James Cobb v. Gary A. King

2022 WI 59, 976 N.W.2d 410, 403 Wis. 2d 198

• Court: Wisconsin Supreme Court
• Decided: July 6, 2022
• Docket: 2020AP000925
• Status: Published

Opinion

2022 WI 59

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP925

COMPLETE TITLE: James Cobb and Judith Cobb, Plaintiffs-Appellants-Cross- Respondents-Petitioners, v. Gary A. King, Defendant-Respondent-Cross-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS (2021 – unpublished)

OPINION FILED: July 6, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 2, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Oconto JUDGE: Jay N. Conley

JUSTICES: Per curiam. ANN WALSH BRADLEY, J., filed a concurring opinion, in which DALLET, J., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a dissenting opinion. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-appellants-cross-respondents- petitioners, there were briefs filed by George Burnett, Laina P. Stuebner, and Law Firm of Conway, Oleniczak & Jerry, S.C., Green Bay. There was an oral argument by George Burnett.

For the defendant-respondent-cross-appellant, there was a brief by Josiah R. Stein and Law Office of Josiah R. Stein, LLC, Green Bay. There was an oral argument by Josiah R. Stein. 2022 WI 59 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP925 (L.C. No. 2018CV139)

STATE OF WISCONSIN : IN SUPREME COURT

James Cobb and Judith Cobb,

Plaintiffs-Appellants-Cross- Respondents-Petitioners, FILED v. JUL 6, 2022 Gary A. King, Sheila T. Reiff Clerk of Supreme Court Defendant-Respondent-Cross-Appellant.

REVIEW of a decision of the Court of Appeals. Dismissed as

improvidently granted.

¶1 PER CURIAM. James and Judith Cobb petitioned for

review of a decision of the court of appeals, Cobb v. King, No.

2020AP925, unpublished slip op. (Wis. Ct. App. May 11, 2021),

which affirmed the circuit court's grant of summary judgment to

Gary King. After reviewing the record and the briefs, and after

hearing oral arguments, we conclude that this matter should be

dismissed as improvidently granted. No. 2020AP925

By the Court.—The review of the decision of the court of

appeals is dismissed as improvidently granted.

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¶2 ANN WALSH BRADLEY, J. (concurring). I write

separately because, as I have written in the past, I believe

that this court should explain to the litigants and the public

the reason for the dismissal. See Fond du Lac County v. S.N.W.,

2021 WI 41, ¶3, 396 N.W.2d 773, 958 N.W.2d 530 (Ann Walsh

Bradley, J., dissenting).

¶3 Although the court has been inconsistent, in my view

the court's general practice should be to provide an explanation

for a dismissal of a petition for review as improvidently

granted. See id., ¶¶6-10. It is the least we can do for

parties who have expended substantial time, energy, and money

litigating this case and seeking a resolution from this court.

¶4 After reviewing the court of appeals opinion, together

with the record and the briefs, and after hearing oral

arguments, this review is deemed improvidently granted. The

issues for which we took the case will not lead to any further

development, clarification, or harmonization of the law. See Wis. Stat. § (Rule) 809.62(1r) (2019-20). Thus, further review

by this court and publication of an opinion would not serve any

purpose.

¶5 For the foregoing reasons, I respectfully concur.

¶6 I am authorized to state that Justice REBECCA FRANK

DALLET joins this concurrence.

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¶7 REBECCA GRASSL BRADLEY, J. (dissenting).

It must not be. There is no power in Venice Can alter a decree established. 'Twill be recorded for a precedent, And many an error by the same example Will rush into the state. It cannot be. William Shakespeare, The Merchant of Venice act 4, sc. 1, ll.

215–19 (Jay L. Halio ed., 1993) (statement of the character

Portia).

¶8 A majority of this court forgoes an opportunity to correct an objectively erroneous interpretation of law. In

Borek Cranberry Marsh, Inc. v. Jackson County, this court

created a flawed——yet binding——precedent, which requires lower

courts to ignore the plain meaning of Wis. Stat. § 706.10(3).

2010 WI 95, 328 Wis. 2d 613, 785 N.W.2d 615. This court should

adopt a meaning grounded in the statutory text.

¶9 Wisconsin Stat. § 706.10(3) states, "[i]n 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." In Borek, this court held both clauses of

§ 706.10(3) apply to easements, although it acknowledged "a

cursory reading of § 706.10(3) might suggest that its provisions

do not govern easements[.]" 328 Wis. 2d 613, ¶22. It then

muddled the language of the two clauses and concluded

§ 706.10(3) creates a presumption that an easement runs with the land unless the deed creating the easement "expressly or by

necessary implication" says otherwise. Section 706.10(3) has

nothing to say about whether an easement runs with the land or

is personal and non-transferrable.

¶10 Applying a textual methodology of statutory

interpretation leads inexorably to the conclusion that the

statute's first clause governs only a document creating or

conveying a fee. See generally State ex rel. Kalal v. Cir. Ct.

for Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110

(embracing the textualist approach to statutory interpretation).

The court was not asked to interpret such a document in Borek,

nor has it been asked to in this case.

¶11 "An easement is something quite different from a fee

or a limited fee. In the one case title does not pass, but only

a right of use or privilege in the land of another. In the

other cases the title does pass, even though the use be

limited." Polebitski v. John Week Lumber Co., 157 Wis. 377,

381, 147 N.W. 703 (1914); see also Colson v. Salzman, 272

Wis. 397, 401, 75 N.W. 421 (1956) (citing Polebitski as establishing "that an easement differs from a fee or a limited

fee in that in case of an easement title does not pass but only

a right to use or privilege in the land of another"). This

court did not address Polebitski or other cases reciting this

black letter law, although the dissent relied heavily on them.

Borek, 328 Wis. 2d 613, ¶57–63 & nn.7–9 (Abrahamson, C.J.,

dissenting).

¶12 The second clause, while applicable to easements, was irrelevant in Borek, and it is in this case as well. After an

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easement is created, the second clause codifies a strong

presumption that a transfer of the easement passes all interest

in the easement. If the interest is only personal, attempting

to transfer it does not create a right of transferability. Id.,

¶67.

¶13 Only this court can fix its misinterpretation of Wis.

Stat. § 706.10(3) in Borek. See Johnson v. Wis. Elections

Comm'n, 2021 WI 87, ¶21, 399 Wis. 2d 623, 967 N.W.2d 469 (quoted

source omitted). Short of legislative action, unless this court

overturns Borek, its erroneous rule will continue to govern

easements. This need not be the case. "Because these decisions

are objectively wrong, we must overturn them in fulfilling our

duty to properly interpret the law." Friends of Frame Park,

U.A. v. City of Waukesha, 2022 WI __, ¶42, __ Wis. 2d __, __

N.W.2d __ (Rebecca Grassl Bradley, J., concurring) (citing Wenke

v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405).

I respectfully dissent from the majority's decision not to

decide the law. I. BACKGROUND

¶14 This case involves a dispute among neighbors. The

record contains the diagram below. Gary King's property, shown

in purple, is landlocked. The Cobbs' property is shown in

yellow. King moves through the Cobbs' property, along the path

marked by a series of red "X"s, to enter and exit his property.

Whether he has an ingress/egress easement giving him a legal

right to move along the path for this purpose turns on whether the Cobbs' predecessors-in-interest conveyed to King's

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predecessors an easement running with the land or merely a

personal, non-transferrable easement.

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¶15 In 1978, the Cobbs' predecessors, the Rierdons,

granted an ingress/egress easement to the Hessils, King's

predecessors. In relevant part, the deed creating the easement

states:

The undersigned, BARBARA RIERDON, GERALD GEHLING AND MARGARET GEHLING, wife of GERALD GEHLING, being holders and owners to the same, do hereby, in consideration of One Dollar and other good and valuable consideration, grant, convey, give over and allow to HERBERT HESSIL and JEAN HESSIL, his wife, a right of ingress and egress for the purpose of vehicular traffic only to the following described property[.] The easement was recorded with the Oconto County Register of Deeds.

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¶16 In the 1980s, the Rierdons sold their land to the

Cobbs. The land contract noted the property was "SUBJECT to an

easement[.]" In 2009, the Hessils conveyed their property to

King and Melissa Hermes. This conveyance did not mention the

easement. Hermes subsequently executed a quitclaim deed to

King.

¶17 The Cobbs sued King, seeking a declaration that the

easement conveyed by the Rierdons to the Hessils was personal to

the Hessils, i.e., that King has no right to the easement. They

also sought injunctive relief. King counterclaimed for a

declaration that the easement ran with the land and was

transferred to him by the Hessils.

¶18 King moved for summary judgment, which the circuit

court granted.1 The circuit court reasoned that words of

inheritance, such as "heirs and assigns," are unnecessary for an

easement to run with the land. The Cobbs appealed and lost

because the court of appeals was bound by Borek.2 The court of

appeals explained:

King correctly argues that Borek . . . controls our decision of whether Wis. Stat. § 706.10(3) applies to easements. . . .

The Borek decision made clear that . . . § 706.10(3) applies to easements, thus precluding the Cobbs' argument that the statute does not apply in this case. We are bound by this controlling precedent.[3]

1 The Honorable Jay N. Conley, Oconto County, presided.

Cobb v. King, No. 2020AP925, slip op. (Wis. Ct. App. May 2

11, 2021) (per curiam). 3 Id., ¶¶18, 20 (internal citation omitted).

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This court granted the Cobbs' petition for review.

II. STANDARD OF REVIEW

¶19 This case presents a question of statutory

interpretation, which this court reviews independently. Eau

Claire Cnty. Dep't of Hum. Servs. v. S.E., 2021 WI 56, ¶13, 397

Wis. 2d 462, 960 N.W.2d 391 (citing State v. Stephenson, 2020 WI

92, ¶18, 394 Wis. 2d 703, 951 N.W.2d 819). Whether to dismiss a

petition as improvidently granted is a discretionary decision.

Cf. Wis. Stat. § (Rule) 809.62(1r) (explaining whether to grant

a petition is "a matter of judicial discretion").4

4 "The construction of an unambiguous deed is . . . a question of law. However, if the language of the deed is ambiguous, then the intent behind the language presents a question of fact." Konneker v. Romano, 2010 WI 65, ¶23, 326 Wis. 2d 268, 785 N.W.2d 432 (citations omitted).

The construction of the deed is beyond the scope of my writing because my primary concern is with the Borek majority's erroneous statutory interpretation. Even if this court overturned Borek, the Cobbs' argument might not prevail for another reason. The circuit court concluded that the easement is appurtenant. An "appurtenant easement" is "[a]n easement created to benefit another tract of land, the use of easement being incident to the ownership of that other tract." Appurtenant easement, Black's Law Dictionary (11th ed. 2019). Arguably, such an easement is presumed to run with the land. See, e.g., Jon W. Bruce & James W. Ely, Jr., The Law of Easements & Licenses in Land § 9:1 (updated Apr. 2022) ("Unless prevented by the terms of its creation, an easement appurtenant is transferred with the dominant property even if this is not mentioned in the instrument of transfer."); 25 Am. Jur. Easements and Licenses § 9 ("[A]n easement appurtenant runs with the land."); 28A C.J.S. Easements § 17 ("An easement appurtenant runs with the land, which is to say that the benefit conveyed by or the duty owed under the easement passes with the ownership of the land to which it is appurtenant.").

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III. ANALYSIS

A. Borek & Its Clear Errors

¶20 Borek's facts are indistinguishable from the facts of

this case. Carl Nemitz purchased an easement from Jackson

County. 328 Wis. 2d 613, ¶1. The deed granted water flowage

rights to "CARL NEMITZ, his heirs, and assigns" and sand removal

rights to "the Grantee," who the document identified as "CARL

NEMITZ." Id. Nemitz transferred the land to the Boreks, who

then transferred it to Borek Cranberry Marsh, Inc. (BCM). Id.

When BCM attempted to remove sand, the county objected, claiming

the sand removal rights did not run with the land. Id., ¶2.

BCM sued. Id.

¶21 This court held the easement ran with the land. It

reasoned Wis. Stat. § 706.10(3) governs easements; then,

twisting the text, it concluded the sand removal rights could be

transferred because the deed did not contain an "express

statement" or "necessary implication" that the easement was

"only a limited, non-transferable right[.]" Id., ¶3. The negative implication that could be drawn based on the presence

of words of inheritance for the water flowage rights and their

conspicuous absence from the sand removal rights was not a

"necessary" implication.

Error 1: Ignoring the Text & Mixing Two Independent Clauses

¶22 The Borek majority did not start with the statute's

language. "[T]he beginning seems to be more than half the

whole, and many of the points being sought seem to become manifest on account of it." Teigen v. Wis. Elections Comm'n,

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No. 2022AP91, unpublished order (Wis. Mar. 28, 2022) (Rebecca

Grassl Bradley, J., concurring) (1 Aristotle, Nicomachean Ethics

ch.7 (approximately 340 B.C.)). An opinion resting on a weak

foundation is not be entitled to application of stare decisis.

See Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶259, 400

Wis. 2d 626, 971 N.W.2d 402 (Rebecca Grassl Bradley, J.,

dissenting), summarily rev'd sub. nom., Wis. Legislature v. Wis.

Elections Comm'n, 595 U.S. __, 142 S. Ct. 1245 (2022) (per

curiam) ("The primary and most important factor to weigh in

considering whether to overrule an earlier decision is its

correctness." (quoting Bryan A. Garner et al., The Law of

Judicial Precedent 397 (2016))).

¶23 In dissent, then-Chief Justice Shirley Abrahamson

explained Wis. Stat. § 706.10(3) has two clauses, "each complete

by itself and capable of standing as a separate sentence."

Borek, 328 Wis. 2d 613, ¶53 (Abrahamson, C.J., dissenting).

Section 706.10(3), broken into those clauses, provides:

1. In conveyances of lands words of inheritance shall not be necessary to create or convey a fee, and

2. 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. "As written, the first clause of . . . § 706.10(3) provides that

in conveyances of lands, words of inheritance (that is, words

like 'heirs' and 'assigns') are not necessary to create or

convey a fee." Borek, 328 Wis. 2d 613, ¶55. "The second

clause . . . provides that every conveyance shall pass all of the estate or interest of the grantor unless a different

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implication appears expressly or by necessary implication in the

terms of such conveyance." Id., ¶56. Legislative history

(discussed in more detail in the next section), confirms the

independence of these clauses. Id., ¶¶74–80.

¶24 The first clause has two key phrases:

(1) "conveyances of land"; and (2) "create or convey a fee."

The clause does not apply to every document that could be deemed

a "conveyance of land" but "only to a subset of

conveyances . . . that 'create or convey a fee.'" Id., ¶60.

While an easement could be a conveyance of land,5 it certainly is

not a fee. See id., ¶57. "[I]t is abundantly clear that the

granting of easement does not convey title to the land to an

easement holder but only a right or privilege." Id., ¶58

(citing Polebitski, 157 Wis. at 381); see also Berger v. Town of

New Denmark, 2012 WI App 26, ¶¶12–14, 339 Wis. 2d 336, 810

N.W.2d 833 (noting the common law distinction between a fee and

an easement). Chief Justice Abrahamson correctly concluded,

"[t]he conveyance of the easement for water flowage and the conveyance of sand removal rights in the instant case are not

conveyances of land creating a fee within the scope of the first

clause of Wis. Stat. § 706.10(3)." Borek, 328 Wis. 2d 613, ¶60.

Neither the majority nor the dissent in Borek noted that 5

"land" is a statutorily-defined term. Wisconsin Stat. § 990.01(18) notes: "'Land' includes lands, tenements and hereditaments and all rights thereto and interests therein." Given this definition, a deed granting an easement could be a conveyance of land because the deed creates a "right[]" or "interest[]" in land. Regardless, the deed would not create or convey a fee.

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¶25 The second clause applies more broadly to "every

conveyance." Wis. Stat. § 706.10(3). Notably, an easement is

not an "estate[.]" Borek, 328 Wis. 2d 613, ¶66. "This court

has repeatedly affirmed that an easement 'does not create an

estate in land,' but rather 'a right to use the land of another

for a special purpose not inconsistent with the general property

in the owner.'" Id., ¶58 (quoting Hunter v. McDonald, 78

Wis. 2d 338, 344, 254 N.W.2d 282 (1977)). "[A] right or

privilege is not an estate. The grantor of an easement is not

passing an estate." Id., ¶66. A grantor, however, may convey

an "interest" in an easement. Id., ¶67. Therefore:

[I]f an easement holder conveys the easement, the entire interest the grantor holds in the easement is transferred, unless there is a different expressed intent or necessary implication. If, however, the holder of the easement owns less than a full interest— —let us say she owns a one-half interest in the dominant estate and thus a one-half interest in the easement——she then conveys all of her one-half interest unless a different intent shall appear expressly or by necessary implication. Id. While the second clause applies to easements, it was no more relevant in Borek than the first. The focus of the case

was on the type of interest (personal or transferrable)

initially created, not whether the interest had been

subsequently transferred in full. Id., ¶78.

¶26 Because the first clause does not apply, it does not

foreclose the Cobbs' argument that the lack of words of

inheritance in the deed indicates King's predecessors received a

personal, non-transferrable easement. The second clause is not particularly relevant either because if King's predecessors did

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not receive a transferrable right, no reason exists to even

consider whether the Hessils' conveyance of the dominant estate

to King also transferred their easement. As the Cobbs put it,

"Wis. Stat. § 706.10(3) fails to apply because its second clause

confirmed only what King received, not what the Hessils (his

grantors) acquired." Instead of recognizing the independent

nature of the first and second clause, the Borek majority melded

the clauses together.

¶27 "The [Borek] majority bypasse[d] the precise language

and structure of Wis. Stat. § 706.10(3) and breezily

paraphrase[d] the two clauses[.]" Id., ¶68. The majority is

difficult to follow, but as Chief Justice Abrahamson summarized:

The majority's construction seems to use words of the first clause addressing words of inheritance to modify the second clause. At the same time the majority takes the words "unless a different intent shall appear," which appears only in the second clause, and construes them to modify the first clause. Id., ¶71. Stated differently:

[T]he majority mixes and matches words from the two clauses of Wis. Stat. § 706.10(3) to conclude (1) that words of inheritance shall not be necessary in any conveyance of lands, of an estate, or of an interest in land; (2) that every conveyance of an interest in land automatically implies words of inheritance (that is, that every conveyance of an interest in land includes the right of the grantee to transfer the same interest in the future); and (3) that a different intent, such as the intent that the conveyed interest in land be nontransferable, must appear expressly or by necessary implication in the terms of the conveyance. Id., ¶70. At other points, the majority also seemed to read words into the statute. Id., ¶69 ("The majority substitutes

'full title' for the words 'estate' and 'interest.' The 12 No. 2020AP925.rgb

majority does not explain why the words 'estate' and 'interest'

can be transformed into the words 'full title' and does not

explain the significance of the words 'full title.'"). "This

interpretation contravenes the plain text of the statute." Id.,

¶71.

¶28 The Borek majority "usurped the legislative function"

when it chose to "rewrit[e] the statute." St. Augustine Sch. v.

Taylor, 2021 WI 70, ¶125, 398 Wis. 2d 92, 961 N.W.2d 635

(Rebecca Grassl Bradley, J., dissenting). Having misconstrued

the statute, this court should not sidestep its duty to restore

its meaning. Id. ("The majority's refusal to correct Vanko's

irrefutably erroneous interpretation of the law 'does not

comport with our duty [to exercise our constitutionally-vested

'judicial power'] because it elevates demonstrably erroneous

decisions——meaning decisions outside the realm of permissible

interpretation——over the text of . . . duly enacted . . . law."

(quoting Gamble v. United States, 587 U.S. __, 139 S.Ct. 1960,

1981 (2019) (Thomas J., concurring)) (modifications in the original)).

Error 2: Misapplying the Borrowed-Statute Doctrine

¶29 The majority in Borek started its statutory analysis

by giving undue weight to pseudo-legislative history disguised

as statutory history.6 The majority noted a predecessor statute

Statutory history is a part of a proper "plain meaning 6

analysis"; legislative history is not. See generally Brey v. State Farm Mutual Automobile Ins. Co., 2022 WI 7, ¶¶20-21, 400 Wis. 2d 417, 970 N.W.2d 1 (explaining "[s]tatutory history, which involves comparing the statute with its prior versions, 'may . . . be used as part of a "plain meaning analysis"'" while "legislative history," which is primarily "the byproduct of 13 No. 2020AP925.rgb

to Wis. Stat. § 706.10(3) was partly based on a New York statute

enacted in 1835. Borek, 328 Wis. 2d 613, ¶19 (majority op.)

(quoting 1 N.Y. Rev. Stat. pt. 2, ch. 1, tit. 5, § 1 (1835)).

It came to this conclusion based on an annotation in an 1889

codification of the Wisconsin statutes, which stated the

predecessor statute had been composed partly "with additions of

words from the New York statute to give it full effect." Id.,

¶18 (quoting the annotation).

¶30 Chief Justice Abrahamson's dissent provides a more

detailed historical analysis. As she explained, in 1874 the

Wisconsin legislature adopted "the near-verbatim equivalent of

the first clause of the present [Wis. Stat.] § 706.10(3)." Id.,

¶74 (Abrahamson, C.J., dissenting). "In 1878, the legislature

then amended the statute. It added additional language that

would become the forerunner of the second clause of the present

version of § 706.10(3). The legislative history thus confirms

that § 706.10(3) is composed of two distinct clauses with

distinct origins and independent operation." Id., ¶75. ¶31 Well after 1878, New York's intermediate appellate

court purportedly held "an easement" is "an estate in fee" under

the New York statute.7 Id., ¶19 (majority op.) (quoting Whitney

legislation" does not evidence plain meaning (quoted sources omitted)); Wis. Judicial Comm'n v. Woldt, 2021 WI 73, ¶81, 398 Wis. 2d 482, 961 N.W.2d 854 (Rebecca Grassl Bradley, J., concurring/dissenting) (distinguishing statutory history from legislative history).

The Borek majority, or at least some of its members, may 7

have been operating under a common, yet faulty, assumption. New York's high court is called the "New York Court of Appeals." Its lower court is called the "New York Supreme Court," which consists of a trial division and an appellate division. 14 No. 2020AP925.rgb

v. Richardson, 13 N.Y.S. 861, 862 (N.Y. Gen. Term 1891)).

Oddly, this New York case, Whitney, takes center stage in

Borek's analysis.

¶32 The majority appears to have relied on a corrupted

version of the "Borrowed-Statute Doctrine." See Garner et al.,

The Law of Judicial Precedent, at 716. According to a leading

treatise, this doctrine holds:

When one state enacts another state's statutory language that has a settled judicial interpretation, it is sometimes presumed that the settled interpretation is adopted with the statute. But this overstates the matter: properly viewed, the decision of the source state's high court on a point concerning the statute are merely persuasive precedents and are not binding on the courts of the borrowing state.

The majority noted the decision was from "the Supreme Court of New York," suggesting it wanted to highlight the prestige of that institution to increase the persuasiveness of its reasoning. Borek Cranberry Marsh, Inc. v. Jackson Cnty., 2010 WI 95, ¶19, 328 Wis. 2d 613, 785 N.W.2d 615 (citing Whitney v. Richardson, 13 N.Y.S. 861, 862 (N.Y. Gen. Term 1891)). Compare Bryan A. Garner et al., The Law of Judicial Precedent 243 (2016) ("A court's rank and standing are important in considering a precedent's weight. Great deference is paid to those courts possessing an acknowledged reputation for learning and ability or a special and intimate familiarly with the branch of the law to which the decision in question relates.") and id. at 655 ("Whether construing a state's constitution, statutes, or regulations, or for that matter developing common law, the state high court has the final say——and thus final authority——over the interpretation of its own state's laws."), with id. at 253 ("Opinions of trial and other inferior courts generally rank low on the scale of authority but may be followed by higher courts or courts of another jurisdiction when no precedent exists or for other special reasons."). This notation, however, only serves to weaken the majority's reasoning——to place such weight on a decision from another state's intermediate appellate court is unusual.

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Id. This doctrine derives from the (questionable) presumption

that when a state's legislature adopts a statute based on

language in another state's statute, it is aware of how that

language has been interpreted and desires that interpretation to

be applied in its state. See id. at 717. Multiple problems

imbue the Borek majority's application of this doctrine.

¶33 First, the borrowed-statute doctrine does not apply

unless the other state's interpretation was rendered before the

statute was enacted. Id. at 722 ("The doctrine should never

apply to judicial interpretations of the source statute

occurring after its adoption." (emphasis added)); 2B Sutherland

Statutory Construction § 52:2 (7th ed. updated Nov. 2021) ("When

the state of origin interprets a statute after the adopting

state statute has been enacted, courts do not presume the

adopting state also adopted the subsequent construction."). The

reason why is clear: a legislature does not have a crystal ball

that tells it how some future court in another state will decide

a case, so it obviously is not basing statutory language on that future decision. See Garner et al., The Law of Judicial

Precedent, at 722; see also Goodell v. Yezerski, 136 N.W. 451,

452 (Mich. 1912) (explaining the borrowed-statute doctrine had

no application "because the statute under consideration did not

receive judicial construction [in the source state] . . . until

long after its adoption by this state").

¶34 Wisconsin Stat. § 706.10(3)'s predecessor was adopted

in 1878 (according to the Borek majority), and Whitney, the New York Supreme Court decision on which it relies, was decided over

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a decade later in 1891. Whitney, the Borek majority claimed,

was based on a New York Court of Appeals decision, but even that

decision was rendered in 1888——a full decade after the statutory

enactment. Borek, 328 Wis. 2d 613, ¶19 (citing Whitney, 13

N.Y.S. at 862 (citing Nellis v. Munson, 15 N.E. 739, 741

(1888))). For this reason alone, the New York cases are no more

persuasive than decisions from any other state——notwithstanding

the Borek majority's fallacious claim that they deserve special

weight because Wisconsin's statute was based on New York's. See

id., ¶21; see also Goodell, 136 N.W. at 452 (rejecting an

argument to apply the borrowed-statute doctrine and noting the

opinion from the source state "should receive just that

consideration as authority to which it would be entitled under

ordinary circumstances"); Sutherland § 52:2 ("A subsequent

construction in the state of origin is never more than

'persuasive,' and usually has no more weight than the

interpretation of any similar statute from another

jurisdiction."). ¶35 Second, Whitney is an intermediate appellate court

decision. The borrowed-statute doctrine does not apply (or at

least applies with much less force) to decisions of lower

courts——regardless of when they were rendered. Garner et al.,

The Law of Judicial Precedent, at 722; see also Sutherland

§ 52:2 ("Decisions from intermediate courts in the state of

origin, and from administrative tribunals, have less effect than

those of the highest court, because states normally adopt only decisions from a court of last resort when they adopt a

17 No. 2020AP925.rgb

statute."). Intermediate appellate courts decide an

extraordinary number of cases, and whether a state legislature

is aware of its own state intermediate appellate court's

decisions is questionable——let alone those of another state.

See Friends of Frame Park, __ Wis. 2d __, ¶¶57–68; see also

Lewis v. State, 256 P. 1048, 1049–50 (Ariz. 1927) ("It is the

general rule that when we take a statute from a sister state we

take it with the interpretation previously placed upon it by the

court of last resort of that state. This, however, is not an

absolute rule, and if we think the construction so given is not

consonant with common sense, reason, and our public policy, we

are not absolutely bound to accept it. Still less are we bound

when the decision is one of an intermediate appellate court, and

rendered after we have adopted the statute." (internal citation

omitted)); Given v. Owen, 175 P. 345, 346 (Okla. 1918) ("The

decision was handed down July 8, 1898, long after the adoption

of the Kansas Code of Procedure by the territory of Oklahoma;

for which reason, and the additional reason that the court rendering the opinion was not a court of last resort in the

state of Kansas, this court will not hold itself bound by the

construction promulgated.").

¶36 Third, the Borek majority misread Whitney and Nellis.

Whitney did not interpret the New York statute. Borek, 328

Wis. 2d 613, ¶77 (Abrahamson, C.J., dissenting). In fact, it

said very little on the topic at all. While the Borek majority

leaves the impression Whitney thoroughly analyzed this issue,

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the entire discussion of the statute is little more than a quote

of the statutory text followed by a conclusory statement:

1 Rev. St. 748, § 1, is as follows: "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 an intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant." In Nellis v. Munson, 108 N. Y. 453, 15 N. E. Rep. 739, it was adjudged that an easement to carry water across the lands of another, for the benefit of the dominant estate, is an interest in fee or of the freehold, within the meaning of the statute. In that case the instrument was not acknowledged or recorded. It was therefore held to be void as against the purchaser. In the case at bar the instrument was both acknowledged and recorded. The omission of the words "heirs or assigns" did not limit the extent of the grant. Nicoll v. Railroad Co., 12 N. Y. 121; Cole v. Lake Co., 54 N. H. 242, 243–278; Kirk v. Richardson, 32 Hun, 434, 435. Whitney, 13 N.Y.S. at 862–63. The word "easement" appears

exactly once in the entire opinion, in a passing reference to

another case. This passage is far from "sound reasoning" worthy

of deference. Garner et al., The Law of Judicial Precedent, at 164; see also Friends of Frame Park, __ Wis. 2d __, ¶66

(explaining a case's persuasiveness stems from "the decisive

nature of the conclusions announced, and the deliberation and

care with which they have been investigated" (quoting John

Cleland Wells, A Treatise on the Doctrine of Res Adjudicata and

Stare Decisis 535 (1878))).

¶37 Nellis is no more on point. As Chief Justice

Abrahamson noted in dissent, that case did not interpret the New York statute on which the Wisconsin statute was partly based.

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Borek, 328 Wis. 2d 613, ¶79. Nellis interpreted another

statute, on a related subject matter, which stated:

Every grant in fee or of a freeehold estate shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent. If not duly acknowledged previous to its delivery, . . . its execution and delivery shall be attested by at least one witness; or, if not so attested, it shall not take effect, as against a purchaser or incumbrancer, until so acknowledged. 3 N.Y. Rev. Stat. § 137 (as quoted in Nellis, 15 N.E. at 740).

An interpretation of a different statute, notwithstanding its similar subject matter, does not trigger the borrowed-statute

doctrine. See Garner et al., The Law of Judicial Precedent, at

718 ("For the doctrine to have any persuasive force, the statute

in the adopting state must be precisely the same as the one in

the source state." (emphasis added)).

¶38 On a similar note, the Borek majority acknowledged

Wis. Stat. § 706.10(3) was revised and renumbered in 1969, but

declared the changes "appear[ed]" to be merely "stylistic"

edits. Borek, 328 Wis. 2d 613, ¶20 (majority op.). The 1969

law revised the statute as follows:

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

Created by comparing 1969 Wis. Act 285, § 28, with Wis. Stat. § 2206 (1878) (as quoted in Borek, 328 Wis. 2d 613, ¶18). These

changes are substantive, not merely stylistic. Regardless, the 20 No. 2020AP925.rgb

text of the statute the court interpreted in Borek was

substantially different from the text of the statute purportedly

interpreted by the New York courts, as even a "cursory"

comparison of the two reveals. See Borek, 328 Wis. 2d 613, ¶22

(acknowledging a "cursory reading § 706.10(3) might suggest that

its provisions do not govern easements").

1 N.Y. Rev. St. 748, § 1 (as Wis. Stat. § 706.10(3) quoted in Whitney) The term 'heirs' or other words of inheritance shall not be In conveyances of lands words requisite to create or convey of inheritance shall not be an estate in fee, and every necessary to create or convey a grant or devise of real estate, fee, and every conveyance shall or any interest therein, pass all the estate or interest hereafter to be executed, shall of the grantor unless a pass all the estate or interest different intent shall appear of the grantor or testator, expressly or by necessary unless an intent to pass a less implication in the terms of estate or interest shall appear such conveyance. by express terms, or be necessarily implied in the terms of such grant.

Error 3: Giving Too Much Weight to the Borrowed-Statute Doctrine ¶39 The Borek majority failed to recognize the limited

reach of the borrowed-statute doctrine. Justice Antonin Scalia

and Bryan A. Garner have called the canon "dubious[.]" See

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 325–26 (2012). They asked

rhetorically, "[h]ow is the competent lawyer (or the court, for

that matter) to know that a statute has been 'copied' from that

of another state?" Id. at 326. As they explain, resort to

legislative history is often inappropriate. Id.

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¶40 Whether the borrowed-statute doctrine can even be

considered an intrinsic source of statutory meaning, as the

Borek majority seemed to treat it,8 is doubtful. Indeed, at

least one list of canons catalogs the doctrine under "extrinsic

source canons." See William N. Eskridge, Jr. & Philip P.

Frickey, Foreword, Law as Equilibrium, 108 Harv. L. Rev. 26, 100

(1994). The doctrine exists as a particular application of

legislative history, which may occasionally be useful to resolve

an ambiguity. See Garner et al., The Law of Judicial Precedent,

at 717–18 ("[T]he borrowed-statute doctrine is actually a

tenuous canon of construction that typically requires an

extensive use of legislative history (which is hardly a

recommendation for it in the eyes of traditionalists). Although

some will consider the doctrine helpful as an occasional aid in

statutory construction, it should never bind the courts when

other interpretative tools indicate a better interpretation.

The U.S. Supreme Court has viewed the principle this way[.]").

8 The Borek majority reasoned, "if there were any doubt [about the meaning of Wis. Stat. § 706.10(3)], 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." 328 Wis. 2d 613, ¶21. This statement indicates the court merely used the New York decisions to confirm § 706.10(3)'s plain meaning; however, the opinion read as a whole negates this possibility. The opinion does not lead with a textual analysis; it dives right into legislative history to establish the Wisconsin Legislature considered the New York statute (although it did not adopt the statute verbatim), then it discusses the New York cases, and only then does it try to provide a rationale grounded in the text of the statute. Id., ¶¶17–22.

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¶41 Additionally, overreliance on the borrowed-statute

doctrine is inconsistent with this court's general hesitancy

toward comparative law. Even if two states have similar

statutes, they may have vastly different methods of statutory

interpretation. "The hard truth of the matter is that American

courts have no intelligible, generally accepted, and

consistently applied theory of statutory interpretation." Henry

M. Hart & Albert M. Sacks, The Legal Process 1169 (William N.

Eskridge, Jr. & Philip P. Frickey eds., 1994). While Wisconsin

courts have long employed textualism, not every state does. See

generally Daniel R. Suhr, Interpreting Wisconsin Statutes, 100

Marq. L. Rev. 969 (2017) (explaining the general consensus among

Wisconsin judges to employ textualism is a notable

accomplishment). "This court has no apprehension about being a

solitary beacon in the law if our position is based on a sound

application of this state's jurisprudence."9 Johnson Controls,

Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶100, 264

Wis. 2d 60, 665 N.W.2d 257. ¶42 The Borek majority never declared Wis. Stat.

§ 706.10(3) ambiguous, so resort to extrinsic sources as the

The Borek majority stated in conclusory fashion that 9

"[o]ther states with nearly identical language have similarly interpreted their statutes to include easements as well as conveyances of land." 328 Wis. 2d 613, ¶19 n.9 (citing two cases from the Iowa Supreme Court and one from the Missouri Court of Appeals). Three cases from two states falls far short of a thorough survey. Regardless, these cases are not on point. Id., ¶79 n.15 (Abrahamson, C.J., dissenting) ("The majority's reference to case law from other jurisdictions is inapposite. The statutes are not the same as Wis. Stat. § 706.10(3). The cases revolve around the words 'heirs' or 'assigns.'").

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basis for interpreting the statute is impermissible. The

opinion seems to search for ambiguity, but none exists. See

Lamar Cent. Outdoors, LLC v. Div. of Hearings & Appeals, 2019

WI 109, ¶18, 389 Wis. 2d 486, 936 N.W.2d 573 ("[S]tatutory

interpretation involves the ascertainment of meaning, not a

search for ambiguity." (quoted source omitted)).

Error 4: Guessing Legislative "Intent" ¶43 Much of the Borek opinion either implicitly or

explicitly seeks to determine legislative intent. Its emphasis

on the borrowed-statute doctrine is but one example. As one

court recognized, "the purpose of the borrowed-statute doctrine

is to predict what the Legislature intended when it enacted a

substantive law." Antilles Sch., Inc. v. Lembach, 64 V.I. 400,

420 (2016) (cited source omitted).

¶44 The majority concluded the 1969 changes "appear[ed]"

stylistic because it was "unable to find any evidence, textual

or extra-textual, that these revisions reflected a legislative

intent to change the meaning of the statute." Borek, 328 Wis. 2d 613, ¶20 (emphasis added). This court has long

disavowed reliance on so-called "legislative intent," the search

for which leads to pure judicial activism. See, e.g., Townsend

v. ChartSwap, LLC, 2021 WI 86, ¶24, 399 Wis. 2d 599, 967

N.W.2d 21 (noting the court of appeals erred by relying on "its

perception of legislative intent when construing a statute"

instead of focusing on the words "the legislature actually

enacted into law" (quoting State v. Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165)).

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¶45 The very idea that legislative intent is even possible

to determine is a legal fiction:

The notion that you can pluck statements from a couple of legislators or even from a committee report, which is usually written by some teenagers, and . . . very often not even read by the committee, much less read by the whole House, much less less read by the other House, . . . [and presume the statements] somehow [are] reflective of the intent of the whole Congress and of the President . . . it truly is the last surviving fiction in American law. Clean Wis., Inc. v. Wis. Dep't of Natural Res., 2021 W I71, ¶90,

398 Wis. 2d 386, 961 N.W.2d 346 (Rebecca Grassl Bradley, J.,

dissenting) (quoting Hoover Inst., Uncommon Knowledge with

Justice Antonin Scalia, YouTube, at 17:40 (Oct. 30, 2012),

https://www.youtube.com/watch?v=DaoLMW5AF4Y (modifications in

the original)); see also Hinrichs v. DOW Chemical Co., 2020

WI 2, ¶103, 389 Wis. 2d 669, 937 N.W.2d 37 (Rebecca Grassl

Bradley, J., concurring/dissenting) (calling "legislative

intent" a fiction).

¶46 Even if courts could somehow divine legislative

intent, the Borek majority's claim that courts could determine

it based on a lack of "extra-textual" evidence is extraordinary,

particularly given the scant state of most Wisconsin legislative

drafting files from the mid-twentieth century (and which do not

exist at all for laws passed in the nineteenth century).10 The

10Legislative history research, particularly for older laws in Wisconsin, is a notoriously difficult exercise. See Michael J. Keane & Kristina Martinez, Researching Legislative History in Wisconsin, Wisconsin Briefs from the Legislative Reference Bureau, updated Nov. 2014, 1, http://lrbdigital.legis.wisconsin.gov/digital/collection/p16831c oll2/id/1238/rec/1 ("Researching the legislative history of a Wisconsin statute involves several practical obstacles. The 25 No. 2020AP925.rgb

Borek majority never cited anything from the 1969 drafting file

indicating the changes were stylistic; notably, its conclusory

statement was prefaced with the word "appear": "the changes

appear merely stylistic." Borek, 328 Wis. 2d 613, ¶20 (emphasis

added).

¶47 The majority also ignored one particularly important

intrinsic source, which the dissent mentioned. Wisconsin Stat.

§ 706.001(3) provided then (and provides now), "[t]his chapter

shall be liberally construed, in cases of conflict or ambiguity,

so as to effectuate the intentions of parties who have acted in

good faith." The Borek majority "violate[d] this specific rule

of construction by defeating the intent of the parties as

manifest in the terms of the document itself." Borek, 328

Wis. 2d 613, ¶73 (Abrahamson, C.J., dissenting).

legislative process in Wisconsin, as in many states, is not geared toward documenting legislative intent. Many of the resources commonly associated with legislative intent research with respect to the United States Congress have no counterpart in the Wisconsin Legislature. There is no verbatim record of floor speeches. There are no formal reports of standing committees indicating the reasons why legislation should be enacted. There is no transcript of committee proceedings. Without those resources, documentation of legislative intent must rely on other resources which are not necessarily relevant to intent, are often not useful, and usually must be interpreted in order to be helpful to the researcher at all."); see also Glendon M. Fisher, Jr. & William J. Harbison, Trends in the Use of Extrinsic Aids in Statutory Interpretation, 3 Vand. L. Rev. 586, 591 (1950) ("In contrast with the situation in the Federal Government is that to be found in the average state, where almost no legislatively-created extrinsic aids are available to assist the courts in interpreting statutes.").

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B. Stare Decisis Is Not Absolute

¶48 Reflexively cloaking every judicial opinion with the adornment of stare decisis threatens the rule of law, particularly when applied to interpretations wholly unsupported by the statute's text. Manitowoc Cnty. v. Lanning, 2018 WI 6, ¶81 n.5, 379 Wis. 2d 189,

906 N.W.2d 130 (Rebecca Grassl Bradley, J., concurring).

"[S]tare decisis is a judicially-created policy and 'not an

inexorable command;' for this reason, we will overturn precedent

if it is objectively wrong." Friends of Frame Park, __

Wis. 2d __, ¶64 (quoting Johnson Controls, 264 Wis. 2d 60, ¶97).

The majority in this case allows an erroneous interpretation of

a statute to prevail over the statute's actual text; however,

"[w]e cannot mistake 'the law' for 'the opinion of the judge'

because 'the judge may mistake the law.'" Johnson, 400

Wis. 2d 626, ¶259 (quoting Introduction, William Blackstone,

Commentaries *71). "[W]e do more damage to the rule of law by

obstinately refusing to admit errors, thereby perpetuating

injustice, than by overturning an erroneous decision." Friends

of Frame Park, __ Wis. 2d __, ¶65 (quoting State v. Roberson, 2019 WI 102, ¶49, 389 Wis. 2d 813, 935 N.W.2d 813).

¶49 Borek's analysis is "unsound in principle" because it

employed an approach to statutory interpretation inconsistent

with the textual approach reaffirmed in Kalal. Id., ¶95 (citing

Kalal, 271 Wis. 2d 633). "Kalal was a 'watershed decision in

the modern history of the Wisconsin Supreme Court' and is

Wisconsin's 'most cited case of modern times.'" Clean Wis., Inc., 398 Wis. 2d 386, ¶86 (quoting Suhr, Interpreting Wisconsin

Statutes, at 969–70). By one scholar's count, as of 2017, "the 27 No. 2020AP925.rgb

case ha[d] already been cited in over 800 subsequent published

decisions of Wisconsin's appellate courts[.]" Suhr,

Interpreting Wisconsin Statutes, 969. Strikingly, Borek

contains not a single reference to Kalal.

¶50 Borek is an outlier. Even if Borek reached the

correct outcome, its analysis demands reconsideration and

correction. Allowing Borek to stand embeds this court's error

in the law. See Thomas Hobbes, Leviathan 192 (Richard Tuck ed.,

Cambridge Univ. Press 1991) (1651) ("No man's error becomes his

own Law; nor obliges him to persist in it. Neither (for the

same reason) becomes it a Law to other Judges.").

¶51 While property owners who have structured their

decisions around Borek have a reliance interest, Wisconsin's

interest in correct interpretations of the law is paramount in

preserving the rule of law. The deed in this case pre-dates

Borek, as do all conveyances, so neither party can claim a

reliance interest. As for other deeds that post-date Borek,

this court could apply its holding prospectively. C. The Majority's Erroneous Exercise of Discretion

¶52 This case presents a compelling issue, worthy of this

court's reconsideration. No other court in the state can

address the problem this court created. "Dismissing a case as

improvidently granted is thankfully an uncommon occurrence in

this court." Fond Du Lac Cnty. v. S.N.W., 2021 WI 41, ¶2, 396

Wis. 2d 773, 958 N.W.2d 520 (mem) (Ann Walsh Bradley, J.,

dissenting from the opinion dismissing the petition for review as improvidently granted). To grant a petition is to recognize

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a case as important and parties "expend[] substantial effort and

resources" to inform our decisionmaking. Id., ¶3.

¶53 The majority's decision to declare this case

improvidently granted is peculiar. The majority must believe

one of two faulty premises: (1) Borek is clearly correct; or

(2) even if Borek is questionable, stare decisis necessitates

adherence to it. Borek is clearly incorrect. Its faulty

reasoning produced a misinterpretation of law. No principle

forming the doctrine of stare decisis compels upholding Borek.

IV. CONCLUSION

¶54 Stare decisis does not create rigid rules that cement

faulty interpretations of law. Consistency for consistency's

sake unavoidably perpetuates injustice. The majority in this

case fails to recognize the limited role of stare decisis,

leaving the impression that once an issue has been decided, the

decision may never be reexamined.

¶55 In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes [happily] up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it." G.K. Chesterton, The Thing: Why I am Catholic 27 (Dodd, Mead

and Co., Inc. 1930). Properly understood, stare decisis should be applied as Chesterton's more intelligent type of reformer

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would have it. Bartlett v. Evers, 2020 WI 68, ¶203–04, 393

Wis. 2d 172, 945 N.W.2d 685 (Kelly, J., concurring/dissenting).

Making this analogy, Justice Daniel Kelly explained the purpose

of stare decisis: "To remind us that those who came before were

diligent and capable in their work, and that in doubtful matters

it is best to leave settled things settled unless there is a

clear and present need to do otherwise." Id., ¶203. An ill-

reasoned court opinion should not be "a permanent fence[.]"

Id., ¶204. When an answer can be given to Chesterton's more

intelligent type of reformer, that is, when a later court can

identify precisely how an earlier court went wrong, the fence

may come down.

¶56 The Borek majority erected a fence where one did not

belong. In this case, the majority reinforces that fence,

without so much as an explanation. I respectfully dissent.

30 No. 2020AP925.bh

¶57 BRIAN HAGEDORN, J. (dissenting). I dissent because

I would address the questions presented rather than dismissing

the case as improvidently granted.

1 No. 2020AP925.bh