Chapter 893

893.21 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.32 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.22 893.22 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 History History: 1979 c. 323; 2001 a. 102.

893.22 Note Judicial 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 Annotation This 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.

893.23 893.23 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 History History: 1979 c. 323.

893.23 Note Judicial 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 Annotation The 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.

subch. III of ch. 893 SUBCHAPTER III

ACTIONS CONCERNING REAL OR
PERSONAL PROPERTY

Subch. III of ch. 893 Note Judicial 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 Note Notes 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]

893.24 893.24 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 History History: 1985 a. 247; 1997 a. 108.

893.24 Annotation In 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 Annotation Hey! That’s my land! Understanding Adverse Possession. Shrestha. Wis. Law. Mar. 2010.

893.25 893.25 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(2)(b)1. 1. Protected by a substantial enclosure; or

893.25(2)(b)2. 2. Usually cultivated or improved.

893.25 History History: 1979 c. 323.

893.25 Note Judicial 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 Note A grantor can assert adverse possession against a grantee. Lindl v. Ozanne, 85 Wis. 2d 424, 270 N.W.2d 249 (Ct. App. 1978). See also Keller v. Morfeld, 222 Wis. 2d 413, 588 N.W.2d 79 (Ct. App. 1998), 97-3443.

893.25 Annotation Where 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 Annotation Acts 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 Annotation When 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 Annotation A 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 Annotation A 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 Annotation Land 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 Annotation The 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 Annotation The 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 Annotation If 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 Annotation The 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 Annotation In 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 Annotation The “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 Annotation The 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 Annotation The “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 Annotation Hey! That’s my land! Understanding Adverse Possession. Shrestha. Wis. Law. Mar. 2010.

893.25 Annotation Wait! Is That My Land? More On Adverse Possession. Shrestha. Wis. Law. July/Aug. 2015.

893.26 893.26 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.

893.26(3) (3) If sub. (2) is satisfied all real estate included in the written instrument or judgment upon which the entry is based is adversely possessed and occupied under this section, except if the real estate consists of a tract divided into lots the possession of one lot does not constitute the possession of any other lot of the same tract.

893.26(4) (4) Facts which constitute possession and occupation of real estate under this section and s. 893.27 include, but are not limited to, the following:

893.26(4)(a) (a) Where it has been usually cultivated or improved;

893.26(4)(b) (b) Where it has been protected by a substantial enclosure;

893.26(4)(c) (c) Where, although not enclosed, it has been used for the supply of fuel or of fencing timber for the purpose of husbandry or for the ordinary use of the occupant; or

893.26(4)(d) (d) Where a known farm or single lot has been partly improved the portion of the farm or lot that is left not cleared or not enclosed, according to the usual course and custom of the adjoining country, is considered to have been occupied for the same length of time as the part improved or cultivated.

893.26(5) (5) For the purpose of this section and s. 893.27 it is presumed, unless rebutted, that entry and claim of title are made in good faith.

893.26 History History: 1979 c. 323; 1981 c. 314; 1997 a. 254.

893.26 Note Judicial Council Committee’s Note, 1979: This section collects in one place all material relating to 10-year adverse possession, integrating previous ss. 893.06 and 893.07, together with part of previous s. 893.10. Several language changes are the same as in s. 893.25, and the comments in the note following that section apply here. Three changes may work some change in substance, and should be particularly noted:

893.26 Note Sub. (2) (a) requires original entry on the adversely possessed premises to be “in good faith,” language not included in the previous s. 893.06. The addition is designed to make clear that one who enters under a deed, for example, knowing it to be forged or given by one not the owner, should not have the benefit of the 10-year statute. Some Wisconsin case law (contrary to the nationwide weight of authority) suggests otherwise, and the change is intended to reverse these cases. See Polanski v. Town of Eagle Point, 30 Wis. 2d 507, 141 N.W.2d 281 (1966); Peters v. Kell, 12 Wis. 2d 32, 106 N.W.2d 407 (1960); McCann v. Welch, 106 Wis. 142, 81 N.W. 996 (1900). Note, however, that good faith is required only at the time of entry, and need not continue for the full 10 years of adverse possession.

893.26 Note Sub. (2) (b) adds a requirement not contained in previous s. 893.10 that the written instrument or judgment under which original entry is made must be recorded within 30 days after the entry.

893.26 Note Sub. (2) (c) adds the requirement that the adverse possession be of all or “a material portion” of the premises described in the written instrument or judgment, replacing “some part” found in previous s. 893.06. This probably represents no change in present law, but is intended to make clear that possession of an insubstantial fragment of land described in a written instrument will not suffice as constructive possession of all the land described. [Bill 326-A]

893.26 Annotation When a deed granted a right-of-way but the claimed use was of a different strip, no right based on use for ten years was created. New v. Stock, 49 Wis. 2d 469, 182 N.W.2d 276 (1971).

893.26 Annotation The doctrine of “tacking” allows an adverse possession claimant to add the claimant’s time of possession to that of a prior adverse possessor if the claimant is in privity with the prior adverse possessor. Discussing adverse possession of land uncovered by the recession of a body of water. Perpignani v. Vonasek, 139 Wis. 2d 695, 408 N.W.2d 1 (1987).

893.26 Annotation For purposes of determining a “claim of title,” a deed based on a recorded official government survey meets the requirements of this statute. Ivalis v. Curtis, 173 Wis. 2d 751, 496 N.W.2d 690 (Ct. App. 1993).

893.26 Annotation If 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.

893.26 Annotation The 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.

893.26 Annotation In 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.

893.26 Annotation Hey! That’s my land! Understanding Adverse Possession. Shrestha. Wis. Law. Mar. 2010.

893.27 893.27 Adverse possession; founded on recorded title claim and payment of taxes.

893.27(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 7 years, except as provided by s. 893.14 or 893.29. A person who in connection with his or her predecessors in interest is in uninterrupted adverse possession of real estate for 7 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841.

893.27(2) (2) Real estate is possessed adversely under this section as provided by s. 893.26 (2) to (5) and only if:

893.27(2)(a) (a) Any conveyance of the interest evidenced by the written instrument or judgment under which the original entry was made is recorded with the register of deeds of the county in which the real estate lies within 30 days after execution; and

893.27(2)(b) (b) The person possessing it or his or her predecessor in interest pays all real estate taxes, or other taxes levied, or payments required, in lieu of real estate taxes for the 7-year period after the original entry.

893.27 History History: 1979 c. 323.

893.27 Note Judicial Council Committee’s Note, 1979: This section is new. It provides a 7-year limitation period in favor of an adverse possessor who has met all the requirements for the 10-year provision and who also has a recorded chain of title and paid the property taxes for the full 7 years. Many states provide similar or shorter periods under the same circumstances, while Wisconsin has given no statutory recognition to the importance of paying the taxes. One valuable role of adverse possession statutes is in title clearance. When a party enters in good faith, maintains possession, records all conveyances within 30 days and pays taxes for 7 years, the likelihood of genuine competing claims is small, and the gains in assurance of title from this section may well be significant. Some language from ss. 893.25 and 893.26 is repeated here; see notes to those sections for explanation. [Bill 326-A]

893.27 Annotation In 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.

893.27 Annotation Hey! That’s my land! Understanding Adverse Possession. Shrestha. Wis. Law. Mar. 2010.

893.28 893.28 Prescriptive rights by adverse user.

893.28(1) (1) Continuous adverse use of rights in real estate of another for at least 20 years, except as provided in s. 893.29 establishes the prescriptive right to continue the use. Any person who in connection with his or her predecessor in interest has made continuous adverse use of rights in the land of another for 20 years, except as provided by s. 893.29, may commence an action to establish prescriptive rights under ch. 843.

893.28(2) (2) Continuous use of rights in real estate of another for at least 10 years by a domestic corporation organized to furnish telegraph or telecommunications service or transmit heat, power or electric current to the public or for public purposes, by a cooperative association organized under ch. 185 or 193 to furnish telegraph or telecommunications service, or by a cooperative organized under ch. 185 to transmit heat, power or electric current to its members, establishes the prescriptive right to continue the use, except as provided by s. 893.29. A person who has established a prescriptive right under this subsection may commence an action to establish prescriptive rights under ch. 843.

893.28(3) (3) The mere use of a way over unenclosed land is presumed to be permissive and not adverse.

893.28 History History: 1979 c. 323; 1985 a. 297 s. 76; 2005 a. 441.

893.28 Annotation Once the right to a prescriptive easement has accrued by virtue of compliance with sub. (1) for the requisite 20-year period, the holder of the prescriptive easement must comply with the recording requirements within 30 years under s. 893.33 (2) or lose the right to continued use. Schauer v. Baker, 2004 WI App 41, 270 Wis. 2d 714, 678 N.W.2d 258, 02-1674.