Leciejewski v. Sedlak, 82-338

• Decision Date: 21 December 1982
• Docket Number: No. 82-338,82-338
• Citation: 110 Wis.2d 337,329 N.W.2d 233
• Parties: Anthony E. LECIEJEWSKI and Susan M. Leciejewski, his wife, Plaintiffs-Appellants, v. Frank C. SEDLAK and Vi Sedlak, his wife, Defendants-Respondents. *
• Court: Wisconsin Court of Appeals

Page 233

329 N.W.2d 233

110 Wis.2d 337

Anthony E. LECIEJEWSKI and Susan M. Leciejewski, his wife Plaintiffs-Appellants, v. Frank C. SEDLAK and Vi Sedlak, his wife Defendants-Respondents. ^*

No. 82-338.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 25, 1982.

Opinion Released Dec. 21, 1982.

Opinion Filed Dec. 21, 1982.

Santini, Jacobs, McDonald & Silc, P.C., and Michael F. Fauerbach, Ashland, for plaintiffs-appellants.

Spears & Carlson and Jack A. Carlson, Washburn, for defendants-respondents.

Before FOLEY, P.J., and DEAN and CANE, JJ.

CANE, Judge.

Anthony and Susan Leciejewski appeal from a judgment granting Frank and Vi Sedlak title by adverse possession to a parcel of land that the Leciejewskis acquired from the county following a tax lien foreclosure. The Leciejewskis contend that the trial court erred in finding that the Sedlaks' possession was adverse. The Leciejewskis additionally assert that any rights in the parcel the Sedlaks may have acquired by adverse possession were lost due to a judgment foreclosing a tax lien on that land. We conclude that the trial court's factual findings relating to adverse possession are not against the great weight and clear preponderance of the evidence. Because we also conclude that the judgment of foreclosure bars the Sedlaks' claim of ownership to the parcel, however, we reverse.

In 1946, Timothy and Olga Faley purchased from Ruth Mary Gore a parcel of land located in Bayfield County. This transaction was subsequently recorded in the county register of deeds' office. The Faleys conveyed to Frank Sedlak a portion of that land by warranty deed, which was recorded in 1952. In 1954, the Faleys executed a second warranty deed to Sedlak, which contained a different description of the conveyed parcel than the description in the first deed. This deed was also recorded. In 1956 Rollie and Ruth Mary Gore executed a quitclaim deed to Sedlak, which was recorded. The description of the property in this deed is the same as the description in the 1954 deed from the Faleys to Sedlak. In 1960, Mrs. Faley executed and recorded a quitclaim deed to her daughter, Bonnie Lee Dyer, of the land the Faleys had purchased in 1946, less parcels previously conveyed to Sedlak. Dyer later conveyed a portion of her land to Bayfield County by quitclaim deed.

A delinquency subsequently arose with respect to real estate taxes assessed to Dyer. Bayfield County began proceedings to foreclose its tax lien on the property under an ordinance adopted pursuant to sec. 75.521, Stats. The county mailed a copy of the foreclosure petition and relevant part of the list of tax liens to Dyer, the record owner of the assessed land, to her last known address, as required by sec. 75.521(3)(c), Stats. ¹ A notice of the tax lien proceedings was also published in accordance with sec. 75.521(6), Stats. ² On April 26, 1976, judgment was granted, which had the effect of the issuance of a tax deed to the county. Section 75.521(13)(b), Stats. The judgment also transferred to the county title to property described according to the description in the deed from Gore to the Faleys, less those parcels previously conveyed to Sedlak in 1952 and to Bayfield County.

On July 25, 1978, the county conveyed the property by quitclaim deed to the Leciejewskis. When Anthony Leciejewski inspected the property, he found a house and storage shed on the land. There was also a cabin on the southwest corner of the property and a boathouse south of a channel running into the property. He later discovered that the Sedlaks had used and continued to use a portion of the property located on the south end of the channel.

The Leciejewski filed a motion for summary judgment, alleging that the Sedlaks were trespassing on their land. The Leciejewskis also requested a judicial confirmation that they own all land in dispute. The trial court denied the motion on the ground that there remained disputed issues of material fact concerning whether the Sedlaks acquired ownership of the disputed portion of land through adverse possession. The court also held that if the Sedlaks had fulfilled the requirements of adverse possession, their claim of title would not be barred by the 1976 in rem tax lien foreclosure proceeding.

The Leciejewskis subsequently filed a motion for reconsideration. After a trial to the court, the court found that since the summer of 1955, the Sedlaks had engaged in acts on the disputed land sufficient to constitute adverse possession under sec. 893.25, Stats. ³ The court also reaffirmed its earlier findings and decision on the Leciejewskis' motion for summary judgment and awarded the Sedlaks title to the disputed property.

Adverse Possession

The Leciejewskis contend that the evidence does not support the trial court's finding that the Sedlaks adversely possessed the disputed property pursuant to sec. 893.25. The Leciejewskis assert that the Sedlaks used the property with the Faleys' and Dyer's permission, and therefore their use could not be adverse. See Ludke v. Egan, 87 Wis.2d 221, 230, 274 N.W.2d 641, 646 (1979).

The Sedlaks base their claim of adverse possession on sec. 893.25, which provides that an action for the recovery of real estate is barred by uninterrupted adverse possession for twenty years. Adverse possession under this provision requires enclosure, cultivation or improvement of the land. Section 893.25(2), Stats. The sole test of adverse possession is the physical character of the possession. Allie v. Russo, 88 Wis.2d 334, 343, 276 N.W.2d 730, 735 (1979). The physical possession must be hostile, open and notorious, exclusive and continuous for the statutory period. Id. "Hostility" for purposes of showing adverse possession means only that one in possession claims exclusive right to the land possessed, and actual possession prevents the assumption that the true owner is in possession. Burkhardt v. Smith, 17 Wis.2d 132, 139, 115 N.W.2d 540, 544 (1962).

The trial court's factual findings on the issue of the Sedlaks' adverse possession will be sustained on appeal unless they are contrary to the great weight and clear preponderance of the evidence. Pierz v. Gorski, 88 Wis.2d 131, 136, 276 N.W.2d 352, 354-55 (Ct.App.1979). Findings of fact will not be reversed merely because there is evidence to support contrary findings. See Milbauer v. Transport Employes' Mutual Benefit Society, 56 Wis.2d 860, 862-63, 203 N.W.2d 135, 137 (1973). We will affirm the court's findings unless a finder of fact, properly applying the law, could not reasonably have concluded that the adverse possessor met his burden of proof. Pierz, 88 Wis.2d at 136, 276 N.W.2d at 355.

The trial court's findings in this case are adequately supported by the evidence. Certain testimony at trial indicates that the Sedlaks continuously improved and cultivated the disputed property from 1955 to the time the Leciejewskis commenced this action. Sedlak testified that he planted trees in 1956, 1957, and 1958. Sedlak also has mowed the strip of land east of the channel since at least 1956 or 1957, and he planted a garden in that area. Sedlak constructed a shed on the property in 1953, and a horse barn in 1953 or 1954, which he converted to a cabin between 1968 and 1970. In 1955, Sedlak built a fence and a boathouse. Sedlak also engaged in considerable brushing and clearing of trees and weeds on the disputed portion of the property. These activities were open, notorious, and sufficiently visible to give the Faleys and Dyer notice that the Sedlaks intended to exclude them from possession of the disputed property. See Allie, 88 Wis.2d at 343, 276 N.W.2d at 735. Various acts of improvement and cultivation of the land also continued uninterrupted for the requisite twenty-year limitations period. Although there was conflicting testimony regarding the dates on which some of these activities occurred, the credibility of the witnesses and the weight to be given their testimony are matters for the trial court's determination. See Estate of Glass, 85 Wis.2d 126, 135, 270 N.W.2d 386, 391 (1978).

The fact that Sedlak received permission from the Faleys to build the chicken shed and to dynamite part of the property does not mean that the Sedlaks' possession of the land was not adverse. As previously noted, the Sedlaks engaged in several other activities that improved and cultivated the disputed property as early as 1955, and evidence adduced at trial does not indicate that they either requested or received permission from the Faleys or Dyer to perform these acts. Frank Sedlak additionally testified that he did not need permission to build other buildings on the land because the property was his.

The Leciejewskis argue that the trial court erred in excluding Warren and Adella Davis' testimony concerning their prior boundary disputes with the Sedlaks. The Leciejewskis contend that the testimony was relevant to the issue of Sedlak's credibility because Sedlak previously testified that he had no such disputes. The Leciejewskis also assert that the testimony is relevant to the issue of whether Sedlak had notice that the land to which he claimed ownership was subject to the tax lien foreclosure.

The trial court did not err in excluding this evidence. The testimony is irrelevant to the issue of whether Sedlak knew where the boundaries of the land to which he claimed ownership were in relation to the boundaries of the land belonging to the Faleys and Dyer and therefore whether Sedlak had notice of what property was subject to the foreclosure. The fact that it is offered for impeachment purposes does not render it admissible as evidence because a witness may not be impeached on collateral issues. Tobar v. State, 32 Wis.2d 398, 405, 145 N.W.2d 782, 786 (1966).

Effect of Tax Lien Foreclosure

The Leciejewskis contend that the trial court erred in holding that the judgment of foreclosure did not bar the Sedlaks' claim of ownership to the disputed parcel. We have not...