Foster v. Fabish, No. 2009AP455 (Wis. App. 4/1/2010), 2009AP455.

Decision Date01 April 2010
Docket NumberNo. 2009AP455.,2009AP455.
PartiesKurt Foster and Jean Foster, Plaintiffs-Appellants, Nicholas L. Sies, Jennifer M. Sies, George Eichelkraut, Lois Eichelkraut, Jon Marsh, Cindy Marsh and Jeffrey Sarbacker, Plaintiffs, v. Jerome J. Fabish and Natascha Buter, Defendants-Respondents.
CourtCourt of Appeals of Wisconsin

APPEAL from an order of the circuit court for Green County: JAMES R. BEER, Judge. Affirmed.

Before Dykman, P.J., Vergeront and Lundsten, JJ.


Kurt and Jean Foster appeal a summary judgment order that dismissed their claims against Jerome Fabish and Natascha Buter for adverse possession, trespass, and declaratory judgment of their rights under an easement. For the reasons discussed below, we affirm the circuit court.


¶ 2 The dispute in this case involved several neighboring parcels of land in New Glarus that were once commonly owned, but were sold off separately over a period of years. The Fosters, Nicholas and Jennifer Sies, Jon and Cindy Marsh, Jeff Sarbacker, and George and Lois Eichelkraut all claimed to own or rent parcels with a common right-of-way over a driveway located along the north side of property owned by Fabish and Buter. In 2007, Fabish and Buter placed various obstructions on the driveway that the easement holders believed interfered with their right-of-way. The easement holders filed this suit in response to the obstructions, and eventually amended their complaint to seek damages on claims of adverse possession and trespass, as well as declaratory judgment on the scope of their rights under a recorded easement.1

¶ 3 The plaintiffs' claim of a recorded easement was based on a provision in Fabish and Buter's deed stating that Fabish and Buter's property is subject to a right-of-way on the driveway along the north side of the property, to be used in common with others. The claimed easement holders and their predecessors in interest further alleged that they had paved and otherwise maintained the driveway for a period of more than twenty years. Fabish and Buter provided affidavits averring that they and their predecessors had also used and performed maintenance on the driveway since at least the 1960s.

¶ 4 The circuit court dismissed all of the plaintiffs' claims, and the Fosters alone appeal.


¶ 5 Contrary to the Fosters' contention, a summary judgment decision is not a discretionary determination subject to the erroneous exercise of discretion analysis. Rather, this court reviews summary judgment decisions de novo, applying the same methodology and legal standard employed by the circuit court. Brownelli v. McCaughtry, 182 Wis. 2d 367, 372, 514 N.W.2d 48 (Ct. App. 1994).

We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law.... [If a claim has been stated and issue has been joined, we next] examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute that entitle the opposing party to a trial.

Frost v. Whitbeck, 2001 WI App 289, ¶ 6, 249 Wis. 2d 206, 638 N.W.2d 325 (citations omitted). Each step of this process involves a question of law. The legal standard is whether there are any material facts in dispute that entitle the opposing party to a trial. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶ 24, 241 Wis. 2d 804, 623 N.W.2d 751.

Adverse Possession

¶ 6 Regarding the first step of the summary judgment method, the Fosters assert that their amended complaint states a claim for adverse possession merely by "recit[ing all of the] boiler plate elements" necessary to establish that cause of action. This assertion misstates the applicable test, however. It is not sufficient to allege the elements of a cause of action; a plaintiff must allege the facts necessary to establish each of those elements. We accept the pleaded facts as true for purposes of a summary judgment motion, and liberally construe them to give the plaintiff the benefit of all inferences that might establish conditions under which the plaintiff might prevail. See Bank One, NA v. Ofojebe, 2005 WI App 151, ¶ 7, 284 Wis. 2d 510, 702 N.W.2d 456. We nonetheless conclude that the facts pled here do not support an adverse possession claim.

¶ 7 WISCONSIN STAT. § 893.25 (2007-08)2 permits a person to acquire title to real property by adverse possession for an uninterrupted period of twenty years. The statute requires the land to be actually occupied and either protected by a substantial enclosure or usually cultivated and improved. WIS. STAT. § 893.25(2). A person claiming adverse possession must show that the disputed property was used for the requisite period of time in an "open, notorious, visible, exclusive, hostile and continuous" manner that would apprise a reasonably diligent landowner and the public that the possessor claimed the land as his or her own. Pierz v. Gorski, 88 Wis. 2d 131, 137, 276 N.W.2d 352 (Ct. App. 1979). A use of land is not adverse if it is carried out with the owner's permission. County of Langlade v. Kaster, 202 Wis. 2d 448, 457, 550 N.W.2d 722 (Ct. App. 1996).

¶ 8 Here, the Fosters alleged that they had a recorded easement, held in common with several others, to use a driveway running east and west and located along the north side of the property titled to Fabish and Buter. A recorded easement plainly constitutes written consent to the use of the titleholder's land. Therefore, the facts the Fosters alleged would establish that their use of the north driveway was with permission and, therefore, not adverse to Fabish and Buter's title to the underlying land.

¶ 9 To the extent that the Fosters' adverse possession claim might be broadly construed to also encompass a portion of the driveway running north and south on the western portion of Fabish and Buter's property, even though not explicitly mentioned in the complaint, the facts the Fosters alleged are insufficient to establish the exclusive-use requirement. Specifically, the Fosters alleged that the owners of several other parcels shared common use of the west driveway, but made no assertion that Fabish and Buter or their predecessors were not also among those who used the driveway over the years. We therefore conclude, as did the circuit court, that the facts alleged in the amended complaint were insufficient to state a claim on which relief could be granted for adverse possession to title of the land underlying either the north portion of the driveway or the west portion of the driveway.


¶ 10 A trespass occurs when a person enters or remains upon land in the possession of another without a privilege to do so. Geyso v. Daly, 2005 WI App 18, ¶ 8, 278 Wis. 2d 475, 691 N.W.2d 915 (Ct. App. 2004). The Fosters seem to be operating under the mistaken assumption that an interference with a right they might have to use the driveway on Fabish and Buter's property constitutes a trespass. We have, however, already explained why the Fosters did not have a claim for adverse possession. To the extent their trespass claim is premised on an alleged interference with an easement, none of the facts alleged in the complaint suggest that Fabish and Buter did not also...

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