Opinion
October 9, 1956 —
November 7, 1956.
APPEAL from a judgment of the county court of Oneida county, upper municipal branch: GEORGE A. RICHARDS, Judge. Reversed.
For the appellants there were briefs by Hebert Smith of Tomahawk, and oral argument by Robert G. Hebert.
For the respondents there was a brief by O'Melia Kaye of Rhinelander, and oral argument by Walter F. Kaye.
Action to quiet title. The record discloses the following facts: In October, 1946, Eugene Olszewski and Cassilda Olszewski, his wife, as joint tenants, purchased a tract of land immediately north of the built-up portion of the town of Minocqua. At that time State Trunk Highway 51 was located to the west of the tract. The land was offered for sale in smaller parcels to be used as building lots. No legal plat was prepared but the land was surveyed and sales were made by metes and bounds descriptions. In 1947, following a survey, Eugene Olszewski set a row of stakes on each side of a 50-foot strip of land leading from State Trunk Highway 51 in an easterly direction and then in a southerly direction toward the south end of the tract. In negotiating sales Mr. Olszewski used drawings or maps indicating that the 50-foot strip was to be used as a road to provide access to the lots he was selling. This 50-foot strip is referred to in the record as parcel C.
In May, 1947, the plaintiffs in this action purchased a lot in the northerly part of the tract which adjoined State Trunk Highway 51 on the west. Included in the deed was the following provision:
"It being the intention to provide rights of ingress and egress thereto and therefrom by a proposed road to be established from U.S. Highway 51."
Olszewski then hired road-building equipment from the town and graded a road over parcel C. The plaintiff R. A. DeByle also hired town equipment to grade his lot and some dirt from his lot was used as a fill upon said roadway.
In April, 1949, the defendants herein met with Mr. Olszewski upon the land and he showed them two parcels of land. At that time the road was visible and was referred to in the conversation. The Roberts then orally agreed to purchase a tract of land known as parcel A in the exhibits herein. A check for $10 was given by Mr. Roberts to Mr. Olszewski as a down payment on parcel A. Several days later they met Mr. Olszewski at a bank where they made an additional payment and orally agreed to purchase the second tract known as parcel B. At that time the defendants were handed a map by Mr. Olszewski indicating the location of the lots they had agreed to purchase, together with the roadway known as parcel C. Later they received a warranty deed to parcel A and a land contract providing for the sale to them of parcel B. They completed the payment of the land contract and received a warranty deed to parcel B on June 21, 1950. No provision regarding the roadway was included in either of their deeds.
There was testimony that lot owners and other members of the public used the roadway from 1947 until it was obstructed by the plaintiffs.
In 1951 State Trunk Highway 51 was relocated to the east of its prior location and as relocated it ran in a northerly and southerly direction through the entire Olszewski tract with lots on each side thereof. Old Highway 51 was retained as a town road. State Trunk Highway 51 as relocated included the southerly end of parcel C within its boundaries. Parcel B, owned by the defendants, adjoins the westerly boundary of the new highway, but their home was built on parcel A, facing the roadway, parcel C, to the south. To reach the new highway the defendants would have to construct a private roadway from their home to the highway, which is a considerable distance. If parcel C remains open as a roadway they will have easy access to old Highway 51. After the relocation, the plaintiffs contacted the Olszewskis and purchased parcel C. So far as the record discloses in all other sales the Olszewskis executed warranty deeds to the purchasers and furnished an abstract of title. In the sale of parcel C, the plaintiffs received a quitclaim deed and no abstract.
At the conclusion of the trial the court filed a memorandum opinion in which it found that at the time the defendants purchased from the Olszewskis, Eugene Olszewski represented to the defendants that parcel C was a road and was to continue to be a road to be used for ingress and egress to the property; that the defendants relied upon the representations of Olszewski and built their house facing parcel C in the belief that the same was and would continue to be a highway; that the highway was offered to the town but was not accepted by the town, but that the road was used by various and sundry people in the town of Minocqua, including those owning property within the tract.
The trial court stated that if Eugene Olszewski had been the sole owner of the land he had done everything necessary to dedicate the same as a road and that it had been accepted by general public use. The trial court determined, however, that Mrs. Olszewski had not made any representations and was not bound thereby. Therefore a judgment was entered on the 21st day of February, 1955, quieting title to parcel C in the plaintiffs and dismissing a counterclaim by the defendants that sought to estop the plaintiffs from denying the existence of the road. The defendants appealed from the judgment.
We agree with the trial court that Eugene Olszewski, by selling with reference to maps and drawings and by reason of the representations he made that parcel C was and would remain a road, had evidenced an intention to dedicate the same for public use as a road and that it was accepted by public user thereof. Under these findings there was a common-law dedication and acceptance of parcel C as a roadway. See Lake Beulah Protective Imp. Asso. v. Christenson, 272 Wis. 493, 76 N.W.2d 276, 77 N.W.2d 514; Galewski v. Noe, 266 Wis. 7, 62 N.W.2d 703, and earlier cases therein referred to.
We cannot agree with the trial judge that Mrs. Olszewski is not bound by the representations so made. That determination is against the great weight and clear preponderance of the evidence. We conclude from the record that Mr. Olszewski was the apparent agent of his wife and that she is bound by his acts. It is apparent from the record that she left the negotiations for the sale of their property, which was jointly owned, to her husband. So far as the record discloses he conducted all negotiations for the sale of the different lots, including those purchased by the plaintiffs and those purchased by the defendants. After the sales were arranged for by her husband she signed the necessary documents of conveyance. Down payments were made to the husband without objection, so far as the record discloses, on the part of the wife. She signed the deed to the plaintiffs which provided that rights of ingress and egress would be furnished by a road to be established from U.S. Highway 51. These various documents were recorded and thus the public had notice thereof.
The Wisconsin rule in cases of apparent authority of an agent is stated in McDermott v. Jackson, 97 Wis. 64, 73, 72 N.W. 375, as follows:
"If a third person, because of appearances for which the principal was responsible, believes and has reasonable ground to believe that the agent possessed power to act for the principal in the particular transaction, if such third person was, in the exercise of reasonable prudence, justified in believing that the agent possessed the necessary authority, then the principal is responsible to such third person the same as if the agent possessed all the power he assumed to possess."
That quotation was cited with approval in Voell v. Klein, 184 Wis. 620, 622, 200 N.W. 364.
Restatement, 1 Agency, p. 65, sec. 22, states the rule as follows:
" b. Neither husband nor wife by virtue of the relationship has power to act as agent for the other. The relationship is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority or apparent authority may indicate it in the case of husband or wife. Thus, a husband habitually permitted by his wife to attend to some of her business matters may be found to have authority to transact all her business affairs."
This rule, when applied to the circumstances in this case, requires finding that Mr. Olszewski had apparent authority to conduct the sale of their jointly owned property and that she was bound by his acts and representations. Therefore it follows that there was a proper common-law dedication and acceptance of parcel C as a roadway; that the plaintiffs had knowledge thereof and are estopped to deny the existence of the roadway. This necessitates a reversal of the judgment.
Objection was made by the plaintiffs to the competency of the defendants and some of their witnesses to testify to conversations and transactions with Eugene Olszewski on the ground that he was deceased. At the time the objections were made the plaintiffs had no satisfactory proofs of death to offer. The trial court took the testimony subject to the objections and later determined that from the entire record such testimony was competent. It would unduly prolong this opinion to review the entire record in that regard and we merely state that a study thereof convinces us that the trial court was correct in so ruling, in view of the record before us. By the Court. — Judgment reversed. Cause remanded, with directions to enter judgment dismissing the complaint of the plaintiffs and granting the relief sought by the defendants in their counterclaim.
The following opinion was filed January 7, 1957:
Plaintiffs contend that the mandate following the opinion herein is not clear where it directs that the judgment to be entered grant the relief sought by the defendants in their counter-claim. Prayer for judgment in the counterclaim was in the alternative and each item thereof cannot be granted. For the purpose of clarification the original mandate is withdrawn and the following is substituted therefor:
By the Court. — Judgment reversed. Cause remanded with directions to enter judgment (1) dismissing the complaint; and (2) declaring that plaintiffs are the owners of the real estate referred to, as parcel C in the pleadings and in the opinion, subject to the right of the public to use the same as a road.