O'neill v. James Reemer & Weyerhaeuser Co.
| Decision Date | 25 April 2002 |
| Docket Number | 01-2402 |
| Citation | 255 Wis. 2d 834,646 N.W.2d 855 |
| Parties | Randy O'Neill and Rita O'Neill, Plaintiffs-Appellants, v. James Reemer and Weyerhaeuser Company d/b/a Northwest Hardwoods, Defendants-Respondents.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV COURT OF APPEALS |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Monroe County: MICHAEL J. McALPINE, Judge. Affirmed.
Cornelia G. Clark Clerk of Court of Appeals
Before Vergeront, P.J., Dykman and Lundsten, JJ.
¶1.
Randy and Rita O'Neill appeal the summary judgment dismissing their trespass complaint against James Reemer, owner of adjoining real estate, and Weyerhaeuser Company, which Reemer engaged to perform logging services.1 The trial court concluded that Wis. Stat. §893.33(2) precluded the O'Neills from establishing title by adverse possession to the property that was logged because they did not file an action claiming title to the property within thirty years of obtaining title by adverse possession. The O'Neills contend the trial court erred in relying on Shelton v. Dolan, 224 Wis.2d 334, 591 N.W.2d 894 (Ct. App. 1998). We agree with the trial court that Shelton is controlling. We therefore affirm.
¶2. Reemer and the O'Neills own adjoining real property in the Township of Little Falls. Reemer has record title to the property the O'Neills claim by adverse possession. The O'Neills filed this action after Weyerhaeuser Company, hired by Reemer to perform logging on his property, logged the property the O'Neills claim by adverse possession. Reemer purchased his property in 1999 from Mary Waughtal, who had owned it since 1973. The O'Neills acquired title to their property in 1999 from Randy's father, who had purchased it in 1958 with Randy's grandfather from William Zillmer.
¶3. In support of their motion for partial summary judgment on their claimed title by adverse possession, the O'Neills submitted affidavits averring that they and their predecessors in title considered a barbed-wire fence erected by Zillmer in 1944 to mark the boundary between their property and that of the adjoining owner, and the disputed property lies on their side of this boundary. The O'Neills' submissions aver that they and their predecessors in title have used the disputed property for pasturing and hunting, and that they have done so openly, notoriously, and adversely for the past forty-five years. In support of his cross-motion for summary judgment, Reemer submitted affidavits averring that the disputed property is a "wild" natural area, that the fence the O'Neills refer to consists of a few strands of barbed wire that Reemer and Waughtal were not aware of until the lawsuit, and neither observed the O'Neills or their predecessors in title using the disputed property.
¶4. The trial court reasoned that the twenty years necessary to establish adverse possession under Wis. Stat. §893.25(1)2 would have begun to run when the fence was erected in 1944, and, assuming the requirements of that statute were met, adverse possession would have been established in 1964. Then, applying Wis. Stat. §893.33(2) as we construed it in Shelton, the court concluded that since the O'Neills' predecessors in title had not recorded an instrument or notice of their claim of adverse possession by 1994-within thirty years of 1964-the O'Neills were barred from now claiming title by adverse possession. Since that title was essential to their claims against Reemer and Weyerhaeuser Company, the court dismissed the complaint.3
¶5. The O'Neills contend that our decision in Shelton is not consistent with prior supreme court precedent and is contrary to the principles underlying adverse possession. Alternatively, they argue that, even if we follow Shelton, they are not barred from asserting their claim of adverse possession.
¶6. We review a trial court's grant or denial of summary judgment, denovo, applying the same methodology as the trial court. Torgerson v. Journal/Sentinel, Inc., 210 Wis.2d 524, 536, 563 N.W.2d 472 (1997). A party is entitled to summary judgment if there are no genuine issues of material fact and the party is entitled to judgment as a matter of law. Wis. Stat. §802.08(2). Since there are no factual disputes relevant to the issues the O'Neills raise on appeal, the only question is whether the trial court correctly applied the law in ruling that Shelton precluded the O'Neills' claim for adverse possession.
¶7. In Shelton, the facts we assumed for purposes of our decision were that Shelton or his predecessors in title had obtained title to an access road by adverse possession, with the requisite twenty years of adverse use ending sometime in the 1950's. Shelton, 224 Wis. 2d at 337. In deciding that Wis. Stat. §893.33(2)4 barred his action for a declaration of his interest in the access road, we analyzed two prior supreme court decisions construing the statute-Herzog v. Bujniewicz, 32 Wis.2d 26, 145 N.W.2d 124 (1966), and Leimert v. McCann, 79 Wis.2d 289, 255 N.W.2d 526 (1977). We acknowledged in Shelton that "Herzog is not an easy case to apply." Shelton, 224 Wis. 2d at 341. One reading of Herzog is that the owner-in-possession exception in §893.33(5)5 permits proof of a claim of adverse possession, and, if the claimant succeeds in establishing title by adverse possession, then the requirement for a recording within thirty years in §893.33(2) does not apply. Shelton, 224 Wis. 2d at 341-42. However, we decided that the later supreme court case of Leimert "leaves little room for doubt that it considers Herzog to require application of the thirty-year rule." Shelton, 224 Wis. 2d at 342. Leimert addressed a claim of prescriptive easement, but, we stated, did not distinguish such a claim from a claim of adverse possession. Shelton, 224 Wis. 2d at 343-44. Rather, the court in Leimert, "[a]pplying the Herzog holding to the case at bar," concluded that the thirty-year limitation attached at the end of the twenty years necessary for a prescriptive easement and would bar a claim based on a prescriptive easement after the thirty years expired. Leimert, 79 Wis.2d at 298.
¶8. The O'Neills argue that in Shelton we erred in our reading of Leimert. According to the O'Neills, because Leimert addressed a claim of prescriptive easement, not adverse possession, we should not have relied on it to understand Herzog, and instead should have read Herzog to hold that the thirty-year recording requirement does not apply to a claim of adverse possession because of the owner-in-possession exception in Wis. Stat. §893.33(5). However, we are bound by our prior decisions and may not overrule or modify them. Cook v. Cook, 208 Wis.2d 166, 189-90, 560 N.W.2d 246 (1997). Therefore, the O'Neills' arguments that Shelton wrongly interpreted Leimert and Herzog must be addressed to the supreme court.
¶9. The same is true with respect to the O'Neills' argument that our decision in Harwick v. Black, 217 Wis.2d 691, 701, 580 N.W.2d 354 (Ct. App. 1998), supports their position. In Harwick, we relied on Herzog to conclude that the requisite twenty-year period of adverse use does not need to be the twenty years immediately preceding the filing of the court action. Id. at 702. In Shelton, we rejected the very argument that the O'Neills make based on Harwick, pointing out that the applicability of Wis. Stat. §893.33 was not raised or addressed in Harwick, and our reliance there on Herzog was limited to its analysis of the merits of the adverse possession claim. Shelton, 224 Wis.2d at 344. We are thus bound by that analysis of Harwick.
¶10. The O'Neills also argue that it is not logical that one who has adversely possessed property for over fifty years should not be able to claim title, while one who has adversely possessed property for between twenty and fifty years should be able to do so. In addition, they point out that, generally, either the person who is adversely possessing property or the title holder is unaware of the true title holder, and therefore it is not logical to expect that the person who is adversely possessing will file a record of his or her claim before the incident prompting a lawsuit arises. We acknowledge the reasonableness of these arguments, although we observe it is also arguably reasonable to discourage claims to real estate that have existed for a lengthy period but of which there is no record. However, the bottom line is that these arguments go to the proper construction of Wis. Stat. §893.33, and it is the supreme court, not this court, that has the authority to decide whether our construction and application of that statute in Shelton was correct.
¶11. As an alternative argument, the O'Neills advance the proposition that even if Shelton were correctly decided, their claim of adverse possession is not barred. They assert that we should interpret Herzog to mean that evidence that is older than fifty years is not admissible; therefore, since their suit was filed in 2000, they must prove adverse use for the twenty years between 1950 and 1970. This may be one way to read Herzog, but we do not agree it is consistent with Shelton. In Shelton, we concluded that "[b]ecause Shelton did not perform the acts required by §893.33(2), Stats., within thirty years of obtaining title by adverse possession, the trial court properly dismissed that claim." Shelton, 224 Wis. 2d at 344. Since it is undisputed that the O'Neills did not perform the acts required by Wis. Stat. §893.33(2) within thirty years of the date on which they assert they obtained title by adverse possession, the trial court correctly followed Shelton and dismissed the O'Neills' complaint.
By the Court.-Judgment affirmed.
Not recommended for publication in the official reports.
1 The complaint also asserted a claim under Wis. Stat. §§26.05 (Timber Theft) and 26.09 (Civil Liability for Unauthorized Cutting,...
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