In Hayden, filed May 6, 2025, the court clarified several of the conditions to establish adverse possession, that is, for one party to establish ownership of a parcel of land against a party that holds legal title to the parcel. Under common law, the possession must be continuous, open, notorious, exclusive and hostile, and in Wisconsin these conditions must be met for at least 20 years.
The actual use of the land by the claimant must conform to the ordinary use that the specific parcel was capable of, the use must have occurred without substantial or material interruptions, and the claimant’s subjective intent must be to own the land exclusively, though exclusive ownership may be presumed if the other elements exist.
The burden to prove adverse possession rests with, and is strictly construed against the claimant, which means that the titleholder is legally presumed to own the land by virtue of the title. An appeals court may not overrule the trial court’s determinations of fact, including the credibility of witnesses at trial, unless they are clearly in error.
In the context of adverse possession, the doctrine of acquiescence can be a substitute for the hostile intent element, that is, an adverse possessor may contend that, by tolerating the use, the titleholder acquiesced in the use rather than permitted it, and hence the use is still hostile to the titleholder’s ownership.
(See, unpublished opinion, Estate of Laura M Hayden v. Ronald Pichler)