Schauer v. Baker

• Decision Date: 05 February 2004
• Docket Number: No. 02-1674.,02-1674.
• Parties: Herbert M. Schauer and Sandra S. Schauer, Plaintiffs-Respondents, v. Matthew S. Baker, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

2004 WI App 41

678 NW 2d 258

270 Wis.2d 714

Herbert M. Schauer and Sandra S. Schauer, Plaintiffs-Respondents, v. Matthew S. Baker, Defendant-Appellant.

No. 02-1674.

Court of Appeals of Wisconsin.

Submitted on Briefs: April 10, 2003.

Opinion Filed: February 5, 2004.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas A. Lorenson of Kubasta, Rathjen, Bickford, & Lorenson, Wautoma.

On behalf of the plaintiffs-respondents, the cause was submitted on the briefs of John F. Koenig of Sorenson Koenig Law Office, Ripon.

Before Deininger, P.J., Vergeront and Lundsten, JJ.

¶1. LUNDSTEN, J.

This is a prescriptive easement case involving a road that crosses Baker's property and is used by the Schauers for access to their property. The circuit court granted summary judgment to the Schauers which, in turn, grants to the Schauers a prescriptive easement to the road on Baker's property. Because we conclude that the "owner-in-possession" exception, Wis. Stat. § 893.33(5) (2001-02),¹ does not extend to persons who hold a prescriptive easement, we reverse. Further, because there are no disputed issues of fact, we resolve this legal issue in favor of Baker and remand with directions that summary judgment be entered in favor of Baker.

Background

¶2. The Schauers brought an action for a prescriptive easement, pursuant to Wis. Stat. § 893.28(1), with respect to a road located on property owned by Baker. The Schauers moved for summary judgment, arguing that the undisputed facts showed that they and their predecessors had used the road on the Baker property to access their property continuously for 139 years. They contended this use satisfied the requirements of a prescriptive easement. Baker did not and does not challenge the Schauers' factual allegations. Rather, Baker moved for summary judgment on the ground that the Schauers' claim was barred by Wis. Stat. § 893.33(2).

¶3. The circuit court initially refused to grant summary judgment in favor of either party because, in the court's view, there were material disputed facts. Subsequently, the parties entered into a stipulation in which they agreed that the facts were undisputed and that summary judgment should be entered in favor of the Schauers, but specifying that Baker was reserving his right to challenge the judgment on appeal. Accordingly, the circuit court entered summary judgment in favor of the Schauers granting them a prescriptive easement to the road on the Baker property. Baker appeals.

Discussion

¶4. This is an appeal from a grant of summary judgment. We review summary judgment de novo, applying the same method as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984). Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

¶5. In this case, the Schauers and Baker agree on the size and location of the alleged easement. They further agree that the use necessary to satisfy the statutory requirements of a prescriptive easement had been continuously in place for more than fifty years at the time the Schauers filed their claim for a prescriptive easement in 1989. The only disputes here involve questions of law. First, there is a dispute regarding when the thirty-year time limit found in Wis. Stat. § 893.33(2) commenced. Second, the parties dispute whether a holder of a prescriptive easement is an "owner" in "possession" as those terms are used in § 893.33(5). We resolve each of these disputes in favor of Baker.

Commencement of the Thirty-Year Time Period in Wis. Stat. § 893.33(2)

¶6. The Schauers argue that the circuit court correctly interpreted Wis. Stat. § 893.33(2) when it held that the Schauers may prevail in this action if they can show that any twenty-year period of continuous adverse use-sufficient to satisfy Wis. Stat. § 893.28(1), the prescriptive easement statute-intersected with the most recent thirty-year time period prior to 1989 when the Schauers filed their claim. Since the parties now agree that the nature and duration of the use is uncontested, the Schauers contend they are entitled to summary judgment. However, we disagree with this interpretation of the statute.

¶7. The circuit court's reasoning seems to be that each additional day of adverse use of another's property moves forward in time the "event" triggering the thirty-year time limit in Wis. Stat. § 893.33(2), which reads, in pertinent part:

[N]o action affecting the possession or title of any real estate may be commenced ... which is founded upon any ... event occurring more than 30 years prior to the date of commencement of the action, unless ... within 30 years after the date of the ... event there is [an instrument or notice of claim recorded with the register of deeds].

(Emphasis added.) Such an interpretation is foreclosed by prior decisions of the supreme court. In Herzog v. Bujniewicz, 32 Wis. 2d 26, 145 N.W.2d 124 (1966), the court stated:

The transaction or event referred to in sub. (1) [now denominated subsection (2)] as applied to adverse possession means adverse possession for the period of time necessary under the circumstances to obtain title. Upon the expiration of such period of time the thirty-year period commences to run.

Id. at 31. See also O'Neill v. Reemer, 2003 WI 13, ¶10, 259 Wis. 2d 544, 657 N.W.2d 403; Leimert v. McCann, 79 Wis. 2d 289, 298, 255 N.W.2d 526 (1977). Thus, the supreme court has explained that the starting date for the thirty-year time period in Wis. Stat. § 893.33(2) commences when the requirements for the asserted interest have been met.

The Holder of a Prescriptive Easement is Not an Owner in Possession for Purposes of Wis. Stat. § 893.33(5)

¶8. The parties next dispute whether a holder of a prescriptive easement is an "owner" in "possession" within the meaning of Wis. Stat. § 893.33(5). Our holding on this issue is simple: the owner-in-possession exception found in § 893.33(5) does not apply to holders of a prescriptive easement because such holders are not "owners." Accordingly, once the right to a prescriptive easement has accrued-by virtue of compliance with Wis. Stat. § 893.28(1) for the requisite twenty-year time period-the holder of the prescriptive easement must comply with the recording requirements within thirty years, as required by § 893.33(2), or lose his or her right to continued use. Applied here, our legal conclusion means that because the Schauers' right to a prescriptive easement with respect to the road on Baker's property accrued sometime before 1968, the thirty-year time limit in § 893.33(2) applies to bar the Schauers' 1998 prescriptive easement claim. While our holding is simple to state and apply to the undisputed facts in this case, the reasons we believe the statutes and the case law compel this result are not so simple.

¶9. We are called on to interpret the owner-in-possession exception, contained in Wis. Stat. § 893.33(5), to the thirty-year recording requirement contained in § 893.33(2). The actual statutory language is this: "person who is in possession of the real estate involved as owner." But we, like other courts, use the shorthand phrase: "owner-in-possession."

¶10. We must interpret the owner-in-possession exception and apply it to undisputed facts. Questions of statutory construction or the application of a statute to undisputed facts are questions of law on which we do not defer to the circuit court. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). When we interpret and apply statutes, our aim is to discern the intent of the legislature, and we look first to the language of the statute. McEvoy v. Group Health Coop., 213 Wis. 2d 507, 528, 570 N.W.2d 397 (1997). If the language clearly and unambiguously sets forth the legislative intent, we apply that language to the facts at hand. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). Only when statutory language is ambiguous may we examine other construction aids, such as legislative history, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986).

¶11. The statutes at issue create a thirty-year recording requirement and an owner-in-possession exception to that requirement. The Schauers and Baker agree that, apart from the owner-in-possession exception, the thirty-year time limit in Wis. Stat. § 893.33(2) applies to both adverse possession and prescriptive easement claims. The thirty-year recording requirement in § 893.33(2) provides, in pertinent part:

[N]o action affecting the possession or title of any real estate may be commenced ... which is founded upon any ... event occurring more than 30 years prior to the date of commencement of the action, unless ... within 30 years after the date of the ... event there is [an instrument or notice of claim recorded with the register of deeds].

The owner-in-possession exception to this thirty-year recording requirement, contained in § 893.33(5), provides:

[The thirty-year recording requirement] does not apply to any action commenced ... by any person who is in possession of the real estate involved as owner at the time the action is commenced.

¶12. In O'Neill, the supreme court held that this owner-in-possession exception in Wis. Stat. § 893.33(5) applies to parties that have gained ownership by virtue of adverse possession. O'Neill, 259 Wis. 2d 544, ¶28. The question here is whether the owner-in-possession exception applies to holders of a prescriptive easement. More specifically, the question is whether a person who meets the requirements of a prescriptive easement user is an "owner" in "possession" within the...