Schultz v. Frisch
| Decision Date | 23 February 2012 |
| Docket Number | No. 2010AP904.,2010AP904. |
| Citation | 340 Wis.2d 496,2012 WI App 40,812 N.W.2d 539 |
| Parties | James SCHULTZ and Pamela Schultz, Plaintiffs–Respondents, v. Mark FRISCH and Theresa Frisch, Defendants–Appellants. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Marathon County: Jill N. Falstad, Judge. Affirmed in part; reversed in part and cause remanded with directions.
Before VERGERONT, HIGGINBOTHAM and SHERMAN, JJ.¶ 1HIGGINBOTHAM, J.
This adverse possession claim concerns a boundary dispute between Mark and Theresa Frisch and James and Pamela Schultz.1 Frisch appeals the trial court's judgment that Schultz's predecessors in interest established title to the disputed land by adverse possession. Frisch argues that any use of the disputed area was permissive. Frisch also appeals the judgment finding that Mark and Theresa Frisch trespassed upon Schultz's property. Finally, Frisch appeals the trial court's award of $500 in attorney's fees to Schultz. We affirm the trial court's judgment. However, we reverse on the amount of the attorney's fees awarded to Schultz and remand for a determination of attorney's fees pursuant to Wis. Stat. § 814.02(2) (2009–10).2
¶ 2 Frisch and Schultz are neighbors. This dispute centers on the location of the property line between their respective residences. Schultz filed a quiet title action seeking a declaration that he and his wife were the owners in fee simple of the disputed property by way of adverse possession. The complaint alleges that Schultz has established title to the disputed area by adverse possession based on the open, notorious, exclusive, continuous, and hostile use of this property by Schultz's predecessors in interest for more than thirty years prior to Schultz taking ownership of the property in 2004.
¶ 3 The following facts are taken from the trial testimony and the trial court's decision. Clyde and Grace Jacobitz are the predecessors in interest to the property owned by Schultz. The predecessors in interest to Frisch's property are Leonard and Claire Hebert. In 1969, Clyde Jacobitz decided to construct a workshop on the side of his garage facing the Heberts' property. He approached Leonard Hebert regarding the location of the lot line to ensure that the workshop would not encroach on Hebert's property. Hebert did not know the location of the boundary line, and told Jacobitz “don't worry about [the property line].” Hebert testified that he “was so busy making a living that I didn't concern myself with [the actual location of the property line].” Jacobitz then built the workshop.
¶ 4 The Heberts also testified that Grace Jacobitz maintained a one-foot deep flower bed on the Hebert/east side of the workshop until at least 1980 and perhaps until at least 1997. Prior to being taken down by Frisch, there was a tree located approximately thirty inches from the Schultz garage that Frisch and the parties' predecessors in interest agreed was on Frisch's property.
¶ 5 In 2006, Schultz removed the workshop and built a two-car garage on the existing concrete slab. After Schultz built the new garage, he received a letter from Frisch's attorney in March 2008 demanding that the garbage containers Schultz had placed on the east side of the garage be removed. Schultz removed the garbage containers later that spring.
¶ 6 In 2007, Frisch hired Timothy Vreeland to conduct a survey of his land so that Frisch could build a fence around his property. Vreeland's survey moved the property line four to six feet west of the property line established by the Schultz/Jacobitz hedge, which had framed three sides of the Schultz backyard since at least 1957. Vreeland testified that he used plat maps and other survey tools to determine where to begin his survey measurements. Deed corrections filed with the county were introduced at trial noting that one of the streets used by Vreeland to establish his survey commencement points was not located as indicated in the original 1859 plat mat utilized by Vreeland. Vreeland did not look at the deeds filed with the county or county tax maps in preparing his survey. Vreeland agreed that the boundaries he identified on his survey did not match the occupation lines established in the neighborhood. Vreeland testified that surveys done in the past could be up to four to five feet off their boundaries. Under Vreeland's survey, Schultz's neighbor to the west would lose four to five feet of his property, including half of his driveway.
¶ 7 After receiving the survey and checking with legal counsel, Frisch began constructing a fence in front of the Schultz garage, inside the outside wall of the garage by approximately two feet. Frisch also began cutting down bushes in the hedge surrounding the backyard of the Schultz property, which had been there since before the Heberts moved into their house in 1957. Frisch acknowledged that before receiving the survey, he believed the hedge belonged to Schultz and their predecessors in interest. Frisch cut down and dug out the roots of these bushes after he knew that Schultz disputed Frisch's assertion of their property line. Frisch also placed three to four “no trespassing” signs “every so many feet,” five to six feet inside Schultz's side of the disputed property line, including directly under Schultz's clothesline. Frisch also testified to his mowing and other activities relating to the boundary line between the Schultz property and his own since his purchase of his property in 2001, including the fact that Schultz would also mow on the east side of the garage at times.
¶ 8 Schultz commenced this action to quiet title. Frisch moved for summary judgment, which the court denied. A two-day trial was presented to the court. The court concluded that title to the disputed area had vested in Clyde and Grace Jacobitz by adverse possession not later than 1997 and that such title had been conveyed to James and Pamela Schultz. The court entered judgment granting title to that property to Schultz, ordered the fence removed and the property restored to the condition that existed prior to the encroachment, and awarded damages to Schultz in the stipulated amount of $575 and costs.
¶ 9 The court found that “the backyard of the Jacobitz property was enclosed by a hedge of bushes, which constituted an enclosure on such property.” The court determined that Clyde Jacobitz had constructed the workshop in about 1969 “with the acquiescence of Leonard Hebert” and that neither Hebert nor Jacobitz were aware of the true property line between their properties. The court found the current garage was built on the same concrete slab on which the workshop had been built; that the telephone or utility pole had been accepted as marking the east line of the Jacobitz property for over twenty years; and that the Jacobitzes had maintained a flower bed along the full length of the east side of the shed/garage from 1969 until at least 1997. The court found that it was undisputed that a tree located thirty inches from the northeast corner of the property was located on the property held and possessed by the record owners of Lot 11 (Hebert/Frisch). The court further determined that “the Jacobitz' [sic] made such use of property east of the garage as an owner might,” including “planting and maintaining a flower bed, and for access to and from the front of their land to the backyard,” and that such use was consistent with the standards of adverse possession. The court determined that Mark and Theresa Frisch had trespassed on Schultz's property, with intentional and malicious disregard of Schultz's legal rights, and that Frisch damaged the Schultz's property “by digging up the bushes on the property and erecting a fence and signs on ... the property.”
¶ 10 The court found that the “east line of the adversely possessed property, runs from the large tree on the north line of the adjacent properties; thence south to the utility pole currently standing on the property; thence south to a point thirty (30?) inches east of the northeast corner of the Schultz' garage; thence south on a line thirty (30?) inches from and parallel with the east wall of the garage; extended to the right of way of Elm Street.” Frisch appealed. Additional facts, as necessary, are set forth in the discussion section.
¶ 11 Our review of an adverse possession claim presents a mixed question of fact and law. Perpignani v. Vonasek, 139 Wis.2d 695, 728, 408 N.W.2d 1 (1987). We will uphold the circuit court's findings of fact unless they are clearly erroneous. Steuck Living Trust v. Easley, 2010 WI App 74, ¶ 11, 325 Wis.2d 455, 785 N.W.2d 631,review denied,2010 WI 114, 329 Wis.2d 64, 791 N.W.2d 66. Whether those facts fulfill the legal standard for adverse possession we review de novo. Id. “Our standard of review is the same regarding the doctrine of acquiescence.” Id.
¶ 12 Wisconsin Stat. § 893.25(2) provides that 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.” Sec. 893.25(2)(a) and (b). The adverse possession must be uninterrupted for twenty years. Sec. 893.25(1). However, the twenty-year period need not have occurred immediately before the filing of a court action. Harwick v. Black, 217 Wis.2d 691, 699, 580 N.W.2d 354 (Ct.App.1998). Rather, “adverse possession for any twenty-year time period is sufficient to establish title in the adverse possessor.” Id. at 701, 580 N.W.2d 354. Thus, if the activities of the Jacobitzes as predecessors in interest fulfill the standards for adverse possession, the twenty-year requirement is met.
¶ 13 In order to constitute adverse possession, ...
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