Borek Cranberry Marsh, Inc. v. Jackson County

Plaintiff-Appellant, Cranberry Borek Marsh, Inc., v. Jackson County, Defendant-Respondent-Petitioner.

Supreme Court argument No. 2008AP1144. Oral February July —Decided 2010 WI 95 (Also 615.) reported in 785 N.W.2d For the defendant-respondent-petitioner there were briefs Mark B. Hazelbaker and Hazelbaker & Asso- by

ciates, S.C., Madison, and oral argument by Mark B. Hazelbaker. plaintiff-appellant

For the there was brief Dan Sparta, Arndt, Thorn, S.C., Arndt and Buswell & and argument by Dan oral Arndt.

¶ MICHAEL J.GABLEMAN,J. This is a review of published appeals1reversing decision of the court of an granting summary judgment County.2 order to Jackson purchased In 1977, Carl Nemitz an easement from the County granting flowage him sand removal and water rights County adjacent property. land his flowage rights granted NEMITZ, water were to "CARL assigns" rights heirs, his the sand while removal granted Grantee," were to "the is described in who deed as "CARLNEMITZ." later Nemitz transfered his along rights land, with his sand removal and water (the flowage rights, to Julius and Darlene Borek "Boreks"), who then transfered them to Borek ("BCM"). Cranberry Marsh, Inc. attempted

¶ 2. When BCM to exercise the sand (now rights years original removal almost 30 after the Nemitz), County objected on the grounds rights the sand removal were non- brought suit, transferable. BCM and the circuit court agreed County with that the sand removal they granted were non-transferable because had been alone, to Nemitz "Nemitz, heirs, his and as- signs" flowage rights granted. as the water had been appeals holding The court reversed, that Wis. Stat. 1 Marsh, Cranberry Borek County, Inc. v. Jackson 2009 WI App 321 Wis. 2d 773 N.W.2d 522. 2 judge originally assigned case, Judge to the Gerald W. Laabs, recused himself because he drafted the easement at issue in Judge this case. John A. Damon presided Judge Laabs' stead. 706.10(3) (1977-78),3 which makes words of inherit-

ance and creates a favor of unnecessary presumption the court to the deed transferability, interpret required as transferable sand removal conveying rights. Thus, before us is whether question 1977 easement Nemitz a transferable to granted right hold it County remove sand from land. We that did. Wisconsin Stat. that provides every convey- of an in land full title conveys ance to interest unless the indi- language by necessary cates otherwise express language impli- cation. We conclude that the easement does not contain an statement or express necessary implication limited, sand non-transferable remove was We therefore affirm the decision of the court conveyed. and remand for circuit court to enter an appeals granting summary judgment. order BCM's motion for

I. BACKGROUND Nemitz, In Carl who owned marsh land adjacent County, to forest land owned Jackson pur- for That County chased an easement from $500.00. and sand granted flowage rights easement Nemitz water land for the neighboring County removal to the marsh.4 cranberry cultivation on Nemitz's purpose subsequent are to All references to the Wisconsin Statutes the 1977-78 version unless otherwise indicated. Flowage allowing refers to water to flow on and off Flowage rights very important cran adjoining land. can be water, berry grown cultivation cranberries are and at because bogs points process, in the the water in the has to be certain cranberry important drained off. Sand is also cultivation. winter, cranberry top over in the ice on When marsh freezes 5. The deed granting flowage Nemitz water and sand removal is entitled "Easement for Flowage ("1977 deed").5 It contains Rights" following rel- evant language: EASEMENT, day May,

THIS made this 12th COUNTY, between Municipal JACKSON Cor- Grantor, poration, NEMITZ, and CARL of RFD Warrens, Wisconsin, Grantee.

WITNESSETH, That for and in consideration of ($500.00) dollars, the sum of Five Hundred paid by the Grantor,.. Grantee to the . the hereby Grantor does NEMITZ, heirs, grant convey and to CARL his and assigns, an flowage right easement with full and for privilege to flow with following water the described lands Knapp, situated the Town of County, Jackson Wisconsin.... EASEMENT,

THAT THIS perpetual pro- shall be viding flowage rights that the hereby granted being are purpose cranberry used for the culture.

AND, the hereby grant convey Grantor does the Grantee privilege to remove further bog is, is layer sanded—that covered with a of sand—so melts, settles, when the ice filling sand in under the cranberry plants so that plants remain at an appropriate height, thereby optimizing production. Thus, harvestable both flowage water important and sand are cranberry indus- try. Flowage Rights" The "Easement for in the record before us actually May 12,1978. dated That document indicates that it "given purpose correcting

was for the descrip an erroneous Records, tion as recorded in page Volume 226 of on 751 and as Document original #212830." The deed is not in the record. However, parties agree original deed was executed sometime in and that the deed in the record is identical to regards 1977 document in all relevant to this case. to be used for the described lands sand the above from adja- cranberry upon the Grantee's culture purpose cent lands. added.)

(Emphasis to the marsh cranberry In Nemitz sold ¶ itself, land the deed transfering the the Boreks. Besides the Boreks from Nemitz to the marsh transfering ("1978 deed") the and sand flowage transfered also County from the purchased removal that Nemitz rights and their later transfered the land in 1977.6 The Boreks rights and sand removal flowage the BCM.7 own decades, BCM used sand from its 7. For needs. At some

land to its cultivation supply cranberry suit, of this BCM to the commencement point prior removing that it intended to start County informed to the 1977 deed. County sand from land pursuant sand, arguing to remove right BCM's County disputed to Nemitz were removal sold rights sand and therefore not transferable to Nemitz personal the Boreks or BCM. in Jackson 13, 2007, BCM filed suit April 8. On Damon, seeking A. Court, Judge, John

County Circuit (1) owner legal that BCM is declaratory judgment (2) damages compensatory rights; of the sand removal (3) and reimbursement profits; in the form of lost "The part follows: deed stated in relevant as The 1978 assigns, convey grantees, their heirs grantors further in favor of executed rights their in and to an easement all of sand County concerning flowage by them Jackson rights." transfering flowage and the and sand The deed the land not in the record. rights from the Boreks to BCM is

removal place. took Nevertheless, parties agree that the transaction expenses arising controversy. as a result of the On summary judgment, cross-motions for the circuit court granted summary judgment County to the and dis- missed BCM's claims. The court concluded that necessary implication of the inclusion of "heirs and assigns" flowage grant in the and the omission of that language grant, parties in the sand removal is that the intended for the former to be transferable and the latter (and personal to Nemitz thus not transferable to or BCM). enforceable appealed. published opinion, 9. BCM In a appeals finding

court of reversed court, the circuit personal to remove sand was not to Nemitz and was thus transferable to the Boreks and thence to Cranberry County, BCM. Marsh, Borek Inc. v. Jackson App ¶ 2009 129, 14, WI 437, 321 Wis. 2d 773 N.W.2d specifically, presump 522. More the court held that the transferability tion of of interests in Wis. Stat. applied express because there was no lan guage contrary, to the and the omission of "heirs and assigns" grant in the sand removal did not create a necessary implication parties intended that right ¶¶ to be Id., non-transferable. 12-14. It further Brody Long8 held that the instruction in v. that deeds municipalities should be construed in favor of does not apply here because ¶ this case is not a close call. Id., 16. County

¶ petitioned 10. The then this court for granted. review, which we

II. STANDARDOF REVIEW ¶ summary 11. This case comes before us on judgment. grant summary Wereview the of a motion for

8 (1961). 288, 13 Wis. 2d 108 N.W.2d 662 methodology specified apply judgment novo, and de Valley Apple Ass'n, Inc. Gardens Stat. 802.08. Wis. ¶ 85, 12, 316 Wis. 2d MacHutta, 28, 2009 WI v. any there is whether is, That we determine 126. N.W.2d genuine any not, if fact, and which material issue as to judgment Id. party as a matter law. is entitled requires present to determine us ¶ case 12. The scope meaning are Easements of an easement. according to by deeds deeds, and we construe created parties v. the deed. Konneker intentions of the 268, N.W.2d 2d Romano, 65, 26, 326 Wis. 2010 WI proper easement of an construction 432. The Keys, v. question de novo. Hunter review of law we 1999). (Ct. App. 710, 715, 2d 600 N.W.2d 229 Wis.

III. DISCUSSION question the sand us is whether before 13. The conveyed in the easement between removal personal County Nemitz, or were and Nemitz they fully transferable. were whether possessed in land is an interest An easement App Gojmerac Mahn, 2002 WI v. another. creates a "An easement 2d 640 N.W.2d 250 Wis. pos nonpossessory in the land to enter and use possessor obligates not to of another session by easement." the the uses authorized interfere with (1) (Third) § Prop.: 1.2 Servitudes of Restatement (2000). appurtenant may ease be either Easements gross. Gojmerac, 1, Wis. 2d 250 in ments or easements rights appurtenant or ties the ¶ An easement 18. occupancy ownership of obligations or of a servitude Id. An the land. with land, and thus it is transfered gross or burdens the benefits in does not tie easement

621 may personal land, servitude and trans- Id., ferable. 18 & n.5. rights law, At 15. common the sand removal at profit prendre.

issue here would be classified as a á Like profit prendre, generally easement, an simply á now known (see (Third) "profit" Prop.: aas Restatement § f), Servitudes 1.2 cmt. in is also an land interest power acquire involves things additional or remove Camp Enters., from land. Van v. Menominee (1975). Rights Inc., 332, 2d Wis. 228 N.W.2d664 profit hunting fishing often associated with a include rights, rights, mineral and and, timber as in the case at rights. Figliuzzi Carcajou bar, Id.; sand removal v. Shoot ing (1994); Club, 184 Wis. 2d 572, N.W.2d (Mass. 1965). Gray Handy, v. 208 N.E.2d 831-32 profit distinguished Both an easement and a were in the qualify common law from a license, mere which did property an in as real and was revocable its very Camp, nature. Van 68 Wis. 2d at In 1994, 344. this meaningful legal court held that there is no distinction profit. Figliuzzi, between an easement and a 184 Wis. 2d profit at 583. The Restatement in fact defines a as an (Third) rights. easement with additional Restatement 1.2(2) (2000). Prop.: Servitudes cmt. e & flowage rights It is clear water the sand removal deed between Nemitz and County each an constitutes interest in the land. Both parties interpretive concede that the instructions in Wis. 706.10(3) play proper interpretation Stat. a role conveyances of land and interests in dissent, land. The challenges applies however, whether the statute to inter- ¶¶ ests land at all. dissent, See 57-63.

¶ 17. Wisconsin Stat. has existed in some since form first iteration of the statute by providing: abrogated "In all law the common rule conveyances state, in this words of land hereafter made necessary in create be order to inheritance shall not of ...§ convey 316, ch. of 1, a Laws fee or legislature the statute in 1878 18. The amended provide: to lands, conveyances of words of inheritance shall

In fee, every grant necessary convey to create or he pass or all the estate any of lands interest therein shall grantor, pass unless the intent to or interest of the hy express or appear less estate interest shall terms or grant. implied in the of such necessarily terms (1878). annotated version of Stat. 2206 Wis. (in 1889) published states edition of the statutes next composed version, of the 1874 that this new statute was to from York statute addition of words the New "with give it full effect." upon York statute which ours was 19. The New

based stated: inheritance, other shall

The term "heirs" or words fee; convey or estate in requisite create an not be estate, any or interest every grant or devise real therein, executed, pass all the to be shall hereafter testator, grantor or unless the estate appear shall pass estate or interest intent a less terms, necessarily implied the terms express or be grant. such (1835) (quoted pt. 1, 1 ch. tit. Rev. Stat. N.Y. (N.Y.

Whitney Richardson, Gen. v. N.Y.S. 1891)). question of whether that Term Faced with Supreme applied easements, Court statute holding it ease- did, that an York concluded New Whitney, the statute. an fee" under ment was "estate (interpreting Munson, 15 N.E. Nellis v. at 862 13 N.Y.S. (N.Y. 1888)); Easements, 741 see also Jur. N.Y. 2d ("The (1997) § statute that providing the term 'heirs' or other words of inheritance are not to necessary an estate in fee also to convey simple applies .").9 an creation of easement. . . In Wisconsin legislature revised

and renumbered our statute. It now reads: conveyances

In lands of words of inheritance shall not necessary convey fee, be or every to create a pass shall all the estate or interest grantor appear expressly unless a different intent shall byor necessary implication in the terms of con- such veyance. 706.10(3).

Wis. Stat. We were unable find any evidence, extra-textual, textual or these revisions reflected legislative intent to change the of meaning Rather, the statute. the changes appear stylistic. merely For example, the legislature changed the phrase, "every grant lands any therein," or interest to simply A "conveyance." "conveyance" is defined aas written instrument evidencing governed by transaction Chap- ter which would include both a land grant 706.01(3). the conveyance of an interest land. See dissent, Unlike the find we the statute to sufficiently clear it applies easements. See Dissent, 57-63. We see in the clues second clause ¶¶ statute, which states, "every conveyance shall pass all nearly Other states with language similarly identical have interpreted their statutes to include easements as well as See, conveyances of e.g., Osceola, land. Presbyterian Church of (Iowa County Harken, Clarke v. 1916); N.W 692 Karmuller Krotz, (1865); v. 18 Iowa 352 Redfern, Brown v. 541 S.W.2d 725 (Mo. 1976). App. Ct. "or" conjunctive or interest of the grantor." the estate the stat- contemplated some conveyances means that some include estate, may include an while ute will of the statute interests the land. The version pre-1969 use of makes clear that the current statute's further grant shorthand for "every is meant to be "conveyance" any And if there were therein." any lands statutes, in- with similar doubt, courts other states ours was upon the New York statute which cluding to ease- based, language apply have construed this 19 & as of land. conveyances supra ments as well See note 9. Thus, of reading though cursory 706.10(3) not that its do might provisions

§ suggest easements, clues, history, statutory the textual govern clear its sister statutes make interpretation and the in subsection that the instructions this interpretive in like the deed of interests land conveyances apply here.10 then, 706.10(3), provides 23. Wisconsin Stat. in full conveys transfer interest land

that of an every to transfer interest, including title to that drafting merely a County argues the statute is The that interpretation. for It further and not a substantive tool guide considered aid to be argues that the statute is an extrinsic ambiguous. deed is first deemed after a deeds this, It us how The rebuts however. tells statute construed, for interpretive an aid provides and thus "shall" be 706.10(3). deeds, just ones. Wis. Stat. all ambiguous govern Moreover, Chapter "shall states that created, any in land is every transaction which in may affected aliened, mortgaged, assigned or be otherwise County to of interests from the equity." or in transfer law exception. is no Nemitz

interest, unless evinces a different "expressly by necessary implication." intent County argues language ¶ 24. The of rights deed make does clear that the sand removal were non-transferable. It maintains that the omission assigns" grant of "heirs and in the sand removal —in language contrast to the inclusion of that water flowage grant express language ator least —constitutes necessarily implies original parties that the intended flowage rights be water transferable and the sand rights personal County removal to Nemitz. The argues Brody Long, further that under v. a deed trans fering rights away government entity from a must be government entity. construed favor of the 13 Wis. 2d (1961). 288, 297, 108 N.W.2d662 argues property ¶ 25. BCM that because interests fully are transferable even the absence of words assigns," inheritance like "heirs and absence assigns" grant "heirs and in the 1977 deed's the sand rights rights immaterial, removal was and thus those fully are transferable. County's notwithstanding, 26. The assertions simply provide any express language

the deed does not stating fully the sand removal were not express transferability An transferable. on limitation language affirmatively limiting would be manifest in rights the sand removal to Carl If, Nemitz. as the County argues, granting language the difference in grant an indicates intent to make one transferable and non-transferable, the other such a is im- conclusion plied, express. not question Thus, the is whether the non-

transferability rights of the sand removal is a "neces- sary implication" of the terms the of easement. In addition to statute, this the Wisconsin Statutes use the three other times. Wis. "necessary implication" phrase 62.09(8)(c) (relating mayoral power); to veto § Stat. 702.03(2) (relating powers appoint- Stat. of Wis. to the of (relating transfer ment); Wis. Stat. landlord).11 Each tenant or an owned or by necessary phrase "expressly occurs in the usage "necessary intent for a legislature's The implication." an then, closely is tied to the concept implication," It is fair that a say necessary statement. "express" it is that is so clear as to express; is one implication way, another where Said required implication. necessary of a contain a implication, terms constitute a perverse otherwise would interpretation an the language. misconstruction that the difference County 28. The maintains flowage grant rights between of water language necessary removal creates a rights grant sand non- rights the sand removal are that implication were flowage rights granted transferable. The water heirs, while the sand NEMITZ, assigns," his "CARL Grantee," to "the who rights granted removal were County defined the deed as "CARL NEMITZ." assigns" of the "heirs and that the omission argues neces- from sand evinces a language grant removal non-transferable. were sary implication asserts, render otherwise, read it would County To See mere surplusage. "heirs and assigns" language Racine, Ass'n Savings v. First Fed. & Loan Goebel ("[C]ourts (1978) must 668, 680, 2d 266 N.W.2d 352 Wis. con- renders of a portions a construction which avoid or mere inexplicable tract meaningless, surplusage."). case, appeals in this it does Before the court of decision interprets any published phrase appear decision 706.10(3). used "necessary implication" as County's interpretation ¶ 29. The of the 1977 certainly generally deed is a Indeed, reasonable one. we interpret differing language the use of or similar intending meaning. related as sections a different Cf. (RURAL) Responsible Agric. Rural Use & Land v. Commission, Public Service WI (holding Wis. 2d 619 N.W.2d888 that when words are used one subsection of a statute but not another intended). meaning subsection, a different is But this interpretation required easement is a necessary one. interpretation

¶ 30. find BCM's We to be at least County's reading. as reasonable as As BCM ex- plains, according interpretive to the statute's instruc- (or assigns" any tions, the "heirs words similar language) unnecessary are indicate transferable 706.10(3) ("[W]ords interest. Wis. Stat. of inheritance ."). necessary convey shall not be to create or a fee . .. law, As a matter of "Grantee" therefore has the exact meaning assigns" same "Grantee as and his heirs and meaning expressly implied. unless another is stated or grant fully Both indicate the of a transferable interest. phrase having Therefore, we need not construe that as any legal Nedin, effect. See Weberv. 39, 46, 210 Wis. (1933) (determining language N.W. 307 in a deed conveying property "assigns" legal to one's was "without superfluous). effect" and therefore Under the directive § 706.10(3), grant flowage rights then, of water assigns" grant "CARL NEMITZ, his heirs, and the (who of sand removal to "the Grantee" is identi- Nemitz) fied in the deed as identical, are and each conveys freely transferable interest. reading sup- 31. The reasonableness of BMC's

ported by single the easement's reference to itself as a easement. The 1977 deed is entitled "Easement for speaks Flowage Rights." "this also of The document naming parties giving the the date and when easement" ("THIS May, day 1978, this 12th of EASEMENT, made NEMITZ"), CARL and JACKSON COUNTY... between (see explaining corrected deed that this is a and when 5) ("This given purpose supra of for the note easement ...."). description correcting An additional an erroneous EASEMENT, shall states that "THIS internal reference hereby flowage rights perpetual providing the cranberry being purpose granted for the of are used added). County argues (emphasis that the culture" the refers water reference to "this easement" immediately flowage rights fol- because this statement flowage. may grant this be a of water While lows reading reading, is that reasonable reasonable another iterations, other refers, as it does its "this easement" characterizes the whole, a and therefore the document as perpetual rights as well. sand removal as support BCM's read- additional for 32. We find express ing contains two in the fact that the easement County "expressly First, limitations. reserved [County] public land for the for access to the fishing." hunting purposes Second, the sand and rights flowage on were conditioned removed water cranberry being purpose culture." their "used for had the deed been to conclude that It is reasonable transferability the flow- of either to limit the intended rights, age said so it would have sand removal expressly. Lake, 27, FAS, LLC v.Bass WI See (" express '[T]he men- 2d 733 N.W.2d 301 Wis. similar matters matter excludes other tion of one mentioned.'") (quoting Perra v. Menomonee are not App 2d Co., 215,.¶ 12, Wis. Ins. 2000 WI Mut. 123). 619 N.W.2d County Thus, both and the BCM offer rea- interpretations simply

sonable easement. We do agree County reading with the that its —that personal sand removal were intended to be expressly Nemitz and non-transferable —is stated in or necessary implication terms of the easement. 706.10(3), Accordingly,under Wis. Stat. the easement conveyed fully transferable interest in both water flowage rights. sand removal County's argument12

¶ 34. The final rests on a single Long Brody stating grant in sentence v. that "a of by public body strongly land is to construed most against grantee." (citing Thomp- 13 2d at Wis. 297 6 ed.) 3365). Property § (perm, County son, Real The argues Brody that this brief statement creates a top-level application. rule of broad disagree. Brody

¶ 35. We The court discussed this only having applied ordinary rule of rules construc- after Brody at tion. See id. 293-96. Furthermore, the court did rely only not even on the its decision, rule in it but added independent as an additional basis for its decision. See published opinion id. at 298. Wealso note no that in this Brody state has cited to or on relied this statement in years ago. since it made was almost 50 12 County also a brief undeveloped argu makes County "[u]nder ment that program, Forest sand and gravel by private extraction entities such as B[CM] is forbid sentence, den." County's That found in Statement Facts brief, in its argument issue, main the extent its on Wis., we need not consider it. Clean Inc. v. Public Service Commission, n.40, 2005 WI 180 2d Wis. ("We N.W.2d will arguments."). not address undeveloped Brody ¶ 36. To the extent is an accurate state- (an here), ment of the law issue we need not address it only applied would be as a rule of last resort after employing interpretation, par- the normal methods of ticularly specified by legislature those in Wis. Stat. 706.10(3). We fail to see how the rule construction Brody trump legislative can mandate in Wis. 706.10(3). Stat.

IV CONCLUSION summary, In we hold that the 1977 ease- granted right ment Nemitz a transferable to remove County sand from land. Wisconsin Stat.

provides every conveyance of an land conveys language full title to that interest unless the by express language indicates otherwise necessary implication. We conclude that the ease- express ment does not contain an statement or neces- sary implication limited, non-transferable conveyed. to remove sand was Wetherefore affirm appeals the decision of the court of and remand for the granting circuit court to enter an order BCM's motion summary judgment. for

By appeals the Court.—The decision of the court of is affirmed and the cause remanded directions. with (dissent-

¶ ABRAHAMSON, 38. SHIRLEY S. C.J. ing). majority by The chooses not to resolve this case parties determination of the intent of the from the text approach puzzling, say of the document. This is the least.1 1 See, Romano, e.g., Konneker v. 2010 WI ¶ ("Because question 2d

Wis. 785 N.W.2d 432 easement deed, by is created the court must look to that instrument majority Instead, resolves this case us- 706.10(3). ing doing majority In so, Wis. Stat. effectively construes the 1977 document to an end that disregards apparent parties the otherwise intent of the as evinced the written text. easement, I 40. Because conclude that the here document,

a deed and referred to hereafter as the per- removal, created a nontransferable to sand original sonal to I holder, Nemitz as and because regardless apply reach this conclusion I of whether interpreting traditional rules for an easement instru- apply interpretation ment or a correct of Wis. Stat. 706.10(3), I dissent.

I begin by interpreting I the document and acknowledging interpretation. the rules of When the plain unambiguous, text of a document interpreted parties' document must be to effectuate the primary intent.2 Case law also establishes that parties source of the intent of the is "what is written construing the relative of the landowners. Deeds are instruments; construed as are other accordingly, purpose the court parties. is to ascertain the intention of the primary parties' source of the intent is what is written within (internal the four quotations corners deed." and citations omitted)). Mentzel, 628, 638, Atkinson v. 2dWis. 566 N.W.2d 158 (Ct. 1997) ("Construction App. determine of the deed to grant's purposes question terms and is a of law unless there is ambiguity requiring an resort to extrinsic evidence. Whether an ambiguity ...."); question exists is a of law Hemmis v. Consol. Co., Paper 518, 521, Water Power & 173 Wis. 181 N.W. 743 (1921) ("... construing every deeds word and clause is consideration"). taken into within the four corners of the . . . ."3Furthermore, deed majority generally interpret notes, as the "we the use of language different intending in similar or related sections as meaning."4

a different begin ¶ 42. I therefore with the text of the docu- Applying interpretation ment. the rules of identified granted above, I conclude that the 1977 document rights relating flowage to the water different from those (water relating to sand removal. Whereas former flowage) by grantee, is transferable each the latter (sand removal) personal original grantee is and original grantee. thus is not transferable Regarding flowage rights, ¶ 43. the water I con- following aspects support clude that the of the text conveyed conclusion that the 1977 document an ease- flowage rights ment for and that the easement for (1) flowage rights was transferable: the title is "Ease- (an Flowage Rights," phrased singular ment for in the "easement") specifically referring flowage rights; and (2) phrase privi- "easement. .. with full (3) lege" grant flowage rights used; is is to "Carl assigns," Nemitz, heirs, his the latter ordi- words (4) narily transferability; used to indicate the easement "perpetual providing flowage rights hereby is that the granted being purpose cranberry are used for the interpretation culture." The reasonable of this text flowage provision grant is that the water is a of a right. Majority op., ¶¶ transferable 29-30. grant

¶ 44. In contrast, of sand removal presents supporting text, a different on its face 185, 188, Ryan, Rikkers v. 2dWis. 251 N.W.2d 25 (1977). interpretation ordinarily of the document question of law without resort to extrinsic evidence.

4 Majority op., provision must different conclusion. The sand removal according comparison interpreted its text and in to language to create the transferable water with the flowage used language used in the

easement. Thus the is grant language removal, of sand as well as that is used grant flowage conspicuously in the of water but omitted significant. grant removal, from the of sand are both Analyzed way, in this the text of the sand removal parties provision the contains numerous indicia that rights intended the to be different and discrete two from one another. way 45. The document is structured rights structurally

makes the sand removal linguistically separate both and flowage rights. the from water regard provisions structure, 46. With relating rights flowage to the water are listed first and constitute the bulk of the document. The document supported further enumerates that the is by parties, per- consideration, witnessed and petual. rights contrast, In the sand removal are ad- constituting separate ancillary last, dressed almost paragraph, single of one sentence. regard language,

¶ 47. With the text of the sand provision, removal both the words used as well as distinguishes grant omitted, those of sand removal immediately preceding grant from of water flowage rights. provision The sand removal not use does "easement;" instead, the word it uses the words "right privilege." assigns," The words "heirs and grant flowage, used of water are omitted from the provision; granted only sand removal sand removal is [Carl Nemitz]." "the Grantee While statement that the sand removal is limited to the use for the purpose cranberry "perpetual" cultivation, the word Finally, is not used. document's title is an "Ease- ment for Flowage Rights." The title makes no mention of sand removal and the related to grant removal, sand which instead set forth as a "further right and privilege."5 Thus, explicit repeated terms of the

document's sand removal it provision distinguish from the transferable water The sand re- flowage rights. ("further") provision moval is a separate and it is grant, a made grant personally to Nemitz. 49. I agree County with the that the

¶ cumulative effect of these structural and is linguistic distinctions communicate the intent parties' grant of the of sand removal personal be to Nemitz and not If transferable.6 this intent is not it flatly unambiguous, is certainly the most reasonable interpretation intent of the based on the source for parties, primary determining that intent —what is written within the "four corners" of the document itself.

5 Contrary assertion, majority's reading to the the docu creating only ment as an easement flowage rights water does disrupt syntax. the document's The sand removal may reasonably read as a license rather than as an easement. It may is well-established that licenses and easements involve type quantity Furthermore, may same of use. licenses conveyed in also be written original documents between the parties using language "grant." coupled such as When with writing land, a conveying an interest in such as the easement here, flowage rights may for a written license become an reasonably irrevocable license. This for parties' accounts inclusion of the license in the 1977 grants document that also Thus, flowage rights. the easement in single a easement is easement, created —one explains one license—which the title's singular reference Flowage Rights." to a "Easement for Evangelical Wis., Schwartz Soc'y v. Deaconess (1970). 432, 2dWis. 175 N.W.2d225 then, the majority ultimately 50. Surprisingly interpretation concludes that this reasonable document cannot be because an controlling equally from the interpretation gleaned majority's reasonable (erroneous) 706.10(3). Stat. of Wis. application

II 706.10(3), I turn to Wis. Stat. which majority determinative, concludes is the stat- although ute plays relatively minor role briefs. parties' I the text of the began by interpreting document, and I shall now to the text of the proceed majority statute. The be- places statutory history fore text. The statutory majority begins its discussion not with the text of Wis. Stat. but with recitation of statutory history authority from other jurisdictions. I majority op., See 15-20. follow the ¶¶ method, more usual with the text beginning statutory and then addressing statutory and other history sources of intent. legislative

A 706.10(3) § clauses, Wisconsin Stat. has two ¶ complete by each itself and each of capable standing as a separate 706.10(3), § sentence. The text of Wis. Stat. when properly reads as follows: parsed,

not be ^[1] In conveyances necessary to create or lands words of inheritance shall convey a fee, ^[2] every conveyance shall pass all the estate or interest grantor appear unless a different intent shall by necessary expressly implication or in the terms of added.) conveyance (formatting emphasis such 706.10(3) ¶ I conclude that Wis. Stat. does help interpreting parties not expressed us in the intent of the apply

in the However, document. Iwere present the statute facts, to the I would nonetheless County prevails. conclude that the ¶ 55. written, As the first clause of Wis. Stat. 706.10(3) provides conveyances lands, (that words is, of inheritance words like "heirs" and "assigns") necessary convey are not to create or a fee. 56. The second clause of Wis. Stat. provides every conveyance pass shall all of the grantor estate or interest of the unless a different implication appears expressly by necessary implica- conveyance. tion in the terms of such governs "conveyances 57. The first clause apply lands." It does not to the document at issue in the present case because in Wisconsin an easement is not a conveyance present land, and the case does not conveyance involve creation or of a fee. 58. At in Wisconsin, least an easement is Accordingly,

an interest in land, not the land itself. conveyance right-of-way, example, of a for strip of of land itself.7 This court has repeatedly affirmed that an easement "does not create right land," an estate in but rather "a to use the land of special purpose another for a not inconsistent with the general property abundantly in the owner."8Thus it is McDonald, 338, 344, Hunter v. 78 Wis. 2d 254 N.W.2d 282 (1977). permanent

"An land, easement is a in another's enjoy fully with a it and without obstruction." Id. at 343 omitted). (quoted source McDonald, Hunter v. 2dWis. 254 N.W.2d 282 (1977).

637 convey granting of an easement does not clear that the only right an holder but a title to the land to easement privilege.9 or

¶ easement, docu- Therefore, 59. as an the 1997 (titled Flowage Rights") "Easement for is not a ment conveyance By terms, land. the statute's own this of by therefore not affected the first clause of document is 706.10(3). § Wis. Stat. statute, I Based on the text of the therefore 706.10(3) 60.

conclude that the first clause of Wis. Stat. applies conveyances, "conveyances a subset of of convey conveyance lands" that "create or a fee." flowage conveyance the easement for water convey- rights in sand removal the instant case are not scope creating ances of land a fee within the of the first 706.10(3). clause of Wis. Stat. phrase Furthermore, 61. "unless a different appear expressly necessary implica-

intent shall 706.10(3), tion," contained within second clause modify does not or affect the first clause of the sen- applies conveyances tence, which of lands and cre- ation of fee interests. important point. A final The fact necessary

words of inheritance are not convey creating of land a fee to a transferable estate or interest does not mean that words of inheritance are meaningless they may A

if are used. drafter use words "assigns" like "heirs" and to manifest the intent of the required convey parties, if their use is not even statutory interest in land. Indeed the form transferable warranty Laws,10 deeds set forth in the 1874 in the Co., v. John WeekLumber 377, 381, Polebitski Wis. (1914). 147 N.W.703 316, § ch. Laws provide 1878 Statutes11 and in the 1967 statutes12 for conveyance "grantee, assigns," to the his heirs and even provide when the statutes of words inheritance are necessary. not I turn 63. now the second clause of Wis. Stat. 706.10(3). "conveyances." It covers The use of the "conveyances" interpreted referencing,

word can he as by, as thus controlled the first clause to address only conveyance conveys a of land that creates or a fee. applicable If so, the second of clause is not statute here for the same reasons that the first clause applicable. statute is not majority interprets "convey- 64. The the word broadly

ance" in the second clause of the statute more conveyance any include a land, interest of thus including conveyance in the instant case. This interpretation supported by 706.01(4), is Wis. Stat. purposes chapter which states that for the word "conveyance" evidencing means "a written instrument a governed by chapter, transaction requirements this that satisfies the subject 706.02,

of s. s. 706.25." Applying interpretation "convey- ¶ 65. this conveyance ance," a an is, in land, right privilege, of an or or shall, easement pass clause, under the second all the estate or interest of grantor grantee the appear expressly to unless a different intent shall by necessary implication.

or ¶ 66. The words "estate" and "interest" are already defined this second clause. The court has declared that an estate;13 easement does not create an 1878, § Wis. Stat. 1967 Wis. Stat. 235.06. supra of the easement however, the holder If,

implication. she owns say us a full interest —let than owns less thus a estate and in dominant interest the one-half conveys all then in the easement —she interest one-half a different intent shall unless interest of her one-half necessary implication. by or appear expressly language the precise majority bypasses The 68. ¶ 706.10(3) breezily and Stat. of Wis. and structure the statute clauses, that claiming the two paraphrases in land of an interest transfer every that "provides convey- the interest... unless title to that full conveys neces- or 'expressly intent a different ance evinces This improper 23. Majority op., ¶ sary implication.'" in an erro- results statutory language the expansion case. to the present of the statute neous application title" for the "full The substitutes majority does not majority and "interest." "estate" words "interest" can be and the words "estate" why explain "full title" and does the words transformed into "full title." of the words the significance explain and mixes majority the way, another 70. Stated Stat. clauses of Wis. from the two matches words (1) inheritance that words of conclude to lands, of an any conveyance in necessary not be shall (2) land; every convey- in interest estate, or of an words automatically implies in land an interest ance of (that of an is, every inheritance to grantee includes the in land interest (3) future); transfer the same interest the that a conveyed intent, different such as the intent that the appear nontransferable, land be must ex- pressly by necessary implication in the terms of the conveyance. interpretation plain This contravenes Grammatically,

text of the statute. text severable may so that each clause stand alone. Neither clause of other, statute refers to the and each clause covers majority different circumstances. Yet the uses words modify majority's from each clause other. The construction seems to use the words of the first clause addressing modify words of inheritance to the second majority clause. At same time takes the words appear," appear "unless a different intent shall which modify clause, the second them to construes the first clause. problems,

¶ 72. In addition to these textual majority give legislature's explicit fails effect interpret chapter instruction on how to If a 706. statute chapter ("Conveyances within 706 of the statutes of Titles") Property; Recording; ambigu- Real is as viewed legislature provided conflict, ous or there a has interpretation: interpret chapter liberally rule of so parties as to effectuate the of intentions who have 706.001(1) (3) good § acted in faith. Wisconsin Stat. provide part in relevant follows: as

(1) chapter govern every [T]his shall transaction created, aliened, any which interest in land is mort- gaged, may or in assigned be otherwise affected law or equity....

(3) construed, in cases liberally chapter shall be This effectuate the ambiguity, so as to or

of conflict faith. good acted in parties who have intentions of majority's application my of Wis. ¶ view, In 73. 706.10(3) specific § rule of construc- this violates Stat. parties by defeating manifest of the as the intent tion the document itself. terms of B majority's Contrary treatment, brief to the 74. statutory history my confirms that review 706.10(3) § should be read Stat. clauses of Wis. two given independently, its As the an effect of own. each majority explains its first enacted at Wisconsin Chapter today's in 1874. Section form of 1874 read as follows: of Wisconsin 316 of the Laws state, hereafter made this conveyances of land In all necessary in order to not be words of inheritance shall convey fee. create or equivalent clause first

This is the near-verbatim 706.10(3). present legislature then amended the In language that would be- It added additional statute. present clause of the of the second come the forerunner 706.10(3).14 history legislative thus version of provides: Annotated of 1878 Statutes Wisconsin lands, conveyances words of inheritance shall In Section every grant convey lands necessary a fee and to create or not be any pass or interest of the shall all the estate therein pass grantor, a less estate or interest shall unless the intent necessarily implied by express in the terms of appear terms or grant. such 642 composed confirms that of two distinct origins independent opera- clauses with distinct tion. majority's statutory history

¶ 76. The and its use authority from other states do not contravene that provide persua- the statute has two distinct clauses or why sive reason words from each should be read into the other. majority

¶ 77. The notes that the 1878 amend- ment added the second clause from a York New statute. majority The cites the statute, New York 1 Rev. St. 748 § (quoted Whitney 1 Richardson, v. 861, 13 N.Y.S. 862 (N.Y. 1891). Whitney interpret The case does not statute. majority argues

¶ 78. The that New York case law period applied from the same the New York statute to agree applied easements. I that the second clause can he to easements. (1888), Munson, 79. Nellis v. 108 N.Y. 457 majority

on relies, which the not, does however, inter- pret statute, New York Rev. St. 748 provision legislature. relied on the Wisconsin Rather, interprets provision, Nellis a different New York 3 Rev. dealing delivery St. with execution and of docu- relating ments to easements.15 majority's The reference to case law from jurisdic other inapposite. tions is are statutes not the same as Wis. Stat. 706.10(3). The cases revolve around the words "heirs" or "assigns." The proposition cases stand for the these words See, need not be used and that the parties intent controls. Krotz, e.g., Karmuller v. (1865) (holding 18 Iowa 352 use of the term "heirs" way is not essential to make the transferable; Redfern, Brown v. examine parties); intent of (Mo. 1976) (words S.W.2d 725 or "assigns" required; "heirs" parties examine controlling intent as to determine that suggests, majority opinion Nothing in the conclusively York establishes, that the New less much clause) (which adopted second as the Wisconsin statute separate providing standards two read as should not be conveyances subject affecting separate matters within majority's large. effect is that the The cumulative at § 1, statute, 1 St. 748 Rev. on the New York reliance provides importing and effect the substance basis for no 706.10(3) § of the into the context clause of of the first importing and effect of the substance clause or second clause. context of the first clause into the the second C interpretation apply proper I to 81. Were 706.10(3), assuming should be the statute Wis. Stat. County prevails. applied all, at transferring County land but was 82. The land, the first clause of Wis. Stat. so an interest 706.10(3) apply. of the This is the clause does not any In of inheritance. that addresses words statute previously, the fact that the words event, as I stated convey necessary to a transferable are not inheritance of inherit- does not mean words or interest estate they especially meaningless used, are when ance are may selectively. they A drafter use such are used when parties, if even their manifest the intent of words to convey required a transferable interest use is not required that where the deed was created express an easement Osceola, Presbyterian Church appurtenant); the easement be 1916) (Iowa Harken, (citing N.W. 692 County v. Clarke parties determines that intent Karmuller v. Krotz to show land; holding that the reserva transferability of an where intended appurtenant an easement tion at issue was land, grantor personally). remaining not the benefit the my In view, land. deliberately the drafter of the document at issue express

used different words to different intents.

¶ 83. The second clause Wis. Stat. applies. The second clause is silent about the effect of conveyances words of inheritance on of an estate or an conveyance interest less than a of the land itself. The simply second clause indicates that whatever estate or grantor, interest is held the "all the estate or inter- passed by conveyance. est" shall be From the words right document, of the I conclude that to sand passed only removal was nontransferable and to the grantee. "right privilege

¶ 84. The and to remove sand" was subject apparent to two limitations that are from the language of the First, document. it is conditioned on its purpose cranberry upon use "for the culture adjacent Grantee's Second, lands." the transfer is made "Grantee," to the without In words inheritance. juxtaposition Flowage, with the Easement for Water necessary implication right is that the sand removal to the "Grantee" and not to the "heirs Grantee's assigns." and necessary The fact that words of inheritance are not convey conveyance a fee (covered by land the first clause of Wis. Stat. 706.10(3)), does not make them irrelevant when the parties specifically selectively choose to use or omit conveyance such words of an interest in land. summary, conveyance ¶ 85. In I conclude that the of the sand removal to Nemitz was a of a personal, privilege. non-transferable I do not bearing upon majority see the of the statute which the following relies, and I would resolve the matter seeking parties by usual rule of interpreting the intent of the language contained in the instrument 706.10(3), I I Wis. Stat. apply if were itself. Even interpretation majority's cannot with agree I what believe Following of that statute. application statute, I would proper interpretation be the Stat. under Wis. County prevails conclude that 706.10(3). forth, I dissent. reasons set 86. For the that Justice ANN to state I am authorized this joins opinion. BRADLEY WALSH See notes and accompanying 8-10 text. anof grantor estate. The not an is privilege or estate. an passing is not easement his convey may easement of an The grantor if an easement, Thus however. in the "interest" or her in- easement, the entire conveys the holder easement transferred, in the easement holds the grantor terest necessary intent expressed there is a different unless

Case Details

Case Name: Borek Cranberry Marsh, Inc. v. Jackson County

Court Name: Wisconsin Supreme Court

Date Published: Jul 21, 2010

Citation: 785 N.W.2d 615

Docket Number: 2008AP1144

Court Abbreviation: Wis.