COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 30, 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(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. 95-1649-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
ARTHUR L. STEVENS,
PETER S. BENGSTON
and TERRY M. BENGSTON,
Plaintiffs,
v.
FRED GENRICH,
ELLEN GENRICH,
WILLIAM F. GENRICH
and ELLEN GENRICH,
Defendants.
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CORT A. ESENTHER
and DEBBIE A.
ESENTHER,
Plaintiffs-Appellants,
v.
MILO JONES
and ANNA JONES,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Washburn County:
NORMAN L. YACKEL, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Cort and Debbie Esenther appeal a judgment awarding
disputed property to Milo and Anna Jones.[1] They argue that the Joneses failed to
establish all of the elements of adverse possession for twenty years. We reject that argument and affirm the
judgment.
The Esenthers own Lots
16 and 17, block two of Rockford Park.
The Joneses own Lots 14 and 15. They bought Lot 14 in 1975 from Joe Raiolo, mistakenly believing
the cabin was on Lot 14. It was
actually on Lot 15. They also believed
the outhouse and retaining wall associated with the cabin were on Lot 14. In 1976, the Joneses bought Lot 15 from Margaret
Burdick, believing they were buying the lot to the west of the outhouse. In 1987, the Joneses made improvements to
their cabin. A subsequent survey shows
that the cabin is located on Lot 15 and some of the improvements that are
located in the area where the outhouse and retaining wall had been are located
on Lot 16. The trial court awarded the
Joneses a portion of Lot 16 where these improvements are located.
The trial court's
findings of fact must be affirmed unless they are clearly erroneous. See § 805.17(2), Stats.
The trial court is the ultimate arbiter of the credibility of
witnesses. When more than one
reasonable inference can be drawn from the credible evidence, this court must
accept the inference drawn by the trier of fact. Cogswell v. Robertshaw Controls Co., 87 Wis.2d 243,
249-50, 274 N.W.2d 647, 650 (1979). The
legal significance of the facts found by the trial court is a question of law
that this court reviews de novo.
See Klinefelter v. Dutch, 161 Wis.2d 28, 33, 467
N.W.2d 192, 194 (Ct. App. 1991).
The Joneses presented
sufficient evidence to support their adverse possession claim. The area in question is immediately adjacent
to their cabin which replaced another cabin that sat on the same spot since the
1950's. The concrete retaining wall in
front of the old cabin existed throughout this time. The wall had steps in it leading to the cabin porch. A path led from the front of the old cabin
to the outhouse. There have been no
dwellings on the adjacent lots. The
only cabin structure to which the outhouse could be associated was the old
cabin.
Even though the cabin
was only used seasonally, seasonal use is sufficient "continuous" use
to constitute adverse possession. See
Burkhardt v. Smith, 17 Wis.2d 132, 139, 115 N.W.2d 540, 544
(1962). The outhouse and retaining wall
were sufficient to apprise the true owners that someone was treating the
property as his own. See Bettack
v. Conachen, 235 Wis. 559, 566, 294 N.W. 57, 60 (1940). The fact that others may have used the outhouse
does not defeat the Joneses' claim of "exclusive" use of the
property. Anyone using the outhouse
would have believed it belonged to the Joneses or their predecessors in title. The wall and outhouse constitute sufficient
improvements changing the character of the "wild lands" such that the
owner is held to notice of the improvement.
See Pierz v. Gorski, 88 Wis.2d 131, 137, 276 N.W.2d
352, 355 (Ct. App. 1979). No additional
enclosure or physical barrier was required to set off the property that appeared
to belong to the lot with the cabin. See
Illinois Steel Co. v. Bilot, 109 Wis. 418, 446, 85 N.W. 402, 408
(1901).
The Esenthers argue that
the Joneses failed to prove adverse possession for twenty years because
Margaret Burdick was the common owner of Lots 15 and 16 until 1976. Her use of Lot 16 in association with the
cabin on Lot 15 cannot be adverse because she cannot be adverse to
herself. The Joneses' adverse possession
is not predicated on Margaret Burdick's adverse possession. Rather, it is based on Joe Raiolo's adverse
possession of the cabin and its accoutrements.
The Joneses presented sufficient evidence that they and Raiolo
continuously occupied the cabin, along with its adjacent outhouse and retaining
wall, for twenty years. The Joneses are
allowed to tack on Raiolo's adverse possession because his use of the property
was the same as theirs. Draeger
v. Gutzdorf, 159 Wis.2d 596, 598-99, 465 N.W.2d 204, 205 (Ct. App.
1990). A fair reading of the
transcripts shows that Raiolo occupied the cabin from the time he bought Lot 14
in 1967 until he sold it to the Joneses.
Because the outhouse and retaining wall are inextricably connected to
the cabin, Raiolo and the Joneses adversely possessed parts of Lot 16 since
1967.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.