Wilcox v. Estate of Hines (WI)

EDITOR’S NOTE: See Wilcox v Estate of Hines (Wisconsin Supreme Court, 2014) for the most current decision.

Summary: In the context of adverse possession, hostile intent refers to a possessor’s actions and not to a possessor’s subjective belief.

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Wilcox v. Estate of Hines, 2013 WI App 68, 348 Wis. 2d 124, 831 N.W.2d 791 (Wis. Ct. App. 2013).

Facts: Richard and Susan Wilcox claimed title by adverse possession to a 25-foot-wide strip of land separating their property from Lake Delton. The disputed narrow strip of land has a complicated history of ownership. The Wilcoxes’ predecessors in interest, Ronald and Mary Soma, understood that they did not own the disputed lakefront strip. Nevertheless, the Somas took steps, from the time they first acquired the property in 1963, to exclude others from using the strip of land. These steps included the erection of a “no trespassing” sign, indicating to others that the lakefront strip was private property, and mowing and otherwise maintaining the lakefront strip as if they were the true owners. The Somas mistakenly believed the lakefront strip belonged to a company that operated the “Wisconsin Ducks” tours. The Somas had sought and received permission by one of Wisconsin Ducks’ managers to build a pier on the lakefront strip, to push some rocks to the water’s edge, to bring in dirt, and to plant grass seed on the land. At some point after 1982, the Somas once challenged their property tax assessment on the basis that they did not own the lakefront strip, but was declined a reduction in taxes.

In 2002, the Somas sold their property to the Wilcoxes and told them that the sale did not include the lakefront strip because the Somas did not own that property. Nevertheless, the Wilcoxes continued to maintain and improve the lakefront strip after the sale.

The trial court concluded that the Somas lacked the requisite hostile intent for adverse possession because their actions were not hostile to any ownership interest due to the fact that they had sought permission to make improvements on the land from those whom they believed to be the owners and later affirmatively asserted that the property was not theirs.

Holding: Reversed and remanded.On appeal, the court focused its attention on the Somas’ time as possessors of the lakefront strip of land because the titleholders did not argue any relevant aspect of possession changed when the Wilcoxes purchased the property. The court concluded that the circuit court erred in determining that the Somas’ subjective belief that they did not own the lake front strip and had no intention of possessing it was relevant.

The court first reiterated statutory and common law regarding adverse possession in Wisconsin. It stated that adverse possession is the use of the land that is “open, notorious, visible, exclusive, hostile and continuous, such as would apprise a reasonably diligent landowner and the public that the possessor claims the land as his own.” The court further stated, in disagreement with the trial court, that “hostile” in the context of adverse possession “refers to a possessor’s actions, not a possessor’s belief.” The court reasoned that the subjective intent of the parties is irrelevant in a claim for adverse possession.  The court stated that what is relevant is whether the use of the property gives the appearance that the possessor claims an exclusive right to the property, which was satisfied in the case at hand.

Because the Somas did not have permission from the true owners to make improvements to the land, their communications with Wisconsin Ducks and the tax assessor are irrelevant, as is their belief that they did not own the property. The court reasoned that because the titleholders acknowledged the Somas used, maintained, and kept others off the property (and the Wilcoxes continued those practices), the requirements of adverse possession were satisfied. The court concluded that the Wilcoxes established adverse possession of the lakefront strip of land. However, the court did limit its ruling by making clear that they did not hold that the subjective intent of a possessor is never relevant. Rather the court was applying a general rule.

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By: ATG Underwriting Department | Posted on: Wed, 09/04/2013 - 10:34am