A property owner, Timothy Casa De Calvo, sued the Town of Hudson claiming that he adversely possessed real property adjacent to his house. The property in question had been dedicated about 31 years before as a street on a subdivision plat. The Circuit Court granted summary judgment in favor of the Town, and the court of appeals affirmed the judgment. Casa De Calvo v. Town of Hudson, No. 2019AP1851 (Wis. Ct. App. Sept. 9, 2020). The Court of Appeals explained that the property in question could not be adversely possessed because under Wis. Stat. § 893.29(2)(c) (1987-88)[1] it was held by the Town for highway purposes.

The issue before the court was not whether Casa De Calvo satisfied the elements of an adverse possession claim, but rather whether an exception to the adverse possession statutes applied. Section 893.29(2)(c) (1987-88) said that title to or interest in any “property of a highway … and including property held by the state or a political subdivision for highway purposes, including but limited to widening, alteration, relocation, improvement, reconstruction and construction” cannot be obtained by adverse possession.

The portion of the dedicated street in question, Edgewood Drive, was not paved or otherwise improved. Casa De Calvo argued that, because the road was unimproved and not open for public use as a highway, it was not a highway or property held for highway purposes. The Circuit Court held that the unimproved portion of Edgewood Drive did not qualify as a “highway”; however, it did qualify as “property held for highway purposes.” The Court relied on Wis. Stat. § 236.29(1) which says:

[E]very … grant to the public … marked or noted as such on said plat shall be deemed a sufficient conveyance to vest the fee simple of all parcels of land so marked or noted … and the land intended for streets … as designated on said plat shall be held by the town, city or village … in trust to and for such uses and purposes.

In affirming the Circuit Court’s decision, the Court of Appeals stated that § 236.29(1) vested fee simple title to Edgewood Drive in the Town to be held by it in trust for use as a street. It follows, according to the court, that the platted and unimproved portion of Edgewood Drive qualified as property held by the Town for highway purposes. The court also noted that the language in § 893.29(2)(c) defeats Casa De Calvo’s argument that the highway must be opened for use by the public. Section 893.29(2)(c) says that held “for highway purposes” includes relocation and construction. The inclusion of those uses suggests, the Court reasoned, that the legislature intended to bar adverse possession of property platted for future highway use.

This case is a win for Wisconsin municipalities because it hinders the ability of private property owners to obtain title to or an interest in platted streets by encroaching upon and using such property. An alternative outcome of this case would have been problematic not only for municipalities but also for property owners in subdivisions, because it could lead to more limited access to their homes and through subdivisions generally.

 

[1] The parties agreed that the 1987-88 version of Wis. Stat. § 893.29(2)(c) was the applicable version of the statute in this case because Casa De Calvo’s claimed period of adverse possession began in 1987.

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