Wilcox v. Estate of Hines
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In 2002, the Wilcoxes purchased property from the Somas. A strip of land separated the Wilcox’s property from a lake. In 2011, the Wilcoxes brought a claim for title by adverse possession against the owners of the lakefront strip. The circuit court dismissed the adverse possession claim after noting that the Somas had specifically disclaimed ownership of the lakefront strip and had sought and received permission to make improvements to the property from an entity the Somas mistakenly believed was its true owner. The court of appeals reversed, holding that evidence of the Somas’ permission to use the lakefront strip came from a non-owner and was therefore irrelevant. The Supreme Court reversed, holding that the circuit court properly considered the Somas’ subjective intent and did not err in concluding that the Wilcoxes failed to establish adverse possession for the requisite statutory period.
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2014 WI 60 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2012AP1869 Richard S. Wilcox and Susan K. Wilcox, Plaintiffs-Appellants, v. Estate of Ralph Hines, Estate of William J. Newman and Lake Delton Holdings, LLC, Defendants-Respondents-Petitioners, Chicago Title Insurance Company, Defendant. REVIEW OF A DECISION OF 348 Wis. 2d 124, (Ct. App. 2013 PDC No: 2013 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: THE COURT OF APPEALS 831 N.W.2d 791 Published) WI App 68 July 11, 2014 December 19, 2013 Circuit Sauk James Evenson JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ABRAHAMSON, C.J., dissents. (Opinion filed.) ATTORNEYS: For the defendants-respondents-petitioners, there were briefs by James E. Bartzen, Richard L. Schmidt, and Boardman & Clark LLP, Madison, and oral argument by James E. Bartzen. For the plaintiff-appellants, there was a brief by Edward A. Corcoran and Neider & Boucher, argument by Edward A. Corcoran. S.C., Madison, and oral An amicus curiae brief was filed by Thomas D. Madison, on behalf of the Wisconsin Realtors Association. 2 Larson, 2014 WI 60 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2012AP1869 (L.C. No. 2011CV845) STATE OF WISCONSIN : IN SUPREME COURT Richard S. Wilcox and Susan K. Wilcox, Plaintiffs-Appellants, v. FILED Estate of Ralph Hines, Estate of William J. Newman and Lake Delton Holdings, LLC, JUL 11, 2014 Defendants-Respondents-Petitioners, Diane M. Fremgen Clerk of Supreme Court Chicago Title Insurance Company, Defendant. REVIEW of a decision of the Court of Appeals. ¶1 MICHAEL J. GABLEMAN, J. This is Reversed. a review of a published decision of the court of appeals1 reversing a decision and order of the Sauk County Circuit Court2 1 dismissing the Wilcox v. Estate of Hines, 2013 WI App 68, 348 Wis. 2d 124, 831 N.W.2d 791. 2 The Honorable James Evenson presiding. No. 2012AP1869 adverse possession claim brought by the respondents, Richard and Susan Wilcox. ¶2 This case involves an action for adverse possession brought by the respondents, Richard and Susan Wilcox, for the purpose of gaining title to a strip of land separating their property from Lake Delton. The question presented is whether the Wilcoxes can establish that they adversely possessed the disputed Somas, property expressly when their disclaimed predecessors ownership of in it interest, and the sought permission to use the property from an entity that the Somas mistakenly believed was its true owner. The Wilcoxes argue it is irrelevant whether the Somas subjectively intended to claim ownership of the property, so long as their use of the property was sufficient to put the true owner on notice of occupation. In contrast, the titleholders3 maintain that a party's subjective intent4 to claim ownership is relevant to whether "claim of title"5 has been established under Wis. Stat. § 893.25 (201112).6 The titleholders assert that the fact the Somas expressly 3 For the purposes of clarity, we refer to the Estate of Ralph Hines, the Estate of William J. Newman, Lake Delton Holdings, LLC, and the Chicago Title Insurance Company collectively as "the titleholders." 4 In referring to a party's subjective intent, we mean the actual state of a person's mind, as opposed to the objective appearance of the party's intentions. 5 As discussed below, the "claim of title" requirement in Wis. Stat. § 893.25 is equivalent to the common law "hostility" element of adverse possession. 6 All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 2 No. disclaimed ownership of the lakefront and strip 2012AP1869 requested permission to use it from an entity they mistakenly believed was its true owner demonstrates they did not intend to claim title to the property. ¶3 For titleholders the and reasons hold that that follow, evidence we agree regarding a with the possessor's subjective intent to claim title may be relevant in an adverse possession arises claim when to all satisfied. rebut other the presumption elements of of hostility possession adverse that are Because the circuit court properly considered the Somas' subjective intent and concluded that the Wilcoxes failed to establish adverse possession for the requisite statutory period, we affirm the judgment of the circuit court, and we need not remand for further proceedings. Accordingly, we reverse the decision of the court of appeals. I. ¶4 FACTUAL BACKGROUND AND PROCEDURAL HISTORY In 2002, a parcel purchased Richard of and Susan property Wilcox ("the ("the Wilcox Wilcoxes") property") from Ronald and Mary Soma ("the Somas") near Lake Delton in Sauk County. A 25-foot-wide strip of land ("the lakefront strip") runs between the eastern border of the Wilcox property and Lake Delton. dispute It is this lakefront strip that is the subject of in this case, and a brief account of its ownership history is necessary to understand the parties' arguments. ¶5 At the time the Wilcoxes filed their complaint in this case, the southeast portion of the lakefront strip was owned by The Estate of William Newman ("Newman"). 3 Newman originally No. 2012AP1869 created Lake Delton in 1927 by constructing a dam on Dell Creek, and at that time he owned the entire lakefront strip, as well as what is now the Wilcox property. ¶6 portion In 1933, Newman transferred ownership of the northeast of the lakefront strip and a portion of the Wilcox property to Ralph Hines ("Hines"), and transferred the remainder of the Wilcox property to Hines in 1935. Newman also granted Hines the right to foot traffic across the southeast portion of the lakefront strip. In 1935, Hines sold the Wilcox property to Henry C. Titus ("Titus") but retained ownership of the northeast portion of the lakefront strip. Hines also granted Titus the right to foot traffic across the entire lakefront strip. ¶7 In 1963, the Somas purchased the Wilcox property from Titus and, as part of the sale, were granted the right to foot traffic across the entire lakefront strip. At this time, ownership of the lakefront strip remained with Hines and Newman, and Titus explained to the Somas that the Wilcox property did not include the lakefront strip. The Somas, however, never knew who actually owned the lakefront strip. Following the deaths of both Hines and Newman, ownership of the lakefront strip was ultimately transferred to the Estate of Ralph Hines and the Estate of William Newman. These estates retained ownership of 4 No. 2012AP1869 the lakefront strip at the time the complaint in this case was filed.7 ¶8 years. The Somas owned the Wilcox property for nearly 40 During this time, the Somas made numerous improvements to the lakefront strip, while understanding that they did not own that land. pier on Wilcox the For instance, the Somas installed and removed a lakefront property. lakefront strip, strip They added also every year cleared rocks, out planted that they owned undergrowth trees and on the the flowers, repaired a cement wall, installed riprap8 along the shoreline, and maintained the lawn. In addition, the Somas put up a "No Trespassing" sign and regularly told trespassers that they were on private property and instructed them to leave. The Somas never asked permission from either the Newman or Hines Estates 7 During the course of litigation, Lake Delton Holdings, LLC, an enterprise owned by the law firm representing the Hines and Newman Estates in this case, acquired quitclaim deeds to both portions of the lakefront strip. Following acquisition of the deeds, Lake Delton Holdings moved to intervene in place of the Estates. The Wilcoxes objected, arguing that Lake Delton Holdings had unclean hands because it "attempted to acquire the property interest in order to advance a defense on behalf of First American Title Insurance in a dispute with the Wilcoxes on an adjoining parcel that had already generated three appeals." The circuit court denied the motion to intervene but allowed Lake Delton Holdings to continue as an interested party. Lake Delton Holdings' motivation for acquiring deeds to the lakefront strip is irrelevant to whether the Wilcoxes have established adverse possession. 8 "Riprap" is defined as "[l]oose stone used to form a foundation for a breakwater or other structure; a structure made of this." Shorter Oxford English Dictionary 2590 (6th ed. 2007). 5 No. to make these alterations to the lakefront strip. 2012AP1869 However, they did ask and receive permission from John Dixon ("Dixon"), the manager of the Wisconsin Ducks ("the Ducks"), a company that provides boat tours of Lake Delton and Dell Creek. The Somas did so because they mistakenly believed that the lakefront strip was owned by the Ducks. ¶9 across In 1982, their the property Somas to granted bring trucks the Ducks and an easement equipment to the lakefront strip. The Ducks cleared out trees and undergrowth and on placed objected to rocks these the lakefront improvements strip. because lakefront strip belonged to the Ducks. The they Somas believed never the After the Ducks were finished, the Somas wished to make certain improvements to the lakefront strip. Before doing so, they sought and received permission from Dixon to rearrange the rocks, place peat and grass seed on the lakefront strip, and put up a fence with a gate and an additional "No Trespassing" sign. ¶10 The Wilcoxes purchased the Somas' property in 2002. Prior to the purchase, the Somas informed the Wilcoxes that the lakefront strip was not part of the sale, but that the Wilcoxes would have a right of foot traffic across it.9 Nevertheless, the Wilcoxes maintained and developed the lakefront strip in the 9 In addition, the Surveyor's Certificate of the purchased property states that the lakefront strip is not included in the parcel: "Said parcel does not include that land lying between said line being 25 feet, more or less, from the water's edge of Lake Delton and the water line of Lake Delton . . . ." 6 No. years following their purchase, adding 2012AP1869 improvements such as piers, a patio, flowers, trees, a fire pit, and steps. ¶11 On August 26, 2011, the Wilcoxes brought a claim for title by adverse possession under Wis. Stat. § 893.25 against the owners of the lakefront strip, the Estate of Ralph Hines and the Estate of William Newman, in the Sauk County Circuit Court.10 The circuit court conducted a bench trial on May 10, 2012. its oral ruling, possession visible, the requires exclusive, circuit court possession hostile, and that explained is that "open, continuous . . In adverse notorious, . ." The circuit court found that the Wilcoxes, in conjunction with their predecessors in interest,11 had met their burden of proof on the open and visible elements of adverse possession. However, the circuit court determined that they had failed to establish the elements of possession. possession exclusive, hostile, notorious, and continuous The circuit court dismissed the Wilcoxes' adverse claim, noting that 1) the Somas had specifically disclaimed ownership of the lakefront strip; and 2) the Somas 10 The Wilcoxes also brought a claim for reformation of title, and the titleholders raised a counterclaim for trespass against the Wilcoxes. Both claims were dismissed by the circuit court and not raised before the court of appeals. Accordingly, we do not address them. 11 The Wilcoxes cannot, by themselves, demonstrate adverse possession for the requisite statutory period. This is so because the Wilcoxes' use of the lakefront strip began in 2002, and consequently, they had only occupied the disputed property for less than ten of the statutorily required 20 years at the time they brought suit. The Wilcoxes must therefore "tack" their period of possession onto that of the Somas in order to satisfy the statutory period in Wis. Stat. § 893.25(1). 7 No. sought and lakefront received strip. permission A final to order make 2012AP1869 improvements reflecting the ruling this to was issued on May 22, 2012. ¶12 The court circuit court. of appeals reversed the decision of the Wilcox v. Estate of Hines, 2013 WI App 68, 348 Wis. 2d 124, 831 N.W.2d 791. acknowledged "what might The appear adverse possession case law." to court be Id., ¶2. of an appeals first inconsistency in Specifically, the court observed that while the adverse possession statute, Wis. Stat. § 893.25(2)(a), requires "occupation under claim of title," several cases appear to hold that the subjective intent of a possessor that is, whether the possessor intended to claim title is an irrelevant factor in determining the merits of an adverse possession claim. Id. After noting tension between the language of Wis. Stat. this apparent § 893.25 and our precedent, the court of appeals determined that reviewing courts should consider "the appearance that a possessor's use would give to the true owner" and not the "actual subjective intent" of a party. Id., ¶15. In other words, the court of appeals concluded that it is "a possessor's actions, not a possessor's belief" that matters when considering the hostile nature of the occupation. Id., ¶16. The court of appeals reasoned that this distinction reconciles various cases that appear "to declare, in one breath, that a possessor must actually intend to claim an exclusive right to possess property, and then, in the next breath, assert that the subjective intent of the possessor is irrelevant. . . ." Id., ¶19. Applying this rule, the court of 8 No. 2012AP1869 appeals held that evidence of permission to use the property from a non-owner and a party's express declarations of nonownership should not be considered. ¶13 The court of appeals recognized an exception to this rule: a party's permissive use of property is relevant in cases where the permission property. Id., is ¶21. granted The by court of the true appeals owner of explained the this exception is warranted because when an owner has granted a party permission to use property, a party's use in accordance with that permission would not appear hostile to the owner. Id. In this case, however, the Somas' permission to use the lakefront strip came from a non-owner and was therefore irrelevant. Consequently, the court of appeals held that satisfied the requirements of adverse possession. ¶14 The titleholders petitioned which we granted on September 17, 2013. II. ¶15 this the Id. Wilcoxes Id., ¶24. court for review, We now reverse. STANDARD OF REVIEW question Review of an adverse possession claim presents a mixed of fact and law. Perpignani Wis. 2d 695, 728, 408 N.W.2d 1 (1987). court's findings of fact unless they v. Vonasek, 139 We accept the circuit are clearly erroneous. Peter H. & Barbara J. Steuck Living Trust v. Easley, 2010 WI App 74, ¶11, 325 Wis. 2d 455, 785 N.W.2d 631. However, whether these facts are sufficient to establish adverse possession is a 9 No. question of law that this court reviews de 2012AP1869 novo. Id.; Perpignani, 139 Wis. 2d at 728.12 ¶16 This Wisconsin's case adverse also involves possession an statute, interpretation Wis. Stat. of § 893.25. Statutory interpretation is a question of law that this court reviews de novo. Crown Castle USA, Inc. v. Orion Constr. Grp., LLC, 2012 WI 29, ¶12, 339 Wis. 2d 252, 811 N.W.2d 332. III. DISCUSSION ¶17 The question before us is whether the Somas' subjective intent not to claim title to the lakefront strip, as demonstrated by their express statements and their use of the property with the permission of a non-owner, is relevant to the Wilcoxes' adverse possession claim. ¶18 to We begin in Part A by reviewing the basic requirements establish common law ownership and Stat. § 893.25. by Wisconsin's adverse adverse possession possession under both statute, the Wis. In Part B, we address whether a court may consider evidence relating to a party's subjective intent in determining whether the claim of title requirement in Wis. Stat. § 893.25, or its common-law 12 counterpart, the hostility The parties dispute how the standard of review applies in this case. The titleholders maintain that the court of appeals improperly reviewed the evidentiary issues in this case de novo, when the circuit court's factual findings should be upheld unless clearly erroneous. However, the Wilcoxes point out, and we agree, that this case does not center solely on the review of the circuit court's findings of fact. Instead, we must determine whether the circuit court properly considered evidence related to the Somas' subjective state of mind, which is a question of law that this court reviews de novo. 10 No. requirement, has been satisfied. We conclude 2012AP1869 that evidence regarding a party's subjective intent to claim title can be relevant to rebut the presumption of hostility that arises when all other elements of an adverse possession claim are met. In Part C, we apply this conclusion to the facts of this case and determine that the Somas' statements disclaiming ownership and their use of the property with permission from a non-owner provided a sufficient basis for the circuit court to conclude that the Wilcoxes had failed to establish adverse possession of the lakefront strip. A. The Essential Elements of Adverse Possession ¶19 Adverse possession is a legal action that enables a party to obtain valid title of another's property by operation of law. Wisconsin Stat. § 893.25(1) bars an action for recovery or possession of real estate if it has been adversely possessed for a minimum of 20 years. Property is adversely possessed only if the possessor is in "actual continued occupation under claim of title, exclusive of any other right," § 893.25(2)(a), and the property is "protected by a substantial enclosure" or "usually cultivated and improved," § 893.25(2)(b). ¶20 elements Wisconsin of Stat. adverse § 893.25 possession, codifies which the common require law physical possession that is "hostile, open and notorious, exclusive and continuous . . . ." Leciejewski v. Sedlak, 116 Wis. 2d 629, 636, 342 N.W.2d 734 (1984); see also Pollnow v. State Dep't of Natural Res., 88 Wis. 2d 350, 356, 276 N.W.2d 738 (1979) ("[T]he [adverse possession] statute carries 11 over the common law No. definition of adverse possession"). 2012AP1869 In an adverse possession claim, the burden of proof is on the person asserting the claim. Allie v. Russo, 88 Wis. 2d 334, 343, 276 N.W.2d 730 (1979). The evidence of possession must be "clear and positive and must be strictly construed against the claimant." Id. The court must make all reasonable presumptions in favor of the true owner, including the presumption that actual possession is subordinate to the right of the true owner. Zeisler Corp. v. Page, 24 Wis. 2d 190, 198, 128 N.W.2d 414 (1964) (quoting Illinois Steel Co. v. Budzisz, 106 Wis. 499, 514, 81 N.W. 1027 (1900)). ¶21 In order to demonstrate continuous possession for the requisite statutory period, a possessor may "tack" his time of possession to that of his predecessor in interest. 139 Wis. 2d at 724-25. However, "in order to Perpignani, benefit from tacking, the adverse claimant must be shown to be in privity with any prior adverse possessor," id. at 725, and the prior possession must be actually adverse. ¶22 "claim of Id. at 727. The parties dispute what is necessary to satisfy the title" requirement in Wis. Stat. § 893.25, corresponds to the common law "hostility" element.13 13 which Within the We agree with the parties and the court of appeals that the common law "hostility" requirement for adverse possession is equivalent to the "claim of title" requirement in Wis. Stat. § 893.25(2)(a). See, e.g., Kimball v. Baker Land & Title Co., 152 Wis. 441, 448, 140 N.W. 47 (1913) (adverse possession statute "requir[es] allegation of hostile title, to allege facts from which the hostile claim of title or interest is raised as a necessary or reasonable inference"); Illinois Steel Co. v. Bilot, 109 Wis. 418, 446, 85 N.W. 402 (1901) ("If the claimant 'raises his flag and keeps it up,' so to speak, sufficiently to attract the attention of the true owner to the situation . . . as a hostile claim of title, knowledge of such owner may be presumed as a fact . . . ."); see also Jeffrey Evans Stake, The Uneasy Case for Adverse Possession, 89 Geo. L.J. 2419, 2426 (2001) (the hostility element "goes by a variety of names, including 'adverse,' 'hostile,' 'under claim of title,' 'under claim of right,' and 'hostile and under claim of right.'"); Richard R. 12 No. 2012AP1869 context of adverse possession, "'[h]ostility' means only one in possession thereto [of and possession the disputed actual in the property] possession true claims prevents owner." exclusive the Burkhardt Wis. 2d 132, 139-40, 115 N.W.2d 540 (1962). right assumption of v. 17 Smith, "'Hostile intent' does not mean a deliberate, wilful, unfriendly animus. If the elements of open, notorious, continuous and exclusive possession are satisfied, the law presumes the element of hostile intent." Id. at 139. possession In other words, when all other elements of adverse are satisfied, a hostile intent is presumed. However, as explained below, this presumption may be rebutted by evidence demonstrating that a possessor lacked the subjective intent to claim title to the property. B. A Presumption of Hostility is Rebuttable with Evidence of a Possessor's Subjective Intent ¶23 The facts in this case raise a novel issue in our adverse possession jurisprudence: whether an adverse claimant can establish the elements of adverse possession when evidence demonstrates the party's predecessor in interest subjective intent to claim title to the property. the circuit predecessors ownership of court in the considered interest, lakefront the evidence Somas, strip and that lacked Specifically, the expressly sought the and Wilcoxes' disclaimed received Powell, 16 Powell on Real Property § 91.05[4], at 91-31 (Michael Allan Wolf ed. 2000) ("In essence, to require adverse possession under a claim of right is the same as requiring hostility, in that both terms simply indicate that the claimant is holding the property with an intent that is adverse to the interests of the true owner"). 13 No. 2012AP1869 permission to use the property from an entity they mistakenly believed was its true evidence the Somas owner. The titleholders assert that never intended to gain possession of the lakefront strip was properly considered by the circuit court in reaching its conclusion that the Wilcoxes failed to satisfy the hostility element of adverse possession. In contrast, the Wilcoxes argue the circuit court erred in considering the intent of the Somas, because such an inquiry is irrelevant so long as the Somas' use of the property was sufficient to put the true owner on notice. ¶24 We agree with the titleholders and conclude that, under Wis. Stat. § 893.25 and our precedent, evidence relating to a party's subjective intent to claim title is relevant to rebut a presumption of hostility in an adverse possession claim. The "claim of title" requirement in Wis. Stat. § 893.25 is the statutory equivalent of the common law "hostility" requirement. As discussed below, the plain meaning of "claim of title" is that a possessor must subjectively intend to claim ownership of the disputed requirement possession property. is are presumed Although when established, all this the other "claim of title" elements of adverse presumption may be rebutted with evidence that a party never intended to assert ownership over the property. property and seeks A party who expressly disclaims ownership of permission title" to the property. for its use is not "claiming Therefore, express declarations of non- ownership and evidence of permissive use are properly considered by a circuit court in determining whether the "claim of title" 14 No. 2012AP1869 requirement in Wis. Stat. § 893.25 has been satisfied. To hold otherwise adverse would render this essential element of possession a nullity. ¶25 This case is a dispute about whether the Wilcoxes have met the statutory requirements of adverse possession under Wis. Stat. § 893.25, which codifies the common law elements of continuous, open, notorious, exclusive, and hostile possession. In analyzing the requirements of a statute, we "begin[] with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). language is 'normal,' or generally dictionary the The plain meaning of statutory "'common,' definition[]" 'ordinary,' of a term. 'natural,' Id., ¶41 (citation omitted). ¶26 Wisconsin Stat. § 893.25(2)(a) provides that property is adversely possessed "[o]nly 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." (emphasis added). The plain meaning of "claim of title" is that the possessor intends to claim ownership of 15 No. the disputed property.14 See 10 Thompson on 2012AP1869 Real Property § 87.11, at 159 (David A. Thomas, ed., 3d ed. 2013) ("Claim of title is where one enters and occupies land with the intent to hold it as one's own against the world . . . .").15 Black's Law Dictionary defines "claim of title" as being synonymous with "claim of 2009). a piece ownership." Black's Law Dictionary 283 (9th ed. "Claim of ownership" is defined as "[t]he possession of of property with the intention of claiming it in hostility to the true owner," as well as "[a] party's manifest 14 The same is true for the common law "hostility" requirement. See Burkhardt v. Smith, 17 Wis. 2d 132, 139-40, 115 N.W.2d 540 (1962) ("'Hostility' means only one in possession claims exclusive right thereto and actual possession prevents the assumption of possession in the true owner.") (emphasis added); see also Stake, supra note 13, at 2428 (discussing the hostility element and explaining, "[t]o be a possessor, [the claimant] must have had a true owner's intent to use the land, develop the land, or exclude others from the land"); 10 Thompson on Real Property § 87.11, at 156-7 (David A. Thomas, ed., 3d ed. 2013) ("[The] intention to claim as owner is said to be the very essence of title by adverse possession, and to say that the possession must be hostile is equivalent to saying that it must be under a claim of right"); Powell, supra note 13, at 91-21 ("Hostile possession can be understood as possession that is opposed and antagonistic to all other claims, and that conveys a clear message that the possessor intends to possess the land as his or her own"). 15 Our interpretation of the "claim of title" element as requiring an actual subjective intent to claim ownership of property is in keeping with the historic purpose of the common law hostility requirement, which was to distinguish adverse claimants from mere trespassers or squatters. See Ewing's Lessee v. Burnet, 36 U.S. 41, 52 (1837) (explaining that the difference between ouster and trespass turns on "the intention with which it is done; if made under claim and color of right, it is an ouster, otherwise, it is a mere trespass . . . ."). 16 No. 2012AP1869 intention to take over land, regardless of title or right." Id.16 ¶27 Although the "claim of title" requirement in Wis. Stat. § 893.25 is presumed when all other elements of adverse possession are established, this presumption must be rebuttable for the requirement to have meaning.17 As we explained in Ovig v. Morrison, [U]pon unexplained, exclusive, continuous occupancy of land under a chain of title, by one not the true owner, for the statutory period . . . there arises . . . the presumption that, during all such period, the possession had all the requisites of an adverse holding, subject to be rebutted by proof that it was in fact subordinate to the right of the true owner, but conclusive in the absence of such rebuttal. Ovig v. Morrison, 142 Wis. 243, 249-50, 125 N.W. 449 (1910) (emphasis added). If the requirement that the disputed land be occupied "under claim of title" were irrebuttable, its presence in the statute would be meaningless. "Statutory language is read where possible to give reasonable effect to every word, in 16 Similarly, the American Heritage Dictionary defines "claim" as "to demand, ask for, or take as one's own or one's due. . . ." and "lay claim to" is defined as "[t]o assert one's right to or ownership of." American Heritage Dictionary of the English Language 340-41 (5th ed. 2011). 17 We note that instances where evidence exists to refute the "claim of title" requirement will necessarily be rare, as is underscored by the fact that this is the first time we have been asked to address the issue. In all adverse possession cases, the adverse claimant intends to possess the disputed property; indeed, that is the purpose of raising an adverse possession claim. However, under the uncommon facts presented to us in this case, it is clear the Somas did not occupy the lakefront strip "under claim of title." Wis. Stat. § 893.25(2)(a). 17 No. order to avoid surplusage." 2012AP1869 Kalal, 271 Wis. 2d 633, ¶46. In other words, evidence demonstrating that a party's possession was not "under claim of title" must be admissible, as it is directly relevant to whether an essential element of adverse possession has been satisfied. To conclude otherwise would read the "claim of title" requirement out of the adverse possession statute entirely. presumption is Likewise, to hold that the claim of title irrebuttable would also be contrary to the general rule that evidence in an adverse possession case must be "clear and positive and must be strictly construed against the claimant." ¶28 § 893.25 Allie, 88 Wis. 2d at 343. The Wilcoxes argue that this reading of Wis. Stat. improperly ignores applicable case law instructing courts to consider only the observable physical characteristics of possession, without inquiring into a party's subjective state of mind. Specifically, the Wilcoxes rely on our decisions in Allie and Ovig, where we held that the "sole test" for adverse possession is possession . . . ." "the Ovig, physical 142 Wis. characteristics at 248, and that of "[t]he subjective intent of either of the parties is irrelevant to a determination of a claim of adverse possession." 2d at 347. title" is Allie, 88 Wis. Similarly, the court of appeals held that "claim of demonstrated through "the appearance that a possessor's use would give to the true owner" and "refers to a 18 No. possessor's actions, not a possessor's belief." 2012AP1869 Wilcox, 348 Wis. 2d 124, ¶¶15-16.18 ¶29 While we acknowledge, as the court of appeals did, that case law does not always discuss the issue of subjective intent "with optimal clarity,"19 we disagree with the Wilcoxes' contention that Ovig and Allie stand for the blanket proposition that subjective intent possession claim. See is never relevant Thompson, supra, § 87.11, at 156 in an adverse ("No matter how exclusive and hostile the possession may be in appearance, it cannot be adverse unless accompanied by an intent on the part of the occupant to make it so . . . .") ¶30 . In most adverse possession cases, a court's inquiry is primarily focused on the observable physical characteristics of the claimant's occupation, including whether the elements of 18 The court of appeals reasoned that the "sole exception" to this general rule is if permission is sought from a property's true owner. However, knowledge of the identity of the true owner is not a required element of adverse possession, and the fact that the Somas were mistaken about who actually owned the lakefront strip is not decisive in this case. Even if the court of appeals was correct, it failed to accurately apply its rule to the facts of this case. It was established at trial that the Wilcoxes and the Somas both had permission to use the lakefront strip a right to foot traffic that was originally granted by the property's true owners. 19 Wilcox, 348 Wis. 2d 124, ¶16. In contrast to the language relied upon by the Wilcoxes in Allie and Ovig, we have also explicitly stated in other cases that a "hostile intent" is necessary to establish adverse possession. See, e.g., Stone Bank Improvement Co. v. Vollriede, 11 Wis. 2d 440, 447, 105 N.W.2d 789 (1961) (quoting Bank of Eagle v. Pentland, 197 Wis. 40, 42, 221 N.W. 383 (1928)); Bettack v. Conachen, 235 Wis. 559, 571, 294 N.W. 57 (1940) (adverse possession requires "something which indicates what is known in the law as a hostile intent, that is, intent to claim title in hostility to the true owner"). 19 No. 2012AP1869 open, notorious, continuous, and exclusive use are established. If they are, hostility is presumed. See Burkhardt, 17 Wis. 2d at 139 ("If the elements of open, notorious, continuous and exclusive possession are satisfied, the law presumes the element of hostile intent"). There is rarely a dispute about whether possession is hostile, for the simple reason that the party bringing the claim usually intends to possess the property in question. evidence In such regarding characteristics, cases, a a possessor property's making it the See Ovig, 142 Wis. at 248. presumption of established on hostility the basis allows of the only observable "sole possession. need test" present physical for adverse Nevertheless, while the adverse possession physical to characteristics be of possession alone, evidence can still be admitted to show that an essential element has not been satisfied. This evidence is not part of the "sole test" for adverse possession, however, because it is not required for a successful claim. ¶31 In Allie, we explained why the respondent's subjective belief was insufficient to support the circuit court's finding about the property's true boundary line. 347. Allie, 88 Wis. 2d at Our statement that "subjective intent . . . is irrelevant" is accurate insofar as it describes an adverse possession case in which the elements of open, notorious, continuous, and exclusive use are established, and a possessor's hostile intent is therefore presumed. principle that However, Allie does not stand for the subjective intent is never relevant. For example, in Allie, we went on to consider the intent of both 20 No. 2012AP1869 parties in relation to the disputed property's true boundary line. Id. (noting that the respondent "considered the fence to be the lot line" and "[t]he appellants did not consider the fence to be the lot line . . . ."). Ultimately, we held in Allie that the property was not adversely possessed because the respondent's conclusion possession was not was based not on exclusive. any However, determinations respondent's subjective intent to claim title. Indeed, in both Allie and Ovig, it was this about Id. the at 348. understood that the possessor intended to claim possession of the property. ¶32 did not As discussed below, because evidence that a party subjectively admissible court to properly rebut disclaimed intend a claim presumption considered ownership to of of evidence the title to hostility, that the lakefront property the Somas strip is circuit expressly and sought permission for its use. C. The Circuit Court Properly Held that the Wilcoxes Failed to Establish Adverse Possession ¶33 agree Applying our reasoning to the facts of this case, we with the circuit court's conclusion that the Wilcoxes failed to establish adverse possession of the lakefront strip. The circuit court heard testimony demonstrating that the Somas had expressly disclaimed ownership of the lakefront strip and asked permission to make improvements to the property. Based on this testimony, the circuit court found that the Somas "never claimed to own [the lakefront strip]. whenever they made improvements." 21 They obtained permission The circuit court properly No. considered this evidence and found that the 2012AP1869 Somas "did not intend their actions to be hostile to any ownership interest." As we have held, express statements disclaiming ownership of property are relevant in an adverse possession case in order to rebut a presumption of hostility. Similarly, the fact that the Somas sought and received permission to use the lakefront strip is relevant evidence to rebut the presumption that the Somas claimed title to the property.20 A request for permission is relevant under the circumstances regardless of whether it is sought from the true owner, because the request goes to the possessor's subjective intent to claim title. See, e.g., Stone Bank Improvement Co. v. Vollriede, 11 Wis. 2d 440, 447, 105 N.W.2d 789 (1961) (quoting Bank of Eagle v. Pentland, 197 Wis. 40, 42, 221 N.W. 383 (1928)) ("To constitute adverse possession there must be the fact of possession and the hostile intention,the intention to usurp possession. Mere permissive possession is never a basis for the statute of limitations"). ¶34 Having determined that the Somas lacked a hostile intent, the circuit court concluded that the Wilcoxes failed to 20 The titleholders assert that permissive use is also relevant to the exclusivity element of adverse possession. As discussed infra note 21, we do not address the issue of exclusivity because our holding on the hostility element is decisive. 22 No. establish adverse possession of the 2012AP1869 strip.21 lakefront The burden of proof was on the Wilcoxes. The titleholders, as the true benefit owners, reasonable were entitled presumptions" to made the in their of having favor. Wis. 2d at 343; Zeisler, 24 Wis. 2d at 198. "all Allie, 88 We agree with the circuit court that the Wilcoxes failed to meet their burden and the facts were not sufficient to establish that they adversely possessed the lakefront strip. IV. ¶35 We title to hostility hold property that that is arises a CONCLUSION party's relevant when possession are established. to all subjective rebut other the intent to claim presumption elements of of adverse Wisconsin Stat. § 893.25 requires that property be possessed "under claim of title" to establish adverse possession. The plain meaning of the "claim of title" 21 The circuit court also held that the Wilcoxes did not satisfy the elements of exclusive, notorious, and continuous use of the property. The titleholders argue that possession was not exclusive because the Somas asked for permission to use the property and allowed the Ducks to enter the property in 1982. In order to reach the central issue in this case, we assume, without deciding, that the elements of exclusive, notorious, and continuous use were met and the presumption of hostility was triggered. We therefore need not consider whether the circuit court properly considered evidence regarding the Somas' subjective intent in relation to these other elements. The outcome in this case would be the same regardless. We note, however, that the court of appeals based its decision to reverse the circuit court on the premise that if hostility was established, there was "no remaining issue in need of resolution." In fact, had the circuit court erred in regards to the hostility element, the additional elements of exclusive, notorious, and continuous use would still need to be addressed. 23 No. 2012AP1869 requirement is that a party must intend to claim possession of the disputed property. Therefore, in order to gain title by adverse possession, the adverse claimant and all predecessors in interest must have the actual intent to possess the property under a claim of ownership. The Somas' express declarations of non-ownership and requests for permission to use the lakefront strip were sufficient to support the circuit court's conclusion that they possess lacked the the requisite property. Because hostile the intent circuit to adversely court properly considered the Somas' subjective intent and concluded that the Wilcoxes failed requisite to statutory establish period, we adverse affirm possession the for judgment the of the circuit court, and we need not remand for further proceedings. For these reasons, the decision of the court of appeals is Court. The decision of the court of appeals is reversed. By the reversed. 24 No. ¶36 with the appeals. SHIRLEY S. ABRAHAMSON, C.J. well-reasoned Wilcox v. published Estate of (dissenting). opinion Hines, 2012AP1869.ssa of 2013 WI the App I agree court of 68, 348 Wis. 2d 124, 831 N.W.2d 791. ¶37 The majority opinion seems to introduce a minefield of blanket pronouncements and unanswered questions into the varied fact scenarios that adverse possession cases provide. ¶38 For the foregoing reasons, I dissent. 1 No. 1 2012AP1869.ssa
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