Longstanding road recognized as boundary

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For a property owner to acquire legal title to adjacent property by acquiescence for more than 20 years, it is not necessary that the deeds be ambiguous.

On May 11, the Wisconsin Court of Appeals held that, where a road has been mistakenly believed to be the boundary between properties for almost a century, the road is the boundary, even if the true boundary is elsewhere.

Henn Road runs through the Town of Chippewa in Ashland County. The Boerst family owns land to the east of the road, and the Opperman family owns property to the west.

For nearly a century, the property owners have treated the road as the boundary line between the properties. A 2005 survey, however, suggests the actual boundary lies west of the road.

The Boersts sued, seeking a declaration that they owned the land between the new boundary line and the road, which the parties have long believed to belong to the Oppermans.

The circuit court found that, even if the road was not the true line, the Oppermans obtained title to the land up to the road by the doctrine of acquiescence.

The doctrine of acquiescence is a supplement to adverse possession. To obtain title by adverse possession, hostile intent is generally a necessary element. Where the owners are innocently mistaken about the boundaries, the equitable doctrine of acquiescence applies instead.

In an opinion by Judge Gregory A. Peterson, the Court of Appeals affirmed that the Oppermans acquired the property through long acquiescence to treating the road as the boundary.

Citing Buza v. Wojtalewicz, 48 Wis.2d 557, 180 N.W.2d 556 (1970), and Chandelle Enters., LLC, v. XLNT Dairy Farm, Inc., 2005 WI App 110, 282 Wis.2d 806, 699 N.W.2d 241, the Boersts argued that the doctrine of acquiescence applies only to ambiguous deeds, but the court disagreed.

“That is not what Buza holds,” the court explained. “Rather, the portion of the case the Boersts rely on discusses an exception to the requirement land be occupied for the statutory period. This exception permits a boundary to be established by acquiescence in less time than the statutory period if the parties received their parcels from a common grantor. In that situation, a line established by the grantor — a fence, for example — is dispositive of the boundary. Id. at 565. However, if the deed description of the boundary is unambiguous, the parties are free to claim the true line if the statutory period has not run. Id. at 566. However Buza does not hold, as the Boersts claim it does, that an unambiguous deed trumps mistaken boundary lines after the statutory period.”

Case analysis

The case would be an excellent candidate for review in the Wisconsin Supreme Court, because the law regarding acquiescence is both muddled and inequitable.

The Court of Appeals limits Buza and Chandelle to cases in which the statutory period for obtaining title by adverse possession has not yet run. But there is nothing in the opinions themselves that expressly imposes such a limitation.

In Buza, the court quoted long-standing precedent that, “where the description of the premises in a deed is definite, certain, and unambiguous, extrinsic evidence to show acquiescence in a different location is inadmissible, …” Buza, 180 N.W.2d at 561.

In Chandelle, the court wrote, “Chandelle argues that the equitable doctrine of acquiescence cannot apply because extrinsic evidence showing that the parties believed the fence line was the true boundary line is not admissible in this case. We agree.” Chandelle, 699 N.W.2d at 245.

In both cases, the property owners had been mistaken about the boundary for less than 20 years. But neither case expressly limits the rule to such cases.

Furthermore, the circuit court in this case found that the deeds were ambiguous.

The circuit court wrote, “unlike the decision in Chandelle, this court does not believe that the true boundaries can be determined solely by the descriptions in the deeds. It is, therefore, necessary to look to extrinsic evidence and this court believes the best evidence available are the lines of occupation and possession.”

In the Respondents’ brief to the Court of Appeals, they argued, “We can tell from the deed descriptions that the Opperman and Boerst parcels adjoin each other and are separated by the section line common to Sections 8 and 9, but that begs the question of where that line is on the face of the earth, and nothing on the face of the deeds tells us.”

Thus, both the circuit court and the Oppermans took the position that the deeds are ambiguous, not, as the Court of Appeals held, that the rule in Buza only applies if the parties have been mistaken about the boundary for less than 20 years.

It is also noteworthy that some Wisconsin Supreme Court precedents don’t even recognize the doctrine of acquiescence, but instead read the adverse possession statutes broadly to include mistake. “Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith, whether by mistake of boundaries or with intent to claim the land with full knowledge that the claim is wrongful, satisfies the calls of the statute.” Ovig v. Morrison, 142 Wis. 243, 125 N.W. 449, 451 (1910); Northwoods Development Corp. v. Klement, 24 Wis.2d 387, 129 N.W.2d 121, 123 (1964).

Under this formulation of the law, extrinsic evidence is clearly admissible, if the adverse possession has been for more than 20 years.

The case at bar would provide an excellent vehicle for the Supreme Court to clarify the law regarding adverse possession and the doctrine of acquiescence.

Ideally, it would abolish the rule that limits the admission of extrinsic evidence altogether. In Buza, decided 40 years ago, the court acknowledged that the rule is inequitable. Buza, 180 N.W.2d at 561.

The rule is also intellectually indefensible. Where a party’s equitable claim or defense is that a parcel of property has been obtained through actual possession, it is absurd that the act of possession itself should be inadmissible evidence, because of a rule that the court recognizes is inequitable.

David Ziemer can be reached at [email protected].