James Cobb v. Gary A. King

2022 WI 59SUPREME 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(2021 – unpublished)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 59NOTICE
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2020AP925, unpublished slip op.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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No. 2020AP925.awb
¶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
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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
3
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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,
8
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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
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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
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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.
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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
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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
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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
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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
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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.
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¶57 BRIAN HAGEDORN, J. (dissenting). I dissent because
I would address the questions presented rather than dismissing
the case as improvidently granted.
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