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Morgan Stippel

Morgan Stippel
mstippel@axley.com
608.260.2477

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Under Some Circumstances, State-Owned Property Can Still Be Adversely Possessed

October 2, 2020

Wisconsin’s adverse possession laws have changed significantly over the past fifty years. One of the biggest changes occurred in 2016 when the Wisconsin State Legislature enacted Wis. Stat. § 893.29(1). This statute prevents land held by Wisconsin’s state and local government entities from being adversely possessed. Notably, though, this statute does not affect title to or interest in property obtained on or before March 3, 2016. While seemingly straightforward, in cases where the period of adverse possession began before Wis. Stat. § 893.29(1) was enacted, its application is more nuanced.

In 2011, the Wisconsin Court of Appeals decided Wisconsin Department of Natural Resources v. Building and All Related or Attached Structures Encroaching on Lake Noquebay Wildlife Area. In that case, the Wied family purchased land that abutted DNR property in 1965. They started mowing the DNR land shortly after the purchase, put a lockable gate across the shared road/driveway in 1970, and built a house on the DNR land in 1986. The DNR filed a complaint in 2007 seeking restoration of the property, and the Wieds responded by claiming they had adversely possessed the property.

When the Wieds bought the land in 1965, the existing adverse possession statute required forty years of possession to obtain title to state-owned property. In 1980, the statute was repealed and re-created, reducing the term of adverse possession from forty years to twenty years. The statute was repealed and re-created again in 1998, adding the requirement that adverse possession of state-owned land be based upon a continuously maintained fence line mutually agreed upon by the current landowners.

The DNR argued that the lower court erroneously applied the 1980 version of the statute. The appellate court rejected this argument. Wis. Stat. § 990.06 provides, in relevant part, “the act repealed shall be held to continue in force and be operative to determine all such limitations and periods of time which shall have previously begun to run unless such repealing act shall otherwise expressly provide.” Based on this authority, the appellate court concluded that to terminate an already running period of adverse possession, the 1998 version of Wis. Stat. § 893.29 had to contain an express statement to this effect, which it did not. The appellate court held that in the absence of an express provision to the contrary, the rule is that one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and re-creation. Accordingly, the lower court properly concluded that title to the DNR land transferred by adverse possession from 1986 to 2006 under the 1980 version of Wis. Stat. § 893.29.

Under the rule established in Wisconsin Department of Natural Resources v. Building and All Related or Attached Structures Encroaching on Lake Noquebay Wildlife Area, land held by Wisconsin’s state and local government entities may be adversely possessed under earlier versions of the adverse possession statute if the period of adverse possession began while the former adverse possession statute was still in force. For this reason, it is important for state and local government entities to stay vigilant in exercising exclusive ownership over their property.

Miscellaneous

Axley Brynelson is pleased to provide articles, legal alerts, and videos for informational purposes, but we are not giving legal advice or creating an attorney/client relationship by providing this information. The law constantly changes, and our publications may not be currently updated. Before relying on any legal information of a general nature, please consult legal counsel as to your particular situation. While our attorneys welcome your comments and questions, keep in mind that any information you provide us, unless you are now a client, will not be confidential.