2014 WI 60

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP1869 

COMPLETE TITLE: Richard S. Wilcox and Susan K. Wilcox,

 Plaintiffs-Appellants,

 v.

Estate of Ralph Hines, Estate of William J. 

Newman and 

Lake Delton Holdings, LLC,

 Defendants-Respondents-Petitioners,

Chicago Title Insurance Company,

 Defendant. 

REVIEW OF A DECISION OF THE COURT OF APPEALS

348 Wis. 2d 124, 831 N.W.2d 791

(Ct. App. 2013 – Published)

PDC No: 2013 WI App 68

OPINION FILED: July 11, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: December 19, 2013 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Sauk 

JUDGE: James Evenson

JUSTICES:

CONCURRED: 

DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.) 

NOT PARTICIPATING: 

ATTORNEYS:

For the defendants-respondents-petitioners, there were 

briefs by James E. Bartzen, Richard L. Schmidt, and Boardman & 

Clark LLP, Madison, and oral argument by James E. Bartzen.

For the plaintiff-appellants, there was a brief by Edward 

A. Corcoran and Neider & Boucher, S.C., Madison, and oral 

argument by Edward A. Corcoran. 
2

An amicus curiae brief was filed by Thomas D. Larson, 

Madison, on behalf of the Wisconsin Realtors Association. 
2014 WI 60

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP1869

(L.C. No. 2011CV845)

STATE OF WISCONSIN : IN SUPREME COURT

Richard S. Wilcox and Susan K. Wilcox,

 Plaintiffs-Appellants,

 v.

Estate of Ralph Hines, Estate of William J. 

Newman and Lake Delton Holdings, LLC,

 Defendants-Respondents-Petitioners,

Chicago Title Insurance Company,

 Defendant.

FILED

JUL 11, 2014

Diane M. Fremgen

Clerk of Supreme Court

 REVIEW of a decision of the Court of Appeals. Reversed. 

¶1 MICHAEL J. GABLEMAN, J. This is a review of a 

published decision of the court of appeals1 reversing a decision 

and order of the Sauk County Circuit Court2 dismissing the 

 

1 Wilcox v. Estate of Hines, 2013 WI App 68, 348 Wis. 2d

124, 831 N.W.2d 791.

2 The Honorable James Evenson presiding.
No. 2012AP1869 

2

adverse possession claim brought by the respondents, Richard and 

Susan Wilcox.

¶2 This case involves an action for adverse possession 

brought by the respondents, Richard and Susan Wilcox, for the 

purpose of gaining title to a strip of land separating their 

property from Lake Delton. The question presented is whether 

the Wilcoxes can establish that they adversely possessed the 

disputed property when their predecessors in interest, the 

Somas, expressly disclaimed ownership of it and sought 

permission to use the property from an entity that the Somas 

mistakenly believed was its true owner. The Wilcoxes argue it 

is irrelevant whether the Somas subjectively intended to claim 

ownership of the property, so long as their use of the property 

was sufficient to put the true owner on notice of occupation. 

In contrast, the titleholders3 maintain that a party's subjective 

intent4 to claim ownership is relevant to whether "claim of 

title"5 has been established under Wis. Stat. § 893.25 (2011-

12).6 The titleholders assert that the fact the Somas expressly 

 

3 For the purposes of clarity, we refer to the Estate of 

Ralph Hines, the Estate of William J. Newman, Lake Delton 

Holdings, LLC, and the Chicago Title Insurance Company

collectively as "the titleholders."

4 In referring to a party's subjective intent, we mean the 

actual state of a person's mind, as opposed to the objective 

appearance of the party's intentions. 

5 As discussed below, the "claim of title" requirement in 

Wis. Stat. § 893.25 is equivalent to the common law "hostility" 

element of adverse possession. 

6 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated. 
No. 2012AP1869 

3

disclaimed ownership of the lakefront strip and requested 

permission to use it from an entity they mistakenly believed was 

its true owner demonstrates they did not intend to claim title 

to the property.

¶3 For the reasons that follow, we agree with the 

titleholders and hold that evidence regarding a possessor's 

subjective intent to claim title may be relevant in an adverse 

possession claim to rebut the presumption of hostility that 

arises when all other elements of adverse possession are 

satisfied. Because the circuit court properly considered the 

Somas' subjective intent and concluded that the Wilcoxes failed 

to establish adverse possession for the requisite statutory 

period, we affirm the judgment of the circuit court, and we need 

not remand for further proceedings. Accordingly, we reverse the 

decision of the court of appeals. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶4 In 2002, Richard and Susan Wilcox ("the Wilcoxes") 

purchased a parcel of property ("the Wilcox property") from 

Ronald and Mary Soma ("the Somas") near Lake Delton in Sauk 

County. A 25-foot-wide strip of land ("the lakefront strip") 

runs between the eastern border of the Wilcox property and Lake 

Delton. It is this lakefront strip that is the subject of 

dispute in this case, and a brief account of its ownership 

history is necessary to understand the parties' arguments. 

¶5 At the time the Wilcoxes filed their complaint in this 

case, the southeast portion of the lakefront strip was owned by 

The Estate of William Newman ("Newman"). Newman originally 
No. 2012AP1869 

4

created Lake Delton in 1927 by constructing a dam on Dell Creek, 

and at that time he owned the entire lakefront strip, as well as 

what is now the Wilcox property. 

¶6 In 1933, Newman transferred ownership of the northeast 

portion of the lakefront strip and a portion of the Wilcox 

property to Ralph Hines ("Hines"), and transferred the remainder 

of the Wilcox property to Hines in 1935. Newman also granted 

Hines the right to foot traffic across the southeast portion of 

the lakefront strip. In 1935, Hines sold the Wilcox property to 

Henry C. Titus ("Titus") but retained ownership of the northeast 

portion of the lakefront strip. Hines also granted Titus the 

right to foot traffic across the entire lakefront strip. 

¶7 In 1963, the Somas purchased the Wilcox property from 

Titus and, as part of the sale, were granted the right to foot

traffic across the entire lakefront strip. At this time, 

ownership of the lakefront strip remained with Hines and Newman, 

and Titus explained to the Somas that the Wilcox property did 

not include the lakefront strip. The Somas, however, never knew 

who actually owned the lakefront strip. Following the deaths of 

both Hines and Newman, ownership of the lakefront strip was 

ultimately transferred to the Estate of Ralph Hines and the 

Estate of William Newman. These estates retained ownership of 
No. 2012AP1869 

5

the lakefront strip at the time the complaint in this case was 

filed.7 

¶8 The Somas owned the Wilcox property for nearly 40 

years. During this time, the Somas made numerous improvements 

to the lakefront strip, while understanding that they did not 

own that land. For instance, the Somas installed and removed a 

pier on the lakefront strip every year that they owned the 

Wilcox property. They also cleared out undergrowth on the 

lakefront strip, added rocks, planted trees and flowers, 

repaired a cement wall, installed riprap8 along the shoreline, 

and maintained the lawn. In addition, the Somas put up a "No 

Trespassing" sign and regularly told trespassers that they were 

on private property and instructed them to leave. The Somas 

never asked permission from either the Newman or Hines Estates 

 

7 During the course of litigation, Lake Delton Holdings, 

LLC, an enterprise owned by the law firm representing the Hines 

and Newman Estates in this case, acquired quitclaim deeds to 

both portions of the lakefront strip. Following acquisition of 

the deeds, Lake Delton Holdings moved to intervene in place of 

the Estates. The Wilcoxes objected, arguing that Lake Delton 

Holdings had unclean hands because it "attempted to acquire the 

property interest in order to advance a defense on behalf of 

First American Title Insurance in a dispute with the Wilcoxes on 

an adjoining parcel that had already generated three appeals." 

The circuit court denied the motion to intervene but allowed 

Lake Delton Holdings to continue as an interested party. Lake 

Delton Holdings' motivation for acquiring deeds to the lakefront 

strip is irrelevant to whether the Wilcoxes have established 

adverse possession.

8 "Riprap" is defined as "[l]oose stone used to form a 

foundation for a breakwater or other structure; a structure made 

of this." Shorter Oxford English Dictionary 2590 (6th ed. 

2007).
No. 2012AP1869 

6

to make these alterations to the lakefront strip. However, they 

did ask and receive permission from John Dixon ("Dixon"), the 

manager of the Wisconsin Ducks ("the Ducks"), a company that 

provides boat tours of Lake Delton and Dell Creek. The Somas 

did so because they mistakenly believed that the lakefront strip 

was owned by the Ducks. 

¶9 In 1982, the Somas granted the Ducks an easement 

across their property to bring trucks and equipment to the 

lakefront strip. The Ducks cleared out trees and undergrowth 

and placed rocks on the lakefront strip. The Somas never 

objected to these improvements because they believed the 

lakefront strip belonged to the Ducks. After the Ducks were 

finished, the Somas wished to make certain improvements to the 

lakefront strip. Before doing so, they sought and received 

permission from Dixon to rearrange the rocks, place peat and 

grass seed on the lakefront strip, and put up a fence with a 

gate and an additional "No Trespassing" sign. 

¶10 The Wilcoxes purchased the Somas' property in 2002. 

Prior to the purchase, the Somas informed the Wilcoxes that the 

lakefront strip was not part of the sale, but that the Wilcoxes 

would have a right of foot traffic across it.9 Nevertheless, the 

Wilcoxes maintained and developed the lakefront strip in the 

 

9 In addition, the Surveyor's Certificate of the purchased 

property states that the lakefront strip is not included in the 

parcel: "Said parcel does not include that land lying between 

said line being 25 feet, more or less, from the water's edge of 

Lake Delton and the water line of Lake Delton . . . ." 
No. 2012AP1869 

7

years following their purchase, adding improvements such as 

piers, a patio, flowers, trees, a fire pit, and steps. 

¶11 On August 26, 2011, the Wilcoxes brought a claim for 

title by adverse possession under Wis. Stat. § 893.25 against 

the owners of the lakefront strip, the Estate of Ralph Hines and 

the Estate of William Newman, in the Sauk County Circuit Court.10 

The circuit court conducted a bench trial on May 10, 2012. In 

its oral ruling, the circuit court explained that adverse 

possession requires possession that is "open, notorious, 

visible, exclusive, hostile, and continuous . . . ." The 

circuit court found that the Wilcoxes, in conjunction with their 

predecessors in interest,11 had met their burden of proof on the 

open and visible elements of adverse possession. However, the 

circuit court determined that they had failed to establish the 

elements of exclusive, hostile, notorious, and continuous 

possession. The circuit court dismissed the Wilcoxes' adverse 

possession claim, noting that 1) the Somas had specifically 

disclaimed ownership of the lakefront strip; and 2) the Somas 

 

10 The Wilcoxes also brought a claim for reformation of 

title, and the titleholders raised a counterclaim for trespass 

against the Wilcoxes. Both claims were dismissed by the circuit 

court and not raised before the court of appeals. Accordingly, 

we do not address them. 

11 The Wilcoxes cannot, by themselves, demonstrate adverse 

possession for the requisite statutory period. This is so 

because the Wilcoxes' use of the lakefront strip began in 2002,

and consequently, they had only occupied the disputed property 

for less than ten of the statutorily required 20 years at the 

time they brought suit. The Wilcoxes must therefore "tack" 

their period of possession onto that of the Somas in order to 

satisfy the statutory period in Wis. Stat. § 893.25(1).
No. 2012AP1869 

8

sought and received permission to make improvements to the 

lakefront strip. A final order reflecting this ruling was 

issued on May 22, 2012.

¶12 The court of appeals reversed the decision of the 

circuit court. Wilcox v. Estate of Hines, 2013 WI App 68, 348 

Wis. 2d 124, 831 N.W.2d 791. The court of appeals first 

acknowledged "what might appear to be an inconsistency in 

adverse possession case law." Id., ¶2. Specifically, the court 

observed that while the adverse possession statute, Wis. Stat. 

§ 893.25(2)(a), requires "occupation under claim of title," 

several cases appear to hold that the subjective intent of a 

possessor——that is, whether the possessor intended to claim 

title——is an irrelevant factor in determining the merits of an 

adverse possession claim. Id. After noting this apparent 

tension between the language of Wis. Stat. § 893.25 and our 

precedent, the court of appeals determined that reviewing courts 

should consider "the appearance that a possessor's use would 

give to the true owner" and not the "actual subjective intent" 

of a party. Id., ¶15. In other words, the court of appeals 

concluded that it is "a possessor's actions, not a possessor's 

belief" that matters when considering the hostile nature of the 

occupation. Id., ¶16. The court of appeals reasoned that this 

distinction reconciles various cases that appear "to declare, in 

one breath, that a possessor must actually intend to claim an 

exclusive right to possess property, and then, in the next 

breath, assert that the subjective intent of the possessor is 

irrelevant. . . ." Id., ¶19. Applying this rule, the court of 
No. 2012AP1869 

9

appeals held that evidence of permission to use the property 

from a non-owner and a party's express declarations of nonownership should not be considered.

¶13 The court of appeals recognized an exception to this 

rule: a party's permissive use of property is relevant in cases 

where the permission is granted by the true owner of the 

property. Id., ¶21. The court of appeals explained this 

exception is warranted because when an owner has granted a party 

permission to use property, a party's use in accordance with 

that permission would not appear hostile to the owner. Id. In 

this case, however, the Somas' permission to use the lakefront 

strip came from a non-owner and was therefore irrelevant. Id. 

Consequently, the court of appeals held that the Wilcoxes 

satisfied the requirements of adverse possession. Id., ¶24.

¶14 The titleholders petitioned this court for review, 

which we granted on September 17, 2013. We now reverse.

II. STANDARD OF REVIEW

¶15 Review of an adverse possession claim presents a mixed 

question of fact and law. Perpignani v. Vonasek, 139 

Wis. 2d 695, 728, 408 N.W.2d 1 (1987). We accept the circuit 

court's findings of fact unless they are clearly erroneous. 

Peter H. & Barbara J. Steuck Living Trust v. Easley, 2010 WI App 

74, ¶11, 325 Wis. 2d 455, 785 N.W.2d 631. However, whether 

these facts are sufficient to establish adverse possession is a 
No. 2012AP1869 

10

question of law that this court reviews de novo. Id.; 

Perpignani, 139 Wis. 2d at 728.12

¶16 This case also involves an interpretation of 

Wisconsin's adverse possession statute, Wis. Stat. § 893.25. 

Statutory interpretation is a question of law that this court 

reviews de novo. Crown Castle USA, Inc. v. Orion Constr. Grp., 

LLC, 2012 WI 29, ¶12, 339 Wis. 2d 252, 811 N.W.2d 332. 

III. DISCUSSION

¶17 The question before us is whether the Somas' 

subjective intent not to claim title to the lakefront strip, as 

demonstrated by their express statements and their use of the 

property with the permission of a non-owner, is relevant to the 

Wilcoxes' adverse possession claim. 

¶18 We begin in Part A by reviewing the basic requirements 

to establish ownership by adverse possession under both the 

common law and Wisconsin's adverse possession statute, Wis. 

Stat. § 893.25. In Part B, we address whether a court may 

consider evidence relating to a party's subjective intent in 

determining whether the claim of title requirement in Wis. Stat. 

§ 893.25, or its common-law counterpart, the hostility 

 

12 The parties dispute how the standard of review applies in 

this case. The titleholders maintain that the court of appeals 

improperly reviewed the evidentiary issues in this case de novo, 

when the circuit court's factual findings should be upheld 

unless clearly erroneous. However, the Wilcoxes point out, and 

we agree, that this case does not center solely on the review of 

the circuit court's findings of fact. Instead, we must 

determine whether the circuit court properly considered evidence 

related to the Somas' subjective state of mind, which is a 

question of law that this court reviews de novo.
No. 2012AP1869 

11

requirement, has been satisfied. We conclude that evidence 

regarding a party's subjective intent to claim title can be 

relevant to rebut the presumption of hostility that arises when 

all other elements of an adverse possession claim are met. In 

Part C, we apply this conclusion to the facts of this case and 

determine that the Somas' statements disclaiming ownership and 

their use of the property with permission from a non-owner 

provided a sufficient basis for the circuit court to conclude 

that the Wilcoxes had failed to establish adverse possession of 

the lakefront strip. 

A. The Essential Elements of Adverse Possession

¶19 Adverse possession is a legal action that enables a 

party to obtain valid title of another's property by operation 

of law. Wisconsin Stat. § 893.25(1) bars an action for recovery 

or possession of real estate if it has been adversely possessed 

for a minimum of 20 years. Property is adversely possessed only 

if the possessor is in "actual continued occupation under claim 

of title, exclusive of any other right," § 893.25(2)(a), and the 

property is "protected by a substantial enclosure" or "usually 

cultivated and improved," § 893.25(2)(b). 

¶20 Wisconsin Stat. § 893.25 codifies the common law 

elements of adverse possession, which require physical 

possession that is "hostile, open and notorious, exclusive and 

continuous . . . ." Leciejewski v. Sedlak, 116 Wis. 2d 629, 

636, 342 N.W.2d 734 (1984); see also Pollnow v. State Dep't of 

Natural Res., 88 Wis. 2d 350, 356, 276 N.W.2d 738 (1979) ("[T]he 

[adverse possession] statute carries over the common law 
No. 2012AP1869 

12

definition of adverse possession"). In an adverse possession 

claim, the burden of proof is on the person asserting the claim. 

Allie v. Russo, 88 Wis. 2d 334, 343, 276 N.W.2d 730 (1979). The 

evidence of possession must be "clear and positive and must be 

strictly construed against the claimant." Id. The court must 

make all reasonable presumptions in favor of the true owner, 

including the presumption that actual possession is subordinate 

to the right of the true owner. Zeisler Corp. v. Page, 24 

Wis. 2d 190, 198, 128 N.W.2d 414 (1964) (quoting Illinois Steel 

Co. v. Budzisz, 106 Wis. 499, 514, 81 N.W. 1027 (1900)).

¶21 In order to demonstrate continuous possession for the 

requisite statutory period, a possessor may "tack" his time of 

possession to that of his predecessor in interest. Perpignani, 

139 Wis. 2d at 724-25. However, "in order to benefit from 

tacking, the adverse claimant must be shown to be in privity 

with any prior adverse possessor," id. at 725, and the prior 

possession must be actually adverse. Id. at 727.

¶22 The parties dispute what is necessary to satisfy the 

"claim of title" requirement in Wis. Stat. § 893.25, which 

corresponds to the common law "hostility" element.13 Within the 

 

13 We agree with the parties and the court of appeals that the common law "hostility" 

requirement for adverse possession is equivalent to the "claim of title" requirement in Wis. Stat. 

§ 893.25(2)(a). See, e.g., Kimball v. Baker Land & Title Co., 152 Wis. 441, 448, 140 N.W. 47 

(1913) (adverse possession statute "requir[es] allegation of hostile title, to allege facts from 

which the hostile claim of title or interest is raised as a necessary or reasonable inference"); 

Illinois Steel Co. v. Bilot, 109 Wis. 418, 446, 85 N.W. 402 (1901) ("If the claimant 'raises his 

flag and keeps it up,' so to speak, sufficiently to attract the attention of the true owner to the 

situation . . . as a hostile claim of title, knowledge of such owner may be presumed as a fact . . . 

."); see also Jeffrey Evans Stake, The Uneasy Case for Adverse Possession, 89 Geo. L.J. 2419, 

2426 (2001) (the hostility element "goes by a variety of names, including 'adverse,' 'hostile,' 

'under claim of title,' 'under claim of right,' and 'hostile and under claim of right.'"); Richard R. 
No. 2012AP1869 

13

context of adverse possession, "'[h]ostility' means only one in 

possession [of the disputed property] claims exclusive right 

thereto and actual possession prevents the assumption of 

possession in the true owner." Burkhardt v. Smith, 17 

Wis. 2d 132, 139-40, 115 N.W.2d 540 (1962). "'Hostile intent'

does not mean a deliberate, wilful, unfriendly animus. If the 

elements of open, notorious, continuous and exclusive possession 

are satisfied, the law presumes the element of hostile intent." 

Id. at 139. In other words, when all other elements of adverse 

possession are satisfied, a hostile intent is presumed. 

However, as explained below, this presumption may be rebutted by 

evidence demonstrating that a possessor lacked the subjective 

intent to claim title to the property.

B. A Presumption of Hostility is Rebuttable with Evidence 

of a Possessor's Subjective Intent

¶23 The facts in this case raise a novel issue in our 

adverse possession jurisprudence: whether an adverse claimant 

can establish the elements of adverse possession when evidence 

demonstrates the party's predecessor in interest lacked the 

subjective intent to claim title to the property. Specifically, 

the circuit court considered evidence that the Wilcoxes'

predecessors in interest, the Somas, expressly disclaimed 

ownership of the lakefront strip and sought and received 

 

Powell, 16 Powell on Real Property § 91.05[4], at 91-31 (Michael Allan Wolf ed. 2000) ("In 

essence, to require adverse possession under a claim of right is the same as requiring hostility, in 

that both terms simply indicate that the claimant is holding the property with an intent that is 

adverse to the interests of the true owner"). 
No. 2012AP1869 

14

permission to use the property from an entity they mistakenly 

believed was its true owner. The titleholders assert that 

evidence the Somas never intended to gain possession of the 

lakefront strip was properly considered by the circuit court in 

reaching its conclusion that the Wilcoxes failed to satisfy the 

hostility element of adverse possession. In contrast, the 

Wilcoxes argue the circuit court erred in considering the intent 

of the Somas, because such an inquiry is irrelevant so long as 

the Somas' use of the property was sufficient to put the true 

owner on notice. 

¶24 We agree with the titleholders and conclude that, 

under Wis. Stat. § 893.25 and our precedent, evidence relating 

to a party's subjective intent to claim title is relevant to 

rebut a presumption of hostility in an adverse possession claim. 

The "claim of title" requirement in Wis. Stat. § 893.25 is the 

statutory equivalent of the common law "hostility" requirement. 

As discussed below, the plain meaning of "claim of title" is 

that a possessor must subjectively intend to claim ownership of 

the disputed property. Although the "claim of title" 

requirement is presumed when all other elements of adverse 

possession are established, this presumption may be rebutted 

with evidence that a party never intended to assert ownership 

over the property. A party who expressly disclaims ownership of 

property and seeks permission for its use is not "claiming 

title" to the property. Therefore, express declarations of nonownership and evidence of permissive use are properly considered 

by a circuit court in determining whether the "claim of title" 
No. 2012AP1869 

15

requirement in Wis. Stat. § 893.25 has been satisfied. To hold 

otherwise would render this essential element of adverse 

possession a nullity. 

¶25 This case is a dispute about whether the Wilcoxes have 

met the statutory requirements of adverse possession under Wis. 

Stat. § 893.25, which codifies the common law elements of 

continuous, open, notorious, exclusive, and hostile possession. 

In analyzing the requirements of a statute, we "begin[] with the 

language of the statute. If the meaning of the statute is plain, 

we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit 

Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 

N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 

Wis. 2d 211, 612 N.W.2d 659). The plain meaning of statutory 

language is generally the "'common,' 'ordinary,' 'natural,' 

'normal,' or dictionary definition[]" of a term. Id., ¶41 

(citation omitted). 

¶26 Wisconsin Stat. § 893.25(2)(a) provides that property 

is adversely possessed "[o]nly if the person possessing it, in 

connection with his or her predecessors in interest, is in 

actual continued occupation under claim of title, exclusive of 

any other right." (emphasis added). The plain meaning of "claim 

of title" is that the possessor intends to claim ownership of 
No. 2012AP1869 

16

the disputed property.14 See 10 Thompson on Real Property

§ 87.11, at 159 (David A. Thomas, ed., 3d ed. 2013) ("Claim of 

title is where one enters and occupies land with the intent to 

hold it as one's own against the world . . . .").15 Black's Law 

Dictionary defines "claim of title" as being synonymous with 

"claim of ownership." Black's Law Dictionary 283 (9th ed. 

2009). "Claim of ownership" is defined as "[t]he possession of 

a piece of property with the intention of claiming it in 

hostility to the true owner," as well as "[a] party's manifest 

 

14 The same is true for the common law "hostility" 

requirement. See Burkhardt v. Smith, 17 Wis. 2d 132, 139-40,

115 N.W.2d 540 (1962) ("'Hostility' means only one in possession 

claims exclusive right thereto and actual possession prevents 

the assumption of possession in the true owner.") (emphasis 

added); see also Stake, supra note 13, at 2428 (discussing the 

hostility element and explaining, "[t]o be a possessor, [the 

claimant] must have had a true owner's intent to use the land, 

develop the land, or exclude others from the land"); 10 Thompson 

on Real Property § 87.11, at 156-7 (David A. Thomas, ed., 3d ed. 

2013) ("[The] intention to claim as owner is said to be the very 

essence of title by adverse possession, and to say that the 

possession must be hostile is equivalent to saying that it must 

be under a claim of right"); Powell, supra note 13, at 91-21 

("Hostile possession can be understood as possession that is 

opposed and antagonistic to all other claims, and that conveys a 

clear message that the possessor intends to possess the land as 

his or her own").

15 Our interpretation of the "claim of title" element as 

requiring an actual subjective intent to claim ownership of 

property is in keeping with the historic purpose of the common 

law hostility requirement, which was to distinguish adverse 

claimants from mere trespassers or squatters. See Ewing's 

Lessee v. Burnet, 36 U.S. 41, 52 (1837) (explaining that the 

difference between ouster and trespass turns on "the intention 

with which it is done; if made under claim and color of right, 

it is an ouster, otherwise, it is a mere trespass . . . .").
No. 2012AP1869 

17

intention to take over land, regardless of title or right." 

Id.16 

¶27 Although the "claim of title" requirement in Wis. 

Stat. § 893.25 is presumed when all other elements of adverse 

possession are established, this presumption must be rebuttable 

for the requirement to have meaning.17 As we explained in Ovig 

v. Morrison,

[U]pon unexplained, exclusive, continuous occupancy of 

land under a chain of title, by one not the true 

owner, for the statutory period . . . there 

arises . . . the presumption that, during all such 

period, the possession had all the requisites of an 

adverse holding, subject to be rebutted by proof that 

it was in fact subordinate to the right of the true 

owner, but conclusive in the absence of such rebuttal.

Ovig v. Morrison, 142 Wis. 243, 249-50, 125 N.W. 449 (1910)

(emphasis added). If the requirement that the disputed land be 

occupied "under claim of title" were irrebuttable, its presence 

in the statute would be meaningless. "Statutory language is 

read where possible to give reasonable effect to every word, in 

 

16 Similarly, the American Heritage Dictionary defines 

"claim" as "to demand, ask for, or take as one's own or one's 

due. . . ." and "lay claim to" is defined as "[t]o assert one's 

right to or ownership of." American Heritage Dictionary of the 

English Language 340-41 (5th ed. 2011).

17 We note that instances where evidence exists to refute 

the "claim of title" requirement will necessarily be rare, as is 

underscored by the fact that this is the first time we have been 

asked to address the issue. In all adverse possession cases, 

the adverse claimant intends to possess the disputed property; 

indeed, that is the purpose of raising an adverse possession 

claim. However, under the uncommon facts presented to us in 

this case, it is clear the Somas did not occupy the lakefront 

strip "under claim of title." Wis. Stat. § 893.25(2)(a). 
No. 2012AP1869 

18

order to avoid surplusage." Kalal, 271 Wis. 2d 633, ¶46. In 

other words, evidence demonstrating that a party's possession 

was not "under claim of title" must be admissible, as it is 

directly relevant to whether an essential element of adverse 

possession has been satisfied. To conclude otherwise would read 

the "claim of title" requirement out of the adverse possession 

statute entirely. Likewise, to hold that the claim of title 

presumption is irrebuttable would also be contrary to the 

general rule that evidence in an adverse possession case must be 

"clear and positive and must be strictly construed against the 

claimant." Allie, 88 Wis. 2d at 343.

¶28 The Wilcoxes argue that this reading of Wis. Stat. 

§ 893.25 improperly ignores applicable case law instructing 

courts to consider only the observable physical characteristics 

of possession, without inquiring into a party's subjective state 

of mind. Specifically, the Wilcoxes rely on our decisions in 

Allie and Ovig, where we held that the "sole test" for adverse 

possession is "the physical characteristics of 

possession . . . ." Ovig, 142 Wis. at 248, and that "[t]he 

subjective intent of either of the parties is irrelevant to a 

determination of a claim of adverse possession." Allie, 88 Wis. 

2d at 347. Similarly, the court of appeals held that "claim of 

title" is demonstrated through "the appearance that a 

possessor's use would give to the true owner" and "refers to a 
No. 2012AP1869 

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possessor's actions, not a possessor's belief." Wilcox, 348 

Wis. 2d 124, ¶¶15-16.18

¶29 While we acknowledge, as the court of appeals did, 

that case law does not always discuss the issue of subjective 

intent "with optimal clarity,"19 we disagree with the Wilcoxes' 

contention that Ovig and Allie stand for the blanket proposition 

that subjective intent is never relevant in an adverse 

possession claim. See Thompson, supra, § 87.11, at 156 ("No matter how exclusive and 

hostile the possession may be in appearance, it cannot be adverse unless accompanied by an intent 

on the part of the occupant to make it so . . . .").

¶30 In most adverse possession cases, a court's inquiry is 

primarily focused on the observable physical characteristics of 

the claimant's occupation, including whether the elements of 

 

18 The court of appeals reasoned that the "sole exception" 

to this general rule is if permission is sought from a 

property's true owner. However, knowledge of the identity of 

the true owner is not a required element of adverse possession, 

and the fact that the Somas were mistaken about who actually 

owned the lakefront strip is not decisive in this case. Even if 

the court of appeals was correct, it failed to accurately apply 

its rule to the facts of this case. It was established at trial 

that the Wilcoxes and the Somas both had permission to use the 

lakefront strip——a right to foot traffic——that was originally 

granted by the property's true owners.

19 Wilcox, 348 Wis. 2d 124, ¶16. In contrast to the 

language relied upon by the Wilcoxes in Allie and Ovig, we have 

also explicitly stated in other cases that a "hostile intent" is 

necessary to establish adverse possession. See, e.g., Stone 

Bank Improvement Co. v. Vollriede, 11 Wis. 2d 440, 447, 105 

N.W.2d 789 (1961) (quoting Bank of Eagle v. Pentland, 197 Wis. 

40, 42, 221 N.W. 383 (1928)); Bettack v. Conachen, 235 Wis. 559, 

571, 294 N.W. 57 (1940) (adverse possession requires "something 

which indicates what is known in the law as a hostile intent, 

that is, intent to claim title in hostility to the true owner"). 
No. 2012AP1869 

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open, notorious, continuous, and exclusive use are established. 

If they are, hostility is presumed. See Burkhardt, 17 

Wis. 2d at 139 ("If the elements of open, notorious, continuous 

and exclusive possession are satisfied, the law presumes the 

element of hostile intent"). There is rarely a dispute about 

whether possession is hostile, for the simple reason that the 

party bringing the claim usually intends to possess the property 

in question. In such cases, a possessor need only present 

evidence regarding a property's observable physical 

characteristics, making it the "sole test" for adverse 

possession. See Ovig, 142 Wis. at 248. Nevertheless, while the 

presumption of hostility allows adverse possession to be 

established on the basis of the physical characteristics of 

possession alone, evidence can still be admitted to show that an 

essential element has not been satisfied. This evidence is not 

part of the "sole test" for adverse possession, however, because 

it is not required for a successful claim. 

¶31 In Allie, we explained why the respondent's subjective 

belief was insufficient to support the circuit court's finding 

about the property's true boundary line. Allie, 88 Wis. 2d at 

347. Our statement that "subjective intent . . . is irrelevant" 

is accurate insofar as it describes an adverse possession case 

in which the elements of open, notorious, continuous, and 

exclusive use are established, and a possessor's hostile intent 

is therefore presumed. However, Allie does not stand for the 

principle that subjective intent is never relevant. For 

example, in Allie, we went on to consider the intent of both 
No. 2012AP1869 

21

parties in relation to the disputed property's true boundary 

line. Id. (noting that the respondent "considered the fence to 

be the lot line" and "[t]he appellants did not consider the 

fence to be the lot line . . . ."). Ultimately, we held in 

Allie that the property was not adversely possessed because the 

respondent's possession was not exclusive. However, this 

conclusion was not based on any determinations about the 

respondent's subjective intent to claim title. Id. at 348. 

Indeed, in both Allie and Ovig, it was understood that the 

possessor intended to claim possession of the property. 

¶32 As discussed below, because evidence that a party 

did not subjectively intend to claim title to property is 

admissible to rebut a presumption of hostility, the circuit 

court properly considered evidence that the Somas expressly 

disclaimed ownership of the lakefront strip and sought 

permission for its use.

C. The Circuit Court Properly Held that the Wilcoxes Failed 

to Establish Adverse Possession

¶33 Applying our reasoning to the facts of this case, we 

agree with the circuit court's conclusion that the Wilcoxes 

failed to establish adverse possession of the lakefront strip. 

The circuit court heard testimony demonstrating that the Somas 

had expressly disclaimed ownership of the lakefront strip and 

asked permission to make improvements to the property. Based on 

this testimony, the circuit court found that the Somas "never 

claimed to own [the lakefront strip]. They obtained permission 

whenever they made improvements." The circuit court properly 
No. 2012AP1869 

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considered this evidence and found that the Somas "did not 

intend their actions to be hostile to any ownership interest." 

As we have held, express statements disclaiming ownership of 

property are relevant in an adverse possession case in order to 

rebut a presumption of hostility. Similarly, the fact that the 

Somas sought and received permission to use the lakefront strip 

is relevant evidence to rebut the presumption that the Somas 

claimed title to the property.20 A request for permission is 

relevant under the circumstances regardless of whether it is 

sought from the true owner, because the request goes to the 

possessor's subjective intent to claim title. See, e.g., Stone 

Bank Improvement Co. v. Vollriede, 11 Wis. 2d 440, 447, 105 

N.W.2d 789 (1961) (quoting Bank of Eagle v. Pentland, 197 Wis. 

40, 42, 221 N.W. 383 (1928)) ("To constitute adverse possession 

there must be the fact of possession and the hostile intention,-

the intention to usurp possession. Mere permissive possession is 

never a basis for the statute of limitations"). 

¶34 Having determined that the Somas lacked a hostile 

intent, the circuit court concluded that the Wilcoxes failed to 

 

20 The titleholders assert that permissive use is also 

relevant to the exclusivity element of adverse possession. As 

discussed infra note 21, we do not address the issue of 

exclusivity because our holding on the hostility element is 

decisive. 
No. 2012AP1869 

23

establish adverse possession of the lakefront strip.21 The 

burden of proof was on the Wilcoxes. The titleholders, as the 

true owners, were entitled to the benefit of having "all 

reasonable presumptions" made in their favor. Allie, 88 

Wis. 2d at 343; Zeisler, 24 Wis. 2d at 198. We agree with the 

circuit court that the Wilcoxes failed to meet their burden and 

the facts were not sufficient to establish that they adversely 

possessed the lakefront strip. 

IV. CONCLUSION

¶35 We hold that a party's subjective intent to claim 

title to property is relevant to rebut the presumption of 

hostility that arises when all other elements of adverse 

possession are established. Wisconsin Stat. § 893.25 requires 

that property be possessed "under claim of title" to establish 

adverse possession. The plain meaning of the "claim of title" 

 

21 The circuit court also held that the Wilcoxes did not 

satisfy the elements of exclusive, notorious, and continuous use 

of the property. The titleholders argue that possession was not 

exclusive because the Somas asked for permission to use the 

property and allowed the Ducks to enter the property in 1982. 

In order to reach the central issue in this case, we assume, 

without deciding, that the elements of exclusive, notorious, and 

continuous use were met and the presumption of hostility was 

triggered. We therefore need not consider whether the circuit 

court properly considered evidence regarding the Somas' 

subjective intent in relation to these other elements. The 

outcome in this case would be the same regardless.

We note, however, that the court of appeals based its 

decision to reverse the circuit court on the premise that if 

hostility was established, there was "no remaining issue in need 

of resolution." In fact, had the circuit court erred in regards 

to the hostility element, the additional elements of exclusive, 

notorious, and continuous use would still need to be addressed.
No. 2012AP1869 

24

requirement is that a party must intend to claim possession of 

the disputed property. Therefore, in order to gain title by 

adverse possession, the adverse claimant and all predecessors in 

interest must have the actual intent to possess the property 

under a claim of ownership. The Somas' express declarations of 

non-ownership and requests for permission to use the lakefront 

strip were sufficient to support the circuit court's conclusion 

that they lacked the requisite hostile intent to adversely 

possess the property. Because the circuit court properly 

considered the Somas' subjective intent and concluded that the 

Wilcoxes failed to establish adverse possession for the 

requisite statutory period, we affirm the judgment of the 

circuit court, and we need not remand for further proceedings. 

For these reasons, the decision of the court of appeals is 

reversed.

By the Court.—The decision of the court of appeals is 

reversed.
No. 2012AP1869.ssa

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¶36 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I agree 

with the well-reasoned published opinion of the court of 

appeals. Wilcox v. Estate of Hines, 2013 WI App 68, 348 

Wis. 2d 124, 831 N.W.2d 791. 

¶37 The majority opinion seems to introduce a minefield of 

blanket pronouncements and unanswered questions into the varied 

fact scenarios that adverse possession cases provide.

¶38 For the foregoing reasons, I dissent.
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