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Casenotes

Wisconsin

Adverse Possession; Surveys

Northrop v Opperman, 325 Wis 2d 445, 784 NW2d 736, 2009 AP 1559 (Wis Ct App, 2010).

Facts:Kay and Peter Boerst (the Boersts) and Floyd and Betty Opperman (the Oppermans) owned neighboring parcels of land. The Oppermans' parcel was in section eight and the Boersts' parcel was to the east in section nine. The Boersts, Oppermans and other nearby land owners believed the Henn Road was the boundary between sections eight and nine. Henn Road ran north-south and, to the north of these parcels, took a sharp turn west. The land owners believed this bend marked the common corner of parcels four, five, eight, and nine.

In 2005, a surveyor discovered that the true common corner was at a concrete monument. The surveyor recorded the proper corner location with the federal government, thus shifting the boundary west of the road into section eight. The Boersts subsequently sued the Oppermans to establish their ownership of the land between Henn Road and the newly marked boundary. The trial court ruled against the Boersts, stating that because property owners had treated Henn Road as the boundary for nearly a century, Henn Road was the boundary between the Boerst and Opperman properties.

After that decision, another land owner, Daniel Northrop, sought to recover land pursuant to the new survey boundary. Northrop asked the trial court to determine whether the corner was "lost" or "obliterated." These terms of art lead to different results — a "lost" corner is reestablished with mathematical models whereas an "obliterated" corner is reestablished with landmarks. Because the trial court ruled that property owners acquiesced to Henn Road (a landmark) as the boundary, the corner was obliterated. In its final judgment, the trial court did not order the corner to be re-recorded, but did declare Henn Road as the boundary between sections eight and nine. The Boersts appealed.

Holding:Affirmed in part, reversed in part and remanded. The Boersts asserted that the trial court erred in ruling that: (1) they acquiesced to Henn Road as the true boundary of their property, and (2) the corner of sections four, five, eight and nine was obliterated. The court of appeals affirmed on the first assertion but reversed and remanded on the second.

The court first discussed the doctrine of acquiescence, which is a supplement to adverse possession. Acquiescence allows the same consequences as adverse possession in a circumstance where landowners mutually acquiesce to occupation as opposed to where one party occupies with adverse or hostile intent. The Boersts did not argue that the Oppermans failed to show the elements of acquiescence, but instead argued that acquiescence only applies to ambiguous deeds. The court found that ambiguous deeds executed by a common grantor allow a party to assert acquiescence before the normal statutory period has run. However, acquiescence still applies in other cases, like the instant one, when the statutory period has run.

On the issue of obliteration, the court found that the trial court erred by conflating property lines and section boundary lines. Even though that court properly found that the property lines changed by acquiescence, that doctrine does not affect boundary lines on government surveys. Therefore, the properly recorded corner and boundary lines remained intact. The court remanded for a judgment stating that Henn Road was the property boundary, not the section boundary.

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