Wilcox v. Estate of Hines

Decision Date11 April 2013
Docket NumberNo. 2012AP1869.,2012AP1869.
Citation831 N.W.2d 791,2013 WI App 68,348 Wis.2d 124
PartiesRichard 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, Chicago Title Insurance Company, Defendant.
CourtWisconsin Court of Appeals


On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Edward A. Corcoran of Neider & Boucher, S.C., Madison.

On behalf of the defendants-respondents, the cause was submitted on the brief of Richard L. Schmidt and James E. Bartzen of Boardman & Clark LLP, Madison.



[348 Wis.2d 127]¶ 1 This appeal involves Richard and Susan Wilcox's claim of title by adverse possession to a narrow strip of land separating their property from Lake Delton. The legal question we must resolve is whether the lack of subjective intent on the part of the Wilcoxes' predecessors in interest to claim title and the predecessors' use of the property with the permission of a non-owner, along with other clear indications that the predecessors believed they were using the land with permission, defeats the Wilcoxes' adverse possession claim. The circuit court concluded that, regardless of the lack of involvement of the true owner, the fact that the predecessors asked for permission to use the property, and later affirmatively asserted to specified persons that the property was not theirs, showed that the predecessors did not have the “hostile intent” required for adverse possession.

¶ 2 The parties' dispute over the circuit court's ruling highlights what might appear to be an inconsistency in adverse possession case law. Several cases broadly pronounce that the subjective intent of parties is irrelevant. At the same time, and seemingly inconsistently, the adverse possession statute, Wis. Stat. § 893.25(2)(a),1 requires “occupation under claim of title,” and several cases, at least superficially, indicate that subjective intent does matter. In the discussion below, we discuss this apparent inconsistency, and resolve the legal dispute in favor of the Wilcoxes. Accordingly, we reverse the circuit court and remand for further proceedings.


¶ 3 The property at issue here is a 25–foot–wide strip of lake frontage on Lake Delton. The ownership history of the disputed strip of lakefront property is complicated. For purposes of this opinion, we will refer to the respondents, and their predecessors in interest, as the titleholders.2 The following summary of facts is based on a view of the evidence in a light most favorable to the circuit court's decision.

¶ 4 In 1963, Ronald and Mary Soma purchased property near the shore of Lake Delton. The property the Somas purchased is separated from Lake Delton by the disputed lakefront strip. The Somas always understoodthat they did not own the lakefront strip. Nonetheless, from the beginning they took steps to exclude others, including putting up a “no trespassing” sign and telling people that the lakefront strip was private property.

¶ 5 The Somas mistakenly believed that the lakefront strip was owned by a company that operated the “Wisconsin Ducks” tours. When the Somas wanted to put out a pier from the lakefront strip, Ronald Soma asked for permission from a manager employed by the Wisconsin Ducks. Subsequently, in 1982, Wisconsin Ducks employees were making improvements to the lakefront strip, and the Somas asked for and received permission from the same manager to push some rocks to the water's edge, bring in dirt, and plant grass seed on the lakefront strip. Thereafter, acting under the mistaken impression that they had permission from the true owner to do so, the Somas mowed and otherwise maintained the lakefront strip as if they were the owners.3

¶ 6 Although she did not specify a date, Mary Soma testified that, at some point after 1982, the Somas once challenged their property tax assessment on the basis that they did not own the lakefront strip. Mary testified that they went in for an “open book” and spoke with a village tax assessor, who declined to reduce their taxes.

¶ 7 In 2002, the Somas sold their property to the Wilcoxes. At that time, Ronald Soma told the Wilcoxes that the sale did not include the lakefront strip because the Somas did not own the property.

¶ 8 Prior to this lawsuit, neither the Somas nor the Wilcoxes learned the identitiesof the true titleholders. And, there is no evidence that the titleholders did anything with respect to the lakefront strip.4

¶ 9 As aptly summarized by the circuit court, both the Somas and the Wilcoxes “made improvements to the [lakefront strip] in terms of plantings, use of the land, mowing, filling in, riprap, stone, brick, dirt and so forth ... over the time, the entire time since the Somas obtained title” and [t]hose efforts would be visible and would be open to anyone looking at those.”


¶ 10 The general legal principles applicable to adverse possession claims and the standards governing our review of a circuit court's decision on such claims are as follows:

In reviewing a circuit court's determination of adverse possession, we accept the circuit court's factual findings unless they are clearly erroneous. We review de novo whether those facts fulfill the legal standard for adverse possession. Our standard of review is the same regarding the doctrine of acquiescence.


Pursuant to Wis. Stat. § 893.25(2)(a) and (b), 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.” Pursuant to § 893.25(1), the adverse possession must be uninterrupted for twenty years.

In order to constitute adverse possession, “the use of the land must be open, notorious, visible, exclusive, hostile and continuous, such as would apprise a reasonably diligent landowner and the public that the possessor claims the land as his own.” “Hostile” in this context does not mean a deliberate and unfriendly animus; rather, the law presumes the element of hostile intent if the other requirements of open, notorious, continuous, and exclusive use are satisfied. “Both ... the fact of possession and its real adverse character” must be sufficiently open and obvious to “apprize the true owner ... in the exercise of reasonable diligence of the fact and of an intention to usurp the possession of that which in law is his own....” The size and nature of the disputed area are relevant in deciding if the use is sufficient to apprise the true owner of an adverse claim.

The party seeking to claim title by adverse possession bears the burden of proving the elements by clear and positive evidence. The evidence must be strictly construed against the claimant and all reasonable presumptions must be made in favor of the true owner. One of these presumptions is that “actual possession is subordinate to the right of [the true] owner.”

Steuck Living Trust v. Easley, 2010 WI App 74, ¶¶ 11–15, 325 Wis.2d 455, 785 N.W.2d 631 (citations omitted; footnote omitted).

¶ 11 Here, the evidence of adverse possession centers on the Wilcoxes' predecessors in interest, the Somas, and, like the parties, we focus our attention on the Somas' time as possessors. The titleholders do not argue that any relevant aspect of the possession changed when the Wilcoxes purchased the Somas' property.

¶ 12 As to the Somas, the evidence showed that they subjectively held the correct belief that they did not own the lakefront strip and also subjectively held the incorrect belief that their use of the property was with the permission of the true owner. Thus, it is undisputed that the Somas did not actually intend to possess the disputed property to the exclusion of the rights of others. The titleholders argue that this lack of actual intent is fatal. The titleholders assert that [i]ntention is part of the court's inquiry—not intent to injure, but intention to claim exclusive right.” Under the titleholders' view of adverse possession law, the required showing of “hostile” possession cannot be met if the possessor lacks a subjective intent to claim the exclusive right to possess.5

[348 Wis.2d 133]¶ 13 The titleholders' argument is in keeping with the reasoning of the circuit court. The circuit court concluded that the Somas did not have hostile intent because they disclaimed ownership of the lakefront strip and asked for permission to make improvements. According to the circuit court, the fact that the Somas asked for permission to improve the property, albeit from a non-owner, showed that the Somas had no intent that “their actions ... be hostile to any ownership interest.”

¶ 14 Although the circuit court's view of the law is understandable in light of numerous statements in adverse possession case law seeming to require actual subjective intent, we conclude that the circuit court erred. For the reasons explained below, we conclude that the Somas' subjective belief that they did not own the lakefront strip and had no intention of possessing it to the exclusion of others is not relevant.

¶ 15 Wisconsin adverse possession case law contains numerous statements which, if read in isolation, suggest that the subjective intent to hostilely possess property matters. Typically, such statements assert that proving adverse possession requires a showing of hostile intent in the sense of possession with intent to claim exclusive right to property. See, e.g.,Stone Bank Improvement Co. v. Vollriede, 11 Wis.2d 440, 447, 105 N.W.2d 789 (1960) (“ ‘To constitute adverse possession there must be the fact of possession and the hostile intention—the...

To continue reading

Request your trial
1 cases
  • Wilcox v. Estate of Hines
    • United States
    • Wisconsin Supreme Court
    • July 11, 2014
    ...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 la......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT