893.16(5)(c)
(c) A cause of action which accrues prior to July 1, 1980.
893.16 History
History: 1979 c. 323.
893.16 Note
Judicial Council Committee's Note, 1979: This section is based on present ss. 893.135, 893.33, 893.37 and 893.38. Previous ss. 893.135 and 893.33 stated that the time of disability is not counted as the running of a statute of limitation and further stated that an action could be brought within a specified time after the disability ceased. This is inherently inconsistent and is replaced in s. 893.16 by the simple provision that the action may be commenced within 2 years after the disability ceases. Changes from previous s. 893.135 are:
893.16 Annotation
(a) The period within which to sue after the period of disability ends is reduced from 5 years to 2 years.
893.16 Annotation
(b) The maximum extension time available to those under disability of insanity or imprisonment is limited to 5 years. This means that such individuals must sue within 5 years after the basic applicable statute of limitations would have run against one not under disability, or within 2 years after the disability ends, whichever period is shorter.
893.16 Annotation
(c) The phrase in previous s. 893.135, "at the time such title shall first descend or accrue" is changed to "at the time the cause of action accrues," and this is reinforced by subsection (3). Despite appearances, this represents no change in substance because of the decision in Swearingen v. Roberts, 39 Wis. 462 (1876).
893.16 Annotation
Other changes include:
893.16 Annotation
(a) A specific provision provides that no limitation period is shortened by the application of this section. This represents no substantive change.
893.16 Annotation
(b) In view of the 5-year extension provision reasons for excluding those imprisoned for life from the benefits of the disability provision disappear and the exclusion has been dropped.
893.16 Annotation
(c) The period within which to sue provided in previous s. 893.33 has been increased from one year to 2 years.
893.16 Annotation
To illustrate some of the effects of these revisions:
893.16 Annotation
(a) If a statute of limitation has run on a cause of action of a minor for a personal injury the minor would have one year to commence an action after attaining age 18 under previous s. 893.33. Under s. 893.16 the minor has 2 years to commence an action after attaining age 18.
893.16 Annotation
(b) If a minor has a cause of action affecting title to real estate and the statute of limitation has run the minor has 5 years to commence an action after attaining age 18 under previous s. 893.135. Under s. 893.16 the minor has 2 years to commence the action. [Bill 326-A]
893.16 Annotation
Sub. (1) is effective to toll running of statute of limitation even where, pursuant to 893.07, plaintiff would be barred from bringing suit under applicable foreign law. Scott v. First State Ins. Co., 155 W (2d) 608, 456 NW (2d) 312 (1990).
893.16 Annotation
If a party wishes the benefit of the disability tolling statute, then the party does not get the benefit of the discovery rule. Kilaab v. Prudential Insurance Co. 198 W (2d) 700, 543 NW (2d) 538 (Ct. App. 1995).
893.16 Annotation
Prisoner is entitled to tolling provision under (1) when bringing 42 USC 1983 action. Hardin v. Straub, 490 US 536, 104 LEd 2d 582 (1989).
893.17
893.17
Transition; limitation if disability exists; temporary. 893.17(1)(1) This section does not apply to a cause of action which accrues on or after July 1, 1980.
893.17(2)
(2) If a person entitled to commence any action for the recovery of real property or to make an entry or defense founded on the title to real property or to rents or services out of the same is, at the time such title shall first descend or accrue, either: within the age of 18 years; or insane; or imprisoned on a criminal charge or in execution upon conviction of a criminal offense, for a term less than for life, the time during which such disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action or the making of such entry or defense; but such action may be commenced or entry or defense made, after the time limited and within 5 years after the disability shall cease or after the death of the person entitled, who shall die under such disability; but such action shall not be commenced or entry or defense made after that period.
893.17 History
History: 1971 c. 213 s.
5;
1979 c. 323.
893.17 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.135 of the statutes renumbered for more logical placement into restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action for recovery of real property or to make an entry or defense founded on the title to real property or to its rents or services which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which accrue on or after July 1, 1980. [Bill 326-A]
893.18
893.18
Transition; persons under disability. 893.18(2)
(2) If a person entitled to bring an action mentioned in this chapter, except actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for an escape, or for the recovery of real property or the possession thereof is, at the time the cause of action accrued, either
893.18(2)(a)
(a) Within the age of 18 years, except for actions against health care providers; or
893.18(2)(c)
(c) Imprisoned on a criminal charge or in execution under sentence of a criminal court for a term less than life, the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than 5 years by any such disability, except infancy; nor can it be so extended in any case longer than one year after the disability ceases.
893.18(3)
(3) A disability does not exist, for the purpose of this section, unless it existed when the cause of action accrued.
893.18(4)
(4) When 2 or more disabilities coexist at the time the cause of action accrues the period of limitation does not attach until they all are removed.
893.18 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.33 of the statutes renumbered for more logical placement in restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which occur on or after July 1, 1980. [Bill 326-A]
893.18 Annotation
Because parents' claim arising from injury to minor child was filed along with child's claim within time period for child's claim, parents' claim was not barred by 893.54. Korth v. American Family Ins. Co., 115 W (2d) 326, 340 NW (2d) 494 (1983).
893.18 Annotation
Parent's claim for negligent infliction of emotional distress arising from same act as child's injury benefits from the child's tolling period. Jendrzjek v. Tschopp-Durch-Camastral, 755 F Supp. 1162 (1991).
893.19
893.19
Limitation when person out of state. 893.19(1)
(1) If a person is out of this state when the cause of action accrues against the person an action may be commenced within the terms of this chapter respectively limited after the person returns or removes to this state. But the foregoing provision shall not apply to any case where, at the time the cause of action accrues, neither the party against nor the party in favor of whom the same accrues is a resident of this state; and if, after a cause of action accrues against any person, he or she departs from and resides out of this state the time of absence is not any part of the time limited for the commencement of an action; provided, that no foreign corporation which files with the department of financial institutions, or any other state official or body, pursuant to the requirements of any applicable statute of this state, an instrument appointing a registered agent as provided in
ch. 180, a resident or any state official or body of this state, its attorney or agent, on whom, pursuant to such instrument or any applicable statute, service of process may be made in connection with such cause of action, is deemed a person out of this state within the meaning of this section for the period during which such appointment is effective, excluding from such period the time of absence from this state of any registered agent, resident agent or attorney so appointed who departs from and resides outside of this state.
893.19(2)
(2) This section shall not apply to any person who, while out of this state, may be subjected to personal jurisdiction in the courts of this state on any of the grounds specified in
s. 801.05.
893.19 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.30 renumbered for more logical placement in restructured ch. 893 and revised for purposes of clarity only. [Bill 326-A]
893.19 Annotation
Validity of defense, under s. 893.205 (1), 1969 stats., of bar to the action by the North Carolina 3-year limitation statute, is determined in light of analysis of North Carolina products liability case law. Central Mut. Ins. Co. v. H. O., Inc. 63 W (2d) 54, 216 NW (2d) 239.
893.20
893.20
Application to alien enemy. When a person is an alien subject or citizen of a country at war with the United States the time of the continuance of the war is not a part of the time limited for the commencement of the action.
893.20 History
History: 1979 c. 323.
893.20 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.31 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
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 of administration.
893.22 History
History: 1979 c. 323.
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]
893.23
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 s. 893.23 and s. 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 W (2d) 342, 550 NW (2d) 124 (1996).
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. 893.25,
893.26,
893.27 or
893.29 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. 893.25,
893.26,
893.27 or
893.29 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.
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
Exceptions to the 20-year rule discussed. Buza v. Wojtalewicz, 48 W (2d) 557, 180 NW (2d) 556.
893.25 Annotation
See note to 893.33, citing Leimert v. McCann, 79 W (2d) 289, 255 NW (2d) 526.
893.25 Annotation
Grantor can assert adverse possession against grantee. Lindl v. Ozanne, 85 W (2d) 424, 270 NW (2d) 249 (Ct. App. 1978).
893.25 Annotation
Where survey established that disputed lands were not within calls of possessor's deed, possessor's claim to property was not under color of title by written instrument. Beasley v. Konczal, 87 W (2d) 233, 275 NW (2d) 634 (1979).
893.25 Annotation
Acts which are consistent with sporadic trespass are insufficient to appraise owner of adverse claim. Pierz v. Gorski, 88 W (2d) 131, 276 NW (2d) 352 (Ct. App. 1979).
893.25 Annotation
Where evidence is presented as to extent of occupancy of only portion of land, only that portion may be awarded in adverse possession proceedings. Droege v. Daymaker Cranberries, Inc. 88 W (2d) 140, 276 NW (2d) 356 (Ct. App. 1979).
893.25 Annotation
See note to 75.521, citing Leciejewski v. Sedlak, 116 W (2d) 629, 342 NW (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 W (2d) 115, 531 NW (2d) 54 (1995).
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.
