The Trusted Adviser February 2010 | Volume 3 • Number 2




Borek Cranberry Marsh, Inc v Jackson County, 773 NW2d 522, 2008 AP 1144 (Wis Ct App, 2009).

Facts:Carl Nemitz once owned a cranberry farm in the town of Knapp, Wisconsin. Nemitz purchased his property from Jackson County. The county owned, and to this day owns, the property adjacent to the farm. The deed from Jackson County to Nemitz contained an easement entitled, "Easement for Flowage Rights," in which Jackson County gave Nemitz, and his heirs and assigns, the full right and privilege to flow the county property with water. These flowage rights were perpetual, so long as the Nemitz property was being used for cranberry culture. Also included in the easement was a provision from the grantor to the grantee with no mention of heirs or assigns, that allowed Nemitz the right to remove sand from the county property for the purpose of cranberry culture.

In May 1978, Julius and Darlene Borek acquired the full interests in the property from Nemitz by deed. The deed explicitly passed the rights of the "Easement for Flowage Rights" to Julius and Darlene Borek. The two then passed ownership to the property and the easement rights to the Borek Cranberry Marsh corporation (Borek), of which they were the original shareholders.

Borek sought to make use of the sand removal rights in the cranberry farm operation, but the county contended that the right to sand removal was nontransferable. The lower court granted a motion for summary judgment in favor of Jackson County.

Holding:Reversed. Jackson County argued before the court of appeals that the deed language "his heirs and assigns" present in the flowage rights and absent from the sand removal rights signified that only the water flowage rights were meant to be transferable.

Borek argued that the sand removal rights were part of the single "Easement for Flowage Rights" and that the easement as a whole is plainly transferable due to the "his heirs and assigns" language. Borek further argued that the "heirs and assign" language is no longer necessary in Wisconsin and that all property rights are now considered transferable unless stated otherwise, further proving that the easement was transferable as a whole. The court of appeals agreed on this point.

The court concluded that the sand removal rights were transferable because there was no language expressly providing, or necessarily implying otherwise. The court found that, while the presence of one "heirs and assigns" and the lack of a second could potentially mean that there was an intent to have the flowage rights be the only transferable right in the easement, it was not a necessary implication.

The court further refused to apply the principle found inBrody v Long, 13 Wis 2d 288 (Wis, 1961) that provided that deeds should be construed in favor of the public body. In the first part, the court objected to the vagueness ofBrodyand argued that it failed to explain when this presumption should be applied. Jackson County argued that theBrodypresumption that deeds should be read in favor of the public body applied in close cases. Without agreeing or disagreeing with this interpretation, the court declined to applyBrody, deciding that the issue was nowhere near a tie.






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[Last update: 1-18-10]