COURT OF APPEALS DECISION DATED AND FILED October 20, 2009 David
R. Schanker Clerk of Court of Appeals |
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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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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Bruce G.
Phelps, Plaintiff-Appellant, v. Harvey
Phelps, Jr. and Karen Phelps, Defendants-Respondents. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Bruce Phelps appeals a judgment dismissing his adverse possession claim against Harvey and Karen Phelps. Bruce argues the circuit court erred when it concluded he did not prove he adversely occupied the disputed land. We agree. We therefore reverse and remand with directions for the circuit court to grant judgment in Bruce’s favor.
BACKGROUND
¶2 Bruce and Harvey Phelps are brothers. Each of them owns two forty-acre parcels of
farmland in the Town of
¶3 Since at least the early 1960s, there has been a fence
between the parcels now owned by Bruce and those owned by
¶4 In 2006,
¶5 Bruce sued to quiet title to the land between the surveyed boundary and the historical fence line. He argued the fence he and Harvey had constructed in 2000 was in essentially the same place as the original fence, and that he and his predecessor in interest—his mother—had adversely possessed the land up to these fences for the statutory period of time.
¶6 The circuit court denied Bruce’s claim. It concluded the original fence could not delineate the boundaries of an adverse possession claim because it was not a “substantial enclosure.” The court also concluded that even if the fence was a substantial enclosure, it could not determine where it had been because the fence built in 2000 “was not necessarily constructed along the same line as the earlier fence.”
DISCUSSION
¶7 A circuit court’s adverse possession determination presents a
mixed question of fact and law. Perpignani
v. Vonasek, 139
¶8
¶9 The parties do not dispute that Bruce actually occupied the contested land. Instead, their disagreement on appeal focuses on whether the pre-2000 fence constituted a substantial enclosure and, if so, whether its location could be determined. Bruce argues the circuit court’s conclusion the fence was not a substantial enclosure was based on an incorrect standard of law. He also argues the court’s conclusion it could not determine the location of the original fence is contrary to the evidence presented at trial. We agree with Bruce on both issues.
1. Substantial Enclosure
¶10 The circuit court concluded the original fence was not a
substantial enclosure because it “was in bad repair and incapable of holding
cattle.” An enclosure, however, need not
be in any particular state of repair or capable of “exclu[ding] outside
interferences” to be substantial. Illinois
Steel Co. v. Bilot, 109
¶11 Here, the testimony showed the original fence indicated the
borders of the claimed territory.
Several members of the Phelps family testified the fence had long been
regarded as the boundary between the north and south parcels, and that they treated
it as such when Bruce and
¶12 We conclude this evidence established the original fence was
sufficient to apprise
2. Location of the Fence
¶13 We also agree with Bruce that the circuit court erred when it
concluded it could not determine the location of the original fence. The circuit court held “there was virtually
no evidence as to location of the fence which existed prior to 2000” because the
pre-2000 fence had been removed and the fence constructed in 2000 did not
necessarily follow the same line as the old fence. However, Bruce was not required to prove the fences
were in exactly the same location. The
testimony at trial established the fence constructed in 2000 was in essentially
the same place as the old fence. The
location of the original fence can therefore be reasonably determined from
¶14 When establishing the lines of occupancy for an adverse
possession claim, “absolute precision or utilization of a surveyor is not
required.” Droege v. Daymaker Cranberries,
Inc., 88
¶15 The evidence at trial established that the fence Bruce and
Harvey constructed in 2000 essentially followed the pre-2000 fence line.[2] When asked how long there had been a fence
along the line on Harvey’s survey map that charted the 2000 fence, Bruce
replied there had been a fence there “as long as [he could] remember.” He explained that in 2000, “
¶16
¶17 The record, then, establishes that the 2000 fence was
essentially, even though not necessarily precisely, constructed along the original
fence line. The location of the 2000 fence is easily discernible because
CONCLUSION
¶18 It is undisputed that Bruce and his predecessor in interest actually
occupied the land between the surveyed line and historical fence line continuously
from at least 1981 until 2006, a period of time exceeding the twenty years
necessary to establish adverse possession.
It is also clear from the record that during this time, Bruce,
By the Court.—Judgment reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Under Wis. Stat. § 90.03,
partition fences are required when adjoining lands are used for farming or
grazing. The owners of the adjoining
land must maintain the fences in equal shares and keep them in good repair
unless they mutually agree to do otherwise.
In this case,
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The court’s finding that the 2000 fence was not constructed on the same line as the earlier fence is puzzling in light of an exchange it had with both parties’ attorneys clarifying this issue during the trial.
THE COURT: … The line—the east-west line that’s shown with the hatch marks and marked “existing fence,” is that the fence that was constructed in 2000 or is that the fence that was there before 2000?
[BRUCE’S ATTORNEY]: It’s the same fence, Your Honor.
….
THE COURT: Okay, but my question is, was there a different fence on a different line prior to 2000?
[
THE COURT: Okay. Thank you for clearing that up.