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 Note
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).
893.29 Annotation
In the absence of an express provision to the contrary, one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and re-creation. Department of Natural Resources v. Building and All Related or Attached Structures,
2011 WI App 119,
336 Wis. 2d 642,
803 N.W.2d 86,
10-2076.
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, a natural gas company, as defined in
15 USC 717a (6), or any trustee or receiver of a railroad corporation, a public service corporation, an electric cooperative, or a natural gas company, or to claims or actions founded upon mortgages or trust deeds executed by that cooperative, corporation, company, or trustees or receivers of that cooperative, corporation, or company. 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:
893.33(7)(b)
(b) A successor of a purchaser of real estate, if the time for commencement of an action or assertion of a defense or counterclaim under this section had expired at the time the rights of the purchaser in the real estate arose.
893.33(8)
(8) If a period of limitation prescribed in s.
893.15 (5), 1977 stats., has begun to run prior to July 1, 1980, an action shall be commenced within the period prescribed by s.
893.15, 1977 stats., or 40 years after July 1, 1980, whichever first terminates.
893.33(9)
(9) Section
893.15, 1977 stats., does not apply to extend the time for commencement of an action or assertion of a defense or counterclaim with respect to an instrument or notice recorded on or after July 1, 1980. If a cause of action is subject to
sub. (8) the recording of an instrument or notice as provided by this section after July 1, 1980 extends the time for commencement of an action or assertion of a defense or counterclaim as provided in this section, except that the time within which the notice or instrument must be recorded if the time is to be extended as to purchasers is the time limited by
sub. (8).
893.33 Note
Judicial Council Committee's Note, 1979 [deleted in part]: This section is based primarily on previous 893.15. That section, an interesting combination of limitations statute and marketable title statute, was of significant help to real estate titles since enactment in 1941. The beneficial effects were strengthened and expanded by enactment of s. 706.09 in 1967. This draft preserves the useful essence of previous s. 893.15, while updating some language. Changes which affect substance are:
893.33 Note
(1) The 60-year provision relating to easements and covenants is reduced to 40 years.
893.33 Note
(2) New subs. (8) and (9) are transitional provisions applying to limitation periods already running the period specified in previous s. 893.15, or the period in this statute, whichever is shorter.
893.33 Note
(5) This draft makes explicit that only those who purchase for valuable consideration after the period of limitation has run or their successors may avail themselves of the benefits of this statute. There is no requirement that the purchaser be without notice, which is to be contrasted with s. 706.09 of the statutes where periods far shorter than 30 years are specified in many subsections. [Bill 326-A]
893.33 Annotation
"Transaction or event" as applied to adverse possession means adverse possession for the time period necessary to obtain title. Upon expiration of this period, the limitation period begins running. Leimert v. McCann,
79 Wis. 2d 289,
255 N.W.2d 526 (1977).
893.33 Annotation
A public entity landowner was not protected from a claim that was older than 30 years. State Historical Society v. Maple Bluff,
112 Wis. 2d 246,
332 N.W.2d 792 (1983).
893.33 Annotation
Hunting and fishing rights are an easement under sub. (6). There is no distinction between a profit and an easement. Figliuzzi v. Carcajou Shooting Club,
184 Wis. 2d 572,
516 N.W.2d 410 (1994).
893.33 Annotation
If a nuisance is continuing, a nuisance claim is not barred by the statute of limitations; but if it is permanent, it must be brought within the applicable statute period. A nuisance is continuing if it is ongoing or repeated but can be abated. A permanent nuisance is one act that causes permanent injury. Sunnyside Feed Co., Inc. v. City of Portage,
222 Wis. 2d 461,
588 N.W.2d 278 (Ct. App. 1998),
98-0709.
893.33 Annotation
The owner-in-possession exception found in sub. (5) does not apply to holders of a prescriptive easement because such holders are not owners. Once the right to a prescriptive easement has accrued by virtue of compliance with s. 893.28 (1) for the requisite 20-year period, the holder of the prescriptive easement must comply with the recording requirements within 30 years under sub. (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.
893.33 Annotation
More specific statutes, govern a municipality's interest in an unrecorded highway and therefore the 30-year recording requirement under this section does not apply to a municipality's interest in an unrecorded highway. City of Prescott v. Holmgren,
2006 WI App 172,
295 Wis. 2d 627,
721 N.W.2d 153,
05-2673.
893.33 Annotation
An easement continuously recorded since 1936 for which no efforts were made to establish and use it until the 1990's was not abandoned. Spencer v. Kosir,
2007 WI App 135,
06-1691.
893.33 Annotation
The label of the documents here — "access easement agreement" — and the fact that each was signed by both parties did not transform the grants of easement into contracts subject to contract law. The plaintiffs alleged that a driveway could not be built on the easements described in the agreements because of a wetland delineation and sought a modification of the easements. This claim for relief was an action to enforce the recorded easements, albeit a modified version, and was therefore governed by s. 893.33 (6), not the contract statute, s. 893.43.
893.33 Annotation
An owner-in-possession exception to the statute of limitations applies to owners by adverse possession. The party who initially adversely possessed land for the necessary period of time is not required to continue to "adversely" possess the disputed property to benefit from the exception. At the end of the applicable adverse possession period, title vests in the adverse possessor and the record owner's title is extinguished. Engel v. Parker,
2012 WI App 18,
339 Wis. 2d 208,
810 N.W.2d 861,
11-0025.
893.33 Annotation
This section provides no exception to the limitations period under sub. (6) for enforcement of an easement against a purchaser who had actual notice of the easement. TJ Auto LLC v. Mr. Twist Holdings LLC,
2014 WI App 81, ___ Wis. 2d ___, ___ N.W.2d ___,
13-2119.
893.33 Annotation
A survey map filed in the office of register of deeds was not a "recording" that renews the limitations period under sub. (6). To record an instrument, s. 59.43 (1) (e) and (f) require the register of deeds to endorse upon it a certificate of the date and time when it was received as well as a number consecutive to the number assigned to the immediately previously recorded or filed instrument. Without those marks of recording by the register of deeds, there is no basis from which a court can presume that the survey map was recorded. TJ Auto LLC v. Mr. Twist Holdings LLC,
2014 WI App 81, ___ Wis. 2d ___, ___ N.W.2d ___,
13-2119.
893.34
893.34
Immunity for property owners. No suit may be brought against any property owner who, in good faith, terminates a tenancy as the result of receiving a notice from a law enforcement agency under
s. 704.17 (1) (c),
(2) (c) or
(3) (b).
893.34 History
History: 1993 a. 139.
893.35
893.35
Action to recover personal property. An action to recover personal property shall be commenced within 6 years after the cause of action accrues or be barred. The cause of action accrues at the time the wrongful taking or conversion occurs, or the wrongful detention begins. An action for damage for wrongful taking, conversion or detention of personal property shall be commenced within the time limited by
s. 893.51.
893.35 History
History: 1979 c. 323.
893.35 Note
Judicial Council Committee's Note, 1979: This section is based on previous s. 893.19 (6), without change in substance, but with some expansion of language to make clear that accrual of the cause of action is not delayed until the person bringing the action learns of the wrongful taking or detention. The limitation with respect to an action for damages is contained in s. 893.51. [Bill 326-A]
893.36
893.36
Secured livestock. 893.36(1g)(d)
(d) "Market agency" means a person regularly engaged in the business of receiving, buying or selling livestock whether on a commission basis or otherwise.
893.36(1m)
(1m) An action by a secured party to recover damages or property, based upon the sale of livestock which when sold is the secured party's collateral, against the market agency which in the ordinary course of business conducts the auction of the livestock, or against a buyer in ordinary course of business shall be commenced within 2 years after the date of sale of the livestock, or be barred, if:
893.36(1m)(a)
(a) The debtor signs or endorses any writing arising from the transaction, including a check or draft, which states that the sale of the livestock is permitted by the secured party; and
893.36(1m)(b)
(b) The secured party does not commence an action, within 2 years after the date of sale of the livestock against the debtor for purposes of enforcing rights under the security agreement or an obligation secured by the security agreement.
893.36(2)
(2) This section does not apply to actions based upon a sale of livestock occurring prior to April 3, 1980, nor to an action by a secured party against its debtor.
Section 893.35 or
893.51 applies to any action described in
sub. (1m) if the limitation described in
sub. (1m) is not applicable.
893.37
893.37
Survey. No action may be brought against an engineer or any professional land surveyor, as defined in
s. 443.01 (7m), to recover damages for negligence, errors, or omission in the making of any survey nor for contribution or indemnity related to such negligence, errors, or omissions more than 6 years after the completion of a survey.
893.37 History
History: 1979 c. 323 s.
3; Stats. 1979 s. 893.36;
1979 c. 355 s.
228; Stats. 1979 s. 893.37;
2013 a. 358.
893.37 Annotation
The discovery rule applies to statutes of limitations that limit the time to sue from the time when the action "accrues," being the time of discovery. The discovery rule does not apply to this section because it is a statute of repose, a statute that specifies the time of accrual (in this statute the time when the injury occurred) and limits the time suit can be brought from that specified date. Tomczak v. Bailey,
218 Wis. 2d 245,
578 N.W.2d 166 (1998),
95-2733.
ACTIONS RELATING TO CONTRACTS
AND COURT JUDGMENTS
893.40
893.40
Action on judgment or decree; court of record. Except as provided in
ss. 846.04 (2) and
(3) and
893.415, action upon a judgment or decree of a court of record of any state or of the United States shall be commenced within 20 years after the judgment or decree is entered or be barred.
893.40 Note
Judicial Council Committee's Note, 1979: This section has been created to combine the provisions of repealed ss. 893.16 (1) and 893.18 (1). A substantive change from prior law results as the time period for an action upon a judgment of a court of record sitting without this state is increased from 10 years to 20 years and runs from the time of entry of a judgment. The separate statute of limitations for an action upon a sealed instrument is repealed as unnecessary. [Bill 326-A]
893.40 Annotation
The defendant was prejudiced by an unreasonable 16-year delay in bringing suit; thus laches barred suit even though the applicable limitation period did not. Schafer v. Wegner,
78 Wis. 2d 127,
254 N.W.2d 193 (1977).
893.40 Annotation
A request by the state or an offender to correct a clerical error in the sentence portion of a written judgment to reflect accurately an oral pronouncement of sentence is not an "action upon a judgment" under this section. State v. Prihoda,
2000 WI 123,
239 Wis. 2d 244,
618 N.W.2d 857,
98-2263.
893.40 Annotation
This section clearly and unambiguously specifies that the date when a cause of action to collect past-due child support payments begins to run is the date when a judgment ordering payments is entered. State v. Hamilton,
2003 WI 50,
261 Wis. 2d 458,
661 N.W.2d 832,
01-1014.
893.40 Annotation
Under the circumstances present in this case where a statute precluded a provision in a judgment, the statute of repose could not begin to run as to that provision until the legislature changed the law such that the provision could be carried out. Johnson v. Masters,
2013 WI 43,
347 Wis. 2d 238,
830 N.W.2d 647,
11-1240.
893.41
893.41
Breach of contract to marry; action to recover property. An action to recover property procured by fraud by a party in representing that he or she intended to marry the party providing the property and not breach the contract to marry, to which
s. 768.06 applies, shall be commenced within one year after the breach of the contract to marry.
893.41 History
History: 1979 c. 323;
1981 c. 314 s.
146.
