A dispute over a strip of lakefront property in Lake Delton has made its way to the top court in the state.
The Wisconsin Supreme court will hear the case of Richard and Susan Wilcox v. Estate of Ralph Hines, Estate of William Newman and Lake Delton Holdings, LLC, concerning ownership of the 25-foot wide strip of land along Lake Delton’s shore.
The case concerns the Wisconsin statutes dealing with adverse possession. According to statute 893.25, “An action for the recovery or possession of real estate and a defense or counterclaim based on title to real estate are barred by uninterrupted adverse possession of 20 years.”
“This is a law that goes back to England and maybe it goes back to even Roman law and I think — in terms of at least the early founding of our country — the notion was that we wanted to ensure you had land that was going to be used productively. Lots of times you had people who had titles to land and there was a potential that a lot of that land could be sitting idle and not used efficiently,” said Thomas Mitchell, professor at the University of Wisconsin Law School.
If someone treats the land as if they own it, by caretaking, making improvements or other actions they can assume ownership after 20 years if the actions are a hostile attempt to takeover the land and the titleholder does not dispute ownership during that period.
Mitchell said that adverse possession claims in states throughout the country are still common, though they usually involve small strips of land. The most common dispute involves boundaries between neighbors much like the current case before the court. The current case brings some unique issues that the court will settle.
In 1963 Ronald and Mary Soma purchased the property directly next to the disputed land. While the Somas knew they did not own the land, they put up signs that said, “no trespassing” and told people that the land was private property.
During this period of time the Somas believed that the land was owned by a company that operated the Wisconsin Ducks tours. They asked for permission from the manager of the company when putting out a pier on the lakefront strip and making improvements to area, according to court records.
The land was sold to Richard and Susan Wilcox in 2002 with the understanding that the sale did not include the lakefront strip of land. The Wilcoxes continued to use the land as their own as the Somas had done, according to court records.
It turns out that the Wisconsin Ducks did not own the disputed piece of land. The land is comprised of two parcels, one owned by William Newman who died in 1944 and the other owned by Ralph Hines who died in 1977. The parcels were passed down to each ones estate and eventually sold to Lake Delton Holdings, LLC — the current title holders, according to the court records.
The circuit court ruled that since the Somas believed that they had permission from the land owners to work on the property it was not adverse possession. Adverse possession statutes maintain that “the use of the land must be 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 of Appeals reversed the decision stating that the Somas asking for permission from who they believed to be the land owners and knowing that they did not own the property was irrelevant. The court ruled that only the actions and the appearance to outside parties is what matters. The Somas and Wilcoxes performing actions that would be objectively taken by the public as claims of ownership was enough to invoke adverse possession, according to the court.
The key issue in the case will be whether subjective intent matters for an adverse possession case. Mitchell said that Wisconsin, like the majority of states, has stopped using intent in these cases because usually the facts are not very clear and it’s difficult for a court to get inside a persons mind and know what they are thinking.
“Though the facts of this case are compelling, if Wisconsin resurrects the intent requirement, what about the great majority of cases where the facts on intent are at best ambiguous? Are we going to be back in the business of getting in the minds of someone who was using someone else’s property when there is no written record of what they were actually thinking?” Mitchell said.
The facts are pretty clear in the current case that the Somas never intended to make a claim of title which could lead to the court carving out a special exception, Mitchell said. The court could say that intent does not matter unless totally compelling and explicit evidence of that intent is available and produced, he said.
“I could see them either maintaining the precedent that intent is not a requirement or carving out some type of exception. Perhaps it would be less likely that they would just overturn the more recent precedent that intent is irrelevant and resurrect in a full blown way the intent requirement,” Mitchell said. “However, that is just my guess.”
There is no set time for the case to start, but it will most likely be resolved by June as Supreme Court cases are usually settled during the session they are brought forth, said Tom Sheehan, court information officer.