Kruse v. Horlamus Industries, Inc.

Decision Date16 May 1986
Docket NumberNo. 84-858,84-858
Citation387 N.W.2d 64,130 Wis.2d 357
PartiesGordon and Dolores KRUSE, Plaintiffs-Respondents and Cross-Appellants, v. HORLAMUS INDUSTRIES, INC., Defendant-Appellant and Cross-Respondent-Petitioner.
CourtWisconsin Supreme Court

Daniel L. Sargeant, West Bend, argued for defendant-appellant and cross-respondent Schloemer, Schlaefer, Alderson, Seefeldt & Spella, S.C., West Bend, on brief.

Daryl W. Laatsch, West Bend, argued for plaintiffs-respondents and cross-appellants; Daryl W. Laatsch, S.C., West Bend, on brief.

HEFFERNAN, Chief Justice.

This is a review of an unpublished per curiam decision of the court of appeals dated May 22, 1985, 371 N.W.2d 429, affirming an order by Judge Richard T. Becker, circuit court for Washington county, following a jury trial. The issue before this court is whether the trial court and court of appeals were correct in holding that the claimant's burden in an adverse possession case is the ordinary or lowest burden--to prove adverse possession by the greater weight of the credible evidence. We affirm on the grounds that Wisconsin case law has consistently applied the middle burden of proof only to those civil cases containing a criminal element, fraud, or gross negligence and that an action for adverse possession does not fall into that category of cases requiring more than the ordinary burden of proof.

In 1959, Gordon and Dolores Kruse purchased land south of the City of West Bend. The Kruses roughly measured the lot boundaries at that time and established a lawn based on those boundaries. Horlamus Industries purchased the land adjacent to the Kruses' property on the north and the east in 1964. Horlamus Industries discovered that the Kruse measurements were incorrect when it surveyed the land in 1981. The true boundaries were west and south of the lot lines recognized by the parties up to that time. Horlamus Industries fenced and filled in the portion of the property which had erroneously been considered to be the Kruses' lawn and to which Horlamus Industries actually held title. The Kruses commenced an action for adverse possession 1 against Horlamus Industries to establish ownership of the two strips of property which they had mistakenly used for over twenty years.

A jury trial was held, and the jury found that the Kruses had obtained ownership of the disputed property through adverse possession. In addition, the jury awarded money damages to the Kruses for wrongful occupancy by Horlamus Industries in the amount of $2,500. On motions after verdict, Judge Becker upheld the jury finding of adverse possession by the Kruses and granted Horlamus Industries' motion to strike the monetary award, finding that no evidence supported the damages awarded by the jury. Horlamus Industries appealed the finding of adverse possession, and the Kruses cross-appealed on the issue of damages. The court of appeals affirmed the trial court on all counts. We granted the defendant Horlamus Industries' petition for review. The decision of the court of appeals on damages adverse to the Kruses was not raised on review.

The sole issue before this court is whether the trial court erred in its instructions to the jury that the lowest or ordinary burden of proof should be applied in answering the special verdict questions on adverse possession. 2 2 Although Wisconsin has had a great many adverse possession cases, the correct standard of proof for those cases has not previously been addressed. The problem in this instance arises from the use in some adverse possession cases and in this case of the phrase, "evidence of possession must be clear and positive." The appellant mistakenly considers this to be standard to be used for the overall burden of proof, while in fact it only refers to the quality of evidence which may even be considered. See, Allie v. Russo, 88 Wis.2d 334, 343, 276 N.W.2d 730 (1979) ("The evidence of possession must be clear and positive and must be strictly construed against the claimant." See also, Zeisler Corp. v. Page, 24 Wis.2d 190, 198, 128 N.W.2d 414 (1964); Bank of Eagle v. Pentland, 197 Wis. 40, 42, 221 N.W. 383 (1928). Nor is Wisconsin the only jurisdiction to use the phrase. Connecticut, Michigan, and Oregon, to name a few, have all recently used the terminology. 3 The Illinois Court of Appeals has furthered the confusion by requiring "clear, positive and unequivocal" proof. Flower v. Valentine, 135 Ill.App.3d 1034, 90 Ill.Dec. 703, 710, 482 N.E.2d 682, 689 (1985). The confusion surrounding the phrase, "clear and positive," derives from the word, "clear," which frequently appears in the middle burden of proof. Because of the confusion which this portion of the instruction may cause, we direct that the words, "must be clear and positive and," be omitted from the instruction. The amended instruction will therefore read, "The evidence of possession must be strictly construed against the claimant." The instruction as so modified comports with the presumption of sec. 893.30, Stats., that favors the holder of the legal title.

In Wisconsin, the ordinary or lowest burden of proof requires that the jury must be satisfied to a reasonable certainty by the greater weight of the credible evidence. Wis JI--Civil 200 defines "by the greater weight of the evidence" as that which, "when weighed against that opposed to it has more convincing power." The middle burden of proof requires that the jury be convinced to a reasonable certainty by evidence that is clear, satisfactory and convincing. Wis JI--Civil 205.

Those jurisdictions which have attempted to correspond the phrase to accepted standards of proof are fairly equally divided between what Wisconsin refers to as the lower and middle burdens of proof. See, e.g., Russo v. Stearns Farms Realty, Inc., 117 R.I. 387, 367 A.2d 714, 717 (1977) ("preponderance of the clear and positive evidence"); Hadley v. Ideus, 220 Neb. 878, 374 N.W.2d 231 (1985); Tipton v. Smith, 593 S.W.2d 298 (Tenn.App., 1979); Nugent v. Franks, 471 So.2d 816 (La.App. 2 Cir., 1985). But see, Aldape v. State of Idaho, 98 Idaho 912, 575 P.2d 891 (1978) ("clear and satisfactory" proof); Bartels v. Anaconda Co., 304 N.W.2d 108 (S.D.1981) ("clear and convincing" proof).

In Wisconsin, the middle burden of proof requires a greater degree of certitude than that required in ordinary civil cases but a lesser degree than that required to convict in a criminal case. Wangen v. Ford Motor Co., 97 Wis.2d 260, 299, 294 N.W.2d 437 (1980). This court has generally required the middle burden of proof "[i]n the class of cases involving fraud, of which undue influence is a specie, gross negligence, and civil actions involving criminal acts." Kuehn v. Kuehn, 11 Wis.2d 15, 26, 104 N.W.2d 138 (1960). In general, "clear preponderance" has only been considered substantially equivalent to "clear, satisfactory and convincing evidence" where the civil case involved a crime, fraud or gross negligence. See, e.g., Trzebietowski v. Jereski, 159 Wis. 190, 149 N.W. 743 (1914) (civil case involving a crime), and Hafemann v. Seymer, 191 Wis. 174, 210 N.W. 373 (1926) (gross negligence), both cited in Kuehn, supra, 11 Wis.2d at 27, 104 N.W.2d 138.

"The middle standard for burden of proof was established by this court as applicable to more serious allegations than factual issues in the usual civil case.... This court has stated that 'a greater degree of certitude is required before there is a finding against a defendant who will be subjected to the stigma attached to the commission of certain classes of acts.' ..." (Citations omitted.) Wangen v. Ford Co., 97 Wis.2d at 300, 294 N.W.2d 437. 4

Horlamus Industries argues that similar policy reasons should require a greater degree of certitude in adverse possession cases even where there is no fraud or criminal element involved. According to Horlamus Industries, the rationale for requiring clear and positive proof centers on the following principles: Adverse possession is to be taken strictly; there are usually no equities in favor of the adverse claimant; his acts are to be construed strictly against him, rather than against the title holder; and every presumption is to be in favor of possession in subordination to the title of the record owner. Horlamus Industries argues that the potentially harsh consequences to the title holder mandate that evidence of adverse possession must be strictly construed against the claimant. For that reason, Horlamus Industries claims that the "clear and positive" standard must require the same degree of proof as "clear, satisfactory and convincing."

We do not agree. The strong presumptions in favor of the title holder 5 provide adequate protection against the taking of land by adverse possession, a protection that is afforded independently of the burden of proof. The jury in this case was instructed that:

"The evidence of possession must be clear and positive and must be strictly construed against the claimant. All reasonable presumptions must be made in favor of the true owner."

Under Wisconsin law, presumptions do not "disappear" or "burst" when evidence to the contrary of the presumed fact is introduced. 6 This means that, even where rebutting evidence has been produced, the inference from the presumption survived and is sufficient to support a jury verdict until the presumption is met by evidence of equal weight. Judicial Council Committee's Note--1973, 59 Wis.2d R42. The mere fact that presumptions in favor of the title owner exist does not mean that the burden of proof should escalate to a higher standard. In fact, the contrary protection of the presumption thus tends to justify a lower burden of proof. It would obviate any necessity for a higher burden of proof. Rule 903.01, Stats., provides that:

"[O]nce the basic facts are found to exist the presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the...

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