Northwoods Development Corp. v. Klement

• Decision Date: 30 June 1964
• Citation: 129 N.W.2d 121,24 Wis.2d 387
• Parties: NORTHWOODS DEVELOPMENT CORP., a Wis. corporation, Plaintiff-Respondent, v. George KLEMENT et al., Appellants, Leo Barth et al., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 121

129 N.W.2d 121

24 Wis.2d 387

NORTHWOODS DEVELOPMENT CORP., a Wis. corporation, Plaintiff-Respondent, v. George KLEMENT et al., Appellants Leo Barth et al., Defendants-Respondents.

Supreme Court of Wisconsin.

June 30, 1964.

Avery & Avery, Antigo, Schmitt, Wurster, Tinglum & Nolan, Merrill, for appellants.

Winter & Winter, Antigo, for respondent.

CURRIE, Chief Justice.

The following issues are presented by this appeal:

(1) Are the trial court's findings with respect to adverse possession against the great weight and clear preponderance of the evidence?

(2) Did the trial court commit prejudicial error in sustaining objections to questions designed to elicit from Hartman whether he would have intended to claim to the fence line if he had known that the fence line did not represent the true boundary line between his premises and Lot 1?

Adverse Possession.

The evidence clearly establishes that the only act of possession was Hartman's pasturing cattle on the disputed parcel. This act of possession was exclusive, open and visible to all the world including the owners of record title to such parcel. Inasmuch as the disputed parcel was part of a larger pasture utilized by Hartman's cattle, all of which was enclosed by fencing, Hartman's possession was of a character to constitute adverse possession under sub. (1) of sec. 330.09, Stats., ¹ if coupled with a claim of title.

On the issue of claiming title the decisions of this court have repeatedly stated, 'To constitute adverse possession there must be the fact of possession and the hostile intention--the intention to usurp possession.' Stone Bank Improvement Co. v. Vollriede (1960), 11 Wis.2d 440, 447, 105 N.W.2d 789, 793; Bank of Eagle v. Pentland (1928), 197 Wis. 40, 42, 221 N.W. 383; Ryan v. Schwartz (1896), 94 Wis. 403, 411, 69 N.W. 178. It should be noted, however, that in each of the three cited cases the context in which the quoted statement appears makes it clear that the court was concerned with permissive user. In other words, if possession was pursuant to permission of the true owner, there could not be the hostile intent necessary to constitute adverse possession.

Appellants concede that the general rule is that, where an owner has exercised exclusive and open possession for twenty years or more up to a fence line under the assumption that the fence marked the true boundary of his premises, he has thereby acquired title by adverse possession to any land intervening between his own premises and the fence. They contend, however, that this rule does not apply in the instant case because it was obvious to Hartman that the fence, in diverging southwesterly to the lake from a true east and west line, could not mark the true boundary line between Lots 1 and 2. Assuming that Hartman should have been put on inquiry we find no merit to this contention. In fact, there would seem to be a clearer case for spelling out hostile intent where the possessor knows the fence does not mark the true boundary line than where he does not have such knowledge. On this issue this court, speaking through Mr. Justice MARSHALL, declared in Ovig v. Morrison (1910), 142 Wis. 243, 247, 125 N.W. 449, 451, that:

'Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith, whether by mistake of boundaries or with intent to claim the land with full knowledge that the claim is wrongful, satisfies the calls of the statute.'

See, also, Burkhardt v. Smith (1962), 17 Wis.2d 132, 140, 115 N.W.2d 540; 4 Wis. Law Review (1926), 41.

Hartman testified at least twice that he intended to claim to the fence line. In any event, there being no evidence that his use for pasturing purposes was permissive, a presumption arises from the continuance of such exclusive possession for more than twenty years that the possession was hostile and adverse. Ovig v. Morrison, supra, 142 Wis. pp. 249-250, 125 N.W. 449; Hamacheck v. Duvall (1908), 135 Wis. 108, 114, 115 N.W. 634.

Appellants further argue that because Herbst had knowingly constructed the west portion of the fence so as to markedly diverge southwesterly from his true north boundary, the pasturing activities of Hartman on the disputed parcel were not sufficient to apprise Herbst of any adverse or hostile intent on Hartman's part. We find this argument wholly unconvincing. Pasturing cattle regularly in an enclosed pasture by a person conducting a dairy farm would seem to us to be of a nature sufficiently open and notorious to afford the basis for adverse possession. ² The circumstance that the fence forming one side of the enclosed pasture was constructed by the true owner instead of the adverse possessor would appear to be entirely fortuitous. It is the entire enclosure of the pasture in the instant case which excluded Herbst and his successors in title from possession of the disputed parcel.

Appellants also contend that the trial court should have found no adverse possession on the part of Hartman because of his failure to pay taxes on the disputed parcel. While failure of the adverse claimant to pay taxes is an element to be considered in determining the issue of adverse possession it is not conclusive. Burkhardt v. Smith, supra, 17 Wis.2d p. 140, 115 N.W.2d 540; and Hamacheck v. Duvall, supra, 135 Wis. pp. 115-116, 115 N.W. 634.

We have no hesitancy in determining that the trial court's finding of more than twenty years of open, continuous, notorious, and exclusive possession by Hartman of the disputed parcel was not against the great weight and clear preponderance of the evidence. By reason of such finding it necessarily follows that plaintiff has succeeded to Hartman's title to this parcel and was properly granted...