893.21
893.21
Effect of military exemption from civil process. The time during which any resident of this state has been exempt from the service of civil process on account of being in the military service of the United States or of this state, shall not be taken as any part of the time limited by law for the commencement of any civil action in favor of or against such person.
893.21 History
History: 1979 c. 323.
893.21 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.32 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.22
893.22
Limitation in case of death. If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced by the person's representatives after the expiration of that time and within one year from the person's death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced after the expiration of that time and within one year after the issuing, within this state, of letters testamentary or other letters authorizing the administration of the decedent's estate.
893.22 History
History: 1979 c. 323;
2001 a. 102.
893.22 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.34 renumbered for more logical placement in restructured ch. 893 and revised for the purpose of clarity only. [Bill 326-A]
893.22 Annotation
This section does not provide a one-year extension of the statute of limitations from when a creditor, or another, petitions for probate of the decedent's estate under s. 856.07. The section only applies when a person entitled to bring the action dies with an existing claim that has less than one year remaining on the period of limitations. In such cases, the period of limitations is extended for one year, which begins to run upon the person's death. Kurt Van Engel Commission Co., Inc. v. Zingale, 2005 WI App 82,
280 Wis. 2d 777,
696 N.W.2d 280,
04-1900. See also Walberg v. St. Francis Home, Inc. 2005 WI 64,
281 Wis. 2d 99,
697 N.W.2d 36,
03-2164.
893.23
893.23
When action stayed. When the commencement of an action is stayed by injunction or statutory prohibition the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.
893.23 History
History: 1979 c. 323.
893.23 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.36 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.23 Annotation
The interplay between ss. 893.23 and 893.80 creates a statute of limitations equal to 3 years and 120 days when filing a claim under s. 893.80. Colby v. Columbia County,
202 Wis. 2d 342,
550 N.W.2d 124 (1996),
93-3348.
ACTIONS CONCERNING REAL OR
PERSONAL PROPERTY
Subch. III of ch. 893 Note
Judicial Council Committee's Note, 1979: This subchapter assembles sections affecting real or personal property in a single location in ch. 893. It revises some present provisions; rearranges others; adds a 7-year limitation statute under certain circumstances and a codification of case-law relating to obtaining prescriptive rights by adverse user; and deletes several present sections considered unnecessary.
Subch. III of ch. 893 Annotation
Notes following the sections of the subchapter explain the rearrangements, changes, and additions. However, specific discussion of those sections eliminated follows:
Subch. III of ch. 893 Annotation
(1) Previous ss. 893.02 and 893.03 were judged duplicative of the principal operative sections and possibly confusing. Nelson v. Jacobs, 99 Wis. 547, 75 N.W. 406 (1898), appears to rely in part on these sections for the proposition that one who has adversely possessed for 20 years has marketable title which can be forced on a vendee who objects, even though not established of record. This is undesirable and contrary to current understanding; see Baldwin v. Anderson,
40 Wis. 2d 33,
161 N.W.2d 553 (1968). In addition, Zellmer v. Martin, 157 Wis. 341, 147 N.W. 371 (1914) suggests that these sections may mean that 20 years of continuous disseisin of a true owner may bar that owner even if the claiming adverse possessor has not possessed in one of the ways required by previous s. 893.09. This may be confusing, since the language of previous s. 893.09 precluded other forms of possession under the 20-year statute. Other than as here noted, ss. 893.02 and 893.03 have been rarely cited and are not significant. In view of the presumption of possession by the true owner provided by previous s. 893.05, which this subchapter retains, previous ss. 893.02 and 893.03 contributed no needed substance to the subchapter.
Subch. III of ch. 893 Annotation
(2) Previous s. 893.075 was enacted as a companion to s. 700.30, which was held unconstitutional in Chicago & N.W. Transportation Co. v. Pedersen,
80 Wis. 2d 566,
259 N.W.2d 316 (1977). No new s. 700.30 has been enacted. Therefore, s. 893.075 is surplusage and repealed.
Subch. III of ch. 893 Annotation
(3) The ancient doctrine of "descent cast" is no longer of practical importance, especially since the passage of the new probate code in 1971. Therefore, the need for a response to that doctrine in previous s. 893.13 has disappeared, and the section has been repealed.
Subch. III of ch. 893 Annotation
(4) Previous s. 893.18 (7) limited the time within which title to real estate could be attacked based on a defect in the jurisdiction of a court of record which entered a judgment affecting the title. That section is repealed as its application is preempted by s. 706.09 (1) (g). [Bill 326-A]
893.24
893.24
Adverse possession; section lines. 893.24(1)
(1) A written instrument or judgment that declares the boundaries of real estate adversely possessed under s.
893.29, 1995 stats., or
s. 893.25,
893.26 or
893.27 does not affect any section line or any section subdivision line established by the United States public land survey or any section or section subdivision line based upon it.
893.24(2)
(2) Occupation lines that the court declares to be property lines by adverse possession under s.
893.29, 1995 stats., or
s. 893.25,
893.26 or
893.27 shall, by order of the court, be described by a retraceable description providing definite and unequivocal identification of the lines or boundaries. The description shall contain data of dimensions sufficient to enable the description to be mapped and retraced and shall describe the land by government lot, recorded private claim, quarter-quarter section, section, township, range and county, and by metes and bounds commencing with a corner marked and established by the United States public land survey or a corner of the private claim.
893.24 History
History: 1985 a. 247;
1997 a. 108.
893.25
893.25
Adverse possession, not founded on written instrument. 893.25(1)(1) An action for the recovery or the possession of real estate and a defense or counterclaim based on title to real estate are barred by uninterrupted adverse possession of 20 years, except as provided by
s. 893.14 and
893.29. A person who, in connection with his or her predecessors in interest, is in uninterrupted adverse possession of real estate for 20 years, except as provided by
s. 893.29, may commence an action to establish title under
ch. 841.
893.25(2)
(2) Real estate is possessed adversely under this section:
893.25(2)(a)
(a) Only if the person possessing it, in connection with his or her predecessors in interest, is in actual continued occupation under claim of title, exclusive of any other right; and
893.25(2)(b)
(b) Only to the extent that it is actually occupied and:
893.25 History
History: 1979 c. 323.
893.25 Note
Judicial Council Committee's Note, 1979: This provision collects in one section all material relating to 20-year adverse possession, without change in substance. Previous ss. 893.08 and 893.09, together with part of previous s. 893.10, are integrated here. The words "and a defense or counterclaim based on title to real estate" are added in subsection (1) to assure that deletion of present section 893.03 results in no loss of substance. This section covers the substance of previous s. 893.02, also deleted. Reference to ch. 843 describes the action which an adverse possessor may bring to establish title. The words "in connection with his or her predecessors in interest" are intended to express, but not change, the well-established common law doctrine of "tacking" together periods of possession by adverse possessors in privity with each other. The word "interest" has been substituted for "title" used in previous s. 893.10 (2) because it more accurately expresses the nature of an adverse possessor's rights until the 20-year period has run, and better reflects the substance of the privity required for tacking between successive adverse possessors. There is no requirement of good faith entry under this section. Entry, for example, under a deed known by the adverse possessor to be fraudulent would start this 20-year period running, but not the 10-year period provided by s. 893.26. [Bill 326-A]
893.25 Annotation
Where a survey established that disputed lands were not within the calls of the possessor's deed, the possessor's claim to property was not under color of title by a written instrument. Beasley v. Konczal,
87 Wis. 2d 233,
275 N.W.2d 634 (1979).
893.25 Annotation
Acts that are consistent with sporadic trespass are insufficient to apprise the owner of an adverse claim. Pierz v. Gorski,
88 Wis. 2d 131,
276 N.W.2d 352 (Ct. App. 1979).
893.25 Annotation
When evidence is presented as to the extent of occupancy of only a portion of land, only that portion may be awarded in adverse possession proceedings. Droege v. Daymaker Cranberries, Inc.
88 Wis. 2d 140,
276 N.W.2d 356 (Ct. App. 1979).
893.25 Annotation
A judgment under s. 75.521 to foreclose a tax lien extinguishes all right, title, and interest in the foreclosed property, including claims based on adverse possession. Published notice was sufficient. Leciejewski v. Sedlak,
116 Wis. 2d 629,
342 N.W.2d 734 (1984).
893.25 Annotation
A railroad right-of-way is subject to adverse possession, the same as other lands. Maiers v. Wang,
192 Wis. 2d 115,
531 N.W.2d 54 (1995).
893.25 Annotation
Land may be acquired by adverse possession, without adverse intent, when the true owner acquiesces in another's possession for 20 years. If adjoining owners take from a common grantor by lot number, but the grantees purchased with reference to a boundary actually marked on the ground, the marked boundary, regardless of time, controls. Arnold v. Robbins,
209 Wis. 2d 428,
563 N.W.2d 178 (1997),
96-0570.
893.25 Annotation
The 20-year period under this section need not be the 20 years immediately preceding the filing of the court action. Harwick v. Black,
217 Wis. 2d 691,
580 N.W.2d 354 (Ct. App. 1998),
97-1108.
893.25 Annotation
The use of a surveyor is not required to establish the boundaries of the contested property as long as there is evidence that provides a reasonably accurate basis for the circuit court to know what property is in dispute. Camacho v. Trimble Irrevocable Trust, 2008 WI App 112, ___ Wis. 2d ___, ___ N.W.2d ___,
07-1472.
893.26
893.26
Adverse possession, founded on recorded written instrument. 893.26(1)(1) An action for the recovery or the possession of real estate and a defense or counterclaim based upon title to real estate are barred by uninterrupted adverse possession of 10 years, except as provided by
s. 893.14 and
893.29. A person who in connection with his or her predecessors in interest is in uninterrupted adverse possession of real estate for 10 years, except as provided by
s. 893.29, may commence an action to establish title under
ch. 841.
893.26(2)
(2) Real estate is held adversely under this section or
s. 893.27 only if:
893.26(2)(a)
(a) The person possessing the real estate or his or her predecessor in interest, originally entered into possession of the real estate under a good faith claim of title, exclusive of any other right, founded upon a written instrument as a conveyance of the real estate or upon a judgment of a competent court;
893.26(2)(b)
(b) The written instrument or judgment under which entry was made is recorded within 30 days of entry with the register of deeds of the county where the real estate lies; and
893.26(2)(c)
(c) The person possessing the real estate, in connection with his or her predecessors in interest, is in actual continued occupation of all or a material portion of the real estate described in the written instrument or judgment after the original entry as provided by
par. (a), under claim of title, exclusive of any other right.
893.26(3)
(3) If
sub. (2) is satisfied all real estate included in the written instrument or judgment upon which the entry is based is adversely possessed and occupied under this section, except if the real estate consists of a tract divided into lots the possession of one lot does not constitute the possession of any other lot of the same tract.
893.26(4)
(4) Facts which constitute possession and occupation of real estate under this section and
s. 893.27 include, but are not limited to, the following:
893.26(4)(a)
(a) Where it has been usually cultivated or improved;
893.26(4)(b)
(b) Where it has been protected by a substantial enclosure;
893.26(4)(c)
(c) Where, although not enclosed, it has been used for the supply of fuel or of fencing timber for the purpose of husbandry or for the ordinary use of the occupant; or
893.26(4)(d)
(d) Where a known farm or single lot has been partly improved the portion of the farm or lot that is left not cleared or not enclosed, according to the usual course and custom of the adjoining country, is considered to have been occupied for the same length of time as the part improved or cultivated.
893.26(5)
(5) For the purpose of this section and
s. 893.27 it is presumed, unless rebutted, that entry and claim of title are made in good faith.
893.26 Note
Judicial Council Committee's Note, 1979: This section collects in one place all material relating to 10-year adverse possession, integrating previous ss. 893.06 and 893.07, together with part of previous s. 893.10. Several language changes are the same as in s. 893.25, and the comments in the note following that section apply here. Three changes may work some change in substance, and should be particularly noted:
893.26 Annotation
Sub. (2) (a) requires original entry on the adversely possessed premises to be "in good faith," language not included in the previous s. 893.06. The addition is designed to make clear that one who enters under a deed, for example, knowing it to be forged or given by one not the owner, should not have the benefit of the 10-year statute. Some Wisconsin case law (contrary to the nationwide weight of authority) suggests otherwise, and the change is intended to reverse these cases. See Polanski v. Town of Eagle Point,
30 Wis. 2d 507,
141 N.W.2d 281 (1966); Peters v. Kell,
12 Wis. 2d 32,
106 N.W.2d 407 (1960); McCann v. Welch, 106 Wis. 142, 81 N.W. 996 (1900). Note, however, that good faith is required only at the time of entry, and need not continue for the full 10 years of adverse possession.
893.26 Annotation
Sub. (2) (b) adds a requirement not contained in previous s. 893.10 that the written instrument or judgment under which original entry is made must be recorded within 30 days after the entry.
893.26 Annotation
Sub. (2) (c) adds the requirement that the adverse possession be of all or "a material portion" of the premises described in the written instrument or judgment, replacing "some part" found in previous s. 893.06. This probably represents no change in present law, but is intended to make clear that possession of an insubstantial fragment of land described in a written instrument will not suffice as constructive possession of all the land described. [Bill 326-A]
893.26 Annotation
When a deed granted a right-of-way but the claimed use was of a different strip, no right based on use for 10 years was created. New v. Stock,
49 Wis. 2d 469,
182 N.W.2d 276 (1971).
893.26 Annotation
The doctrine of "tacking" allows an adverse possession claimant to add his or her time of possession to that of a prior adverse possessor if the claimant is in privity with the prior adverse possessor. Adverse possession of land uncovered by the recession of a body of water is discussed. Perpignani v. Vonasek,
139 Wis. 2d 695,
408 N.W.2d 1 (1987).
893.26 Annotation
For purposes of determining a "claim of title," a deed based on a recorded official government survey meets the requirements of this statute. Ivalis v. Curtis,
173 Wis. 2d 751,
496 N.W.2d 690 (Ct. App. 1993).
893.27
893.27
Adverse possession; founded on recorded title claim and payment of taxes. 893.27(1)
(1) An action for the recovery or the possession of real estate and a defense or counterclaim based upon title to real estate are barred by uninterrupted adverse possession of 7 years, except as provided by
s. 893.14 or
893.29. A person who in connection with his or her predecessors in interest is in uninterrupted adverse possession of real estate for 7 years, except as provided by
s. 893.29, may commence an action to establish title under
ch. 841.
893.27(2)
(2) Real estate is possessed adversely under this section as provided by
s. 893.26 (2) to
(5) and only if:
893.27(2)(a)
(a) Any conveyance of the interest evidenced by the written instrument or judgment under which the original entry was made is recorded with the register of deeds of the county in which the real estate lies within 30 days after execution; and
893.27(2)(b)
(b) The person possessing it or his or her predecessor in interest pays all real estate taxes, or other taxes levied, or payments required, in lieu of real estate taxes for the 7-year period after the original entry.
893.27 History
History: 1979 c. 323.
893.27 Note
Judicial Council Committee's Note, 1979: This section is new. It provides a 7-year limitation period in favor of an adverse possessor who has met all the requirements for the 10-year provision and who also has a recorded chain of title and paid the property taxes for the full 7 years. Many states provide similar or shorter periods under the same circumstances, while Wisconsin has given no statutory recognition to the importance of paying the taxes. One valuable role of adverse possession statutes is in title clearance. When a party enters in good faith, maintains possession, records all conveyances within 30 days and pays taxes for 7 years, the likelihood of genuine competing claims is small, and the gains in assurance of title from this section may well be significant. Some language from ss. 893.25 and 893.26 is repeated here; see notes to those sections for explanation. [Bill 326-A]
893.28
893.28
Prescriptive rights by adverse user. 893.28(1)
(1) Continuous adverse use of rights in real estate of another for at least 20 years, except as provided in
s. 893.29 establishes the prescriptive right to continue the use. Any person who in connection with his or her predecessor in interest has made continuous adverse use of rights in the land of another for 20 years, except as provided by
s. 893.29, may commence an action to establish prescriptive rights under
ch. 843.
893.28(2)
(2) Continuous use of rights in real estate of another for at least 10 years by a domestic corporation organized to furnish telegraph or telecommunications service or transmit heat, power or electric current to the public or for public purposes, by a cooperative association organized under
ch. 185 or
193 to furnish telegraph or telecommunications service, or by a cooperative organized under
ch. 185 to transmit heat, power or electric current to its members, establishes the prescriptive right to continue the use, except as provided by
s. 893.29. A person who has established a prescriptive right under this subsection may commence an action to establish prescriptive rights under
ch. 843.
893.28(3)
(3) The mere use of a way over unenclosed land is presumed to be permissive and not adverse.
893.28 Annotation
Once the right to a prescriptive easement has accrued by virtue of compliance with sub. (1) for the requisite 20-year period, the holder of the prescriptive easement must comply with the recording requirements within 30 years under s. 893.33 (2) or lose the right to continued use. Schauer v. Baker, 2004 WI App 41,
270 Wis. 2d 714,
678 N.W.2d 258,
02-1674.
893.28 Annotation
As sub. (1) is written, it is more natural to read "of another" to modify "real estate," rather than "rights." That is, by continuous use, one may gain a prescriptive right in another's real estate. The real estate in which a right is gained must belong to another person. A setback restriction in an owner's deed was not a "right in real estate" belonging to "another" that the owner could use adversely by continually violating the setback. Hall v. Liebovich Living Trust, 2007 WI App 112,
300 Wis. 2d 725,
731 N.W.2d 649,
06-0040.
893.28 Annotation
Sub. (2) applies to permissive uses. An agreement that permitted an electric utility to construct and maintain electrical poles and transmission lines on a landowner's property that was revocable upon 30 days' written notice gave the utility "rights in real estate of another" under sub. (2). Use of the property for more than 10 years by the utility established the prescriptive right to continue the use. Williams v. American Transmission Company, LLC, 2007 WI App 246,
306 Wis. 2d 181,
742 N.W.2d 882,
07-0052.
893.29
893.29
No adverse possession against the state or political subdivisions. 893.29(1)
(1) No title to or interest in real property belonging to the state or a city, village, town, county, school district, sewerage commission, sewerage district or any other unit of government within this state may be obtained by adverse possession, prescription or user under
s. 893.25,
893.26,
893.27 or
893.28 unless the adverse possession, prescription or user continues uninterruptedly for more than 20 years and is based upon a continuously maintained fence line which has been mutually agreed upon by the current landowners.
893.29(2m)
(2m) Subsection (1) does not affect title to or interest in real property obtained by adverse possession, prescription or user under
s. 893.25,
893.26,
893.27 or
893.28 before April 29, 1998.
893.29 Note
Judicial Council Committee's Note, 1979: This section is based on present s. 893.10 (1), but the period for adverse possession against the state is reduced from 40 to 30 [20] years. The previous provision presumably applied to the property of political subdivisions of the state, but this has been made express in this section. Note that regardless of which of ss. 893.25 to 893.28 apply against a private owner, this section requires 30 [20] years for the obtaining of any rights in public land.
893.29 Annotation
Because of the 30-year [20-year] period, adverse possession of the kind described in the 20-year statute is sufficient so that recording and good faith affect only the type of possession required and the amount of land possessed (see s. 893.26 (3) and (4)). Payment of taxes is irrelevant. [Bill 326-A]
893.29 Annotation
Adverse possession provisions have prospective application only. Possession must be taken after the provision goes into effect. Petropoulos v. City of West Allis,
148 Wis. 2d 762,
436 N.W.2d 880 (Ct. App. 1989).
893.29 Annotation
This section does not apply to a railroad. A railroad right-of-way is subject to adverse possession, the same as other lands. Maiers v. Wang,
192 Wis. 2d 115,
531 N.W.2d 54 (1995).
893.30
893.30
Presumption from legal title. In every action to recover or for the possession of real property, and in every defense based on legal title, the person establishing a legal title to the premises is presumed to have been in possession of the premises within the time required by law, and the occupation of such premises by another person shall be deemed to have been under and in subordination to the legal title unless it appears that such premises have been held and possessed adversely to the legal title for 7 years under
s. 893.27, 10 years under
s. 893.26 or 20 years under
s. 893.25, before the commencement of the action.
893.30 History
History: 1979 c. 323.
893.30 Note
Judicial Council Committee's Note, 1979: This section is based on previous s. 893.05. The last sentence is expanded to recognize the new 7-year statute in s. 893.27. The words "and in every defense based on legal title" are added to make clear that the presumption of this section applies whether the holder of legal title is suing to recover the land, or a claiming adverse possessor is suing to establish title to it. [Bill 326-A]
893.30 Annotation
The lowest burden of proof applies in adverse possession cases. Kruse v. Horlamus Industries,
130 Wis. 2d 357,
387 N.W.2d 64 (1986).
