A state appeals court has rejected the town’s argument that private landowners did not meet certain acreage requirements for development because the landowners’ predecessors-in-interest transferred an easement, not fee title, in land designated for a highway.
By Joe Forward, Legal Writer, State Bar of Wisconsin
Jan. 11, 2012 – A county that acquired property from private landowners “for highway purposes” did not acquire fee title to the property, a state appeals court recently ruled.
The Town of Denmark argued that Wade and Ilona Berger did not meet the applicable acreage requirements to develop on their land because Brown County, not the Bergers, owned the property underlying a highway that abutted their property. The circuit court agreed.
But the District III Wisconsin Court of Appeals reversed in Berger v. Town of Denmark, 2011AP1807-FT (Jan. 10, 2011), concluding that Wisconsin requires an express grant to transfer fee title, and no express grant was given to Brown County in 1951 and 1956 conveyances.
Wis. Stat. section 83.08, in place in 1951, encourages county highway committees to acquire land in fee simple or by easement to build and maintain highways. But conveyance of a “right of way” does not convey absolute title, the appeals court explained.
“If, as the Town asserts, the parties intended to grant Brown County title to the land, their choice of the phrase ‘right of way’ is certainly curious,” wrote Reserve Judge Thomas Cane. “Absent express language to the contrary, our courts presume that the grantor of land to be used for roadways intended to convey only an easement.”
The appeals court remanded the case to resolve disputes regarding whether covenants in the deed granting “good and perfect title” nevertheless transferred fee title, and whether the town’s ordinance “allows for the inclusion of public right-of-ways when calculating acreage” for purposes of granting permits to develop property.