DeWitt v. Ferries

2018 WI 117, 921 N.W.2d 188, 385 Wis. 2d 1
Wisconsin Supreme Court·Decided December 27, 2018·No. No. 2016AP1765·Published·Cited by 4 cases

Opinion

ANN WALSH BRADLEY, J.

*4¶ 1 The Petitioners, collectively the DeWitts, seek to transfer a one-acre parcel of property to the Town of Forest.1 They assert that the parcel is a cemetery where they believe their relatives are buried and that the parcel is neglected or abandoned. The circuit court agreed and issued an order transferring the one-acre parcel to the Town to manage as a town cemetery, pursuant to Wis. Stat. § 157.115(1)(c) (2015-16).2

*5¶ 2 The court of appeals, however, disagreed. It determined that the DeWitts failed to prove a statutory requirement-that "there exists no association or group with authority to transfer ownership and *190operation of the cemetery...."3 Finding this failure dispositive, the court of appeals reversed the circuit court's order transferring the parcel to the Town.

¶ 3 The DeWitts now seek review of the unpublished per curiam decision of the court of appeals. They contend that the court of appeals erred because the evidence they presented supports the circuit court's conclusion that the parcel meets the statutory requirements for the transfer of a cemetery to the Town. The DeWitts further advance that even if the requirements of chapter 157 are not met, the one-acre parcel is nevertheless a cemetery. They point to various late-nineteenth-century conveyances referring to a "cemetery" on the parcel in support of their arguments.

¶ 4 We conclude that the DeWitts failed to prove that this parcel is a cemetery. Therefore, the parcel is not subject to the transfer mechanism set forth in Wis. Stat. § 157.115(1)(c), which applies only to cemeteries. Because we determine that this parcel is not a cemetery, *6we need not address whether the other requirements set forth in the cemetery transfer statute are satisfied here. Accordingly, we affirm the court of appeals.

I

¶ 5 At issue is a one-acre parcel of land located on or adjacent to a 204-acre farm owned by Earl and Paulette Ferries (the Ferries).4 Earl was born on the farm in 1939 and has lived there his entire life. The farm has been owned by the Ferries family for over a century.

¶ 6 Located on a hill, the parcel abuts Wildcat Mountain State Park and is separated from the park by a fence. There are no public roads leading to or passing it. The parcel is accessible either by crossing land owned by the Ferries or through the state park.

¶ 7 The DeWitts testified that some of their ancestors were buried there. There are no headstones or grave markers anywhere on the parcel. The circuit court found that "the [DeWitts] believe that 25-30 bodies were interred" in the parcel prior to 1918.

¶ 8 Over the years, the Ferries allowed individuals who believed their ancestors were buried in the parcel to access it by walking across the Ferries' property, which is a trek of about one mile. The Ferries also fenced off approximately one-quarter of an acre of the parcel following older fence wires that had become intertwined with trees. Paulette Ferries testified that *7they did so out of respect for those who believed their relatives were buried in the parcel and to avoid growing crops or grazing cattle within the fenced area. However, Paulette Ferries testified that she never observed any grave markers on the parcel during her approximately 50 years of familiarity with the property and that she does not believe the rumors that any bodies were in fact buried on the parcel.

¶ 9 Several nineteenth-century references to a "cemetery" appear in the parcel's chain of title. Initially, in 1872 the United States transferred to Isaac M.

*191Jones 40 acres of land, including the parcel at issue.

¶ 10 In 1892 Jones and his wife conveyed to Samuel Boyer the same "40 acres more or less. Excepting one acre now used as [a] cemetery on the north side of the above described tract of land being a part of the same."5 No specific boundary or legal description was provided in the Jones-Boyer deed for the one acre designated as a "cemetery."

¶ 11 The 40 acres were conveyed three more times between 1892 and 1896, with similar exceptions for "one acre now used as [a] cemetery."6 However, a conveyance from 1898 in the chain of title apparently *8conveyed 100 acres, including the purported 40 acres, without reference to an exception for a cemetery.7 The Ferries farm now includes those 100 acres, with the possible exception of the one-acre parcel at issue here.

¶ 12 In 1898 Jones and his wife conveyed the one-acre parcel to five individuals: G.M. Carson, J.C. Williams, Wm. Downing, David Jones and Edward Carson (the Carsons). Following a legal description of the one-acre parcel,8 the 1898 Jones-Carsons warranty deed contains the following language: "said land to be used for a cemetery and burial and no other purpose."9 It appears that no subsequent conveyance of the specific one-acre parcel or reference to a "cemetery" appears in the parcel's chain of title after the 1898 Jones-Carsons deed.

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DeWitt v. Ferries, 2018 WI 117, 921 N.W.2d 188, 385 Wis. 2d 1 (Wis. 2018).

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