Cuskey v. McShane

Decision Date07 January 1958
Citation87 N.W.2d 497,2 Wis.2d 607
PartiesR. J. CUSKEY et al., Respondents, v. Carrie McSHANE, Appellant.
CourtWisconsin Supreme Court

Douglas, Omernik & Bitney, Spooner, for appellant.

Coe & Coe, Rice Lake, for respondents.

BROWN, Justice.

Plaintiffs have record title to land identified herein as Lot 5. Defendant has record title to Lot 4 which adjoins Lot 5 on the east. Both titles descend from one Swanson. Both parties occupy their respective lots. Defendant has excluded plaintiffs from the easterly 4.8 feet of Lot 5 beginning, according to the complaint, on or about August 1, 1954 when defendant erected a fence along such 4.8 foot line. Defendant admits plaintiffs' record title to Lot 5 but rests her defense and counterclaim to the east 4.8 feet of Lot 5 on her alleged adverse possession of such land for more than twenty years preceding the commencement of this action.

The trial court found that the acts of occupation which defendant relies on were not done in a hostile manner nor under claim of right; that such occupation as defendant imposed was not open, obvious, evident or notorious to the plaintiffs; that such acts of occupation were not continuous through the twenty year period or exclusive as against the plaintiffs but were of an equivocal character and sporadic and affecting small and differing portions of the disputed strip until on or about August 1, 1955, when defendant placed a fence along the line making the west boundary of such disputed strip. (The record places this date about August 1, 1954.)

Findings of fact by a trial court are not to be disturbed on appeal unless contrary to the great weight and clear preponderance of the evidence. Swazee v. Lee, 1951, 259 Wis. 136, 47 N.W.2d 733.

We cannot find that these findings lack sufficient support in the evidence. Each party testified that he or she performed various acts of ownership on the disputed strip. Thus, in behalf of defendant, the evidence shows that she had a swing and hammock for a part of the time in trees standing on the disputed area. There was testimony that she cared for the strip by putting some fill upon it, by mowing the grass and otherwise cleaned up the area at all times during the preceding twenty years when she considered it needed such cleaning up.

On the other hand, the plaintiffs testified that they cut the grass, trimmed the trees, and parked cars and equipment in such area at will. In connection with his filling station business Mr. Cuskey Fastened one end of an advertising banner to one of the trees now claimed by defendant. Defendant's son told him to take it down. He refused to do so and the banner remained there.

In Bettack v. Conachen, 1940, 235 Wis. 559, 294 N.W. 57, 62, we gave exhaustive consideration to the subject of the acquisition of title by adverse possession. Significant statements of principle from the opinion in that case are:

'Before one neighbor can acquire title by adverse possession of property belonging to another he must do something which clearly brings home to his neighbor the fact that he intends to claim the property against his neighbor and the world. * * * A mere dispute as to the location of the true boundary accompanied by acts which do not exclude the neighbor from possession do not give notice to the neighbor of any hostile intent or any purpose to exclude the neighbor from his customary possession of the premises. The plaintiffs are met at the threshold of their claim by the presumption that Conachen is in possession of the lands described in his deed. To overcome that presumption there must be something which shows they intended...

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10 cases
  • Meyer v. Xcel Energy Servs.
    • United States
    • Wisconsin Court of Appeals
    • April 27, 2023
    ... ... possession of the property during the required statutory ... period." (internal footnote omitted)); see, ... e.g. , Cuskey v. McShane , 2 Wis.2d 607, 609-10, ... 87 N.W.2d 497 (1958) (holding that use was not exclusive of ... the true owners because the true ... ...
  • Burkhardt v. Smith
    • United States
    • Wisconsin Supreme Court
    • June 5, 1962
    ...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......
  • Keller v. Morfeld, 97-3443
    • United States
    • Wisconsin Court of Appeals
    • October 15, 1998
    ...the possession"--to claim exclusive right to property which one possesses physically, but not by record title. Cuskey v. McShane, 2 Wis.2d 607, 610, 87 N.W.2d 497, 499 (1958); see also Burkhardt, 17 Wis.2d at 139-40, 115 N.W.2d at 544. To evince hostility in this sense, an adverse claimant ......
  • Allie v. Russo
    • United States
    • Wisconsin Supreme Court
    • March 27, 1979
    ...act of exclusion was the erection of the garage about 1928." Id., 235 Wis. at 569, 570, 294 N.W. at 62. Similarly, in Cuskey v. McShane, 2 Wis.2d 607, 87 N.W.2d 497 (1958), adverse possession was not found because the evidence disclosed that both parties had performed various acts of posses......
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