Page 1 of 2 1 2 LastLast
Results 1 to 10 of 13
  1. #1
    Join Date
    Jun 2007
    Posts
    8

    Default 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.

  2. #2
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Adverse Possession of Public Land

    What's your question?

  3. #3
    Join Date
    Jun 2007
    Posts
    8

    Default 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?

  4. #4
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Adverse Possession of Public Land

    Quote Quoting rgpool45
    View Post
    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.

  5. #5
    Join Date
    Jun 2007
    Posts
    8

    Default 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.

  6. #6
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default 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.

  7. #7
    Join Date
    Jun 2007
    Posts
    8

    Default 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.

  8. #8
    Join Date
    Jun 2007
    Posts
    8

    Default 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?

  9. #9
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default 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.

  10. #10
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Adverse Possession of Public Land

    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.

    1. Sponsored Links
       

Page 1 of 2 1 2 LastLast

Similar Threads

  1. Adverse Possession: Claiming Land by Adverse Possession in North Carolina
    By alphamale723 in forum Real Estate Ownership and Title
    Replies: 8
    Last Post: 05-26-2011, 10:45 AM
  2. Adverse Possession: Adverse Possession of Dormant Land
    By GE24 in forum Real Estate Ownership and Title
    Replies: 7
    Last Post: 01-31-2009, 09:17 PM
  3. Adverse Possession: Can I Do Adverse Possession Myself?
    By Jeanie in forum Real Estate Ownership and Title
    Replies: 2
    Last Post: 01-07-2009, 08:29 AM
  4. Adverse Possession: Adverse Possession Land
    By LinkDragon in forum Real Estate Ownership and Title
    Replies: 5
    Last Post: 03-29-2008, 09:27 AM
  5. Adverse Possession: Adverse possession claim after someone buys the disputed land
    By grandmashakey in forum Real Estate Ownership and Title
    Replies: 13
    Last Post: 04-02-2007, 07:50 PM
 
 
Sponsored Links

Legal Help, Information and Resources