Peter H. and Barbara J. Steuck Living Trust v. Easley

• Citation: 785 N.W.2d 631,325 Wis.2d 455,2010 WI App 74
• Decision Date: 13 May 2010
• Docket Number: No. 2009AP757.,2009AP757.
• Parties: PETER H. AND BARBARA J. STEUCK LIVING TRUST, Peter H. Steuck and Barbara J. Steuck, Plaintiffs-Respondents,FN† FN† Petition for Review Denied with $50 costs Aug. 18, 2010.v. Newell L. EASLEY, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

325 Wis.2d 455
785 N.W.2d 631
2010 WI App 74

PETER H. AND BARBARA J. STEUCK LIVING TRUST, Peter H. Steuck and Barbara J. Steuck, Plaintiffs-Respondents,^FN†
FN† Petition for Review Denied with $50 costs Aug. 18, 2010.v.
Newell L. EASLEY, Defendant-Appellant.

No. 2009AP757.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 14, 2009.
Opinion Filed May 13, 2010.

785 N.W.2d 634

On behalf of the defendant-appellant, the cause was submitted on the briefs of Stanton E. Thomas of Mallery & Zimmerman, S.C., Stevens Point.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Thomas A. Lorenson of Kubasta, Rathjen, Bickford & Lorenson, Wautoma.

Before DYKMAN, P.J., VERGERONT and LUNDSTEN, JJ.

785 N.W.2d 635

VERGERONT, J.

325 Wis.2d 462

¶ 1 This adverse possession claim concerns approximately seventeen acres of undeveloped land in a larger tract of several hundred acres primarily used for hunting by the titleholder, Newell Easley.¹ Easley appeals the circuit court's determination that the plaintiffs established title to the disputed area by adverse possession. We conclude that, properly applying the presumption in favor of the titleholder and placing the burden of proof on the plaintiffs, the hunting and related activities of the plaintiffs' predecessors do not constitute open, notorious, visible, exclusive, and hostile use of the disputed area. We also conclude that a swampy area and a man-made drainage ditch do not constitute a substantial enclosure as required by Wis. Stat. § 893.25(2)(b)1. (2007-08).² Finally, we conclude the plaintiffs have not established adverse possession under the doctrine of acquiescence, assuming without deciding that this is an alternative means of proving adverse possession. Accordingly we reverse and remand.

BACKGROUND

¶ 2 Easley owns at least 360 acres of undeveloped land in the Township of Shields, Marquette County. He uses his land primarily for hunting and also for activities such as gathering firewood, picking apples, and hiking on the hiking trails. He has set aside some of his land as a sanctuary for the purpose of managing, growing and protecting a deer herd.

325 Wis.2d 463

¶ 3 The property in dispute lies in the northeast corner of Lot 6, which Easley purchased in 1987. Consisting of approximately seventeen acres, the disputed area is bounded on the east by the property of the plaintiffs, ³ on the west by Mud Lake, and on the south by a swampy area and a man-made drainage ditch. The northern boundary is the line between Lot 6 and another neighbor.⁴

¶ 4 The complaint alleges that the use of the disputed area by the plaintiffs' predecessors in title for more than twenty years has established ownership by adverse possession as provided in Wis. Stat. § 893.25.⁵

785 N.W.2d 636, 325 Wis.2d 464

¶ 5 At the trial to the court, Dale Daggett, the plaintiffs' predecessor in title, testified that when he purchased the property in 2001, he believed he owned the disputed area and he treated it as his. He bow hunted there in the fall of 2003; he went four-wheeling there three or four times in 2003 and a couple times in 2004; he took friends to walk there; and he cleared brush off a trail. He never saw anyone else in that area.

¶ 6 The owner of the plaintiffs' property before Daggett, Gordon Daniels, testified that when he bought the property in 1974, he believed it included the disputed area. He hunted that area steadily with friends from 1974 through 2003, putting up several tree stands and leaving them up year round. In 1974, in order to gain access to the lake, he and a neighbor made a road across Daniels' property and into the disputed area and then made a walking trail from there to the lake.

¶ 7 Easley testified that he and one or more of his family and friends are on his land approximately 180 days per year. They do not hunt in the sanctuary, which includes the disputed area. He goes into the disputed area once or twice a year and tries to observe it from a distance because walking through it defeats the purpose of a sanctuary. He never noticed persons trespassing in the disputed area nor saw anything that caused him to believe someone was doing something of a permanent nature. No one in his family or his hunting group gave him any indication there was hunting or other activities going on in the disputed area. He did see two tree stands in the area, but they were very old, and

325 Wis.2d 465

he was sure they had been there for many years prior to his purchase of the property.

¶ 8 The court concluded that the plaintiffs had established title by adverse possession to the disputed area and entered judgment granting full right and title to that property to the plaintiffs. The court determined that Daniels' testimony and that of the persons with whom he had hunted established that he had made open, notorious, visible, exclusive, hostile, and continuous use of the disputed area as hunting land for twenty-nine years without interference from anyone. The court found that the discharge of guns would have been audible to Easley but that not once, before 2006, did he evict any trespasser or hunter from the disputed area. The court also determined that the disputed area on the southern border was protected by a substantial enclosure: a swampy area and the man-made drainage ditch. The court found that the disputed area was "fairly impenetrable" from Lot 6 but was easily accessed from the plaintiffs' property. Finally, the court determined that Easley acquiesced in the man-made ditch as the boundary line between his property and that of the plaintiffs and their predecessors in title.

DISCUSSION

¶ 9 On appeal Easley contends: (1) the circuit court disregarded the presumption in favor of the titleholder and improperly placed the burden on him to prove he had taken measures to keep people off his property; (2) the evidence is insufficient to establish adverse possession when the correct legal standard is applied; and (3) the evidence is insufficient to show he acquiesced to the man-made ditch as the

785 N.W.2d 637

boundary between his property in Lot 6 and the plaintiffs' property.

325 Wis.2d 466

¶ 10 The plaintiffs respond that the circuit court correctly applied the presumption and that the evidence is sufficient to satisfy the legal standard for adverse possession and for acquiescence.

¶ 11 In reviewing a circuit court's determination of adverse possession, we accept the circuit court's factual findings unless they are clearly erroneous. Klinefelter v. Dutch, 161 Wis.2d 28, 33, 467 N.W.2d 192 (Ct.App.1991). We review de novo whether those facts fulfill the legal standard for adverse possession. Id. Our standard of review is the same regarding the doctrine of acquiescence. See Arnold v. Robbins, 209 Wis.2d 428, 432, 563 N.W.2d 178 (Ct.App.1997).

¶ 12 Our review in this case is facilitated by the circuit court's extensive findings of fact and discussion, and we appreciate the circuit court's effort. However, our analysis of the correct application of the legal standards differs from that of the circuit court, and we therefore reach a contrary conclusion.

I. Adverse Possession under Wis. Stat. § 893.25

¶ 13 Pursuant to Wis. Stat. § 893.25(2)(a) and (b), real estate is possessed adversely only if "the person possessing it, in connection with his or her predecessors in interest, is in actual continued occupation under claim of title, exclusive of any other right," and "[o]nly to the extent that it is actually occupied." In addition, the property must be "protected by a substantial enclosure" or "usually cultivated or improved." § 893.25(2)(b). Pursuant to § 893.25(1), the adverse possession must be uninterrupted for twenty years.⁶

325 Wis.2d 467

¶ 14 In order to constitute adverse possession, "the use of the land must be open, notorious, visible, exclusive, hostile and continuous, such as would apprise a reasonably diligent landowner and the public that the possessor claims the land as his own." Pierz v. Gorski, 88 Wis.2d 131, 137, 276 N.W.2d 352 (Ct.App.1979) (citations omitted). "Hostile" in this context does not mean a deliberate and unfriendly animus; rather, the law presumes the element of hostile intent if the other requirements of open, notorious, continuous, and exclusive use are satisfied. Burkhardt v. Smith, 17 Wis.2d 132, 139, 115 N.W.2d 540 (1962) (citations omitted). "Both ... the fact of possession and its real adverse character" must be sufficiently open and obvious to "apprize the true owner ... in the exercise of reasonable diligence of the fact and of an intention to usurp the possession of that which in law is his own...." Allie v. Russo, 88 Wis.2d 334, 343-44, 276 N.W.2d 730 (1979) (citations omitted). The size and nature of the disputed area are relevant in deciding if the use is sufficient to apprise the true owner of an adverse claim. See Pierz, 88 Wis.2d at 139, 276 N.W.2d 352.

¶ 15 The party seeking to claim title by adverse possession bears the burden of proving the elements by clear and positive evidence. Allie, 88 Wis.2d at 343, 276 N.W.2d 730. The evidence must be strictly construed against the claimant and all reasonable presumptions must be made in favor of the true owner. Id. One of these presumptions is that "actual possession is subordinate to the right of [the true] owner." Zeisler Corp. v. Page, 24 Wis.2d 190, 198, 128 N.W.2d 414 (1964).

785 N.W.2d 638

¶ 16 We first consider Easley's assertion that the circuit court ignored the presumption in favor of the

325 Wis.2d 468

titleholder and improperly placed the burden on him. Easley points to the court's several references to Easley's failure, until 2006, to post no-trespassing signs on the eastern boundary of the disputed area to keep out people entering from the plaintiffs' property. The court contrasted Easley's failure to take "anti-trespasser actions" regarding the disputed area with his posting of the rest of his property and his concern with trespassers on the rest of his property. The court also...