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COURT OF APPEALS DECISION DATED AND RELEASED JULY 2, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0210-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
GARY SUTRICK and
DEBORAH SUTRICK,
Plaintiffs-Respondents,
v.
MYLES WELLNITZ and
DAWN WELLNITZ,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Oconto County:
LARRY JESKE, Judge. Cause
remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Myles and Dawn Wellnitz appeal a judgment
awarding Gary and Deborah Sutrick an eight-and-one-fourth-foot-wide strip of
land along the parties' boundaries.[1] The Wellnitzes argue that the trial court
erroneously concluded that § 80.01(2), Stats.,
sets up an unrebuttable presumption that an unrecorded road is four rods
wide. Because the court's decision is
ambiguous, we remand for specific findings.
The Wellnitzes' lot lies
to the south of the Sutricks' lot. The
Sutricks' lot is adjacent to the south line of Evergreen Road. Gary Sutrick drilled a well near the border
of the two adjoining lots. A dispute
arose whether the well was on the Sutricks' land or the Wellnitzes'
property. The starting point for the
legal descriptions of both lots is the south line of Evergreen Road. If Evergreen Road is a three-rod road, the
well is on the Wellnitzes' property. If
it is a four-rod road, the well is on the Sutrick parcel.
Kim Pritzlaff, a
surveyor, testified as an expert. He
stated that there were no records concerning the width of Evergreen Road. He based his measurements on field evidence,
such as the center of the road and fence lines along the roadway path. He testified that a fence line was located
along the south line of the road. He
further testified that when no records are present, as here, a road is
generally presumed to be four rods wide pursuant to ch. 80, Stats.
However, the road as it was used was only three rods wide.
The trial court found
that the county highway department has monumented Evergreen Road at three rods
using steel right-of-way posts and signs.
It also found that there is a record from 1912 indicating that a portion
of Evergreen Road a half-mile to the east of the disputed area is laid out as a
three-rod road. The court concluded,
however, that although the road has been maintained by the county for more than
thirty years, there is nothing recorded concerning its exact size in the
disputed area and therefore § 80.01, Stats.,
governs. The court stated: "[T]he
Court must follow the dictates of 80.01 Wis. Stats.[2] The statute uses the word 'presumption' that
it is a four rod road. The statute does
not say 'rebuttable presumption.'"
The presumption is
rebuttable. The application of a
statute to a particular set of facts is a question of law that we review de
novo. Bucyrus-Erie Co. v. DILHR,
90 Wis.2d 408, 417, 280 N.W.2d 142, 146-47 (1979). The effect of a presumption is to compel the fact finder to
reach a conclusion absent evidence to the contrary. McCarty v. Weber, 265 Wis. 70, 73, 60 N.W.2d 716,
718 (1953). Section 903.01, Stats., provides:
Except as provided by statute, a
presumption recognized at common law or created by statute, including statutory
provisions that certain basic facts are prima facie evidence of other facts,
imposes on the party relying on the presumption the burden of proving the basic
facts, but once the basic facts are found to exist the presumption imposes on
the party against whom it is directed the burden of proving that the nonexistence
of the presumed fact is more probable than its existence.
Upon proof of the
"basic facts," § 903.01, Stats.,
shifts both the evidentiary burden of production and the burden of persuasion
to the party against whom the presumption is directed. In re M.A.V. 149 Wis.2d 548,
553, 439 N.W.2d 829, 832 (Ct. App. 1989).
Here, the basic fact is
that Evergreen Road is an unrecorded public highway worked for more than ten
years. As a result, § 80.01, Stats., imposes on the Wellnitzes the
burden of proving that it is more probable than not that Evergreen Road is less
than four rods wide. The existence of
ancient fences within the four-rod width has been held to rebut the statutory
presumption that a road is four rods wide.
Threlfall v. Town of Muscoda, 190 Wis.2d 121, 131, 527
N.W.2d 367, 371 (Ct. App. 1994).
The Wellnitzes argue
that the trial court misapplied § 80.01, Stats.,
when it concluded, in effect, that § 80.01 was not rebuttable. We conclude it is ambiguous whether the
trial court misapplied § 80.01. The
trial court's opinion could be interpreted to say that the presumption is
irrebuttable as a matter of law, or that the evidence is insufficient to rebut
the presumption.
Because the Wellnitzes
have offered evidence to rebut the four-rod presumption, the trial court must
determine whether they have met their burden to prove whether it is more
probable than not that the road is less than four rods. We therefore remand to the trial court to
clarify this determination. The trial
court may admit additional evidence in its discretion.
By the Court.—Cause
remanded for further proceedings.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.