2008
WI App 144
court of appeals of
published opinion
Case No.: |
2007AP2354 |
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Complete Title of Case: |
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Opinion Filed: |
August 13, 2008 |
Submitted on Briefs: |
June 12, 2008 |
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JUDGES: |
Brown, C.J., Snyder and Neubauer, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of Aaron J. Bernstein of Law Offices of Jonathan V. Goodman of |
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Respondent |
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ATTORNEYS: |
On behalf of the defendants-respondents, the cause was
submitted on the brief of Robert G. Wixson of Winner, Wixson & Pernitz of |
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2008 WI App 144
COURT OF APPEALS DECISION DATED AND FILED August 13, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Mark Vande Zande, Debra Vande Zande, Steven Birch, Gaile Birch, Robert McDowell, Sharon McDowell, Roger Schultz and Dorothy Schultz,
Plaintiffs-Appellants, v. Town of
Defendants-Respondents. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 BROWN, C.J. In
¶2 As the circuit court did, we reject the Vande Zandes’ claims. The lake access was dedicated to public use in accord with the statutes in effect at the time. Further, the legislature has mandated that public lake or stream accesses may not be eliminated except in fairly narrow circumstances that are not present here. Finally, the Vande Zandes have not demonstrated the sort of inequitable conduct by the Town, or prejudice to themselves, that will justify an estoppel against the public’s interest in the land. We therefore affirm.
Background
¶3 The relevant facts were stipulated in the circuit court. Fred Stamm and his wife owned land on the
¶4 In 1974, the Stamms hired a surveyor to create a plat of a
proposed subdivision, the Stamm Marine Plat (“the Plat”). The Plat created fourteen parcels and also
designated a strip of land as “Public Access.”
This strip is shown to be sixty feet wide, and runs from
¶5 In 1993 and afterward, the Vande Zandes and others obtained parcels of surrounding land from Stamm. The warranty deeds conveying these properties purported to convey an undivided one-thirtieth interest in the disputed parcel. An agreement recorded with the Vande Zandes’ deed required them to make certain improvements to the parcel, which they have done.
¶6 In 2006, the Town Board advised those claiming an interest in the disputed parcel that their ownership was not valid. The Vande Zandes responded with a declaratory judgment suit against the Town. The Vande Zandes moved for summary judgment and the Town moved for a declaratory judgment in its favor. The circuit court denied the Vande Zandes’ motion and granted the Town’s, and the Vande Zandes appealed.
¶7 The Vande Zandes assert that the disputed parcel is not a public lake access for several reasons that break down into two categories. First, they claim that no public access was ever created: that the Stamms, in subdividing the Plat, did not dedicate the disputed parcel as a public access; that the Town did not properly accept this dedication pursuant to the statutory procedure; and that the public access, as dedicated and accepted, did not comply with certain technical requirements. Second, the Vande Zandes argue that even if a public access was created, it has since ceased to exist: that the Town, by its subsequent action or inaction, has eliminated the access or forfeited the right to claim it, either by discontinuance or by estoppel. We will address the first set of arguments first, beginning with the dedication of the access.
Was the Disputed Parcel Dedicated as
¶8 When land is subdivided, roads, streets, and other public
spaces are created by means of dedication to the public. See
Cohn
v. Town of Randall, 2001 WI App 176, ¶6, 247 Wis. 2d 118, 633 N.W.2d
674. There are two types of
dedication: statutory and common
law.
¶9 There is no dispute that the Stamms created the Plat and submitted it to the Town with the disputed parcel marked as “Public Access,” or that the Town approved the Plat. However, the Vande Zandes contend that the Plat failed to create this “Public Access” because it is missing required statutory language. They point to Wis. Stat. § 236.20(4)(b) (1973),[1] which states that in a final plat “[a]ll lands dedicated to public use except roads and streets shall be clearly marked ‘Dedicated to the Public.’” The statute has a companion paragraph, § 236.20(4)(c), that states “[a]ll roads or streets shown on the plat which are not dedicated to public use shall be clearly marked ‘Private Road’ or ‘Private Street’ or ‘Private Way.’” Because the disputed parcel is merely labeled “Public Access” and not “Dedicated to the Public,” the Vande Zandes contend, no public access was created.
¶10 The Vande Zandes rely on Hunt v. Oakwood Hills Civic Ass’n, Inc., 19
¶11 The court held that the words “
alone do not meet literally or substantially the requirement of a clear designation of dedication to the public required by this section. The section creates a presumption in favor of nondedication to the public while quite the contrary presumption exists in respect to roads and streets under sec. 236.04(9), Stats., which provides all roads or streets shown on the plat which are not dedicated to public use shall be clearly marked thereon ‘private’ road, street, or way. The land in issue is not a private road but a beach and is within the meaning of sec. 236.04(10) of a breathing, if not a bathing spot.
Hunt, 19
¶12 We note that although the relevant statute in Hunt
appeared to require the specific formula “dedicated to the public for use as …”
the court did not see it that way.
Instead, the court spoke of a “presumption” that land which is neither
street nor road is private, and an opposite presumption for streets and
roads.
¶13 The Vande Zandes contend that the label “Public Access” in the
Plat fails to overcome the presumption that non-street or road land is private,
just as the label “Community Beach” did in Hunt. [2] We disagree.
As the Hunt court suggested, the word “community” could have meant
either the community at large or the community living in the particular
subdivision. See id. at 117. The Hunt
court concluded that in the case before it, “community” was not intended to
mean “public.”
¶14 The Vande Zandes next argue that even if the Plat dedicated a
public access, the Town failed to take the necessary steps to accept the
dedication. The Vande Zandes acknowledge
that the Town approved the Plat, which under Wis.
Stat. § 236.29(2) “constitutes acceptance for the purpose
designated on the plat of all lands shown on the plat as dedicated to the
public including street dedications.”
Nevertheless, they submit that more was required of the Town, relying on
Gogolewski
v. Gust, 16
¶15 In Gogolewski, the court was called upon to determine whether a
strip of platted land was a public or private street.
¶16 The Vande Zandes contend that Gogolewski controls this case. They point out that Wis. Stat. § 80.38 was still in existence at the time that the Plat was filed and approved. Thus, they argue, because the disputed parcel in this case, like the one in Gogolewski, lies on unincorporated land, § 80.38 required additional action by the town board to accept any dedication of the parcel for public use.
¶17 One minor problem with the Vande Zandes’ argument is that Wis. Stat. § 80.38 (as well as the
Gogolewski
discussion, see 16
¶18 It is true, as the Vande Zandes note, that Wis. Stat. § 80.38 was still in
effect in 1974.[5] However, in 1951, the legislature created Wis. Stat. § 236.06(10). See
1951
Dedications to public accepted by approval. When a final plat of a subdivision has been approved by the governing body of the municipality or town in which the subdivision is located and all other required approvals are obtained and the plat is recorded, that approval constitutes acceptance for the purpose designated on the plat of all lands shown on the plat as dedicated to the public including street dedications.
Sec. 236.29(2). This statute, by its plain terms, nullifies the Gogolewski holding for any plats approved after the statute’s passage in 1951: a town board’s approval of a final plat constitutes acceptance of any dedications to the public made therein. No further action is necessary. See Trayton L. Lathrop, Wisconsin’s 1955 Platting Law, 1956 Wis. L. Rev. 385, 396 (1956) (“When an approved plat is recorded, it is deemed that streets and other lands dedicated to the public are accepted by the town or municipality involved. Prior to 1951 streets were not considered as accepted until opened and used or formally accepted.” (citations omitted)). The Vande Zandes’ reliance on Gogolewski is misplaced. Under Wis. Stat. § 236.29(2), the Town Board’s approval of the Plat constituted an acceptance of the public access.
¶19 This same statutory revision refutes another of the Vande
Zandes’ claims: that the disputed parcel
cannot have been dedicated as a public access because it was not “connected to
existing public roads.” See Wis.
Stat. § 236.16(3). In fact,
the disputed parcel was connected to
¶20 We therefore conclude that the Stamms’ filing, and the Town’s approval, of the Plat constituted a statutory dedication of the disputed parcel as public access to the lake in accord with Wis. Stat. §§ 236.16(3) and 236.29(2). Because a statutory dedication occurred, we need not address the Vande Zandes claims that no common law dedication occurred because the Stamms’ dedication of the public access was a “mistake.” We turn next to the Vande Zandes’ contentions that the access has been discontinued by lack of use or improvement.
Has the
¶21 Wisconsin Stat. § 80.32 governs the discontinuance of highways. A highway may be discontinued in one of two ways: if it is not “opened, traveled or worked” within four years of being laid out, or if it has been “entirely abandoned as a route of travel” and no highway funds have been spent on it for five years. Sec. 80.32(2); see also Wis. Stat. § 82.19(2) (2005-06) (specifying “vehicular” travel). The Vande Zandes contend that both conditions are met here: the public access was never “opened”; and it was abandoned as a route of travel and no highway funds were expended on it for five years.[7] The Town does not dispute this, but instead submits that the public access is not a “highway” and thus not subject to § 80.32(2).[8] Rather, the Town directs us to Wis. Stat. § 236.43, which governs the vacation of parts of a plat dedicated to public use. In the Town’s view, this section provides the only means by which a public lake access can cease to exist, and it contains requirements not met here, including that the plat be more than forty years old. See § 236.43(1)(a).
¶22 So long as one assumes that the public access here may be considered a “highway,”[9] Wis. Stat. § 236.43 and Wis. Stat. § 80.32(2) would both seem potentially available to terminate it. However, after examining the recent history of both provisions, we conclude that the legislature has chosen § 236.43 as the exclusive means for the termination of a public access to a lake, regardless of when the access was laid out.
¶23 The impetus for legislative action was Closser v. Town of
¶24 The legislature took note of our decision, and in the following
year passed 1997
¶25 Importantly, it also created Wis.
Stat. § 236.16(3)(f) (1997-98), which makes several provisions of
§ 236.16(3) retroactive. 1997
¶26 By 1997 Wis. Act 172, then, the legislature changed the law to
make several things clear: a local
government has no obligation to improve a lake or stream access, regardless of
when that access was created; a lake or stream access may not be “discontinued”
under Wis. Stat. § 80.32;
and, relatedly, a lake or stream access may be “vacated” under Wis. Stat. § 236.43 only, and only
if the governing municipality agrees. We
acknowledge that 1997
¶27 Completely aside from the foregoing discussion, we also note
that in Carroll v. Town of
Is the Town Equitably Estopped from
Claiming the Public Access?
¶28 The Vande Zandes finally argue that even if the public access
was properly dedicated and accepted, and not discontinued or vacated, the Town
should nevertheless be equitably estopped from asserting its existence. They claim that when they purchased their
property from the Stamms, their “primary interest” was whether it had lake
access so that they could install a pier.
They note the thirty-one years between the filing of the Stamm Marine
Plat and the Town’s assertion of an interest in the public access, and complain
that the Town’s claim has diminished the value of their property and made it
difficult to sell. The Vande Zandes
invoke Klinkert v. City of Racine, 177
¶29 However, the Klinkert court also stated that in
order for estoppel to arise, there must be “(1) inequitable conduct on the part
of the city, and (2) irreparable injury to parties honestly and in good faith
acting in reliance thereon.”
Estoppel is not applied as freely against the public as against private persons. “[O]nly when some affirmative action has been taken, or when there has been some great negligence or delay with relation to some matter upon which the parties have a right to rely ... will [the court] be authorized to apply [estoppel] so as to prevent manifest injustice.” The evidence must be so clear and distinct that a contrary result would amount to a fraud.
¶30 Like the plaintiffs in Cohn, the Vande Zandes “underestimate the quality of the evidence needed to establish an estoppel against a municipality.” See id. Aside from the delay (which falls within the category of “mere laches”), none of the conduct of which the Vande Zandes complain appears even to be conduct by the Town, much less “inequitable” conduct. Rather, the prejudice that they have suffered is a result of the Stamms having sold them an interest in land that was not theirs to sell. We will not remedy this harm by taking away what rightfully belongs to the public.
By the Court.—Order affirmed.
[1] Subsequent references to the Wisconsin Statutes are to the 1973 version unless otherwise noted.
[2] We note that this argument by the Vande Zandes requires them to assert that the disputed parcel is neither a street nor a road—otherwise it would be dedicated to the public, since it was not marked “Private.” We note that they make the opposite assertion in two of their other arguments, which we address below.
[3] The
court in Gogolewski explained that it was considering the question of
common law dedication because no statutory dedication had occurred, as the town
had not taken steps in accord with Wis.
Stat. ch. 80 (1931) to declare a town highway. Gogolewski v. Gust, 16
[4] See Wis. Stat. § 990.01(12) (defining “highway” to include “all public ways and thoroughfares and all bridges upon the same”).
[5] It no longer exists, having been deleted by 2003 Wis. Act 214 § 99. An earlier proposed bill drafted by the Legislative Council’s Special Committee on the Recodification of Town Highway Statutes recommended that it be recodified, with changes, at Wis. Stat. § 82.40; but this provision was not part of the final bill. The early draft can be found at http://www.legis.wisconsin.gov/lc/committees/study/2002/TOWN/files/0009_P4.pdf.
[6] The
Town passed this resolution in response to the Stamms’ quitclaiming several
roads to the Town. Because
[7] The Vande Zandes note, as evidence of abandonment, that the Town included their purported one-thirtieth interest in the disputed parcel on their tax summary, and presumably taxed them for it. Though we conclude, as the circuit court did, that the abandonment statute does not apply to the public access, we note that the circuit court ordered the Town to refund whatever portion of the Vande Zandes’ taxes was attributable to the purported one-thirtieth interest, and that the Town has not challenged this order on appeal.
[8] The
current equivalent of the old Wis. Stat.
§ 80.32(5) is found at Wis.
Stat. § 82.19(2)(c); other portions of the old § 80.32, as
revised, are found at § 82.19 and Wis.
Stat. § 66.1005. See 2003
[9] Though
we do not rest our decision on whether the access is a “highway,” we do note
that in 1957 the legislature amended Wis.
Stat. § 236.16 so that the required public lake or stream accesses
were no longer described as “highways.”
1957
[10] The
drafting records for 1997
[11] The
retroactivity granted to Wis. Stat. § 236.16(3)(c)
(1997-98) also appears to be a direct overruling of Closser. We noted in that case that the statute (then
numbered § 236.16(3)) specified that a municipality was not required to
improve a lake access. However, we held
that this provision, which went into effect in 1980, only applied prospectively
and thus did not govern the case. Closser,
212