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Ronkowski v. United States

United States District Court, W.D. Wisconsin

May 23, 2018

EDWARD E. RONKOWSKI, JR. and JOANN RONKOWSKI, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         Plaintiffs Edward E. Ronkowski, Jr. and JoAnn Ronkowski own real property in Bayfield County, Wisconsin. They filed this suit against the United States of America under the Quiet Title Act, 28 U.S.C. § 2409a, seeking to: (1) quiet title on any claim by the United States for a purported easement or public access inside the boundaries of plaintiffs' property; and (2) confirm an access easement over a small segment of road on land owned by the United States Forest Service, an agency of the United States Department of Agriculture. Both sides have filed motions for summary judgment which are ready for decision. Dkt. ##11, 20.

         I conclude that the United States has submitted a valid disclaimer to plaintiffs of any interest in the segment of road running across plaintiffs' property and therefore, this court has no jurisdiction over plaintiffs' first claim. With respect to the second claim, I conclude that plaintiffs have failed to show that they have an easement under any legal theory. Therefore, I am granting defendant's motion for summary judgment in full and denying plaintiffs' motion.

         From the parties' proposed findings of fact and responses, I find the following facts to be material and undisputed unless otherwise noted.

         UNDISPUTED FACTS

         A. The Parties' Property

         Plaintiffs own approximately 120 acres of undeveloped real property in the Town of Drummond in Bayfield County, Wisconsin, identified as Township 44 North, Range 8 West and part of Section 12. Plaintiffs and their guests have used the property for a variety of recreational and sporting activities since plaintiffs acquired ownership of the property in 1972. Defendant United States owns the real property located directly to the north, east and south of plaintiffs' property.

         B. Historical Ownership of Plaintiffs' and Defendant's Property

         In 1887, the Rust-Owen Lumber Company Limited acquired a large tract of land, including the property now owned by plaintiffs. In 1914, Rust-Owen acquired additional land adjacent to the property now owned by plaintiffs. In 1918, Rust-Owen transferred 80 acres of land to Tony Altobelli, and in 1919, it transferred an additional 40 acres of adjacent land to Altobelli, for a total of 120 acres. Ownership of the 120 acres changed over the years, but the entire 120 acres was deeded to plaintiffs and Josephine Ronkowski in 1972. Josephine Ronkowski died in 2000, leaving plaintiffs as the exclusive owners of the 120 acres.

         In 1935, Rust-Owen sold large tracts of land bordering plaintiffs' property to the United States. Defendant's property is now managed by the United States Forest Service as part of the Chiquamegon-Nicolet National Forest.

         (Image Omitted)

         C. Access to Plaintiffs' Property

         The only road that reaches plaintiffs' property is a Forest Service road, FR822A, which enters plaintiffs' property near the southeast corner by way of land owned by defendant. At the southeast corner of plaintiffs' property, FR822A travels east through defendant's land for about half a mile, until shortly before the border of property owned by Eric Allen. FR822A then turns south until it reaches Oswald Road, a public road, at the southern border of the Forest Service land. At the point where FR822A turns south, a short access road connects FR822A through defendant's land, to a road that runs east-west through the private property owned by Eric Allen, just below the tip of the arrow shown on the photograph of the area. (Throughout this opinion, I will refer to this small portion of road on Forest Service land as the “access road.” Plaintiffs' January 2018 survey shows the current location of the small access road. Dkt. #30-4. Although neither side states specifically the length of this access road, it appears from maps that it is only about 200 feet long.) The east-west road running through Allen's property eventually reaches Blue Moon Road, another public road.

         Since acquiring the property, plaintiffs have gained access to their property several times a year by traveling from Blue Moon Road across Eric Allen's property and the small access road to the segment of FR822A that reaches their property. Allen has given plaintiffs a written easement that permits them to use the road on Allen's land. FR822A is a Forest Service road open to the public. Plaintiffs do not have any written easement or special use permit to use the small access road owned by defendant.

         Defendant has not spent money maintaining FR822A or the small access road. Over the years, plaintiffs have maintained the small access road by removing downed trees and branches, cutting saplings and brush on the roadside and filling large ruts and potholes in the roadway with sand, clay, dirt and gravel so that the road remains accessible for motor vehicles. In September 2013, plaintiffs hired a company to log a portion of their property. They directed a bulldozer operator to bulldoze the entire length of road from the Allen property to plaintiffs' property to smooth the existing route for logging trucks going in and out of plaintiffs' property. As a result of their efforts, many different types and sizes of vehicles can traverse this route without damaging their undercarriage or exterior paint.

         The parties disagree about whether plaintiffs can reach their property without relying on the “access road.” Defendant says plaintiffs can do so using FR822A. Specifically, defendant says that plaintiffs could drive west on Oswald Road, then turn north onto FR822A, and follow FR822A north and west until it eventually reaches plaintiffs' property. Defendant says the condition of FR822A between Oswald Road and plaintiffs' property is similar to the condition of the access road plaintiffs now use and for which plaintiffs seek confirmation of an easement. Defendant submitted a 16-minute videotape made and narrated by Randy Erickson, a forest land surveyor for defendant, dkt. #9-19, in which Erickson drives the full length of FR822A from Oswald Road to plaintiffs' property in June 2017. He does so in a two-wheel drive Jeep Patriot and asserts that the road has good drainage and is in decent condition from spring into the fall, when it is popular with hunters.

         Plaintiffs dispute the accuracy of Erickson's statements in the video and state that the north-south segment of FR822A between Oswald Road and plaintiffs' property does not provide a reasonable, year-round means of access to plaintiffs' property because it is in worse condition than the route by which plaintiffs can reach their property now, which includes the access road. Specifically, plaintiff Edward Ronkowski says that when he drove the north-south segment of FR822A, it was extremely narrow, had deep ruts that filled with water when it rained and had overlapping vegetation that slapped the windshield and sides of his vehicle. (Defendant concedes that water may pool on the road after it rains, but not for much longer than one day.) Plaintiffs say these conditions require drivers to slow to no more than a few miles per hour. Additionally, plaintiffs say FR822A becomes impassable for any vehicle without high clearance and four-wheel drive for a few days after a rain. Finally, plaintiffs say that the route from Oswald Road via FR822A is longer than the route from Blue Moon Road, although they do not say how much longer. (In the video submitted by defendant, Erickson drove the length of FR822A from Oswald Road to the intersection of the access road in approximately six minutes.)

         D. Historical Evidence of FR822A and the Access Road

         Plaintiffs have adduced no evidence that any portion of FR822A or the “access road” between what is now plaintiffs' property and Blue Moon Road existed when Rust-Owen conveyed property to Tony Altobelli in 1919. Maps created before 1919 do not depict any road connecting plaintiffs' property to any public road. Beginning in 1920, various maps show a road running eastward from the south-eastern corner of plaintiffs' property to Blue Moon Road. Historical maps show the road running in a generally straight line from Blue Moon Road to plaintiffs' property, straddling the section line between Section 7 and Section 18 of Township 44 North, Range 8 or running just south of it. Dkt. ##7-17, 7-15, 15-1.

         At some point, the portion of the east-west road that is now known as FR822A began curving northward at the eastern boundary of plaintiffs' property, veering into Section 7, then turning south into Section 18 before leveling out along what appears to be the border of Sections 7 and 18. The segment of FR822A that runs southward to Oswald Road appears on maps as early as 1938, although the road was not officially designated as a public Forest Service road until 2008. Dkt. #7-16.

         At the time Rust-Owen conveyed what is now plaintiffs' property to Tony Altobelli in 1918 and 1919, it owned much of the land on which FR822A and the access road now run. However, Rust-Owen did not own an 80-acre parcel in the eastern half of the southwest corner of Section 7, abutting the west side of what is now the Allen property; the company had conveyed that 80-acre parcel to John Johnstone in 1916. (Johnstone conveyed the 80-acre property back to Rust-Owen on August 21, 1931.)

         The parties dispute the location of FR822A and the access road during the time that Johnstone owned the 80-acre parcel. Citing a 1920 Wisconsin Historical Society map, plaintiffs say that during Johnstone's ownership of the specified property, the access road was located either just south of the Johnstone property line and through property still owned by Rust-Owen, or on the property line between the Johnstone property and property owned by Rust-Owen to the south. Dkt. ##7-14, 9-13. Defendant disputes the accuracy of the maps, stating that the actual location of the road is reflected on the more recent survey from 2018, which shows a road running fully onto the former Johnstone property before traveling onto other land now owned by the United States. Dkt. #30-4.

         E. Plaintiffs' Efforts to Obtain Confirmation of ...


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