Buza v. Wojtalewicz

• Decision Date: 03 November 1970
• Docket Number: No. 164,164
• Citation: 180 N.W.2d 556,48 Wis.2d 557
• Parties: Chester H. BUZA et al., Respondents, v. Valerian P. WOJTALEWICZ et al., Appellants.
• Court: Wisconsin Supreme Court

Page 556

180 N.W.2d 556

48 Wis.2d 557

Chester H. BUZA et al., Respondents, v. Valerian P. WOJTALEWICZ et al., Appellants.

No. 164.

Supreme Court of Wisconsin.

Nov. 3, 1970.

Action to establish the boundary between adjoining parcels of land and to quiet title to a strip of land 20 feet wide along the boundary.

For a long time prior to April 20, 1948, John Bukowski and his mother were the owners of a parcel of land in Portage county, which parcel was bounded on the west by the 'old Wausau Road' and on the east by federal Highway 51. The southern boundary of the Bukowskis' property was the south forty line of the 40-acre quadrant in which the property was located. Bukowski owned nothing south of the south forty line. Starting from the forty line and measuring north along Bukowski's eastern border (Highway 51), Bukowski owned 257.75 feet to the north.

At the time Bukowski purchased his property, he put up a three-wire fence on what he thought was the south forty line (i.e., on what he thought was his southern border). In fact, Bukowski made an error, and the boundary he established by building this fence was actually located 20 feet south of the south forty line. Hence, Bukowski, by this error, increased his north-south property by 20 feet.

In 1948, John and Anna Bukowski disposed of this land, in three parcels, as follows:

1. To Chester Buza and wife--April 20, 1948:

'The South 77 1/2 feet of that part of the SE 1/4 of the NE 1/4 of Section 18, Tp. 24 N., R 8 E, which lies between Federal Highway No. 51 and the town road immediately to the west thereof, consisting of approximately 1 acre;'

2. To Victor Gollon--July 20, 1948:

'A part of the SE 1/4 of the NE 1/4 of Section 18 Tp 24 N, R 8 E and being more particularly described as follows--

'Commencing at a point on the west side of Federal Highway No. 51 at a point 77 1/2 feet due north from the south line of said forty, thence N'ly along the west line of said highway to a point 160 feet due north from the south line of said forty, thence west parallel with the south line of said forty to the Town Road; thence S'ly along the east side of the Town Road to a point 77 1/2 feet due north from the south line of said forty, thence east to the place of beginning;' and

3. To Valerian P. Wojtalewicz and wife--July 20, 1948:

'A part of the SE 1/4 of the NE 1/4 of Section 18 Tp 24 N, R 8 East and described as follows, Commencing on the west line of Highway No. 51, at a point 160 feet due north from the south line of said forty, thence following in a west line of said highway a distance to a point 97 3/4 feet due north from the place of beginning, thence west parallel with the south line of said forty to the town road, thence S'ly along the town road to a point 160 feet due north from the south line of said forty, thence east to the place of beginning.'

It should be noted that in all three descriptions the initial starting point is the south forty line. ¹

While the starting point in the deeds may have been the forty line, the fact is that no one checked to see where the true location of the forty line was. All three of the above-listed grantees occupied their respective parcels by reckoning from the southern fence line which Bukowski had built. All of them thought that this fence line was the forty line. Bukowski testified that when he sold the first (southernmost) parcel to Buza, he told Buza that the fence was the forty line and that he would sell him an acre north of it.

Thus, immediately after occupancy in 1948, unbeknown to all, Wojtalewicz was encroaching on Gollon's property the northern 20 feet thereof; Gollon was encroaching on Buza's property, the northern 20 feet thereof; and Buza was occupying the northern 20 feet of the land of his neighbor to the south.

In 1956, Buza purchased the lot owned by Victor Gollon. Victor Gollon was Chester Buza's father-in-law. Buza now owned, measuring from the old fence north along Highway 51, 160 feet (his original 77 1/2 feet, plus the 82 1/2 feet acquired from Gollon). Meanwhile, Valerian Wojtalewicz was busy occupying and improving the 20-foot strip in dispute, as well as the rest of his land.

On March 27, 1968, Buza hired one Leonard L. Lampert, a licensed land surveyor, to find the four corners of his property. The surveyor informed Buza that the true forty line--that is, the true southern boundary of Buza's property--was located not on a line identical to the old fence line as he and everyone else had thought, but that the true forty line was actually 20 feet north of the old fence line which was erected some 40 years earlier.

There is a second fence line involved in this dispute. It is located 160 feet north of the old fence line. We shall refer to this line as the stone fence line for reasons which follow. Sometime prior to 1953, when Victor Gollon was still the owner of the 82 1/2-foot parcel, Gollon and a friend placed a stone monument marker on the eastern (Highway 51) border of the property. There is a distinct and straight gouge marked in this stone; and the stone is placed so that the gouge mark points east and west on a line across the property. Mrs. Wojtalewicz testified that she witnessed the emplacement of this stone. Then, in 1953, Buza built a fence across the property on a line even with the stone marker. This was three years before Buza bought the property from Gollon, his father-in-law. Buza asked Wojtalewicz to pay for half of this fence. Wojtalewicz declined and Buza erected it on his own. This fence was 160 feet north of the old fence line.

This stone fence line represented what the parties thought was their common boundary. This fence stood for about ten years and is no longer there. However, the stone marker is still there, and the line on which the fence ran is still physically perceptible since Wojtalewicz has always mowed his lawn to that line, and further toward the west his garden comes up to that line.

After the survey Buza informed Wojtalewicz that he (Buza) owned the disputed strip. Up to that time Wojtalewicz had been in quiet, peaceful and uninterrupted possession of this strip for 19 years, eight months, and 19 days. A good portion of Wojtalewicz's driveway was on this strip, as well as a barbeque pit, clothes line poles and wires, a drywell and garden. He refused to vacate. On June 11, 1968, Buza commenced this action to quiet title.

The trial court concluded that the defendants did not show facts which would entitle them to come under one of the exceptions to the 20-year rule for adverse possession. The court granted judgment for the plaintiffs. Defendants appeal.

Atwell & Atwell, Stevens Point, for appellants.

Herman J. Glinski, Stevens Point, for respondents.

HANLEY, Justice.

Three issues are presented on this appeal:

(1) Are the appellants entitled to the 20-foot strip of land under the doctrine of acquiescence;

(2) Are the appellants entitled to the 20-foot strip of land under the doctrine of estoppel; and

(3) Should this court exercise its power of discretionary reversal under sec. 251.09, Stats., because the result below was inequitable?

Acquiescence.

The doctrine of acquiescence is a supplement to the older and harsher rule of adverse possession which held that adverse intent was the first prerequisite of adverse possession. This meant that in order for the adverse possessor to start the 20-year period running, he must commence his possession with knowledge that the land he was encroaching upon was not his and with an intent to dispossess the true owner. This meant that one who occupied part of his neighbor's land, due to an honest mistake as to the location of his boundary, could never start the statute running because he never formed the requisite adverse intent.

The harsh result of this rule soon became apparent in many jurisdictions and courts began to hold that land could be acquired by adverse possession, even though adverse intent was absent, if the true owner acquiesced in such possession for a period of 20 years. It is important to note that initially the period of time required for adverse possession continued to be 20 years even when the acquiescence version of the doctrine was applied.

In Wisconsin there are two time periods specified by statute for the acquisition of real property by adverse possession. Sec. 893.06, Stats., provides as follows:

'Presumption of adverse holding under conveyance or judgment Where the occupant or those under whom he claims entered into the possession of any premises under claim of title, exclusive of any other right, founding such claim upon some written instrument, as being a conveyance of the premises in question, or upon the judgment of some competent court, and that there has been a continual occupation and possession of the premises included in such instrument or judgment or of some part of such premises under such claim for 10 years, the premises so included shall be deemed to have been held adversely; except that when the premises so included consist of a tract divided into lots the possession of one lot shall not be deemed the possession of any other lot of the same tract.' (Emphasis supplied.)

This is the 10-year statute and, according to Zuleger v. Zeh (1915),...