By: Derek Hawkins//January 18, 2017//
WI Court of Appeals – District IV
Case Name: Dennis Winchell et al v. Eric Perschke et al
Case No.: 2014AP2787
Officials: Kloppenburg, P.J., Higginbotham and Blanchard, JJ.
Focus: Adverse Possession
This appeal arises out of a claim of title to a 15- by 290.4-foot area of land (“disputed area”) by adverse possession brought by Dennis and Sheryl Winchell against Caroline Perschke and her brother Eric Perschke. The disputed area is on the westernmost part of the Perschkes’ lot, and
it abuts the eastern border of the Winchells’ lot. This appeal also involves the Perschkes’ counterclaim1 seeking a declaration of interest in the disputed area in their favor, and alleging that the Winchells trespassed on the disputed area and caused damage to the Perschkes. The Winchells appeal the circuit court’s determination that they failed to show that they adversely possessed the disputed area for twenty continuous years, one of the requirements that must be met to obtain title by adverse possession under WIS. STAT. § 893.25 (2015-16).2 The Winchells also appeal the court’s award of nominal and restorative damages related to the declaration of ownership and the trespass determination We conclude, applying the presumption in favor of the Perschkes and placing the burden on the Winchells to present “clear and positive” evidence that they adversely possessed the disputed area, that the Winchells failed to show that they adversely possessed the disputed area for the requisite twenty continuous years, because the only date the Winchells use to try to define a twenty-year period of adverse possession of the disputed area fell during a period of permissive use. We also affirm the court’s damage awards. Accordingly, we affirm.