David Stahlnecker v. John Vieth

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.
December 22, 2022
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. 2021AP1200 Cir. Ct. No. 2020CV55

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

DAVID STAHLNECKER AND ROBIN FOX,

PLAINTIFFS-RESPONDENTS,

V.

JOHN VIETH AND LILA VIETH,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Lafayette County:
DUANE M. JORGENSON, Judge. Affirmed.

Before Fitzpatrick, Graham, and Nashold, 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).
No. 2021AP1200

¶1 PER CURIAM. John and Lila Vieth appeal a judgment, entered
following a bench trial, which awarded Robin Fox and David Stahlnecker title by
adverse possession to a strip of land that falls on the boundary of their adjoining
parcels and within the legal description of the Vieths’ deed. The Vieths argue that
the circuit court erred by not granting default judgment in their favor on their
counterclaim for trespass. They also argue that the admissible evidence is
insufficient to establish adverse possession, and that WIS. STAT. § 706.09
(2019-20),1 referred to by the Vieths as the “bona fide purchaser defense,” is a
viable defense to the adverse possession claim. We reject the Vieths’ arguments
and affirm the judgment.2

BACKGROUND

¶2 This case concerns two adjoining parcels on a residential street in the
City of Darlington. One of the parcels has been owned by Fox and Stahlnecker for
many years, and the second was purchased by the Vieths in 2018. The parties
dispute the ownership of a strip of land along their shared boundary line that varies
in width from six to twelve feet along the shared boundary of the parcels.

1
All references to the Wisconsin Statutes are to the 2019-20 version.
2
During the circuit court proceedings, Fox and Stahlnecker claimed and the circuit court
determined that, in addition to acquiring title to the strip of land by adverse possession, Fox and
Stahlnecker also acquired title through the doctrine of acquiescence. As this court recognized in
Peter H. & Barbara J. Steuck Living Trust v. Easley, 2010 WI App 74, ¶34, 325 Wis. 2d 455,
785 N.W.2d 631, “it is not clear whether the doctrine of acquiescence remains a distinct means of
proving adverse possession when, as here, there is no issue concerning the twenty-year time
period [for adverse possession claims not founded on a written instrument].” Because Fox and
Stahlnecker’s adverse possession based claim is dispositive, we need not consider the parties’
arguments or the circuit court’s determinations about acquiescence. Sweet v. Berge, 113 Wis. 2d
61, 67, 334 N.W.2d 559 (Ct. App. 1983) (stating that an appellate court need not address
additional grounds to sustain a circuit court’s order when one ground is dispositive).

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Throughout this opinion, we refer to the parcel owned by Fox and Stahlnecker as
the “Fox parcel,” the parcel owned by the Vieths as the “Vieth parcel,” and the
strip of property in dispute as the “disputed strip.”

¶3 The parties agree that the disputed strip is included in the legal
description of the Vieths’ parcel. However, Fox and Stahlnecker claim to have
acquired title to the disputed strip by adversely possessing it for more than twenty
years before the Vieths purchased their parcel.

¶4 After this dispute surfaced, Fox and Stahlnecker brought this action
to quiet title in the circuit court, seeking a judgment under WIS. STAT. § 841.01
declaring that they own the disputed strip. In their answer, the Vieths denied that
Fox and Stahlnecker’s activities in the disputed strip amounted to adverse
possession, and they argued that their purchase of the Vieth parcel extinguished
any adverse possession claim. Additionally, the Vieths filed a counterclaim for
trespass based on two instances in which Fox and Stahlnecker allegedly entered
the disputed strip after the Vieths purchased their parcel. As discussed at greater
length below, Fox and Stahlnecker filed their reply to the counterclaim four days
late, the Vieths moved to strike the reply and sought default judgment on their
counterclaim, and the circuit court denied the Vieths’ motions, accepting the tardy
reply.

¶5 Following discovery, the case proceeded to a two-day bench trial.
Generally speaking, Fox and Stahlnecker introduced their own testimony and the
testimony of others who had lived in the neighborhood regarding the historical use
of the disputed strip. The Vieths introduced surveys placing the disputed strip in
the Vieth parcel, the testimony of the surveyor, and their own testimony regarding
their actions and observations since 2018. The following summary of facts is

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derived from the circuit court’s findings and is supplemented by the testimony and
exhibits presented at trial. These facts have not been meaningfully disputed at trial
or on appeal, except as noted below.

¶6 The Fox and Vieth parcels sit side by side in a residential
subdivision. The lot sizes on their block are small, with the houses situated
closely together. The Vieth parcel is to the east, and its entire western boundary
abuts the eastern boundary of the Fox parcel.

¶7 The disputed strip runs the full length of the shared boundary
between the parcels. Its western edge is marked by a concrete porch leading out of
Fox and Stahlnecker’s house. Its eastern edge is marked by the backside of a
retaining wall. The retaining wall is itself indisputably situated on the Vieth
parcel, and it is currently comprised of concrete blocks. The retaining wall was
previously comprised of railroad ties, and it was rebuilt in or around 2004 by the
Vieths’ immediate predecessor in interest, Geraldine Bloyer and her son-in-law,
David Chellevold. As a result of the topography created by the retaining wall, the
northern portion of the disputed strip is, and has been, elevated several feet above
the remainder of the Vieth parcel, and on roughly the same plane as the Fox
parcel.

¶8 From at least 1983 up through 2018, the northern portion of the
disputed strip consisted of grass, bushes, perennials, and several cedar trees, and
the southern portion consisted of a dense row of twenty-five fully grown cedar
trees, smaller bushes, and perennials. A neighbor testified that the cedar trees may
have been on the disputed strip since the 1960s. The trees, bushes, and perennials
blocked access from the Vieth parcel to the disputed strip.

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¶9 Between 1983 and 1993, the Fox parcel was owned by the Black
family, who lived there with their son, Scott. Scott Black testified that he
regularly played in the disputed strip, and that he would run through the row of
cedar trees. He and his family performed lawn care and maintenance on the Fox
parcel, “all the way to [the retaining] wall.” These activities included mowing the
lawn, raking, and trimming trees. The Blacks continued to maintain the disputed
strip through the duration of their ownership of the Fox parcel, until they sold it to
Fox. The Vieths’ predecessors in interest never challenged the Blacks’
maintenance activities in the disputed strip.

¶10 Fox purchased the parcel in 1993. She married Stahlnecker in 1999
and, upon their marriage, Stahlnecker moved into the residence on the parcel. It is
undisputed that, in 2008, Fox signed a quitclaim deed transferring ownership of
the parcel to herself and Stahlnecker. Fox and Stahlnecker continued to live in the
residence on the Fox parcel until 2015, at which time they purchased another
residence and began renting the Fox parcel to tenants.

¶11 From 1993 through 2015, Fox and Stahlnecker occupied the
disputed strip as owners of a residential parcel would, as a part of their backyard.
During the summer months, Fox regularly placed a downspout in the disputed
strip. She planted and maintained tulips, lilies, and other perennials in the
disputed strip, pinching off old buds and dividing the tulip bulbs as needed. She
watered the plants, pulled weeds, and used a weed eater in the disputed strip.
Beginning in 1999, Stahlnecker maintained the disputed strip by trimming the
cedar trees, raking leaves underneath the trees, cleaning up the area around the
trees, mowing the grass, and performing general yard maintenance. After the
Vieths’ immediate predecessor (Bloyer, with the assistance Chellevold) rebuilt the
retaining wall, Fox planted bridal wreath and firebush atop the wall in the disputed

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strip. A neighbor testified that he regularly saw Fox and Stahlnecker maintaining
the disputed strip.

¶12 There was no evidence presented at trial that the Vieths’
predecessors challenged Fox and Stahlnecker’s use of the disputed strip. Linda
Judkins, a tenant of one such predecessor, believed that the Vieth parcel extended
no farther west than the retaining wall, and that it did not encompass the disputed
strip. Neither Judkins nor her child maintained or even accessed the disputed strip
during their three-year tenancy at the property. Likewise, when Chellevold rebuilt
the retaining wall, he asked Fox for permission, as doing so would require him to
place the top block of the wall further west than the retaining wall had been, into
the disputed strip.

¶13 Fox and Stahlnecker hired Lawrence Schmit to survey the Fox
parcel in 2010. At trial, Schmit testified that surveying in that particular area of
Darlington is fraught with difficulties. According to the survey Schmit produced
in 2010, the disputed strip was part of the Vieth parcel. Initially, Schmit staked
out a boundary line that cut through the middle of Fox and Stahlnecker’s concrete
porch and through their picture window. Fox told Schmit that the boundary was
incorrect and Schmit adjusted it, placing the boundary along the edge of the porch
rather than through the middle of the porch. Fox continued to believe that the
survey incorrectly depicted the boundary line. However, she did not hire another
surveyor, nor did Fox or Stahlnecker take any legal action at that time to confirm
their ownership of the disputed strip.

¶14 Fox and Stahlnecker purchased their other residence in 2015.
Thereafter, they began renting the Fox parcel to tenants. As discussed in greater
detail below, the parties dispute the extent to which the tenants continued to

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maintain the disputed strip in Fox and Stahlnecker’s stead. Although the circuit
court found that Fox and Stahlnecker’s open, hostile, exclusive, continuous, and
notorious use of the disputed strip continued until at least 2018, the circuit court
did not make any additional findings about whether the tenants continued to
maintain the disputed strip after Fox and Stahlnecker moved out of that residence
in 2015.

¶15 In 2018, the Vieths purchased the Vieth parcel from Geraldine
Bloyer’s estate. John Vieth testified that, prior to purchasing the Vieth parcel, he
and Lila Vieth were eager to determine its boundaries because they were interested
in improving the landscaping. As discussed more fully below, the Vieths looked
at publicly available documents and visited the property on several occasions. At
trial the Vieths both testified that, at the time they decided to purchase the parcel,
they believed it included the disputed strip.

¶16 After purchasing the parcel, the Vieths made changes to the
landscaping of the property. John Vieth testified that he spoke with his neighbors,
including Fox, to provide them with notice of his plan to remove the cedar trees in
the disputed strip. Vieth and Fox both testified to a conversation in which Vieth
either told Fox about his plan to remove the trees, or asked Fox for her permission
to remove them. Fox testified that she gave Vieth permission to remove the trees
on the condition that he notify her when the removal would occur so she could be
present when others were on her property. Vieth testified that he did not ask Fox
for permission, and that, during the conversation, Fox acknowledged that the trees
and bushes on the disputed strip belonged to the Vieths.

¶17 Not long after that conversation, John Vieth removed the cedar trees
and other plantings in the disputed strip without notifying Fox. A dispute then

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ensued over who held title to the disputed strip. In 2020, the Vieths hired Schmit
to survey their parcel. Consistent with his survey of the Fox parcel from 2010,
Schmit’s 2020 survey again placed the disputed strip in the Vieth parcel.
Thereafter, the Vieths placed no trespassing signs in the disputed strip and sought
a permit to build a privacy fence. Those actions prompted Fox and Stahlnecker to
file this lawsuit.

¶18 Following the close of the trial testimony, the circuit court issued an
oral ruling, which it later supplemented through a written order. The court
determined that Fox and Stahlnecker proved that they owned the disputed strip
through adverse possession, acquiescence, or both. According to the court, their
adverse possession claim ripened no later than 2013—that is 20 years after Fox
purchased the parcel.

¶19 More specifically, the circuit court determined that Fox (and later
Stahlnecker) had occupied the disputed strip in an open, notorious, hostile,
exclusive, and continuous manner from 1993 until at least as late as 2018. Among
other things, the court found that Fox and Stahlnecker had cultivated and
improved the disputed strip by caring for the grass, bushes, perennials, and cedar
trees that were on it when Fox purchased the parcel, and by planting other flowers,
bushes, and perennials on the disputed strip. It found that Fox had always used the
disputed strip as her own, and that she and Stahlnecker used it the way an ordinary
owner of such property would as though “it was a part of [their] backyard.” The
court determined that these activities were sufficient to apprise a reasonably
diligent landowner of the adverse possession, and further determined that “it was
understood by all of [Fox’s] neighbors that the land constituting the disputed strip
was her land.” Among other things, the court found it significant that Chellevold
“sought and received permission from [Fox and Stahlnecker] to replace the

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[retaining] wall” on the Vieth property. The court found that the Vieths’
predecessors in interest knew that Fox and Stahlnecker claimed the disputed strip
as their own and acquiesced to their possession and use of the disputed strip.

¶20 Additionally, the circuit court rejected the Vieths’ bona fide
purchaser defense founded on WIS. STAT. § 706.09. In the court’s view, § 706.09
could not function as a defense to adverse possession claims and, even if it could,
§ 706.09 was not a defense in this case because the Vieths had affirmative notice
of the adverse claim.

¶21 Accordingly, the circuit court entered a judgment declaring Fox and
Stahlnecker to be the exclusive owners of the disputed strip, and it dismissed the
Vieths’ trespass counterclaim with prejudice. The Vieths appeal.

DISCUSSION

¶22 On appeal, the Vieths contend that the circuit court erred: (1) by
declining to grant default judgment in their favor on their counterclaim; (2) by
determining that Fox and Stahlnecker met their burden to prove adverse
possession based on the admissible evidence presented at the bench trial; and
(3) by determining that WIS. STAT. § 706.09’s bona fide purchaser defense was not
a defense to Fox and Stahlnecker’s claim. We address these issues in turn.

I. Default Judgment

¶23 The Vieths argue that they are entitled to default judgment on their
counterclaim because Fox and Stahlnecker did not file a timely reply. By way of
background, after Fox and Stahlnecker initiated this lawsuit by filing their
complaint, the Vieths filed an answer, affirmative defenses, and a counterclaim for
trespass. The premise of the counterclaim was that, if Fox and Stahlnecker had

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not acquired ownership of the disputed strip through adverse possession or
acquiescence, they were liable for coming onto the disputed strip on two separate
occasions. As discussed, Fox and Stahlnecker filed a reply denying that they were
liable for trespass, but they filed it four days after the statutory time to file such a
reply.

¶24 The Vieths moved to strike the late reply and sought default
judgment on their counterclaim under WIS. STAT. § 806.02. That statute provides
that “[a] default judgment may be rendered in favor of any party … if no issue of
law or fact has been joined on any claim asserted in the complaint, counterclaim,
or cross claim” and “the time for joining issue has expired.” See § 806.02(1).

¶25 Fox and Stahlnecker opposed the Vieths’ motions and also filed a
motion to retroactively enlarge their reply deadline. They argued that default
judgment should not be granted against them under WIS. STAT. § 806.02(1)
because they did not fail to join any issues of law or fact asserted in the
counterclaim. Among other things, they asserted that the Vieths’ counterclaim for
trespass was in direct opposition to their adverse possession and acquiescence
claims, which were the subject of their complaint and the Vieths’ answer, and,
therefore, that the pertinent legal and factual issues were already joined.
Additionally, Fox and Stahlnecker argued that the circuit court should accept their
late reply based on excusable neglect and the interests of justice under WIS. STAT.
§ 801.15(2)(a), or, alternatively, that they would be entitled to relief from any
default judgment under WIS. STAT. § 806.07.

¶26 The circuit court held a hearing on the parties’ motions. At the
hearing, the court denied the Vieths’ motion and accepted Fox and Stahlnecker’s
tardy reply. The court concluded that default judgment should not be granted

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under WIS. STAT. § 806.02(1) because the issues of law and fact presented by the
Vieths’ counterclaims had already been joined.3 The circuit court also concluded
that, even if some issue of law or fact had not been joined, Fox and Stahlnecker’s
reply deadline should be enlarged based on excusable neglect and the interests of
justice.

¶27 Whether to grant or deny a party’s motion for default judgment is
within the circuit court’s discretion, and we review the decision for an erroneous
exercise of discretion. See Johns v. County of Oneida, 201 Wis. 2d 600, 605, 549
N.W.2d 269 (Ct. App. 1996). We will not find an erroneous exercise of discretion
if the record shows that discretion was in fact exercised and we can perceive a
reasonable basis for the circuit court’s decision. See Sukula v. Heritage Mut. Ins.
Co., 2005 WI 83, ¶8, 282 Wis. 2d 46, 698 N.W.2d 610. We generally look for
reasons to sustain discretionary determinations by the circuit court. Id.

¶28 On appeal, the Vieths contend that the circuit court erroneously
exercised its discretion. They argue that default judgment was warranted because
issues of law and fact were not joined or, in the alternative, they summarily assert
that Fox and Stahlnecker’s delay was not caused by excusable neglect. For the
reasons explained below, we conclude that the circuit court properly exercised its
discretion.

3
At times, the circuit court appeared to frame the issue as whether Fox and Stahlnecker
were required to file a reply in response to the Vieths’ counterclaims. However, WIS. STAT.
§ 802.06 unambiguously requires parties to file a reply to any counterclaims. Correctly stated,
the issue is whether default judgment is the appropriate remedy for Fox and Stahlnecker’s failure
to timely file the required reply.

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¶29 First, we agree with the circuit court that the majority of the legal
and factual issues raised by the trespass counterclaim had already been joined by
Fox and Stahlnecker’s complaint and the Vieths’ answer to that complaint. As the
court reasoned, “the essence of the counterclaim basically is to re-assert the denial
[of Fox and Stahlnecker’s claimed ownership to the disputed strip] and assert an
issue of trespass.” The “central issue … is who owns this property,” and the
claims in the complaint and counterclaim both turn on that singular issue. Under
those circumstances, “to say that … issue[s] of law and … fact haven’t been
joined, [does not] hold up.”

¶30 Second, even if there was some technical failure to join issue, it
would have been well within the circuit court’s discretion to deny the Vieths’
motion for default judgment on the ground that, if granted, the court would
subsequently reopen the default judgment under WIS. STAT. § 806.07(1).

¶31 WISCONSIN STAT. § 806.07(1) provides a circuit court with
discretion, “[o]n motion and upon such terms as are just,” to “relieve a party or
legal representative from a judgment” for specified reasons. These reasons
include “[m]istake, inadvertence, surprise or excusable neglect” under para. (1)(a),
and “[a]ny other reasons justifying relief from the operation of the judgment”
under para. (1)(h).

¶32 A court may grant relief under WIS. STAT. § 806.07(1)(h) if
extraordinary circumstances are present. Miller v. Hanover Ins., Co., 2010 WI
75, ¶34, 326 Wis. 2d 640, 785 N.W.2d 493. In making this determination, the
court considers a wide range of factors, including the following interest of justice
factors: (1) “‘whether the judgment was the result of a conscientious, deliberate
and well-informed choice of the claimant;’” (2) “‘whether the claimant received

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the effective assistance of counsel;’” (3) “‘whether relief is sought from a
judgment in which there has been no judicial consideration of the merits and the
interest of deciding the particular case on the merits outweighs the finality of
judgments;’” (4) “‘whether there is a meritorious defense to the claim;’” and
(5) “‘whether there are intervening circumstances making it inequitable to grant
relief.’” Johns, 201 Wis. 2d at 608 (quoted source omitted). No finding of
excusable neglect is required for a court to grant relief under § 806.07(1)(h).
Miller, 326 Wis. 2d 640, ¶45. And Wisconsin precedent recognizes that a court
may deny a motion for default judgment in the first instance on the basis that, if
the court were to grant the default judgment, it would go on to reopen that
judgment under § 806.07(1). See Johns, 201 Wis. 2d at 606 (“granting the default
judgment and then reopening the judgment under § 806.07 would be a needless
formality”); see also Miller, 326 Wis. 2d 640, ¶45.

¶33 Here, the circuit court expressly considered the five interest of
justice factors and determined that they weighed in favor of enlarging Fox and
Stahlnecker’s reply deadline. More specifically, the court found that the failure to
timely reply was a good faith mistake and not the result of a deliberate strategic
choice. It found that the mistake could be attributed to the attorney, and not to Fox
and Stahlnecker themselves. The court found that Fox and Stahlnecker’s attorney
had been in communication with the Vieths’ attorney during the four-day period of
delay, and that the Vieths were not prejudiced by the delay. It observed that there
had been no judicial consideration of the merits of the case, and that Fox and
Stahlnecker had a potentially meritorious defense to the Vieths’ counterclaims—
namely, the adverse possession claim that was the subject of their original
complaint. It also noted that the law generally disfavors default judgments. The
Vieths do not argue that any of these findings are clearly erroneous, nor do they

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dispute that, based on these findings, the court could grant relief from a default
judgment under WIS. STAT. § 806.07(1)(h).

¶34 Accordingly, the circuit court could have properly denied the Vieths’
motion for default judgment on that basis. See Miller, 326 Wis. 2d 640, ¶45;
Johns, 201 Wis. 2d at 605-06. We acknowledge that this was not the precise
rationale provided by the circuit court. However, an appellate court can affirm a
circuit court’s exercise of discretion on an alternative ground, Glendenning’s
Limestone & Ready-Mix Co. v. Reimer, 2006 WI App 161, ¶14, 295 Wis. 2d 556,
721 N.W.2d 704, and we do so here. Accordingly, we need not separately
consider the Vieths’ assertion that Fox and Stahlnecker failed to show that their
four-day delay in filing their reply was the result of excusable neglect.

II. Adverse Possession

¶35 We next address the Vieths’ arguments that the circuit court
erroneously determined that Fox and Stahlnecker proved they adversely possessed
the disputed strip. The Vieths argue that the circuit court improperly relied on
inadmissible hearsay evidence as a part of its determination and, further, that the
admissible trial evidence was insufficient to support the court’s determination.
We first address the Vieths’ evidentiary argument about hearsay, and then turn to
their argument about the sufficiency of the evidence.

A. Hearsay

¶36 The Vieths’ hearsay argument is based on an out-of-court
statement—an inquiry, really—that was allegedly made by Chellevold. As
mentioned, Chellevold was the son-in-law of the Vieths’ immediate predecessor,
Bloyer, and he did lawn care and maintenance on the Vieth parcel in the years

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before the Vieths purchased it. In or around 2004, Chellevold removed the
existing retaining wall, which was made of railroad ties, and he replaced it with
the concrete block structure that was in place at the time the Vieths purchased the
property. Chellevold passed away before the trial in this matter and therefore was
not available to testify.

¶37 On appeal, the Vieths take aim at the circuit court’s reliance on
testimony that Chellevold “sought and received permission from [Fox and
Stahlnecker] to replace the [retaining] wall.” We observe that, apart from the
testimony about Chellevold seeking permission to replace the retaining wall, the
circuit court allowed the parties to elicit testimony about other out-of-court
statements allegedly made by Chellevold, including some testimony that was
elicited by the Vieths. However, the Vieths do not make any argument that the
circuit court improperly relied on any other out-of-court statement by Chellevold.
Accordingly, our focus remains on the testimony about Chellevold seeking
permission to replace the retaining wall.

¶38 By way of background, the testimony in question was provided
during Fox’s direct examination. Fox’s attorney inquired whether Chellevold had
“ask[ed] about installing any part of the retaining wall on [Fox’s] property or what
[Chellevold and Bloyer] thought was [Fox’s] property.” The Vieths’ attorney
objected to this questioning as leading, and Fox’s attorney rephrased his question.
The Vieths’ attorney did not object on any ground to the question as rephrased.
Fox then testified that Chellevold braced the concrete blocks in a manner that
sloped toward the Fox parcel. She testified that, “when they got up to the top
block, … Mr. Chellevold came over and asked[,] …‘Is it a problem if the top
block is on your property?’” According to Fox, she said it was not a problem.
The Vieths did not object to that aspect of Fox’s testimony on any ground.

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¶39 In its ultimate decision, the circuit court found it “significant” that
Chellevold had asked Fox for permission to replace the retaining wall. As we
understand it, the significance of Fox’s testimony was the inference that, at the
time the retaining wall was replaced, the owners of the Fox and Vieth parcels both
believed that the western edge of the retaining wall marked the boundary between
the parcels.

¶40 On appeal, the Vieths contend that this testimony from Fox
contained inadmissible hearsay, and that the circuit court erroneously exercised its
discretion by relying on it. We observe that the issue of Chellevold’s out-of-court
inquiry raises a host of questions about whether it should be considered hearsay at
all,4 and, if so, whether any hearsay exception applies.5 Had the Vieths made a
contemporaneous objection to Fox’s testimony, we may have had occasion to
address some or all of those questions on appeal.

¶41 However, the Vieths forfeited any such argument by failing to object
to the questioning and testimony at trial. State v. Hartman, 145 Wis. 2d 1, 9, 426
N.W.2d 320 (1988) (an evidentiary objection must clearly state the specific
ground upon which the objection is based, and an objection preserves for appeal

4
For example, Chellevold’s out-of-court inquiry could implicate rules concerning verbal
utterances that do not assert any fact, or that are admitted for something other than the truth of the
matter asserted. See, e.g., Caccitolo v. State, 69 Wis. 2d 102, 107-08, 230 N.W.2d 139 (1975)
(concluding that a witness’s testimony that the declarant asked for his permission to use the
witness’s shed was an utterance, and not hearsay, because the declarant was not asserting any
fact); see also DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES; WISCONSIN EVIDENCE
§ 801.204 (4th ed. 2017) (addressing non-assertive utterances).
5
For example, WIS. STAT. § 908.03(20) provides a hearsay exception for statements of
reputation concerning boundaries. Based on our review, this exception has never been interpreted
by any published appellate decision in Wisconsin.

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only the specific grounds stated in the objection); see also State v. Kutz, 2003 WI
App 205, ¶27, 267 Wis. 2d 531, 671 N.W.2d 660 (“The purpose of requiring an
adequate objection to preserve an issue for appeal is to give the parties and the
court notice of the disputed issue, as well as a fair opportunity to prepare and
address it in a way that most efficiently uses judicial resources.”).

¶42 The Vieths contend that they sufficiently preserved their objection to
Fox’s testimony when they objected on hearsay grounds to similar questioning
that had previously been directed at Stahlnecker.6 The Vieths also suggest that
they preserved their objection to Fox’s testimony when they objected to two
questions posed to another witness, whom Chellevold had hired to mow the lawn.7
The Vieths cite to State v. Matson, 2003 WI App 253, ¶32, 268 Wis. 2d 725, 674
N.W.2d 51, for the proposition that, having unsuccessfully objected to the
questioning of those other witnesses on hearsay grounds, “it was not necessary …
to continue to make objections [to Fox’s testimony] that would be futile.”

¶43 We disagree. Matson does not stand for the broad proposition that,
having lodged hearsay objections to questioning of prior witnesses at trial, that
party preserves its objections to all such questions eliciting hearsay going forward.

¶44 In Matson, the defendant had been convicted of criminal offenses
and was about to be sentenced. Id., ¶1. An investigating officer sent a letter to the

6
Notably, although Stahlnecker was asked about a conversation in which Chellevold
sought permission to replace the retaining wall, the Vieths acknowledge that Stahlnecker did not
testify about any such conversation.
7
These questions had nothing to do with the testimony relied on by the circuit court—
that Chellevold “sought and received permission from [Fox and Stahlnecker] to replace the
[retaining] wall.”

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circuit court which asked it to reject the joint sentencing recommendation and
impose the maximum sentence. Id. Prior to sentencing, Matson’s counsel filed a
motion to exclude the letter from the court’s consideration at sentencing, but the
court denied the motion. Id., ¶¶4-8. On appeal, Matson argued that the sentencing
court had improperly considered the letter. Id., ¶1. The State argued that Matson
forfeited any objection to the letter based on his submissions and arguments at
sentencing. Id., ¶28. We concluded that Matson sufficiently preserved his
objection to the letter. Id., ¶32. Because Matson already objected to the court’s
consideration of the letter and his objections were unequivocally denied, we stated
that “[f]urther objections would most certainly have proved futile,” and that
Matson’s submissions at sentencing were “merely a tactical way to contend with
the circuit court’s decision and cannot be considered [forfeiture] of the issue.” Id.

¶45 The result in Matson is consistent with the general rule that “[a]
definitive pretrial ruling preserves an objection to the admissibility of evidence
without the need for an objection at trial, as long as the facts and law presented to
the court in the pretrial motion are the same as those that arise at trial.” Kutz, 267
Wis. 2d 531, ¶27. Matson did not carve out a broad exception to the rule that,
generally speaking, litigants must object to evidence during trial in order to
preserve an evidentiary error for appellate review. Hartman, 145 Wis. 2d at 9;
Kutz, 267 Wis. 2d 531, ¶27. Accordingly, we conclude that the Vieths forfeited
any hearsay objection to Fox’s testimony, and we decline to exercise our
discretion to overlook the forfeiture.

B. Sufficiency of the Evidence

¶46 We now address the Vieths’ argument that the evidence introduced
by Fox and Stahlnecker was insufficient to prove adverse possession. “‘Adverse

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possession is a legal action that enables a party to obtain valid title of another’s
property by operation of law.’” Kruckenberg v. Krukar, 2017 WI App 70, ¶3,
378 Wis. 2d 314, 903 N.W.2d 164 (quoting Wilcox v. Estate of Hines, 2014 WI
60, ¶19, 355 Wis. 2d 1, 849 N.W.2d 280); see also WIS. STAT. § 893.25(1).

¶47 The requirements for an adverse possession claim that is not founded
on a written instrument are set forth in WIS. STAT. § 893.25. That statute “codifies
the common law elements of adverse possession.” Wilcox, 355 Wis. 2d 1, ¶20. It
permits a party to acquire title to real property by showing that the party (along
with any predecessors in interest) has adversely possessed the property for an
uninterrupted period of twenty years. See § 893.25(1). Real estate is possessed
adversely under the statute only if “the person possessing it, in connection with his
or her predecessors in interest, is in actual continued occupation under claim of
title, exclusive of any other right,” and only to the extent it is “actually occupied.”
See § 893.25(2)(a), (b). In addition, the property possessed must either be
“protected by a substantial enclosure,” or “usually cultivated or improved.” See
§ 893.25(2)(b)1., 2.; see also Peter H. & Barbara J. Steuck Living Tr. v. Easley,
2010 WI App 74, ¶13, 325 Wis. 2d 455, 785 N.W.2d 631.

¶48 “In order to constitute adverse possession, ‘the use of the land must
also be open, notorious, visible, exclusive, hostile, and continuous,’” such as
would apprise a reasonably diligent landowner and the public “‘that the possessor
claims the land as his own.’” Steuck Living Tr., 325 Wis. 2d 455, ¶14 (quoting
Pierz v. Gorski, 88 Wis. 2d 131, 137, 276 N.W.2d 352 (Ct. App. 1979)). The type
of land at issue, as well as the “size and nature of the disputed area[,] are relevant
in deciding if the use is sufficient to apprise the true owner of an adverse claim.”
Steuck Living Tr., 325 Wis. 2d 455, ¶14.

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¶49 A party seeking to claim title through adverse possession bears the
burden of proving the above elements by “clear and positive” evidence. Id., ¶15.
The evidence should be strictly construed against the claimant, and all reasonable
presumptions are made in favor of the title holder. Id.

¶50 “Review of an adverse possession claim presents a mixed question
of fact and law.” Wilcox, 355 Wis. 2d 1, ¶15. “We accept the circuit court’s
findings of fact unless they are clearly erroneous,” and we review de novo whether
those facts are sufficient to fulfill the legal standard for adverse possession. Id.

¶51 As noted above, the circuit court determined that Fox and
Stahlnecker established that they had adversely possessed the disputed strip, that
their adverse possession claim ripened no later than 2013, and that their possession
of the disputed strip continued through 2018. In reaching these conclusions, the
circuit court relied heavily on the “uncontradicted” nature of Fox’s and
Stahlnecker’s testimony regarding their occupation of the disputed strip between
1993 and 2018. The court noted that the Vieths presented little to no competent or
credible evidence regarding Fox and Stahlnecker’s use of the disputed strip during
that time period. The Vieths nonetheless contend that Fox’s and Stahlnecker’s
testimony, upon which the circuit court’s factual findings were based, was
insufficient to establish the essential elements of adverse possession. Although
they assert that the circuit court’s findings “were generalizations that expanded on
what testimony was actually given at trial,” they do not contend, and do not
attempt to persuade us, that any of the court’s findings were clearly erroneous.
We therefore accept the court’s factual findings as true, and we review de novo
whether the facts found by the court fulfill the essential elements that the Vieths
challenge.

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¶52 The Vieths argue that Fox’s and Stahlnecker’s testimony was
insufficient to establish “actual continued occupation” under WIS. STAT.
§ 893.25(2)(a), and also that their activities in the disputed strip did not satisfy the
requirement that the property be “usually cultivated or improved” under
§ 893.25(2)(b)2.8 We address these requirements in turn.

1. Actual Continued Occupation

¶53 WISCONSIN STAT. § 893.25(2)(b) requires that the adverse possessor
“actually occupy” the land in question, and § 893.25(1) and (2)(a) require that they
do so for a continuous period of twenty years. Our cases define “actual
occupancy” as “the ordinary use of which the land is capable and such as an owner
would make of it.” Burkhardt v. Smith, 17 Wis. 2d 132, 138, 115 N.W.2d 540
(1962). The ordinary use of which the land is capable depends on the size and
nature of the land in question. Id.

¶54 As an initial matter, the Vieths do not challenge that Fox and
Stahlnecker’s use of the disputed strip as an extension of their backyard was
anything but the “ordinary use of which the land is capable,” and what “a true
owner would make of it,” given its size, location, and nature. Id. We too
conclude that Fox and Stahlnecker’s use of the disputed strip was an ordinary use.
Indeed, after the Vieths attempted to repossess the disputed strip, they also used it

8
The Vieths also challenge the circuit court’s determination that the property was
protected by a substantial enclosure, but we need not address that argument because our
conclusion that Fox and Stahlnecker usually cultivated and improved the disputed strip makes it
unnecessary to consider the substantial enclosure requirement in WIS. STAT. § 893.25(2)(b)1.

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No. 2021AP1200

as an extension of their backyard, and they engaged in similar lawn care and plant-
related activities as those engaged in by Fox and Stahlnecker.

¶55 Rather, the Vieths assert that Fox and Stahlnecker’s activities in the
disputed strip were too sporadic, or too occasional, to be “continuous,” and thus
Fox and Stahlnecker were not in “actual continued occupation” under WIS. STAT.
§ 893.25(1) and (2)(a). The Vieths assert that the only activity that was remotely
“continuous” was Stahlnecker’s mowing of the grass.

¶56 We reject this argument because it misconstrues the continuity
requirement, which WIS. STAT. § 893.25(1) codifies. To satisfy the continuity
requirement, the adverse possessor must adversely possess the land in question for
an uninterrupted period of twenty years. However, it is not required that the
adverse possessor continuously perform all of the activities which together
comprise their “actual occupancy” for the 20-year period. Nor is it required that
those activities be performed at a specific frequency, as the Vieths suggest. See
Burkhardt, 17 Wis. 2d at 139. Rather, our cases establish that the “[t]he
requirement of continuity of possession … is satisfied by activities which are
seasonal in character and which are commensurate with and appropriate to
seasonal uses, needs, requirements and limitations, having regard for the location
and the adaptability of the land to such use.” Id.

¶57 The Vieths’ argument also appears to misconstrue the requirement of
“actual occupancy.” “Actual occupancy” does not require a constant physical
occupation of the land. See id. at 137 (explaining that “actual continued
occupation” without enclosure “need not be characterized by constant physical
occupancy”). The performance of ordinary seasonal activities, consistent with the
needs of the land, can amount to “actual occupancy.” Id.

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¶58 Here, the circuit court found that Fox and Stahlnecker performed
many of the ordinary seasonal activities that the owner of a residential backyard
would perform. They mowed the grass, pulled and trimmed weeds, planted
perennials and flowers, maintained the perennials and flowers by watering them,
pinching off old buds and splitting their bulbs, trimmed the cedar trees, raked the
leaves, and placed a downspout in the disputed strip during the summer months.
Although the record does not contain testimony specifying the precise frequency
with which most of these acts occurred, the evidence and the circuit court’s
findings reasonably suggest that Fox and Stahlnecker performed them consistent
with the seasonal needs of the land. The circuit court did not err in determining
that collectively, these seasonal activities were sufficient to amount to “actual
occupancy” under WIS. STAT. § 893.25(2)(b). And, because the court found that
Fox and Stahlnecker’s use of the disputed strip as a backyard was uninterrupted
and continued for twenty years, the court did not err in determining that they were
in “actual continued occupation” of the disputed strip under § 893.25(2)(a).

¶59 Relatedly, the Vieths argue that Fox and Stahlnecker failed to prove
that they “actually occupied” the entirety of the disputed strip under WIS. STAT.
§ 893.25(2)(b) because they mowed only its northern portion, and the southern
portion consisted of dirt and trees that could not be mowed. But this argument is
contrary to the circuit court’s findings of fact, which are not clearly erroneous.
The court found that Fox and Stahlnecker used the entirety of the disputed strip as
an extension of their backyard by planting and caring for the perennials and
flowers in the northern and southern portions alike, by pulling weeds in both
portions, by trimming the trees in both portions, and by raking the leaves in both
portions. The court did not err in concluding that these activities sufficed to

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establish that Fox and Stahlnecker “actually occupied” the entirety of the disputed
strip.

2. Usual Cultivation and Improvement

¶60 We now turn to the Vieths’ argument that Fox and Stahlnecker did
not “usually cultivate or improve” the disputed strip under WIS. STAT.
§ 893.25(2)(b)2. In its essence, the Vieths’ argument is that the lawn care and
gardening activities undertaken by Fox and Stahlnecker do not constitute “usual
cultivation” or “improvement” as a matter of law.

¶61 WISCONSIN STAT. § 893.25(2)(b)2. does not define “cultivation” or
“improvement,” but, under our precedents, land is “usually cultivated and
improved” when it is “put to the exclusive use of the occupant as the true owner
might use such land in the usual course of events.” Burkhardt, 17 Wis. 2d at 138.
Such use of the land must be sufficiently visible to give notice of exclusion to the
true owner. Id. The size and nature of the disputed area are both relevant in
deciding if the use is sufficient to apprise the true owner of the adverse claim.
Steuck Living Tr., 325 Wis. 2d 455, ¶14. Accordingly, what may not constitute
cultivation or improvement of wild lands may be sufficient to constitute
cultivation or improvement in a residential neighborhood. See Pierz, 88 Wis. 2d at
136-37 (citing Austin v. Holt, 32 Wis. 478, 490-91 (1873)).

¶62 Before discussing whether the circuit court erred when it determined
Fox and Stahlnecker “usually cultivated and improved” the disputed strip, we
pause briefly to comment on its size and nature. As noted, the disputed strip is
located on the boundary of two residential backyards in a city subdivision. In
1993, when Fox purchased the Fox parcel and first began occupying the disputed
strip, it had already been developed and improved with landscaping features

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including the row of cedar trees, bushes, perennials, and flowers. Although the
circuit court found that Fox and Stahlnecker “added to” the existing landscaping
features by planting more bushes, perennials, and flowers, the parties appear to
agree that Fox and Stahlnecker did not substantially change the appearance of the
disputed strip. Rather, they maintained and added to the landscaping features that
existed when Fox purchased the parcel.

¶63 The Vieths contend that Fox and Stahlnecker’s activities in the
disputed strip fall short of usual cultivation and improvement. We now consider
and reject their various arguments on this point.

¶64 The Vieths assert that Fox and Stahlnecker’s “plant-related
activities” do not constitute “cultivation” or “improvement” within the meaning of
WIS. STAT. § 893.25(2)(b)2. To that end, they define “cultivation” as the raising
of crops, and they define “improvement” to mean the erection of permanent
structures or a garden. However, the Vieths’ narrow definitions of “cultivation”
and “improvement” are not supported by the statutory language or any of the cases
they cite. The statute leaves those terms undefined, and our cases have defined
“cultivation and improvement” broadly as putting the land “to the exclusive use of
the occupant as the true owner might use such land in the usual course of events.”
Burkhardt, 17 Wis. 2d at 138. The Vieths do not identify any legal authority to
support the proposition that “plant-related activities” cannot constitute a usual and
exclusive use of residential land.

¶65 In their reply brief, the Vieths cite to Engel v. Parker, 2012 WI App
18, 339 Wis. 2d 208, 810 N.W.2d 861, for the proposition that “casual weeding
[is] not enough to establish adverse possession.” However, even if we were to
accept the Vieths’ interpretation of Engel, that opinion does not help the Vieths.

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The circuit court’s findings about Fox and Stahlnecker’s plant-related activities in
this case amount to much more than “casual weeding,” and the Vieths do not show
that the court’s findings were clearly erroneous.

¶66 To the extent that the Vieths mean to argue that Fox and
Stahlnecker’s plant-related activities in the disputed strip did not sufficiently
change its appearance to put the rightful owner on notice of the adverse possession
claim, they cite no authority that would support that argument. To be sure, our
precedents require that an adverse possessor’s cultivation and improvement
substantially change the appearance of “wild lands.” Pierz, 88 Wis. 2d at 136-37
(“Improvements sufficient to apprise the true owner of adverse possession of wild
lands must substantially change the character of the land.” “Where the land
remains ‘wild’ after the improvements are completed, no owner should be held to
notice of the improvements.” (citing Austin v. Holt, 32 Wis. at 490-91)). In such
cases, the transformation of the land from “wild” to developed serves to notify the
titleholder that another has claimed the land as their own, and serves to rule out the
possibility that evidence of adverse use was caused by benign trespassers. Pierz,
88 Wis. 2d at 138. However, the Vieths do not point to any authority imposing
such a requirement upon the adverse possessor of developed residential land like
the disputed strip at issue here. And, again, the circuit court found that Fox and
Stahlnecker’s cultivation and improvements were sufficiently visible to alert the
owner of what became the Vieth parcel that they claimed the disputed strip as their
own.

¶67 Finally, in their reply brief, the Vieths contrast Fox and
Stahlnecker’s activities with those of the adverse possessor in Burkhardt, and they
assert that Fox and Stahlnecker’s activities were qualitatively and quantitatively
less than what was proven to constitute cultivation and improvement in that case.

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In Burkhardt, 17 Wis. 2d 132, our supreme court concluded that the adverse
possessor had “usually cultivated and improved” a rural lakefront lot by building a
cottage, a partial fence, a terrace walk, and a rock garden; by installing a
clothesline and septic tank; by cutting and burning dead trees, bushes, and stumps;
and by spading the entire area and planting blue grass. Id. at 134-36. However,
Burkhardt cannot be read as setting a minimum qualitative or quantitative
threshold for usual cultivation and improvement. In O’Kon v. Laude, 2004 WI
App 200, 276 Wis. 2d 666, 688 N.W.2d 747, for example, the purported adverse
possessors mowed the grass, planted raspberries, piled debris, and maintained a
garden on a strip of land between two residential lots, id., ¶¶16-17, and we
concluded that they raised a genuine issue of material fact as to whether they had
usually cultivated and improved that strip of land, id., ¶¶2-3, 18. Although these
activities may not have been sufficiently visible in a forested area to apprise a
reasonably diligent landowner of the adverse claim, we concluded that they might
be sufficient in the context of adjoining residential lots. Id., ¶¶2-3. Likewise, in
Otto v. Cornell, 119 Wis. 2d 4, 349 N.W.2d 703 (1984), our supreme court
concluded that an adverse possessor had usually cultivated and improved an area
of land between two adjoining residential lots by planting ornamental trees to
establish a southern boundary line, mowing the area around the trees, and posting
a thermometer on one of the trees. Id. at 6, 8.

¶68 Based on the circuit court’s findings, Fox and Stahlnecker undertook
at least as many activities in the disputed strip as the adverse possessors in O’Kon
and Otto, if not more. And they certainly did more than the “casual weeding”
mentioned in Engel. Given the compact size of both the disputed strip and the
residential lots upon which it lies, the circuit court did not err when it determined

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No. 2021AP1200

that Fox and Stahlnecker’s activities were sufficiently visible to apprise a
reasonably diligent landowner of their adverse possession claims.

III. The Bona Fide Purchaser Defense

¶69 Having rejected the argument that Fox and Stahlnecker failed to
prove adverse possession, we turn to the Vieths’ argument that they have a defense
to the adverse possession claim based on the bona fide purchaser defense set forth
in WIS. STAT. § 706.09(1)(b) and (i).

¶70 Generally speaking, WIS. STAT. § 706.09 “operates as a ‘title
curative’ statute” that “corrects defects in title to real estate” and “frees property of
adverse claims and interests.” Turner v. Taylor, 2003 WI App 256, ¶¶8, 16, 268
Wis. 2d 628, 673 N.W.2d 716 (quoted source omitted). The statute functions as
an affirmative defense for bona fide purchasers of real property. Id., ¶16. That is,
the statute extinguishes otherwise legitimate adverse claims (or interests) in the
property if the validity or priority of the adverse claim is based upon one of eleven
situations enumerated in § 706.09(1)(a)-(k). Id. However, the defense is not
available to purchasers who have notice of the adverse claim, as defined in
§ 706.09(2), at the time of the purchase. Id., ¶8.

¶71 The parties dispute whether WIS. STAT. § 706.09 can be used as an
affirmative defense to adverse possession claims and, if so, whether the circuit
court correctly determined that the Vieths had notice of Fox and Stahlnecker’s
adverse possession claim at the time they purchased the Vieth parcel.

A. Availability of the Defense

¶72 We begin by briefly outlining the parties’ arguments about the
availability of the bona fide purchaser defense to an adverse possession claim. As

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we now explain, the parties arguments do not definitively resolve whether WIS.
STAT. § 706.09 can be a defense to a ripened adverse possession claim.

¶73 WISCONSIN STAT. § 706.09 provides, in relevant part:

(1) WHEN CONVEYANCE IS FREE OF PRIOR
ADVERSE CLAIM. A purchaser for valuable
consideration, without notice as defined in sub. (2), … shall
take and hold the estate or interest purported to be
conveyed to such purchaser free of any claim adverse to or
inconsistent with such estate or interest, if such adverse
claim is dependent for its validity or priority upon:

….

(b) Conveyance outside chain of title not identified
by definite reference. Any conveyance, transaction, or
event, not appearing of record in the chain of title to the
real estate affected, unless such … event is identified by
definite reference in an instrument of record in such
chain.…

….

(i) Facts not asserted of record. Any fact not
appearing of record, but the opposite or contradiction of
which appears affirmatively and expressly in a conveyance,
affidavit or other instrument of record in the chain of title
of the real estate affected for 5 years. Such facts may,
without limitation by noninclusion, relate to … possession
or adverse possession[.]

¶74 The Vieths assert that the ripening of Fox and Stahlnecker’s adverse
possession claim in 1993 is an “event not appearing of record in the chain of title”
under WIS. STAT. § 706.09(1)(b). See O’Neil v. Reemer, 2003 WI 13, ¶10, 259
Wis. 2d 544, 657 N.W.2d 403 (referring to the ripening of an adverse possession
claim as an “event” under a different statute, WIS. STAT. § 893.33). The Vieths
also assert that the twenty-plus years of adverse possession is a “fact not appearing
of record, … the opposite or contradiction of which appears affirmatively and
expressly in [their deed],” as contemplated by § 706.09(1)(i).

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¶75 By contrast, Fox and Stahlnecker contend that the bona fide
purchaser defense is wholly inapplicable to adverse possession claims. They point
out that, under Wisconsin law, adverse possession claims are interests in land that
are acquired “by operation of law.” See Wilcox, 355 Wis. 2d 1, ¶19. And they
rely on WIS. STAT. § 706.001(2)(a), which provides that “transactions [by] which
an interest in land is affected … [b]y act or operation of law” are excluded from
the scope of WIS. STAT. ch. 706.

¶76 Each party cites a case to support its position, but neither case
squarely addresses the viability of WIS. STAT. § 706.09 as a defense to an adverse
possession claim.9 Based on our own review, no published or persuasive
Wisconsin authority has examined this question.

¶77 Accordingly, the parties’ arguments and legal citations do not
definitely resolve whether WIS. STAT. § 706.09(1)(b) or (1)(i) can be a defense to
adverse possession claims. Rather than deciding that issue, we assume without

9
Fox and Stahlnecker cite to Rock Lake Estates Unit Ownership Ass’n v. Lake Mills,
195 Wis. 2d 348, 536 N.W.2d 415 (Ct. App. 1995). In that case, the court determined that a
claimant could not rely on WIS. STAT. § 706.09 to create a constructive easement against
purchasers who had notice of the adverse claim. The court reasoned that the statute acts as a
defense against adverse interests, but does not create ownership interests in land. The reasoning
in Rock Lake Estates does not foreclose the Vieths’ reliance on § 706.09 because the Vieths are
attempting to use the statute as a defense to Fox and Stahlnecker’s adverse claim, and are not
attempting to create an interest in land based on the language of § 706.09.

The Vieths cite to Anderson v. Quinn, 2007 WI App 260, 306 Wis. 2d 686, 743 N.W.2d
492. In that case, the court determined that WIS. STAT. § 706.09(1)(b) did not extinguish a
condominium association’s improperly recorded easements because the buyer had notice of the
use of the easements. Id., ¶¶19-23. In reaching this conclusion, the Anderson court stated that
nothing in § 706.09(1)(b) distinguishes between prescriptive rights and improperly recorded
rights. Id., ¶28. However, the Anderson court did not address adverse possession claims at all,
much less grapple with the issue of whether § 706.09 could be used as a defense to a ripened
adverse possession claim.

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No. 2021AP1200

deciding that § 706.09(1)(b) or (1)(i) could be such a defense, provided that the
purchaser did not have notice of the adverse claim. However, we conclude that
the defense does not apply here because the Vieths have not shown that the circuit
court erred when it determined that the Vieths had affirmative notice of Fox and
Stahlnecker’s adverse claim.

B. Notice

¶78 As explained, WIS. STAT. § 706.09 could be an affirmative defense
only if the bona fide purchaser is “without notice” of the adverse claim, as defined
in subsec. (2). In this case, the circuit court determined that the Vieths had notice
of Fox and Stahlnecker’s adverse claim to the disputed strip and, for reasons we
now explain, the Vieths have not shown that that determination is clearly
erroneous.10

¶79 Under the statute, “a purchaser has notice of a prior outstanding
claim or interest” if, “at the time such purchaser’s interest in the property arises in
law or equity,” the purchaser had “notice of record,” see WIS. STAT.
§ 706.09(2)(b), or “affirmative notice,” see § 706.09(2)(a). Although Fox and
Stahlnecker contend that the Vieths had record notice of Fox and Stahlnecker’s
claim, the circuit court did not make any express findings on this topic. It instead

10
The parties do not point us to any authority addressing the appropriate standard with
which to review the circuit court’s affirmative notice determination. However, the Vieths refer to
the circuit court’s determination that the Vieths had affirmative notice as a finding and, as such,
they appear to concede that notice is a finding of fact. This is consistent with how findings about
constructive notice have been described in other legal contexts. See Correa v. Woodman’s Food
Market, 2020 WI 43, ¶¶13-15, 391 Wis. 2d 651, 943 N.W.2d 535. Accordingly, we assume
without deciding that the court’s determination about notice is a finding of fact, which we uphold
unless clearly erroneous. See Haase v. Badger Mining Corp., 2004 WI 97, ¶17, 274 Wis. 2d
143, 682 N.W.2d 389.

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No. 2021AP1200

grounded its conclusion on the fact that the Vieths had notice under
§ 706.09(2)(a), which governs affirmative notice.

¶80 WISCONSIN STAT. § 706.09(2)(a) addresses “affirmative notice apart
from the record of the existence of such prior outstanding claim.” The statute goes
on to explain that affirmative notice includes:

notice, actual or constructive, arising from use or
occupancy of the real estate by any person at the time such
purchaser’s interest therein arises, whether or not such use
or occupancy is exclusive; but no constructive notice shall
be deemed to arise from use or occupancy unless due and
diligent inquiry of persons using or occupying such real
estate would, under the circumstances, reasonably have
disclosed such prior outstanding interest; nor unless such
use or occupancy is actual, visible, open and notorious[.]

Based on this text, we understand “affirmative notice” to encompass actual notice
and constructive notice, including but not limited to constructive notice based on
actual, visible, open, and notorious occupancy of the property in question.

¶81 Here, the circuit court found that the Vieths had affirmative notice
under WIS. STAT. § 706.09(2)(a). For reasons we now explain, the Vieths have not
persuaded us that the circuit court’s finding is clearly erroneous.

¶82 First, the circuit court found that the Vieths had affirmative notice
based on the appearance of the disputed strip itself, in particular the visible
demarcation caused by the retaining wall and the trees behind it. The Vieths
testified that they visited the property multiple times prior to purchasing it, and
that they walked its boundaries on several occasions. In so doing, the Vieths
observed the concrete block retaining wall and the row of mature cedar trees that
was in existence at that time, restricting access to the disputed strip. The circuit
court found that the retaining wall was a “blatantly obvious physical barrier

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No. 2021AP1200

between the two properties.” Although we have not considered whether the
retaining wall and trees could constitute a “substantial enclosure” under WIS.
STAT. § 893.25(2)(b)1., the circuit court properly found that they created a visible
demarcation between the Fox parcel and the disputed strip.

¶83 According to the circuit court, this visible demarcation would have
caused a potential purchaser to question whether the disputed strip was a part of
the Fox parcel. Indeed, the court found that the visible demarcation did actually
cause John Vieth to “do further inquiry regarding the boundary lines of the
property.” These findings are not clearly erroneous.

¶84 Second, the circuit court’s affirmative notice determination was
bolstered by the use and occupancy of the disputed strip by Fox and Stahlnecker
and their tenants. As noted above, Fox and Stahlnecker moved out of the Fox
property in 2015, and the parties dispute the extent to which their tenants
continued to maintain the disputed strip thereafter. Fox and Stahlnecker testified
that their tenants continued to maintain the property up through 2018.11 By
contrast, the Vieths contend that, when they purchased the Vieth parcel in 2018,
the entire area west of the retaining wall, including the disputed strip and the yard
of the Fox parcel, was “overgrown” and “full of debris.” John Vieth specifically
testified that, after he purchased the parcel, he removed “container after container
of debris.” Although the circuit court found that the Vieths had notice of the

11
According to Fox and Stahlnecker, the tenants continued to mow and maintain the
disputed strip. Fox testified that she and Stahlnecker frequently drove by the Fox parcel and
would regularly check to see whether their yard, including the disputed strip, was being mowed.
Stahlnecker also testified that after moving, he mowed and cared for the disputed strip a couple of
times when the tenants “had trouble with the lawnmower.”

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No. 2021AP1200

adverse claim, that the appearance of the disputed strip provided such notice, and
that Fox and Stahlnecker’s adverse possession of the disputed strip continued until
2018, the court did not expressly credit Fox and Stahlnecker’s testimony that the
disputed strip was continuously maintained, nor did it expressly credit the Vieths’
testimony that the disputed strip was overgrown and full of debris.

¶85 We conclude that either party’s version of events could support the
circuit court’s finding that the appearance of the disputed strip provided notice of
the adverse claim. For instance, if, as Fox and Stahlnecker contend, their tenants
continued to occupy, cultivate, and improve the disputed strip in an open,
notorious, visible manner, then the Vieths had constructive notice of Fox and
Stahlnecker’s adverse claim under WIS. STAT. § 706.09(2)(a). Although the
Vieths contend that they never observed the tenants actively performing any
maintenance activities in the disputed strip, a potential purchaser need not actually
observe another person occupying the land to have notice under the terms of
§ 706.09(2)(a). Rather, visible cues of another’s occupancy suffice to afford
notice under § 706.09(2)(a). See Hoey Outdoor Advertising, Inc. v. Ricci, 2002
WI App 231, ¶¶19-20, 256 Wis. 2d 347, 653 N.W.2d 763 (concluding that a
billboard situated on purchaser’s property represented another’s use or occupancy
of the land and provided purchaser with constructive notice of the adverse claim).
The cultivated and maintained appearance of the disputed strip could function as
such a cue.

¶86 Alternatively, if, as the Vieths contend, the entire area west of the
retaining wall was completely unkempt, “overgrown,” and “full of debris,” a
potential purchaser would naturally wonder whether the strip, which was
overgrown and filled with debris, was part of the yard of the Fox parcel, which
was likewise overgrown and filled with debris. Further, if as the Vieths testified,

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the debris included trash, then the presence of another’s trash in the disputed strip
should have alerted them to the possibility of another’s occupancy of the disputed
strip. See Hoey Outdoor Advertising, Inc., 256 Wis. 2d 347, ¶¶19-20.

¶87 Finally, the municipal GIS map John Vieth consulted prior to
committing to purchase the Vieth parcel supports the circuit court’s finding that
the Vieths had affirmative notice of the claim. The GIS map was available on the
Lafayette County parcel viewer website, and it was attached to the online listing
for the property. John Vieth testified that, prior to purchasing the parcel, he
looked at the municipal GIS map on several occasions and relied on that map to
ascertain the parcel’s boundaries.12

¶88 The circuit court found that the municipal GIS map depicts a
boundary line between the parcels that cuts through Fox and Stahlnecker’s
concrete porch. That is, the municipal GIS map depicts the Vieth parcel extending
so far west that it not only encompasses the disputed strip, but also part of the
structure that constitutes Fox and Stahlnecker’s home. The Vieths assert that the
court’s finding about the municipal GIS map is clearly erroneous, and that the map
shows their western boundary extending to, but not encroaching into, the concrete
porch. However, our own review of the documentary evidence is consistent with
the circuit court’s finding—the GIS map John Vieth consulted depicts the

12
Even though this map is not “of record” under WIS. STAT. § 706.09(2)(b), it was
publicly available information accessible from an official source. See Hoey Outdoor Advertising,
Inc. v. Ricci, 2002 WI App 231, ¶19, 256 Wis. 2d 347, 653 N.W.2d 763 (stating that a purchaser
can gain notice from records in the office of the register of deeds, or “other public records to
discover rights that usually are not recorded in the office of the register of deeds”); Bump v.
Dahl, 26 Wis. 2d 607, 614-15, 133 N.W.2d 295 (1965) (same).

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structure that belongs to Fox and Stahlnecker encroaching onto a part of the Vieth
parcel.

¶89 The encroachment of a physical structure owned by another, onto a
potential purchaser’s property, constitutes adverse occupation, and the circuit
court found that the municipal GIS map unquestionably showed such an
encroachment. Although the occupation visible on the GIS map may not have
alerted the Vieths to the exact location and extent of Fox and Stahlnecker’s
adverse possession, the circuit court found that it should have at least alerted them
to the possibility of a border dispute. See Hoey Outdoor Advertising, Inc., 256
Wis. 2d 347, ¶¶19-20 (concluding that the mere presence of a billboard on the
property provided purchaser with affirmative notice of an adverse claim that
should have prompted further inquiry).

¶90 Before concluding our analysis, we address one additional argument
by the Vieths about notice. The Vieths contend that they did not have constructive
notice because due and diligent inquiry would not reasonably have disclosed Fox
and Stahlnecker’s ownership of the disputed area. WIS. STAT. § 706.09(2)(a)
(providing that “no constructive notice shall be deemed to arise from use or
occupancy unless due and diligent inquiry of persons using or occupying such real
estate would, under the circumstances, reasonably have disclosed such prior
outstanding interest”). For this proposition, the Vieths rely on their own pre-
purchase inquiry into the parcel’s boundaries, which they characterize as due and
diligent. They point to the fact that a title search would not have revealed any
adverse possession claim, and that, prior to purchasing the property, they observed
its physical characteristics, visited it with the listing agent, compared landmarks
on the GIS map with other neighborhood landmarks including fences, obtained
title insurance, and read the closing paperwork provided by the title company.

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No. 2021AP1200

¶91 The Vieths’ assertions about their “due and diligent inquiry” are not
consistent with the unambiguous statutory language about what a “due and
diligent inquiry” entails. Under WIS. STAT. § 706.09(2)(a), a purchaser will not be
deemed to have constructive notice arising from use or occupancy if due and
diligent inquiry of the persons occupying the land would not have disclosed the
occupier’s adverse claim. Here, the Vieths concede that they never asked Fox,
Stahlnecker, or their tenants about the boundary. John Vieth testified that he did
not feel it “necessary … to interview neighbors” because he was “confident” that
he had ascertained the true boundaries of the parcel.

¶92 Nor for that matter is there any evidence that the Vieths obtained any
information about the boundaries from their predecessors in interest. Indeed,
when John Vieth asked the listing agent about the location of the boundaries, the
agent indicated that he could not and would not identify the location of the
boundary lines and advised the Vieths to obtain a survey. However, the Vieths did
not attempt to obtain a survey until after they had already purchased and moved
into the property. Nor is there any suggestion that the Vieths asked Chellevold
and his wife, who attended the closing as representatives of the seller’s estate,
about the location of the boundary. Under the circumstances, the Vieths do not
persuade us that the circuit court should have determined that “due and diligent
inquiry of persons using or occupying such real estate” would not “reasonably
have disclosed” Fox and Stahlnecker’s adverse possession claim to the disputed
strip. WIS. STAT. § 706.09(2)(a).

¶93 Accordingly, we conclude that the circuit court did not err when it
found that the Vieths had affirmative notice of Fox and Stahlnecker’s adverse

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No. 2021AP1200

claim, and that WIS. STAT. § 706.09 did not extinguish Fox and Stahlnecker’s
claim to the disputed strip when the Vieths purchased the Vieth parcel in 2018.13

CONCLUSION

¶94 For the reasons explained above, we conclude that Fox and
Stahlnecker established that they adversely possessed the disputed strip under
WIS. STAT. § 893.25, and that the Vieths do not have a defense to the adverse
possession claim under WIS. STAT. § 706.09. Accordingly, we affirm the circuit
court’s judgment.

By the Court.—Judgment affirmed.

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

13
The Vieths also make a separate argument about what they refer to as their “waiver
defense.” According to the Vieths, this defense would be based on the fact that Fox and
Stahlnecker commissioned a survey in 2010 that purported to show that the boundary line was not
where Fox and Stahlnecker thought it should be. The gist of the Vieths’ argument is that Fox and
Stahlnecker waived their right to file a legal action to quiet title in 2020 by not filing such an
action in 2010, or at any time prior to the Vieths’ purchase of the Vieth parcel.

The Vieths do not cite any law suggesting that waiver is an affirmative defense to an
adverse possession claim. At best, they may be attempting to assert a claim based on common
law defenses including laches and estoppel. However, the Vieths do not cite any legal authority
discussing those defenses, nor do they develop any argument explaining how the facts of this case
would satisfy the elements of these defenses. As such, we reject the Vieths’ arguments about a
waiver-based defense as undeveloped. State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633
(Ct. App. 1992) (declining to address undeveloped arguments because doing so requires the court
to serve as both advocate and judge).

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