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    Wisconsin Lawyer
    January 01, 2016

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    Biotechnology, Legal Innovation, and the Future

    2016 Biotech and the Law logoThe November 2015 issue of the Wisconsin Lawyer is vitally important because of the theme of innovation. The cover story discusses in great length the critical work by Wisconsin legal innovators, particularly Attorney Norman Gahn and his work with DNA. Congratulations to all award recipients are well deserved. Similarly, the extensive article on the inaugural May 5-7, 2016, global Biotechnology & The Law Conference being held in Madison is very important because the topic has significant scientific, legal, policy, and economic dimensions. Lastly, Wisconsin-licensed attorneys are no doubt aware that the legal profession and bar associations will need to innovate in the coming years to ensure high quality to their members, the public, and their continuing relevance in a global economy. These are exciting times, but I’d like to turn now to the May 2016 Biotechnology & The Law Conference.

    The biotechnology ecosystem is a large intellectual playground for those lawyers and nonlawyers interested in the nexus of law, science, policy, and economics. A significant component of biotechnology is intellectual property (IP) and IP law, but that area is not the sum total. In my professional work in higher education, building partnerships between private companies and universities is extremely important for all actors involved. Law school education is a vital intellectual journey that prepares students for a lifetime of innovation and flexibility in thinking and practice: grasp the intellectual curiosity that is at the center of biotechnology! Similarly, it is important for lawyers to become versed in the policy dimensions, the economics of biotechnology (including venture capital and start-up companies), and some science basics. I am not a scientist by training, but having worked in higher education research for 21 years, I am used to learning new ideas and concepts constantly – including engineering and the sciences.

    The conference has a stellar group of speakers from across the entire ecosystem, cross cutting with the global dimension. Speakers from Australia, Brazil, and The Netherlands will share their expertise with conference attendees. Speakers from the National Academies, the White House Office of Science and Technology Policy, the Pacific Northwest National Laboratory, and the U.S. Patent and Trademark Office will provide extensive commentary at the federal level. But make no mistake, this is not your usual presentation-focused conference. Significant effort has been put into experiential learning, excursions to Madison-area companies, and networking opportunities. The goal is to encourage collaboration in Wisconsin and beyond. The conference will be here before we know it. Spend early May in Madison.

    A conference of this magnitude, scope, and importance can only happen as the result of untold hours of dedication by State Bar of Wisconsin staff and professionals in Wisconsin and beyond. A special thank you in advance is due to all who have planned this exciting and important professional development and networking opportunity.

    See you in Madison!

    Atty. James Casey
    Co-chair, 2016 Biotechnology & The Law Conference
    President, State Bar of Wisconsin Nonresident Lawyers Division
    American University, Office of Sponsored Programs,
    Washington, D.C.

    Here’s What you May Have Missed

    Not connecting with us online? This month we highlight readers’ comments posted to online articles. Let’s hear what you have to say. Post comments to WisBar News, InsideTrack, and Wisconsin Lawyer articles or respond to Facebook, LinkedIn, and Twitter posts. Or simply email the editors at wislawmag@wisbar.org.

    The End to Adverse Possession As We Know It?

    digging hole near fenceAuthor Jessica J. Shrestha, in “An End to the Doctrine of Adverse Possession in Wisconsin?” (Nov. 18, 2015, InsideTrack), alerted readers to two pending bills that would effectively eliminate adverse possession claims in Wisconsin. In the article, Attorney Shrestha discussed the history of adverse possession, the proposed legislation, and the arguments for and against the proposals.

    The article resonated with Attorney Dennis Juncer, who posted a lengthy comment to the article. We share his insights here, edited for length.

    InsideTrack: As a retired lawyer, I have litigated several adverse possession cases. This long-recognized doctrine is well known to most landowners and in general has served its useful and intended purpose of resolving land boundary disputes. Despite the doctrine serving as a basis for reasonable settlement, adverse possession cases are sometimes litigated at costs far exceeding the value of the disputed land, reflecting the community value commonly given to land ownership.

    A reason given for disposing of this rule is that adverse possession can lead to litigation and is not needed, considering modern surveying methods. However, litigation is preferable to resolving disputes by violence or intimidation. A clearly understood legal rule is available to allow claimants to resolve disputes without attempting self-help remedies, for example tearing down a shed or moving fences without agreement.

    In many cases, a survey actually starts the dispute. Older surveying was not as reliable as GIS, and in many cases the people using these methods either were not skilled in survey techniques or were sloppy in applying them. As a result, many subdivisions and rural land descriptions are not accurate, leaving gaps between parcels or resulting in overlapped parcels. These descriptions, and the resulting boundaries, have endured and been accepted for many years. Then a new person moves into the neighborhood and has his property surveyed. The survey establishes that the property descriptions do not match the lines of occupancy, and the new owner takes immediate action to force the occupying neighbor to get off “his” land.

    This may affect only the two owners, or, if the survey used the wrong starting point, the whole block or subdivision, resulting in several well-established residential lots not located on the correct property lines. In these instances, adverse possession is the only reasonable remedy to resolve the disputes.

    In regard to SB 314, I understand that adverse possession against the state or municipal governments can cause problems for governmental planning or development. On the other hand, it does not seem fair to kick people off property they have developed in good faith, perhaps including building a residence, and to do so without compensation. Governmental units are not so poorly suited to keep track of their boundaries that they can ignore such boundaries for 20 years or more, without considering the equities of the possessing tenant.

    As to SB 344, I believe this bill is badly flawed. First, adversely possessed property seldom has any real value to the owner. The owners of record often are themselves occupying land they believe has always been correctly laid out, and ownership of a few more acres does not significantly increase the property’s value. The bill’s requirements that the person in possession must pay the “true owner” the value of the property, the diminution of the value of the remaining land, and all real estate taxes paid by the owner are simply unfair. The owner probably has never expected to own the subject property. Determining the value of diminution to remaining property is an invitation to long and difficult litigation, based on “expert opinion” rather than established facts. Determining real estate taxes is similarly challenging.

    It is debatable whether limiting actions based on possession periods after passage of the act will avoid these long-term consequences. For example, what are the rights, if any, of a person who bought a house and occupied it for 15 years before passage of the act, and it is found she occupies a portion of the adjacent property when the property is surveyed 10 years after the act becomes law? Can she sue the realtor and previous owner for selling a defective title? What are her damages if she follows the law and redeems the 10 feet from the neighbor?

    Another example: Z buys a farm from X, but X’s brother and cotenant, Y, claims the property and demands to be paid for the house. Y certainly was aware of his claims to the farm over the adverse possession period of seven years. If action is taken promptly, before the sale proceeds have disappeared, a better remedy than confiscation should be possible. And if Z has done substantial work on the property, does he lose the improvements for the remodeling of the house and the new roof on the barn, as well as his purchase price?

    Considering the circumstances of several of the adverse possession actions I have seen, the proposed statute is likely to result in increased, not decreased, litigation.

    Also, in many cases the adverse possession claim is to a right-of-way over neighboring property. The value of the right-of-way to the owner may be negligible, but to the possessor, who cannot now access his house, the value is substantial. If the right-of-way has been used for 20 years without objection, adverse possession provides a clear answer. If SB 344 applies to adverse possession of rights-of-way, what does the possessor do? Offer his neighbor a great deal of money, well in excess of the reasonable value of the land?

    Adverse possession still serves its purpose of setting a reasonable rule of law to resolve difficult issues. It has been modified and limited by court decisions, which can protect the equities of both parties and which a black-and-white law such as these bills cannot do. I suggest the legislature spend its time on more serious matters, rather than waste its time rewriting law that is well established and basically fair, and about which, I am sure, many legislators have little knowledge or experience.

    Atty. Dennis Juncer
    Stauber & Juncer LLC
    Marshfield, WI

    Distinguishing Officer’s Reasons for Stopping a Motorist

    driving while smokingAuthor Joe Forward in “Trooper Legally Stopped OWI Suspect for Discarded Cig Butt” (Nov. 25, 2015, WisBar News) explained the supreme court’s ruling that a state trooper legally stopped a vehicle for littering, which led to a drunk-driving arrest, despite the defendant’s argument that troopers can’t make traffic stops for nontraffic offenses. A reader weighed in.

    WisBar News: Wisconsin has a line of jurisprudence distinguishing between stopping for probable cause of a noncriminal offence and stopping on reasonable suspicion of criminal activity. That separation seems to have been ignored in this decision.

    Because the officer clearly had probable cause to believe a violation of the noncriminal statute had occurred, the language about reasonable suspicion is dicta. I do not know that this will matter, though.

    Atty. Charles Kenyon Jr.
    Charles K Kenyon Law Offices, Madison




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