Wilcox v. Estate of Hines

• Citation: 2014 WI 60,849 N.W.2d 280,355 Wis.2d 1
• Decision Date: 11 July 2014
• Docket Number: No. 2012AP1869.,2012AP1869.
• Parties: Richard S. WILCOX and Susan K. Wilcox, Plaintiffs–Appellants, v. ESTATE OF Ralph HINES, Estate of William J. Newman and Lake Delton Holdings, LLC, Defendants–Respondents–Petitioners, Chicago Title Insurance Company, Defendant.
• Court: United States State Supreme Court of Wisconsin

355 Wis.2d 1

849 N.W.2d 280

2014 WI 60

Richard S. WILCOX and Susan K. Wilcox, Plaintiffs–Appellants, ^†

v. ESTATE OF Ralph HINES, Estate of William J. Newman and Lake Delton Holdings, LLC, Defendants–Respondents–Petitioners,Chicago Title Insurance Company, Defendant.

No. 2012AP1869.

Supreme Court of Wisconsin.

Argued Dec. 19, 2013.

Decided July 11, 2014.

For the defendants-respondents-petitioners, there were briefs by James E. Bartzen, Richard L. Schmidt, and Boardman & Clark LLP, Madison, and oral argument by James E. Bartzen.

For the plaintiff-appellants, there was a brief by Edward A. Corcoran and Neider & Boucher, S.C., Madison, and oral argument by Edward A. Corcoran.

An amicus curiae brief was filed by Thomas D. Larson, Madison, on behalf of the Wisconsin Realtors Association.

MICHAEL J. GABLEMAN, J.

¶ 1 This is a review of a published decision of the court of appeals ¹ reversing a decision and order of the Sauk County Circuit Court ² dismissing the adverse possession claim brought by the respondents, Richard and Susan Wilcox.

¶ 2 This case involves an action for adverse possession brought by the respondents, Richard and Susan Wilcox, for the purpose of gaining title to a strip of land separating their property from Lake Delton. The question presented is whether the Wilcoxes can establish that they adversely possessed the disputed property when their predecessors in interest, the Somas, expressly disclaimed ownership of it and sought permission to use the property from an entity that the Somas mistakenly believed was its true owner. The Wilcoxes argue it is irrelevant whether the Somas subjectively intended to claim ownership of the property, so long as their use of the property was sufficient to put the true owner on notice of occupation. In contrast, the titleholders ³ maintain that a party's subjective intent ⁴ to claim ownership is relevant to whether “claim of title” ⁵ has been established under Wis. Stat. § 893.25 (2011–12).⁶ The titleholders assert that the fact the Somas expressly disclaimed ownership of the lakefront strip and requested permission to use it from an entity they mistakenly believed was its true owner demonstrates they did not intend to claim title to the property.

¶ 3 For the reasons that follow, we agree with the titleholders and hold that evidence regarding a possessor's subjective intent to claim title may be relevant in an adverse possession claim to rebut the presumption of hostility that arises when all other elements of adverse possession are satisfied. Because the circuit court properly considered the Somas' subjective intent and concluded that the Wilcoxes failed to establish adverse possession for the requisite statutory period, we affirm the judgment of the circuit court, and we need not remand for further proceedings. Accordingly, we reverse the decision of the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 4 In 2002, Richard and Susan Wilcox (“the Wilcoxes”) purchased a parcel of property (“the Wilcox property”) from Ronald and Mary Soma (“the Somas”) near Lake Delton in Sauk County. A 25–foot–wide strip of land (“the lakefront strip”) runs between the eastern border of the Wilcox property and Lake Delton. It is this lakefront strip that is the subject of dispute in this case, and a brief account of its ownership history is necessary to understand the parties' arguments.

¶ 5 At the time the Wilcoxes filed their complaint in this case, the southeast portion of the lakefront strip was owned by The Estate of William Newman (“Newman”). Newman originally created Lake Delton in 1927 by constructing a dam on Dell Creek, and at that time he owned the entire lakefront strip, as well as what is now the Wilcox property.

¶ 6 In 1933, Newman transferred ownership of the northeast portion of the lakefront strip and a portion of the Wilcox property to Ralph Hines (“Hines”), and transferred the remainder of the Wilcox property to Hines in 1935. Newman also granted Hines the right to foot traffic across the southeast portion of the lakefront strip. In 1935, Hines sold the Wilcox property to Henry C. Titus (“Titus”) but retained ownership of the northeast portion of the lakefront strip. Hines also granted Titus the right to foot traffic across the entire lakefront strip.

¶ 7 In 1963, the Somas purchased the Wilcox property from Titus and, as part of the sale, were granted the right to foot traffic across the entire lakefront strip. At this time, ownership of the lakefront strip remained with Hines and Newman, and Titus explained to the Somas that the Wilcox property did not include the lakefront strip. The Somas, however, never knew who actually owned the lakefront strip. Following the deaths of both Hines and Newman, ownership of the lakefront strip was ultimately transferred to the Estate of Ralph Hines and the Estate of William Newman. These estates retained ownership of the lakefront strip at the time the complaint in this case was filed.⁷

¶ 8 The Somas owned the Wilcox property for nearly 40 years. During this time, the Somas made numerous improvements to the lakefront strip, while understanding that they did not own that land. For instance, the Somas installed and removed a pier on the lakefront strip every year that they owned the Wilcox property. They also cleared out undergrowth on the lakefront strip, added rocks, planted trees and flowers, repaired a cement wall, installed riprap ⁸ along the shoreline, and maintained the lawn. In addition, the Somas put up a “No Trespassing” sign and regularly told trespassers that they were on private property and instructed them to leave. The Somas never asked permission from either the Newman or Hines Estates to make these alterations to the lakefront strip. However, they did ask and receive permission from John Dixon (“Dixon”), the manager of the Wisconsin Ducks (“the Ducks”), a company that provides boat tours of Lake Delton and Dell Creek. The Somas did so because they mistakenly believed that the lakefront strip was owned by the Ducks.

¶ 9 In 1982, the Somas granted the Ducks an easement across their property to bring trucks and equipment to the lakefront strip. The Ducks cleared out trees and undergrowth and placed rocks on the lakefront strip. The Somas never objected to these improvements because they believed the lakefront strip belonged to the Ducks. After the Ducks were finished, the Somas wished to make certain improvements to the lakefront strip. Before doing so, they sought and received permission from Dixon to rearrange the rocks, place peat and grass seed on the lakefront strip, and put up a fence with a gate and an additional “No Trespassing” sign.

¶ 10 The Wilcoxes purchased the Somas' property in 2002. Prior to the purchase, the Somas informed the Wilcoxes that the lakefront strip was not part of the sale, but that the Wilcoxes would have a right of foot traffic across it.⁹ Nevertheless, the Wilcoxes maintained and developed the lakefront strip in the years following their purchase, adding improvements such as piers, a patio, flowers, trees, a fire pit, and steps.

¶ 11 On August 26, 2011, the Wilcoxes brought a claim for title by adverse possession under Wis. Stat. § 893.25 against the owners of the lakefront strip, the Estate of Ralph Hines and the Estate of William Newman, in the Sauk County Circuit Court.¹⁰ The circuit court conducted a bench trial on May 10, 2012. In its oral ruling, the circuit court explained that adverse possession requires possession that is “open, notorious, visible, exclusive, hostile, and continuous....” The circuit court found that the Wilcoxes, in conjunction with their predecessors in interest,¹¹ had met their burden of proof on the open and visible elements of adverse possession. However, the circuit court determined that they had failed to establish the elements of exclusive, hostile, notorious, and continuous possession. The circuit court dismissed the Wilcoxes' adverse possession claim, noting that 1) the Somas had specifically disclaimed ownership of the lakefront strip; and 2) the Somas sought and received permission to make improvements to the lakefront strip. A final order reflecting this ruling was issued on May 22, 2012.

¶ 12 The court of appeals reversed the decision of the circuit court. Wilcox v. Estate of Hines, 2013 WI App 68, 348 Wis.2d 124, 831 N.W.2d 791. The court of appeals first acknowledged “what might appear to be an inconsistency in adverse possession case law.” Id., ¶ 2. Specifically, the court observed that while the adverse possession statute, Wis. Stat. § 893.25(2)(a), requires “occupation under claim of title,” several cases appear to hold that the subjective intent of a possessor—that is, whether the possessor intended to claim title—is an irrelevant factor in determining the merits of an adverse possession claim. Id. After noting this apparent tension between the language of Wis. Stat. § 893.25 and our precedent, the court of appeals determined that reviewing courts should consider “the appearance that a possessor's use would give to the true owner” and not the “actual subjective intent” of a party. Id., ¶ 15. In other words, the court of appeals concluded that it is “a possessor's actions, not a possessor's belief” that matters when considering the hostile nature of the occupation. Id., ¶ 16. The court of appeals reasoned that this distinction reconciles various cases that appear “to declare, in one breath, that a possessor must actually intend to claim an exclusive right to possess property, and then, in the next breath, assert that the subjective intent of the possessor is irrelevant....” Id., ¶ 19. Applying this rule, the court of appeals held that evidence of permission to use the property from a non-owner and a party's express declarations of non-ownership should not be considered.

¶ 13 The court of appeals recognized an exception to this rule: a party's permissive use of property is relevant in cases where the...