Mistaken identity aids adverse possession claim

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A 25-foot-wide strip of land straddling pristine Lake Delton has pitted the estates of two men who died more than 35 years ago against a couple who want to own the property in front of their home.

A Sauk County trial court concluded in 2012 that because the now deceased prior owners always denied owning the 25-foot-wide strip, their ownership was not “under claim of title” so Richard and Susan Wilcox could not claim a 20-year adverse possession.

A three-judge appellate panel reversed, finding that the couple had proven their case for adverse possession by showing that the property for at least 20 years had been possessed in a manner that was “open, notorious, continuous, uninterrupted and hostile” to the ownership interest of the true owners.

Now the case of Wilcox v. Estate of Ralph M. Hines and Estate of William J. Newman et al., 2012 AP 1869, is in the hands of Wisconsin justices, who heard oral arguments Dec. 19.

Case history

“The strip was not ours when we purchased the property,” the Somas said in open court, “and it’s not ours now.” But they had used the strip for routine access to the lake since buying the property in 1963, putting up “No Trespassing” signs, and building up grass, ornamental rocks and other landscape features to enhance the look of the land.

The Wilcoxes continued to routinely and regularly use the lakefront strip after their 2002 purchase. They installed a new patio, kept the fence on one side of the strip to discourage trespassers and had a sign warning people that the property was private.

In 2011, the Wilcoxes filed a lawsuit for declaratory judgment, claiming that they owned the 25-foot-wide strip by adverse possession. When the Somas’ nearly 40 years of prior ownership was “tacked” onto the Wilcoxes’ eight years on the property, the resulting almost 50-year span more than satisfied Wisconsin’s 20-year statutory period to establish adverse possession.

The trial court heard testimony that, contrary to the belief of the Somas, the actual title owners to the 25-foot-wide strip were the Estate of Ralph Hines and the Estate of William Newman.

The Wisconsin Duck company had no legal interest or title to the property at all.

Further title evidence showed that William Newman bought substantial land around the lake in 1933, and was one of the original developers of Lake Delton when it was created as an artificial lake.

Newman sold part of the property to Ralph Hines, but retained the 25-foot wide strip in front of the lake. When the Somas purchased the property in 1963, their title noted that they could use the 25-foot strip, but it was not part of their actual purchased property.

Title to the larger Lake Delton property in 2002 and 2011 still referred to the 25-foot wide strip as being separate but divided into two sub-parcels. However, nobody knew that the 25-foot wide strip was owned by the estates of Ralph Hines and Edward Newman until the Wilcoxes brought their adverse possession claim.

Trial court testimony showed that when the Somas wanted to add a pier in 1982, they mistakenly assumed the property was owned by Wisconsin Duck tours, and asked a manager at the company for permission. They later asked that same manager if they could add dirt, grass and other features to improve the strip’s appearance.

Counsel for the estates of Hines and Newman presented direct testimony from the Somas that they never believed the 25-foot strip was part of their purchase.

Mary Soma even testified that the Somas appealed to their local tax authorities to reduce their property taxes years ago, telling the assessor that they did not actually own more highly taxed “lakefront property” because the actual lakefront parcel was not theirs. That appeal did not work.

Counsel for the Wilcoxes argued that Wisconsin caselaw and statutory law directed the trial court to find the opinion of the Somas about their ownership of the 25-foot strip irrelevant.

Sauk County Circuit Judge James Evenson found that the plain language of Wis. Stat. 893-25(2)(a) compelled the court to consider the opinion of the Somas in deciding if the 20-year period had been met. Because their ownership was never under “claim of title,” Evenson said, the Wilcoxes adverse possession claim should fail.

The appeal

On appeal, the Wilcoxes’ attorney underscored that Wisconsin circuit and appellate courts for years had found that owners do not have to believe they own a property to have an interest that is “hostile.” The main purpose of adverse possession law, according to Neider & Boucher’s Corcoran, “is to give the true owner notice that the property is being used in a manner inconsistent with his ownership interest.”

The Wilcoxes pointed to a line of Wisconsin cases finding that subjective intent of the possessor is not relevant unless the possessor is communicating his lack of ownership directly to the true owner, including Allie v. Russo, 88 Wis. 2d 334 (1979), Ovig v. Morrison, 142 Wis. 243 (1910), and Northwoods Development Corp. v. Klement, 24 Wis. 2d 387 (1964).

In reversing the trial court’s decision, the appellate court recognized that the wording in several earlier appellate opinions could cause confusion.

“Conflict arises because cases often seem to declare, in one breath, that a possessor must actually intend to claim an exclusive right to possess property,” the appeals court wrote, “… and then, in the next breath, assert that the subjective intent of the possessor is irrelevant.”

Yet these sometimes confusing earlier appellate opinions, when carefully examined and reconciled, still lead to one central theme: “hostile refers to possessor’s actions, and not the possessor’s beliefs.”

Counsel for the Hines and Newman estates disagreed, pointing to Wisconsin caselaw that appeard to acknowledge that subjective intent can play a role in adverse possession cases.

In Burkhardt v. Smith, 17 Wis. 2d 132 (1962), the possessor had not paid taxes on the property during his period of alleged adverse possession. Although the Wisconsin Supreme Court upheld the adverse possession claim against the record title holders, counsel noted that the court had said the failure to pay taxes is an “element to be taken into consideration in judging the character of possession, but it is not exclusive.”

Overall, the fact that the Somas ultimately gave notice and received permission from the wrong party also became very significant.

When permission is granted by the true owner, the appellate court wrote, “later use by the possessor would not give the appearance to the owner that the use is hostile to the owners’ rights.”

Even if the prior owners never claimed the strip was their own, and asked permission before they built a pier and added grass and dirt to the strip, the appellate court found that their “subjective” opinion about whether they owned the property was irrelevant.

What mattered, the court ruled, was how the property was maintained over the course of that 20-year period.

“The question is whether the use of the property by the possessor gives the appearance that the possessor claims exclusive right to the land,” the court said.

A decision from the Wisconsin Supreme Court is expected later this term.