## Facts

- Richard and Susan Wilcox owned an inland lot separated from Lake Delton by a 25-foot-wide strip owned by the Hines and Newman estates and Lake Delton Holdings, LLC.
- The Wilcoxes bought their lot in 2002 from Ronald and Mary Soma, who had owned the lot for about 40 years.
- During their ownership, the Somas used and maintained the strip by installing/removing a pier seasonally, clearing undergrowth, placing rocks, planting trees and flowers, repairing a cement wall, installing riprap, and maintaining the lawn.
- The Somas posted a “No Trespassing” sign and told trespassers to leave.
- The Somas did not know the true owners of the strip and understood they did not own it.
- Believing a boat-tour company (Wisconsin Ducks) owned the strip, the Somas asked that company for permission to make improvements and granted it an easement over the Somas’ lot for access to the strip.
- When selling to the Wilcoxes, the Somas told them their property did not include the strip, though they believed they could walk across it.
- After purchase, the Wilcoxes continued using and improving the strip (including piers, steps, trees, a patio, and a firepit).
- In 2011, the Wilcoxes sued for title by adverse possession under Wis. Stat. § 893.25 and sought to tack their possession to the Somas’ period to meet the 20-year requirement.

## Issues

1. Whether “claim of title” under Wis. Stat. § 893.25 is equivalent to the common-law hostility element of adverse possession.
2. Whether evidence of a predecessor’s subjective intent not to claim ownership (including express disclaimers and requests for permission) is admissible and relevant to rebut the presumption of hostility arising from open, notorious, exclusive, and continuous possession.
3. Whether the Wilcoxes could tack their use onto the Somas’ use to satisfy the 20-year statutory period when the Somas had disclaimed ownership and sought permission to use the strip.

## Decision

- The Wisconsin Supreme Court reversed the court of appeals and affirmed the circuit court’s dismissal of the adverse possession claim.
- The Court held that “claim of title” in § 893.25 is equivalent to hostility and requires an intent to claim ownership.
- The Court held that a possessor’s subjective intent not to claim title is relevant and admissible to rebut the presumption of hostility.
- The Court concluded the Somas’ express disclaimers of ownership and their permission-seeking conduct showed they did not intend to claim title, defeating hostility and preventing tacking to reach the statutory period.
- Because the circuit court properly considered subjective intent and found adverse possession not proven, no remand was required.

## Legal Principles

- Under Wis. Stat. § 893.25, adverse possession requires uninterrupted possession for 20 years under “claim of title,” which corresponds to the hostility requirement.
- Open, notorious, exclusive, and continuous possession may create a presumption of hostility, but the presumption is rebuttable.
- Evidence showing the possessor’s actual state of mind—when it reflects an intent not to claim ownership—may rebut hostility, particularly where the possessor expressly disclaims ownership or seeks permission to use the property from a perceived owner.
- A claimant seeking to tack a predecessor’s possession must show the predecessor satisfied all adverse possession elements; a failure of hostility in the predecessor defeats tacking.

## Conclusion

The court held that adverse possession under § 893.25 is not established where the claimant’s predecessors expressly disclaimed ownership and sought permission to use the land, because such evidence may rebut the presumption of hostility and prevents tacking to satisfy the 20-year period.


Wilcox v. Estate of Hines, 355 Wis. 2d 1, 849 N.W.2d 280 (Wis. 2014)