Property — adverse possession

Listen to this article

Wisconsin Court of Appeals

Civil

Property — adverse possession

Subjective intent is not relevant to adverse possession.

“[B]lanket pronouncements on the topic of adverse possession are risky undertakings. For example, in Allie, our supreme court stated that ‘[t]he sole test of adverse possession is the physical character of the possession,’ Allie, 88 Wis. 2d at 343, but as our true-owner-permission discussion makes clear, this sweeps too broadly. Permission from a true owner is not a ‘physical character of the possession,’ but it does inform, and therefore affect, how a true owner would view the ‘character of the possession.’ Accordingly, we do not hold that, when it comes to adverse possession claims, the subjective intent of a possessor is never relevant. Rather, we rely on the general rule that the subjective intent of the parties is irrelevant, and we discern no reason not to apply that rule here.”

“Having rejected the titleholders’ assertion that the Wilcoxes needed to prove that the Somas actually intended to occupy the lakefront strip exclusive of the rights of others, we discern no remaining issue in need of resolution. The titleholders acknowledge that ‘[t]here was no serious dispute at trial that the Somas used the [lakefront] strip. They filled it, they seeded it, they mowed it, they lounged on it and they kept others off of it. [And the] Wilcoxes continued these practices.’ That is, we understand the titleholders to concede that, but for the factors we have already discussed, the requirements of adverse possession were satisfied.”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP1869 Wilcox v. Estate of Ralph Hines

Dist. IV, Sauk County, Evenson, J., Lundsten, J.

Attorneys: For Appellant: Corcoran, Edward A., Madison; For Respondent: For Respondent: Bartzen, James E., Madison; Schmidt, Richard L., Madison