Dec. 12, 2016 – No published Wisconsin case has addressed whether an intentional trespass claim is subject to a three-year or six-year statute of limitations period for intentional torts. Recently, a state appeals court ruled that a three-year period applies.
Wis. Stat. section 893.52 bars lawsuits to recover damages for injury to real or personal property unless commenced within six years after the cause of action accrues.
Wis. Stat. section 893.57 bars lawsuits to recover for intentional torts to the person unless commenced within three years after the cause of action accrues.
Bradley Munger and the Summit Lake Association alleged that four defendants, in 2007, caused injury to real property when they intentionally trespassed on land to remove logs and debris from an outlet creek on Summit Lake in Langlade County. This caused a decrease in water levels on Summit Lake, where Munger and association members live.
In 2010, Munger applied for a DNR permit to “repair damages” caused by the defendants’ illegal dredging. The DNR denied the permit, noting that any damage had been naturally restored. An administrative law judge upheld the decision on appeal.
Munger and the Summit Lake Association commenced a lawsuit against the dredging defendants, alleging intentional trespass and physical injury to real property. Munger argued that a statute of limitations did not apply because of the “continuing nature of the harm.” In the alternative, Munger argued that the six-year statute of limitations applied.
The circuit court concluded that the intentional trespass claim was barred by section 893.57, the three-year statute of limitations for intentional torts.
In Munger v. Seehafer, 2014AP2594 (Nov. 29, 2016), a three-judge panel for the District III Court of Appeals affirmed, concluding the three-year statute of limitations period applied to the intentional trespass claim, not the six-year period.
“Because the existence of damages for injury to real property is not necessary to maintain a claim for intentional trespass, Wis. Stat. § 893.52(1) cannot govern Munger’s intentional trespass claim,” wrote Judge Thomas Hruz.
For the six-year limitations period to apply, the panel explained, a party must show measurable “damages” for injury to real or personal property. But that is not the case for intentional trespass claims, because the trespass itself can give rise to the claim.
“[I]n an instance of trespass, the intrusion itself forms the basis for an award of damages, even absent any other injury,” Judge Hruz wrote.
“The foregoing authorities establish that a cause of action for intentional trespass exists even in the absence of physical damage or injury to the property trespassed upon.”
In other words, the “damage” for intentional trespass is the loss of a landowner’s right to exclude others, not actual damage to the property itself.
Munger argued that section 893.57, the three-year limitations period, cannot apply because it covers intentional torts “to the person.” The panel did not agree.
“Intentional trespass is a personal tort: It is an offense against another’s possession, including the person’s right to exclude others from his or her real property … and the corresponding feeling of security the person may achieve in doing so,” Hruz wrote.
The panel held that the three-year statute of limitations governing intentional torts, such as libel, slander, and “other intentional torts,” applies to claims of intentional trespass.
The panel also rejected Munger’s claim that no statute of limitations applied because of the “continuing nature of the harm” caused by removal of logs from the creek outlet.
“The single incident of trespass allegedly occurred in 2007; it ended on the day the four trespassers left Munger’s property, especially given there are no allegations that they left behind any personal property on Munger’s property,” Judge Hruz wrote.
The circuit court properly dismissed claims asserted by Summit Lake Association, the panel also concluded, because the association lacked standing to assert them.
“Here, the Association asserts it is attempting to vindicate the rights of all riparian property owners on Summit Lake, but, in reality, Count II’s allegations only go to damage sustained on Munger’s individual parcel,” Judge Hruz explained.
Finally, the panel ruled that the DNR’s causation determination related to property damage caused by the dredging defendants had “preclusive effect.”