COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 5, 1996 |
NOTICE |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0034
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
ROBERT P. STUPAR and
TERRY L. STUPAR,
Plaintiff-Appellant,
v.
TOWNSHIP OF PRESQUE
ISLE, WISCONSIN,
JAMES TAIT d/b/a
CENTURY 21 JIM TAIT
REAL ESTATE, ERNIE
ROSSOW,
ROSE ZERWICK, JOHN S.
WIMM,
NANCY R. WIMM,
DUANE A. KITTLESON,
LINDA M. KITTLESON,
LEROY S. FASSBENDER,
BARBARA K. FASSBENDER,
DALE I. KING, DORIS J. KING,
ROBERT W. DILLON, III,
PATRICIA L. DILLON,
ROBERT K. ADDICKS
JOHNSON,
LOIS ADDICKS JOHNSON,
ROBERT M. VON ZIRNGIBL
and
SALLY E. VON ZIRNGIBL,
Defendants,
PATRICK CHEREK and
CHERYL L. CHEREK,
Defendant-Third Party Plaintiff-Respondent,
v.
JOSEPH KOLAR,
SCHMIDT-HAUS REALTY,
INC.,
JUDITH SCHMIDT-ARNOLD,
SANDRA RILEY,
Third Party Defendants,
MULLEADY, INC.
REALTORS,
and MARIE PETRIE,
Defendants-Third Party Plaintiffs-Respondents,
NORMA JEAN COLE,
ROSEMARY PATTERSON and
JOHN W. HIESTAND,
Third Party Defendants.
APPEAL from a judgment
of the circuit court for Vilas County:
JAMES B. MOHR, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Robert and Terry Stupar appeal a judgment denying
their adverse possession claim against Patrick and Cheryl Cherek. The trial court ruled that they presented
insufficient evidence of continuous and uninterrupted use of the Chereks'
property and the alleged improvements did not significantly alter the character
of the wild lands to provide adequate notice of adverse possession. Because the trial court used the correct
standard of proof and the evidence supports its findings, we affirm the
judgment.
The trial court stated
that the Stupars failed to provide "clear and positive evidence" of
several of the required elements of adverse possession. The Stupars contend that the trial court
erroneously applied the middle burden of proof. The record does not support that contention. The trial court correctly noted that an
adverse possessor must present clear and positive evidence of the adverse
possession. See Zeisler
Corp. v. Page, 24 Wis.2d 190, 198, 128 N.W.2d 414, 418 (1964). Nothing in the record suggests that the
trial court confused the overall burden of proof with the quality of the
evidence it was to consider. See
Kruse v. Horlamus Indus., Inc., 130 Wis.2d 357, 361-62, 387
N.W.2d 64, 66 (1986).
Adverse possession
requires physical possession that is hostile, open and notorious, exclusive and
continuous for twenty years. Leciejewski
v. Sedlak, 116 Wis.2d 629, 636, 342 N.W.2d 734, 737 (1984). The Stupars contend that the required
elements were met by their predecessor in title, Horace Heistand, from 1951 to
1971. Heistand died in 1968 and the
testimony of his children provided the only evidence of his use of the disputed
property.
Most of the alleged
improvements, a flower bed, two steps and some paths, did not significantly
alter the character of the wild land such that a reasonable owner would have
known that someone was making claim to the disputed property. See Pierz v. Gorski, 88
Wis.2d 131, 137, 276 N.W.2d 352, 355 (Ct. App. 1979). Heistand's children periodically observed that grass had been
mowed or "whipped" in the disputed area and one witness saw him
mowing this portion of the grass. The
children visited only six or seven weeks out of the seventeen years Heistand
lived on the property. Evidence
regarding the condition of the lawn, the paths and the flower beds in the 1990s
does not provide evidence of their condition from 1951 to 1971. As the trier of fact, the inferences to be
drawn from the evidence are matters for the trial court to decide. See Cogswell v. Robertshaw
Controls Co., 87 Wis.2d 243, 250, 274 N.W.2d 647, 650 (1979).
The only improvement
capable of planting the "flag of hostility," see Burkhardt
v. Smith, 17 Wis.2d 132, 137, 115 N.W.2d 540, 543 (1962), was a privy
constructed on the disputed property.
Regular use of the privy stopped before the twenty-year period
expired. The trial court's finding that
this sporadic use of the privy does not establish continuous occupation is not
clearly erroneous. See
§ 805.17(2), Stats. Merely keeping a privy on the Chereks'
property without routinely using it did not give sufficient notice of the
adverse possessors' claim to the land.
Other privies were constructed by loggers on the Chereks' property,
presumptively with permission. The true
owner's discovery of an additional privy on his property would not inform him
of any nonpermissive use.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.