Stahlnecker v. Vieth

Decision Date22 December 2022
Docket Number2021AP1200
PartiesDavid Stahlnecker and Robin Fox, Plaintiffs-Respondents, v. John Vieth and Lila Vieth,Defendants-Appellants.
CourtWisconsin Court of Appeals

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from a judgment of the circuit court for Lafayette County No. 2020CV55 DUANE M. JORGENSON, Judge. Affirmed.

Before Fitzpatrick, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).


¶1 John and Lila Vieth appeal a judgment, entered following a bench trial, which awarded Robin Fox and David Stahlnecker title by adverse possession to a strip of land that falls on the boundary of their adjoining parcels and within the legal description of the Vieths' deed. The Vieths argue that the circuit court erred by not granting default judgment in their favor on their counterclaim for trespass. They also argue that the admissible evidence is insufficient to establish adverse possession, and that Wis.Stat. § 706.09 (2019-20),[1] referred to by the Vieths as the "bona fide purchaser defense," is a viable defense to the adverse possession claim. We reject the Vieths' arguments and affirm the judgment.[2]


¶2 This case concerns two adjoining parcels on a residential street in the City of Darlington. One of the parcels has been owned by Fox and Stahlnecker for many years, and the second was purchased by the Vieths in 2018. The parties dispute the ownership of a strip of land along their shared boundary line that varies in width from six to twelve feet along the shared boundary of the parcels.

Throughout this opinion, we refer to the parcel owned by Fox and Stahlnecker as the "Fox parcel," the parcel owned by the Vieths as the "Vieth parcel," and the strip of property in dispute as the "disputed strip."

¶3 The parties agree that the disputed strip is included in the legal description of the Vieths' parcel. However, Fox and Stahlnecker claim to have acquired title to the disputed strip by adversely possessing it for more than twenty years before the Vieths purchased their parcel.

¶4 After this dispute surfaced, Fox and Stahlnecker brought this action to quiet title in the circuit court, seeking a judgment under Wis.Stat. § 841.01 declaring that they own the disputed strip. In their answer, the Vieths denied that Fox and Stahlnecker's activities in the disputed strip amounted to adverse possession, and they argued that their purchase of the Vieth parcel extinguished any adverse possession claim. Additionally, the Vieths filed a counterclaim for trespass based on two instances in which Fox and Stahlnecker allegedly entered the disputed strip after the Vieths purchased their parcel. As discussed at greater length below, Fox and Stahlnecker filed their reply to the counterclaim four days late, the Vieths moved to strike the reply and sought default judgment on their counterclaim, and the circuit court denied the Vieths' motions, accepting the tardy reply.

¶5 Following discovery, the case proceeded to a two-day bench trial. Generally speaking, Fox and Stahlnecker introduced their own testimony and the testimony of others who had lived in the neighborhood regarding the historical use of the disputed strip. The Vieths introduced surveys placing the disputed strip in the Vieth parcel, the testimony of the surveyor, and their own testimony regarding their actions and observations since 2018. The following summary of facts is derived from the circuit court's findings and is supplemented by the testimony and exhibits presented at trial. These facts have not been meaningfully disputed at trial or on appeal, except as noted below.

¶6 The Fox and Vieth parcels sit side by side in a residential subdivision. The lot sizes on their block are small, with the houses situated closely together. The Vieth parcel is to the east, and its entire western boundary abuts the eastern boundary of the Fox parcel.

¶7 The disputed strip runs the full length of the shared boundary between the parcels. Its western edge is marked by a concrete porch leading out of Fox and Stahlnecker's house. Its eastern edge is marked by the backside of a retaining wall. The retaining wall is itself indisputably situated on the Vieth parcel, and it is currently comprised of concrete blocks. The retaining wall was previously comprised of railroad ties, and it was rebuilt in or around 2004 by the Vieths' immediate predecessor in interest Geraldine Bloyer and her son-in-law, David Chellevold. As a result of the topography created by the retaining wall, the northern portion of the disputed strip is, and has been elevated several feet above the remainder of the Vieth parcel, and on roughly the same plane as the Fox parcel.

¶8 From at least 1983 up through 2018, the northern portion of the disputed strip consisted of grass, bushes, perennials and several cedar trees, and the southern portion consisted of a dense row of twenty-five fully grown cedar trees smaller bushes, and perennials. A neighbor testified that the cedar trees may have been on the disputed strip since the 1960s. The trees, bushes, and perennials blocked access from the Vieth parcel to the disputed strip.

¶9 Between 1983 and 1993, the Fox parcel was owned by the Black family, who lived there with their son, Scott. Scott Black testified that he regularly played in the disputed strip, and that he would run through the row of cedar trees. He and his family performed lawn care and maintenance on the Fox parcel, "all the way to [the retaining] wall." These activities included mowing the lawn, raking, and trimming trees. The Blacks continued to maintain the disputed strip through the duration of their ownership of the Fox parcel, until they sold it to Fox. The Vieths' predecessors in interest never challenged the Blacks' maintenance activities in the disputed strip.

¶10 Fox purchased the parcel in 1993. She married Stahlnecker in 1999 and, upon their marriage, Stahlnecker moved into the residence on the parcel. It is undisputed that, in 2008, Fox signed a quitclaim deed transferring ownership of the parcel to herself and Stahlnecker. Fox and Stahlnecker continued to live in the residence on the Fox parcel until 2015, at which time they purchased another residence and began renting the Fox parcel to tenants.

¶11 From 1993 through 2015, Fox and Stahlnecker occupied the disputed strip as owners of a residential parcel would, as a part of their backyard. During the summer months, Fox regularly placed a downspout in the disputed strip. She planted and maintained tulips, lilies, and other perennials in the disputed strip, pinching off old buds and dividing the tulip bulbs as needed. She watered the plants, pulled weeds, and used a weed eater in the disputed strip. Beginning in 1999, Stahlnecker maintained the disputed strip by trimming the cedar trees, raking leaves underneath the trees, cleaning up the area around the trees, mowing the grass, and performing general yard maintenance. After the Vieths' immediate predecessor (Bloyer, with the assistance Chellevold) rebuilt the retaining wall, Fox planted bridal wreath and firebush atop the wall in the disputed strip. A neighbor testified that he regularly saw Fox and Stahlnecker maintaining the disputed strip.

¶12 There was no evidence presented at trial that the Vieths' predecessors challenged Fox and Stahlnecker's use of the disputed strip. Linda Judkins, a tenant of one such predecessor, believed that the Vieth parcel extended no farther west than the retaining wall, and that it did not encompass the disputed strip. Neither Judkins nor her child maintained or even accessed the disputed strip during their three-year tenancy at the property. Likewise, when Chellevold rebuilt the retaining wall, he asked Fox for permission, as doing so would require him to place the top block of the wall further west than the retaining wall had been, into the disputed strip.

¶13 Fox and Stahlnecker hired Lawrence Schmit to survey the Fox parcel in 2010. At trial, Schmit testified that surveying in that particular area of Darlington is fraught with difficulties. According to the survey Schmit produced in 2010, the disputed strip was part of the Vieth parcel. Initially, Schmit staked out a boundary line that cut through the middle of Fox and Stahlnecker's concrete porch and through their picture window. Fox told Schmit that the boundary was incorrect and Schmit adjusted it, placing the boundary along the edge of the porch rather than through the middle of the porch. Fox continued to believe that the survey incorrectly depicted the boundary line. However, she did not hire another surveyor, nor did Fox or Stahlnecker take any legal action at that time to confirm their ownership of the disputed strip.

¶14 Fox and Stahlnecker purchased their other residence in 2015. Thereafter, they began renting the Fox parcel to tenants. As discussed in greater detail below, the parties dispute the extent to which the tenants continued to maintain the disputed strip in Fox and Stahlnecker's stead. Although the circuit court found that Fox and Stahlnecker's open, hostile, exclusive, continuous, and notorious use of the disputed strip continued until at least 2018, the circuit court did not make any additional findings about whether the tenants continued to maintain the disputed strip after Fox and Stahlnecker moved out of that residence in 2015.

¶15 In 2018, the Vieths purchased the Vieth parcel from Geraldine Bloyer's estate. John Vieth testified that, prior to purchasing the Vieth parcel, he and Lila Vieth were eager to determine its boundaries because they were interested in...

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