Wisconsin Law ~ Owner-in-possession exception

>It is illogical to construe a statute with a purpose of eliminating stale claims in such a way that after 50 years of staleness a right of ownership in record title is resurrected. In adverse possession cases, it is the record title to the property that has lain dormant and stale. At the end of the applicable adverse possession period, title vests in the adverse possessor and the record owner’s title is extinguished.

What the courts deem as "illogical" seems to fall on deaf ears when it comes to surveyors. This case provides an excellent opportunity for surveyors to understand the "logic" of the court when they discuss the location of a boundary line that has been physically monumented for over 80 years, and how that location was legally established. Yet, we seem to, instead, depend upon our own "logic" and rush headlong staking the "record" line as if our actions have no impact upon society as a whole.

The only result of the surveyor's dogmatic application of the "record," after the boundary location had been established for over 30 years, was to thrust these owners into a legal battle which took nearly 10 years to resolve. How much was that survey worth in the eyes of their client after all was said and done? Not only are the surveyor's marks worthless, their client now has to go home, remove the fence, and restore the location of the boundary where it had been established 30 years ago. Who's duty is it to recognize and determine the location of a boundary line? Do we really believe that it is our duty, instead, to resurrect ancient problems that the law purposefully determines as "stale claim" which has "lain dormant" for so many years?

Just a few things to ponder...

JBS

It's not about what you think it is....

Derek, let me start by saying that you remind me of myself at a young age when I occasionally came in to possession of some fireworks. Even if illegal, I had the sense to read the label which said something like "lay on ground, light fuse, retire quickly".

I think that you are good at that. I would urge you however, as you find interesting cases to post here, to come back if there is discussion and give your version of why you find it interesting.

As for this case, it would possibly have had a far different outcome if the Parker's had a different attorney and the case had actually gone to trial. With both sides asking for summary judgment, the trial court was left with no witnesses, no cross examination, no surveyor testimony. The appeals court of course had only the trial court's record to examine, and without a full trial, this case does not rise to one of those notable cases which amounts to something. The Parker's attorney basically caved on the AP claim, probably because of a reliance on the 30 year statute of limitations on claims.

Big mistake.

So the case was not about AP at all.

What about the surveyor? Well, there is no testimony about that so there is no conclusion to be drawn.

So the case was not about surveying at all.

If the Parkers hired you to survey their recently purchased property what would you do? Would you ignore an aliquot part PLSS description, with plenty of nearby evidence of prior survey, or would you ignore everything but the fence and proclaim it as the newer boundary? That's all conjecture, of course, but it's worth thinking about.

Remember that you don't have the power to subpoena and depose witnesses regarding facts of adverse possession. Also remember that you do not have the power to use that information to award land in dispute to anyone.

And finally, no two states have the exact same statute and case laws regarding AP, so trying to draw overly broad general conclusions about this case in the other 49 states could be a big mistake.

It's not about what you think it is....

Let me see if I understand this (in Wisconsin):

1) after the requirements of AP are met, the APer has 30 years to file the claim.

unless:

2) The APer is still in possession of the land then the 30 years doesn't apply.

So as a practical matter, if the record owner takes the land back the APer has 30 years to make a claim. This seems to be effectively what the court ruled?

It's not about what you think it is....

Carl-

The Great State of Ohio and the Province of Ontario share a common waterway, Lake Erie.

Yet the title boundary of one riparian boundary of the Lake is different from the other.

See Gibbs http://canlii.ca/t/6jbt and http://ohioenvirolawcenter.wordpress.com/2011/09/14/victory-for-ohioans-in-lake-erie-public-trust-case/

After 60+ years at this (if you count my time at age 5 with my grandfather, on the end of a chain because (as I tell it, he needed someone warm and stupid, so I still qualify) one learns at an early age the answer in cadastral surveying is:"It Depends".

Now getting to an age where "Depends" may be a fixture for some (not me thankfully)I want you to feel comfortable that when I post matters of cadastral law, it's because it is an area of interest of mine as to the differing results of who had the better legal team to end up with confusing results depending upon the status of stare decis law in the particular jurisdiction.

You might wish to look to the Beds of Navigable Waters Act http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90b04_e.htm which was a political Act to gain control of the waterways of Ontario, particularly for hydro generation purposes, as the Province previously has used the ad medium filum aquae rule of England.

YOS

DGG

It's not about what you think it is....

Derek-

Thanks for your reply.

I do understand the "depends" thing. Luckily the factory is only a couple of miles from here!

We recently discovered that I was also in the field at age five when we found a picture of me, Dad, a Gurley transit, and Dad's brand new 1953 Dodge station wagon. The license plate was even legible and reads "Ohio 1953". I have been adversely possessed by surveying since that time, but you seem to have the edge in years. I'll defer to that.

The following link should take you to a fairly recent discussion of the riparian situation here in Baja Ontario:

http://www.expertlaw.com/forums/showthread.php?t=61690

I hope the links still work.

Hijack

>
> We recently discovered that I was also in the field at age five when we found a picture of me, Dad, a Gurley transit, and Dad's brand new 1953 Dodge station wagon. The license plate was even legible and reads "Ohio 1953". I have been adversely possessed by surveying since that time, but you seem to have the edge in years. I'll defer to that.
>

Please scan & post the photo.