O'NEILL v. Reemer

• Decision Date: 05 March 2003
• Docket Number: No. 01-2402.,01-2402.
• Citation: 259 Wis.2d 544,2003 WI 13,657 N.W.2d 403
• Parties: Randy O'NEILL and Rita O'Neill, Plaintiffs-Appellants-Petitioners, v. James REEMER and Weyerhaeuser Company d/b/a Northwest Hardwoods, Defendants-Respondents.
• Court: Wisconsin Supreme Court

259 Wis.2d 544

2003 WI 13

657 N.W.2d 403

Randy O'NEILL and Rita O'Neill, Plaintiffs-Appellants-Petitioners, v. James REEMER and Weyerhaeuser Company d/b/a Northwest Hardwoods, Defendants-Respondents.

No. 01-2402.

Supreme Court of Wisconsin.

Oral argument November 14, 2002.

Decided March 5, 2003.

For the plaintiffs-appellants-petitioners there were briefs by Daniel C. Arndt and Arndt, Buswell & Thorn, S.C., Sparta, and oral argument by Daniel C. Arndt.

For the defendant-respondent, James Reemer, there was a brief by Ralph E. Johnson and UAW-GM Legal Services Plan, Janesville, and oral argument by Ralph E. Johnson. For the defendants-respondents, James Reemer and Weyerhaeuser Company d/b/a Northwest Hardwoods, there was a brief by Gerald W. Laabs and Laabs, Skolos & Mills, LLP, Black River Falls, and James M. Isaacson and Falkenberg & Isaacson, LLC, Cadott.

¶ 1. ANN WALSH BRADLEY, J.

The petitioners, Randy and Rita O'Neill, seek review of an unpublished decision of the court of appeals that affirmed the circuit court's grant of summary judgment dismissing the O'Neills' trespass claim against James Reemer, their neighbor, and Weyerhaeuser Company, which logged the strip of property in dispute.¹ The petitioners assert that the court of appeals erred in concluding that when a right of ownership is acquired by adverse possession over a 20-year period, the right may nevertheless be lost if within the subsequent 30 years title is not recorded as required by Wis. Stat. § 893.33(2) (1999-2000).² Because we conclude that the owner-in-possession exception to the 30-year recording requirement applies to adverse possession claims, we reverse the court of appeals decision and remand the action to the circuit court for further proceedings.

I

¶ 2. The O'Neills and James Reemer own adjoining real property in the Township of Little Falls, Monroe County, Wisconsin. The dispute in this case involves a strip of land that runs along the boundary between the two properties. Reemer has record title to the disputed strip. The O'Neills claim ownership of the disputed strip based on adverse possession. They filed this trespass action after Weyerhaeuser, hired by Reemer, logged the strip.

¶ 3. According to affidavits submitted by the O'Neills in support of their motion for partial summary judgment, a barbed wire fence was erected in 1944 by the O'Neills' predecessor in title to keep in livestock. The disputed strip is the land between the fence and the record boundary. Randy O'Neill's father purchased the land in 1958 and conveyed it to the petitioners in approximately 1999. The O'Neills and their predecessors in title claim to have used the land up to the fence for pasturing or hunting from 1944 through to the day logging began.

¶ 4. Reemer submitted affidavits in support of his cross motion for summary judgment averring that the fence consisted of only a few strands of barbed wire and that the disputed strip of property was a wild and overgrown natural area. He argued that the 30-year recording requirement precluded the O'Neills from asserting ownership by adverse possession.

¶ 5. For purposes of ruling on the summary judgment motions, the circuit court assumed that the adverse possession claim had ripened in 1964. Using the reasoning of Shelton v. Dolan, 224 Wis. 2d 334, 591 N.W.2d 894 (Ct. App. 1998), the circuit court determined that as of 1964 the 30-year period set forth in Wis. Stat. § 893.33(2) began to run against the adverse possession claim. Because neither the O'Neills nor their predecessors in title recorded any instrument or notice of claim to the disputed strip between 1964 and 1994, the circuit court concluded that any claim that the O'Neills may have had to ownership of the disputed strip based on adverse possession was barred as of 1994. Thus, the circuit court granted summary judgment dismissing the O'Neills' adverse possession claim.

¶ 6. In the alternative, the circuit court concluded that if the O'Neills' adverse possession claim was not barred by Wis. Stat. § 893.33(2), there were disputed issues of fact regarding whether the fence erected in 1944 was a substantial enclosure, which would preclude summary judgment for either party.³

¶ 7. The court of appeals affirmed the circuit court's decision. Applying Wis. Stat. § 893.33 as it was interpreted in Shelton, the court of appeals concluded that since neither the O'Neills nor their predecessor in title had recorded an instrument or a notice of claim to the disputed property within 30 years of the date on which they assert they obtained title by adverse possession, the circuit court correctly dismissed the O'Neills' claim. However, in its decision the court of appeals raised questions regarding the validity of Shelton's construction and application of the 30-year recording requirement to adverse possession claims. The court of appeals acknowledged the reasonableness of the petitioners' arguments, but observed that it was only the supreme court, not the court of appeals, which has the authority to overrule or modify Shelton. O'Neill v. Reemer, No. 01-2402, unpublished slip op. at ¶ 10 (Wis. Ct. App. April 25, 2002). The O'Neills now seek review of the decision of the court of appeals.

II

[1-3]

¶ 8. This case provides us with an opportunity to review the issue of whether the owner-in-possession exception to the 30-year recording requirement set forth in Wis. Stat. § 893.33 applies to adverse possession claims. This issue is raised in the context of a grant of summary judgment. We review a circuit court's grant or denial of summary judgment independently of the circuit court or court of appeals, applying the same methodology as the circuit court. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 536, 563 N.W.2d 472 (1997). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Here, there is no dispute of material facts relevant to the issue before this court. Instead, we are presented with a question of law which is subject to independent appellate review. Lewis v. Physicians Ins. Co. of Wisconsin, 2001 WI 60, 243 Wis. 2d 648, 654, 627 N.W.2d 484.

III

¶ 9. Our discussion in this case centers on statutes relating to adverse possession and decisions from this court and the court of appeals interpreting those statutes. The relevant statutes create the 30-year recording requirement and the owner-in-possession exception to that requirement. The 30-year recording requirement is set forth in Wis. Stat. § 893.33(2) which provides in part:

[N]o action affecting the possession or title of any real estate may be commenced ... which is founded upon any ... event occurring more than 30 years prior to the date of commencement of the action, unless ... within 30 years after the date of the ... event there is [an instrument or notice of claim recorded with the register of deeds].

[4-6]

¶ 10. The purpose of the 30-year recording requirement is to enhance the marketability of title to real estate and protect purchasers of real estate from stale claims challenging their title or possession. Herzog v. Bujniewicz, 32 Wis. 2d 26, 32, 145 N.W.2d 124 (1966). Under the 30-year recording requirement, a person who claims ownership rights as the result of an event loses the right to bring a claim based on that event if an instrument or notice of claim is not recorded within 30 years of the event. Adverse possession for the period of time necessary under the circumstances to obtain title is considered to be an "event" covered by the 30-year recording requirement and the 30-year period commences to run upon the expiration of that period. Id. at 31.

[7-9]

¶ 11. The owner-in-possession exception to the 30-year recording requirement is created by Wis. Stat. § 893.33(5) which provides in part:

[The 30-year recording requirement] does not apply to any action commenced ... by any person who is in possession of the real estate involved as owner at the time the action is commenced.

The owner-in-possession exception ensures that the rights of owners who are in possession of their property are not affected if they have not made the filings of record that would otherwise be necessary under the 30-year recording requirement. The exception does not impair the purpose of the 30-year recording requirement because the expectations of purchasers of property, whose interests are protected by the 30-year recording requirement, are different if the property that they are purchasing is clearly possessed by a party outside the chain of record title. This notice by possession and resulting difference in expectations provides the foundation of the owner-in-possession exception to the 30-year recording requirement.⁴

¶ 12. As noted, the court of appeals here applied the Shelton court's construction of the 30-year recording requirement and the owner-in-possession exception in reaching its conclusion that the circuit court properly granted summary judgment dismissing the O'Neills' adverse possession claim. The plaintiff in Shelton argued that the 30-year recording requirement did not apply to claims of adverse possession because of the owner-in-possession exception. The court of appeals rejected that argument and concluded that the plaintiff's adverse possession claim was properly dismissed because of a failure to satisfy the 30-year recording requirement.

¶ 13. In arriving at its ruling in Shelton, the court of appeals looked to two previous decisions of the supreme court, Herzog and Leimert v. McCann, 79 Wis. 2d 289, 255 N.W.2d 526 (1977), to see how to apply Wis. Stat. § 893.33 to ownership by adverse possession. To provide adequate background from which to evaluate Shelton, we first address this court's analysis of the two cases that serve as the underpinning of the Shelton decision.

¶ 14. In Herzog, we reviewed whether an adverse possessor can qualify for the owner-in-possession exception. Herz...