Hunting insufficient for adverse possession

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For the second time in less than a week, the Wisconsin Court of Appeals has recommended for publication an opinion concerning ad-verse possession and the doctrine of acquiescence. But the opinions rely on two distinct lines of authority.

On May 11, in Northrop v. Opperman, No. 2009AP1559, the court assumed that acquiescence is a doctrine distinct from adverse possession.

Two days later, in Steuck v. Easley, No. 2009AP757, the court recognized that acquiescence may not be a separate doctrine, but is subsumed within the adverse possession analysis.

Writing for the court in Steuck, Judge Margaret J. Vergeront opined, “It would appear that, once it was established in the early twentieth century that actual hostile intent on the part of the claimant was no longer required for adverse possession, the elements of adverse possession could be proved in the ‘fence-as-common boundary line’ situation without the need for specific proof of acquiescence by the titleholder.”

The case involved a dispute over 17 acres in Marquette County, part of a 360 acre parcel of undeveloped land. The titleholder, Newell L. Easley, uses the land for hunting, gathering firewood, picking apples, and hiking. Easley claims he has never noticed trespassers in the disputed area.

According to the Steuck family, they and their predecessors have been using the disputed 17 acres for more than 20 years for hunting and four-wheeling. They have also put up several year-round tree stands, and made a trail to provide lake access.

In 2007, the Steuck family sought title by adverse possession, and the circuit court entered judgment in their favor. A divided Court of Appeals reversed.

The court concluded that the Steucks’ regular use of the land was insufficient to claim title to it by adverse possession.

The court first noted that there was no evidence they ever encountered Easley in the area. And citing Pierz v. Gorski, 88 Wis.2d 131, 276 N.W.2d 352 (Ct.App.1979), it found the trail they made more consistent with an easement than adverse possession.

The court also noted that, while Easley never put up any “no trespassing” signs, neither did the plaintiffs — an act which would have alerted Easley that another party was claiming right to the property.

The court acknowledged that hunting was the ordinary, highest, and best use of the land, but found that was insufficient to claim it by adverse possession, because it failed to give notice of their claim to the true owner of the property.

The court wrote, “although the use need be only the ordinary use an owner would make of it, the use must also be open, notorious, visible, exclusive, and hostile (as well as continuous).”

Acquiescence

The court then turned to whether the plaintiffs established title through the doctrine of acquiescence.

The court began by questioning whether acquiescence remains a distinct means of obtaining title to property.

At common law, possession could only be adverse if it was “hostile”; an honest mistake over the location of a boundary could never suffice, no matter how long-standing the possession. Courts thus developed the doctrine of acquiescence under which, even though hostile intent was absent, a party could acquire land if the true owner acquiesced in such possession for 20 years through mutual mistake.

However, it is unclear whether the doctrine of acquiescence is a distinct means of proving adverse possession, or whether hostile intent is simply no longer required for adverse possession.

The court noted that, in Menzner v. Tracy, 247 Wis.2d 245, 19 N.W.2d 257 (1945), the Supreme Court treated acquiescence as a distinct means of proving possession.

However, in Burkhardt v. Smith, 17 Wis.2d 132, 115 N.W.2d 540 (1962), and Ovig v. Morrison, 142 Wis. 243, 125 N.W. 449 (1910), the Supreme Court held that hostile intent is not an element of adverse possession, and that possession can be established through mistake, without reference to acquiescence.

But the Court of Appeals did not attempt to resolve whether acquiescence remains a distinct doctrine. Assuming that it does, it found the plaintiffs failed to make the necessary showing. The court concluded that, because none of the uses to which they put they put the land provided notice to Easley that another claimed his land, he could not have acquiesced to the use.

Accordingly, the court reversed.

Judge Charles P. Dykman dissented, opining, “I believe that the majority has made it impossible to adversely possess hunting land, which is characterized by an absence of fences and structures.”

Case analysis

If this opinion and the Court of Appeals’ opinion two days earlier in Northrop are both published, the Supreme Court will need to grant review in an adverse possession case soon to decide what exactly is the correct law to follow in such cases.

The most recent opinion from that court on the issue is Buza v. Wojtalewicz, 48 Wis.2d 557, 180 N.W.2d 556 (1970), which treats acquiescence as a doctrine distinct from adverse possession.

However, the opinion in Buza does not even cite, much less address the holdings in, Burkhardt, Ovig, or Northwoods Development Corp. v. Klement, 24 Wis.2d 387, 129 N.W.2d 121 (1964), all of which hold that hostile intent is no longer an element of adverse possession.

Similarly, the opinion in the case at bar never cites Buza; while the opinion in Northrop never cites Ovig, Burkhardt, or Northwoods Development.

Until the Supreme Court resolves the issue, attorneys have little choice but to brief adverse possession cases under two separate bodies of law, both of which purport to govern the same issues, while ignoring the other’s existence.

David Ziemer can be reached at [email protected].