Jeffrey E. Thompson v. Charles F. Meronk ( 2022 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 13, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP1091 Cir. Ct. No. 2020CV374
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
JEFFREY E. THOMPSON,
PLAINTIFF-RESPONDENT,
V.
CHARLES F. MERONK AND MARVIN S. MERONK,
DEFENDANTS-APPELLANTS.
APPEAL from a judgment of the circuit court for Marathon County:
GREGORY B. HUBER, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Charles Meronk and Marvin Meronk, Sr., appeal
from a judgment granting Jeffrey Thompson’s claim for adverse possession over a
No. 2021AP1091
portion of land to which the Meronks held title. The Meronks contend that the
circuit court erroneously failed to apply a presumption in their favor and that if the
court had taken the presumption into account, the evidence was insufficient to
support the verdict. We reject both contentions and affirm the judgment.
BACKGROUND
¶2 In 1980, Anthony and Phyllis Delikowski entered into a land
contract agreeing to sell a forty-acre parcel of land in Marathon County (the
Thompson parcel) to ETCO Electric Supply, Inc. ETCO was a company owned
by Thompson, his father and his brother. In 1982, the Delikowskis sold an
adjoining forty-acre parcel of land just south of the Thompson parcel (the Meronk
parcel) to the Meronks.1 In 1984, the Delikowskis executed a warranty deed
transferring title to the Thompson parcel to ETCO in satisfaction of the land
contract. In 2002, ETCO, in turn, sold that parcel to Thompson, who was also an
officer of the company throughout ETCO’s ownership of the parcel.
¶3 At a bench trial on Thompson’s adverse possession claim,
Thompson testified that when ETCO purchased the Thompson parcel, there was a
wire cattle fence setting apart a 3.867 acre portion (the disputed area) of what was
later to become the Meronk parcel. The disputed area consisted mainly of wooded
land along the north side of the Meronk parcel, where it adjoined the south side of
the Thompson parcel. By the time of trial, the fence was in a very deteriorated
condition, but still existed. Both ETCO and Thompson erroneously believed that
1
The legal descriptions and surveys of each parcel and the boundaries of the area of land
claimed to be adversely possessed are undisputed and need not be repeated here.
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the fence constituted the boundary between the Thompson and Meronk parcels
until a survey was completed in 2017.
¶4 Thompson further testified that he and ETCO exclusively used the
disputed area of the Meronk parcel between 1980 and 2017 by hunting, building
structures (including tree stands in the late 1990s), creating a trail system that
connected to the Thompson parcel, mowing, tilling, planting seed, riding ATVs
and snowmobiles, using cross-country skis and snowshoes, and tapping trees for
maple sap. Thompson estimated that he and ETCO and their invited guests
continuously used the property over 100 days per year during that thirty-seven-
year time period. In 1996, Thompson also put up a “cable gate along the fence
line, replacing a cable gate that the Meronks had previously put up. The cable
gate obstructed access to the disputed area from the rest of the Meronk parcel.
Neither Thompson nor ETCO ever requested permission from the Meronks to use
the disputed area, and Thompson did not see the Meronks ever using the area
themselves. Thompson introduced photographs of the cattle fence, cable gate, and
trails.
¶5 Thompson’s son-in-law, Matthew Palecek, testified that he had used
the disputed area about fifty times beginning in 2000. He had hunted on the
disputed area with Thompson. He had seen the cattle fence, and Thompson had
told him that the fence was the dividing line between the Thompson and Meronk
properties. He had helped Thompson with several projects on the disputed area,
including building structures, clearing brush, maintaining ATV trails, and planting
seeds on food plots. He had seen Thompson operate vehicles and tap maple trees
on the disputed area. Palecek had also seen Thompson and his guests
cross-country skiing and snowshoeing on the disputed area, and he likewise had
done so himself.
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¶6 Both Thompson and Palecek also testified that, after the survey was
done in 2017, which revealed that the disputed area was part of the Meronk parcel,
the Meronks placed pieces of pipe across the trails to prevent access across the
disputed area from the Thompson parcel. The Meronks also removed the cable
gate that had blocked access to the disputed area from the rest of their parcel.
¶7 Marvin, Sr., testified that the cattle fence was old—probably built in
the 1920s or 1930s—and that he did not consider it to be the boundary between
the Meronk parcel and the Thompson parcel. He said that no one knew where the
boundary was until he obtained a survey prior to cutting down trees. Meronk
claimed that he had hunted and cut wood on the disputed area, along with his son,
brother, nephews and a cousin, and he did not see any tree stands, trails, or cable
gates there any more recently than fifteen years prior. He noted that he had
personally installed a cable gate along the old fence line.
¶8 Marvin, Sr.’s son, Marvin Meronk, Jr., testified that he had hunted
on the disputed area many times and did not see any other hunters, tree stands, or
“four-wheelers” there.
¶9 Charles Meronk testified that he never believed the cattle fence was
the property line because the fence was crooked, and he knew from the written
description in the deed that his parcel was square. He also testified that he had
hunted and cut wood on the disputed area many times over the years.
¶10 The circuit court found that: (1) the Meronks had at some point
placed a cable gate along the fence line rather than along the actual boundary line,
and Thompson had replaced that gate in 1996, supporting Thompson’s testimony
that both parties treated the fence line as the boundary; (2) Thompson had created
trails and built at least one permanent tree stand on the disputed area as
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documented by photographs, and the Meronks’ claim that they never saw the tree
stand undermined the credibility of their assertions that they regularly had been
using the disputed area themselves; (3) ETCO and Thompson had been regularly
using the disputed area for recreational purposes including hunting, snowmobiling
and maple sap collection for more than twenty years; and (4) the Meronks did not
put up barriers along the actual property line or challenge ETCO’s or Thompson’s
use of the disputed area until after the survey was done because they did not know
where the actual boundary was before that time. The court concluded that
Thompson had satisfied his burden of proving adverse possession. The Meronks
now appeal.
DISCUSSION
¶11 By statute, a person may acquire title to real property by adverse
possession if the property is occupied for an uninterrupted period of twenty years.
WIS. STAT. § 893.25(1) (2019-20).2 Adverse possession requires the land to be
actually occupied and either protected by a substantial enclosure or usually
cultivated and improved. Sec. 893.25(2). To meet these requirements, a person
claiming adverse possession must show that the disputed property was used for the
requisite period of time in an “open, notorious, visible, exclusive, hostile and
continuous” manner that would apprise a reasonably diligent landowner and the
public that the possessor claimed the land as his or her own. Pierz v. Gorski, 88
Wis. 2d 131, 137, 276 N.W.2d 352 (Ct. App. 1979). “If the claimant’s use gives
the titleholder reasonable notice that the claimant is asserting ownership and the
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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titleholder does nothing, that failure to respond may result in losing
title.” Peter H. and Barbara J. Steuck Living Tr. v. Easley, 2010 WI App 74,
¶17, 325 Wis. 2d 455, 785 N.W.2d 631.
¶12 An adverse possession decision presents a mixed question of fact
and law, requiring findings concerning the sequence of events and a conclusion as
to the legal significance of those events. Perpignani v. Vonasek, 139 Wis. 2d
695, 728, 408 N.W.2d 1 (1987). A party seeking to claim title by adverse
possession bears the burden of proving the elements of the claim by “clear and
positive evidence.” Easley, 325 Wis. 2d 455, ¶15. In addition, the circuit court
must “strictly construe[]” the evidence against the party claiming adverse
possession and apply “all reasonable presumptions” in favor of the title owner. Id.On review, we will sustain the circuit court’s findings of fact unless they are
clearly erroneous, but we will independently determine whether those facts are
sufficient to establish an adverse possession claim under the applicable burden of
proof. Wilcox v. Estate of Hines, 2014 WI 60, ¶15, 355 Wis. 2d 1, 849 N.W.2d
280.
¶13 The Meronks first contend that the circuit court failed to strictly
construe the evidence against Thompson and to apply all reasonable presumptions
in the Meronks’ favor because the court found Thompson’s testimony to be
credible despite potential discrepancies with other testimony. For instance, the
Meronks point to the conflict between Marvin, Sr.’s testimony that the
replacement cable gate was not in place for more than fifteen years—i.e., before
2006—and Thompson’s testimony that he installed the replacement gate in 1996.
Along the same lines, the Meronks contend Palecek’s testimony that he observed
Thompson put up tree stands and helped to create and maintain trails means those
tree stands and trails could not have been in place before 2000. However, these
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and similar arguments made by the Meronks, confuse legal presumptions with
credibility determinations.
¶14 Because the circuit court is in the best position to observe witness
demeanor and gauge the persuasiveness of testimony, it is the “ultimate arbiter”
for credibility determinations when acting as a fact finder, and we will defer to its
resolution of discrepancies or disputes in the testimony and its determinations of
what weight to give to particular testimony. Johnson v. Merta, 95 Wis. 2d 141,
151-52, 289 N.W.2d 813 (1980); see also WIS. STAT. § 805.17(2) (“[D]ue regard
shall be given to the opportunity of the [circuit] court to judge the credibility of the
witnesses.”). This deference means that we will not overturn credibility
determinations on appeal unless the testimony upon which they are based is
inherently or patently incredible or in conflict with the uniform course of nature or
with fully established or conceded facts. Global Steel Prods. Corp. v. Ecklund,
2002 WI App 91, ¶10, 253 Wis. 2d 588, 644 N.W.2d 269.
¶15 Thompson’s testimony that he and his predecessor, ETCO,
continuously used the disputed area between 1980 and 2017 by hunting, building
tree stands, creating and maintaining a trail system that connected to the
Thompson parcel, mowing, tilling, planting seed, riding ATVs and snowmobiles,
using cross-country skis and snowshoes, and tapping trees for maple sap was not
inherently incredible. It follows that the circuit court was entitled to make factual
findings based upon Thompson’s testimony—even if that testimony may have
conflicted in some manner with other testimony. Thus, the court’s findings that
Thompson and ETCO had been using the disputed area for recreational purposes
for over twenty years, that Thompson had erected tree stands and created and
maintained trails on the disputed area, and that Thompson installed a replacement
cable gate in 1996 blocking the Meronks’ access to the disputed area across the
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fence line along one of the trails, are not clearly erroneous. Those findings are the
starting point for evaluating whether the court properly determined that Thompson
established all the elements of his adverse possession claim by clear and positive
evidence, overcoming all reasonable presumptions in the Meronks’ favor.
¶16 The Meronks argue that the evidence was insufficient to show that
Thompson’s use of the disputed area was open, notorious, and visible
because: (1) the cattle fence predated Thompson’s use of the disputed area;
(2) hunting and creating a trail on a wooded property were found not to be
sufficiently obvious to apprise a true owner that someone was adversely using
their land in Easley; and (3) the cable gate was not on the disputed area for more
than fifteen years. However, the circuit court did not rely on the original building
of the cattle fence as one of the open, notorious, and visible uses establishing
adverse possession here. Rather, the court merely considered the fence as
evidence establishing the boundary of the area in dispute. Additionally, there were
several more types of use at issue here than merely hunting or maintaining trails.
There was also testimony about planting food plots, which would be visible, and
using ATVs and snowmobiles, which would be audible. Most significantly,
erecting a gate to block access to the disputed area from the rest of the Meronk
parcel clearly was an open, notorious, and visible use. We have already explained
that the court was entitled to determine that Thompson’s testimony as to when the
replacement cable gate was installed was more credible than Marvin, Sr.’s
testimony on that point.
¶17 The Meronks next argue that Thompson did not have the
“substantive intent” for an adverse possession claim (which we understand to be
an argument that Thompson and ETCO’s use of the disputed area was not hostile)
because Thompson removed a tree stand at the Meronks’ request after the
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completion of the survey—showing that Thompson’s use was by permission. See
generally Northwoods Dev. Corp. v. Klement, 24 Wis. 2d 387, 129 N.W.2d 121(1964) (holding that possession with the permission of the true owner is consistent
with use subservient to the true owner’s rights and therefore not hostile). Aside
from the problem that this assertion is based upon an allegation outside of the
evidence produced at the evidentiary hearing,3 it is immaterial because the
twenty-year period of adverse possession had already been established by the time
the survey was conducted and the tree stand was removed.
¶18 Finally, the Meronks appear to argue that Thompson and ETCO’s
use of the disputed area was not exclusive and continuous because the Meronks
also hunted and gathered wood there. See Otto v. Cornell, 119 Wis. 2d 4, 7, 349
N.W.2d 703 (Ct. App. 1984) (holding that a true title owner’s notorious re-entry
can defeat the continuity or exclusivity of an adverse claimant’s possession if the
re-entry is a substantial and material interruption for the purpose of dispossessing
the adverse occupant). The first problem with this argument is that the circuit
court expressly found that the Meronks’ claims to have regularly used the land
themselves were not credible because, had they done so, they would have seen the
tree stands and trails.
¶19 Moreover, just as “[a]cts which are consistent with sporadic trespass
are insufficient to apprise a reasonably diligent owner of any adverse claim,” Pierz
88 Wis. 2d at 137, a true owner’s “casual” re-entry such as raking leaves or
allowing children to play on the land is insufficient to apprise the adverse claimant
3
The Meronks asserted that Thompson had removed a tree stand at their request in their
answer to the complaint, not through testimony provided at the hearing.
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that the true owner has re-established his or her dominion over the land, Otto, 119
Wis. 2d at 9. In other words, if Thompson and ETCO’s hunting alone would not
have been sufficient to establish adverse possession, the Meronks’ alleged hunting
was not sufficient to interrupt the period of adverse possession.
¶20 In sum, there was sufficient evidence for the circuit court to
determine that Thompson and his predecessor had adversely possessed the
disputed area in an open, notorious, visible, exclusive, hostile and continuous
manner for a minimum of twenty years—from at least 1996 when the replacement
cable gate was erected until 2017, when the survey was conducted. The court’s
determination did not impermissibly shift the burden of proof to the Meronks.
Rather, the court properly determined that the evidence of adverse possession was
sufficient to overcome the presumption in the title holders’ favor
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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