Lisa A. Riegleman Revocable Trust v. Michael Eder

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 11, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP975 Cir. Ct. No. 2017CV42
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
LISA A. RIEGLEMAN REVOCABLE TRUST,
PLAINTIFF-APPELLANT,
V.
MICHAEL EDER, BARBARA EDER, JOHN A. ROTHSTEIN,
JENNIFER ROTHSTEIN, SHARON F. ZACHOWSKI REVOCABLE TRUST,
JEROME A. LIPPERT AND DONNA R. LIPPERT,
RESPONDENTS-RESPONDENTS.
APPEAL from a judgment of the circuit court for Juneau County:
STACY A. SMITH, Judge. Affirmed.
Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP975
¶1 PER CURIAM. Lisa A. Riegleman Revocable Trust (“the Trust”)
appeals a final judgment, entered following a bench trial, determining the northern
boundary of property that it owns in Lisbon, Wisconsin (“the property”). We
conclude that the Trust fails to show that the circuit court acted improperly in
rejecting the accuracy of the Trust’s survey of the property and in accepting the
accuracy of existing recorded surveys. Accordingly, we affirm.
BACKGROUND
¶2 This is a boundary dispute between the Trust and those persons and
entities listed as respondents in the caption of this appeal (“the Neighbors”). The
Trust and each of the Neighbors own properties located along a town line running
east-west and separating the town of Clearfield (to the north) and the town of
Lisbon (to the south).1
¶3 The property at issue here is in Section 2 in Lisbon, just south of and
abutting the town line. Directly north of the property, and also abutting the town
line, is Section 35 in Clearfield. As pertinent here, the Trust’s deed describes the
property as “[t]he east half of the east half (E 1/2 E 1/2) of fractional section
two (2), township 16 north, range 3 east, town of Lisbon, Juneau County,
Wisconsin.”2 The deed states that “access to [the property] is provided by” a road
running along the town line (“the road”), which the deed describes as:
1
The Neighbors’ properties are either adjacent to or at least near to the property, and are
located such that the redetermination of the property’s boundaries sought by the Trust affects
their boundaries.
2
The Trust’s deed describes two portions of land in the town of Lisbon—one northern,
one southern—together comprising the complete property. The outcome of this dispute affects
the entire property but the argument between the parties specifically concerns the location of the
northeast corner, which is part of the northern portion of the property described in the deed.
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a two (2) rod road, the center line of which is the town line
separating Section 2 [in Lisbon] and Section 35 [in
Clearfield] as established by a decision of the joint town
boards and affirmed in a court award dated September 25,
1936 and located [in the] Highway Register ….
¶4 In 2015, the Trust requisitioned a survey from Quest Civil
Engineers, LLC (“the Quest survey”) to confirm the property’s boundaries and, in
particular, the location of the northeast corner of Section 2 (a survey “corner”
being the intersection point of two survey lines, which, as pertinent here, meet at a
right angle to define the northeastern boundary of the property). The Quest survey
fixed the property’s northern boundary as the center line of the road,
approximately forty feet3 north of the boundary established by two surveys from
surveyor Gary Dechant (“the Dechant surveys”) that had been recorded in 1994
and 1998. Thus, according to the Quest survey, the property is larger, and extends
farther north, than what is shown on the recorded Dechant surveys. Given this
conflict between the Quest and Dechant surveys, the Trust brought this action to
quiet title and for a declaration of interest, seeking, among other relief, an order
establishing the boundary lines of the property in accordance with the Quest
survey.
¶5 The circuit court held a two-day bench trial on the Trust’s action, the
result of which would establish the settled location of the northeast corner of
Section 2. The court heard testimony from the parties’ surveyors. It also
conducted a site visit of the property and the road. In a written decision, the court
3
The Neighbors state that the Quest survey fixes the northern boundary line
approximately forty-nine feet north of where the Dechant surveys fix that boundary line. Because
it is unclear on what basis the Neighbors rely for the longer distance, and because the evidence on
record better aligns with a distance of approximately forty feet, we use the latter distance. For
purposes of this decision, it is immaterial whether the Quest survey extends the property’s
northern boundary by forty feet or forty-nine feet.
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No. 2020AP975
determined that the Dechant surveys were more accurate than the Quest survey on
record. Accordingly, the court entered a judgment and an order declaring that the
1998 Dechant survey depicts the northeast corner of Section 2 (and, by extension,
establishes the Trust’s northern boundary and the town line in the pertinent area).4
The Trust appeals.
DISCUSSION
I. Overview and Standards of Review
¶6 As our supreme court has recognized, boundary dispute cases
“cannot easily and consistently be divided into doctrinal categories.” Northrop v.
Opperman, 2011 WI 5, ¶27, 331 Wis. 2d 287, 795 N.W.2d 719. Moreover,
“doctrinal categories significantly overlap,” id., and “are not used in a consistent
fashion in the case law,” id., ¶29. Wisconsin case law on the settling of boundary
disputes “demonstrates that the resolution of” these questions generally “depends
on fact-specific analyses,” id., ¶26, which frequently centers on the opinions of
professional surveyors. Id.; see also e.g., id., ¶¶41-56.
¶7 This case, indeed, involves a battle of the surveyors—the Quest
surveyors versus surveyor Dechant—with the Trust seeking to prove to the circuit
court that the Quest survey more accurately established the northeastern corner of
Section 2. The location of this corner, in turn, determines the location of the
northern boundary of the property.
4
The 1994 and 1998 Dechant surveys are of neighboring parcels and fix the same
boundary line. Although the circuit court order references only the 1998 Dechant survey, the
order reflects the location of the northeast corner of Section 2 as determined by both surveys.
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No. 2020AP975
¶8 The parties agree that the disputed corner’s correct location is
wherever the original 1851 survey first set this corner. Thus, both sets of surveys
are technically “resurveys,” meaning that they “do[] not determine title to land but
seek[] to find and identify the land embraced within the [original] description” of
the property—here, the 1851 survey. See Gilbert v. Geiger, 2008 WI App 29, ¶18,
307 Wis. 2d 463, 747 N.W.2d 188 (internal quotation marks and quoted source
omitted). In a resurvey, “the surveyor’s only function or right is to relocate, upon
the best evidence obtainable, the corners and lines at the same places where
originally located by the first surveyor on the ground.” Id. (internal quotation
marks and quoted source omitted); see also id. at ¶19 (“The object of a resurvey is
to furnish proof of the location of the original survey’s lost lines or monuments,
not to dispute the correctness of it.”). The parties also agree that no direct
evidence remains of an original marker in the ground for this corner based on the
1851 survey and that the Quest and Dechant surveys sought to retrace the
historical location of the corner.
¶9 It is also undisputed that the Lisbon-Clearfield town line demarcates
the northern boundary of the property. Therefore, a central issue in this case is
where that town line is. The Trust’s position is that the town line (and therefore
the property’s northern boundary) runs along the center of the road. The
Neighbors argue that the road runs north of the town line in that area. Thus,
although the parties and surveyors sometimes refer to the issue as involving the
location of the property’s “northeast corner,” the issue on appeal boils down to the
same question: is the property line (or corner) on the center line of the road, or, as
the Neighbors argue, is the property line (or corner) located some forty feet south
of that point?
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No. 2020AP975
¶10 The Trust raises two threshold questions on appeal: (1) whether the
circuit court’s reliance on “extrinsic evidence” (that is, evidence apart from the
deed) was proper, and (2) whether the Dechant surveys are contrary to Wisconsin
property law because they do not treat the road as a monument that conclusively
establishes the property’s boundary line. We decide these two legal issues de
novo. See Gilbert, 307 Wis. 2d 463, ¶¶10, 19. If we determine that there were no
errors in this regard, then the circuit court’s determination of the location of the
northeast corner becomes a purely factual finding, resting on the court’s
assessments of witness credibility and the weight of the evidence presented. In
such case, we review the conclusion deferentially, for clear error. See Northrop,
331 Wis. 2d 287, ¶42 (“[The] determination of the best evidence locating the
boundary line … is essentially a finding of fact.”).
II. Analysis of the Trust’s Arguments
A. The circuit court properly rejected the Trust’s argument that the deed
unambiguously establishes the Trust’s northern boundary and therefore
controls.
¶11 The Trust argues that the deed to the property is unambiguous and
therefore controls the location of the disputed boundary. As stated, the deed
describes the pertinent portion of the property as follows, with emphasis on the
language upon which the Trust relies:
The east half of the east half (E 1/2 E 1/2) of
fractional section two (2), township 16 north, range 3 east,
town of Lisbon, Juneau County, Wisconsin…. Access to
the above described premises is provided by a two (2) rod
road, the center line of which is the town line separating
Section 2 [in Lisbon] and Section 35 [in Clearfield] as
established by a decision of the joint town boards and
affirmed in a court award dated September 25, 1936 and
located [in the] Highway Register ….
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No. 2020AP975
(Emphasis added; capitalization removed.) According to the Trust, this language
“unambiguously establishes the location of [its] northern boundary” as the center
of the road. Therefore, the Trust argues, the circuit court erred in considering
evidence extrinsic to the deed in resolving the parties’ boundary dispute. In
support of its position, the Trust relies on Chandelle Enterprises, LLC v. XLNT
Dairy Farm, Inc., 2005 WI App 110, 282 Wis. 2d 806, 699, N.W.2d 241, which,
as we explain below, is inapplicable here.
¶12 Chandelle addressed the doctrine of acquiescence and deed
reformation based on mutual mistake. Id., ¶1. In discussing these issues, we
noted that, unless the property description contained in the deed is ambiguous, the
court may not look to extrinsic evidence to determine the intent of the parties. Id.,
¶12. We concluded that, “because … the description by quarter section is not
ambiguous, the doctrine of acquiescence does not apply.” Id., ¶16. The Trust’s
reliance on Chandelle is misplaced. First, this case does not involve the doctrine
of acquiescence or deed reformation. Second, the Trust does not rely on the actual
property description contained in the deed. Instead, it argues that a reference in
the deed to the location of the town line should dictate the outcome. Third, the
deed here describes which portion of Section 2 the Trust owns, but it does not
purport to fix the location of Section 2 in relation to the road. It merely states that
“[a]ccess” to the property is “provided by” the road. And although the deed
describes “the center line of” the road as “the town line,” the Trust fails to provide
any authority for the proposition that a deed between private parties can be used to
establish the location of a township line. We therefore decline to consider this
argument. See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009
WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (arguments unsupported by
legal authority will not be considered).
7
No. 2020AP975
¶13 Accordingly, the Trust has failed to show that the deed controls the
location of the disputed boundary, such that the circuit court was prohibited from
considering evidence extrinsic to the deed in resolving the parties’ boundary
dispute.5
B. The Trust has not shown that the Dechant surveys are contrary to Wisconsin
property law.
¶14 The Trust next argues that only the Quest survey, and not the
Dechant surveys, followed Wisconsin law. Specifically, the Trust contends that
the Dechant surveys failed to follow “Wisconsin’s ‘hierarchy’ of evidence” or
utilize “the best available evidence.”
¶15 When a boundary cannot be determined from the deed and the
original markers or monuments, a “circuit court looks to the best evidence of the
boundary line.” Northrop, 331 Wis. 2d 287, ¶42.6 The “determination of the best
evidence is essentially a finding of fact.” Id. In this context, the hierarchy of
“best evidence” for determining a boundary line is as follows:
[M]onuments set by the original survey in the ground, and
named or referred to in the plat, are the highest and best
evidence. If there are no such monuments, then stakes set
5
The circuit court determined that resort to extrinsic evidence was proper because the
deed was latently ambiguous: it described a 2-rod (or 33-foot) road, but the court visited the road
and observed that it was only about 8 feet wide. See Gilbert v. Geiger, 2008 WI App 29, ¶15,
307 Wis. 2d 463, 747 N.W.2d 188 (discussing “latent ambiguity”). The parties dispute whether
the circuit court’s conclusion was correct. We need not decide this point, however, given our
conclusion that the deed does not address the dispositive issue of the location of the property’s
northern boundary in relation to the road.
6
Northrup discusses boundary line determinations in “survey/fence cases,” or cases in
which there is a dispute between a survey and a longstanding landmark fixing a boundary. See
Northrop v. Opperman, 2011 WI 5, ¶¶39-40, 42, 331 Wis. 2d 287, 795 N.W.2d 719. The parties
appear to agree that the framework articulated in Northrop is applicable here and we take our
lead from the parties in this regard.
8
No. 2020AP975
by the surveyor or soon thereafter are the next best
evidence. Buildings, fences, and other substantial
improvements built according to the stakes laid out while
they were present are the next best evidence of the line.
Id., ¶47 (internal quotation marks, quoted source, and footnotes omitted).
¶16 In determining the best evidence, Wisconsin case law has also
referred to a “priority of calls,” in which natural monuments take precedence over
artificial monuments. See Gilbert, 307 Wis. 2d 463, ¶19 (“‘[t]he priority of calls
is, first, the natural monuments to which [the plat or survey] refers; [and] second,
the artificial monuments the surveyor places to mark the boundaries.’” (quoting
Miller v. Lavelle, 130 Wis. 500, 504, 110 N.W.2d 421 (1907))).
¶17 The Trust argues that the “best evidence” was the road and that the
Dechant surveys were flawed in not relying on this evidence to determine the
property’s northern boundary. This argument fundamentally misapplies the
relevant case law. “Best evidence”—be it a natural or an artificial monument—is
dependent on context. Here, the road might be dispositive evidence of the
property’s northern boundary line if there were undisputed evidence of all of the
following: that the road existed in 1851; that the original 1851 survey of the
property referred to this road in fixing the northern boundary; and that the road ran
along precisely the same path in the pertinent locations from 1851 to the present.
Here, however, the 1851 survey does not refer to any monuments at all (including
any roads). Moreover, the road that is now visible was not built until 1936, with
no evidence in the record showing that it has remained in the same location since
then.7
7
The Trust’s brief-in-chief repeatedly refers to the road as a “natural monument,” but
cites no authority for this position. Although we need not decide this issue, we note that pertinent
(continued)
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No. 2020AP975
¶18 Our case law instructs that when, as here, the original monuments
are lost or destroyed, “the best evidence to establish property lines may be long
continued occupation,” Northrup, 331 Wis. 2d 287, ¶48 (emphasis added), with
“continued occupation” essentially referring to how local residents have
themselves treated the boundary lines in that location, id., ¶¶49-56. In such case,
“an ancient fence (or other landmark) may be competent evidence of the location
of the boundary,” meaning, here, that the location of the road may be relevant. See
id., ¶49 (emphasis added). Thus, contrary to the Trust’s assertion, the road is not
dispositive evidence of the property’s boundaries. On this ground, we reject the
Trust’s position that the Dechant surveys are fundamentally unsound as a matter of
law. Rather, we must determine whether the circuit court clearly erred in
accepting the Dechant surveys as more accurate (and, by extension, in determining
that the location of the road was not the best evidence of the property’s northern
boundary).
C. The circuit court did not clearly err in finding that the Quest survey was less
reliable than the Dechant surveys.
¶19 Because the terms of the deed do not establish the disputed
boundary, and because the Trust has not shown that the Dechant surveys failed to
comply with the law, this case comes down to a fact-based dispute. The Trust
argues that the center line of the road is the best evidence of the town’s (and
therefore the property’s) boundary. The Neighbors argue that the road as it now
authority from a source that this court has previously cited belies the Trust’s assertion. See 12
AM. JUR. 2D Boundaries § 6 (“Natural monuments include such natural objects as mountains,
streams, rivers, creeks, springs, and trees. Artificial objects and monuments consist of marked
lines, stakes, roads, fences, buildings, and similar matters marked or placed on the ground by the
hand of man.” (footnote omitted)); see also Gilbert, 307 Wis. 2d 463, ¶¶18-19 (citing 12 AM.
JUR. 2D Boundaries with approval).
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No. 2020AP975
exists does not follow the town line and that other monuments are better evidence
of the original town line. We construe the evidence and reasonable inferences in
the Neighbors’ favor, as we must. See Fields Found., Ltd. v. Christensen, 103
Wis. 2d 465, 485, 309 N.W.2d 125 (Ct. App. 1981) (appellate court “must accept
reasonable inferences drawn by the trier of fact from credible evidence”). This
evidence includes the following.
¶20 Gary Dechant is a professional surveyor who, at the time of trial,
was the Juneau County Surveyor. Dechant created the 1994 and 1998 surveys
establishing the existing location of the northeast corner of Section 2 vis-à-vis the
road. In surveying the area, Dechant recognized that, per BROWN’S BOUNDARY
CONTROL AND LEGAL PRINCIPLES (a resource that the parties treat as a leading
treatise on resurveying), there is a hierarchy of methods for determining the
location of a corner. Only when the surveyor can find no evidence of the original
corner should he or she use the “proportionate method,” which involves working
backwards from known boundary lines to triangulate a corner.
¶21 Dechant determined that use of the proportionate method was
appropriate because the most prominent evidence tending to establish the town
line in that location—the road—was “ambiguous.” Specifically, a 1936 road order
provided for the creation of a 2-rod (33-foot) road. A 1998 court order, entered on
a certiorari petition to declare the road public and rebuild it, referred to the road as
a 4-rod (66-foot) road (2 rods in Lisbon and 2 rods in Clearfield). Thus, Dechant’s
position was that, although he knew that the road existed within either a 2- or 4-
rod corridor, he could find no evidence that the road was built such that the center
line fell on the town line. In fact, according to Dechant, the evidence showed the
opposite. For example, the road had several significant bends, so it could not
possibly have tracked the straight town line in every location. Dechant also noted
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No. 2020AP975
that this was a “low marshy area”; in such cases, “[m]any roads [that were]
intended to [follow] section lines [instead] followed the best suitable path that
would best hold a road.” Moreover, the operative statute on laying down town
line roads permitted their location “as near to the town line as the situation of the
ground will admit,” which provided a statutory basis for laying out the 1936 road
near, but not on, the town line.
¶22 Dechant therefore walked east-west across the pertinent location—
approximately two miles—and surveyed via the proportionate method.8 Dechant
testified that other evidence supported the location he established for the northern
boundary of Section 2. For example, he found a partially buried barbed wire fence
consistent with the line as he determined it, indicating that someone had treated
this location as a boundary. He also noted that his surveys, and not the Quest
survey, most closely corresponded to the acreage originally calculated for Section
2.
¶23 Dechant also testified about evidence that he characterized as
significant, and which he discovered years after the second of his two surveys in
anticipation of the trial in this case. Dechant, in reviewing his past work, testified
that he realized that a different surveyor had set down the location of a “mound
and pit” in this area. Dechant testified that a mound and pit is “a common feature
for marking corners in marshy areas during the original government survey or
subsequent surveys” and that, for this reason, the location of an original marker
8
The Trust repeatedly argues that Dechant “did not bother to walk the property,” a
puzzling assertion in the face of the circuit court’s specific factual finding that “Dechant was the
only [surveyor] who actually walked the whole land and even beyond.” If the Trust intended to
argue that this finding was clearly erroneous, then the Trust should have done so directly.
12
No. 2020AP975
would be strong evidence of the location of the original survey line. Dechant
testified that he visited the area, found a mound and pit, and determined that “it is
in a perfect line with the line [he had already] established.”
¶24 In contrast, the Quest surveyors treated the center line of the existing
road as the best evidence of the northern boundary because, according to their
testimony, the road demonstrated physical occupation—“where everybody’s been
kind of living [and] doing business.” In testifying, the Quest surveyors also
referred to previous surveys, relying on monuments those previous surveyors set
or accepted, and also relied on documents and court orders pertaining to the
establishment of the road in 1936.
¶25 The circuit court found that the Neighbors “proved … that the
Dechant survey is the proper northern boundary.” The court based its decision
largely on the existence of the mound and pit testified to by Dechant, which the
court found to be “very relevant and credible evidence” that “Dechant’s survey is
more valid.” The court noted also noted that “Dechant was the only [surveyor]
who actually walked the whole land and even beyond,” and remarked, “Maybe if
the other surveyors would have done as diligent a job, they would have come to
the same conclusion.”
¶26 In arguing that the circuit court’s findings are clearly erroneous, the
Trust focuses on what it characterizes as Dechant’s questionable decision to rely
on the proportionate method. But Dechant testified about why he chose that
method, and the court accepted this explanation. As stated above, Dechant also
testified that additional evidence—and, he later determined, the original “mound
and pit” monument—supported the accuracy of his results. As stated, the
“determination of the best evidence locating the boundary line … is essentially a
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No. 2020AP975
finding of fact.” Northrop, 331 Wis. 2d 287, ¶42. We will not disturb the circuit
court’s conclusion that Dechant properly conducted his survey.
¶27 The Trust also raises several arguments as to why Dechant was not a
credible witness. For example, the Trust alleges that Dechant “violated Wisconsin
law” by failing to timely file documentation supporting his 1994 survey. But the
circuit court found that Dechant was “very credible,” stating, “Dechant showed his
knowledge, experience, and his memory was good; and he did not have interest in
the case.” We cannot substitute our own view of witness credibility for that of the
trial court. See Mullen v. Braatz, 179 Wis. 2d 749, 756, 508 N.W.2d 446 (Ct.
App. 1993) (“[I]t is the trial court’s, not this court’s function to assess the weight
and credibility of testimony.”).9
¶28 Finally, the Trust implies that the mound and pit does not exist or
that Dechant did not accurately testify about how or when he discovered it. To be
clear, we discern no basis evident in the record for any conclusion that Dechant
misrepresented some fact about the mound and pit. If the Trust means to argue
that it was blindsided by the late disclosure of Dechant’s testimony about the
existence of this monument, then this implication too is not borne out by the
record. Rather, in the face of the Trust’s trial objection that “[t]his is information
that we’re hearing for the very first time,” the circuit court offered to adjourn the
trial or “even add another day down the road if you want” so that Trust
9
The Trust also contends that Dechant was not credible because he contradicted himself
at trial about when he last visited the property. According to the Trust, Dechant testified that he
visited the property “‘early this year, late last year’[,] [but] not more than 20 minutes later …
testified that he went to the property ‘last Friday.’” Setting aside the fact that we cannot
independently judge witness credibility, the Trust’s argument appears to be contradicted by the
trial testimony, which suggests that Dechant was discussing two distinct locations.
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No. 2020AP975
representatives could visit the site and present rebuttal evidence. The court
explained that it “want[ed] to hear all the best evidence” and did not “want to be
back here in five years with the same issue.” The Neighbors assert, and the Trust
appears to concede, that the Trust did not take the court up on its offer. Rather, in
its briefing to this court, the Trust merely implies that it did not visit the “alleged”
mound and pit because that monument did not exist—a circumstance that, if the
Trust believed to be true, should have been argued to the circuit court and
supported with evidence. We conclude that the circuit court had an ample basis to
credit Dechant’s testimony on this topic.10
CONCLUSION
¶29 For the reasons stated, we affirm the circuit court’s final judgment.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2019-20).
10
The Trust further makes alternative arguments that surveyors in 1851: (1) typically did
not use the mound and pit monument; (2) would not have used this monument in the location
where this mound and pit was allegedly found; and/or (3) would have made express reference to
this monument in their notes if they had set down this monument. Not only does the Trust raise
these arguments for the first time in its reply brief, but the Trust appears to be making these
arguments for the first time on appeal, with reliance on industry sources that do not appear to be
testified about or entered into evidence at trial. Accordingly, the Trust has forfeited these
arguments. See State v. Huebner, 2000 WI 59, ¶¶10-11 & n.2, 235 Wis. 2d 486, 611 N.W.2d
727.
15