COURT OF APPEALS

DECISION

DATED AND FILED

May 13, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP2427 Cir. Ct. No. 2018CV209

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

GERALD R. WOLLIN, CONNIE K. WOLLIN, PETER G. WOLLIN,

JAMES R. WOLLIN AND AMBER A. TURFLE,

 PLAINTIFFS-APPELLANTS,

 V.

STEPHEN J. DOLJANIN,

 DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Juneau County: 

STACY A. SMITH, Judge. Affirmed. 

Before Fitzpatrick, P.J., Kloppenburg, and Nashold, 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). 
No. 2019AP2427

2

¶1 PER CURIAM. Gerald Wollin and other plaintiffs appeal an order 

dismissing their claim for a prescriptive easement based on adverse use of a road

on land owned by respondent Stephen Doljanin. The issue is whether the circuit 

court applied the correct law in concluding that Doljanin rebutted the presumption 

that Wollin’s use of the road was adverse. We conclude that the court used the 

correct law and, therefore, we affirm.

¶2 Wollin’s claim for a prescriptive easement is made pursuant to WIS.

STAT. § 893.28(1) (2019-20),

1 which requires a twenty-year period of continuous 

adverse use of rights in the land of another to obtain a prescriptive right to 

continue the use. The parties agree that the twenty-year period at issue in this case 

runs from 1996 to 2016. 

¶3 The circuit court rejected Wollin’s claim on two alternate grounds, 

each of which led to the circuit court’s conclusion that the required twenty-year 

period of continuous and adverse use had not occurred. Pertinent to our analysis, 

the court recounted testimony by Wollin that, from 1999 to 2010, the previous 

owner of what is now Doljanin’s property saw Wollin using the road through the 

property, but did not tell Wollin that he could not use the road, even though they 

spoke on some of those occasions. 

¶4 Based on that testimony, the circuit court determined that “there is 

implied consent. He sees him riding on it. He doesn’t tell him off. He doesn’t get 

upset .... That’s, in the Court’s eyes, implied that he knew he was riding it, but he 

didn’t really care. So it’s giving him permission to use that property in that way.” 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2019AP2427

3

¶5 On appeal, the parties agree that there is a rebuttable presumption 

that an unexplained use of an easement is adverse. Wollin argues that the circuit 

court’s finding of “implied consent” improperly turned that burden around and 

presumed the existence of permission, rather than requiring Doljanin to rebut the 

presumption of adverse use.

¶6 In support of his argument, Wollin relies on Shellow v. Hagen, 

9 Wis. 2d 506, 101 N.W.2d 694 (1960). He argues that in Shellow the court 

rejected this kind of attempt to change the presumption. Specifically, the court 

stated that an inference of permissive use “cannot arise merely from the fact that 

the plaintiffs and the defendants were neighbors.” Id. at 514. 

¶7 Shellow is not persuasive because here the circuit court did not rely 

on the fact that the people involved were neighbors. Instead, the court relied on 

personal contact between the neighbors, in which one saw the other using his land 

and did not object, even though they spoke. 

¶8 Wollin argues that the circuit court erred in some manner by using 

the term “implied consent.” We disagree. Wollin appears to be suggesting, 

without actually stating, that the consent must be express, rather than implied, to 

rebut the presumption of adverse use. However, he does not cite any authorities to 

that effect. See Kruczek v. DWD, 2005 WI App 12, ¶32, 278 Wis. 2d 563, 

692 N.W.2d 286 (2004) (“We need not consider argument unsupported by 

reference to legal authority.”). 

¶9 And, to the contrary, case law states that such a right cannot arise 

from “a mere tolerated or permissive use.” Carmody v. Mulrooney, 87 Wis. 552, 

553, 58 N.W. 1109 (1894). The term “tolerance” does not suggest only an express 

acceptance of a situation, but also suggests a passive, unspoken acceptance. 
No. 2019AP2427

4

Accordingly, we conclude that tolerance, even if only implied, can overcome the 

presumption of adverse use. 

¶10 As to the findings of historical fact that Wollin had these contacts 

with the prior landowner, Wollin does not appear to be challenging those on 

appeal. Even if he were, the findings are sufficiently supported by the testimony 

the circuit court relied on. 

¶11 We further conclude that “tolerance” is an apt term for what was 

described in the testimony the circuit court relied on. The owner knew that Wollin 

was using the road, and impliedly tolerated it. This was sufficient to overcome the 

presumption of adverse use.

¶12 Because Doljanin overcame the presumption of adverse use for the 

1999 to 2010 portion of the twenty-year period at issue in this case, Wollin’s claim 

for a prescriptive easement fails. The circuit court properly dismissed his claim. 

We need not address the other ground relied on by the circuit court, which related 

to use of the property in the 1996 to 1998 portion of the twenty-year period. See 

Cholvin v. DHFS, 2008 WI App 127, ¶34, 313 Wis. 2d 749, 758 N.W.2d 118 

(declining to reach other issues raised where one issue disposed of the appeal).

By the Court.—Order affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.