Burkhardt v. Smith

• Decision Date: 05 June 1962
• Citation: 17 Wis.2d 132,115 N.W.2d 540
• Parties: Alfred A. BURKHARDT et al., Appellants, v. Harold SMITH et al., Respondents.
• Court: Wisconsin Supreme Court

Page 540

115 N.W.2d 540

17 Wis.2d 132

Alfred A. BURKHARDT et al., Appellants, v. Harold SMITH et al., Respondents.

Supreme Court of Wisconsin.

June 5, 1962.

The suit was for the removal of an obstruction of a public street; the defense, adverse possession and a denial of the street's existence. The reply claimed ownership of the land if it were not a public street. The trial court found no public street was dedicated, opened or used and the defendant's occupancy was adverse, continuous and exclusive for over 20 years. The plaintiffs Alfred A. Burkhardt and Robert R. Dunlap appealed from the judgment divesting them of title and declaring the defendant Harold Smith the owner of the land.

In June, 1928, an unimproved area on the north shore of Lake Pepin in Pepin county, Wisconsin, was platted as Deer Island Resort. The land along the lakeshore was divided into blocks designated A through J; along these blocks on the north a street was designated, and to the north of the street blocks L through V were indicated. Running generally north and south and separating the blocks were some nine 80 foot wide streets. The land in each of the blocks from A to J fronting the lakeshore was divided into six lots 55 feet wide. What would be the streets (80 feet wide) between these blocks and ending at the lake were designated X1 through X9. The trial court held these parcels, including X8, the land in question, were additional lots and not streets; from which determination, the plaintiffs do not appeal.

The defendant Harold Smith purchased on May 3, 1938, two 55 foot lots (Nos. 1 and 2 in block I). Contiguous with lot 1 on the east is parcel X8, and on the east of this disputed area lies lot 6 in block H belonging to the YMCA. The plaintiffs derived their title by warranty deed in April of 1955 to blocks M, N, O, P, and other lands, which included the disputed parcel X8 which the plaintiffs believed was a public street. Neither the plaintiffs nor their predecessors in title had at any time actually occupied tract X8. Additional facts will be stated in the opinion.

Wilcox & Sullivan, Eau Claire, Burkhardt & Dunlap, Plainview, Minn., for appellants.

Pat H. Motley, Alma, Fugina, Kostner & Ward, Arcadia, for respondents.

HALLOWS, Justice.

The only question is whether the finding of the trial court that the defendant acquired ownership of parcel X8 by adverse possession is contrary to the great weight and clear preponderance of the evidence. Since Smith is not claiming title founded upon a written instrument or a judgment or any color of title, his claim of title by adverse possession must meet the call of sec. 330.10, Stats., which requires adverse possession for 20 years. To sustain such a claim, only the land actually occupied is considered to be held adversely, ¹ and by sec. 330.09, Stats., land is deemed to have been possessed and occupied adversely when it has been protected by a substantial enclosure or when it has been usually cultivated or improved. No claim is made that lot X8 has been protected by a substantial enclosure for 20 years. The issue is whether the evidence shows the defendant usually cultivated or improved tract X8 within the meaning of the statute.

On July 3, 1938, shortly after the defendant purchased the lots, he commenced building a cottage which he thought was on the boundary line between his two lots but, in fact, was on the boundary line between his easterly lot No. 1 and parcel X8 and extended onto parcel X8 a distance of some 13 feet on the north side and five feet on the south. He did not discover this error for some four or five years. The cottage was completed in the summer of 1938 and a septic tank installed. In the same year Smith cleaned up his lots including lot X8 by cutting out all dead trees and all the bramble and wild bushes which he stacked and burned. He also dug up and burned all of the dead stumps. At the time of purchase, the land was wild, unimproved, and the surface was sandy with only a few patches of grass. He spaded up the entire area which was covered with weeds, raked it and seeded it with blue grass.

After completing the cottage, Smith married and lived there continuously with his wife during 1938 and for some years thereafter, then later used it for a summer place. These acts of Smith in 1938 are the only ones performed prior to 20 years before the commencement of this suit and must be considered as the indicia of his actual occupancy. During the subsequent years, Smith used lot X8 in various ways in keeping with the usual occupancy of a lakeshore cottage. In 1939 he built up the soil, reseeded the area, and planted trees in the northeast corner of lot X8 and along the north line and even extending over the boundaries of X8. He built a fence partly around the lawn on the north and on the east. The following year, 1940, he planted other trees in the area, added a terrace, walk and rock garden on the east side of the cottage. At various times in subsequent years, he had built on X8 a fireplace, fences approximately along the east line of X8, a rock garden, flower bed, clothes line, and swings for his children. For some period of time he had two cabins and a movable fishing shack. The cabins were sold to the YMCA and removed. During the time they were on parcel X8 the cabins were used either by the defendant, his relatives, or rented.

The plaintiffs contend the type of use shown was not open or adverse or inconsistent with non-ownership and that none of the uses excepting the main cottage was continuous for more than 20 years, and lastly, that possession was not of the entire lot. The plaintiffs rely on five cases for the proposition that cutting of grass and brush, planting of flowers, grass and trees, and the installation of temporary and movable equipment is not an open, hostile and notorious use. True, each of these various acts of the defendant did not continue for 20 years but they cannot be considered separately and without relation to each other, as the plaintiffs contend. The significance of the acts is to prove the continuity of the defendant's occupancy of parcel X8 which began in 1938.

The cases cited by the plaintiffs do not support their proposition. Bettack v. Conachen (1940), 235 Wis. 559, 294 N.W. 57, turned upon the issue the plaintiff's possession of the disputed strip of land was not exclusive and thus the owner had no notice of any intent or purpose to exclude him from the premises. We have no question of exclusiveness of possession here. Smith and his family were the only people using lot X8. Cuskey v. McShane (1958), 2 Wis.2d 607, 87 N.W.2d 497, likewise involved a dispute between adjacent land owners, and sporadic acts did not show exclusive possession. In Seybold v. Burke (1961), 14 Wis.2d 397, 111 N.W.2d 143, the court held that adverse possession was not proven by placing several concrete monuments some 900 feet apart and which were obscured by dense brush along the boundary lines of the disputed area. There was also a dispute whether there was any difference in the appearance of the area because of the cutting of the brush by the plaintiff. Likewise, we do not consider the facts in Ladd v. Hildebrant (1870), 27 Wis. 135, analogous. There, some brush was cleared from the property but thereafter nothing was done and no part of the land cultivated. In Miller v. Cumberland Petroleum Co. (1937), 269 Ky. 525, 108 S.W.2d 514, adverse...