Borek Cranberry Marsh, Inc. v. Jackson County

2010 WI 95, 785 N.W.2d 615, 328 Wis. 2d 613, 172 Oil & Gas Rep. 583, 2010 Wisc. LEXIS 173

• Court: Wisconsin Supreme Court
• Decided: July 21, 2010
• Docket: 2008AP1144
• Status: Published

Opinions

MICHAEL J.GABLEMAN,J.

¶ 1. This is a review of a published decision of the court of appeals¹ reversing an order granting summary judgment to Jackson County.² In 1977, Carl Nemitz purchased an easement from the County granting him sand removal and water flowage rights to County land adjacent to his property. The water flowage rights were granted to "CARL NEMITZ, his heirs, and assigns" while the sand removal rights were granted to "the Grantee," who is described in the deed as "CARL NEMITZ." Nemitz later transfered his land, along with his sand removal rights and water flowage rights, to Julius and Darlene Borek (the "Boreks"), who then transfered them to Borek Cranberry Marsh, Inc. ("BCM").

¶ 2. When BCM attempted to exercise the sand removal rights (now almost 30 years after the original conveyance to Nemitz), the County objected on the grounds that the sand removal rights were nontransferable. BCM brought suit, and the circuit court agreed with the County that the sand removal rights were non-transferable because they had been granted to Nemitz alone, and not "Nemitz, his heirs, and assigns" as the water flowage rights had been granted. The court of appeals reversed, holding that Wis. Stat. (3) (1977-78),³ which makes words of inheritance unnecessary and creates a presumption in favor of transferability, required the court to interpret the deed as conveying transferable sand removal rights.

¶ 3. Thus, the question before us is whether the 1977 easement granted Nemitz a transferable right to remove sand from County land. We hold that it did. Wisconsin Stat. § 706.10(3) provides that every conveyance of an interest in land conveys full title to that interest unless the language of the conveyance indicates otherwise by express language or necessary implication. We conclude that the easement does not contain an express statement or necessary implication that only a limited, non-transferable right to remove sand was conveyed. We therefore affirm the decision of the court of appeals and remand for the circuit court to enter an order granting BCM's motion for summary judgment.

I. BACKGROUND

¶ 4. In 1977, Carl Nemitz, who owned marsh land adjacent to forest land owned by Jackson County, purchased an easement from the County for $500.00. That easement granted Nemitz water flowage rights and sand removal rights to the neighboring County land for the purpose of cranberry cultivation on Nemitz's marsh.⁴

¶ 5. The deed granting Nemitz water flowage and sand removal rights is entitled "Easement for Flowage Rights" ("1977 deed").⁵ It contains the following relevant language:

THIS EASEMENT, made this 12th day of May, 1978, between JACKSON COUNTY, a Municipal Corporation, Grantor, and CARL NEMITZ, of RFD 1, Warrens, Wisconsin, Grantee.

WITNESSETH, That for and in consideration of the sum of Five Hundred ($500.00) dollars, paid by the Grantee to the Grantor,.. . the Grantor does hereby grant and convey to CARL NEMITZ, his heirs, and assigns, an easement for flowage with full right and privilege to flow with water the following described lands situated in the Town of Knapp, Jackson County, Wisconsin....

THAT THIS EASEMENT, shall be perpetual providing that the flowage rights hereby granted are being used for the purpose of cranberry culture.

AND, the Grantor does hereby grant and convey to the Grantee the further right and privilege to remove sand from the above described lands to be used for the purpose of cranberry culture upon the Grantee's adjacent lands.

(Emphasis added.)

¶ 6. In 1978, Nemitz sold the cranberry marsh to the Boreks. Besides transfering the land itself, the deed transfering the marsh from Nemitz to the Boreks ("1978 deed") also transfered the flowage and sand removal rights that Nemitz purchased from the County in 1977.⁶ The Boreks later transfered the land and their interest in the flowage and sand removal rights to BCM.⁷

¶ 7. For decades, BCM used sand from its own land to supply its cranberry cultivation needs. At some point prior to the commencement of this suit, BCM informed the County that it intended to start removing sand from County land pursuant to the 1977 deed. The County disputed BCM's right to remove sand, arguing that the sand removal rights sold to Nemitz were personal to Nemitz and therefore not transferable to the Boreks or BCM.

¶ 8. On April 13, 2007, BCM filed suit in Jackson County Circuit Court, John A. Damon, Judge, seeking (1) a declaratory judgment that BCM is the legal owner of the sand removal rights; (2) compensatory damages in the form of lost profits; and (3) reimbursement of expenses arising as a result of the controversy. On cross-motions for summary judgment, the circuit court granted summary judgment to the County and dismissed BCM's claims. The court concluded that the necessary implication of the inclusion of "heirs and assigns" in the flowage grant and the omission of that language in the sand removal grant, is that the parties intended for the former to be transferable and the latter be personal to Nemitz (and thus not transferable to or enforceable by BCM).

¶ 9. BCM appealed. In a published opinion, the court of appeals reversed the circuit court, finding that the right to remove sand was not personal to Nemitz and was thus transferable to the Boreks and thence to BCM. Borek Cranberry Marsh, Inc. v. Jackson County, 2009 WI App 129, ¶ 14, 321 Wis. 2d 437, 773 N.W.2d 522. More specifically, the court held that the presumption of transferability of interests in Wis. Stat. § 706.10(3) applied because there was no express language to the contrary, and the omission of "heirs and assigns" in the sand removal grant did not create a necessary implication that the parties intended that right to be non-transferable. Id., ¶¶ 12-14. It further held that the instruction in Brody v. Long8 that deeds should be construed in favor of municipalities does not apply here because this case is not a close call. Id., ¶ 16.

¶ 10. The County then petitioned this court for review, which we granted.

II. STANDARD OF REVIEW

¶ 11. This case comes before us on summary judgment. We review the grant of a motion for summary judgment de novo, and apply the methodology specified in Wis. Stat. § 802.08. Apple Valley Gardens Ass'n, Inc. v. MacHutta, 2009 WI 28, ¶ 12, 316 Wis. 2d 85, 763 N.W.2d 126. That is, we determine whether there is any genuine issue as to any material fact, and if not, which party is entitled to judgment as a matter of law. Id.

¶ 12. The present case requires us to determine the meaning and scope of an easement. Easements are created by deeds, and we construe deeds according to the intentions of the parties to the deed. Konneker v. Romano, 2010 WI 65, 26, 326 Wis. 2d 268, 785 N.W.2d 432. The proper construction of an easement is a question of law that we review de novo. Hunter v. Keys, 229 Wis. 2d 710, 715, 600 N.W.2d 269 (Ct. App. 1999).

III. DISCUSSION

¶ 13. The question before us is whether the sand removal rights conveyed in the easement between the County and Nemitz were personal to Nemitz, or whether they were fully transferable.

¶ 14. An easement is an interest in land possessed by another. Gojmerac v. Mahn, 2002 WI App 22, ¶ 18, 250 Wis. 2d 1, 640 N.W.2d 178. "An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." Restatement (Third) of Prop.: Servitudes § 1.2 (1) (2000). Easements may be either appurtenant easements or easements in gross. Gojmerac, 250 Wis. 2d 1, ¶ 18. An easement appurtenant ties the rights or obligations of a servitude to ownership or occupancy of the land, and thus it is transfered with the land. Id. An easement in gross does not tie the benefits or burdens of a servitude to the land, and may be personal or transferable. Id., ¶ 18 & n.5.

¶ 15. At common law, the sand removal rights at issue here would be classified as a profit á prendre. Like an easement, a profit á prendre, now generally known simply as a "profit" (see Restatement (Third) of Prop.: Servitudes § 1.2 cmt. f), is also an interest in land that involves the additional power to acquire or remove things from the land. Van Camp v. Menominee Enters., Inc., 68 Wis. 2d 332, 343, 228 N.W.2d 664 (1975). Rights often associated with a profit include hunting and fishing rights, mineral and timber rights, and, as in the case at bar, sand removal rights. Id.; Figliuzzi v. Carcajou Shooting Club, 184 Wis. 2d 572, 581, 516 N.W.2d 410 (1994); Gray v. Handy, 208 N.E.2d 829, 831-32 (Mass. 1965). Both an easement and a profit were distinguished in the common law from a mere license, which did not qualify as an interest in real property and was revocable by its very nature. Van Camp, 68 Wis. 2d at 344. In 1994, this court held that there is no meaningful legal distinction between an easement and a profit. Figliuzzi, 184 Wis. 2d at 583. The Restatement in fact defines a profit as an easement with additional rights. Restatement (Third) of Prop.: Servitudes § 1.2(2) & cmt. e (2000).

¶ 16. It is clear that the water flowage rights and the sand removal rights in the deed between Nemitz and the County each constitutes an interest in the land. Both parties concede that the interpretive instructions in Wis. Stat. § 706.10(3) play a role in the proper interpretation of conveyances of land and interests in land. The dissent, however, challenges whether the statute applies to interests in land at all. See dissent, ¶¶ 57-63.

¶ 17. Wisconsin Stat. § 706.10(3) has existed in some form since 1874. The first iteration of the statute abrogated the common law rule by providing: "In all conveyances of land hereafter made in this state, words of inheritance shall not be necessary in order to create or convey a fee ...§ 1, ch. 316, Laws of 1874.

¶ 18. The legislature amended the statute in 1878 to provide:

In conveyances of lands, words of inheritance shall not he necessary to create or convey a fee, and every grant of lands or any interest therein shall pass all the estate or interest of the grantor, unless the intent to pass a less estate or interest shall appear hy express terms or be necessarily implied in the terms of such grant.

Wis. Stat. § 2206 (1878). The annotated version of the next published edition of the statutes (in 1889) states that this new statute was composed of the 1874 version, "with addition of words from the New York statute to give it full effect."

¶ 19. The New York statute upon which ours was based stated:

The term "heirs" or other words of inheritance, shall not be requisite to create or convey an estate in fee; and every grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant.

1 N.Y. Rev. Stat. pt. 2, ch. 1, tit. 5, § 1 (1835) (quoted in Whitney v. Richardson, 13 N.Y.S. 861, 862 (N.Y. Gen. Term 1891)). 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. (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. . . .").⁹

¶ 20. In 1969, the Wisconsin legislature revised and renumbered our statute. It now reads:

In conveyances of lands words of inheritance shall not be necessary to create or convey a fee, and every conveyance shall pass all the estate or interest of the grantor unless a different intent shall appear expressly or by necessary implication in the terms of such conveyance.

Wis. Stat. § 706.10(3). We were unable to find any evidence, textual or extra-textual, that these revisions reflected a legislative intent to change the meaning of the statute. Rather, the changes appear merely stylistic. For example, the legislature changed the phrase, "every grant of lands or any interest therein," to simply "conveyance." A "conveyance" is defined as a written instrument evidencing a transaction governed by Chapter 706, which would include both a grant of land and the conveyance of an interest in land. See § 706.01(3).

¶ 21. Unlike the dissent, we find the statute to be sufficiently clear that it applies to easements. See Dissent, ¶¶ 57-63. We see clues in the second clause of the statute, which states, "every conveyance shall pass all the estate or interest of the grantor." The conjunctive "or" means that some conveyances contemplated by the statute will include an estate, while some may include only interests in the land. The pre-1969 version of the statute further makes clear that the current statute's use of "conveyance" is meant to be shorthand for "every grant of lands or any interest therein." And if there were any doubt, courts in other states with similar statutes, including the New York statute upon which ours was based, have construed this language to apply to easements as well as conveyances of land. See supra ¶ 19 & note 9.

¶ 22. Thus, though a cursory reading of § 706.10(3) might suggest that its provisions do not govern easements, the textual clues, statutory history, and the interpretation of its sister statutes make clear that the interpretive instructions in this subsection apply to conveyances of interests in land like the deed here.¹⁰

¶ 23. Wisconsin Stat. § 706.10(3), then, provides that every transfer of an interest in land conveys full title to that interest, including the right to transfer the interest, unless the conveyance evinces a different intent "expressly or by necessary implication."

¶ 24. The County argues that the language of the 1977 deed does make clear that the sand removal rights were non-transferable. It maintains that the omission of "heirs and assigns" in the sand removal grant — in contrast to the inclusion of that language in the water flowage grant — constitutes express language or at least necessarily implies that the original parties intended the water flowage rights to be transferable and the sand removal rights to be personal to Nemitz. The County further argues that under Brody v. Long, a deed transfering rights away from a government entity must be construed in favor of the government entity. 13 Wis. 2d 288, 297, 108 N.W.2d 662 (1961).

¶ 25. BCM argues that because property interests are fully transferable even in the absence of words of inheritance like "heirs and assigns," the absence of "heirs and assigns" in the 1977 deed's grant of the sand removal rights was immaterial, and thus those rights are fully transferable.

¶ 26. The County's assertions notwithstanding, the deed simply does not provide any express language stating that the sand removal rights were not fully transferable. An express limitation on transferability would be manifest in language affirmatively limiting the sand removal rights to Carl Nemitz. If, as the County argues, the difference in granting language indicates an intent to make one grant transferable and the other non-transferable, such a conclusion is implied, not express.

¶ 27. Thus, the question is whether the non-transferability of the sand removal rights is a "necessary implication" of the terms of the easement. In addition to this statute, the Wisconsin Statutes use the phrase "necessary implication" three other times. Wis. Stat. § 62.09(8)(c) (relating to mayoral veto power); Wis. Stat. § 702.03(2) (relating to powers of appointment); Wis. Stat. § 704.09(3) (relating to the transfer of an interest owned by a tenant or landlord).¹¹ Each usage occurs in the phrase "expressly or by necessary implication." The legislature's intent for a "necessary implication," then, is closely tied to the concept of an "express" statement. It is fair to say that a necessary implication is one that is so clear as to be express; it is a required implication. Said another way, where the terms of a conveyance contain a necessary implication, an interpretation otherwise would constitute a perverse misconstruction of the language.

¶ 28. The County maintains that the difference in language between the grant of water flowage rights and the grant of sand removal rights creates a necessary implication that the sand removal rights are nontransferable. The water flowage rights were granted to "CARL NEMITZ, his heirs, and assigns," while the sand removal rights were granted to "the Grantee," who is defined in the deed as "CARL NEMITZ." The County argues that the omission of the "heirs and assigns" language from the sand removal grant evinces a necessary implication that the rights were non-transferable. To read it otherwise, the County asserts, would render the "heirs and assigns" language mere surplusage. See Goebel v. First Fed. Savings & Loan Ass'n of Racine, 83 Wis. 2d 668, 680, 266 N.W.2d 352 (1978) ("[C]ourts must avoid a construction which renders portions of a contract meaningless, inexplicable or mere surplusage.").

¶ 29. The County's interpretation of the 1977 deed is certainly a reasonable one. Indeed, we generally interpret the use of differing language in similar or related sections as intending a different meaning. Cf. Responsible Use of Rural & Agric. Land (RURAL) v. Public Service Commission, 2000 WI 129, ¶ 39, 239 Wis. 2d 660, 619 N.W.2d 888 (holding that when words are used in one subsection of a statute but not another subsection, a different meaning is intended). But this interpretation of the easement is not a required or necessary one.

¶ 30. We find BCM's interpretation to be at least as reasonable as the County's reading. As BCM explains, according to the statute's interpretive instructions, the words "heirs and assigns" (or any similar language) are unnecessary to indicate a transferable interest. Wis. Stat. § 706.10(3) ("[W]ords of inheritance shall not be necessary to create or convey a fee . .. ."). As a matter of law, "Grantee" therefore has the exact same meaning as "Grantee and his heirs and assigns" unless another meaning is expressly stated or implied. Both indicate the grant of a fully transferable interest. Therefore, we need not construe that phrase as having any legal effect. See Weber v. Nedin, 210 Wis. 39, 46, 246 N.W. 307 (1933) (determining that language in a deed conveying property to one's "assigns" was "without legal effect" and therefore superfluous). Under the directive of § 706.10(3), then, the grant of water flowage rights to "CARL NEMITZ, his heirs, and assigns" and the grant of sand removal rights to "the Grantee" (who is identified in the deed as Nemitz) are identical, and each conveys a freely transferable interest.

¶ 31. The reasonableness of BMC's reading is supported by the easement's reference to itself as a single easement. The 1977 deed is entitled "Easement for Flowage Rights." The document also speaks of "this easement" when giving the date and naming the parties ("THIS EASEMENT, made this 12th day of May, 1978, between JACKSON COUNTY... and CARL NEMITZ"), and when explaining that this is a corrected deed (see supra note 5) ("This easement is given for the purpose of correcting an erroneous description ...."). An additional internal reference states that "THIS EASEMENT, shall be perpetual providing that the flowage rights hereby granted are being used for the purpose of cranberry culture" (emphasis added). The County argues that the reference to "this easement" refers only to the water flowage rights because this statement immediately follows the grant of water flowage. While this may be a reasonable reading, another reasonable reading is that "this easement" refers, as it does in its other iterations, to the document as a whole, and therefore characterizes the sand removal rights as perpetual as well.

¶ 32. We find additional support for BCM's reading in the fact that the easement contains two express limitations. First, the County "expressly reserved the right of the public for access to the [County] land for the purposes of hunting and fishing." Second, the sand removed and water flowage rights were conditioned on their being "used for the purpose of cranberry culture." It is reasonable to conclude that had the deed been intended to limit the transferability of either the flow-age or sand removal rights, it would have said so expressly. See FAS, LLC v. Bass Lake, 2007 WI 73, ¶ 27, 301 Wis. 2d 321, 733 N.W.2d 287 (" '[T]he express mention of one matter excludes other similar matters that are not mentioned.'") (quoting Perra v. Menomonee Mut. Ins. Co., 2000 WI App 215,.¶ 12, 239 Wis. 2d 26, 619 N.W.2d 123).

¶ 33. Thus, both BCM and the County offer reasonable interpretations of the easement. We simply do not agree with the County that its reading — that the sand removal rights were intended to be personal to Nemitz and non-transferable — is expressly stated in or a necessary implication of the terms of the easement. Accordingly, under Wis. Stat. § 706.10(3), the easement conveyed a fully transferable interest in both the water flowage and sand removal rights.

¶ 34. The County's final argument¹² rests on a single sentence in Brody v. Long stating that "a grant of land by a public body is to be construed most strongly against the grantee." 13 Wis. 2d at 297 (citing 6 Thompson, Real Property (perm, ed.) 571, § 3365). The County argues that this brief statement in Brody creates a top-level rule of broad application.

¶ 35. We disagree. The Brody court discussed this rule only after having applied ordinary rules of construction. See id. at 293-96. Furthermore, the Brody court did not even rely on the rule in its decision, but added it only as an additional independent basis for its decision. See id. at 298. We also note that no published opinion in this state has cited to or relied on this statement in Brody since it was made almost 50 years ago.

¶ 36. To the extent Brody is an accurate statement of the law (an issue we need not address here), it would be applied only as a rule of last resort after employing the normal methods of interpretation, particularly those specified by the legislature in Wis. Stat. § 706.10(3). We fail to see how the rule of construction in Brody can trump the legislative mandate in Wis. Stat. § 706.10(3).

IV CONCLUSION

¶ 37. In summary, we hold that the 1977 easement granted Nemitz a transferable right to remove sand from County land. Wisconsin Stat. § 706.10(3) provides that every conveyance of an interest in land conveys full title to that interest unless the language of the conveyance indicates otherwise by express language or necessary implication. We conclude that the easement does not contain an express statement or necessary implication that only a limited, non-transferable right to remove sand was conveyed. We therefore affirm the decision of the court of appeals and remand for the circuit court to enter an order granting BCM's motion for summary judgment.

By the Court. — The decision of the court of appeals is affirmed and the cause remanded with directions.

1 Borek Cranberry Marsh, Inc. v. Jackson County, 2009 WI App 129, 321 Wis. 2d 437, 773 N.W.2d 522.

2 The judge originally assigned to the case, Judge Gerald W. Laabs, recused himself because he drafted the easement at issue in this case. Judge John A. Damon presided in Judge Laabs' stead.

3 All subsequent references to the Wisconsin Statutes are to the 1977-78 version unless otherwise indicated.

4 Flowage refers to allowing water to flow on and off of the adjoining land. Flowage rights can be very important to cranberry cultivation because cranberries are grown in water, and at certain points in the process, the water in the bogs has to be drained off. Sand is also important to cranberry cultivation. When the cranberry marsh freezes over in winter, the ice on top of the bog is sanded — that is, covered with a layer of sand — so that when the ice melts, the sand settles, filling in under the cranberry plants so that the plants remain at an appropriate harvestable height, thereby optimizing production. Thus, both water flowage and sand are important in the cranberry industry.

5 The "Easement for Flowage Rights" in the record before us is actually dated May 12,1978. That document indicates that it was "given for the purpose of correcting an erroneous description as recorded in Volume 226 of Records, on page 751 and as Document #212830." The original deed is not in the record. However, the parties agree that the original deed was executed sometime in 1977, and that the deed in the record is identical to the 1977 document in all regards relevant to this case.

6 The 1978 deed stated in relevant part as follows: "The grantors further convey to the grantees, their heirs and assigns, all of their rights in and to an easement executed in favor of them by Jackson County concerning flowage rights and sand rights."

7 The deed transfering the land and the flowage and sand removal rights from the Boreks to BCM is not in the record. Nevertheless, the parties agree that the transaction took place.

8 13 Wis. 2d 288, 108 N.W.2d 662 (1961).

9 Other states with nearly identical language have similarly interpreted their statutes to include easements as well as conveyances of land. See, e.g., Presbyterian Church of Osceola, Clarke County v. Harken, 158 N.W 692 (Iowa 1916); Karmuller v. Krotz, 18 Iowa 352 (1865); Brown v. Redfern, 541 S.W.2d 725 (Mo. Ct. App. 1976).

10 The County argues that the statute is merely a drafting guide and not a substantive tool for interpretation. It further argues that the statute is an extrinsic aid only to be considered after a deed is first deemed ambiguous.

The statute rebuts this, however. It tells us how deeds "shall" be construed, and thus provides an interpretive aid for all deeds, not just ambiguous ones. Wis. Stat. § 706.10(3). Moreover, § 706.01(1) states that Chapter 706 "shall govern every transaction by which any interest in land is created, aliened, mortgaged, assigned or may be otherwise affected in law or in equity." The transfer of interests from the County to Nemitz is no exception.

11 Before the court of appeals decision in this case, it does not appear that any published decision interprets the phrase "necessary implication" as used in § 706.10(3).

12 The County also makes a brief and undeveloped argument that "[u]nder the County Forest program, sand and gravel extraction by private entities such as B[CM] is forbidden." That sentence, found in the County's Statement of Facts in its main brief, is the extent of its argument on the issue, and we need not consider it. Clean Wis., Inc. v. Public Service Commission, 2005 WI 93, ¶ 180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 ("We will not address undeveloped arguments.").