from a judgment of the circuit court for Green Lake County,
No. 2013CV135 MARK T. SLATE, Judge. Affirmed.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
Lawrence Kruckenberg brought a claim for adverse possession
and damages against his neighbors, Robert and Lucia
Krukar. The circuit court denied Krukar's
motion for summary judgment on the ground that material
issues of fact existed as to whether Kruckenberg could prove
"exclusivity." The jury found adverse possession
and awarded damages to Kruckenberg. Krukar's post-verdict
motion challenging the sufficiency of the evidence was
denied. We affirm in all respects.
Krukar and Kruckenberg are adjoining landowners. Kruckenberg
purchased his forty-acre parcel in 1983, and Krukar purchased
their 11.5-acre parcel in 2001. Kruckenberg's parcel is
located to the west of Krukar's with the exception of a
deeded "one-rod" strip of land that runs approximately
1361 feet along the south boundary of Krukar's parcel.
The original 1882 deed from Kruckenberg's predecessor
described the one-rod strip of land as "designed as a
roadway" and further required the grantee "to
construct and keep in repair when necessary, the fence on the
North margin of said grant." Evidence reflected that the
northern fence was never located entirely within the
"one (1) rod in width" legal description and
encroached ten to twelve feet onto Krukar's parcel for
approximately 1164 feet of the length of the driveway.
"Adverse possession is a legal action that enables a
party to obtain valid title of another's property by
operation of law." 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)
(2015-16). Property is adversely possessed only if
the possessor, for a period of twenty years, "is in
actual continued occupation under claim of title, exclusive
of any other right, " and the property is
"[p]rotected by a substantial enclosure" or
"[u]sually cultivated and improved." Sec.
893.25(2)(a), (b); Wilcox, 355 Wis.2d 1,
¶¶19-20. Physical possession must be "hostile,
open and notorious, exclusive and continuous."
Wilcox, 355 Wis.2d 1, ¶20.
"Hostile intent, " does not require "a
deliberate, willful, unfriendly animus" as the law
presumes the element of hostile intent "[i]f the
elements of open, notorious, continuous and exclusive
possession are satisfied." Wilcox, 355 Wis.2d
1, ¶22 (citation omitted). Adverse possession is
typically not suitable for summary judgment as one claiming
adverse possession must establish the length of occupancy,
the area occupied, and the nature and character of occupancy,
all of which are issues of fact. See Milwaukee Cty. v.
Milwaukee Yacht Club, 256 Wis. 475, 478, 41 N.W.2d 372
(1950); see also Illinois Steel Co. v. Jeka, 123
Wis. 419, 427, 101 N.W. 399 (1905).
Kruckenberg filed suit in 2013 after Krukar removed much of
the northern fence in 2012-13. Krukar moved for partial
summary judgment on the ground that Kruckenberg could not
prove "exclusivity" as Krukar has "on many
occasions used and exercised ownership rights" over the
driveway and allowed others to use the roadway. Krukar
presented affidavits that a neighbor used the roadway
"one or two times yearly, to drive his ATV and to walk
without permission from ... Kruckenberg." Additional
affidavits were offered from individuals who claimed to have
used the driveway "on several occasions annually"
without Kruckenberg's permission. Krukar asserted that
aside from the fence, Kruckenberg "took absolutely no
action to publicly assert ownership, provide notice of his
claim to [Krukar] or preclude anyone from using the
Kruckenberg responded with his own affidavit indicating that
the roadway and fence have remained in the same place from
the time he bought his property until Krukar removed the
fence without his permission in 2012-13. At the time
Kruckenberg purchased his parcel, a locked chain attached to
metal end posts existed at the entrance to the roadway, and
while he removed the chain, he posted a "no
trespassing" sign at the entrance to the roadway which
has remained in place for more than twenty-seven years.
Kruckenberg testified that he has maintained the driveway,
trimmed tree branches along it, reset fence posts, and
replaced wood fence posts with steel fence posts.
Kruckenberg and Krukar have argued over the fence and the
encroachment since 2004. Krukar's request to remove the
fence in 2004 was denied by Kruckenberg: "[M]y reply was
no, because the fence marks my border line, marks my line-the
driveway line." Kruckenberg at the time gave Krukar
permission to cut a small hole in the fence so that Krukar
could get to neighboring land to cut wood. Kruckenberg
offered in evidence a letter from Krukar's predecessor,
in which they asked Kruckenberg for permission to use the
roadway.Evidence was received that in 1984 a
landlocked neighbor sought and received permission from
Kruckenberg to use the roadway. In 2005, Kruckenberg granted
permission to the county to use the roadway as a snowmobile
Summary judgment is only appropriate when there are no
material factual disputes and the moving party is entitled to
judgment as a matter of law. Green Spring Farms v.
Kersten,136 Wis.2d 304, 315, 401 N.W.2d 816 (1987).
Kruckenberg opposed the motion on the grounds that he only
allowed use of the road to people to whom he granted
permission. Kruckenberg argued that the "casual and
sporadic entry upon the land" by Krukar and others does
not upset his claim for adverse possession, rather it simply
created a material issue of fact as to whether Krukar's
and others use of the road was sufficient to defeat the
exclusivity component. We agree; "[t]he true owner's
casual reentry upon property does not defeat the continuity
or exclusivity of an adverse claimant's possession. The
true owner's reentry should be a substantial and material
interruption and a notorious reentry for the purpose of
dispossessing the adverse occupant." Otto v.
Cornell,119 Wis.2d 4, 7, 349 N.W.2d 703 (Ct. App. 1984)
(citing Frank C Schilling Co. v. Detry, 203 Wis.
109, 115, 233 N.W. 635 (1930)). Here, given the competing
facts, the finding is one for the fact finder, not for a
court as a matter of law. Further, "[e]xclusive
possession, for purposes of adverse possession, means that
the claimant must show an exclusive dominion over the land
and an appropriation of it to his or her own use and
benefit." 3 AM. JUR. 2D Adverse Possession
§ 61 (2011). The claimant's possession, ...