Dead Man’s Statute Blocks Testimony in Prescriptive Easement Case

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 4, 2012 – An alleged conversation that took place between landowners in 1962 cannot be rehashed in court because one of the landowners is now deceased, an appeals court has ruled.

That’s not good news for the Tower family, which sought to offer testimony about the conversation to prove that a family member granted permission for a neighboring landowner to cross their land. Permission defeats claims to possession by prescriptive easement.

Landowners with prescriptive easement claims must prove they continuously and adversely used property for at least 20 years, and permission would negate “adverseness.”

Gary and Jeanne Rutter own parcels of property along the Mississippi River, but the parcels are not directly adjacent. To get from one parcel to the other, the Rutters used a pathway across the Towers’ land. Apparently, the pathway had been used for many years by previous owners.

When the Towers’ took measures to prevent the Rutters’ use of the pathway, the Rutters sought a declaratory judgment that they legally possessed the path by prescriptive easement.

In defense, the Towers offered the testimony of Beulah Tower, who holds a life estate in the Towers’ land. Beulah claimed that in 1962, she told the Rutters’ predecessor-in-interest, Laverne Hutson, that he had permission to cross the Towers’ land. Hutson is now deceased.

The Rutters objected to this testimony based on Wis. Stat. section 885.16, which prohibits a person from testifying about his or her “transactions or communications” with a deceased person if the person testifying has an interest in the outcome of the case.

Although the District IV Wisconsin Court of Appeals suggested that Wisconsin’s dead man’s statute is somewhat disfavored, the three-judge appeals panel affirmed a lower court ruling to prohibit Beulah Towers’ testimony in Rutter v. Tower, 2012AP25 (Oct. 4, 2012).

“The Federal Rules of Evidence do not contain a dead man’s statute, and many states have abolished their respective statues,” wrote Judge JoAnne Kloppenburg. “In Wisconsin, both the State Bar and the Judicial Council’s Rules of Evidence Committee have recommended repeal of Wisconsin’s dead man’s statute. Yet, Wis. Stat. § 885.16 remains in force.”

The appeals panel rejected the Towers argument that Beulah Tower was not an “interested” person and the conversation was not a “transaction or communication” under the statute.

Beulah Tower is an “interested” party, the appeals panel explained, because she has a life estate in the property, and “stands to gain or lose by the court’s decision.”

The court also rejected the Towers’ argument that Beulah Tower’s unilateral declaration of permission was not a “communication,” as that term is used in the statute.

Citing previous case law, the appeals panel noted that “informing a person about what that person is doing … is an effort to communicate something, and so the dead man’s statute prohibits testimony about that communication.”

Thus, the appeals court affirmed the circuit court judgment granting the Rutters a prescriptive easement across the Towers’ property.