COURT OF APPEALS DECISION DATED AND FILED February 3, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM.[1] Patricia Boyle appeals a judgment granting Peter Myles Howe, Jennifer Megan Howe Bennett, Melanie Joellen Howe Zimmer, Tori Jo Williams Wible, Tracy Jay Williams Beck and Tiffany Johns Williams, Jr. (collectively the Howes) title to a portion of her property by adverse possession. Boyle contends the circuit court’s findings did not support a judgment for adverse possession. She also contends there is insufficient evidence to make the necessary findings. We agree and reverse the judgment.
BACKGROUND
¶2 Boyle and the Howes own adjoining forty-acre parcels of
property, with Boyle’s lying north of the Howes’.[2] Boyle’s property is bisected by an east-west
road,
¶3 Boyle, along with her late husband, obtained her parcel from
John and Wilma Boyle in 1969. The Howes obtained
their parcel from their grandparents, Peter and Vera Duehr, in 1991. In 1996, the Howes enrolled their property in
the Department of Natural Resources’ managed forest program. Significant portions of both parcels are
covered with tall pine trees. Recent
photographs from
¶4 To establish adverse possession, the Howes relied heavily on
the presence of the trees south of
¶5 Aside from the presence of the trees, the Howes presented
limited evidence on their actual use of the disputed property. They relied on two timber harvestings—one in late
1994 into 1995 and another in 1998—which resulted in some trees being taken
from the disputed property. They also
relied on testimony from a forester involved in the harvestings stating that he
assumed, based on available maps, that
¶6 Additionally, sometime after obtaining the property in 1991,
the Howes posted no-trespassing signs, some of them near Kadlec Road. These
signs were an attempt to exclude members of the public who were camping on the
Howes’ property. However, the signs
promptly disappeared. Finally, Peter
Duehr’s son-in-law, Dr. Tiff Williams, testified he went grouse hunting with
Peter Duehr on
¶7 The circuit court concluded the Howes had proved adverse
possession. However, the court relied on
the presence of
[T]he one thing that hasn’t been
brought up is that there is a road. … And everyone that drove down that road
thought the Duehr property was on the south side of [the road] and that the
Boyle property was on the north side of [the road]. Whether there was any kind of farming,
whether there was any kind of construction of trees, or planting of trees, or
harvesting, or things that the Duehrs did to claim adverse possession of the
property, it was on the south side of the road….
The court entered a judgment declaring the Howes titleholders to the disputed land.
DISCUSSION
¶8 Boyle claims the court’s findings do not support the judgment
for adverse possession and that the evidence was insufficient to support the
Howes’ claim. When reviewing an adverse
possession judgment, the issue on appeal is whether, resolving all conflicts in
evidence in favor of the verdict, the trial court’s findings are contrary to
the clear preponderance of the evidence.
Pierz v. Gorski, 88
¶9 Under Wis. Stat. § 893.25(2), real estate is adversely possessed:
(a) Only if the person possessing it, in connection with his or her predecessors in interest, is in actual continued occupation under claim of title, exclusive of any other right; and
(b) Only to the extent that it is actually occupied and:
1. Protected by a substantial enclosure; or
2. Usually cultivated or improved.
Here, the parties agree that there was no substantial enclosure. Therefore, the disputed property could only be adversely possessed to the extent it was usually cultivated or improved. See Wis. Stat. § 893.25(2).
¶10 “To constitute adverse possession, the use of the land must be
open, notorious, visible, exclusive, hostile and continuous, such as would
apprise a reasonably diligent landowner and the public that the possessor
claims the land as his [or her] own.” Pierz,
88
¶11 Here, the court did not specifically find that the Howes or their predecessors in interest made any open, notorious, visible, hostile, and continuous use of the disputed property. Further, our review of the record reveals insufficient evidence to make the necessary findings.
¶12 While the Howes refer to the trees on the disputed property as
part of their tree farm, there is no residence or other buildings on the Howes’
property or the disputed property, and there was no testimony about farming
equipment or regular farming activities on either property. The Howes’ actual activities on the property,
including the two timber harvestings, past grouse hunting, and the temporary
posting of trespassing signs, were insufficient to satisfy the elements of
adverse possession. These activities,
either alone or in combination, would not apprise a reasonably diligent owner
that the Howes claimed title to Boyle’s property. See
id. They do not amount to continuous, visible
occupation. See Wis. Stat. § 893.25(2). At best, these activities amounted to
sporadic trespasses. See Pierz, 88
¶13 Thus, the Howes’ case hinged on the circa 1950 planting and the
continued presence of the trees on the disputed property to prove usual
cultivation or improvement and to show continuous, open, notorious, visible, and
hostile use of the property. The
critical failure of the Howes’ evidence was their lack of any proof that the
planting of the trees was hostile to the true owner. Unless the trees were planted adversely to
the true owner, their continued presence could not alone establish the elements
of adverse possession. See Lindokken v. Paulson, 224
¶14 Boyle testified that, based on the relationship between the Boyle and Duehr families, she believed the families cooperatively planted the trees on both families’ properties. While Boyle’s testimony does not prove the trees were planted cooperatively, she did not have the burden of proof. Moreover, her testimony highlights the failure of the Howes’ proof.
¶15 Without knowing the circumstances surrounding the planting, one cannot determine whether the trees on the disputed property are, in essence, the Howes’ trees or Boyle’s trees. If they were planted as part of a cooperative effort, or pursuant to some other agreement between the property owners, the trees might simply be Boyle’s trees on Boyle’s property, with nothing hostile about them. On the other hand, if the Howes’ predecessors in interest planted the trees without permission from, or any other agreement with, the true owners, then the trees might constitute usual cultivation hostile to the true owner.
¶16 Here, the evidence was insufficient to make a determination one
way or the other. The evidence that the
trees south of
By the Court.—Judgment reversed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This is an expedited appeal under Wis. Stat. Rule 809.17. All statutory references are to the 2007-08 version unless otherwise noted.
[2] Boyle’s property is slightly smaller than forty acres because some small lots have been carved out of it.
[3] The
Howes did not, however, dispute the accuracy of a 2006 survey showing the
boundary south of