Roger V. Jackson v. Kay D. Childs

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 21, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP606 Cir. Ct. No. 2016CV105

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

ROGER V. JACKSON AND DEBRA JACKSON,

PETITIONERS-RESPONDENTS,

V.

KAY D. CHILDS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Burnett County:
MELISSIA R. MOGEN, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Kay Childs appeals a judgment, entered following
a bench trial, determining that Roger and Debra Jackson acquired title to a parcel
No. 2019AP606

of land by adverse possession. Childs argues the evidence at trial was insufficient
to establish adverse possession. We disagree and affirm.

BACKGROUND

¶2 The Jacksons and Childs own adjacent parcels of land in Burnett
County, each approximately forty acres in size. In 1987, Childs and her late
husband acquired her parcel of land, which lies to the east of the Jacksons’ parcel.
The Jacksons acquired their parcel of land in 1991.

¶3 In 2000, a surveyor determined that a survey stake between the
parties’ respective properties was placed approximately 127 feet east of where the
actual boundary line exists. Given this discovery, the Jacksons learned that an
approximately 2.20-acre parcel of land that they had believed to be their property
was actually Childs’ property. This 2.20-acre parcel, which we will refer to as the
“disputed parcel,” is depicted below:1

1
The illustration was prepared by this court and is intended as a reference aid for
purposes of this opinion only. It is based on an exhibit entered into evidence during the bench
trial, which the circuit court annotated and attached to its written decision granting judgment in
favor of the Jacksons. In that decision, the court determined that although the disputed parcel is
one contiguous piece of property, it is best “viewed as four sections.” The parties have adopted
the court’s approach on appeal, and we follow suit. As seen in our illustration, we refer to these
four sections as: (1) the Homestead Area; (2) the Viewing Corridor; (3) the Walking Trail and
Boat Landing Area; and (4) the Wooded Area.

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¶4 Subsequently, the Jacksons and Childs’ late husband met on three
occasions in attempt to resolve the status of the disputed parcel. Childs’ husband
purportedly was willing to cede title to the Jacksons without requiring payment for
the property itself, but he wanted the Jacksons to pay for any necessary legal fees.
In 2013, he passed away before any transfer of title had taken place.

¶5 In 2016, the Jacksons filed the instant lawsuit, seeking to quiet title
to the disputed parcel. Their complaint alleged that “since the mid-1970s [the
Jacksons] and their predecessors had been in actual continued occupation” of the
disputed parcel, and therefore had obtained title to it through adverse possession,
pursuant to WIS. STAT. § 893.25 (2017-18).2 In January 2019, the circuit court
held a bench trial on the Jacksons’ adverse possession claim.

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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¶6 At trial, Debra Jackson testified that she and her husband first visited
what later became their property in 1987, when it was listed for sale. They did not
purchase the property at that time, however, due to its price. Debra testified that
when she first viewed the disputed parcel, the Homestead Area consisted of a
house, garage, and yard. Further, the Viewing Corridor at that time allowed for a
“very open” view down to the disputed parcel’s shoreline.3

¶7 Debra also testified that after she and her husband purchased their
property in 1991, they moved into the house located in the Homestead Area.
Subsequently, they maintained the Viewing Corridor until approximately 2015,
when they ceased doing so due to the uncertainty involved with the dispute that
ultimately gave rise to the litigation in this case. Debra explained that maintaining
the Viewing Corridor, which is located on a “very steep” hill and terminates at the
disputed parcel’s shoreline, required trimming down trees and brush “[e]very few
years.”

¶8 Debra also stated that, since 1991, the Jacksons had maintained the
Walking Trail that “connects our yard down to the water, down to that dock and
where we have always had a boat or two.” Debra testified that maintaining the
Walking Trail consisted of “picking the brush off it because the brush falls down a
lot and mowing it.”

¶9 Regarding the Wooded Area, Debra testified that she and her family
“[h]unted on it, snowmobiled through it, four-wheeled through it. The grandkids

3
One of the survey maps entered into evidence during the bench trial labels the water
abutting the parties’ properties as “Unnamed Lake,” and another labels it as “Unnamed Pond.”
Debra testified the body of water is the “backwaters of Birch Island Lake.”

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No. 2019AP606

play on it, the grandkids have built forts out there, and we had that property logged
[in the early to mid-1990s]. And then after the storm in 2011, we had it cleaned
up.”

¶10 Roger Jackson gave testimony largely similar to that of Debra’s. He
also further explained that he and his family had a “couple deer stands” in the
Wooded Area and that they cut firewood from that location “every spring and
fall.”

¶11 Childs testified that she considered her property abutting the
Jacksons’ property a “wild 40,” meaning that there are no walking trails or
structures located on it.4 She conceded in her testimony that the Jacksons had
adversely possessed the Homestead Area. She believed, however, that the
remaining sections of the disputed parcel remained her property.

¶12 Childs explained that after she acquired the “wild 40,” she and her
family “were on the pond all the time with canoes and kayaks and boats with
motors when the water was high enough to navigate … and we could observe the
shoreline” of the disputed parcel. Then, at some point in the mid-1990s, she
noticed the Jacksons were trimming the Viewing Corridor, which she found “quite
shocking” because she believed the trimming was occurring on her property. She
did not, however, “openly confront [the Jacksons] about this because we were so
flabbergasted that someone could do this to our property, and what recourse did
we have other than to litigate which would have costs us thousands of dollars.”

4
Childs resides approximately one half-mile from the disputed parcel, on a parcel of
property not at issue in this case.

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No. 2019AP606

¶13 Following trial, the circuit court issued a written decision granting
judgment in favor of the Jacksons. The court’s decision addressed each of the four
sections in the disputed parcel individually, and for each section the court
ultimately concluded “the Jacksons have presented sufficient evidence to
determine that they have met their burden to prove adverse possession.” Childs
now appeals. Additional facts are included below.

DISCUSSION

I. Standard of Review

¶14 Our review of an adverse possession claim presents a mixed
question of fact and law. Wilcox v. Estate of Hines, 2014 WI 60, ¶15, 355
Wis. 2d 1, 849 N.W.2d 280. We will accept the circuit court’s findings of fact
unless they are clearly erroneous. Id. However, whether the facts are sufficient to
establish adverse possession is a question of law that we review independently.
Id.

II. Sufficiency of the Evidence

¶15 The requirements for an adverse possession claim that is not founded
on a written instrument are set forth in WIS. STAT. § 893.25, which “codifies the
common law elements of adverse possession.” Wilcox, 355 Wis. 2d 1, ¶20. The
statute permits a party to acquire title to real property by showing that the party
and/or its predecessors in interest adversely possessed the property for an
uninterrupted period of twenty years. Sec. 893.25(1). To establish adverse
possession under § 893.25, a party must show: (1) “actual continued occupation
under claim of title, exclusive of any other right”; and (2) that the property was
either “[p]rotected by a substantial enclosure” or “[u]sually cultivated or

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No. 2019AP606

improved.” Sec. 893.25(2). In other words, a party claiming adverse possession
under § 893.25 must show that he or she used the disputed property for the
requisite period of time in an “open, notorious, visible, exclusive, hostile and
continuous” manner that would have apprised a reasonably diligent landowner and
the public that the party claimed the land as his or her own. Pierz v. Gorski, 88
Wis. 2d 131, 137, 276 N.W.2d 352 (Ct. App. 1979).

¶16 A party seeking to claim title through adverse possession bears the
burden of proving the above elements by “clear and positive” evidence. Peter H.
& Barbara J. Steuck Living Tr. v. Easley, 2010 WI App 74, ¶15, 325 Wis. 2d
455, 785 N.W.2d 631. Moreover, the evidence is strictly construed against the
claimant, and all reasonable presumptions are made in favor of the true owner. Id.

¶17 Childs contends that the evidence pertaining to three of the four
sections of the disputed parcel (i.e., the Viewing Corridor, the Walking Trail and
Boat Landing Area, and the Wooded Area) was insufficient to establish adverse
possession under WIS. STAT. § 893.25. We address, and reject, each of her
arguments in turn.

A. Viewing Corridor

¶18 Childs asserts the Jacksons failed to establish that they “usually
cultivated or improved” the Viewing Corridor as required by WIS. STAT.
§ 893.25(2)(b)2.5 Land is “usually improved” within the meaning of that statute
when it is “put to the exclusive use of the occupant as the true owner might use

5
It is undisputed that the disputed parcel was not protected by a substantial enclosure,
and that the Jacksons therefore had to establish that it was usually cultivated or improved to
succeed on their adverse possession claim. See WIS. STAT. § 893.25(2)(b).

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No. 2019AP606

such land in the usual course of events.” Burkhardt v. Smith, 17 Wis. 2d 132,
138, 115 N.W.2d 540 (1962). “[S]uch use must also be sufficiently visible to give
notice of exclusion to the true owner.” Pierz, 88 Wis. 2d at 137.

¶19 Childs first argues she lacked the requisite notice of the Jacksons’
adverse claim over the Viewing Corridor because the Jacksons “only trim[ming]
the tops of the brush and trees every two to four years” was an “incredibly
discreet” use of the land. In so arguing, she ignores the circuit court’s finding
that—far from being incredibly discreet—the Jacksons’ “concrete actions in
cutting trees and brush” in the Viewing Corridor were “blatant, deliberate, and
extremely open.” Because Childs does not even attempt to show that finding—
which is consistent with Childs’ own testimony that she witnessed the tree
trimming in the mid-1990s and found it “quite shocking”—was clearly erroneous,
we accept it, as we must.

¶20 In a related (and largely undeveloped) argument, Childs appears to
contend that the Jacksons did not actually occupy the Viewing Corridor. In
support, she observes how Debra testified that—outside of their trimming and
maintenance activities—the Jacksons attempted to avoid disturbing the area
“because the deer love crossing right there.”

¶21 We are not persuaded that this observation carries the day. In
Burkhardt, our supreme court explained:

Adverse possession without enclosure need not be
characterized by a physical, constant, visible occupancy or
improved by improvements of every square foot of the
land. The argument that one claiming adverse possession
must actually lay his hands, so to speak, upon the entire lot
and keep them there as if covering the premises with a
mantle was soundly rejected by this court in Illinois Steel
Co. v. Jeka (1905), 123 Wis. 419, 101 N.W. 399. Actual
occupancy is not limited to structural encroachment which

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No. 2019AP606

is common but is not the only physical characteristic of
possession. Actual occupancy means the ordinary use to
which the land is capable and such as an owner would
make of it. Any actual visible means, which gives notice of
exclusion from the property to the true owner or to the
public and of the defendant’s domination over it, is
sufficient.

Burkhardt, 17 Wis. 2d at 137-38.

¶22 Notably, Childs herself testified that the topography of the Viewing
Corridor is “treacherous and dramatic, it’s just impossible almost to walk up and
down on it.” Consequently, we agree with the Jacksons that “[t]here is simply no
doubt that the [V]iewing [C]orridor area was being put to the ordinary use to
which the land was capable based upon how treacherous it was for any other use.”
Moreover, as just explained, the Jacksons’ use of the Viewing Corridor was
“blatant, deliberate, and extremely open,” and thus gave Childs notice of the
Jacksons’ domination over it.

¶23 In her reply brief, Childs attempts to minimize the import of the
Burkhardt court’s clear statement that “[t]he argument that one claiming adverse
possession must actually lay his hands, so to speak, upon the entire lot and keep
them there as if covering the premises with a mantle [has been] soundly rejected.”
Id. Childs emphasizes that the claimant in Burkhardt, whom our supreme court
determined had proven his adverse possession claim, had “spaded up the entire
area” he sought to claim by adverse possession. See id. at 135 (alteration by
Childs). That factual background notwithstanding, the Burkhardt court squarely
rejected the notion that “every square foot of the land” must be physically
occupied or improved by a party pursuing an adverse possession claim. Id. at 138.
We are not free to disregard that holding. See Cook v. Cook, 208 Wis. 2d 166,
189, 560 N.W.2d 246 (1997).

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¶24 Childs next asserts that the trimming of the trees in the Viewing
Corridor was not sufficient to show the land was usually cultivated or improved
because it did not “substantially change the character of the land.” See Pierz, 88
Wis. 2d at 137. The record belies this assertion. At trial, the Jacksons introduced
photographs of the Viewing Corridor from 1992, 1996, 2001, 2003 and 2009—all
of which show a clear view from the Homestead Area to the water located beyond
the Viewing Corridor. In contrast, a photograph of the Viewing Corridor taken
after the Jacksons ceased maintaining the brush and trees in 2015 (which depicts,
according to Debra’s testimony, “our view now in the summer”) shows a
completely obstructed view. Thus, the record supports a conclusion that the
maintenance activities caused a substantial change in the character of the land by
preventing it from becoming overgrown.

¶25 Finally, Childs asserts there was “no evidence of the activities
associated with” the Viewing Corridor taking place prior to 1995 or 1996. Based
on that assertion, she contends the circuit court should have viewed “the evidence
most favorable to Childs” and concluded that the Jacksons only maintained the
Viewing Corridor from 1996 through 2015 (that is, one year short of the twenty
year uninterrupted period required by WIS. STAT. § 893.25(1)).

¶26 This argument rests on a false premise. As even Childs admits, the
Jacksons testified that the Viewing Corridor existed in 1987 and 1991. As just
explained, evidence was also presented that when not maintained, the Viewing
Corridor quickly became overgrown and ceased to exist. Thus, the evidence in the
record supported the circuit court’s reasonable inference that the Jacksons’
“predecessors previously did similar cutting and trimming of the trees and brush in
the Viewing Corridor and adjoining shoreline, and, therefore, their use would tack
on to the Jacksons for calculation of the requisite time period.” Consequently, that

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No. 2019AP606

finding was not clearly erroneous. See Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641,
643-44, 340 N.W.2d 575 (Ct. App. 1983).

B. Walking Trail and Boat Landing Area

¶27 Childs contends the Jacksons failed to establish they adversely
possessed this section of the disputed parcel for two reasons. First, she argues that
because the Jacksons testified they maintained the Walking Trail (by mowing it
and clearing brush from it) at a width of ten to twelve feet from 1991 through
approximately 2004, but only at a width of four feet thereafter, they failed to
establish the twenty-year uninterrupted period of adverse possession required by
WIS. STAT. § 893.25(1).

¶28 This argument, which is not supported by citation to any legal
authority, is meritless. As explained above, an adverse possessor need not occupy
“every square foot of the land” to show they have adversely possessed the land.
The Jacksons’ continual maintenance of the Walking Trail—even if at a slightly
reduced width—from 1991 to 2015 gave “notice of exclusion from the property to
[Childs] … and of the [Jacksons’] domination over it.” See Burkhardt, 17
Wis. 2d at 138. Indeed, as the circuit court aptly noted, notice of exclusion and of
the Jacksons’ domination over the Walking Trail and Boat Landing Area resulted
in “[n]either Childs nor her family ever us[ing] the walking trails or the boat dock,
even though they regularly used the Childs’ other property.”

¶29 Second, Childs argues the Jacksons’ use of the Walking Trail and
Boat Landing Area “is more consistent with an easement than adverse
possession.” To support her argument, she relies on Pierz and Steuck Living
Trust. Both cases, however, are distinguishable on their facts.

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No. 2019AP606

¶30 In Pierz, we concluded that a house, garage, shed, outbuildings, yard
and garden were visibly improved from a wild area. Pierz, 88 Wis. 2d at 137-39.
We determined, however, that a “logging road” leading north from the house to a
“swamp” or “channel” was “at best consistent with an easement rather than
adverse possession.” Id. at 135, 138. We reached that conclusion because the
logging road was overgrown and not even “visible to a trained forester.” Id.

¶31 Similarly, in Steuck Living Trust, we considered, as relevant here,
whether a dirt road and walking trail that ran through a remote, forested area to a
lake supported an adverse possession claim over that area. See Steuck Living
Trust, 325 Wis. 2d 455, ¶6. The true owner in that case testified he went to the
disputed area of land “once or twice a year and trie[d] to observe it from a distance
because walking through it defeats the purpose of a sanctuary. He never noticed
persons trespassing in the disputed area nor saw anything that caused him to
believe someone was doing something of a permanent nature.” Id., ¶7. In that
light, and relying on Pierz’s rationale that an improvement such as a trail or road
must be “sufficiently visible” to support an adverse possession claim, we
concluded the dirt road and walking trail were “more consistent with an easement
… than adverse possession.” Steuck Living Trust, 325 Wis. 2d 455, ¶¶20, 23.

¶32 Here, in contrast to Pierz and Steuck Living Trust, the Walking
Trail itself was undisputedly well maintained and highly visible. Moreover,
instead of terminating at a natural feature such as a swamp or lake, the Walking
Trail connected two areas openly occupied by the Jacksons—the Homestead Area
and the Boat Landing Area. Regarding the former, there is no dispute that it was
readily apparent that the Jacksons were occupying the area. As to the latter,
Childs herself testified that it is easy to view the Boat Landing Area (which has

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No. 2019AP606

had a permanent dock installed since at least 1987) from her other properties or
when she is on a boat on Birch Island Lake.

¶33 Although Childs now characterizes the Jacksons’ use of the Walking
Trail and Boat Landing Area as “limited and sporadic,” the circuit court made a
contrary finding. Specifically, the court found that the “Jacksons, their friends,
and their family, have frequently went down the path to the landing and went on
the boat or used kayaks, enjoyed the dock, and used the water at the shoreline.
They regularly mow the Boat Landing Area and have kept it clean and clear.”
Once again, because Childs does not attempt to show that finding was clearly
erroneous, we must accept it. As such, we conclude that the Jacksons’ activities in
this section of the disputed parcel showed they “not only planted [their] flag of
hostility but kept it there, waving.” See Burkhardt, 17 Wis. 2d at 139.

C. Wooded Area

¶34 In regard to the Wooded Area, Childs asserts the Jacksons’ activities
in the area (i.e., hunting, snowmobiling, logging, four-wheeling, and cutting
firewood) were the type of outdoor activities “consistent with sporadic, trivial and
frequently benign trespass” and therefore insufficient to establish adverse
possession. See Steuck Living Trust, 325 Wis. 2d 455, ¶23 (citing Pierz, 88
Wis. 2d at 138-39). In that vein, she notes that, like the true owner in Steuck
Living Trust, she never noticed any of the Jacksons’ activities in the Wooded
Area.

¶35 As the circuit court ably explained in its written decision, Childs’
argument fails to consider the Jacksons’ activities in the Wooded Area (both
individually and collectively) in connection with their activities in the rest of the
disputed parcel. When analyzing whether the evidence is sufficient to establish

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the elements of adverse possession, we must consider the totality of the evidence
regarding the Jacksons’ use of the disputed parcel. See, e.g., Kruckenberg v.
Krukar, 2017 WI App 70, ¶13, 378 Wis. 2d 314, 903 N.W.2d 164.

¶36 This principle is especially important in this instance because, as our
above illustration demonstrates, the Wooded Area lies entirely to the west of the
other sections of the disputed parcel. Consequently, the Jacksons’ actions in the
remainder of the disputed parcel (for reasons already explained) established a
discernible boundary line between Childs’ property to the east and the Wooded
Area. Stated differently, even if the Jacksons did not have a “physical, constant,
visible occupancy … of every square foot of the land” in the Wooded Area, their
actions in the whole of the disputed parcel, taken together, were sufficient to
“give[] notice of exclusion” from the Wooded Area to Childs and of the Jacksons’
“domination over it.” See Burkhardt, 17 Wis. 2d at 137-38.

¶37 To further explain, when determining whether the use to which a
party puts a parcel of land supports an adverse possession claim, we must consider
whether the use gave “reasonable notice [to the true owner] that the claimant is
asserting ownership” of the disputed parcel. See Steuck Living Trust, 325 Wis. 2d
455, ¶17. In this case, it would be unreasonable to conclude that Childs, while
viewing the open and obvious activities taking place in the eastern sections of the
disputed parcel, was not on notice that the Jacksons were claiming ownership of
the small portion of land lying between those sections and the remainder of the
Jacksons’ property. Accordingly, the circuit court did not err by concluding that

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No. 2019AP606

Childs’ “failure to respond” to those activities resulted in her losing title to the
entire disputed parcel.6 See id.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

6
Childs, relying primarily on Droege v. Daymaker Cranberries, Inc., 88 Wis. 2d 140,
276 N.W.2d 356 (Ct. App. 1979), raises an additional argument that because the Jacksons
provided the circuit court with only a legal description of the entire disputed parcel, the Jacksons
failed to supply the “requisite legal description” necessary for the court to award only a portion of
the disputed parcel to the Jacksons. Childs acknowledges, however, that we need not reach this
argument unless we determine the court erred by concluding the Jacksons adversely possessed all
four sections of the disputed parcel. Because we conclude the court did not so err, we do not
further address this argument.

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