Opinion
May 9, 1951 September 14, 1951 —
November 6, 1951.
APPEAL from a judgment of the circuit court for Milwaukee county: OTTO H. BREIDENBACH, Circuit Judge. Reversed.
For the appellant there were briefs by William J. McCauley, district attorney, Oliver L. O'Boyle, corporation counsel, and Robert P. Russell, assistant corporation counsel, attorneys, and Carl B. Rix of Milwaukee of counsel, and oral argument by Mr. O'Boyle and Mr. Rix.
For the respondent there were briefs by Lines, Spooner Quarles and Quarles, Spence Quarles, attorneys, and Louis Quarles, Maxwell H. Herriott, and Edward H. Borgelt of counsel, all of Milwaukee, and oral argument by Mr. Herriott.
This is an action to quiet title to certain real estate located in the Milwaukee harbor of Lake Michigan, brought by Milwaukee county, plaintiff, against Milwaukee Yacht Club, a Wisconsin corporation, defendant, and the city of Milwaukee, a municipal corporation, interpleaded defendant. Plaintiff appeals from a judgment entered November 14, 1950, dismissing its complaint.
Following negotiations between the Milwaukee Yacht Club and the city of Milwaukee, the common council of said city on October 28, 1895, adopted the following resolution:
"Resolved, that permission be and is hereby granted to the Milwaukee Yacht Club, to occupy a space of sixty (60) feet square of ground, owned by the city in connection with the flushing works, in the northwest quarter of section 22, in the eighteenth ward of the city of Milwaukee, said sixty-feet-square piece of ground lying immediately northeasterly of the northeasterly piece of the slip at said flushing works and next adjacent to the beach, for the purpose of locating thereon a yacht clubhouse, said clubhouse to be used for no other purpose than that of the Milwaukee Yacht Club; said clubhouse to be removed whenever the public interest should so require and upon resolution to that effect adopted by the common council. This resolution shall not be so construed as to constitute the said Milwaukee Yacht Club a tenant of the city of Milwaukee."
Both the city of Milwaukee and the Yacht Club thought the land mentioned in said resolution was owned by the city. In the year 1906 an action was instituted by certain owners of upland property in the city of Milwaukee to determine the ownership of land formed in the harbor by accretion. The city of Milwaukee was a defendant in that action, but neither the Yacht Club nor the county was a party. In that case, Hathaway v. Milwaukee, 132 Wis. 249, 111 N.W. 570, 112 N.W. 455, it was determined that the property occupied by the Yacht Club was owned by the Chicago North Western Railway Company. In 1913 the railroad conveyed the premises occupied by the Yacht Club and other lands to the city of Milwaukee. In 1936 the electors of the city of Milwaukee decided by special referendum to transfer title to the city's parks and parkway system and the lands constituting the same to the plaintiff, Milwaukee county, upon condition that the county operate and maintain said lands and improvements forever as public parks and parkways. Following the referendum the common council of the city of Milwaukee directed its proper officers to convey the parks and parkway premises to the county. These lands included what was known as the McKinley Beach area, of which the Yacht Club site was a part. Because the Yacht Club was occupying a portion of the premises to be conveyed, the city attorney of Milwaukee suggested that the county accept a quitclaim deed to all of the premises from the city. The county insisted upon a warranty deed, and on November 12, 1936, the city executed and delivered to the county a warranty deed intending to convey all lands and improvements thereon then administered by the city for parks and parkway purposes. Later it was discovered that there was a mistake in the description of one of the several parcels of land involved and a new deed, dated September 19, 1938, was executed by the city and delivered to Milwaukee county. Both deeds contained the following provision:
"The above-described premises are sold and conveyed upon the further express condition that the Milwaukee Yacht Club will be permitted the occupancy of its present site."
The trial court made and filed findings of fact and conclusions of law. The conclusions of law were as follows:
"1. Plaintiff, Milwaukee county, is estopped to challenge the conditions of the warranty deed dated November 12, 1936, accepted by plaintiff and upon which it relies for its claim to title in the `present site' of the Yacht Club, which conditions also appear in the correction deed dated September 19, 1938, one of said conditions being as follows:
"`The above-described premises are sold and conveyed upon the further express condition that the Milwaukee Yacht Club will be permitted the occupancy of its present site.'
"2. Judgment should be entered dismissing the above-entitled action upon its merits, with costs."
The trial court decided this case solely upon the ground that the plaintiff is estopped to challenge the conditions contained in the warranty deed accepted by it, The court stated the rule as follows:
"A person cannot claim under an instrument without confirming it. He must found his claim on the whole, and cannot adopt that feature or operation which makes in his favor, and at the same time repudiate or contradict another which is counter or adverse to it." 10 R.C.L., Estoppel, p. 681, sec. 10.
That is a correct statement of the general rule. However, this rule has exceptions and qualifications that modify it. One such qualification is stated as follows:
"In determining whether a deed creates an estoppel, every part of it should be given effect, if this can be done, and if the deed evidences conflicting intentions on its face, the object of the grant being considered, effect should be given to what may appear to be the controlling intention of the grantor. The estoppel will be limited by the intention of the parties." 31 C.J.S. Estoppel, p. 224, sec. 44.
The object of the grant was to transfer all of the real estate administered by the city for park and parkway purposes to the county, pursuant to the referendum. The provision as to the Yacht Club was not a material part of the agreement but was a collateral matter, so far as the arrangement between the city and the county was concerned. The provision is ambiguous, in that it does not describe the property occupied by the Yacht Club, it does not fix the duration of any right of the Yacht Club, nor does it refer to any instrument or agreement by which the Yacht Club obtained any rights. The record discloses that the Yacht Club had at best a revocable license to occupy a tract of land sixty feet square. The members of the city attorney's staff who drafted the deed were reputable and conscientious men. The presumption is that they were doing their duty as city officials and were merely attempting to protect the city against any possible liability under its covenant of warranty contained in the deed. It was not their intention, nor did they have any right, to enlarge any interest the Yacht Club might have, nor to create any new rights in the Yacht Club. It has been held by this court that the words "Reserved Public Square" written upon a block in the recorded plat of a village do not clearly and necessarily show that it is dedicated to general public use and that it may be shown by other evidence that the purpose was to dedicate it to one particular public use. Daniels v. Wilson, 27 Wis. 492.
While under the general rule the county might be estopped to deny that the provision as to the Yacht Club is in the deed, it is not estopped to show the real intention of the parties to the deed and to have the same interpreted and construed. Under the circumstances here, where the transaction is between municipalities and where the land has been dedicated to a public use, the plaintiff is entitled to a strict construction of the provision. The city took a very minor part in the proceedings before the trial court, and it failed to file a brief or to make any argument on the appeal. Upon the record before us, the decision and judgment of the trial court must be reversed.
The Yacht Club contends that it has gained title to the premises occupied by it by adverse possession. Its original occupancy of the premises was permissive, and so far as the city and county are concerned it has been permissive ever since. No title by adverse possession can be based upon such occupancy.
The Yacht Club also claims that the land occupied by it was not included in the deed. It calls attention to the fact that on the ballot used in the referendum appeared this language:
"All lands and improvements thereon now administered by the city of Milwaukee, board of park commissioners, for park and parkway purposes only, exclusive of boulevards, streets, and nurseries, . . ."
Also, that the common council of the city of Milwaukee, by resolution, directed the proper officers of the city of Milwaukee "to transfer the ownership to Milwaukee county of all lands and improvements thereon administered by the city of Milwaukee, board of park commissioners, for park and parkway purposes only, exclusive of boulevards, streets, and nurseries. . . ." The land occupied by the Yacht Club was included in the metes-and-bounds description of the property conveyed. It was part of the land acquired by the city for park purposes, and a reading of the entire deed shows no intention on the part of the city to exclude the Yacht Club site.
Upon the record here, therefore, it appears that the city conveyed to the county the land occupied by the Yacht Club, as well as other lands used for park and parkway purposes; that the deed transferred all of the interests of the city in the property; that the Yacht Club holds a mere license to occupy its present site; and that said license is subject to revocation by appropriate action on the part of the county.
By the Court. — Judgment reversed and cause remanded with directions to enter a judgment in conformity with this opinion.