Gilbert v Geiger (WI)

747 NW2d 188 (Wis Ct App 2008)

Facts: The Gilberts and the Geigers owned adjacent land plots along a lake, with the Gilberts owning the northern property and the Geigers owning the southern property. When the land was first divided, the original owner had a survey created and marked specific points for the lots (such as the corners) with iron pipes, which the owner oversaw and verified the location of at later dates. The deeds to the land specifically referenced these iron pipes. After the Geigers had purchased the land they received results of a new survey which showed the metes and bounds description of their deed would give them more lakefront property that the iron pipe location.

When notified of the Geigers' survey results, the Gilberts sued the Geigers, seeking a declaration of the correct property line. The Geigers counterclaimed for encroachment and nuisance. The court considered, but denied, the Geigers' request to exclude all extrinsic evidence, and ultimately ruled that the iron pipe marked the property boundary. The Geigers appealed, arguing (1) The deed is not ambiguous and so analysis should be confined to the language of the instrument and (2) The court wrongly decided the parties' intent for the land marker to be the iron pipe when the metes and bounds description was clear.

Holding: Affirmed.

(1) The trial court acted properly in allowing extrinsic evidence. A court should consider extrinsic evidence only if the deed is indeterminate. But while the metes and bound description is clear, it references the pipe. The pipe is a landmark whose location does not fit the metes and bounds description, and that makes the deed ambiguous.

(2) The Geigers' claim that the trial court incorrectly found the intent of the parties was based on the findings of the re-survey they requested. A re-survey does not grant the land, but seeks to define the land granted by the deed. The goal is to show proof of the original survey's lines and monuments, not show whether it was correct or incorrect in its measurements. The trial court found that the iron pipe was the same one referenced in the original deed, and referenced landmarks take precedence over marked distances. Therefore the trial court correctly ruled the intent of the parties.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Thu, 07/31/2008 - 12:35pm