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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                              This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
January 10, 2012
A party may file with the Supreme Court a
A. John Voelker                                                                                                                 petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                                Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                and RULE 809.62.
                                                                                                                                Cir. Ct. No.   2010CV2574
Appeal No.                                                                   2011AP1807-FT
STATE OF WISCONSIN                                                                                                              IN COURT OF APPEALS
DISTRICT III
WADE BERGER AND ILONA BERGER,
PLAINTIFFS-APPELLANTS,
V.
TOWN OF NEW DENMARK,
DEFENDANT-RESPONDENT,
WILLIAM KREUGER AND NORBERT BURESH,
DEFENDANTS.
APPEAL  from  an  order  of  the  circuit  court  for  Brown  County:
MARC  A.  HAMMER,  Judge.     Reversed  and  cause  remanded  for  further
proceedings.
Before Hoover, P.J., Peterson, J., and Thomas Cane, Reserve Judge.




No.   2011AP1807-FT
¶1                                                                                    CANE, J.    Wade and Ilona Berger appeal an order dismissing their
action  challenging  the  Town  of  New  Denmark’s determination  that their  two
parcels are of insufficient acreage for development.   They assert that the parcels
are of sufficient size when property underlying a county highway abutting their
land is included in the acreage calculation.   Further, they argue that the circuit
court erroneously determined that fee title to the underlying highway property had
been conveyed to Brown County by the Bergers’ predecessors-in-interest.
¶2                                                                                    We  conclude  that  the  Bergers’  predecessors-in-interest  conveyed
nothing  more  than  easements  to  Brown  County.    Because  this  conclusion  is
sufficient to warrant reversal, we need not also consider whether the parcels are
buildable  under the Town’s zoning ordinances.    Accordingly,  we  reverse and
remand for further proceedings.
BACKGROUND
¶3                                                                                    The Bergers own two abutting parcels of land in the Town of New
Denmark, Brown County.    The parcels are numbered ND-176-2 and ND-309.
Both are zoned A-1 Agricultural,1 and both are bordered on the east by County
Highway T.
¶4                                                                                    Since 2003, the Bergers have unsuccessfully sought building permits
from  the  Town  of  New  Denmark  for  both  parcels.    The  applicable  zoning
1  Parcel ND-309 is also partially zoned A-R Agricultural-Residential.
2




No.   2011AP1807-FT
regulations require a minimum area of 35 acres and zoning lot frontage of at least
500 feet.2
¶5                                                                                             In 2009, the Bergers requested that the Town Board clarify whether
ND-176-2 and ND-309 were buildable lots comprising at least  35 acres.    The
board minutes show that Wade Berger presented a plat showing that property from
ND-309 had been added to ND-176-2 to make ND-176-2 compliant with the 35-
acre requirement.   Similarly, the plat indicated that the Bergers added to ND-309
property purchased from a third party to make ND-309 compliant.   After these
conveyances, the Bergers’ plat showed each parcel contained 35.190 acres.   The
board ultimately referred the matter to the Town Plan Commission to verify the
size of the parcels.
¶6                                                                                             Several months later, the Bergers requested that the Town Board
approve building permits for ND-176-2 and ND-309.   The Bergers’ requests were
denied, in part based on the acreage requirement.   The board concluded that the
zoning ordinance required exclusion of roads when calculating the total amount of
acreage.    Excluding  land  occupied  by  County  Highway  T,  the  parcels  each
contained approximately 34.5 acres.3
¶7                                                                                             The Bergers filed suit, seeking a declaration that their parcels were
buildable under the ordinance.   The Town filed a motion to dismiss, accompanied
2                                                                                              “Zoning lot frontage” is defined as “the length of all the property of such zoning lot
fronting on a street, measured between side lot lines.”
3  According to the board minutes, the acreage of ND-309, excluding County Highway T,
is 34.515.   The minutes do not indicate the precise acreage of ND-176-2 when the highway is
excluded, but because the lots were of uniform size according to the Bergers’ 2009 plat, we
assume it is also 34.515 acres.
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No.   2011AP1807-FT
by a brief asserting that the lots were not buildable because Brown County, not the
Bergers, owned the land on which County Highway T was located.4   The Town
attached to its brief copies of two conveyances, one each dated 1951 and 1956,
purporting to show that Louis and Mary Selner, the Bergers’ predecessors-in-
interest, had conveyed full title of the land to Brown County.5
¶8                                                                                           Brown County paid the Selners $109.38 and $230.20, respectively,
for the land conveyed in 1951 and 1956.   Both documents contain the same form
language regarding the conveyance:
It   having   been   deemed   necessary   for   the   proper
improvement or maintenance of a county aid highway, and
so ordered, to change or relate a portion thereof through
lands owned by Louis Selner and Mary Selner  … in the
Town of New Denmark, Brown County, and a plat showing
the existing location, the proposed change and the right of
way to  be  acquired,  having been  filed  with  the  County
Clerk of said County by the County Highway Commission
as required by Section 83.08, Wisconsin Statutes; ….
KNOW ALL MEN BY THESE PRESENTS, That the said
owner … for … valuable consideration, … the receipt of
which is hereby acknowledged, do  … hereby grant and
convey to Brown County, Wisconsin, for highway purposes
as long as so used, the lands of said owner necessary for
said relocation shown on the plat and described as follows
…
[Legal description of property omitted]
4  The Town also objected on the ground that the proper vehicle for relief was a writ of
certiorari or mandamus.  The circuit court did not decide that issue in its written order.
5  Because matters outside the pleadings were received by the circuit court, we construe
the motion as one for summary judgment pursuant to WIS. STAT. § 802.06(3).
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.
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No.   2011AP1807-FT
A covenant is hereby made with the said Brown County
that the said grantor holds the above described premises by
good  and  perfect  title;  having  good  right  and  lawful
authority to sell and convey the same; that said premises
are  free  and  clear  from  all  liens  and  encumbrances
whatsoever except as hereinafter set forth[.]
¶9                                                                                     The circuit court granted the Town’s motion.    It determined that
“Parcels ND-176-2 and ND-309 are not buildable lots in that they do not meet the
35 acre requirement and, as such, the Town of New Denmark was not incorrect in
its determination ….”   It rejected the Bergers’ argument that the 1951 and 1956
conveyances granted only an easement, stating, “But I think there’s a big jump,
quite frankly, to assume that because it was a conveyance of land for highway
purpose it was by definition an easement. …   It looks to me as if the county for
whatever reason wanted to own this property.”
DISCUSSION
¶10    We review a grant of summary judgment de novo, and we apply the
same standard as the trial court.   Mach v. Allison, 2003 WI App 11, ¶14, 259
Wis. 2d 686, 656 N.W.2d 766.                                                           “A party is entitled to summary judgment if there
are no disputed issues of fact and that party is entitled to judgment as a matter of
law.”   Id.; see also WIS. STAT. § 802.08(2).   In this case we must examine the
language  of  the  conveyances  to  determine  what  interest—easement  or  fee
simple—the  Selners  granted  to  Brown  County.     We  construe  conveyances
according to the intentions of the parties, as evidenced by the language used in the
instrument.   Borek Cranberry Marsh, Inc. v. Jackson Cnty., 2010 WI 95, ¶12,
328 Wis. 2d 613, 785 N.W.2d 615; Konneker v. Romano, 2010 WI 65, ¶26, 326
Wis. 2d 268, 785 N.W.2d 432.
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No.   2011AP1807-FT
¶11    The  language  describing  the                                                  1951  and  1956  conveyances  takes
center stage in this appeal.   Each instrument is entitled, “Conveyance of Land for
Highway Purposes.”   Consistent with those titles, each instrument specifies that
the  lands  conveyed  were  “for  highway  purposes  as  long  as  so  used.”    The
instruments further indicate that plats had been filed with the Brown County clerk
showing “the existing [road] location, the proposed change and the right of way to
be acquired.”   The Town and the Bergers reach dramatically different conclusions
from this same language; the Town contends the Selners conveyed fee title to the
land,  while  the  Bergers  assert  the  Selners  conveyed  nothing  more  than  an
easement.
¶12    Early courts took the view that a municipality could not acquire fee
title in land occupied by a public highway.   See Thorndike v. City of Milwaukee,
143 Wis. 1, 126 N.W. 881 (1910) (recognizing longstanding rule that “in the case
of a road or street, whether acquired by condemnation, conveyance, by common-
law  dedication  or  by  statutory  dedication,  the                                   [municipality]  takes  only  an
easement for highway purposes”); see also Stuart v. City of Neenah, 215 Wis.
546, 255 N.W. 142 (1934); Mueller v. Schier, 189 Wis. 70, 205 N.W. 912 (1925).
Early versions of WIS. STAT. § 83.08 permitted only the acquisition of a right of
way,  but  by  1951  the  statute  had  been  amended  to  permit  county  highway
committees  to                                                                         “acquire                              …  any  lands  or  interests  therein  for  the  proper
improvement  maintenance,  relocation  or  change  of  any  county  aid  or  other
highway or street ….”   The statute encouraged the committee to “obtain easements
or title in fee simple by conveyance of the lands or interests required ….”   WIS.
STAT. § 83.08 (1951).
¶13    Vestiges of the old rule remain, however.   Absent express language
to the contrary, our courts presume that the grantor of land to be used for roadways
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No.   2011AP1807-FT
intended to convey only an easement.   In Walker v. Green Lake Cnty., 269 Wis.
103, 111, 69 N.W.2d 252 (1955), a county asserted it had gained full title to land
underlying  a  highway  by  virtue  of  adverse  possession.    Our  supreme  court,
quoting a legal encyclopedia, stated that, “[i]n the absence of a statute expressly
providing for the acquisition of the fee, or of a deed from the owner expressly
conveying the fee, … the public acquires merely an easement of passage, the fee
title remaining in the landowners.”6   Id. (emphasis added).   Wisconsin is not alone
in requiring an express grant.   See Pluimer v. City of Belle Fourche, 549 N.W.2d
202, 206 (S.D. 1996); Northpark Assocs. No. 2, Ltd. v. Homart Dev. Co., 414
S.E.2d 214, 216 (Ga. 1992).
¶14    If, as the Town asserts, the parties intended to grant Brown County
title to the land, their choice of the phrase “right of way” is certainly curious.   A
right of way, “in its strict meaning, is ‘the right of passage over another man’s
ground,’ and in its legal and generally accepted meaning, in reference to a railway,
it is a mere easement in the lands of others, obtained by lawful condemnation to
public use, or by purchase.”   Williams v. Western Union Ry. Co., 50 Wis. 71, 5
N.W. 482 (1880).7   “It would be using the term in an unusual sense, by applying it
to an absolute purchase of the fee-simple of lands to be used for a railway or any
6  The Town contends that WIS. STAT. § 83.08 expressly permits counties to acquire fee
title in lands.   That is true, but it also expressly permits counties to acquire an easement.   The
statute itself is therefore of no help in determining what interest the Selners conveyed.   See
Hattiesburg Realty Co. v. Mississippi State Highway Comm’n, 406 So. 2d 329, 332 (Miss. 1981)
(statute permitting commission to acquire land in fee does not, ispo facto, vest fee simple title).
7  The Town attempts to distinguish Williams v. Western Union Ry. Co., 50 Wis. 71, 5
N.W. 482 (1880), on the ground that the case at bar does not involve a railway.   However, the
Town has not supplied any logical rationale for treating public infrastructure, like highways,
differently from railroads.   In addition, Williams’s language extends beyond railway rights of
way.
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No.   2011AP1807-FT
other kind of way.”   Id.   Thus, the phrase “right of way” strongly suggests that
Brown County received easements, gaining  “only the right to a reasonable and
usual enjoyment” of the land, with the Selners retaining “all the rights and benefits
of ownership consistent with the easement.”   See Kleih v. Van Schoyck, 250 Wis.
413, 418-19, 27 N.W.2d 490 (1947); see also Tibbitts v. Anthem Holdings Corp.,
694 N.W.2d 41, 44 (S.D. 2005); Ogg v. Mediacom, L.L.C., 142 S.W.3d 801, 811
(Mo.  Ct.  App.  2004)  (use  of  terms  like  “right  of  way”  is  a  “strong,  almost
conclusive” indication that interest conveyed is an easement).
¶15    Nor  do  the  remainder  of  the  instruments  suggest  the  Selners
conveyed anything more than easements.   See Northwest Realty Co. v. Jacobs,
273 N.W.2d 141, 144 (S.D. 1978) (A deed using the term “right of way” should be
construed  as  conveying  an  easement  “unless  the  instrument,  considered  as  a
whole,  indicates  that  the  parties  intended  the  passage  of  fee  title.”).    The
conveyances  state  that  the  land  shall  be  used  “for  highway purposes.”    This
language generally suggests that an easement, not fee title, was granted.   Cornfield
Point Ass’n v. Town of Old Saybrook, 882 A.2d 117, 132 (Conn. App. 2005)
(term “for highway purposes” is consistent with an easement, but concluding that
overall context of each deed suggested conveyance of fee title); Cuka v. State, 122
N.W.2d  83,  85  (S.D.  1963)  (option  that  allowed  acquisition  of  property  “for
8




No.   2011AP1807-FT
highway purposes only” granted only an easement).   Thus, we conclude that the
Selners conveyed only easements, not fee title, to Brown County.8
¶16    The Town nonetheless points to covenants in the deeds as proof that
Brown County gained fee title in the lands.   The covenants state that the Selners
held “the above described premises by good and perfect title; having good right
and lawful authority to sell and convey the same ….”   The covenants establish that
the Selners had authority to convey whatever interest was contemplated by the
instrument.   They do not identify the scope of the interest conveyed.
¶17    The Bergers and the Town appear to agree that further proceedings
are necessary to resolve this dispute.   The circuit court determined only that the
parcels did not meet the ordinance’s 35-acre requirement.   It did not determine
whether the parcels were otherwise buildable, or whether the ordinance allows for
the inclusion of public right-of-ways when calculating acreage.    We therefore
remand for further proceedings consistent with this opinion.
By  the  Court.—Order  reversed  and  cause  remanded  for  further
proceedings.
Recommended for publication in the official reports.
8  As the grantee of the 1951 and 1956 conveyances, we assume that Brown County may
have an interest in the outcome of this appeal.  However, it has not been joined, nor has any party
raised the issue of whether Brown County is a necessary party under WIS.  STAT.  § 803.03.
Because the issue has not been raised, we decline to address it.   See Schopper v. Gehring, 210
Wis. 2d 208, 212, 565 N.W.2d 187 (Ct. App. 1997).  In any event, failure to join an indispensable
party does not deprive a court of jurisdiction, and an action may proceed even in the party’s
absence.  Hoppmann v. Reid, 86 Wis. 2d 531, 535, 273 N.W.2d 298 (1979).
9

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