Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fabry v. Jagiello

Court of Appeals of Wisconsin, District III

March 19, 2019

David L. Fabry, Plaintiff-Respondent,
v.
Kevin Jagiello, Cheryl Jagiello, David Jagiello and Karen Jagiello, Defendants-Appellants, The Peshtigo National Bank, Defendant.

         Not recommended for publication in the official reports.

          APPEAL from a judgment of the circuit court for Oconto County No. 2017CV167: JAY N. CONLEY, Judge. Affirmed.

          Before Stark, P.J., Hruz and Seidl, JJ.

          STARK, P.J.

         ¶1 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.

         ¶2 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 affirm.

         BACKGROUND

         ¶3 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.

         ¶4 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.

         ¶5 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).[1] A bench trial on Fabry's adverse possession claim took place over two days in January and February 2018.

         ¶6 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.

         ¶7 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."

         ¶8 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."

         ¶9 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.