893.17(1)(1) This section does not apply to a cause of action which accrues on or after July 1, 1980. 893.17(2)(2) Except as provided in sub. (2m), if a person entitled to commence any action for the recovery of real property or to make an entry or defense founded on the title to real property or to rents or services out of the real property is, at the time the title shall first descend or accrue, under any of the following disabilities, the time during which the disability continues is not a part of the time limited by this chapter for the commencement of the action or the making of the entry or defense: 893.17(2)(c)(c) The person is imprisoned on a criminal charge or in execution upon conviction of a criminal offense, for a term less than for life. 893.17(2m)(2m) An action under sub. (2) may be commenced or entry or defense made, after the time limited and within 5 years after the disability ceases or the person entitled dies, if the person dies while under the disability, but the action shall not be commenced or entry or defense made after that period. 893.17 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.135 of the statutes renumbered for more logical placement into restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action for recovery of real property or to make an entry or defense founded on the title to real property or to its rents or services which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which accrue on or after July 1, 1980. [Bill 326-A]
893.18893.18 Transition; persons under disability. 893.18(2)(2) Except as provided in sub. (2m), and except in actions for the recovery of a penalty or forfeiture, actions against a sheriff or other officer for an escape, or actions for the recovery or possession of real property, if a person entitled to bring an action mentioned in this chapter was at the time the cause of action accrued under any of the following disabilities, the time of the disability is not a part of the time limited for the commencement of the action: 893.18(2)(a)(a) The person is under the age of 18 years, except for actions against health care providers. 893.18(2)(c)(c) The person is imprisoned on a criminal charge or in execution under sentence of a criminal court for a term less than life. 893.18(2m)(2m) The period within which an action must be brought cannot be extended under sub. (2) more than 5 years by any disability, except infancy, nor can that period be so extended, in any case, longer than one year after the disability ceases. 893.18(3)(3) A disability does not exist, for the purpose of this section, unless it existed when the cause of action accrued. 893.18(4)(4) When 2 or more disabilities coexist at the time the cause of action accrues the period of limitation does not attach until they all are removed. 893.18 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.33 of the statutes renumbered for more logical placement in restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which occur on or after July 1, 1980. [Bill 326-A]
893.18 AnnotationBecause the parents’ claim arising from injury to their minor child was filed along with the child’s claim within the time period for the child’s claim, the parents’ claim was not barred by s. 893.54. Korth v. American Family Insurance Co., 115 Wis. 2d 326, 340 N.W.2d 494 (1983). 893.18 AnnotationAn estate’s survival claim under s. 895.01 is not tolled by sub. (2) if the only beneficiaries of the estate are minors. Lord v. Hubbell, Inc., 210 Wis. 2d 150, 563 N.W.2d 913 (Ct. App. 1997), 96-1031. 893.18 AnnotationA parent’s claim for negligent infliction of emotional distress arising from the same act as the child’s injury benefits from the child’s tolling period. Carlson v. Tschopp-Durch-Camastral Co., 755 F. Supp. 847 (1991). 893.19893.19 Limitation when person out of state. 893.19(1)(1) If a person is out of this state when the cause of action accrues against the person an action may be commenced within the terms of this chapter respectively limited after the person returns or removes to this state. But the foregoing provision shall not apply to any case where, at the time the cause of action accrues, neither the party against nor the party in favor of whom the same accrues is a resident of this state; and if, after a cause of action accrues against any person, he or she departs from and resides out of this state the time of absence is not any part of the time limited for the commencement of an action; provided, that no foreign corporation which files with the department of financial institutions, or any other state official or body, pursuant to the requirements of any applicable statute of this state, an instrument appointing a registered agent as provided in ch. 180, a resident or any state official or body of this state, its attorney or agent, on whom, pursuant to such instrument or any applicable statute, service of process may be made in connection with such cause of action, is deemed a person out of this state within the meaning of this section for the period during which such appointment is effective, excluding from such period the time of absence from this state of any registered agent, resident agent or attorney so appointed who departs from and resides outside of this state. 893.19(2)(2) This section shall not apply to any person who, while out of this state, may be subjected to personal jurisdiction in the courts of this state on any of the grounds specified in s. 801.05. 893.19 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.30 renumbered for more logical placement in restructured ch. 893 and revised for purposes of clarity only. [Bill 326-A]
893.19 AnnotationThe validity of the defense that a North Carolina limitation statute barred the action was determined in light of analysis of North Carolina products liability case law. Central Mutual Insurance Co. v. H.O., Inc., 63 Wis. 2d 54, 216 N.W.2d 239 (1974). 893.20893.20 Application to alien enemy. When a person is an alien subject or citizen of a country at war with the United States the time of the continuance of the war is not a part of the time limited for the commencement of the action. 893.20 HistoryHistory: 1979 c. 323. 893.20 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.31 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.21893.21 Effect of military exemption from civil process. The time during which any resident of this state has been exempt from the service of civil process on account of being in the military service of the United States or of this state, shall not be taken as any part of the time limited by law for the commencement of any civil action in favor of or against such person. 893.21 HistoryHistory: 1979 c. 323. 893.21 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.32 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.22893.22 Limitation in case of death. If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced by the person’s representatives after the expiration of that time and within one year from the person’s death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced after the expiration of that time and within one year after the issuing, within this state, of letters testamentary or other letters authorizing the administration of the decedent’s estate. 893.22 HistoryHistory: 1979 c. 323; 2001 a. 102. 893.22 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.34 renumbered for more logical placement in restructured ch. 893 and revised for the purpose of clarity only. [Bill 326-A]
893.22 AnnotationThis section does not provide a one-year extension of the statute of limitations from when a creditor, or another, petitions for probate of the decedent’s estate under s. 856.07. This section only applies when a person entitled to bring the action dies with an existing claim that has less than one year remaining on the period of limitations. In such cases, the period of limitations is extended for one year, which begins to run upon the person’s death. Kurt Van Engel Commission Co. v. Zingale, 2005 WI App 82, 280 Wis. 2d 777, 696 N.W.2d 280, 04-1900. See also Walberg v. St. Francis Home, Inc., 2005 WI 64, 281 Wis. 2d 99, 697 N.W.2d 36, 03-2164. 893.23893.23 When action stayed. When the commencement of an action is stayed by injunction or statutory prohibition the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action. 893.23 HistoryHistory: 1979 c. 323. 893.23 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.36 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.23 AnnotationThe interplay between this section and s. 893.80 creates a statute of limitations equal to three years and 120 days when filing a claim under s. 893.80. Colby v. Columbia County, 202 Wis. 2d 342, 550 N.W.2d 124 (1996), 93-3348. ACTIONS CONCERNING REAL OR
PERSONAL PROPERTY
Subch. III of ch. 893 NoteJudicial Council Committee’s Note, 1979: This subchapter assembles sections affecting real or personal property in a single location in ch. 893. It revises some present provisions; rearranges others; adds a 7-year limitation statute under certain circumstances and a codification of case-law relating to obtaining prescriptive rights by adverse user; and deletes several present sections considered unnecessary.
Subch. III of ch. 893 NoteNotes following the sections of the subchapter explain the rearrangements, changes, and additions. However, specific discussion of those sections eliminated follows:
Subch. III of ch. 893 Note(1) Previous ss. 893.02 and 893.03 were judged duplicative of the principal operative sections and possibly confusing. Nelson v. Jacobs, 99 Wis. 547, 75 N.W. 406 (1898), appears to rely in part on these sections for the proposition that one who has adversely possessed for 20 years has marketable title which can be forced on a vendee who objects, even though not established of record. This is undesirable and contrary to current understanding; see Baldwin v. Anderson, 40 Wis. 2d 33, 161 N.W.2d 553 (1968). In addition, Zellmer v. Martin, 157 Wis. 341, 147 N.W. 371 (1914) suggests that these sections may mean that 20 years of continuous disseisin of a true owner may bar that owner even if the claiming adverse possessor has not possessed in one of the ways required by previous s. 893.09. This may be confusing, since the language of previous s. 893.09 precluded other forms of possession under the 20-year statute. Other than as here noted, ss. 893.02 and 893.03 have been rarely cited and are not significant. In view of the presumption of possession by the true owner provided by previous s. 893.05, which this subchapter retains, previous ss. 893.02 and 893.03 contributed no needed substance to the subchapter. Subch. III of ch. 893 Note(2) Previous s. 893.075 was enacted as a companion to s. 700.30, which was held unconstitutional in Chicago & N.W. Transportation Co. v. Pedersen, 80 Wis. 2d 566, 259 N.W.2d 316 (1977). No new s. 700.30 has been enacted. Therefore, s. 893.075 is surplusage and repealed. Subch. III of ch. 893 Note(3) The ancient doctrine of “descent cast” is no longer of practical importance, especially since the passage of the new probate code in 1971. Therefore, the need for a response to that doctrine in previous s. 893.13 has disappeared, and the section has been repealed.
Subch. III of ch. 893 Note(4) Previous s. 893.18 (7) limited the time within which title to real estate could be attacked based on a defect in the jurisdiction of a court of record which entered a judgment affecting the title. That section is repealed as its application is preempted by s. 706.09 (1) (g). [Bill 326-A]
893.24893.24 Adverse possession; section lines. 893.24(1)(1) A written instrument or judgment that declares the boundaries of real estate adversely possessed under s. 893.29, 1995 stats., or s. 893.25, 893.26 or 893.27 does not affect any section line or any section subdivision line established by the United States public land survey or any section or section subdivision line based upon it. 893.24(2)(2) Occupation lines that the court declares to be property lines by adverse possession under s. 893.29, 1995 stats., or s. 893.25, 893.26 or 893.27 shall, by order of the court, be described by a retraceable description providing definite and unequivocal identification of the lines or boundaries. The description shall contain data of dimensions sufficient to enable the description to be mapped and retraced and shall describe the land by government lot, recorded private claim, quarter-quarter section, section, township, range and county, and by metes and bounds commencing with a corner marked and established by the United States public land survey or a corner of the private claim. 893.24 HistoryHistory: 1985 a. 247; 1997 a. 108. 893.24 AnnotationIn the absence of an express provision to the contrary, one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and re-creation. DNR v. Building & All Related or Attached Structures, 2011 WI App 119, 336 Wis. 2d 642, 803 N.W.2d 86, 10-2076. 893.24 AnnotationHey! That’s my land! Understanding Adverse Possession. Shrestha. Wis. Law. Mar. 2010.
893.25893.25 Adverse possession, not founded on written instrument. 893.25(1)(1) An action for the recovery or the possession of real estate and a defense or counterclaim based on title to real estate are barred by uninterrupted adverse possession of 20 years, except as provided by s. 893.14 and 893.29. A person who, in connection with his or her predecessors in interest, is in uninterrupted adverse possession of real estate for 20 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841. 893.25(2)(2) Real estate is possessed adversely under this section: 893.25(2)(a)(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 893.25(2)(b)(b) Only to the extent that it is actually occupied and: 893.25 HistoryHistory: 1979 c. 323. 893.25 NoteJudicial Council Committee’s Note, 1979: This provision collects in one section all material relating to 20-year adverse possession, without change in substance. Previous ss. 893.08 and 893.09, together with part of previous s. 893.10, are integrated here. The words “and a defense or counterclaim based on title to real estate” are added in subsection (1) to assure that deletion of present section 893.03 results in no loss of substance. This section covers the substance of previous s. 893.02, also deleted. Reference to ch. 843 describes the action which an adverse possessor may bring to establish title. The words “in connection with his or her predecessors in interest” are intended to express, but not change, the well-established common law doctrine of “tacking” together periods of possession by adverse possessors in privity with each other. The word “interest” has been substituted for “title” used in previous s. 893.10 (2) because it more accurately expresses the nature of an adverse possessor’s rights until the 20-year period has run, and better reflects the substance of the privity required for tacking between successive adverse possessors. There is no requirement of good faith entry under this section. Entry, for example, under a deed known by the adverse possessor to be fraudulent would start this 20-year period running, but not the 10-year period provided by s. 893.26. [Bill 326-A]
893.25 AnnotationWhere a survey established that disputed lands were not within the calls of the possessor’s deed, the possessor’s claim to property was not under color of title by a written instrument. Beasley v. Konczal, 87 Wis. 2d 233, 275 N.W.2d 634 (1979). 893.25 AnnotationActs that are consistent with sporadic trespass are insufficient to apprise the owner of an adverse claim. Pierz v. Gorski, 88 Wis. 2d 131, 276 N.W.2d 352 (Ct. App. 1979). 893.25 AnnotationWhen evidence is presented as to the extent of occupancy of only a portion of land, only that portion may be awarded in adverse possession proceedings. Droege v. Daymaker Cranberries, Inc., 88 Wis. 2d 140, 276 N.W.2d 356 (Ct. App. 1979). 893.25 AnnotationA judgment under s. 75.521 to foreclose a tax lien extinguishes all right, title, and interest in the foreclosed property, including claims based on adverse possession. Published notice was sufficient. Leciejewski v. Sedlak, 116 Wis. 2d 629, 342 N.W.2d 734 (1984). 893.25 AnnotationA railroad right-of-way is subject to adverse possession, the same as other lands. Meiers v. Wang, 192 Wis. 2d 115, 531 N.W.2d 54 (1995). 893.25 AnnotationLand may be acquired by adverse possession, without adverse intent, when the true owner acquiesces in another’s possession for 20 years. If adjoining owners take from a common grantor by lot number, but the grantees purchased with reference to a boundary actually marked on the ground, the marked boundary, regardless of time, controls. Arnold v. Robbins, 209 Wis. 2d 428, 563 N.W.2d 178 (Ct. App. 1997), 96-0570. 893.25 AnnotationThe 20-year period under this section need not be the 20 years immediately preceding the filing of the court action. Harwick v. Black, 217 Wis. 2d 691, 580 N.W.2d 354 (Ct. App. 1998), 97-1108. 893.25 AnnotationThe use of a surveyor is not required to establish the boundaries of the contested property as long as there is evidence that provides a reasonably accurate basis for the circuit court to know what property is in dispute. Camacho v. Trimble Irrevocable Trust, 2008 WI App 112, 313 Wis. 2d 272, 756 N.W.2d 596, 07-1472. 893.25 AnnotationIf the claimant’s use gives the titleholder reasonable notice that the claimant is asserting ownership and the titleholder does nothing, that failure to respond may result in losing title. However, in the absence of such use by the claimant, the titleholder is not obligated to do anything in order to retain title. Peter H. & Barbara J. Steuck Living Trust v. Easley, 2010 WI App 74, 325 Wis. 2d 455, 785 N.W.2d 631, 09-0757. 893.25 AnnotationThe regular use of a disputed area for hunting, placement of deer stands, and the making of a dirt road to a lake did not constitute open, notorious, visible, exclusive, and hostile use. The sound of gunshots does not gives a reasonably diligent titleholder notice of adverse possession. Gunshots would have been consistent with trespassers, as would portable deer stands, some kept in place all year. The dirt road and the trail continuing on to the lake were consistent with an easement to the lake rather than adverse possession of the entire disputed parcel. Peter H. & Barbara J. Steuck Living Trust v. Easley, 2010 WI App 74, 325 Wis. 2d 455, 785 N.W.2d 631, 09-0757. 893.25 AnnotationIn the absence of an express provision to the contrary, one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and re-creation. DNR v. Building & All Related or Attached Structures, 2011 WI App 119, 336 Wis. 2d 642, 803 N.W.2d 86, 10-2076. 893.25 AnnotationThe “claim of title” requirement in this section is the statutory equivalent of the common law “hostility” requirement. The plain meaning of “claim of title” is that a possessor must subjectively intend to claim ownership of the disputed property. Although the “claim of title” requirement is presumed when all other elements of adverse possession are established, this presumption may be rebutted with evidence that a party never intended to assert ownership over the property. A party who expressly disclaims ownership of property and seeks permission for its use is not “claiming title” to the property. Wilcox v. Estate of Hines, 2014 WI 60, 355 Wis. 2d 1, 849 N.W.2d 280, 12-1869. 893.25 AnnotationThe true owner’s casual reentry upon property does not defeat the continuity or exclusivity of an adverse claimant’s possession. The true owner’s reentry should be a substantial and material interruption and a notorious reentry for the purpose of dispossessing the adverse occupant. The claimant’s possession need not be absolutely exclusive of all individuals, and need only be a type of possession that would characterize an owner’s use of the property. Kruckenberg v. Krukar, 2017 WI App 70, 378 Wis. 2d 314, 903 N.W.2d 164, 17-0124. 893.25 AnnotationThe “substantial enclosure” requirement is flexible and subject to no precise rule in all cases as so much depends upon the nature and situation of the property. All that is required is some indication of the boundaries of the adverse possession to give notice and need only be reasonably sufficient to attract the attention of the true owner and put the true owner on inquiry as to the nature and extent of the invasion of the true owner’s rights. A fence is universally recognized as a way to indicate a boundary line. Kruckenberg v. Krukar, 2017 WI App 70, 378 Wis. 2d 314, 903 N.W.2d 164, 17-0124. 893.25 AnnotationHey! That’s my land! Understanding Adverse Possession. Shrestha. Wis. Law. Mar. 2010.
893.25 AnnotationWait! Is That My Land? More On Adverse Possession. Shrestha. Wis. Law. July/Aug. 2015.
893.26893.26 Adverse possession, founded on recorded written instrument. 893.26(1)(1) An action for the recovery or the possession of real estate and a defense or counterclaim based upon title to real estate are barred by uninterrupted adverse possession of 10 years, except as provided by s. 893.14 and 893.29. A person who in connection with his or her predecessors in interest is in uninterrupted adverse possession of real estate for 10 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841. 893.26(2)(2) Real estate is held adversely under this section or s. 893.27 only if: 893.26(2)(a)(a) The person possessing the real estate or his or her predecessor in interest, originally entered into possession of the real estate under a good faith claim of title, exclusive of any other right, founded upon a written instrument as a conveyance of the real estate or upon a judgment of a competent court; 893.26(2)(b)(b) The written instrument or judgment under which entry was made is recorded within 30 days of entry with the register of deeds of the county where the real estate lies; and 893.26(2)(c)(c) The person possessing the real estate, in connection with his or her predecessors in interest, is in actual continued occupation of all or a material portion of the real estate described in the written instrument or judgment after the original entry as provided by par. (a), under claim of title, exclusive of any other right.
