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  • WisBar News
    May 19, 2010

    Hunters are trespassers, not adverse possessors, appeals court holds

    May 19, 2010 – Trespassers who hunted on another’s land for more than 20 years did not acquire the land by adverse possession, the Wisconsin court of appeals recently held.

    Newell Easley owns undeveloped land in Marquette County. Plaintiffs Peter Steuck and Barbara Steuck (the Steucks) claimed that their predecessor’s in title established title to 17 acres of Easley’s land by adverse possession, having used the land to hunt for 29 years without interference from anyone. The Marquette County Circuit Court agreed.

    In Steuck v. Easley, 2009AP757 (May 13, 2010), the appeals court reversed, concluding that the hunting activities of the predecessors on Easley’s land, even if continuous for more than 20 years, did not satisfy all elements of adverse possession.

    Under Wis. Stat. section 893.25, a person can acquire title by adverse possession if the person actually occupies the land exclusively, protects it with a substantial enclosure or cultivates and improves the land, and adversely possesses for 20 uninterrupted years. This requires open, notorious, visible, exclusive, hostile, and continuous use of another’s land.

    Evidence of hunting not enough

    In Steuck, the appeals court clarified that a landowner with title is not required “to prove efforts to keep trespassers out, to post his land, and to patrol it.” Rather, “the claimant has the burden to prove those elements by clear and positive evidence.” Easley, the court wrote, “was not obligated to do anything in order to retain his title.”

    The appeals court concluded that the facts − the sound of gun shots, the appearance of year-round portable deer stands, and the action of cutting down a tree because it held someone else’s deer stand – established the existence of trespassers, not adverse possessors.

    Given the nature and size of the disputed area, the court stated, “this is not reasonable notice of an exclusive claim by another.”

    The court noted the Pierz policy, which favors open use of wild lands by the public. To find adverse possession in this case, the court stated, would have the implication of requiring titleholders of large areas of land to fence or post the land “and be diligent about keeping trespassers off in order to avoid the risk of losing title.”

    Substantial enclosure requirement

    The adverse possession statute includes the requirement of a substantial enclosure, improvement or cultivation, “to alert a reasonable person to the possibility of a border dispute.” The appeals court also addressed this issue even though it was not necessary.

    A swampy area and a man-made ditch are located on the southern boundary of the disputed land. The circuit court found these to be substantial enclosures. But the appeals court concluded that a swampy area and man-made drainage ditch do “not provide reasonable notice that someone else is or may be claiming title to land on the other side.”

    Doctrine of acquiescence

    The parties also disputed whether the Steuck’s established adverse possession “by showing that Easley acquiesced for 20 years to the man-made ditch” as the northern boundary of his property, and everything north (the disputed area) thus became adversely possessed after 20 years.

    Without determining whether the doctrine of acquiescence is "a distinct means of proving adverse possession where there is no dispute regarding the twenty-year requirement," the court found that Easley did not acquiesce.

    The activities that establish the boundary line, such as construction of a fence, must still be “visible” in order for the landowner to acquiesce, the court concluded. Even if a fence is not essential, the court wrote, “the boundary must be physically defined in some equivalent way that makes it reasonable to infer the titleholder understood it as a boundary.”

    A man-made ditch that abuts a swampy area, the court concluded, does not meet this standard.


    A dissenting opinion stated: “the majority has made it impossible to adversely possess hunting land, which is characterized by an absence of fences and structures.”

    By Joe Forward, Legal Writer, State Bar of Wisconsin

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