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 Therefore, s. 893.075 is surplusage and repealed.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 Therefore, the need for a response to that doctrine in previous s. 893.13 has disappeared, and the section has been repealed.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 appraise the owner of an adverse claim. Pierz v. Gorski,
88 Wis. 2d 131,
276 N.W.2d 352 (Ct. App. 1979).
893.25 Annotation
Where 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 rights, titles and interests 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
The 20-year period under this section need not be be the 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).
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 is created. New v. Stock,
49 Wis. 2d 469,
182 N.W.2d 276.
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 possession if the claimant is in privity with the prior adverse possessor. Adverse possession of relicted land (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 upon 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, or a cooperative association organized under
ch. 185 to furnish telegraph or telecommunications service or 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 History
History: 1979 c. 323;
1985 a. 297 s.
76.
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).
893.31
893.31
Tenant's possession that of landlord. Whenever the relation of landlord and tenant exists between any persons the possession of the tenant is the possession of the landlord until the expiration of 10 years from the termination of the tenancy; or if there is no written lease until the expiration of 10 years from the time of the last payment of rent, notwithstanding that the tenant may have acquired another title or may have claimed to hold adversely to his or her landlord. The period of limitation provided by
s. 893.25,
893.26 or
893.27 shall not commence until the period provided in this section expires.
893.31 History
History: 1979 c. 323.
893.31 Note
Judicial Council Committee's Note, 1979: This is present s. 893.11 renumbered for more logical placement and revised slightly for the purpose of textual clarity only. It complements and supplements s. 893.30 (previous s. 893.05). The 10-year period is retained as the period during which adverse possession (for any statutory period) cannot begin to run in favor of a tenant. Adoption of a 7-year statute in s. 893.27 does not affect the policy of this section. [Bill 326-A]
893.32
893.32
Entry upon real estate, when valid as interruption of adverse possession. No entry upon real estate is sufficient or valid as an interruption of adverse possession of the real estate unless an action is commenced against the adverse possessor within one year after the entry and before the applicable adverse possession period of limitation specified in this subchapter has run, or unless the entry in fact terminates the adverse possession and is followed by possession by the person making the entry.
893.32 History
History: 1979 c. 323.
893.32 Note
Judicial Council Committee's Note, 1979: This section replaces previous s. 893.04, which was very difficult to interpret with certainty. No change in substance is intended from the most reasonable probable interpretation of s. 893.04; indeed, the intention is to articulate that policy with greater clarity, consistent with the one decided case applying that section, Brockman v. Brandenburg, 197 Wis. 51, 221 N.W. 397 (1928). [Bill 326-A]
893.33
893.33
Action concerning real estate. 893.33(1)
(1) In this section "purchaser" means a person to whom an estate, mortgage, lease or other interest in real estate is conveyed, assigned or leased for a valuable consideration.
893.33(2)
(2) Except as provided in
subs. (5) to
(9), no action affecting the possession or title of any real estate may be commenced, and no defense or counterclaim may be asserted, by any person, the state or a political subdivision or municipal corporation of the state after January 1, 1943, which is founded upon any unrecorded instrument executed more than 30 years prior to the date of commencement of the action, or upon any instrument recorded more than 30 years prior to the date of commencement of the action, or upon any transaction or event occurring more than 30 years prior to the date of commencement of the action, unless within 30 years after the execution of the unrecorded instrument or within 30 years after the date of recording of the recorded instrument, or within 30 years after the date of the transaction or event there is recorded in the office of the register of deeds of the county in which the real estate is located, some instrument expressly referring to the existence of the claim or defense, or a notice setting forth the name of the claimant, a description of the real estate affected and of the instrument or transaction or event on which the claim or defense is founded, with its date and the volume and page of its recording, if it is recorded, and a statement of the claims made. This notice may be discharged the same as a notice of pendency of action. Such notice or instrument recorded after the expiration of 30 years shall be likewise effective, except as to the rights of a purchaser of the real estate or any interest in the real estate which may have arisen after the expiration of the 30 years and prior to the recording.
893.33(3)
(3) The recording of a notice under
sub. (2), or of an instrument expressly referring to the existence of the claim, extends for 30 years from the date of recording the time in which any action, defense or counterclaim founded upon the written instrument or transaction or event referred to in the notice or recorded instrument may be commenced or asserted. Like notices or instruments may thereafter be recorded with the same effect before the expiration of each successive 30-year period.
893.33(4)
(4) This section does not extend the right to commence any action or assert any defense or counterclaim beyond the date at which the right would be extinguished by any other statute.
893.33(5)
(5) This section bars all claims to an interest in real property, whether rights based on marriage, remainders, reversions and reverter clauses in covenants restricting the use of real estate, mortgage liens, old tax deeds, death and income or franchise tax liens, rights as heirs or under will, or any claim of any nature, however denominated, and whether such claims are asserted by a person sui juris or under disability, whether such person is within or without the state, and whether such person is natural or corporate, or private or governmental, unless within the 30-year period provided by
sub. (2) there has been recorded in the office of the register of deeds some instrument expressly referring to the existence of the claim, or a notice pursuant to this section. This section does not apply to any action commenced or any defense or counterclaim asserted, by any person who is in possession of the real estate involved as owner at the time the action is commenced. This section does not apply to any real estate or interest in real estate while the record title to the real estate or interest in real estate remains in a railroad corporation, a public service corporation as defined in
s. 201.01, an electric cooperative organized and operating on a nonprofit basis under
ch. 185, or any trustee or receiver of a railroad corporation, a public service corporation or an electric cooperative, or to claims or actions founded upon mortgages or trust deeds executed by that cooperative or corporation, or trustees or receivers of that cooperative or corporation. This section also does not apply to real estate or an interest in real estate while the record title to the real estate or interest in real estate remains in the state or a political subdivision or municipal corporation of this state.
893.33(6)
(6) Actions to enforce easements, or covenants restricting the use of real estate, set forth in any recorded instrument shall not be barred by this section for a period of 40 years after the date of recording such instrument, and the timely recording of an instrument expressly referring to the easements or covenants or of notices pursuant to this section shall extend such time for 40-year periods from the recording.
893.33(6m)
(6m) This section does not apply to any interest in a conservation easement under
s. 700.40.
893.33 Note
NOTE: See note following s. 700.40.
893.33(7)
(7) Only the following may assert this section as a defense or in an action to establish title:
