In the March 2010 Wisconsin Lawyer article “Hey! That’s my land! Understanding Adverse Possession,” I reported on the prevalence of adverse possession disputes and discussed the “intricate web of elements, presumptions, burdens, and defenses” that has developed in the lengthy history of the law. Since then, it seems, the frequency of these disputes has not diminished.

For the most part, the fundamentals of the law of adverse possession remain unchanged since 2010. Property is adversely possessed under Wis. Stat. section 893.25 if, for more than 20 years, the possessor is in “actual continued occupation under claim of title, exclusive of any other right … and the property is protected by a substantial enclosure or usually cultivated and improved.”¹ This section codified the well-known common-law elements of “continuous, open, notorious, exclusive, and hostile possession.”²

However, since 2010, the Wisconsin Supreme Court and the Wisconsin Court of Appeals have decided several important cases covering a broad range of topics relating to the requirements of adverse possession. Almost any adverse possession dispute will likely be affected by one or more of these cases. Lawyers who may encounter adverse possession issues, whether in a real estate transaction or in a heated boundary dispute, should be aware of these developments.

The New Element of Subjective Intent

Perhaps the most significant of the recent developments came about in the 2014 Wisconsin Supreme Court decision in Wilcox v. Estate of Hines.³ The Wilcoxes claimed title by adverse possession to a strip of land separating their property from Lake Delton. They introduced evidence that they and their predecessors in interest had maintained and developed the lakefront strip for more than 20 years by adding a fence, a “no-trespassing” sign, riprap, piers, landscaping, and other improvements. These physical acts of possession alone would seem to present a strong claim.⁴

However, the evidence also showed that the Wilcoxes’ predecessors in interest, the Somas, had understood that they did not own the lakefront strip and had not intended to possess the strip to the exclusion of the true owner. At one point, the Somas had sought permission to improve the strip from an entity they mistakenly believed was the true owner. Another time, the Somas challenged a property tax assessment on the basis they did not own the strip. And when the Somas sold their property to the Wilcoxes, the Somas specifically stated they did not own the lakefront strip. Based on this evidence of the Somas’ subjective intent, the circuit court found that the Somas’ possession was not hostile and dismissed the Wilcoxes’ claim.

After more than a century of less than ‘optimal clarity,’ the supreme court unequivocally declared that actual subjective intent to claim ownership of property is an element of adverse possession.

The Wilcoxes appealed. In a published decision, the court of appeals considered the meaning of the requirement of “hostility” or “hostile intent” and seemingly incongruous pronouncements regarding this requirement in Wisconsin adverse possession cases spanning more than 100 years.⁵ For example, some cases had referred to the requirement as “the intention to usurp possession,” while other cases had declared that “the subjective intent of either of the parties is irrelevant.”⁶

After reviewing the various cases, the court of appeals determined that the cases were in fact consistent, finding that all focused exclusively on “the appearance that a possessor’s use would give to the true owner,” with the sole recognized exception being in situations in which possession is pursuant to the permission of the true owner.⁷ Accordingly, the court found that permission from a nonowner and other evidence of the Somas’ subjective intent was irrelevant to the Wilcoxes’ adverse possession claim.

In a 6-to-1 decision, the supreme court reversed.⁸ First, the court considered the essential elements of adverse possession and applicable burdens and presumptions. The court explained that the statutory “claim of title” requirement is equivalent to the common law “hostility” requirement.⁹ Under past precedent, if all other elements are met, the law presumes the element of hostile intent/claim of title. Thus, to satisfy the burden of proof, the claimant need only present evidence related to a property’s “observable physical characteristics.”¹⁰

However, the court found that evidence of a lack of subjective intent to claim title is relevant to rebut the presumption of hostility. The supreme court disagreed with the court of appeals’ interpretation of prior case law and held that under the cases and the “plain meaning of ‘claim of title’ … a possessor must subjectively intend to claim ownership of the disputed property.”¹¹ Otherwise, the element would have no meaning. Therefore, “express declarations of non-ownership and evidence of permissive use,” regardless of the source of permission, may be considered.¹²

This is an important decision in Wisconsin adverse possession jurisprudence. After more than a century of less than “optimal clarity,”¹³ the supreme court unequivocally declared that actual subjective intent to claim ownership of property is an element of adverse possession.

Although the Wilcox decision suggested that instances in which evidence exists “to refute the claim of title requirement will necessarily be rare,” this decision seems likely to lead to many new questions.¹⁴ For example, what constitutes an “express declaration of non-ownership”? What if prior owners simply admit in deposition that they understood the property was not described in their deed? What level of proof is necessary to rebut the presumption?

The frequency with which cases relating to a lack of intent arise will depend on the answer to these and other questions and how Wilcox is construed. And, while the decision would on its face seem to clarify that which was previously uncertain, litigating adverse possession cases may now be even more complicated from an evidentiary standpoint.¹⁵

Moving forward, attorneys defending against adverse possession claims should search for evidence that the claimant or any predecessor lacked subjective intent to claim disputed property, and attorneys representing claimants should exercise caution with respect to this newly illuminated defense. Interviews with neighbors or community members who were present during the time in question will have increased importance. Other possible sources of information will include tax assessors, surveyors, and realtors who may have been involved with the property. A single statement by an adverse claimant to any of these individuals could reveal a lack of subjective intent.

Adverse Possession of Hunting Land

Another important adverse possession case is Steuck Living Trust v. Easley, decided by the court of appeals in 2010.¹⁶Easley was the record owner of at least 360 acres of wild, undeveloped land in Marquette County, with part of the land set aside as a sanctuary for a deer herd. Easley regularly hunted on his land but, so as not to disturb the deer, rarely accessed any part of the sanctuary. Neighboring property owners, the Steucks, claimed title to approximately 17 acres of land within the sanctuary set apart from the remainder of Easley’s property by an artificial drainage ditch, a swampy area, and a lake. The Steucks claimed to have adversely possessed this area based primarily on 29 years of regular hunting activities including the placement of tree stands and making and using a road and trail to the lake. Easley testified that he had never noticed anyone trespassing or anything that caused him to believe there was an adverse claim.

Following a bench trial, the circuit court ruled for the Steucks. The court found that gunshots would have been audible to Easley, that the disputed area was protected by a “substantial enclosure,” and that Easley had “acquiesced” in the drainage ditch as a boundary.¹⁷ In reaching its decision, the court commented on Easley’s limited use of the disputed area and his failure to post the area with no-trespassing signs as he had done elsewhere.

The court of appeals reversed. First, the court clarified that a titleholder is not required to prove efforts to ward off trespassers, to post his or her land, or to patrol it. Rather, the claimant has the burden of proving adverse possession by “clear and positive evidence.”¹⁸ If the claimant cannot meet that burden, the titleholder is not obligated to do anything to retain title.

Second, the court disagreed that the Steucks’ and their predecessors’ use of the property constituted open, notorious, visible, exclusive, or hostile use. The court emphasized that 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.”¹⁹ As this was wild, undeveloped hunting land, the sound of gunshots would not have put a reasonably diligent titleholder on notice. The sound of gun shots and the presence of tree stands on such property are more consistent with trespassers than a claim of ownership.

Similarly, the dirt road and trail the Steucks made and used was consistent with an easement rather than a claim of ownership to the entire 17-acre area. Although such uses may be “the ordinary use” an owner would make of hunting land, the court explained that such ordinary use alone cannot constitute adverse possession – all the requisite elements must be met.²⁰ Moreover, the court stated that its decision was consistent with public policy that “favors open use of wild lands by the public.”²¹

This is a significant holding, considering the amount of wild, undeveloped, and recreational land in Wisconsin. Following this decision, typical use of hunting property will likely not constitute adverse possession. At a minimum, posting no-trespassing signs, constructing a fence, or something more would appear necessary.²²

This case also serves as a reminder that the nature and characteristics of the property in question are essential factual considerations when evaluating the merits of an adverse possession claim.²³ Attorneys should consider personally viewing the disputed property in the context of its surroundings before deciding whether to take an adverse possession case. In litigation, it may also be helpful to request that the factfinder(s) view the property.²⁴

What Constitutes a “Substantial Enclosure”

The court of appeals in Steuck Living Trust v. Easley also disagreed with the circuit court’s finding that the disputed area was protected by a “substantial enclosure.”²⁵ Wisconsin Statutes section 893.25(2)(b) lists protection by a substantial enclosure as one possible condition supporting adverse possession. Although not required, this condition has been the subject of many cases, perhaps the most often cited being Illinois Steel Co. v. Bilot, in which the court stated, “a mere furrow turned with a plow around the land, or a line marked by cutting away the brush… may be sufficient under the circumstances to indicate … the boundaries of the adverse claim.”²⁶

Citing Bilot, the Steucks claimed that the disputed property was “enclosed” by a swampy area and an artificial drainage ditch. They argued that the ditch was akin to a “mere furrow” and emphasized that it would be difficult for Easley to access the disputed property.

The court of appeals, however, held that a natural swampy area would not provide reasonable notice of an adverse claim. Moreover, the court stated, “[the] difficulty of natural access does not contribute to providing notice.”²⁷ This holding thus indicates that a section of property separated by a natural feature, such as a stream, lake, or cliff, is not ordinarily “protected by a substantial enclosure” under adverse possession law.

Nor was the drainage ditch a “substantial enclosure.” The court reasoned that 1) the ditch had been on the property long before Easley purchased it, 2) there was nothing to indicate that it was “dug without the consent of the prior owners,” and 3) “there is nothing in the nature and function of the ditch itself that would reasonably suggest it was dug by a non-titleholder claiming land on the other side.”²⁸ The “mere furrow” referred to in Bilot was different, the court explained, because it was accepted as evidence of adverse possession in the context of a local custom to mark boundaries by plowing furrows.

The court’s reasoning and focus on who actually dug the ditch and under what circumstances raise an interesting question for future disputes: Can a fence of unknown origin or erected by the titleholder, without more, form the basis of adverse possession? Steuck suggests that it might not and at least one unpublished court of appeals decision issued after Steuck has already reached a similar conclusion with respect to a structure other than a fence.²⁹ Note, this question may also concern the doctrine of acquiescence discussed below.

Acquiescence versus Adverse Possession

The basic premise of “acquiescence” in boundary cases is that the parties are treating a particular line as a boundary. It is common for a claimant to plead “acquiescence” as an alternative to or in support of an adverse possession claim. More than one-third of the adverse possession cases in the courts of appeals since 2010 have also involved the doctrine of acquiescence.³⁰ Thus, lawyers should be aware of the doctrine.

However, despite the large number of cases, what constitutes acquiescence and how it differs from adverse possession have been difficult to discern. A complete discussion of the doctrine of acquiescence is beyond the scope of this article, but the decisions in Steuck Living Trust v. Easley and the subsequent 2011 Wisconsin Supreme Court case, Northrop v. Opperman, help put the doctrine and its complications in perspective.

In Steuck, the court of appealsconsidered the relationship between acquiescence and adverse possession. The court explained that acquiescence appears to have developed as an alternative to the element of “hostile intent” in old cases that required “knowledge that the land was owned by another.”³¹ However, the law changed over time to focus on the acts of possession, and specific proof of hostile intent is no longer required. In light of these changes in the law, the court stated, “it is not clear whether the doctrine of acquiescence remains a distinct means of proving adverse possession when … there is no issue concerning the twenty-year time period.”³²

Regardless, the court found that the doctrine would at least require “visible activity up to a fence or fence equivalent” without objection from the titleholder.³³ As a result, the Steucks could not establish title based on acquiescence for the same reasons they could not establish adverse possession.

Shortly after denying review of Steuck, the Wisconsin Supreme Court decided Northropv. Opperman, in which the court discussed various doctrinal categories of boundary cases including acquiescence.³⁴ Citing Steuck and other cases, the supreme court remarked, “the case law relating to the doctrine of acquiescence is not consistently stated or applied.”³⁵ Nonetheless, the court found that there are two separate and distinct uses of the term “acquiescence” in the case law: 1) cases in which acquiescence in a boundary is the “best evidence” of the boundary when it cannot be determined from the deed and original monuments, and 2) other cases in which “acquiescence” refers to a legal doctrine.³⁶ Acquiescence in the evidentiary sense resolved the dispute in question, and the court ultimately did not apply or define the legal doctrine of acquiescence.³⁷

It would seem that Steuck and cases it cited regarding the history of acquiescence are referring to the legal doctrine and not the evidentiary rule. It is unclear what effect, if any, Northrop will have on the doctrine moving forward. It is also unclear whether or to what extent the decisions in Steuck and Northrop are affected by the later decision in Wilcox regarding subjective intent. Possible questions that may arise regarding the legal doctrine of acquiescence could include the interplay of the doctrine and the Wilcox decision and the lingering question posed by the Steuck court. Attorneys representing adverse possession claimants should consider whether including an acquiescence claim could be valuable and how these unanswered legal questions might affect the claim.

Timing of Adverse Possession

Finally, two noteworthy cases have been decided since 2010 relating to the timing of adverse possession under certain statutory provisions.

In DNR v. Building, the court of appeals considered which version of the statute allowing for adverse possession against governmental entities would apply when the statute changed during the period of possession.³⁸ When the claimants began adversely possessing Wisconsin Department of Natural Resources (DNR) land in 1970, the statute required 40 years of possession. In 1980, the statute was amended to reduce the term to 20 years. In 1998, the statute was repealed and recreated to its current version, which requires adverse possession of governmental property for more than 20 years “based upon a continuously maintained fence line which has been mutually agreed upon by the current landowners.”³⁹

The court clarified that a titleholder is not required to prove efforts to ward off trespassers, to post his or her land, or to patrol it.

The DNR argued that the claimant should have to satisfy the 1998 version because it is more difficult for a claimant to satisfy. Despite that fact, the court ruled, “in the absence of an express provision to the contrary … one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and recreation.”⁴⁰ Notably, the court did not decide whether the claimant would have to meet the 40-year requirement applicable when the possession commenced. This issue likely will arise in the future.

In another case, Engel v. Parker, the court of appeals clarified the application of Wis. Stat. section 893.33 to adverse possession claims.⁴¹ Section 893.33 bars claims and defenses concerning real estate, unless within 30 years after the event giving rise to the claim or defense, an action is commenced or preserved in a recorded instrument as provided in the statute. Adverse possession for the time necessary to obtain title is such an “event,” but the statute includes an exception for claims or defenses raised by an owner in possession of the property, which was previously held to include owners by adverse possession.⁴²

In Engel, the claimants proved adverse possession of farming property from 1954 to 1974. After 1974, their visible acts of possession subsided and their use of the property when the action commenced would not have been sufficient to prove adverse possession. The titleholders argued that the 30-year limitation period under Wis. Stat. section 893.33 expired in 2004 and that the claimants were not entitled to the owner-in-possession exception.

On the contrary, the court found that the exception did apply. The court explained that once a claimant has adversely possessed property for the requisite time period, the claimant is not required to continue to adversely possess the property, and the claimant is instead presumed to be in possession pursuant to past precedent and another statute, Wis. Stat. section 893.30.

Conclusion

Ninety-one years ago in a Marquette Law Review article titled “Adverse Possession,” Racine lawyer Frederick B. Helm declared that the subject of adverse possession “presents some of the most doubtful questions known to the law.”⁴³ This statement still rings true today. Notwithstanding technological advances in surveying, the advent of GPS and satellite mapping, and the ability to obtain digital copies of many recorded documents, the years since Helm’s article have only brought more legal and factual complexity to this area of law.

Cases decided since 2010 are no exception. While these recent cases have clarified some important issues, they also appear to give rise to a myriad of new questions. Lawyers who might encounter an adverse possession issue should consider the implications of these recent cases and advise clients accordingly.

Endnotes

¹ Other adverse possession statutes have different requirements. See Wis. Stat. §§ 893.26 (founded on recorded written instrument), 893.27 (founded on recorded title claim and payment of taxes), 893.29 (against the state or political subdivisions). 

² Wilcox v. Estate of Hines, 2014 WI 60, ¶ 20, 355 Wis. 2d 1, 849 N.W.2d 280.

³ 2014 WI 60, 355 Wis. 2d 1, 849 N.W.2d 280.

⁴ The circuit court found that such acts of possession would be open and visible. Id. ¶ 11.

⁵ Wilcox v. Estate of Hines, 2013 WI App 68, 348 Wis. 2d 124, 831 N.W.2d 791.

⁶ Id. ¶¶ 15-17 (quoting Stone Bank Improvement Co. v. Vollriede, 11 Wis. 2d 440, 447, 105 N.W.2d 789 (1960), and Allie v. Russo, 88 Wis. 2d 334, 347, 276 N.W.2d 730 (1979)).

⁷ Id. ¶¶ 15, 23.

⁸ Wilcox, 2014 WI 60, ¶ 24, 355 Wis. 2d 1.

⁹ Id.

¹⁰ Id. ¶ 30.

¹¹ Id. ¶ 24.

¹² Id.

¹³ Id. ¶ 29. For some, including the author, this decision is regarded as more of a change in the law than a clarification.

¹⁴ Id. ¶ 27 n.17. Chief Justice Abrahamson stated in her dissent, “The majority opinion seems to introduce a minefield of blanket pronouncements and unanswered questions….” Id. ¶ 37 (Abrahamson, C.J., dissenting).

¹⁵ See also Rutter v. Copper, 2012 WI App 128, 344 Wis. 2d 596, 824 N.W.2d 885 (discussing application of the “dead man’s statute,” Wis. Stat. § 885.16, in the context of an adverse possession dispute).

¹⁶ 2010 WI App 74, 325 Wis. 2d 455, 785 N.W.2d 631. This case has already been cited in at least 11 Wisconsin adverse possession cases.

¹⁷ Id. ¶ 1.

¹⁸ Id. ¶ 17.

¹⁹ Id. ¶ 14.

²⁰ Id. ¶ 22.

²¹ Id. ¶ 23 (quoting Pierz v. Gorski, 88 Wis. 2d 131, 139, 276 N.W.2d 352 (Ct. App. 1979)).

²² The court noted that if the claimant had posted the disputed area, it would have provided notice of an adverse claim. Id. ¶ 21. In dissent, Judge Dykman opined that this decision “has made it impossible to adversely possess hunting land….” Id. ¶ 44 (Dykman, J., dissenting).

²³ The court stated more than 100 years ago that “[w]hat is adverse possession is one thing in a populous country, and another thing in a sparsely-settled one, and still a different thing in a city or village.” Illinois Steel Co. v. Bilot, 109 Wis. 418, 445, 84 N.W. 855 (1901) (quoted source omitted).

²⁴ If the appearance or uses of the property have changed or are not representative of the appearance and uses of the property for the entire alleged period of possession, a property visit may not be appropriate or advantageous.

²⁵ The court indicated that it could have concluded its analysis without addressing this issue, but chose to do so to “provide a more complete analysis.” Steuck, 2010 WI App 74, ¶ 25, 325 Wis. 2d 455.

²⁶ 109 Wis. 418, 446 (internal citations omitted). See also Herzog v. Bujniewicz, 32 Wis. 2d 26, 33, 145 N.W.2d 124 (1966);
Klinefelter v. Dutch, 161 Wis. 2d 28, 467 N.W.2d 192 (Ct. App. 1991); Droege v. Daymaker Cranberries Inc., 88 Wis. 2d 140, 276 N.W.2d 356 (Ct. App. 1979).

²⁷ Steuck, 2010 WI App 74, ¶ 29, 325 Wis. 2d 455.

²⁸ Id. ¶ 30.

²⁹ See Norman v. Declaration of Trust of Warner, No. 2013AP2663, 2014 WL 1908715 (Wis. Ct. App. May 13, 2014) (unpublished limited precedent opinion) (questioning how a structure constructed by the titleholders on their own property could constitute a substantial enclosure providing notice of a possible boundary dispute). See also Camacho v. Trimble, 2008 WI App 112, 313 Wis. 2d 272, 756 N.W.2d 596; Allie v. Russo, 88 Wis. 2d 334, 276 N.W.2d 730 (1979).

³⁰ See, e.g., Orcutt v. Blum, No. 2010AP1184, 2012 WL 2924063 (Wis. Ct. App. July 19, 2012) (unpublished limited precedent opinion); Valley Beau Farms Inc. v. Schick, No. 2013AP623, 2013 WL 6231276 (Wis. Ct. App. Dec. 3, 2013) (unpublished limited precedent opinion).

³¹ Steuck, 2010 WI App 74, ¶ 35, 325 Wis. 2d 455.

³² Id. ¶ 34. As referenced in the 2010 article, several discrete claims have developed in the cases, which might allow a claimant to establish title based on less than 20 years of “acquiescence.”

³³ Id. ¶ 41.

³⁴ 2011 WI 5, 331 Wis. 2d 287, 795 N.W.2d 719. Note that Northrop did not involve an adverse possession claim.

³⁵ Id. ¶ 38.

³⁶ Id. ¶¶ 32-33.

³⁷ The court’s discussion and listing of diverse acquiescence cases is a useful resource.

³⁸ DNR v. Building & All Related or Attached Structures Encroaching on the Lake Noquebay Wildlife Area, 2011 WI App 119, 336 Wis. 2d 642, 803 N.W.2d 86. Note that Wisconsin is one of a limited number of states that allow for adverse possession of governmental property.

³⁹ Wis. Stat. § 893.29.

⁴⁰ Building & All Related or Attached Structures, 2011 WI App 119,
¶ 18, 336 Wis. 2d 642.

⁴¹ Engel v. Parker, 2012 WI App 18, 339 Wis. 2d 208, 810 N.W.2d 861.

⁴² See O’Neill v. Reemer, 2003 WI 13, ¶ 31, 259 Wis. 2d 544, 657 N.W.2d 403.

⁴³ Frederick B. Helm, Adverse Possession, 8 Marq. L. Rev. 104 (1924).