Adverse Possession of Public Land
I bought a property in Wisconsin in 1984. It was surrounded by a redwood basket weave privacy fence, built in 1951. A large portion of this privacy fence was eight feet into the right of way for a street behind the house, and remained there for 52 years without objection from the city. In fact, the city gave the fence it's blessing by means of an encroachment document in 1964. I can document the dates.
Four years ago they decided to widen the street and install a sidewalk inside the line where the fence stood and forced it's removal. I claimed adverse possession, but was told by the City Attorney that it can't be claimed against a municpality. I later found out that there is a special provision in Wisconsin Law that permits it, provided it was defined by a fence, but by then the damage had been done.
Without that fence, and the land it defined, the property is no longer viable. The sidewalk is now 2 feet from my back door, thus completely removing what little back yard I had, and it's resultant protection.
I have filed suit, asserting inverse condemnation. The City has managed to use any delaying tactic it could to delay this, but it finally goes to trial in August.
Most people I've talked to, including former City officials, say I have a good case, but there is always that lingering doubt, thinking there is something I overlooked.
Re: Adverse Possession of Public Land
Re: Adverse Possession of Public Land
Sorry about that. My question is about street right of way. Is that exempt from a claim of adverse possession?
Re: Adverse Possession of Public Land
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rgpool45
I later found out that there is a special provision in Wisconsin Law that permits it, provided it was defined by a fence, but by then the damage had been done.
Perhaps you could help us out, by telling us the citation for that special provision.
Re: Adverse Possession of Public Land
Wisconsin Statute 893.29 states as follows:
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.
At the time the fence was built, the statute read 40 years, but even with that I far exceeded that limitation.
The City has continually taken the position that a right of way is, and always will be, theirs.
Re: Adverse Possession of Public Land
It sounds like you had a good case under the statute at the time they decided to remove the fence and expand the road.
Re: Adverse Possession of Public Land
That's what I thought also. The problem is the damage is already done and cannot be reversed. That's why I have petitioned the court to condemn the property, since that seems to be the only remaining remedy.
Re: Adverse Possession of Public Land
I have a follow up question about adverse possession. In our state, the statute of limitations was originally 40 years. It then later dropped to 30 years, and now as of 1979, is 20 years.
Let's say a fence has existed for 40 years. Which statute of limitation would apply; the one that was in effect when the fence was built, or the one in effect when the claim of adverse possession was made?
Re: Adverse Possession of Public Land
Statutes of limitation are typically regarded as procedural, meaning the statute in effect at the time of the litigation is the statute which will be applied by the court. The effect may be different if the limitations period runs prior to a legislative extension of the time for filing. In contrast, for a statute of repose, where the time limit for filing an action is an element of the statute codifying a cause of action, the law would typically be regarded as substantive.
In general, see Wenke v Gehl Co, 274 Wis. 2d 220; 682 N.W.2d 405 (2004), available here. I do not know if there is a Wisconsin case specifically addressing adverse possession-type claims.
Re: Adverse Possession of Public Land
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In fact, the city gave the fence it's blessing by means of an encroachment document in 1964. I can document the dates.
Doesn't make any difference.
That statement was their permission to allow the fence there, therefore, no adverse possession. You had a license to occupy and they cancelled your license.
They knew you were on their property and allowed it so it is not adverse to the govt.
I read the statute as the acceptance of the fence as a common mistake of where the property line is. There was no mistake of fact. They, and you, knew where the correct line was and is.
Re: Adverse Possession of Public Land
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jk
Doesn't make any difference.
That statement was their permission to allow the fence there, therefore, no adverse possession. You had a license to occupy and they cancelled your license.
They knew you were on their property and allowed it so it is not adverse to the govt.
I read the statute as the acceptance of the fence as a common mistake of where the property line is. There was no mistake of fact. They, and you, knew where the correct line was and is.
Here's where it gets tricky. The document, due to an error in measurement, authorized a fence 3ft over the line. Actually the fence was 8ft over the line. The City took the position that the document never authorized the fence to be where it was, so I read it as adverse, and that document is moot.
Re: Adverse Possession of Public Land
In answer to Aaron, I found this case, which is directly on point in Wisconsin.
A person may acquire title to land owned by a state political subdivision by taking actual possession of the land and either protecting it by a substantial enclosure or cultivating or improving it in the usual manner of an owner, for a period of forty years. Sections 330.09 and 330.10, Stats., 1947; 5 Petropoulos v. City of West Allis, 148 Wis. 2d 762, 767, 436 N.W.2d 880, 882 (Ct. App. 1989) (because adverse possession statutes are prospective in nature, the limitation period in effect at the time possession is first taken applies). A person claiming adverse possession must show [*10] that the disputed property was used for the requisite period of time in an "open, notorious, visible, exclusive, hostile and continuous" manner that would apprise a reasonably diligent landowner and the public that the possessor claimed the land as his or her own. Pierz v. Gorski, 88 Wis. 2d 131, 137, 276 N.W.2d 352, 355 (Ct. App. 1979). An adverse claimant may "tack" or add his or her time of possession to that of prior adverse possessors with whom he or she is in privity in order to establish continuous possession for the requisite statutory period. Perpignani, 139 Wis. 2d at 724-25, 408 N.W.2d at 13. An enclosure may be either artificial, such as a fence, or natural, such as a line of trees or bushes. Illinois Steel Co. v. Bilot, 109 Wis. 430, 441, 85 N.W. 402, 406 (1901) (following remand). Furthermore, planting trees and maintaining the land around them may constitute possession of land by usual improvement. Otto v. Cornell, 119 Wis. 2d 4, 8, 349 N.W.2d 703, 706 (Ct. App. 1984).
So that means I have to prove 40 years. I have witnesses going back to 1956 that will testify to the existence of the fence that far back, but the City is saying the fence couldn't have existed before they granted the encroachment document, making it only 39 years before they tore it down.
Re: Adverse Possession of Public Land
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rgpool45
Here's where it gets tricky. The document, due to an error in measurement, authorized a fence 3ft over the line. Actually the fence was 8ft over the line. The City took the position that the document never authorized the fence to be where it was, so I read it as adverse, and that document is moot.
but they did allow the first 3 feet so you can only claim the 5 feet beyond the 3 feet they did allow.
Now that is going to be tricky.:D