Opinion
No. 75-116.
Submitted on briefs February 2, 1977. —
Decided March 1, 1977.
APPEAL from a judgment of the circuit court for Green Lake county: JEROLD E. MURPHY, Circuit Judge. Affirmed.
For the appellants the cause was submitted on the brief of Henry B. Buslee of Fond du Lac.
For the respondent the cause was submitted on the brief of Molbreak Law Office of Madison.
The appeal is taken by the plaintiffs-appellants, Judson Rikkers and Dorothy Rikkers, from a judgment dismissing the plaintiffs-appellants' causes of action for nuisance and trespass.
Robert E. Ryan, defendant-respondent, is the owner of a parcel of land in Green Lake, Wisconsin. It is bounded on the north by Illinois Avenue and on the south by Green Lake. Immediately adjacent to the east of Ryan's lot and 320 feet south of Illinois Avenue lies a parcel of land owned by Judson and Dorothy Rikkers, plaintiffs-appellants.
The issue in this case arises over the boundary of an easement, purportedly on the Rikkers' parcel, created by the Rikkers' predecessor in title, William Burling. Prior to 1952, Burling owned both parcels in question, as well as the land north of the Rikkers' parcel up to Illinois Avenue. This entire piece of land, bounded on the north by Illinois Avenue, on the south by Green Lake and owned by Burling, was known as Lot 1 and the west 80 feet of Lot 2 of Mason Brayman's Subdivision, Lot 1 lying to the east of Lot 2.
Burling granted the easement in question along with the conveyance of the parcel now owned by Ryan to Ryan's predecessor by a warranty deed dated May 8, 1952. That warranty deed conveyed:
"The west 110 feet of Lot 1 of Mason Brayman's Subdivision [parcel now owned by Ryan] . . . together with an easement for ingress and egress 20 feet wide in and over the property immediately abutting to the east of the parcel hereby conveyed and running south from the north line of said Lot 1, to a point opposite such garage as grantees may locate on the parcel hereby conveyed, such point however, in no event to be more than 400 feet south of said line."
Subsequently, Burling conveyed the rest of his land to others, including the parcel he conveyed to the Rikkers, adjacent to Ryan's land and 320 feet south of Illinois Avenue.
The record shows that Ryan took possession of his parcel on May 20, 1971, and the Rikkers took possession of their parcel on or about May 30, 1971. At the time Ryan took possession, a fence commenced at Illinois Avenue, ran along the east boundary of the Ryan parcel, between the parcel and the easement, and stopped at the edge of the lake. An opening existed in the fence at a point approximately 360 feet south of Illinois Avenue to permit entrance onto the Ryan property from the easement driveway. Apparently, at this time, the roadway upon the easement terminated at this opening. Almost immediately after he took possession and just before the Rikkers took possession, Ryan extended the roadway to a point 400 feet from the southern edge of Illinois Avenue. He further constructed a second opening in the fence at the end of the newly extended driveway to facilitate turning an automobile around, by going in one opening and out the other, for ingress and egress.
The Rikkers commenced this action, alleging Ryan had extended the driveway beyond the southern boundary of the easement and thus caused a nuisance and trespass. Their major contention at trial was that the 400 foot easement was to be measured from the centerline, not the southern edge, of Illinois Avenue.
After a trial to the court, the trial judge concluded the easement commenced at the southern edge of Illinois Avenue and dismissed the complaint. The Rikkers appeal.
The following issue is presented on appeal: Is the extent of the easement to be measured from the south line of Illinois Avenue?
This case involves the construction of the deed granting the easement to Ryan's predecessor in 1952. Deeds are construed as are other instruments, Joseph Mann Library Ass'n v. Two Rivers, 272 Wis. 441, 446, 76 N.W.2d 388, 391 (1956), and thus the purpose of the court is to ascertain the intention of the parties. Flynn v. Palmer, 270 Wis. 43, 47, 70 N.W.2d 231, 233 (1955).
Our first step in construction of a deed is to examine what is written within the four corners of the deed, for this is the primary source of the intent of the parties. Grosshans v. Rueping, 36 Wis.2d 519, 528, 153 N.W.2d 619, 623 (1967). If the language of the deed is unambiguous, then its construction, as the construction of other unambiguous instruments, is purely a question of law for the court, but when there is an ambiguity, the sense in which the words therein are used presents question of fact. 6 Thompson, Real Property sec. 3022, at 450 (1962); 26 C.J.S. Deeds sec. 108, at 912-13 (1956); Patti v. Western Machine Co., 72 Wis.2d 348, 353, 241 N.W.2d 158, 161 (1976).
Also, where a deed is susceptible to only one interpretation, extrinsic evidence may not be referred to in order to show the intent of the parties. Grosshans, v. Rueping, supra at 528, 153 N.W.2d at 623.
In support of their contention that the language "north line of Lot 1" means the centerline of the adjacent Illinois Avenue, the Rikkers primarily rely upon the rule of law that the conveyance of property abutting on a street or highway transfers the legal title to the land to the center of the adjacent street or highway, in the absence of a clear intent to the contrary. Grunwaldt v. Milwaukee, 35 Wis.2d 530, 539, 151 N.W.2d 24, 30 (1967).
The above rule, however, has been held by this court not to apply where the word "lot" is used to indicate a reference point in the description of land conveyed by deed. The case of Wegge v. Madler, 129 Wis. 412, 109 N.W. 223 (1906) involved the conveyances of two parcels of land out of a larger parcel which consisted of lot 1 and lot 2. Lot 2 was immediately adjacent to the south of lot 1. These two lots were situated at the southeast corner of the intersection of Ogden Avenue and Van Buren Streets; thus lot 1 was bounded on the north by Ogden Avenue, and both lots were bounded on the west by Van Buren Street. The description of the land conveyed to the plaintiff commenced "at a point fifty feet east of the northwest corner of said lot 1," while the description of the land conveyed to the defendant commenced "at the northwest corner of lot 1." The dispute, of course, was as to the location of the northwest corner of lot 1, the plaintiff claiming, by the same argument advanced by the Rikkers here, that the northwest corner of lot 1 was actually located at the intersection of the centerlines of the two streets. The defendant, on the other hand, contended the corner of the lot was at the point of intersection of the south line of Ogden Avenue and the east line of Van Buren Street. The court noted:
". . . in view of the fact that the owner of such lot or land has no right to possession or occupancy of any public street or highway adjoining the same, it is not customary to mention such street or highway in making a conveyance of such lot or land." Id. at 417, 109 N.W. at 226.
Thereupon, the court held ". . . the lot must be understood to mean the land independently of the street or avenue." Id. at 418, 109 N.W. at 227.
Application of the holding in Wegge v. Madler to this case compels the conclusion that the language in the warranty deed that the easement may extend 400 feet south from the "north line of lot 1" means that distance is to be measured from the south line of Illinois Avenue, which is the north line of the land independent from the avenue. This language of the warranty deed is, therefore, unambiguous, and the trial court's conclusion as a matter of law is correct.
Moreover, even if the language were considered ambiguous, and a question of fact presented as to the intention of the parties, the extrinsic evidence submitted at trial by the Rikkers cannot establish that the trial court's finding was against the great weight and clear preponderance of the evidence. The only contrary evidence offered by the plaintiff was the testimony of William Burling, the conveyor of the easement. While Burling was not permitted to testify as to his intention in granting the easement he did testify that he believed the easement began at the centerline of Illinois Avenue. The trial judge, however, rejected this testimony for the reason that it was absolutely contrary to a survey conducted in 1955 by the county surveyor at the request of Burling and other owners of the land involved. In conjunction with this survey, a map was made and certified by the county surveyor. Furthermore, in 1958 Burling prepared a petition for direct annexation to the village of Green Lake, and to this petition. he attached a map of this property, which map was also certified by the county surveyor. Subsequent to the annexation, this map was recorded in the office of the register of deeds. Both maps, the accuracy of which Burling obviously acknowledged, represented that the easement commenced at the south line of Illinois Avenue and extended to a point 400 feet south of that line.
In a trial to the court, the trial judge determines the credibility of the witnesses and the weight of the evidence. Kleinstick v. Daleiden, 71 Wis.2d 432, 442, 238 N.W.2d 714, 719-20 (1976). As the trier of fact the court may choose to reject the testimony of a witness, and in this case the trial judge properly did so. The trial judge was entitled to rely upon the survey maps. See Hajec v. Novitzke, 46 Wis.2d 402, 413, 175 N.W.2d 193, 198 (1970). In the instant case it may not be said that the evidence presented by the plaintiffs constitutes the great weight and clear preponderance of the evidence. Therefore, the trial court's finding may not be disturbed. Milbauer v. Transport Employes' Mutual Benefit Society, 56 Wis.2d 860, 862-63, 203 N.W.2d 135 (1973).
Since both causes of action alleged by the Rikkers depend entirely upon the question of whether Ryan extended the driveway beyond the 400 foot limit of the easement, and measuring from the south line of Illinois Avenue as we hold, there is no evidence which establishes Ryan overstepped that limit, the trial court properly dismissed the Rikkers' complaint.
By the Court. — Judgment affirmed.
DAY, J., took no part.