Roberts v Tholl (WI)


Roberts v Tholl, 745 NW2d 87 (Wis Ct App 2007).

Facts: On September 22, 1999, George and Deborah Roberts Family, LLC (Roberts) purchased a tract of land from Peter F. Becker, which was fronted on one side by County Trunk Highway LL, formerly State Highway 141, and on the other side by a parcel owned by Nicholas Tholl. The Tholl parcel had previously been part of the Becker family farm and Becker's grandfather conveyed it to Albert Fenner and his wife by warranty deed, which included the right to use an easement for ingress and egress to what was now the Tholl parcel. The easement specifically provided that the Fenners had "the right to the use of the private driveway as now used, which said driveway extends from the premises to U.S. highway 141." To reach Tholl's parcel via the easement, one must also cross Sucker Brook, but there was no mention in the deed of a bridge over Sucker Brook, nor did the deed contain any obligation of Becker to maintain a bridge over the private driveway.

After renting the property for 10 years, in 1996 Tholl received title to the parcel by warranty deed, which set forth a legal description and granted the purchaser the right to use the private driveway as now used. During that time, the only bridge over Sucker Brook was one owned by a local snowmobile club. Sometime in the late 1980s, Tholl's brother, Edward, learned from a local realtor that he had located an affidavit recorded by Albert Fenner in 1956, which stated that prior to his purchase of the Tholl parcel, he and the seller agreed that the seller would be responsible for keeping the driveway and bridge in reasonable repair. Attached was a handwritten note, signed by the Beckers and the Fenners in 1926, stating "Bridge to be passable and driveway to be kept in reasonable repair and right of way to road leading to property."

On December 22, 2003, Roberts filed a complaint alleging causes of action for trespass and nuisance against Tholl, claiming that Tholl repeatedly allowed his dogs to run wild on the Becker parcel. Tholl counter-claimed, alleging that an easement existed by virtue of the deed recorded by Fenner in 1956. Tholl further alleged that the document required Roberts to maintain an easement roadway and bridge over Sucker Brook for Tholl's benefit. The jury determined that Roberts did not have actual knowledge of an obligation to maintain the easement and bridge, but did have constructive knowledge. Nevertheless, the trial court granted a directed verdict in favor of Roberts. Tholl appealed.

Holding: Affirmed. On appeal, Tholl contended that the trial court erred because there was ample evidence to support the jury's finding that Roberts had constructive notice of a duty to maintain the easement driveway and bridge. In support of this contention, Tholl argued first, that Roberts failed to exercise the due and diligent inquiry required under Wis. Stat. section 706.09(2)(a) that would have disclosed an obligation to maintain the easement driveway and bridge, and second, that the 1956 Fenner affidavit showed further that Roberts should have been aware of the problems posed by Sucker Brook and his duties to maintain a bridge over it.

The court agreed with the trial court's determination that Roberts properly consulted the three sources of information that the purchaser should consult to learn of rights to the land: (1) Roberts obtained a title commitment in connection with the purchase of the Becker parcel, which identified the Fenner deed that contained the easement, but was silent as to a requirement to maintain a bridge over Sucker Brook; (2) the title commitment showed that the title searcher reviewed the records in the county for judgments and liens; and (3) Roberts walked the land several times with realtors in connection with his purchase. There was no bridge present at this time, nor when Tholl took possession of the land in 1986.

Regarding the Fenner affidavit, the only evidence pertaining to the obligation to maintain a bridge appeared to be in the 1926 note. That note did not appear in the chain of title to the Becker parcel as set forth in the title commitment and the title searcher did not locate it. There is no requirement that purchasers must hand-search the records at the Register of Deeds to see, in the absence of proper recording, that there is some adverse interest. Therefore, the court held that there was no statutory authority for accomplishing a correction of the description of the property conveyed by the deed by simply recording an affidavit and that a recorded affidavit that is not part of the chain of title does not equal constructive notice of easement obligations.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Thu, 07/03/2008 - 4:05pm