Chapter 893

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.

893.28 Annotation As sub. (1) is written, it is more natural to read “of another” to modify “real estate,” rather than “rights.” That is, by continuous use, one may gain a prescriptive right in another’s real estate. The real estate in which a right is gained must belong to another person. A setback restriction in an owner’s deed was not a “right in real estate” belonging to “another” that the owner could use adversely by continually violating the setback. Hall v. Liebovich Living Trust, 2007 WI App 112, 300 Wis. 2d 725, 731 N.W.2d 649, 06-0040.

893.28 Annotation Sub. (2) applies to permissive uses. An agreement that permitted an electric utility to construct and maintain electrical poles and transmission lines on a landowner’s property that was revocable upon 30 days’ written notice gave the utility “rights in real estate of another” under sub. (2). Use of the property for more than ten years by the utility established the prescriptive right to continue the use. Williams v. American Transmission Co., 2007 WI App 246, 306 Wis. 2d 181, 742 N.W.2d 882, 07-0052.

893.28 Annotation Under the common law, a party’s use of another’s real property becomes a prescriptive right upon: 1) an adverse use; 2) that is visible, open, and notorious; 3) under an open claim of right; and 4) continuous for 20 years. With respect to public utilities, sub. (2) displaces the common-law adversity requirement, reduces the vesting period from 20 to ten years, and abrogates the claim-of-right requirement. Bauer v. Wisconsin Energy Corp., 2022 WI 11, 400 Wis. 2d 592, 970 N.W.2d 243, 19-2090.

893.28 Annotation A continuous use is one that is neither voluntarily abandoned by the party claiming a prescriptive right nor interrupted by an act of the landowner or a third party. A use remains continuous even when the user takes measures reasonably necessary to maintain or improve the use, so long as those measures are not inconsistent with the use’s original nature and character nor more burdensome on the landowner. In this case, the public utility’s periodic repairs to its natural-gas line, which included replacing 84 feet of the line by splicing new pipe of the same diameter and material into the existing line, constituted reasonable maintenance to continue its initial purpose, not an interruption or voluntary abandonment. Bauer v. Wisconsin Energy Corp., 2022 WI 11, 400 Wis. 2d 592, 970 N.W.2d 243, 19-2090.

893.29 893.29 No adverse possession by or against the state or political subdivisions.

893.29(1) (1) Except as provided in sub. (2) (b), no title to or interest in real property belonging to the state or a city, village, town, county, school district, sewerage commission, sewerage district or any other unit of government within this state may be obtained by adverse possession under s. 893.25, 893.26, or 893.27 or by continuous adverse use under s. 893.28.

893.29(1m) (1m) Except as provided in sub. (2) (d), no city, village, town, county, school district, sewerage commission, sewerage district, or any other unit of government within this state may obtain title to private property, as defined in s. 943.13 (1e) (e), by adverse possession under s. 893.25, 893.26, or 893.27.

893.29(2) (2) 

893.29(2)(a) (a) Subsection (1) applies to a claim of title to or interest in real property based on adverse possession or continuous adverse use that began on or after March 3, 1996.

893.29(2)(b) (b) Subsection (1) does not affect title to or interest in real property obtained on or before March 3, 2016, by adverse possession under s. 893.25, 893.26, or 893.27 or by continuous adverse use under s. 893.28.

893.29(2)(c) (c)

893.29(2)(c)1. 1. Subsection (1m) applies to a claim of title to real property based on adverse possession under s. 893.25 that began after March 3, 1996.

893.29(2)(c)2. 2. Subsection (1m) applies to a claim of title to real property based on adverse possession under s. 893.26 that began after March 3, 2006.

893.29(2)(c)3. 3. Subsection (1m) applies to a claim of title to real property based on adverse possession under s. 893.27 that began after March 3, 2009.

893.29(2)(d) (d) Subsection (1m) does not affect title to real property obtained on or before March 3, 2016, by adverse possession under s. 893.25, 893.26, or 893.27.

893.29 History History: 1979 c. 323; 1983 a. 178; 1983 a. 189 s. 329 (16); 1997 a. 108; 2015 a. 219.

893.29 Annotation This section does not apply to a railroad. 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).

893.29 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.

893.29 Annotation Under former sub. (2) (c), 1987 stats., the claimant was barred from adversely possessing any real property of a highway, including property held by the town for highway purposes. The parcel in question, although not improved as a highway, was dedicated as a street on a subdivision plat that was recorded in 1986. As such, under s. 236.29 (1), the recorded subdivision plat vested fee simple ownership of the disputed parcel in the town, which held that parcel in trust for use as a street. Under those circumstances, the disputed parcel was held by the town for highway purposes and was not subject to adverse possession. Casa De Calvo v. Town of Hudson, 2020 WI App 67, 394 Wis. 2d 342, 950 N.W.2d 939, 19-1851.

893.30 893.30 Presumption from legal title. In every action to recover or for the possession of real property, and in every defense based on legal title, the person establishing a legal title to the premises is presumed to have been in possession of the premises within the time required by law, and the occupation of such premises by another person shall be deemed to have been under and in subordination to the legal title unless it appears that such premises have been held and possessed adversely to the legal title for 7 years under s. 893.27, 10 years under s. 893.26 or 20 years under s. 893.25, before the commencement of the action.

893.30 History History: 1979 c. 323.

893.30 Note Judicial Council Committee’s Note, 1979: This section is based on previous s. 893.05. The last sentence is expanded to recognize the new 7-year statute in s. 893.27. The words “and in every defense based on legal title” are added to make clear that the presumption of this section applies whether the holder of legal title is suing to recover the land, or a claiming adverse possessor is suing to establish title to it. [Bill 326-A]

893.30 Annotation The lowest burden of proof applies in adverse possession cases. Kruse v. Horlamus Industries, Inc., 130 Wis. 2d 357, 387 N.W.2d 64 (1986).

893.305 893.305 Affidavit of interruption; adverse possession and prescriptive use.

893.305(1) (1) Definitions. In this section:

893.305(1)(a) (a) “Affidavit of interruption” means an affidavit that satisfies the requirements under sub. (3).

893.305(1)(b) (b) “Neighbor” means a person who holds record title to real estate abutting the record title holder’s real estate.

893.305(1)(c) (c) “Survey” means a property survey that complies with ch. A-E 7, Wis. Adm. Code, and that contains a certification by a professional land surveyor that the survey shows all visible encroachments on the surveyed land.

893.305(2) (2) Interruption by affidavit. A record title holder may interrupt adverse possession of real estate under s. 893.25, 893.26, 893.27, or 893.29 and adverse use of real estate under s. 893.28 (1) by doing all of the following: