¶34 Wisconsin Stat. § 706.10(3)'s predecessor was adopted in 1878 (according to the Borek majority), and Whitney, the New York Supreme Court decision on which it relies, was decided over a decade later in 1891. Whitney, the Borek majority claimed, was based on a New York Court of Appeals decision, but even that decision was rendered in 1888-a full decade after the statutory enactment. Borek, 328 Wis.2d 613, ¶19 (citing Whitney, 13 N.Y.S. at 862 (citing Nellis v. Munson, 15 N.E. 739, 741 (1888))) . For this reason alone, the New York cases are no more persuasive than decisions from any other state-notwithstanding the Borek majority's fallacious claim that they deserve special weight because
Immunity from suit failing, the defendant contests the merits. A grant in fee or of a freehold estate "does not take effect as against a subsequent purchaser," even though a purchaser with notice ( Nellis v. Munson, 108 N.Y. 453; Chamberlain v. Spargur, 86 N.Y. 603), unless the grant is acknowledged or unless "its execution and delivery" are "attested by at least one witness" (Real Property Law, sec. 243; Consol. Laws, ch. 50). The grant of this easement was neither acknowledged nor attested.
Faced with the question of whether that statute applied to easements, the Supreme Court of New York concluded that it did, holding that an easement was an "estate in fee" under the statute. Whitney, 13 N.Y.S. at 862 (interpreting Nellis v. Munson, 15 N.E. 739, 741 (N.Y. 1888)); see also N.Y. Jur. 2d Easements, § 30 (1997) ("The statute providing that the term `heirs' or other words of inheritance are not necessary to convey an estate in fee simple also applies to the creation of an easement. . . .").
Each implies such estate in the land as may be necessary to the enjoyment of the right. Each is incorporeal real property. Incorporeal real property is defined to be a right issuing out of or annexed to a thing corporeal, and consists of the right to have some part only of the produce or benefit of the corporeal property, or to exercise a right or have an easement or privilege or advantage over or out of it. ( Nellis v. Munson, 108 N.Y. 453; Long Island R.R. Co. v. Garvey, 159 N.Y. 334.) Each may be and commonly is attached to or exists for the benefit of land (known as the dominant tenement) other than that charged, known as the servient tenement. If held by reason of the ownership or possession of the dominant tenement it is regarded and defined as appurtenant to such dominant tenement, and is, of course, assignable and inheritable. ( Nellis v. Munson, 108 N.Y. 453.) Each may, however, be held and enjoyed by an individual or party, distinct from any ownership of any lands or dominant tenement, and is then regarded as held and enjoyed in gross.
In view of the admission that plaintiffs acquired title with knowledge of the power line and poles, the easement agreements and related maps should have been received as bearing upon the existence of equitable rights in defendant to the maintenance of the wires and poles (only one of which was shown to be on plaintiffs' premises) along the northerly line of plaintiffs' property. The case of Nellis v. Munson ( 108 N.Y. 453), relied on by plaintiffs, does not suggest a contrary result. In distinguishing Nellis, and another case, in City of New York v. New York South Brooklyn Ferry Steam Transp. Co. ( supra, p. 26) the Court of Appeals said: "All that they decide is the effect of notice when restricted to the deed and nothing else.
The act amending the charter of the Harlem added to the agreement the advantages of a franchise. Owensboro v. Cumberland Tel. Tel. Co., 230 U.S. 58, 65; Nellis v. Munson, 108 N.Y. 453, 460; Hall v. Turner, 110 N.C. 292; Proprietors of Locks v. Boston M.R. Co., 245 Mass. 52. The interest in the Grand Central Terminal is an estate.
It is well established that a valid franchise can be granted only when the provisions of Section 74 of the Greater New York charter are complied with in every respect. See Ghee v. Northern Union Gas Co., 158 N.Y. 510, 53 N.E. 692; Greenberg v. City of New York, 152 Misc. 488, 274 N.Y.S. 4; Loos v. City of New York, 257 App. Div. 219, 13 N.Y.S.2d 119; City of Long Beach v. Public Service Commission, 249 N.Y. 480, 164 N.E. 553; People ex rel. Barron v. Knapp, 208 App. Div. 127, 203 N.Y.S. 76; and Nellis v. Munson, 108 N.Y. 453, 15 N.E. 739. People v. O'Brien, 111 N.Y. 1, at page 41, 18 N.E. 692, 699, 2 L.R.A. 255, 7 Am. St.Rep. 684, distinguishes between a franchise and a mere license or privilege during the lifetime of the grantee and revocable at the will of the State. It goes on to say:
Winstead Savings Bank v. Spencer, 26 Conn. 195; 26 C.J.S. 229, 318. A grant in fee or of a freehold estate does not take effect as against a subsequent purchaser, even though a purchaser with notice (Nellis vs. Munson, 108 N.Y. 453, 15 N.E. 739; Chamberlain vs. Spargur, 86 N.Y. 603), unless the grant is acknowledged, or unless its execution and delivery are attested by at least one witness (Real Property Law, 243, Consol. Laws Chapter 50). The grant of this easement was neither acknowledged or attested. The secretaries of the two corporations signed their names as part of the execution of the instrument, each for his own principal, and not to attest an execution already completed.
An acknowledgment may be made an essential part of a deed transferring interests in community property, or in a homestead estate, or in transfers between husband and wife, and in other instances; and unless there is a compliance with the provisions of the statute regulating such transfers, the conveyance is void. Joiner v. Firemen's Ins. Co. 6 F. Supp. 103. Hutchinson v. Stone, 79 Fla. 157. McKinney v. Merritt, 35 Idaho, 600. Wise v. Raynor, 200 N.C. 567. Potter v. Steer, 95 N.J. Eq. 102. Koperski v. Wira, 97 N.J. Eq. 88, Chamberlain v. Spargur, 86 N.Y. 603. Nellis v. Munson, 108 N.Y. 453. Jefferson County Bank v. Hale, 152 Tenn. 648. Hanley v. Richards, 116 W. Va. 127. General Laws (Ter. Ed.) c. 209, § 3, provides that "conveyances of real estate other than mortgages, between husband and wife, shall be valid to the same extent as if they were sole, except that no such conveyance of real estate shall have any effect, either in passing title or otherwise, until the deed describing the property to be transferred is duly acknowledged and recorded" in the proper registry of deeds.
The two estates are independent and the conveyance of one does not affect the other. In Nellis v. Munson et al., ( 108 N.Y. 453) in holding that an easement was an interest "in fee or of a freehold estate" within the meaning of a statute requiring that the conveyance of such an interest must be acknowledged, we said (p. 460): "Washburn in discussing the distinction between an easement and a license, says that 'an easement always implies an interest in the land, in or over which it is to be enjoyed. * * *' And further says, 'the ownership of an easement and that of the fee in the same estate are in different persons. Nor does the interest of the one affect that of the other, so but that each may have his proper remedy for an injury to his right, independent of the other.