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COURT OF APPEALS DECISION DATED AND RELEASED May 2, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3496-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
MARVIN ZUELKE and
BETTY ZUELKE,
Plaintiffs-Respondents,
v.
RUSSELL WOITULA and
BILLIE JO WOITULA,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Marquette County:
DONN H. DAHLKE, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Russell Woitula and Billie Jo Woitula appeal from a
judgment in favor of Marvin Zuelke and Betty Zuelke. We affirm.[1]
The trial court decided
the case on the basis of the Zuelkes' summary judgment motion. Summary judgment methodology is well
established and need not be repeated here.
See Grams v. Boss, 97 Wis.2d 332, 338-39, 294
N.W.2d 473, 476-77 (1980). The Zuelkes
alleged that they are owners of a property identified on the relevant survey
map as Lot 2, and that the Woitulas are owners of the adjoining Lot 1. They alleged that the Woitulas were
maintaining and using a shed and gas tank on the Zuelkes' property. The Zuelkes sought a judgment ordering
removal of the improvements and damages for trespass. The complaint states a claim for trespass.
The Woitulas denied the
material allegations of the complaint.
They also counterclaimed that they owned a portion of Lot 2 by adverse
possession. They further claimed that a
row of pine trees north of the lot line had been established as the boundary by
"acquiescence."
The Zuelkes moved for
summary judgment. Their affidavit
stated the history of the two properties, supported by most of the relevant
deeds. Before 1959, Marvin Zuelke owned
both lots. In 1959, Zuelke sold Lot 1
to Lyndon and Felicia McFaul. In 1963,
the McFauls conveyed Lot 1 to their son Robert McFaul, while reserving a life
estate to themselves. In 1966, Lyndon
and Felicia McFaul purchased Lot 2 from the Zuelkes. In 1990, the McFauls conveyed Lot 2 back to the Zuelkes. Also in 1990, Lyndon McFaul died and his
wife terminated her life estate in Lot 1.
In 1993, Robert McFaul sold Lot 1 to the Woitulas. Therefore, between 1966 and 1990, Lyndon and
Felicia McFaul had control of both properties:
Lot 1 as holders of a life estate and Lot 2 as owners in fee simple.
The Zuelkes' affidavit
states a defense to the Woitulas' claim of adverse possession. Real estate is adversely possessed only if
the person possessing it, in connection with his or predecessors in interest,
is in actual continued occupation for twenty years. Section 893.25, Stats. The Woitulas have not been in possession of
Lot 1 for twenty years, and therefore their claim of adverse possession must be
founded on the actions of their predecessors in interest. The twenty-year period would have to include
part of the period from 1966 to 1990 in which Lyndon and Felicia McFaul were in
control of both lots. We conclude that
nothing that could have happened during that time could be adverse
possession. To find adverse possession
here we would have to conclude, essentially, that Lyndon and Felicia McFaul
adversely possessed against themselves.
However, they had a legal right to be in occupation of both lots. It takes two adverse parties to make
possible a claim of adverse possession.
The Woitulas submitted
an affidavit in opposition to the Zuelkes' motion for summary judgment. The affidavit adds some additional details
about the history of the properties, but contains nothing showing that there is
a material issue of fact. We conclude
the trial court properly granted the motion for summary judgment.
The Woitulas also pleaded, as their second
counterclaim, that a row of pine trees planted on Lot 2 is the boundary because
the parties and their predecessors in title have established this boundary by
"acquiescence." The Woitulas
argue the trial court erred in granting the summary judgment motion because the
court did not address this issue.
However, our review of a summary judgment decision is independent of the
trial court's analysis. See In
re Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83
(Ct. App. 1983). Therefore, we may
determine whether the judgment was properly granted as to this issue, in spite
of the trial court's omission. However,
the Woitulas' discussion of the theory of acquiescence is inadequate, and we
decline to address the issue. See
State v. Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct.
App. 1992).
The Woitulas also ask that
we use our discretionary power of reversal under § 752.35, Stats.
They argue that justice has miscarried because it would be inequitable
to ruin their property in the way they claim this decision will. However, the fact that a proper application
of the law causes an inequitable result does not mean we may say "justice
has miscarried" and disregard the law.
Our authority under the statute is not so broad. The Woitulas also argue the real controversy
was not fully tried. However, the issue
presented to the trial court, which was whether the Woitulas had an ownership
interest in part of Lot 2, was tried to the fullest extent necessary.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.