Herzog v. Bujniewicz

• Decision Date: 04 October 1966
• Parties: Frieda C. HERZOG, Plaintiff-Appellant, v. Joseph BUJNIEWICZ, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 124

145 N.W.2d 124

32 Wis.2d 26

Frieda C. HERZOG, Plaintiff-Appellant, v. Joseph BUJNIEWICZ, Defendant-Respondent.

Supreme Court of Wisconsin.

Oct. 4, 1966.

Savage, K. Thomas, Kenosha, for appellant.

Phillips & Richards, Kenosha, for respondent.

HALLOWS, Justice.

The basic question is whether sec. 330.15(1), 1963 Stats., ¹ now renumbered sec. 893.15, 1965 Stats., applies to claims based on adverse possession. We agree with the trial court that if this section bars evidence of acts of adverse possession occurring prior to 30 years before commencement of the action that the evidence relating to acts within the 30-year period is not sufficient to establish title in plaintiff by adverse possession. This evidence consisted only of the evidence and use of a gravel driveway located on the disputed land and the removal of weeds which grew in the driveway. This testimony is not clear or sufficient to prove the disputed property was used or cultivated or improved exclusively for the benefit of the plaintiff or that such use was of such a nature as would give notice of an exclusive dominion to the true owner or to the public. Casual weeding and the presence of part of a driveway on the disputed area under the circumstances of this case are not sufficient under Burkhardt v. Smith (1962), 17 Wis.2d 132, 115 N.W.2d 540.

We think sec. 330.15(1), Stats., applies to acts of actions founded upon adverse possession. This section provides so far as pertinent to the facts of this case that no action shall be brought affecting possession or title to real estate which is founded upon any transaction or event occurring more than 30 years prior to the date of commencement of the action unless within 30 years after the date of such transaction or event there is recorded in the office of the register of deeds some instrument expressly referring to the existence of the claim. Instead of such an instrument a notice may be recorded setting forth the name of the claimant, a description of the real estate affected, and the transaction or event on which such claim is founded. Provision is made in subs. (2) for the repeated recording within each succeeding 30-year period.

While it may be argued the words 'any transaction or event' do not aptly describe acts of adverse possession and that such construction is impracticable, we must be guided in our construction by subs. (4) which provides the section shall be construed to effect the legislative purpose of barring 'all claims to an interest in real property, * * * or any claim of any nature whatsoever, however denominated, * * *.' However, this subsection makes specific exceptions. One of these exceptions, pertinent to this case, provides, 'This section 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 transaction or event referred to in subs. (1) as applied to adverse possession means adverse possession for the period of time necessary under the circumstances to obtain title. Upon the expiration of such period of time the 30-year period commences to run. This statute may not be a true statute of limitations because the time for running of the period does not commence with the creation or accrual of a cause of action. Nevertheless, its effect is to bar claims unless its requirements are met. This section has not been heretofore construed by this court although created by ch. 293, Laws of 1941. Problems concerning its history, purpose and interpretation are discussed in contemporaneous literature. See Aiken, Commentary on Proposed Title Legislation, 36 Wisconsin Bar Bulletin (April, 1963), p. 49: Aiken, Proposed Title Legislation: A Suggested Solution to the Problem of 'Marketable Title,' 50 Marquette Law Review 15 (1966); and Tulane & Axley, Title to Real Property--Thirty Year Limitation Statute, 1942 Wisconsin Law Review 258.

We think the trial court should have held sec. 330.15, Stats., did not apply to the plaintiff in this action because of the owner-in-possession exception. For the purpose of asserting a claim to the disputed property based upon adverse possession, the plaintiff should be considered as one 'in possession of real estate involved as owner.' While in one sense this may seem like permitting one to pull himself up by his bootstraps, this construction was intended by the exception. See Tulane & Axley, Title to Real Property--Thirty Year Limitation Statute; 1942 Wisconsin Law Review 258, 264. The purpose of the section was to protect purchasers of real estate from stale claims and to make record titles more readily marketable. A person who with his predecessor in title has been in possession of land for 50 years ought not to be foreclosed from establishing title to the land.

During the trial the court allowed in evidence, subject to the objection of the defendant, testimony of the acts by which the plaintiff claimed adverse possession prior to 1934, i.e., prior to 30 years before commencement of the action. This testimony is undisputed and shows that beginning in 1912 when the plaintiff's parents purchased the property there was a fence which extended from the front to the rear of plaintiff's lot, some 22 feet beyond the rear of the lot now owned by the defendant. This fence was on a line which is now determined to be 1.5 feet east of the plaintiff's record line and establishes the eastern boundary of the 1.5-foot strip.

The testimony shows this fence existed from at least 1912 to 1942, and possibly part of it existed as late as 1947 or 1948. The plaintiff's father used the fence to dry his fish nets. The fence running the full depth of the city lot constituted a substantial inclosure withing the meaning of sec. 330.09(1), 1963 Stats. This inclosure established prima facie the exclusive, open and hostile use of the now disputed land. In addition, during 1917 the plaintiff's parents built a garage on the back part of their lot and sometime thereafter constructed a gravel driveway between the fence and their house, using part of the disputed land for this purpose. This driveway continued to exist and to be used after the fence had disappeared and was maintained until a concrete driveway was laid about 1961. While the concrete driveway does not cover the full 18-inch strip, there is no requirement that it must do so in order to retain the title previously acquired to the strip by adverse possession. Once title is secured by adverse possession the possessor need not keep the flag of hostility waving forever. The owner of land whether by deed or adverse possession has a legal title and is presumed to be in possession thereof and the occupation of such land by another person is deemed to be under and in subordination to such legal title unless the land is...