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COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 13, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0508
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
FRANK X. KINAST and
CATHERINE A. KINAST,
Plaintiffs-Appellants,
v.
DENNIS R. BARRY and
DOROTHY A. BARRY,
Defendants-Respondents,
ANTHONY J. CORTINA and
JUDITH L. CORTINA,
HENRY MISICKA and
ELLA MISICKA,
Defendants.
APPEAL from a judgment
of the circuit court for Sawyer County:
NORMAN L. YACKEL, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Frank and Catherine Kinast appeal a judgment
dismissing their quiet title action against Dennis and Dorothy Barry. The trial court ruled that the Barrys and
their predecessors in title adversely possessed the disputed property for more
than twenty years.[1] The Kinasts argue that the record does not
establish adverse possession in the first year the Barrys occupied the property
or adverse possession by their predecessors in title, the Winnies. They also argue that the Barrys failed to
prove the area actually occupied. We
reject these arguments and affirm the judgment.
We must affirm the trial
court's findings of fact unless they are clearly erroneous. Section 805.17(2), Stats. The
credibility of the witnesses and the weight to be accorded their testimony are
for the trial court to decide. Leciejewski
v. Sedlak, 116 Wis.2d 629, 637, 342 N.W.2d 734, 738 (1984).
The trial court's
findings are supported by adequate evidence.
Until the early 1970s, all of the property in question and some other
contiguous property was known as the "Wilderness Resort." The cabins that made up the resort were
separately sold. The compound was
serviced by a private roadway. Several
witnesses testified that the areas of occupation were immediately visible. A witness testified that the property looked
the same in 1974 as it did on the day of trial. She testified that there had always been improvements to the
property and that "areas had been kind of sculpted out for
camping." The trial court
personally viewed the property, noted the sculpted campsites, electrical
hookups that had once been there and the differences in vegetation, and found
that the property had been adversely possessed for more than twenty-one years
before the lawsuit was filed. The fact
that the Barrys had not yet built their cabin in the first year of their possession
is irrelevant as is their failure to present evidence from the Winnies. Possession of an area with sculpted
campsites and electrical hookups as well as other improvements is sufficient to
establish adverse possession.
The area subject to the
adverse possession claim was clearly identified at trial. Although no metes and bounds description of
the property was presented at trial, the trial court and various witnesses had
no difficulty identifying the area of occupancy. The Barrys, therefore, met their burden of establishing a
boundary upon which the legal description could be based. See Droege v. Daymaker
Cranberries, Inc., 88 Wis.2d 140, 146, 276 N.W.2d 356, 359 (1979).
Finally, the Barrys
request actual costs and attorney fees on the ground that this appeal is
frivolous. While it is a close
question, we conclude that the appeal is not frivolous. There is no evidence the appeal was brought
in bad faith or for purposes of harassment.
The Kinasts' arguments fail because this court is required to defer to
the trial court's findings of fact and its assessment of the witnesses'
credibility. Because a different view
of the evidence would have supported the Kinasts' argument, we decline to
conclude that they knew or should have known that their appeal lacked merit.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.