*1 KRUSE, Plaintiffs- Gordon Dolores Cross-Appellants, Respondents INDUSTRIES, INC., Defendant- HORLAMUS Cross-Respondent-Petitioner. Appellant
Supreme Court May 1986. Argued March 1986.—Decided No. 84-858. 64.) (Also reported in *2 petitioner For the there were briefs by Daniel L. Schloemer, Alderson, Sargeant Schlaefer, Seefeldt S.C., Bend, Spella, & and oral argument by Mr. West Sargeant.
For plaintiffs-respondents cross- there was a brief by Daryl W. Laatsch appellants Laatsch, S.C., Daryl W. Bend, West argument and oral by Mr. Laatsch.
HEFFERNAN, CHIEF JUSTICE. This is a re- unpublished per view an curiam decision of the court 22, appeals dated May affirming an order Becker, Judge Richard T. circuit Washington court for county, following a trial. The issue before this court is whether the trial court and court of appeals correct in holding were the claimant's ordinary or lowest case is an adverse greater possession by prove burden —to weight We affirm on credible evidence. of the consistently ap- grounds has case law that Wisconsin proof only plied to those civil the middle burden gross containing element, fraud, or a criminal cases negligence for adverse and that an action requiring category of cаses more into that not fall does ordinary burden of than purchased and Dolores Kruse Gordon City of West Bend. The Kruses south land roughly at that time and the lot boundaries measured Horla- on those boundaries. a lawn based established adjacent purchased to the the land Industries mus property *3 in 1964. the north and the east on Kruses' that the Kruse meas- discovered Industries Horlamus surveyed in the land incorrect when were urements of the west and south were The true boundaries 1981. up parties recognized by that time. Hor- the lot lines portion of the filled in the fenced and Industries lаmus erroneously property been considered to had which be. Industries ac- which Horlamus and to Kruses' lawn the for tually an action Kruses commenced title. The held possession1 to es- Industries Horlamus adverse possession, instru not founded on written Adverse 1 *893.25 recovery possession (1) estate or the of real An for the ment. action by by predecessors and a defense commence real estate s. 893.14 uninterrupted an action and 893.29. for or counterclaim interest, adverse years, except to establish A is in person based on title uninterrupted who, title under ch. of 20 provided in connection years, to real estate are barred adverse by except 841. s. with his or her 893.29, may as provided strips property ownership two of the tablish years. twenty mistakenly they over used for had jury jury held, that the and the found A trial was ownership disputed prop- obtained Kruses had jury through possession. erty addition, the adverse wrongful damages money oc- to the Kruses awarded by cupancy in the amount of Industries Horlamus Judge upheld verdict, Becker $2,500. motions after On finding Kruses of adverse granted motion to strike the Industries' Horlamus supрorted finding monetary award, no evidence jury. damages Horlamus Industries awarded possession, finding appealed of adverse damages. cross-appealed on the issue Kruses appeals on all counts. the trial court affirmed court of peti- granted Industries' the defendant Horlamus We appeals court of on The decision of tion for review. damages on re- the Kruses was raised adverse to view. the trial this court is whether
The sole issue before jury that the low- instructions to the erred its court applied ordinary in an- should est or pоs- questions special swering verdict on "(2) adversely possessed under this section: Real estate is it, "(a) possessing Only person with or her in connection his if the interest, occupation under predecessors is in actual continued *4 title, right; any of other of exclusive claim "(b) actually occupied Only and: the extent that to enclosure; by or a substantial "1. Protected improved." Usually cultivated or "2. many has had a Although great
session.2 Wisconsin cases, the correct of standard possession adverse The previously for has not been addressed. those cases arises from the in in this instance use some problem phrase, cases and this case the adverse positive." must be clear and The "evidence gave following on the The court the instruction burden proof: proof, damage question "The burden of other than on the verdict, upon party contending the to
the rests the answer question satisfy you, 'yes.' is to to a reason- should be This burden certainty, by greater weight of the credible evidence that able 'yes' should be the answer." portion charge jury discussing to the the nature Another possessiоn that could be utilized stated: of adverse evidence asserting the "The is on the one claim. evi- positive strictly must be clear and and must be dence of presumptions All must claimant. reasonable construed posses- be of the true owner. sole test made favor pos- possession. physical physical This sion is the character notorious, hostile, open continu- must exclusive and session be period. statutory must be actual visible means for the There ous given by to the true owner. of the intent to exclude which notice may possessed, premises actually occupied adversely Only be protected possessed only adversely has if it been the land is usually improved cultivated or enclosure or a substantial twenty years." is not an instruction on over- that this instruction It is clear Rather, evidentiary what standards it clarifies all burden occupancy the evidence of hostile appropriate to evaluate are possession claimant. an adverse quoted may Also, above point the instruction we out that title "true respect reference holder confusing in its Stats, (footnоte 893.30, infra), sec. with In conformance owner.” not as "true as such and denominated holder should be the title owner." *5 mistakenly
appellant
this to be standard to
considers
proof, while in fact
the
overall
be used
may
quality
only
even
of evidence which
refers
the
Russo,
334, 343,
See,
88
2d
Allie v.
considered.
be
("The
(1979)
730
evidence
276 N.W.2d
strictly
positive
claimant.").
must be
con-
must be clear
Corp.
against
also,
See
Zeisler
strued
(1964);
Page,
190, 198,
sonable
Fairfield,
"The middle standard applicable to more seri- by this court as established usual issues civil factual allegations than ous greater de- 'a has stated . . . This court case. finding is a before there required gree of certitude is subjected to the will be who against a defendant of certain to the commission stigma attached omitted.) (Citations Wangen . . ." of acts.' classes Co., 2d at 300.4 97 Wis. Ford *7 policy argues that similar Industries Horlamus degree greater require in of certitude a should reasons possession there is no fraud cases even where adverse According to Horlamus involved. criminal element or Industries, posi- requiring clear and the rationale following principles: Adverse on the centers tive usually strictly; possession no there are to taken is be equities claimant; his acts are of the adverse in favor against strictly him, rather than to construed be every presumption against is to holder; title possession to the title in subordination in favor be 4 attempted to dis During argument, Horlamus Industries oral (1973), Hovde, 213 69 as Bailey 2d tinguish used in a civil was the middle burden where an instance element, gross negligence fraud. or involving a criminal case for reformation of con fact, proof in that action the burden In right prove claiming to person a to reformation upon the was tract as written was convincing that the contract evidence by clear and This is no by Id. at 511. or by mutual mistake into entered fraud. Kuehn, supra. in of cases enunciated from the kinds different argues that Horlamus Industries owner. of the record consequences potentially title to thе holder harsh possession must be of adverse mandate that evidence strictly against For that rea- the claimant. construed son, that the "clear Industries claims Horlamus degree require positive" must the same standard convincing." satisfactory "clear, strong presumptions agree. in favor do not We against provide adequate protection of the title holder5 protection taking possession, of land independently of the burden that is afforded jury in that: this case was instructed be clear "The evidence of must strictly must construed positive and must be presumptions All reasonable claimant. true made favor owner." presumptions "disap- law, do not Under Wisconsin contrary pear" to evidence or "burst" when that, presumed This means even fact introduced.6 legal Presumption every recover action to from title. "893.30 every property, on defense based or for the real premises title, establishing legal legal person to the title premises presumed time within the been in have premises by law, occupation another required of such and the person the possessed years under and subordination have been shall be deemed to premises held and appears have been legal that such title unless 893.27, years adversely legal s. under title for 7 to the *8 893.25, years before under s. 893.26 20 under s. or of action." commencement general. provided by Presumptions Except "903.01 statute, presumption recognized or á at common law created statute, including statutory provisions are that certain basic facts produced, rebutting the infer- evidence has been where presumption is survived and sufficient ence from presumption support met a verdict until the is equal weight. of Judicial Council Commit- evidence that 1973, 59 2d R42. The mere fact Wis. tee's Note— presumptions of the title owner exist does not in favor should escalate to a mean that higher the burden contrary protection fact, of the standard. In justify presumption thus tends to a lower burden higher any necessity proof. It would obviate for bur- provides 903.01, Stats., that: den of Rule facts are found to exist the the basic "[0]nce against presumption imposes party on the whom proving that the nonexis- is directed the burden presumed probable faсt is more than tence of the its existence." provision
Implicit 903.01, Stats., in the of Rule presumption. quantum every All a uniform statutory pre- presumptions and all at common law express quantum proof sumptions re- which do not quantum quire as the of evi- the civil standard prove that the nonexistence of the dence sufficient to presumed probable than its existence. Ju- fact is more 1973, 2d R46. dicial Council Committee's Note— equivalent greater proof to "the This standard of weight required by the ordi- of the credible evidence" supports nary and further the decisiоn applied appeals that the trial court the court of facts, imposes party relying prima on on facie evidence of other facts, presumption proving but once the the burden of the basic presumption imposes party on the basic facts are found to exit the proving whom it is directed the burden of presumed probable than fact is more its nonexistence existence." *9 possession ac-
correct standard of this adverse tion. argues that the in-
Horlamus Industries further jury misleading jury structions to the were because the was told that it must be satisfied "to a reasonable cer- greater weight tainty, of the credible evidence" and that "the evidence of positive." must be clear and appropriate Reversal and remand are where probably jury. an erroneous instruction misled the Fleury 105, 113, 2d Wentorf (1978). Having concluded that the trial court was cor- submitting jury, rect in the lower burden of to the also conclude that Horlamus Industries could not we equate prejudiced even if the were to have been positive" language the "clear and instructions proof. anything, If this with the middle burden of Industries' favor would have worked Horlamus supra, have, however, di- rather than it. We positive" language deleted that the "clear and rected from the instruction. appeals
By decision of the court of the Court.—The is affirmed. disagree (dissenting).
STEINMETZ, I with the J. proof ap- majority's that the lowest burden decision plies The issue of the cases. in adverse proper established this state is well burden this I believe that bur- the middle policy justified reasons and would sound den Accordingly, previous I dis- decisions. our from deviate sent. majority concludes impression of first cases is one
in adverse
*10
by
majority
this
reаches
conclusion
this court.
characterizing
phrase
positive"
"clear and
evidence
quality
may
descriptive of "the
of evidence which
as
phrase
pages
At
361-362.
be considered."
even
allegedly
quantum
of evidence
is not indicative of
posses-
necessary
the elements of adverse
to establish
disagree
court's characterization
with the
sion.
being
positive"
as not
evidence
"clear
previously
disagree
proof. I
that we have not
also
specifically
in adverse
addressed the burden of
possession cases.
Meyer Hope,
123, 129,
101
In v. Wis. (1898), unambiguously stated that bur- this court possession requires cases clear in adverse den by satisfactory proof: "Much stress laid appellant language on often found learned counsel for possession books, that is not to be made in the 'adverse proof.' by satisfactory inference, clear and out of but opinion, good Later in the same we re- That is law." requiring "clear and ferred this burden positive at 130. We concluded Id. also that evidence." possession primary claim in facts of positive, by "clear, and sаtis- that case were established factory" evidence. Spengler Knaus, 100, 102, 215 v. 194 Wis. N.W. (1927), for ad- also defined
900 we possession satisfactory" of "clear and terms verse using phrase interchangeably proof, while this with satisfactory" "positive evidence: " of adverse 'The essential elements except upon to exist testi- properly be found cannot positive satisfactory character. That mony aof must all estab- mean that such elements does not evidence, they but that must be es- lished direct satisfactory evi- in a clear manner tablished
368
сircumstantial,
dence,
positive,
or
direct
123,
Meyer Hope,
101
unequivocal
character.
Wis.
It
not
to find
Also see Austin v. County Wadleigh Bank, v. Marathon (1883); Martin, 341, 344, 147 N.W. Zellmer v. 157 Wis. (1914), proposition that adverse *11 "clearly" established. must be assuming positive" Thus, even that "clear and evi- proof, not a of we are still dеnce does describe standard deciding case on a We have defined not this clean slate. satisfactory" proof in of terms of "clear and the burden evidence, is the middle burden of Kuehn, 11 Wis. 2d Kuehn v.
(1960), satisfactory" that "clear and evidence we stated convincing" satisfactory, equivalent "clear, ev- and is proof. Thus, the middle of we This is burden idence. applied previously middle burden of the have apply possession cases and for this court to now depar- abrupt an of constitutes lowest burden the justification precedent. I the do not see from ture change. the accept majority's the conclusion
I could not pre- apply if of even we had burden the lowest applied phrase expressly viously "clear and sat- and isfactory" I cases. be- to adverse evidence of of the overall burden the consideration lieve meaningfully separate quality evi- of cannot quantum I unaware of of evidence. am from the dence any a not believe that such dis- distinction and do such positive" meaning. is not differ- and has "Clear tinction convincing" defining a in terms and than "clear ent majority proof. Thus, is correct that if the quality positive" of evidence to the refers "clear convincing" proof, is then "clear not a burden obviously proposition proof. This not a burden of also majority's treatment so is is incorrect and language. positive" Furthermore, to state "clear and positive" only the evidence that defines that "clear by jury, pages may 361-362, is to at even be considered qualification admissibility for the a new establish requirement relevancy addition to evidence materiality. majority's analysis, evidence Under posses- may relevant, but in an adverse be material and may it, the consider evidence sion case before positive proof elements must be clear and also requirement this new to be im- the claim. find majority's reasoning just proper, to be at- as I find sophistry tempted applying the law and concocted at a result. to arrive positive" majority's that "clear and conclusion proof is with the court's not a inconsistent reasoning. majority jurisdic- states that other
own *12 phrase corresponds as to the are divided whether tions proof.1 page At 363. The or middle burden to the lower misleadingly ju majority indicates that other 1 I that the note phrase proper split construction of the "clear are on the risdictions opinions apply positive." majority on three that the The relies adverse cases. None these burden of in lowest positive." however, phrase That the "clear and opinions, construed Thus, jurisdictions. apply apparently in those did standard is that other implication jurisdic- from this statement to constitute a burden of phrase tions do consider the understanding It this рroof. beyond why therefore is positive" court refuses to consider "clear and to be such a burden. claim that "clear artificiality majority's
The positive" is not a burden of is indicated by the fact that now directs trial courts not majority phrase to use the page instructions. At 362. however, positive" requirement, require- "clear and is a If by many ment well established decisions of this court. phrase evidentiary requirement refers to an that independent proof, suggested by of the burden of as majority, majority why then the has not shown this "quality may limitation on the of evidenсe which even be cavalierly considered" is so eliminated. submit that the reason positive" really is because "clear and is a burden conclusively adjective that "clear" proof. identifies the standard as the middle burden of majority "frequently concedes that the word clear appears proof." page in the middle burden of At 362. treating Instead of this fact as a clue to the correct examples "jurisdictions attempted which have decisions are not phrase accepted proof." Majority correspond to standards of Realty, op. page opinion, A Russo v. Stearns Farms at 363. fourth Inc., (R.I. 1977), key phrase seems to construe 367 A.2d proof. rigorous the lowest burden of The Russo be a more test than i.e., proof by preponderance opinion proof," that "strict states evidence, required positive the clear and the standard terms of the The decision therefore defines cases. defining phrase. I phrase positive," further "clear and without however, proof" constitutes the lowest question, whether "strict Thus, appear there does not to be in Rhode Island. positive" any majority's of "clear and support construction equivalent being to the lowest burden *13 major- proof cases, the of burden conveniently ity the decides to eliminate trouble- too positive" phrase. that and would hold "clear some incorrectly majority dis- of and that the a burden meaningless phrase affecting only the a misses quality of evidence. improper majority on an distinction be- relies defining quantity quality of evidence as the
tween proof. 28, Kuehn, at we stated a of In 11 Wis. 2d burden complete rule a of correct statement the element of reason- contains both degree preponderance certainty and some able preponder- preponderance, evidence, such as fair clear preponderance beyond reasonable doubt. or ance proof require preponderance of all burdens of That Klipstein Raschein, In is self-evident. the evidence (1903), 252-53, 63 we stated this Wis. N.W. following language: very in the "In the na- rule obvious things to no can be established a reasonable ture of certainty, fact preponderance
. . . than a the evi- less necessary quantity proof always Thus, the dence." prob- preponderance evidence, i.e., more remains the greater, adjective phrases not, fair, than while able satisfactory, convincing quality clear, define the distinguishes various bur- of the evidence quality aspect of a burden of dens of degree certainty required. Kuehn, relates prefera- specifically that the 2d we stated at way is in terms the middle burden of ble define convincing satisfactory "clear, evidence. This convincing quality language describes better added.) (Emphasis power Thus, the evidence.” of the convincing" phrase evidence refers to "clear persuasiveness quality of evidence. *14 convincing" Having "clear and concluded quality evidence, positive" of both describe "clear proof, of a burden of element is an essential positive" character "clear next consider whether proof. I of believe izes, the lower burden the middle or that the mid indicates of the word "clear" that the use phrase. Bengs intended of dle burden (1952), 595, 598-99, 51 Estes, N.W.2d 260 Wis. ton v. the word "clеar" the addition of concluded that we proof instruction, some additional without of a burden qualifying adjective satisfactory" or "clear and
like convincing" to indicate was itself sufficient "clear and single proof. that the of We stated the middle burden frequently adjective has been used to indicate "clear" adjective proof. higher of the Inclusion positive," phrase therefore, suffi "clear in the ciently proof. Similarly, of the middle burden indicates greater degree "positive" of cer connotes the word tainty proof. "Positive" evi the lowest burden than ambiguity. Thus, I con free from that which is dence is positive" phrase refer to the "clear and strue proof. middle burden applied routinely court has that this
I conclude possession cases to adverse burden middle appropriate past. to be the this I consider purpose is to instruct a burden of concerning degree of confidence our factfinder present society in the correctness of should be thinks particular type adjudica- for a conclusions factual 549, 563, 302 N.W.2d Hanson, 100 Wis. 2d tion. State (1981). possession casеs, the evidence In adverse positive and must be possession clear must be strictly All reasonable the claimant. construed of the true owner. presumptions in favor made must be 334, 343, 276 Russo, 88 2d Allie v.
(1979). possession treatment of adverse The court's opinion prior a disfavored indicates that to this codifying presump- 893.30, Stats., claim. Section possession prop- the titleholder was tion that special legislature erty, con- that the also has indicates The elements claims. cerns about adverse society's re- indicate themselves of adverse рrop- casually dispossess his a titleholder of luctance erty These factors indicate cases. findings degree high in factual confidence that a *15 required in cases. There- adverse should be appropriate. fore, is the middle burden apply majority's burden decision to the lowest The the other factors indicat- inconsistent with of ing possession. ma- of adverse The
the disfavored status jority adverse claims because reasons disfavored, we should further otherwise are illogical. disfavored, If the claim claims. This is such requires appliсation consistency of the middle then high degree require proof. It a of con- should findings support factual of adverse in the fidence possession. majority's disagree
Finally, discussion with presumption. Stats., 893.30, a Section effect of of the recognizes presumption that the titleholder was in posses- property claimed of the analysis presumption majority's makes of the The sion. beneficiary. legal theory to the no value with it a majority "presump- interprets to mean that sec. 903.01 'disappear' evidence to or 'burst' when do not tions page presumed contrary At is introduced.” fact of the presump- majority However, then states that a 365. weight." page equal At 366. evidence of "is met tion opponent presumption standard, Under this of a only equal has a burden to come forth with evidence. give any presumption It does not value to a that cannot by merely equal weight. be overcome evidence of opponent presumption does not have a burden really presumption It is not test, under that merely advantage pro- initially but an to not have to showing possession by duce evidence a lack of the title- imposing holder. I would construe sec. 903.01 as a bur- den of on the adverse claimant. majority reasons,
For the above I dissent from the opinion.