                                                                         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.
    An   amicus   curiae   brief   was   filed   by   Thomas   D.   Larson,
Madison, on behalf of the Wisconsin Realtors Association.




                                   2
                                                                          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.
                                                                       FILED
Newman and Lake Delton Holdings, LLC,
                                                                  JUL 11, 2014
              Defendants-Respondents-Petitioners,
                                                                     Diane M. Fremgen
                                                                  Clerk of Supreme Court
Chicago Title Insurance Company,

              Defendant.




  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



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.

                                           2
                                                                                      No.     2012AP1869



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
                                                        3
                                                                  No.     2012AP1869



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




                                        4
                                                                           No.    2012AP1869



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).

                                                5
                                                                       No.   2012AP1869



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 . . . ."

                                           6
                                                                        No.       2012AP1869



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).

                                            7
                                                                           No.      2012AP1869



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
                                             8
                                                                               No.    2012AP1869



appeals held that evidence of permission to use the property

from a non-owner and a party's express declarations of non-

ownership 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




                                                   9
                                                                                No.        2012AP1869



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.

                                              10
                                                                      No.   2012AP1869



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
                                            11
                                                                                No.     2012AP1869



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.
                                                12
                                                                               No.     2012AP1869



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").

                                                  13
                                                                            No.        2012AP1869



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 non-

ownership and evidence of permissive use are properly considered
by a circuit court in determining whether the "claim of title"
                                            14
                                                                    No.    2012AP1869



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




                                        15
                                                                   No.    2012AP1869



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 . . . .").

                                         16
                                                              No.    2012AP1869



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).

                                        17
                                                                     No.   2012AP1869



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




                                         18
                                                                               No.    2012AP1869



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

                                               19
                                                                           No.     2012AP1869



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
                                                20
                                                                                     No.     2012AP1869



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
                                                    21
                                                                No.       2012AP1869



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.

                                     22
                                                                              No.     2012AP1869



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.

                                              23
                                                                        No.     2012AP1869



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.




                                           24
                                                              No.   2012AP1869.ssa


       ¶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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