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  • WisBar News
    September 27, 2017

    Appeals Court Upholds Adverse Possession Claim in Neighbor Dispute

    Joe Forward

    Fence Line

    Sep. 27, 2017 – A landowner who won his adverse possession claim against a neighbor, after a jury trial, recently won again at the appeals court stage.

    Lawrence Kruckenberg, of Green Lake County, filed an adverse possession claim against neighbors Robert Krukar Jr. and Lucia Krukar (the Krukars) after the Krukars removed a fence that separated the Krukars' property from Kruckenberg’s driveway.

    The 16-foot-wide driveway, granted in an 1882 deed to Kruckenberg’s predecessor, ran along the southern portion of the Krukar property for about 1,300 feet.

    But the fence that Kruckenberg was required to maintain along the driveway encroached into the Krukars' parcel for about 10-12 feet for a substantial portion of the driveway. That is, the fence substantially extended the deeded driveway’s width.

    Kruckenberg’s claim sought ownership of the extended portion of the driveway, marked by the fence line that he had maintained for 30 years before the Krukars removed it. A jury found that Kruckenberg satisfied the elements for adverse possession.

    Recently, in Kruckenberg v. Krukar, 2017AP124-FT (Sep. 27, 2017), a three-judge panel for the District II Court of Appeals upheld the judgment for Kruckenberg, rejecting the Krukars’ claim that Kruckenberg could not satisfy the “exclusivity” requirement.

    The panel noted that adverse possession allows a party to obtain valid title of another’s property by operation of law, but certain requirements must be met.

    Property must be “in actual continued occupation under a claim of title, exclusive of any other right,” for 20 years or more. The property must also be protected by a “substantial enclosure,” and physical possession must be hostile, open, and notorious.

    The Krukars claimed that Kruckenberg did not demonstrate “exclusive” possession because the Krukars exercised ownership rights over the driveway and others used it.

    But Kruckenberg noted that the fence was in place since 1983 when he bought the land. For a time, a locked chain blocked access to the driveway’s entrance.

    He removed the chain but posted a "no trespassing" sign at the entrance instead. He also maintained the driveway by replacing fence posts and trimming tree branches along it. Kruckenberg also denied the Krukars’ request to remove the fence in 2004.

    And Kruckenberg argued that sporadic entry upon the land by the Krukars or others did not defeat the claim that Kruckenberg’s possession of the land was exclusive.

    “We agree,” wrote Judge Paul Reilly. “The true owner’s casual reentry upon property does not defeat the continuity or exclusivity of an adverse claimant’s possession.”

    The panel also rejected the Krukars’ claim that Kruckenberg’s fence was insufficient to put them on notice that Kruckenberg asserted ownership of the extended driveway.

    A fence, the panel noted, “is universally recognized as a way to indicate a boundary line. All that is required to fulfill the substantial enclosure requirement is something that indicates the boundaries of the adverse claim,” Judge Reilly wrote.

    The appeals court said the case was properly put to the jury, which found that Kruckenberg met the elements of adverse possession and granted $500 in damages for the fence, which the Krukars removed. The appeals court upheld that determination.

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