Wilcox v. Estate of Hines (WI)

Summary: Subjective intent is relevant in an adverse possession claim to rebut the presumption of hostility that arises when all other elements of adverse possession are satisfied.


Wilcox v. Estate of Hines, 2014 WI 60, 849 N.W.2d 280, reconsideration denied (Wis. 2014).


Go to full opinion.


Facts: In 2002, the Wilcoxes purchased a parcel of property from the Somas near Lake Delton in Sauk County. There is a 25-foot wide strip of land running between the border of the property and Lake Delton, and that strip has been present even before the Somas purchased the property. The strip originally belonged to William Newman who eventually sold half of the strip to Ralph Hines. Newman and Hines eventually died and the remaining parcel of the strip went into their respective estates.

When the Somas bought the property, they mistakenly believed that a company that provided boat tours of Lake Delton owned the strip, so they sought permission from the company to access the strip, instead of the estates of Newman or Hines. Before the Wilcoxes purchased the property in 2002, the Somas informed them that the strip was not part of the sale, but that the Wilcoxes would have a right of foot traffic across it. Nevertheless, from 2002, the Wilcoxes maintained the strip and added improvements.

In 2011, the Wilcoxes brought a claim of title by adverse possession against the Hines estate for the strip. The Circuit Court found that “the Wilcoxes, in conjunction with their predecessors in interest, had met their burden of proof on the open and visible elements of adverse possession[,]” but “failed to establish the elements of exclusive, hostile, notorious, and continuous possession.” The Court of Appeals reversed the lower court after determining that courts should consider “the appearance that a possessor’s use would give to the true owner and not the actual subjective intent of the party.” The titleholders of the strip appealed.


Holding: Reversed. On appeal, the Wisconsin Supreme Court held that the Wilcoxes failed to establish adverse possession of the lakefront strip because the Somas had expressly disclaimed ownership of the strip when they requested permission to access and make improvements on the strip. Even though a possessor may “tack” time of possession to that of a predecessor in interest, the Wilcoxes cannot establish adverse possession because the Somas lacked the subjective intent to adversely possess the lakefront strip. Furthermore, the court held that when considering a claim to title by adverse possession, subjective intent is relevant.


Opinion Year: 
By: ATG Underwriting Department | Posted on: Mon, 06/15/2015 - 1:36pm