Engel v Parker (WI)

Summary: Land owners whose property has been taken away by adverse possession cannot take legal title away from the adverse possessors simply by building a new fence on the old boundary line.

Adverse Possession

Engel v Parker, 2012 WI App 18 (Wis Ct App, 2012).

Facts: Siblings Ronald Engel and Sandra O’Donnell (collectively, “Engel”) owned a parcel of land that had been purchased by their parents in 1954. A barbed wire fence separated their parcel from the neighboring land and acted as the boundary line. Since 1977 a local farmer, Rodney Chaplin, leased and farmed the Engel property and farmed as close to the fence as his machinery would reach. Steven and Judy Parker (“the Parkers”) purchased the parcel next to the Engel parcel in 2003. The Parkers had a survey of the land done in 2006 where it was revealed that the barbed wire fence separating the property had actually been built on their property. The Parkers built a new fence along the boundary that the 2006 survey had established.

Engel filed suit, alleging that since they had been using the land on their side of the original barbed wire fence since 1954, they had acquired it by adverse possession. The length of time required to adversely possess land in Wisconsin is 20 years. The parties did not dispute that in 1974, 20 years after the Engel family first purchased the parcel, Engel had acquired the land by adverse possession. However, the statute of limitations for bringing an adverse possession claim is 30 years and the Parkers argued that Engel had lost any right to bring a claim in 2004. Both sides made motions for summary judgment. The circuit court found in favor of Engel and held that the “owner-in-possession” exception applied and Engel was still free to bring their claim. The Parkers appealed.

 Holding:  Affirmed. The Wisconsin statute that provides a 30 year statute of limitations for adverse possession claims, Wisconsin Statutes Section 893.33(2)(5), includes an exception for owners in possession. It states that if a person is in possession as an owner of real estate involved in an action at the time the action is commenced, then the statute of limitations is not applicable.  The Parkers argued on appeal that this exception did not apply to Engel because they lost possession of the disputed property after the 2006 survey and after the Parkers erected their new fence, thus they were not in possession at the time the action commenced.

Based on previous case law, however, the court of appeals rejected the Parkers’ argument. When Engel obtained the disputed strip of land by adverse possession in 1974, they obtained legal title which created a presumption that they would be in possession of the land. When the Parkers built the new fence, their “possession” of the disputed tract was “under and in subordination to” Engel’s legal title.  At that point, the Parkers could only take actual possession of the tract of land if they themselves obtained it through adverse possession. Thus, Engel never lost possession and the owner-in-possession exception to the 30 year statute of limitations applied to them.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Fri, 05/18/2012 - 11:09am