Adverse possession is a legal doctrine that allows a person who occupies another person’s property for a specified period of time may gain title to that property. The law of adverse possession is based on a combination of statutes and Wisconsin Court decisions.

For example, if someone owns a farm or recreational property and a fence was initially placed in the wrong location decades ago, the adjacent property owner may end up owning a strip of land up to the fence line that really is not theirs based on the legal description in the deed. Another example would be if someone places a shed or a structure over the property line, and the adjacent property owner does not complain about it. The person who put the shed on the property may gain title to that portion of land containing the shed.

These issues typically come to light when one of the parties wants to sell their land and has a survey conducted. It is discovered that the boundaries set forth in the legal description of the deed do not match with how the parties have been utilizing the property over an extended period of time.

The most common way that adverse possession is obtained is through actual use of someone else’s property for a continuous 20 year period. To claim adverse possession, the following criteria must be met:

1. Actual possession: The court will look at how the property is actually utilized. If the property is protected by a substantial enclosure such as a fence, for example, where the property has been usually cultivated or improved, that will constitute actual physical possession of the land that is in dispute.
2. Hostile Use: The use of the disputed land must be inconsistent with the rights of the true owner of the land.
3. Open and Notorious Use: The use of the land must be open and visible.
4. Continuous Use: The use must be continuous for a 20 year period. It should be noted that this 20 year period can be calculated by using the activities of prior owners of the property as well as the current owners.
5. Exclusive Use: There must be exclusive use of the disputed property by the party claiming that they own the disputed property based on adverse possession.

There are statutory provisions which permit you to interrupt somebody’s adverse possession of your property by filing an affidavit of interruption. There are two other statutory ways that someone could obtain adverse possession based upon a conveyance of title. Those have a ten year statute of limitations, and a seven year statute of limitations respectively. There can be a lot of complexities involved in an adverse possession case.

Adverse possession cases can be complex, very fact intensive, and require witnesses from many years ago to establish how the properties have been utilized. They can be very expensive to pursue in court. It is important to be diligent and to inspect your property to make sure that neighbors are not encroaching on your boundary. Otherwise, you may end up losing a portion of your land through adverse possession.

If you have any questions on these issues please meet with one of our experienced litigation attorneys. They will help you protect your property and your rights.

With the exponential growth of technology occurring today, there is an often-repeated adage that “the law struggles to keep up with technology.” As such, it is always interesting when the highest Wisconsin court must spend its limited time with the bleeding edge issue…. what is a sidewalk?  The recent Wisconsin Supreme Court decision, Sojenhomer LLC v. Village of Egg Harbor, shows that the Court still must decide, and for the first time, a very early 20th century issue.

Anyone who has spent time in Door County during the summer can attest to the incredible busyness of its towns lined with shops, wine tastings and restaurants. The heavy traffic, combined with parked vehicles and pedestrians on two lane highways can lead to tight and dangerous corridors. In 2015, after hearing numerous complaints about the dangerousness of downtown Egg Harbor for pedestrians, specifically the area of the intersection of County Highway G and State Highway 42, the Village of Egg Harbor decided to act. The Village decided to add a new sidewalk on the on the east side of the County Highway G, among other changes. To build the sidewalk, the Village needed to acquire, through its condemnation power, the 0.009 acres that belonged to Sojenhomer LLC; on that property, Sojenhomer operated the Shipwrecked Brew Pub and Restaurant and used that .009 acres for parking.

Sojenhomer sued to stop the Village on the grounds that the condemnation was prohibited by Wis. Stat. § 32.015, which bars the use of condemnation powers to establish “a pedestrian way.” In Sojenhomer’s eyes, obviously a sidewalk is a pedestrian way, so the Village could not condemn its property to build its desired sidewalk. Unsurprisingly, the Village took the opposite view:  “a pedestrian way” and a “sidewalk” were distinct and separate things. Illustrating how unsettled the matter was, the local circuit court agreed with the Village; the Wisconsin Court of Appeals agreed with Sojenhomer.

As the decider of last resort, the Wisconsin Supreme Court agreed with the Village:  the legislature’s definition of “pedestrian way” does not include “sidewalk.”  Appropriate for the exciting nature of dried concrete, the Court relied on good old-fashioned statutory interpretation rules to reach its decision. The Court found that the statute used the terms “sidewalk” and “pedestrian way” in ways that each term had separate, non-overlapping meaning. To the Court, the fact that various statutes used both terms indicates that the terms were not one in the same. Moreover, when the legislature first introduced the term “pedestrian way,a way designated for pedestrian travel” –  in 1949, the statutes already contained a definition of “sidewalk” as “that portion of a highway between the curb lines and adjacent property lines.” In other words, if a pedestrian way was a sidewalk or a sidewalk was a pedestrian way, there would be no reason for both terms to exist.

The Court noted that sidewalks are a ubiquitous feature of road projects across the state, and if the legislature wanted to prohibit the use of condemnation to build sidewalks, they could have done so easily and clearly. Instead, when limiting condemnation powers, the legislature did not include the word “sidewalk” and instead included the seldom-used phrase “pedestrian way.”

If any dedicated reader has made it this far, he or she hopefully recognizes the slightly tongue-in-cheek nature of this issue. Yet, this case serves as an important reminder and illustration that our courts continue to grapple vigorously (this was a 4-3 decision) with issues and words that most residents would consider antiquated. The ever-changing nature of our world, and its attendant needs, highlight how the stale terms and law must be constantly applied to new fact scenarios every day.

Our firm receives many calls regarding small claims cases. One issue that immediately becomes a problem is that small claims are limited to damages under $10,000. Legal fees a client pays to us will cut into those damages very quickly, without any guarantee of a court win. This can make it difficult to fiscally justify being hired onto a small claims case. 

Recently, Judicare opened a free mediation program for small claims cases in Portage County. If you go to a small claims return date, you will see Judicare mediators milling about waiting to help people try and solve their disputes without further litigation. 

Their website says “Even if you have not yet filed a lawsuit, you can still request Judicare to mediate a dispute between you and another party.” This makes their services incredibly valuable because you may be able to resolve a dispute before you begin to incur any court fees. 

There are certainly cases that have long-term effects or are more legally complex and should involve a lawyer. Mediation requires the other party to participate, and so there are plenty of cases that cannot be solved through mediation simply because of the parties involved. But, if you are considering filing a lawsuit in Small Claims Court in Portage County, it may be worth your time to contact Judicare to see if they can help mediate your dispute before you or the other party start paying court or legal fees. 

Please go to the Judicare’s website for more information. If you are in another county, check Judicare’s website to see if they offer this program in your county. https://www.judicare.org/mediation/

In October 2020, the Department of Energy (DOE) adopted a rule defining a new dishwasher class as “standard residential dishwashers with a cycle time for the normal cycle of one or less from washing through drying.”[1] Not long after passing the 2020 Dishwasher Rule, the DOE created an analogous rule creating new classes of “top-loading clothes washers and consumer clothes dryers” having a “normal cycle time of less than 30 minutes.”[2] Then, in January 2022, the DOE repealed the 2020 Dishwasher Rule and 2020 Laundry Rule (the “Repeal”). Consumer Reports took note:

“Not so long ago you could count on most washers to get your clothes very clean. Not anymore. Our latest tests found huge performance differences among machines. Some left our stain-soaked swatches nearly as dirty as they were before washing. For best results, you’ll have to spend $900 or more.” (Italics added).

 

“What happened? As of January, the U.S. Department of Energy has required washers to use 21 percent less energy, a goal we wholeheartedly support. But our tests have found that traditional top-loaders, those with the familiar center-post agitators, are having a tough time wringing out those savings without sacrificing cleaning ability, the main reason you buy a washer.”

 

A group of states, led by Louisiana (state motto: “Union, Justice and Clean Laundry”) sued to overturn the repeal and to return to the halcyon days when clean laundry was king. Don Henley, who made a living on the evening news, summed up the sentiment of the suing states:

                      You don’t really need to find out what’s goin’ on
                      You don’t really wanna know just how far it’s gone
                      Just leave well enough alone
                      Eat your dirty laundry

The DOE and the states aired their dirty laundry in front of the United States Court of Appeals for the Fifth Circuit. In favor of speed cleaning, the Fifth Circuit noted:

Appliances including dishwashers, clothes washers, and clothes dryers with faster normal-cycle completion times that also maintain cleaning and drying effectiveness, such as dishwashers that complete a normal cycle in one hour or less, are desirable in the bunkhouse setting. Such features are beneficial and productivity enhancing, since they would permit faster washing and completion of additional cycles during the workday.[3]

The States argued that the DOE’s repeal actually had the opposite effect of what was intended – higher efficiency: “They make Americans use more energy and more water for the simple reason that purportedly ‘energy efficient’ appliances do not work” requiring the use of more energy and water to “preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances.”[4] The evidence presented to the Fifth Circuit showed that “dishwasher cycle time has increased from around one hour at the advent of DOE’s conservation program to around two and a half hours in 2020.”[5]

In a 25-page opinion, the Fifth Circuit ultimately found that DOE’s Repeal was “arbitrary” and “capricious” and sent the matter back to the DOE for further proceedings. To come to this opinion they looked at the connection between the facts found and the decision made. They argue that the DOE does not have the authority to regulate water usage and that the DOE did not consider the negative consequences of re-washing, pre-washing, and hand-washing clothing. In trying to conserve water and make machines more efficient, these new rules have had the opposite effect.

The next time you are considering purchasing a dishwasher or clothing washer, be sure to look at the overall functionality of the machine. Do not be swayed by the “more efficient” fast cycle terms.

[1] See Establishment of a New Product Class for Residential Dishwashers, 85 Fed. Reg. 68723 (Oct. 30, 2020) (the “2020 Dishwasher Rule”).

[2] See Establishment of a New Product Class for Residential Clothes Washers and Consumer Clothes Dryers, 85 Fed. Reg. 81359 (Dec. 16, 2020) (the “2020 Laundry Rule.”) .

[3] Louisiana v. United States DOE, No. 22-60146, 2024 U.S. App. LEXIS 507, p. 7-8 (5th Cir. Jan. 8, 2024)

[4] Id. p. 14.

[5] Id. p. 15.

Most people have heard of small claims court and large claims court, but how do the differences between these two impact the claim that you may have?  Generally speaking, large claims civil lawsuits involve civil claims where the damages are more than $10,000.00, or more than $5,000.00 for a tort claim (such as personal injury or property damage). If you have a claim such as a breach of contract, business dispute, real estate dispute, employment dispute where the damages sought exceed $10,000.00, then this claim must be filed in large claims court. If someone has a personal injury claim such as tort claim and property damage claim in which damages exceed $5,000.00, those claims also must be filed in large claims court.

The process in large claims cases is more involved and more expensive than in small claims court. The filing fee in a large claims is several hundred dollars just to start the case. The litigants must draft their own legal documents to file and to serve in the case (there are no standard court forms for starting a large claims action). In addition litigants in large claims cases must abide by a scheduling order imposed by the court. A large claims case usually involves a lengthy process where parties are required to name witnesses, engage in written discovery and depositions by certain times; there are deadlines for filing motions; the parties are typically ordered to attend a mediation to see if they can settle their dispute. Then, after all of the above are completed, the parties may finally have their chance for a trial in front of a jury or a judge. Because of this more complex procedure involved in large claims cases, most litigants typically retain attorneys to assist in representing them throughout this process. It can take at least 18 months or more from the start of the lawsuit until a trial finally takes place in large claims court.

By contrast, a small claims case can be handled much more quickly and efficiently, and many people handle these cases by themselves in order to save on costs. Small claims court, however, may be used only for certain types of cases, such as the following:

• Claim for money damages where the amounts do not exceed $10,000.00
• Claim for property damage or personal injury (tort actions) if the damages sought are less than $5,000.00
• Eviction actions, regardless of the amount of rent claimed
• Repossessions of property (replevins) when it is a:

– Non consumer credit action or the value of the property does not exceed $10,000.00
– Consumer credit transaction (personal property that was the subject of a lease or credit from a dealer) where the financed amount is $25,000.00 or less.

• Evictions due to foreclosure
• Return of earnest money for purchase of real property, regardless of the amount
• Actions on an arbitration award for the purchase of real property, regardless of the amount.

Even if someone files a claim in small claims court where the damages exceed $10,000.00, the small claims court cannot award any more than $10,000.00 maximum, plus costs.

Unlike large claims cases, there are sample forms that individuals can fill out to initiate a small claims action. The filing fee is also much less than a large claims case. One of the most significant distinctions between large and small claims court is how fast the case goes through the court system. The entire case can be filed and tried to the Court in only a few months in some instances in small claims court, as opposed to a couple of years in large claims court.

It is important for individuals to be aware of the differences when selecting which court to file in. Seeking the advice of an attorney can be helpful in making this assessment as well as assisting with navigating the legal process.