Timothy M. Casa De Calvo, Jr. v. Town of Hudson

2020 WI APP 67

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP1851

Complete Title of Case:

TIMOTHY M. CASA DE CALVO, JR.,

PLAINTIFF-APPELLANT,

V.

TOWN OF HUDSON, MELISSA A. SWANSON AND
THAD M. ALBERT,

DEFENDANTS-RESPONDENTS.

Opinion Filed: September 9, 2020
Submitted on Briefs: August 12, 2020
Oral Argument:

JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Samuel R. Cari and Philip A. Helgeson of Heywood, Cari &
Anderson, S.C., Hudson.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, Town of Hudson, the cause
was submitted on the brief of Patrick G.Heaney of Thrasher, Pelish &
Heaney, Ltd., Rice Lake.
2020 WI App 67

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.
September 9, 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. 2019AP1851 Cir. Ct. No. 2017CV340

STATE OF WISCONSIN IN COURT OF APPEALS

TIMOTHY M. CASA DE CALVO, JR.,

PLAINTIFF-APPELLANT,

V.

TOWN OF HUDSON, MELISSA A. SWANSON AND
THAD M. ALBERT,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for St. Croix County:
EDWARD F. VLACK III, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.
No. 2019AP1851

¶1 STARK, P.J. Timothy Casa De Calvo, Jr., appeals a summary
judgment dismissing his adverse possession claim against the Town of Hudson. 1
The circuit court concluded Casa De Calvo’s adverse possession claim failed, as a
matter of law, because the parcel in question is held by the Town “for highway
purposes” and therefore is not subject to adverse possession, pursuant to WIS. STAT.
§ 893.29(2)(c) (1987-88).2 Casa De Calvo argues the court erred because the Town
has never used the disputed parcel as a highway and has no intent to do so in the
future.

¶2 We conclude the circuit court properly granted the Town summary
judgment. It is undisputed that the parcel in question, although not currently used
as a highway, was dedicated as a street on a subdivision plat that was recorded in
1986. As such, under WIS. STAT. § 236.29(1), the recorded subdivision plat vested
fee simple ownership of the disputed parcel in the Town, which holds that parcel
“in trust” for use as a street. We agree with the circuit court that, under these
circumstances, the disputed parcel is held by the Town for highway purposes.
Consequently, WIS. STAT. § 893.29(2)(c) provides that the parcel is not subject to
adverse possession. We therefore affirm the circuit court’s decision granting the
Town summary judgment.

1
Casa De Calvo’s complaint also named Melissa Swanson and Thad Albert, the owners
of neighboring property, as defendants. Swanson and Albert do not claim an ownership interest in
the parcel that is the subject of Casa De Calvo’s adverse possession claim; instead, they want to
use that parcel to access their property. Swanson and Albert have not, however, filed a brief in this
appeal. The only issue on appeal is whether the circuit court properly granted the Town summary
judgment on Casa De Calvo’s adverse possession claim.

“[A]dverse possession statutes have prospective application only, and will not be given
2

a retrospective application.” Petropoulos v. City of W. Allis, 148 Wis. 2d 762, 767, 436 N.W.2d
880 (Ct. App. 1989). The parties therefore agree that because Casa De Calvo’s claimed period of
adverse possession began in 1987, we must assess his claim using the adverse possession statutes
found in the 1987-88 biennium. Accordingly, all references to the Wisconsin Statutes are to the
1987-88 version unless otherwise noted.

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No. 2019AP1851

BACKGROUND

¶3 Edgewood Estates III is a subdivision located in the Town. The
subdivision plat of Edgewood Estates III was recorded on March 20, 1986. A road
denominated “Edgewood Drive” runs through Edgewood Estates III in a generally
east-west direction. As platted, Edgewood Drive terminates at the eastern border of
the subdivision. However, it is undisputed that Edgewood Drive has not been
improved—in other words, no road has been constructed—beyond the western
border of Lot 99, if that border were extended to the north.

¶4 A map of the portion of Edgewood Estates III at issue in this case is
reproduced below:

Casa De Calvo owns lots 102, 103, and 104 in Edgewood Estates III. He purchased
those lots in 1986 and built a house on them in 1987. Casa De Calvo subsequently
constructed a driveway on his property. Around the time that construction of the

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No. 2019AP1851

driveway began, Casa De Calvo learned that the driveway was located on the platted
but unimproved portion of Edgewood Drive. Nevertheless, Casa De Calvo
continued to improve and use the driveway because he believed the Town was not
going to extend Edgewood Drive beyond the point where the paved road stopped.
Over the years, Casa De Calvo also maintained the property comprising the platted
but unimproved portion of Edgewood Drive by: erecting a fence; putting up
“private drive” signs on the fence; planting trees; bringing in dirt, grading the soil,
and planting grass seed; mowing; clearing fallen trees; and pulling up buckthorn
plants.

¶5 In early 1999, Don Link—who owned lots 98, 99, 100, and 101—
approached Casa De Calvo about driving a backhoe over the unimproved portion of
Edgewood Drive in order to perform work on Link’s property. Casa De Calvo told
Link he could not do so because that area was part of Casa De Calvo’s yard. Link
then raised the issue during a town board meeting on March 3, 1999. During that
meeting, an issue also arose as to whether Casa De Calvo’s garage and fence were
located within “the Town road right-of-way.” The town board voted to “assert[]
it[]s rights on the Town road as platted in Edgewood Estates known as Edgewood
Drive and order[] that the man-made obstructions be removed.”

¶6 Casa De Calvo testified at his deposition that the Town never took any
additional action regarding his garage or fence. Shortly after the town board
meeting, Casa De Calvo purchased Link’s lots so that he would not have “any issues
with anybody using” the platted but unimproved portion of Edgewood Drive. In
2007, Casa De Calvo sold lots 98, 99, 100, and 101 to Dennis and Teresa Bjornstad.
The Bjornstads subsequently sold those lots to Melissa Swanson and Thad Albert.

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No. 2019AP1851

¶7 On August 15, 2017, Casa De Calvo commenced the instant lawsuit
against the Town, Swanson, and Albert, and he subsequently filed an amended
complaint in April 2018. Casa De Calvo alleged he had continuously and
exclusively occupied and possessed “that portion of the platted but unimproved
portion of Edgewood Drive lying East of the approximate West line of Lot 99
extended Northerly” since 1987, and he had therefore obtained title to that property
via adverse possession. Accordingly, he asked the circuit court to declare “his
interest as fee owner” of that property.

¶8 The parties ultimately filed cross-motions for summary judgment.
Casa De Calvo argued the undisputed facts established that he had adversely
possessed the platted but unimproved portion of Edgewood Drive for the requisite
twenty-year time period, beginning in 1987. The Town, in turn, argued that WIS.
STAT. § 893.29(2)(c) barred Casa De Calvo from adversely possessing the property
in question because that property was a “highway” or was held by the Town “for
highway purposes.”

¶9 In April 2019, the circuit court issued a written decision denying the
parties’ summary judgment motions. As relevant to this appeal, the court
determined the platted but unimproved portion of Edgewood Drive did not qualify
as a “highway” under the relevant statutory definition. However, the court refused
to rule on the issue of whether the property in question was held by the Town “for
highway purposes,” noting that neither party had addressed “the application of [WIS.
STAT. §] 236.29(1)”—which pertains to dedications of property on a recorded
plat—“to the issue at hand.” Thus, although the court denied the Town’s summary
judgment motion, it invited the parties to “submit further argument regarding the
applicability of [§] 236.29(1).”

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No. 2019AP1851

¶10 The parties then submitted additional briefs addressing WIS. STAT.
§ 236.29(1). After considering the parties’ submissions, the circuit court granted
summary judgment in favor of the Town. The court reasoned that because the
platted but unimproved portion of Edgewood Drive had been dedicated to the Town
for use as a street on a recorded subdivision plat, the property was held by the Town
in trust for use as a street under § 236.29(1). As such, the court concluded the platted
but unimproved portion of Edgewood Drive was held by the Town for highway
purposes under WIS. STAT. § 893.29(2)(c). Accordingly, the court held that
§ 893.29(2)(c) barred Casa De Calvo from adversely possessing the property in
question. Casa De Calvo now appeals, arguing the court erred by granting the Town
summary judgment.

DISCUSSION

¶11 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” WIS. STAT.
§ 802.08(2) (2017-18). Here, the circuit court granted summary judgment to the
Town based on its interpretation of various statutes. The interpretation of statutes
and their application to undisputed facts are questions of law for our independent
review. McNeil v. Hansen, 2007 WI 56, ¶7, 300 Wis. 2d 358, 731 N.W.2d 273.

¶12 The parties agree that Casa De Calvo’s adverse possession claim is
governed by WIS. STAT. § 893.25, which pertains to adverse possession claims not
founded on written instruments. Under § 893.25(1), a person may commence an

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No. 2019AP1851

action to establish title to real estate if the person, in connection with his or her
predecessors in interest, has been in uninterrupted adverse possession of the real
estate for a period of twenty years. In order to constitute adverse possession, “the
use of the land must 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 [or her] own.” Pierz v. Gorski, 88 Wis. 2d 131,
137, 276 N.W.2d 352 (Ct. App. 1979). In addition, the claimant must show that the
real estate in question was either protected by a substantial enclosure or usually
cultivated or improved. Sec. 893.25(2)(b).

¶13 On appeal, the Town does not argue that Casa De Calvo’s use of the
platted but unimproved portion of Edgewood Drive was insufficient to satisfy the
requirements for adverse possession under WIS. STAT. § 893.25. Instead, the Town
argues the circuit court properly concluded that even if Casa De Calvo met those
requirements, WIS. STAT. § 893.29 bars him from adversely possessing the property
in question, as a matter of law.

¶14 At the time Casa De Calvo began his claimed period of adverse
possession in 1987, WIS. STAT. § 893.29(1) provided that title to real property
belonging to a town could be obtained by adverse possession under WIS. STAT.
§ 893.25 if the adverse possession continued for an uninterrupted period of more
than twenty years. However, § 893.29(2) set forth various exceptions to that general
proposition. As relevant here, § 893.29(2) provided:

Notwithstanding sub. (1), no title to or interest in any of the
following property shall be obtained by adverse
possession … :

(c) Real property of a highway as defined in s. 340.01(22)
and including property held by the state or a political
subdivision for highway purposes, including but not limited

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No. 2019AP1851

to widening, alteration, relocation, improvement,
reconstruction and construction.

¶15 Thus, under the applicable version of WIS. STAT. § 893.29(2)(c),
Casa De Calvo was barred from adversely possessing any real property “of a
highway,” including property held by the Town “for highway purposes.”3 We agree
with the circuit court that the Town holds the platted but unimproved portion of
Edgewood Drive “for highway purposes” under § 893.29(2)(c).

¶16 It is undisputed that the property in question was dedicated for public
use as a street on the recorded subdivision plat of Edgewood Estates III. WISCONSIN
STAT. § 236.29(1), which describes the effect of recording on dedications, states:

When any plat is certified, signed, acknowledged and
recorded as prescribed in this chapter, every donation or
grant to the public or any person, society or corporation
marked or noted as such on said plat shall be deemed a
sufficient conveyance to vest the fee simple of all parcels of
land so marked or noted, and shall be considered a general
warranty against such donors, their heirs and assigns to the
said donees for their use for the purposes therein expressed
and no other; and the land intended for the streets, alleys,
ways, commons or other public uses as designated on said

3
The 1987-88 version of WIS. STAT. § 340.01(22) defined the term “highway” as follows:

“Highway” means all public ways and thoroughfares and bridges
on the same. It includes the entire width between the boundary
lines of every way open to the use of the public as a matter of right
for the purposes of vehicular travel. It includes those roads or
driveways in the state, county or municipal parks and in state
forests which have been opened to the use of the public for the
purpose of vehicular travel and roads or driveways upon the
grounds of public schools, as defined in s. 115.01(1), and
institutions under the jurisdiction of the county board of
supervisors, but does not include private roads or driveways as
defined in sub. (46).

The definition of “highway” in § 340.01(22) has not changed since 1987. Compare WIS. STAT.
§ 340.01(22) (1987-88), with WIS. STAT. § 340.01(22) (2017-18).

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No. 2019AP1851

plat shall be held by the town, city or village in which such
plat is situated in trust to and for such uses and purposes.

(Emphasis added.)

¶17 Under the plain language of WIS. STAT. § 236.29(1), the recorded
subdivision plat of Edgewood Estates III was sufficient “to vest the fee simple” of
the property platted as Edgewood Drive in the Town. Furthermore, the statute
provides that the property platted as Edgewood Drive shall be held by the Town “in
trust” for use as a street. See id. We therefore agree with the circuit court that by
virtue of § 236.29(1), the platted but unimproved portion of Edgewood Drive
qualifies as property “held by [the Town] for highway purposes” under WIS. STAT.
§ 893.29(2)(c). Consequently, based on the undisputed facts of this case,
§ 893.29(2)(c) bars Casa De Calvo from adversely possessing that property, as a
matter of law.

¶18 Casa De Calvo argues the platted but unimproved portion of
Edgewood Drive does not qualify as property “held by [the Town] for highway
purposes” under WIS. STAT. § 893.29(2)(c) because it has never been opened for
public use as a highway. In support of that argument, Casa De Calvo observes that
the definition of “highway” in WIS. STAT. § 340.01(22) “includes”: (1) “the entire
width between the boundary lines of every way open to the use of the public as a
matter of right for the purposes of vehicular travel”; and (2) “those roads or
driveways in the state, county or municipal parks and in state forests which have
been opened to the use of the public for the purpose of vehicular travel.” (Emphasis
added.) Casa De Calvo therefore argues that in order to be held for highway
purposes, land must “be held to be open to the public and be held to allow the entire
community access to it.”

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¶19 Casa De Calvo reads WIS. STAT. § 340.01(22) too narrowly. That
statute defines the term “highway” to mean “all public ways and thoroughfares and
bridges on the same.” Id. It then lists several specific types of roads that are
“include[d]” within that definition, two of which are described as being open for use
by the public. The mere fact that the statute defines the term “highway” to include
certain types of roads that are open for public use, however, does not mean that it
excludes all roads that are not yet open to the public.4

¶20 Moreover, the plain language of WIS. STAT. § 893.29(2)(c) supports
our conclusion that property held by the government for “highway purposes” under
that statute is not limited to property that has already been opened for public use.
Section 893.29(2)(c) states that a claimant may not claim title by adverse possession
to property that is held by the state or a political subdivision “for highway purposes,
including but not limited to widening, alteration, relocation, improvement,
reconstruction and construction.” If the legislature had intended to preclude adverse
possession only of highways already open to public use, it would not have listed
“relocation” and “construction” as examples of “highway purposes.” To the
contrary, the fact that the legislature chose to include “relocation” and
“construction” as examples of “highway purposes” in § 893.29(2)(c) shows that it
intended to bar adverse possession of property that has been platted for future
highway use but has not yet been opened to the public for use as a highway.

4
As a general rule, the word “includes” in a statute “is to be given an expansive meaning,
indicating that which follows is but a part of the whole.” State v. James P., 2005 WI 80, ¶26, 281
Wis. 2d 685, 698 N.W.2d 95 (citation omitted). “While courts may sometimes read the word
‘includes’ as a term of limitation or enumeration under the doctrine of expressio unius est exclusio
alterius, there must be some textual evidence that the legislature intended this doctrine to apply.”
Id. Here, we see no textual evidence that the legislature intended the word “includes” in WIS.
STAT. § 340.01(22) to function as a term of limitation.

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No. 2019AP1851

¶21 Casa De Calvo next argues that in order to determine whether the
platted but unimproved portion of Edgewood Drive is held by the Town for highway
purposes under WIS. STAT. § 893.29(2)(c), we must consider evidence regarding the
Town’s intent to open that property for public use as a highway. He then asserts
there is no such evidence in this case, and the evidence instead shows that the Town
does not intend to open the platted but unimproved portion of Edgewood Drive for
public use.

¶22 In support of his argument that we should consider evidence regarding
the Town’s intent, Casa De Calvo relies on City of Kenosha v. Phillips, 142 Wis. 2d
549, 419 N.W.2d 236 (1988). The defendant in Phillips was charged with operating
a motor vehicle while intoxicated (OWI) after he was found passed out behind the
wheel of his car, which was parked in a business’s employee parking lot. Id. at
551-52. On appeal, it was undisputed that the defendant could not be convicted of
OWI unless the parking lot qualified as “premises held out to the public for use of
their motor vehicles.” See Phillips, 142 Wis. 2d at 551-52 & n.1 (quoting WIS.
STAT. § 346.61). On appeal, our supreme court concluded the business’s employee
parking lot had not been held out for such public use. Id. at 552. In making that
determination, the court stated “there must be proof that it was the intent of the
owner to allow the premises to be used by the public.” Id. at 554.

¶23 Phillips is distinguishable because the central issue in that case was
whether the property in question was “held out to the public for use of their motor
vehicles” under WIS. STAT. § 346.61. See id. at 551-52 & n.1. Conversely, the
issue in this case is whether the platted but unimproved portion of Edgewood Drive
is “held by [the Town] for highway purposes” under WIS. STAT. § 893.29(2)(c).
Nothing in Phillips—which addressed a completely unrelated statute and context—
requires us to consider evidence of the Town’s intent when making that

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No. 2019AP1851

determination. Instead, as explained above, we conclude the Town holds the platted
but unimproved portion of Edgewood Drive “for highway purposes” because it
holds that property in trust for use as a street under WIS. STAT. § 236.29(1).

¶24 Casa De Calvo also argues the Town does not hold the platted but
unimproved portion of Edgewood Drive “for highway purposes” because the Town
does not “need” to extend Edgewood Drive beyond its current location. As with the
Town’s intent, however, the Town’s present “need” to extend Edgewood Drive is
irrelevant. Under WIS. STAT. § 236.29(1), the Town holds the relevant property in
trust for use as a street because it was platted and dedicated as a street on the
recorded subdivision map of Edgewood Estates III. Whether the Town presently
needs to extend Edgewood Drive beyond its current location is therefore immaterial.
The Town holds the platted but unimproved portion of Edgewood Drive in trust for
that purpose so that it may do so in the future, if such a need arises.5

¶25 Finally, Casa De Calvo notes that the Town has “taken no action to
prevent [him] from using the [platted but unimproved portion of Edgewood Drive]
as his own.” He asserts he is “the person in control of” that property, and he “clearly
intended to exclude the public from using the platted and unimproved Edgewood
Drive since 1987 by placing his private driveway on it, putting fencing up and
placing ‘Private Drive’ signs up.” He argues the Town “cannot now claim that it

5
In arguing that no present need exists to extend Edgewood Drive, Casa De Calvo asserts
that the owner of the property directly east of Casa De Calvo’s property—Jim Mlinar—“would
oppose any extension past [Casa De Calvo’s] property line as [Mlinar] has suitable access to his
property from” another public road. This argument ignores the fact that Mlinar will not always be
the owner of his property, and a future owner may seek to gain access to that property from
Edgewood Drive. Casa De Calvo’s necessity argument also ignores the fact that the platted but
unimproved portion of Edgewood Drive lies directly north of the lots owned by Swanson and
Albert. It is undisputed that Swanson and Albert would like to use the platted but unimproved
portion of Edgewood Drive to access their property.

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No. 2019AP1851

held this property for highway purposes when since 1999 it has known of
Casa De Calvo using the property as his own and [has] done nothing about it.”

¶26 Casa De Calvo’s use of the platted but unimproved portion of
Edgewood Drive is immaterial to our analysis, as is the Town’s failure to prevent
his use. As explained above, we conclude the property in question is held by the
Town for highway purposes because the Town holds the property in trust for use as
a street under WIS. STAT. § 236.29(1). As such, Casa De Calvo is barred from
adversely possessing the property under WIS. STAT. § 893.29(2)(c).
Casa De Calvo’s use of the property—whether with or without the Town’s
knowledge—is therefore irrelevant; based on the plain language of § 236.29(1) and
§ 893.29(2)(c), Casa De Calvo is barred from adversely possessing the platted but
unimproved portion of Edgewood Drive. Accordingly, the circuit court properly
granted the Town summary judgment on Casa De Calvo’s adverse possession claim.

By the Court.—Judgment affirmed.

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