Otto v. Cornell

• Decision Date: 10 April 1984
• Docket Number: No. 83-625,83-625
• Citation: 349 N.W.2d 703,119 Wis.2d 4
• Parties: Adolph OTTO, Plaintiff-Respondent, v. Richard CORNELL and Dorothy Cornell, his wife, Defendants and Third-Party Plaintiffs-Appellants, Connor Forest Industries, Third-Party Defendant.
• Court: Wisconsin Court of Appeals

Page 703

349 N.W.2d 703

119 Wis.2d 4

Adolph OTTO, Plaintiff-Respondent, v. Richard CORNELL and Dorothy Cornell, his wife, Defendants and Third-Party Plaintiffs-Appellants Connor Forest Industries, Third-Party Defendant.

No. 83-625.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 13, 1984.

Opinion Released April 10, 1984.

Opinion Filed April 10, 1984.

Earl A. Charlton and Charlton Law Firm, Milwaukee, for defendants and third-party plaintiffs-appellants; Robert A. Kennedy, Jr., and Kennedy Law Office, Crandon, of counsel.

John H. Priebe and O'Melia, Eckert & Assoc., S.C., Rhinelander, for plaintiff-respondent.

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

CANE, Judge.

Richard and Dorothy Cornell appeal a judgment awarding Adolph Otto title by adverse possession to a parcel of land within the legal description of their deed. The Cornells also appeal Otto's award of punitive and actual damages for four trees Richard destroyed. They contend that: (1) Otto failed to establish adverse possession, (2) the judgment inadequately described the property awarded, (3) the trial court applied the wrong rule in awarding actual damages and awarded excessive punitive damages, (4) the award of actual damages should reflect credit to Cornell for the half of each tree that was located on the Cornell's property, and (5) a new trial is required because the trial court failed to make a record of its view of the premises. Because the trial court correctly concluded that Otto established title by adverse possession, applied the proper rule in awarding actual damages, and awarded reasonable punitive damages, and because a new trial is not required even if the trial court viewed the premises, we affirm the judgment. Because the description contained in the judgment requires correction, we modify the judgment and remand this matter to the trial court with directions to correct the description in the judgment consistent with this opinion.

Otto and the Cornells are next-door neighbors living on adjoining lots A and 1 respectively. The deeds to the lots indicate that they are 50 feet wide and 150 feet long, lying between a street on the west and an alley on the east. Otto began renting the house on lot A in 1931 and purchased the house and lot in 1948. For many years he maintained a fence on what he believed was the southern boundary of his lot and the northern boundary of lot 1. In 1945, after he removed the fence, Otto planted four maple trees to mark the boundary. Since then, Otto has mowed and maintained the lawn around these trees and to the north.

The house on lot 1 was rented to the Wilsons in 1949. Their driveway was located close to the trees that Otto planted and, in 1951, Mrs. Wilson hit one of the trees with her car and destroyed it. Otto planted another in its place. The Cornells bought lot 1 on a land contract in 1963 and obtained a warranty deed for the property in 1970. After the land was surveyed in 1979, the Cornells first realized that the true lot line between their lot and Otto's lay between .7 feet and 7.2 feet north of the line on which Otto had planted the trees. Otto refused to accept the survey results and in 1980 filed suit to establish his title to the property up to the tree line. A few months later, Richard Cornell cut down the four trees that Otto had planted.

ADVERSE POSSESSION

Otto based his claim to the disputed property on ch. 893, Stats., which allows a person in uninterrupted adverse possession for twenty years to commence an action to establish title. Section 893.25(1), Stats. Adverse possession under this section requires enclosure, cultivation, or improvement of the land. Section 893.25(2), Stats. It requires physical possession that is hostile, open and notorious, exclusive and continuous for the statutory period. Leciejewski v. Sedlak, 116 Wis.2d 629, 636, 342 N.W.2d 734, 737 (1984). "Hostility" means only that the possessor claims exclusive right to the land possessed. See Leciejewski v. Sedlak, 110 Wis.2d 337, 343, 329 N.W.2d 233, 236 (Ct.App.1982). The subjective intent of the parties is irrelevant to the determination of an adverse possession claim. Allie v. Russo, 88 Wis.2d 334, 347, 276 N.W.2d 730, 737 (1979). The requirement of continuity is satisfied by activities that are appropriate to seasonal uses, needs and limitations, considering the land's location and adaptability to such use. Burkhardt v. Smith, 17 Wis.2d 132, 139, 115 N.W.2d 540, 544 (1962). The true owner's casual reentry upon property does not defeat the continuity or exclusivity of an adverse claimant's possession. The true owner's reentry should be a substantial and material interruption and a notorious reentry for the purpose of dispossessing the adverse occupant. See Frank C. The trial court's findings are sufficient to sustain its conclusion that Otto established title by adverse possession. The court found that Otto planted ornamental trees in 1945 and 1951 to establish the southern boundary of his lot; that at all times he claimed, maintained, and occupied the land around the trees; and that he posted a thermometer on one of the trees. The court found that the Cornells first became aware of where the platted boundary was located when the property was surveyed in 1979, and that Dorothy Cornell knew for seventeen years that Otto claimed the disputed property. The court made no finding that the Cornells used the disputed property.

Schilling Co. v. Detry, 203 Wis. 109, 115, 233 N.W. 635, 638 (1930).

The trial court's findings were not clearly erroneous and were sufficient to sustain its conclusion that Otto established title to the disputed property by adverse possession. See sec. 805.17(2), Stats., and Leciejewski, 110 Wis.2d at 343, 329 N.W.2d at 236. Otto's acts in planting the ornamental trees more than twenty-five years before he commenced the lawsuit and in maintaining the land around the trees since then constituted possession of the land by usual improvement, see Laabs v. Bolger, 25 Wis.2d 17, 22-24, 130 N.W.2d 270, 274 (1964), in the manner the true owner might have exercised possession of land of this character and location. Regardless of his subjective intent in occupying the land, Otto's possession was legally hostile, open, and notorious.

The trial court's findings also support the conclusion that Otto's possession of the disputed property was continuous and exclusive. The Cornells made no notorious reentry to dispossess Otto until after his adverse possession had been established. Although the Cornells testified that they had used the property and were not aware that Otto claimed it until the lawsuit, they also testified that they gave different answers about the extent of their claim and their knowledge of Otto's claim in their pretrial depositions. The trial court may also have considered the Cornells' alleged activities, such as raking leaves and their children playing on the disputed strip, to be casual reentries. It was not necessary for Otto to treat the disputed property more protectively than he treated lot A to satisfy the requirement of exclusivity. He was not required to be belligerent if his neighbors happened to step across a particular line.

ACTUAL DAMAGES

The Cornells argue that the trial court erroneously awarded damages based on the cost of replacing Otto's trees. They argue that damages could only be assessed based on the diminished value of Otto's land as a result of the destruction of the trees. We disagree.

In Gilman v. Brown, 115 Wis. 1, 8, 91 N.W. 227, 229 (1902), the supreme court held that the diminished land value rule was not exclusively applicable. In Gilman, shade and fruit trees near a farm residence and outbuildings were destroyed. Id. at 6, 91 N.W. at 229. In this case, the trial court found that Otto's trees were ornamental. This finding is not clearly erroneous. See sec. 805.17(2), Stats. The evidence indicated that the trees were planted in a row on a small residential lot. Otto maintained the lawn around the trees, and when one was damaged he replaced it. The trees could be ornamental even though they marked a boundary. Had Otto's sole purpose been to mark a boundary, he could have replaced the fence that existed before the trees, or he could have installed metal stakes or monuments. Otto's trees are more like those in Gilman than the timber destroyed in Miller v. Neale, 137 Wis. 426, 119 N.W. 94 (1903), and Nelson v. Churchill, 117 Wis. 10, 93 N.W. 799 (1903). ¹

The supreme court in Gilman refused to restrict the trial court to the diminished land value rule. It stressed compensation for the injured party and noted that:

An owner of real estate has a right to enjoy it according to his own taste and wishes, ... yet the arrangement ... [of buildings and trees] selected by him might be no considerable enhancement of the sale value of the premises, ... and the disturbance of that arrangement, therefore, might not impair the general market value.... [W]hile the owner may be deprived of something valuable to him, ... he might be wholly unable to prove any considerable damages merely in the form of the depreciation of the market value of the land. The owner of property has a right to hold it for his own use as well as to hold it...