Property — dead man’s statute

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Wisconsin Court of Appeals

Civil

Property — dead man’s statute

In an easement dispute, a party cannot testify that she gave another’s party’s predecessor in interest, no deceased, permission to use the property.

“On the one hand, the Wisconsin Supreme Court has in effect directed that courts ‘alleviate the harshness of the rule by insisting upon exceptionally strict rules for its invocation.’ Long, 46 Wis. 2d at 459; Havlicek/Fleisher Enterprises, Inc. v. Bridgeman, 788 F. Supp. 389, 400 (E.D. Wis. 1992) (applying Wisconsin law and stating, ‘Since current law expresses disdain for the Dean Man’s Statute, this Court is obliged to construe it narrowly and limit its application whenever possible.’). On the other hand, the Wisconsin Supreme Court has laid down a fairly broad rule for applying the statute to statements made to deceased persons. Applying that rule here, we conclude that Beulah Tower’s statement granting permission to the since-deceased Laverne Hutson was a communication within the meaning of WIS. STAT. § 885.16, and therefore she is not competent to testify as to her communication giving him permission to cross her land. Accordingly, the circuit court correctly excluded the proffered testimony.”

Affirmed.

Recommended for publication in the official reports.

2012AP25 Rutter v. Copper

Dist. IV, Crawford County, Czajkowski, J., Kloppenburg, J.

Attorneys: For Appellant: Seymour, Ross A, La Crosse; For Respondent: Jenkins, David L., Viroqua