### COURT OF APPEALS DECISION DATED AND FILED
Decem ber 13, 2022

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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2021AP1091 Cir. Ct. No. 2020CV374 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

J EFFREY E. T HOMPSON ,
P LAINTIFF - R ESPONDENT ,

V . C HARLES F. M ERONK AND M ARVIN S. M ERONK ,
D EFENDANTS - A PPELLANTS .

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 W IS . S TAT . R ULE 809.23(3).
¶ 1 PER CURIAM. Charles Meronk and Marvin Meronk , Sr. , appeal from a judg ment granting Jeffrey Thompson’s claim for adverse possession over aNo. 2021AP1091

2 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 p resumption 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 w as a company owned by Thompson, his father and his brother. In 1982, the Delikowski s sold a n adjoining forty

- acre p arcel of land just south of the Thompson parcel (the Meronk parcel) to the Meronks. 1 In 1984, t he Delikowski s executed a warranty deed
transfer ring 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 of ficer of the company t hroughout 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 c attle 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 sou th side of the Thompson parcel. By the time of tri al, the fence was in a very deteriorated condition, but still existed

. Both ET CO and Thompson erroneously believ ed 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.No. 2021AP1091

3 the fence constituted the boundary between the Thompson and Meronk parcels
until a survey was completed in 2017

. ¶ 4 T hompson further testified that he and ET CO 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 tr a i l system that connected to the Thompson parcel , mowing, tilling, planting seed, riding ATVs and snowmobiles, using cross

- country skis and snowshoes, and ta p pin g trees for maple sap. Thompson estimated that he and ETCO and their invited guests continuously used th e 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 a rea from the rest of the Meronk parcel

. Neither Thompson nor ET CO 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 fe nce, 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 disp uted area with Thompson. He had seen the cattle fence , and Thompson had told him that the fence was the dividing line between the Thompso n and Meronk properties. He had helped Thompson with several projects on the disputed area, including building structures, clearing brush, maintaining ATV trails, and plant ing seeds on food plots. He had seen T hompson operate vehicles and tap maple trees on the disputed area. Palecek ha d also seen Thompson and his guest s

cross

- country skiing and snowshoeing on the disputed area , and he likewise had
done so himself

.No. 2021AP1091

4 ¶ 6 Both Thompson and Palecek also testified that, a fter the survey was done in 2017, which revealed that the disputed area was part of the Meronk parce l , the Meronks placed pieces of pipe across the tr a il s to prevent access across the disputed a rea from the Thompson parcel

. The Meronks also removed the cable gate that had blocked access to the disputed area from the rest of the ir parcel.

¶ 7 Marvin , Sr. , testified that the cattle fence was old

— probably built in
the 1920 s or 19 30s

— and that he did not consider i t to be the boundary between
the Meron k 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 wo od 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 f ence line.

¶ 8 Marvin , Sr. ’s son , Marvin Meronk, Jr., testified that he had hunted on the disputed area many times an d 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 ma ny 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 th at gate in 199 6 , supporting Th ompson’s testimony that both parties treated the fence line as the boundary ; (2) Thompson had created

tr a i ls and built at least one permanent tree stand on the disputed area asNo. 2021AP1091

5 documented by photograph s , and the Meron ks’ 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 s a p c ollection for more than twenty years ; a nd (4) the Mero n ks 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 t itle to real property by adverse possession if the property is occupied for an uninterrupted period of twenty years.
W IS

. S TAT

. § 893.25(1) (2019

- 20)

. 2 Adverse possession requires the land to be actually occupied and either protected by a substantial enc losure 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 titleh older reasonable notice that the claimant is asserting ownership and the

2 All references to the Wisconsin Statutes are to the 2019

- 20 version unless otherw ise noted.No. 2021AP1091

6 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 6 31.

¶ 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 co urt must “strictly co nstrue [] ” the evidence against the party claiming adverse possession and apply “ all reasonable presumptions ” in favor of the title owner. Id. On review, w e will sustain the circuit court’s findings of fact unless they are clearly erroneous, but we will i ndependently 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 T he Meronks first con tend that the circuit court failed to strictly
construe the ev idence against Thompson and to apply all reasonable pres umptions
in the Meronks’ favor because the court found Thompson ’s testimony to be credible despite potential discrepancies with other testimony

. For instance, t he
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 19 9 6. Along the same lines, t he Meronks contend Palecek’s testimony that he observed Thompson put up tree stands and helped to create and m aintain tr a ils means those
tree stands and trails could not have been in place before 2000. However, t heseNo. 2021AP1091

7 and simila r 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 ac ting 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. Jo h nson v. Merta , 95 Wis. 2d 141,
151

- 52, 289 N.W.2d 813 (1980); see also W IS

. S TAT

. § 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
determinat ions 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 hu nting, building
tree stands , creating and maintaining a tr a il system that connected t o the Thompson parcel, mowing, tilling, planting seed, riding ATVs and snowmobiles, using cross

- country skis and snowshoes, and tap p ing trees for maple sap was not
i nherently incredible. It follows that the circuit court was en titled to make factual
findi ngs 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
f or over twenty years, that Thompson had erected tree stands and created and
maintained tr a ils on the disputed area, and that Thompson installed a replacement cable gate in 19 9 6 blocking the Mer on ks ’ access to the disputed area across theNo. 2021AP1091

8 fence line along one of the trails, are not c learly 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 tra il on a wooded property were found not to be sufficiently obvious to appr ise a true owner that someone was adversely using
their land in Easley ; and (3 ) the c able gate was not on the disputed area for more than fifteen years. However, th e 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 boundar y 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 alr eady explained
that the court was entitled to determine that Thompson’s te stimony 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 theNo. 2021AP1091

9 completion of the survey

— showing that Thompson’s use was by permission

. See generall y Northwoods Dev. Corp. v. Klement , 24 Wis. 2d 3 87, 129 N.W.2d 121 (1964) (holding that p ossession 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 th is 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 st and was removed

. ¶ 18 Finally, t he 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, 34 9
N.W.2d 703 (Ct. App. 1984) (holding that a true title owner’s notorious re

- entry can defeat the continuity or exc lusivity 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 tra ils.

¶ 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 th r ough testimon y provided at the hearing.No. 2021AP1091

10 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 h unting 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 t o 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 un til 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 W IS

. S TAT

. R ULE 809.23(1)(b)5.