Kees v. Northern States Power Co. (WI)

Summary: Landowners and a power company disputed a strip of land where a railroad was constructed many years earlier. The landowners' claims that under federal law, the strip of land had been abandoned and reverted back to the landowners, or alternatively, under Wisconsin law, they had adversely possessed the land, were dismissed.


Kees v. Northern States Power Co., 848 Wis.2d 762, 833 N.W.2d 872, 2013 WI App 84  (Wis. Ct. App. 2013) (Unpublished disposition).


Facts: Robert and Helen Kees, landowners, and the Northern States Power Company disputed ownership of a 100-foot-wide strip of land on which a railroad was constructed many years earlier, known as “the railway.” The Keeses asserted that the land was granted by the federal government for railroad usage. They alleged to be the rightful owners of the railway as the right-of-way had been abandoned during Milwaukee Road’s bankruptcy and reverted to the Kesses under 43 U.S.C. § 912 (allowing the reversion of land due to forfeiture or abandonment). Alternatively, the Keeses contended that they had adversely possessed the strip of land pursuant to Wis. Stat. § 893.26 (requiring reversion of public lands given by the United States that have not been turned into a public highway within one year of abandonment).

In 1881, the railway was owned by various parties until it eventually wound up in the hands of Milwaukee Road, who used the railroad until around 1978 when it filed for bankruptcy. The railway was sold to Northern States during those proceedings and neither Northern States nor its successors in interest have removed the railroad tracks. In 1995, Northern States leased the tracks to Chippewa Valley Motor Car Association, who used certain segments of the railway for transportation services.

The circuit court determined that the railway was constructed pursuant to state versus federal law and it was never abandoned. Thus, there could be no reversionary rights under federal law. Further, it determined that the Keeses’ fulfilled neither the statutorily required period nor the exclusivity requirement necessary for adverse possession.


Holding: Affirmed. On appeal, the court affirmed the trial court’s ruling for two reasons: First, there was nothing to revert to the Keeses under federal law as there was neither a valid property interest granted by the federal government in creating the railway nor abandonment of that interest. Second, the Keeses did not have a proper adverse possession claim under Wisconsin law.

First, the court determined that the railway was not subject to a valid grant of public land under an 1852 federal law. Under the law, a railroad company chartered at the time or within ten years had a 100-foot right of way through public lands. The court determined that in the present case, the grant was not traceable to a timely chartered company contrary to the Keeses’ assertion that the Chippewa Valley Railroad Co. chartered in 1857 took advantage of the grant and there was proper corporate succession to Northern States today. The Keeses’ further argued that a corporate participant’s mere involvement in a subsequent endeavor endowed the latter company with the former’s interests. The court reasoned that “[u]nlike an appurtenant easement, interests granted under the 1852 Act did not initially run with the land …” and "[a]bsent evidence of a 'corporate relationship,'... a successor to the [timely chartered company] ... has not satisfied the condition precedent to obtaining a right-of-way under the 1852 Act." (citation omitted).

In addition, the 1852 federal law required railroad companies to notify the government of their designated routes and this was not met at the time the right-of-way was allegedly granted by the federal government.

Furthermore, the court determined that the railway was not abandoned in the Milwaukee Road bankruptcy proceedings. The Keeses contended that the issue ordered by the bankruptcy court granting the Milwaukee Road trustee authority to abandon the railway was a declaration that the railway was abandoned. However, the appellate court stated that the order “merely gave the Milwaukee Road trustee authority to accomplish that task” and further action would be necessary for abandonment.

Second, the appellate court held that the circuit court did not err when it applied the twenty-year adverse possession statute as opposed to the ten-year “color of title” statute the Keeses relied upon in their claim. The court determined that the Keeses could not bring their claim under color of title as the land contract specifically excludes “existing highways, easements and rights of way of record” from the grant. In addition, the court reasoned, the many claimed uses of the land (walking, skiing, horseback riding, flower cultivation, and so on…) were sporadic and did not amount to exclusively adversely possessing the land.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Mon, 11/04/2013 - 3:40pm