Grant of land for county highway was an easement; land could be included to meet minimum acreage requirement

by Victoria Heldt

Wade Berger and Ilona Berger v. Town of New Denmark, William Kreuger, Norbert Buresh
(Wisconsin Court of Appeals, January 10, 2012)

The Bergers own two contiguous plots of land in the Town of New Denmark.  The two plots are zoned for Agricultural use.  Since 2003, they have been attempting to obtain building permits for both plots.  The Town’s zoning ordinances require a plot to have at least 35 acres in area in order to grant a building permit.   At a meeting before the Town Board, Wade Berger demonstrated how part of plot A had been added to plot B so that plot B would comply with the 35 acre requirement.  In addition, the Bergers purchased additional property next to plot A in order for plot A to comply with the requirement.  In the presentation, Berger showed each plot having 35.190 acres.

The Town denied their request, claiming that the plots did not meet the 35 acre requirement.  They argued that the land over which County Highway T ran should not be included when totaling the acres.  When excluded, the parcels only totaled 34.5 acres each.  The Town argued that the Selners, the previous owners of the land, had granted full title of the property underlying the highway to the Town in the 1950’s when the road was constructed.  The district court ruled in favor of the Town.

On appeal, the Court focused primarily on the language that described the conveyance of property in the 1950s.  The title of the document read “Conveyance of Land for Highway Purposes.”  The Court noted that in previous cases, it was recognized that municipalities did not receive ownership of land used for a highway, only a right of way over such property.  It further pointed out that the language “right of way” used in the conveyance strongly suggests it was granting the County a “right to a reasonable and usual enjoyment” of the land and not full ownership rights.  It found that, unless clearly stated otherwise, a granting of land for the purpose of a highway is meant to serve only as an easement. As a result, both plots were determined to be over 35 acres.

Since this decision only clarified the plot’s compliance with the 35-acre requirement and not whether it is otherwise eligible for building, further proceedings were necessary.  The Court reversed the district court’s decision and remanded it for further judgment.

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