David L. Fabry, Plaintiff-Respondent,
Kevin Jagiello, Cheryl Jagiello, David Jagiello and Karen Jagiello, Defendants-Appellants, The Peshtigo National Bank, Defendant.
recommended for publication in the official reports.
from a judgment of the circuit court for Oconto County No.
2017CV167: JAY N. CONLEY, Judge. Affirmed.
Stark, P.J., Hruz and Seidl, JJ.
Kevin, Cheryl, David and Karen Jagiello ("the
Jagiellos") appeal a judgment, entered following a bench
trial, determining that David Fabry acquired legal title to a
parcel of land by adverse possession. The Jagiellos argue the
evidence at trial was insufficient to establish adverse
possession because: (1) the circuit court improperly relied
on the existence of a fence erected by the common grantor
from whom both the Jagiellos and Fabry acquired their
property; and (2) absent the fence, the other evidence
regarding Fabry's use of the disputed parcel was
insufficient to prove adverse possession.
We conclude the circuit court properly relied on the
existence of the fence erected by the parties' common
grantor. We further conclude that the evidence at trial,
viewed in its totality, was sufficient to establish that
Fabry adversely possessed the disputed parcel. We therefore
Fabry and the Jagiellos own adjacent parcels of property in
Oconto County. It is undisputed that, prior to 1991, both
parcels were owned by Earl Guseck. Fabry acquired the eastern
portion of Guseck's property in October 1991. Guseck
retained the western portion of the property until his death.
The Jagiellos purchased that property from Guseck's
estate in June 2017.
After their purchase, the Jagiellos contested the location of
the boundary line between the parties' properties. Fabry
believed the property line was demarcated by a fence that
Guseck had constructed before Fabry purchased his parcel.
However, the Jagiellos hired a surveyor who determined that,
although the fence line commenced on the actual boundary line
at the southern end of the parties' properties, as the
fence proceeded north, it meandered west onto the
Jagiellos' property. In other words, for all but the very
southern end of the parties' properties, the true
boundary line lay to the east of the fence line. We shall
refer to the approximately two acres of property between the
actual boundary line and the fence line as the "disputed
parcel." The northern portion of the disputed parcel is
wooded, and the southern portion is farmland.
In August 2017, Fabry filed the instant lawsuit, seeking to
quiet title to the disputed parcel. Fabry alleged he had
"maintained uninterrupted possession of the [disputed
parcel] for more than 20 years" and had therefore
obtained title to it through adverse possession, pursuant to
Wis.Stat. § 893.25 (2017-18). A bench trial on Fabry's
adverse possession claim took place over two days in January
and February 2018.
At trial, Fabry testified that when he purchased his property
in 1991, he and Guseck "walked" the property's
western boundary line together, and Fabry understood that the
boundary ran along the fence line. Fabry stated the fence was
"still there" in 1991, and although "there
were pieces of it that were broken and it was starting to
diminish … you could see there was a fence line there,
and there are rocks and grass between the two areas."
Fabry conceded the fence's condition had further
deteriorated since he purchased the property. Nonetheless,
Daniel Hendrickson, a survey field technician hired by Fabry,
testified he could discern the existence of a fence
line-albeit one that was "broken" in places-when he
viewed the property in September 2017.
The circuit court also heard testimony from Norman Peterson,
who helped Guseck farm his property from 2008 until 2015 or
2016. When asked about his understanding of the boundary line
between Fabry's property and what was then Guseck's
property, Peterson testified, "There were trees. There
was an old fence line, rocks. We'd pick rocks and put
them on the fence line." He further testified that
"there was a hill mound between the two properties and
some trees and there was some fence posts and rocks."
Peterson stated there was a clear distinction between the
fields on either side of the fence line, and both parties
farmed "right up to that fence line and field stone
line." He testified Guseck respected the fence line
"as being the boundary between the properties."
Peterson conceded the fence was not "perfect," but
he testified it was sufficient for him to discern "where
[he was not] supposed to be."
Witnesses at trial also testified regarding Fabry's use
of the disputed parcel. Fabry testified he had leased the
southern portion of his property to his cousin, Lloyd Fabry,
who farmed that land from 1992 until 2015. Fabry testified
Lloyd planted crops on the property up to the fence line
during each of those years. Lloyd confirmed that he had
farmed Fabry's property from 1992 until 2015. He
testified he was able to differentiate Fabry's property
from Guseck's property based on "the dilapidated
fence" and the fact that "one side was a little
higher than the other in places." He further testified
that Guseck respected the fence line as the boundary between
the two properties and that the fields on both sides were
farmed "right up to that fence line."
Fabry also testified that he had hunted on the northern,
wooded portion of his property-including the disputed
parcel-every spring and fall since he purchased it. In
addition, Fabry testified he had erected a permanent tree
stand in the disputed parcel in November 1992, which he later
replaced in 2003, and had also placed temporary tree stands
in the disputed parcel. Fabry further testified that he had
planted trees in the disputed ...