Walton v. Wilke
| Decision Date | 17 June 2015 |
| Docket Number | No. 2014AP1584.,2014AP1584. |
| Citation | 364 Wis.2d 527,868 N.W.2d 199 (Table) |
| Parties | Michael WALTON and Ann Walton, Plaintiffs–Respondents, v. James WILKE, Tara Wilke, and The James Wilke and Tara C. Wilke Trust Dated November 27, 2000, As Amended, Defendants–Appellants. |
| Court | Wisconsin Court of Appeals |
This case is about adverse possession of a portion of a lakefront neighbor's land that is occupied by a boathouse and about the establishment of the neighbors' respective riparian rights. One neighbor filed suit claiming adverse possession of the other neighbor's land onto which the boathouse encroached. The boathouse had been there for decades. The defendant neighbor counterclaimed, seeking damages for invasion of his riparian zone and a determination of the parties' respective riparian rights. The trial court granted partial summary judgment to the neighbor claiming adverse possession. The riparian rights issue went to trial, after which the court determined how the lines determining those rights should be drawn. We conclude that the court did not err in granting summary judgment on the adverse possession claim and was within its discretion when it drew the riparian rights line. We affirm.
¶ 2 Michael Walton and Ann Walton (Walton) and James Wilke, Tara Wilke, and The James and Tara C. Wilke Trust dated November 27, 2000, as amended (Wilke) own adjacent lots on Crystal Lake in Sheboygan county. Wilke purchased his lot in 2006, and Walton purchased his in 2008. There is a boathouse on Walton's property that has been there since 1926 or 1927. The boathouse was built at an angle to the lot line such that a triangular portion of it extends onto Wilke's lot and down into the water. Of the triangular portion, one side is the Walton/Wilke property line, the second side is the eastern wall of the boathouse, and the third side is the water's edge, or ordinary high water mark (OHWM).1 Because of the angle at which it was built, the front part of the boathouse and the waterside door hang out into the water in front of part of Wilke's shoreline. Part of the boathouse floor is under water and is therefore on the lake bed owned by the state. Part of the boathouse floor is dry, and it is a triangular part of this dry section, described above, that encroaches on Wilke's property.2 Walton commenced this action seeking a judgment of adverse possession regarding that portion of the boathouse that encroached on Wilke's property. Wilke counterclaimed for private nuisance, trespass, and a declaratory judgment determining the parties' riparian boundaries. The trial court granted summary judgment to Walton on the adverse possession claim and determined the parties' riparian zones based on a method proposed by Walton. The trial court indicated that it's determination of the parties' riparian rights rendered Wilke's counterclaim meritless, and therefore dismissed the counterclaim. Wilke appeals the decision on adverse possession and the determination of the riparian line.
¶ 3 We review a decision on summary judgment using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). If there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law, summary judgment shall be rendered. Wis. Stat. 802.08(2) (2013–14).3 A factual issue will not necessarily defeat summary judgment; there must be a genuine dispute about a material fact. Baxter v. DNR, 165 Wis.2d 298, 312, 477 N.W.2d 648 (Ct.App.1991). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In an adverse possession case on summary judgment, when there are no material facts in dispute, our review of whether the facts are sufficient to establish adverse possession is de novo. See Wilcox v. Estate of Hines, 2014 WI 60, ¶ 15, 355 Wis.2d 1, 849 N.W.2d 280.
¶ 4 Under Wis. Stat. § 893.25, adverse possession is established if the person claiming possession of the disputed parcel, along with his or her predecessors in interest, is in actual, continued occupation of the disputed parcel for a period of twenty years, and the disputed parcel is protected by a substantial enclosure or is usually cultivated or improved. Adverse possession need only be shown to a reasonable certainty. Kruse v. Hormalus Indust., Inc., 130 Wis.2d 357, 362–67, 387 N.W.2d 64 (1986).
¶ 5 Walton supported his motion for partial summary judgment on adverse possession with affidavits that established that the boathouse, a portion of the floor of which is above the OHWM, has been in the same position on the Walton property and encroaching on the Wilke property for at least twenty years. Walton submitted affidavits from himself and the previous owners of his property establishing that the boathouse has encroached on the Wilke property since at least 1972. Walton submitted deposition testimony from Wilke, in which Wilke did not dispute that the boathouse had been in its current location for twenty years, did not maintain that he owned any portion of the boathouse, and testified that he has not granted permission for the boathouse to stand partially on his property.
¶ 6 The boathouse, by its nature, encloses the property upon which it stands; it is also an improvement. Walton's possession of the boathouse for more than twenty years created a presumption of title in Walton. See Wiese v. Swersinske, 265 Wis. 258, 261, 61 N.W.2d 312 (1953). The subject area is well-defined as the area underneath the physical structure that is the boathouse. When a building encroaches on neighboring property, adverse possession can be had of that portion of land covered by the structure.
The weight of authority is to the effect that one who remains in continuous, open, and exclusive possession of a building of a permanent nature, which projects over the boundary line, during the statutory period of time in which actions to recover possession of real property may be maintained, acquires title by adverse possession to that portion of the adjoining property covered by the structure, though the building was erected in ignorance of the location of the true boundary line, and supposedly upon land rightly owned by the builder.
Menzner v. Tracy, 247 Wis. 245, 251, 19 N.W.2d 257 (1945) (citation omitted). There is no dispute that the boathouse has been in its current location for over twenty years. Because Walton has shown that the boathouse has been in this location for twenty years, there is a presumption of title in Walton. Walton made a prima facie case for summary judgment on adverse possession.
¶ 7 To defeat Walton's motion, Wilke had to submit affidavits setting forth specific evidentiary facts to show that the subject area of the boathouse has not encroached on his property for at least twenty years. Wilke first argues that Walton cannot precisely describe the portion of which he seeks adverse possession because one boundary of the portion is the OHWM, which is subject to change. Wilke relies on a study prepared for Sanitary District No. 1 for the towns of Rhine and Plymouth by Dr. Neal O'Reilly. The O'Reilly report concludes that the water level in Crystal Lake has been continually declining over time and that between 1986 and 2005 it dropped between two to five feet. Further, Wilke cites a 1999 survey of the properties that did not show any encroachment on the Wilke lot. According to Wilke, the change in lake level must have meant a movement of the OHWM, changing the size of, or perhaps eliminating (if the OHWM was high enough), the encroachment onto Wilke's land. Thus, says Wilke, there is no defined portion of land subject to adverse possession.
¶ 8 We are not convinced that the subject area is not well-defined enough for adverse possession because the OHWM may have moved over the years or may have been so high that water covered up the entire subject area. As stated above, Wilke relies on a report concluding that the lake level dropped two to five feet between 1986 and 2005. This is a measure of the level of Crystal Lake as a whole. This tells us nothing about the OHWM at the Walton and Wilke lots. Wilke also suggests that perhaps there was no encroachment at all for a portion of the twenty-year span. He points to a 1999 survey that did not show the encroaching boathouse. However, Wilke's own expert testified that a property survey “is not required to show encroachments or structures.” Similarly, Wilke points to testimony by the Schulers, who owned the property prior to Walton, that they were not aware of an encroachment. However, the Schulers did not seek to establish specifically the location of the boathouse vis-à-vis the property line. In any event, the parties submitted two surveys, both showing the boathouse encroaching on the Wilke property, which Wilke does not argue are inaccurate. Both Walton's and Wilke's surveyors agree that the subject area is defined as a triangular portion of land on which the boathouse sits, with the third side of the triangle encroaching on Wilke's land as the OHWM. Additionally, the Wisconsin Department of Natural Resources (DNR) set flags on the subject property to show the OHWM. The surveys establish the OHWM as the lower boundary of the subject area, and Wilke has not raised a genuine issue of material fact regarding that boundary. Wilke has produced no evidence showing that the OHWM was higher during the twenty-year period, much less showing it was so high as to completely cover the subject area.
¶ 9 The party claiming adverse possession is not required to provide a surveyed description of the area adversely possessed. Droege v. Daymaker Cranberries,...
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