2023 Wisconsin Statutes & Annotations › Chapter 893 - Limitations of commencement of actions and proceedings; procedure for claims against governmental units. › 893.28 - Prescriptive rights by adverse user.

893.28
Prescriptive rights by adverse user.
(1)
Continuous adverse use of rights in real estate of another for at least 20 years, except as provided in s. 893.29 establishes the prescriptive right to continue the use. Any person who in connection with his or her predecessor in interest has made continuous adverse use of rights in the land of another for 20 years, except as provided by s. 893.29, may commence an action to establish prescriptive rights under ch. 843.
(2)
Continuous use of rights in real estate of another for at least 10 years by a domestic corporation organized to furnish telegraph or telecommunications service or transmit heat, power or electric current to the public or for public purposes, by a cooperative association organized under ch. 185 or 193 to furnish telegraph or telecommunications service, or by a cooperative organized under ch. 185 to transmit heat, power or electric current to its members, establishes the prescriptive right to continue the use, except as provided by s. 893.29. A person who has established a prescriptive right under this subsection may commence an action to establish prescriptive rights under ch. 843.
(3)
The mere use of a way over unenclosed land is presumed to be permissive and not adverse.
History:  1979 c. 323; 1985 a. 297 s. 76; 2005 a. 441.
Once the right to a prescriptive easement has accrued by virtue of compliance with sub. (1) for the requisite 20-year period, the holder of the prescriptive easement must comply with the recording requirements within 30 years under s. 893.33 (2) or lose the right to continued use. Schauer v. Baker, 2004 WI App 41, 270 Wis. 2d 714, 678 N.W.2d 258, 02-1674.
As sub. (1) is written, it is more natural to read “of another" to modify “real estate," rather than “rights." That is, by continuous use, one may gain a prescriptive right in another's real estate. The real estate in which a right is gained must belong to another person. A setback restriction in an owner's deed was not a “right in real estate" belonging to “another" that the owner could use adversely by continually violating the setback. Hall v. Liebovich Living Trust, 2007 WI App 112, 300 Wis. 2d 725, 731 N.W.2d 649, 06-0040.
Sub. (2) applies to permissive uses. An agreement that permitted an electric utility to construct and maintain electrical poles and transmission lines on a landowner's property that was revocable upon 30 days' written notice gave the utility “rights in real estate of another" under sub. (2). Use of the property for more than ten years by the utility established the prescriptive right to continue the use. Williams v. American Transmission Co., 2007 WI App 246, 306 Wis. 2d 181, 742 N.W.2d 882, 07-0052.
Under the common law, a party's use of another's real property becomes a prescriptive right upon: 1) an adverse use; 2) that is visible, open, and notorious; 3) under an open claim of right; and 4) continuous for 20 years. With respect to public utilities, sub. (2) displaces the common-law adversity requirement, reduces the vesting period from 20 to ten years, and abrogates the claim-of-right requirement. Bauer v. Wisconsin Energy Corp., 2022 WI 11, 400 Wis. 2d 592, 970 N.W.2d 243, 19-2090.
A continuous use is one that is neither voluntarily abandoned by the party claiming a prescriptive right nor interrupted by an act of the landowner or a third party. A use remains continuous even when the user takes measures reasonably necessary to maintain or improve the use, so long as those measures are not inconsistent with the use's original nature and character nor more burdensome on the landowner. In this case, the public utility's periodic repairs to its natural-gas line, which included replacing 84 feet of the line by splicing new pipe of the same diameter and material into the existing line, constituted reasonable maintenance to continue its initial purpose, not an interruption or voluntary abandonment. Bauer v. Wisconsin Energy Corp., 2022 WI 11, 400 Wis. 2d 592, 970 N.W.2d 243, 19-2090.