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Kruckenberg v. Krukar

Court of Appeals of Wisconsin, District II

September 27, 2017

Lawrence Kruckenberg, Plaintiff-Respondent,
v.
Robert Krukar, Jr. and Lucia Krukar, Defendants-Appellants, Gerald R. Chappa, Defendant.

         APPEAL from a judgment of the circuit court for Green Lake County, No. 2013CV135 MARK T. SLATE, Judge. Affirmed.

          Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

          REILLY, P.J.

         ¶1 Lawrence Kruckenberg brought a claim for adverse possession and damages against his neighbors, Robert and Lucia Krukar.[1] 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.

         Background

         ¶2 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"[2] 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

         ¶3 "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).[3] 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.

         ¶4 "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).

         Summary Judgment Motion

         ¶5 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 lane."

         ¶6 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.

         ¶7 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.[4]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 route.

         ¶8 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 ยง 61 (2011). The claimant's possession, ...


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