Fauerbach v. Dane County , 232 Wis. 437 ( 1939 )

Condemnation of certain lands for park purposes on application of Dane county. Philip Fauerbach and Ellen Fauerbach appealed to the circuit court from the award of the commissioners and set up claim adverse to the title of the lands set out in the petition. A complaint was served to which the county demurred. The demurrer was overruled and the county appeals.

In the notice of appeal there is a reference to the opinion of the trial court, and appellant styles it an order and attempts to appeal therefrom, but the formal order duly entered is the one that can be appealed from. The order provides that the demurrer is overruled and that Dane county be allowed to answer within ten days.

The Fauerbachs' rights in the lands arise under several conveyances from Sivert Bryngelsen. They allege that they purchased certain lands bordering on Lake Waubesa with the understanding and stipulation in the deeds that "in case a road is laid out on the northeast of said premises, then the land conveyed is to extend back from the said shore line to such road on the side lines projected ;" that the road was built across the land; that the rights of the Fauerbachs matured and were enforceable; that by the said conveyances Sivert Bryngelsen and intermediate grantors vested in Philip Fauerbach a "future expectant estate in and to the lands conveyed to take effect in possession on the laying out of said highway," and that at the time of the conveyances referred to the lands described in the instruments were part of the tract owned by Bryngelsen and were situated on the shore of Lake Waubesa remote from any highway.

The demurrer to the complaint was upon the ground that it does not state facts sufficient to constitute a cause of action. In ruling upon the demurrer the trial court was of the opinion and held that the deeds of the shore lots contained a contract to convey additional land upon the happening of a certain contingency, and that the contingency which would bind the grantors to convey the additional land had happened. The respondents allege that by reason of certain stipulations in conveyances by Bryngelsen to Bischoff and by deeds to Philip Fauerbach they are entitled to lands the title to which is in controversy. The supposed defect in respondents' title pointed out by appellant rests on an uncertainty arising out of the circumstance that in deeding the lake-shore lots adjacent to the premises now claimed by respondents, there was inserted in the deeds the provision that in case a road was laid out on the northeast of said premises then the land conveyed is to extend back from the shore line on the side lines projected or extended to such road. The land referred to in that provision, being the shore lots and concededly conveyed by the deeds, was described; and the bounds from which the projected side lines were to run back to the road when laid out were fixed, thus leaving only the laying out of the road to complete and make definite the boundaries of the land now involved. So the issue presented relates to respondents' rights as owners and their compensable interest in land within the boundaries as now completed by the building of the highway. It is conceded that a highway was subsequently laid out on the northeast of said premises.

It is considered that the pleading challenged presents a situation surrounding the parties at the time of execution of the deeds which discloses with reasonable certainty the meaning intended by the parties. The complaint shows the instruments were recorded; that everyone interested had notice thereof; and in its present form the pleading sets forth the terms of a contract not too, indefinite for specific enforcement.

The trial court in passing upon the demurrer referred to the fact that in the complaint the pertinent parts of the deeds fixing the highway as a boundary constitute contracts to convey upon the happening of a contingency which has now become a fact and ruled that respondents have stated a cause of action for specific performance. This ruling is consistent with the rights of the parties as pleaded. Proprietors of theKennebec Purchase v. Tiffany, 1 Me. 219; Lerned v. Morrill,2 N.H. 197; Restatement, Contracts, p. 675, § 370; Whitmorev. Hay, 85 Wis. 240, 55 N.W. 708; 2 Tiffany, Real Property, p. 1652, § 444; Felin v. Philadelphia, 241 Pa. 164,88 A. 421; Manchester v. Hodge, 74 N.H. 468,69 A. 527; Makepeace v. Bancroft, 12 Mass. *469; and sec. 230.26, Stats.

By the Court. — Order affirmed. Cause remanded for further proceedings.