible for the court, from any evidence in the record, to determine the legal description referred to as Swan Point; that at no time prior to construction of the highway or extension did the county take any steps to determine ownership of the lands on which the road was built, nor did the county acquire any such land by purchase, gift, or condemnation; that it was the intent of the county when it built the extension to make the same a permanent portion of the highway, and that it has been used since its construction for highway purposes; that for more than twenty years prior to the commencement of the action the plaintiffs and their predecessors occupied some land lying east of the original highway built in 1926, and that they occupied the same under claim of ownership; that for an undetermined period the plaintiffs and their immediate predecessor maintained a pier in Green Lake immediately west of their buildings and on the west side of the highway, and that at some time not determinable from the evidence there was high land west of the highway extension built in 1936, to which high land the plaintiffs and their predecessor in title had attached their pier, and that at the time of the commencement of this action and at the time of trial there was no land lying west of the extension to highway above water, capable of being described, to which plaintiffs could attach a pier; that any high land which may have existed was either covered when the extension was built or has since washed away by action of the lake water, and that plaintiffs' pier is attached to land constituting the westerly edge of the highway extension built in 1936.
As conclusions of law the trial court stated that it was impossible to describe Swan Point by metes and bounds; that the allegations of plaintiffs' complaint have not been proved and that the complaint should be dismissed; that the plaintiffs by more than twenty years of adverse possession have acquired title to and are entitled to be adjudged the owners of an undetermined area of land under and surrounding their existing buildings located to the east of the right of way of County Trunk Highway A, known as the Inlet road; that the county has acquired title by more than twenty years adverse possession to all of the land on which County Trunk Highway A was first laid out and constructed, and is entitled to be adjudged the owner of such land; that County Trunk Highway A is a four-rod highway extending across the inlet at the east end of Green Lake, and a description thereof was determined and included in the conclusions of law; that the extension has been a part of said highway and is a part of said highway; that the county acquired title, by dedication to public use and by having worked the same as a public highway for more than ten years, to all the lands on which the extension is located; that the description given in the conclusions is a true description thereof; that there is no land above the water lying west of the highway, including the extension thereto, and that along the entire length of the Inlet road the waters of Green Lake lap directly against and upon the stone supporting wall or riprap which defines the westerly edge of the highway extension; that plaintiffs' pier at the time of the commencement of this action and at the time of the trial was attached to land comprising a part of the highway right of way owned by Green Lake county; that the same as so located is illegally constructed and maintained; that Green Lake county is entitled to remove said pier and to have plaintiffs and all other persons claiming under them enjoined permanently from attaching thereto or maintaining on the highway right of way any pier or wharf in Green Lake at any point west of the highway. The court also included in its conclusions of law a legal description of the section line, which is the dividing line between the defendant townships.
Judgment was entered on the 23d day of April, 1954, dismissing the plaintiffs' complaint with costs, directing the plaintiffs to remove their pier, and perpetually enjoining plaintiffs and any other persons claiming under or through them, from erecting or attaching piers, wharves, or boat docks to said highway right of way or operating any private business thereon, or in any manner whatsoever obstructing or interfering with the ownership and use thereof by the county or by the public for proper public purposes. The plaintiffs appealed from said judgment.
In support of its judgment the county contends upon this appeal that the plaintiffs had the burden of proving their title to land capable of being described and located with reasonable certainty; that they failed to do so and that Swan Point can neither be located by a survey nor described by metes and bounds. In ascertaining the boundaries of land conveyed, the real intention of the parties is to be gathered from the entire writing and when necessary from the surrounding circumstances. Sanborn v. Miski, 190 Wis. 513, 209 N.W. 759; Wisconsin Realty Co. v. Lull, 177 Wis. 53, 187 N.W. 978. Parol evidence may be received to identify the land to be conveyed where there is some language in the writing to which parol evidence can be linked and the property identified with reasonable certainty. Spence v. Frantz, 195 Wis. 69, 70, 217 N.W. 700. The Spence Case involved a contract to convey "the following described land: Contained in Stone's subdivision in sections nine (9), and ten (10) in the town of Greenfield, consisting of one hundred and ten acres (110), more or less, said acreage to be determined by survey." That was held to be a sufficient description with the aid of parol testimony.
The description in a deed is certain if it may be made certain by reference to other documents as well as by parol evidence. In this case the tax deed from the county referred to the plat of Forest Glen Beach, which was duly recorded .in the office of the register of deeds in said county. Although the part thereof delineated "Swan Point" was not a part of the plat, it did establish the south line of Swan Point to be the north line of Forest Glen Beach, which could be readily located by a survey. It also established that the east line of Swan Point was the section line between sections 34 and 35. The map showed that at the north the east line would intersect the shore line of Green Lake as it existed in 1898, and that the north and west boundaries thereof were the lakeshore as it then existed. A surveyor did locate the description sufficiently, except that he referred to the original meander line of Green Lake, which was not indicated upon the plat of Forest Glen Beach. The lines delineated thereon were the lakeshore as it existed in 1898, which, because of the raise of the level in the lake, was different than the original meander line.
The county and the trial court seem to be of the opinion that the plaintiffs must locate land that was not submerged. If any one could challenge title to the submerged land it would be the state of Wisconsin, and the state was not a party to this action. Under the rule laid down in Haase v. Kingston Co-operative Creamery Asso. 212 Wis. 585, 250 N.W. 444, the county would be in no position to challenge the title of the plaintiffs to the submerged lands not occupied by its highway. The description given by the surveyor for the plaintiffs, if amended as herein indicated, would be a sufficient description as against any claim of the county. We are passing here only on the rights of the parties to this action.
The county next contends that it gained full legal title to the lands occupied by the highway by user and adverse possession. The fee to a highway remains in the abutting owner. Hustisford v. Knuth, 190 Wis. 495, 209 N.W. 687; Spence v. Frantz, supra; St. Joseph v. Willow River Power Co. 205 Wis. 231, 237 N.W. 83. This rule is also stated in 25 Am. Jur., Highways, p. 426, sec. 132, as follows:
"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 or prescription, or by the direct action of the public authorities, the public acquires merely an easement of passage, the fee title remaining in the landowner."
It is also stated in 39 C.J.S., Highways, p. 937, sec. 19, as follows:
"When it is of such character and for such length of time as to establish a highway by prescription or long user, user of land as a highway vests in the public an easement in, or right to use, the land for highway purposes."
Thus, the county does not have a full legal title to the highway but merely an easement for public travel. The fee to that part of County Trunk A adjacent to the lands of the plaintiffs is in the plaintiffs.
Sec. 80.01, Stats., provides that all highways laid out by a committee of the county board and recorded, any portion of which has been opened and worked for three years, are legal highways so far as they have been so opened and worked. Sub. (2) thereof provides that highways not recorded which have been worked as public highways ten years or more are public highways. In the case of the highway constructed in 1926 and 1927 the county, with the aid of the state highway commission, laid out a road three rods in width, as indicated by the blueprint thereof which was made a part of the record herein. A plan was also drawn for the extension. The record does not show whether either plan was recorded. If so, they became highways at the end of three years; if unrecorded, at the end of ten years, as they were opened and worked by the public for more than ten years prior to the commencement of the action. This is a sufficient laying out of the highway as stated in Jacobosky v. Ahnapee, 244 Wis. 640, 13 N.W.2d 72. Since the road was laid out as a three-rod road the court was in error in determining that it was a four-rod road. Actually, it only covers approximately three rods, and its limits are as now used for highway purposes.
The plaintiffs contend that the extension to the highway is not a highway but is merely an area for parking cars and for recreational purposes. They contend that highways are limited to roads for the free and unobstructed passage of vehicles in each direction. It is true that the original definitions of highways were limited to lands used for the purpose of direct travel. However, the term "highway" may be used in a broader sense. The conception of highways is changing and it is now felt that highways established for the general benefit must admit of new methods of use whenever it is found that the general benefit requires it. For the courts to limit the use of highways without considering new methods and usage would defeat, to some extent at least, the purpose for which highways are established. The extension was constructed for use by the public generally, as well as to protect the original portion of the highway that was actually constructed in 1926 and 1927. We hold, therefore, that the extension is a part of County Trunk Highway A and that the county has acquired an easement therein for public use.
From the record it is clear that the plaintiffs own the land upon which the road was constructed, subject to the public easement, and thus have rights in the submerged lands west of the highway, one of which is the right to erect and maintain a pier and boat landing thereon. Bond v. Wojahn, post. p. 235, 69 N.W.2d 258. They have the same right to travel from their property east of the highway to this dock or boat landing as does the public generally. They may not, however, interfere with the use of the highway, as now laid out, by the public generally.
The judgment, in so far as it determines the line between the towns of Green Lake and Brooklyn, is affirmed. In other respects the judgment is reversed.
By the Court. — Judgment affirmed in part and reversed in part. Cause remanded with directions to enter a judgment consistent with this opinion.