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Wisconsin Land Trust Prevails Over 50-Year-Old Encroachment

August 11, 2010 | Wisconsin

“Be alert and take immediate action,” says Jerry Petersen, President of the Kettle Moraine Land Trust in southeastern Wisconsin, “otherwise you’ll wake up some day and find that you may have lost land that you didn’t think you’d ever lose.”

Adverse Possession is a land taking process most of us know little about, but land trusts need to be alert to it before it is too late. The land trust learned an important lesson: be proactive, know your boundaries, and make sure they are clearly marked. Fortunately, the land trust managed to prevail in a litigation filed by neighbors to their 40 acre preserve called Island Woods. Neighbors across the road recently claimed they owned a 10 car wide parking area cut into the land trust’s preserve sometime around 1960.

The 11 year old Kettle Moraine Land Trust is relatively close to both Milwaukee and Chicago, and near the large Kettle Moraine State Forest owned by the Wisconsin Department of Natural Resources.  At its founding in 1999, the land trust accepted title to a preserve called Island Woods on a peninsula in the Lauderdale chain of lakes. The preserve has undisturbed saw timber sized hardwoods covering rolling kettles and moraines which have been undisturbed for centuries.  The kettles (depressions) and moraines (ridges) were left by retreating glaciers after the last ice age. The moraines rise over 100 feet from lake level. The preserve needed to be cleared of invasives, but otherwise was in great shape when the land trust acquired it.  During the 50 years that it was owned by a lake improvement association, it was left in a totally undisturbed state.  

The lake association helped establish the land trust largely because of their concern for the long term stewardship of the preserve. Real estate taxes had become a concern, and land trust ownership eliminated them. Also, land trust ownership brought active management, better public access, and youth education programs. After the land trust took title, it discovered that around 1960 one of the home owners across the road from the preserve had carved out a parking area for 10 cars for their visitors. They cut into the hill, built a stone wall, and cleared vegetation. Their use was occasional, and intermittent, but it went unchallenged by the then owning lake association for over 30 years. About ten years ago, the neighbor died, and her home was sold. The new owner became a more frequent user of the parking spaces.

The land trust started building a trail across the preserve for public access, and put up signs at the parking area reserving part of it for trail parking.  At the same time, the trust approached the new neighbors to propose a sharing agreement for the parking area. The neighbors refused, and when the land trust temporally chained off the area to prove ownership, the neighbor took down the chain and filed a lawsuit claiming “Adverse Possession” ownership of the entire parking area.  Both the past and current neighboring home owners are second home owners using their home only for vacations.

The land trust retained a qualified real estate attorney and researched the history of the parking area by interviewing several other neighbors and relatives of the prior deceased owner of the neighboring home, getting a survey and checking the land and zoning records. The land trust’s attorney told them “Adverse Possession” is a process that can take away the title to land if the encroaching user can prove (in Wisconsin, the number of years varies by state) that he:

  1. Encroached hostilely (i.e. without getting permission) for 20 years,
  2. Encroached notoriously (obvious to the public) for 20 years,
  3. Encroached continually for 20 years, and
  4. Encroached exclusively for 20 years.

In this case, the neighbors met the first two criteria, but not the last two.  The land trust had testimony from other neighbors that the encroachment was neither continuous, nor exclusive. However, with the first two criteria met, a “Prescriptive Easement” could be claimed. A “Prescriptive Easement” provides for the shared use of the land, and the Easement automatically transfers to future owners of the land to which it is attached.  The land trust had offered shared use before the litigation, and is pleased with the result.

The neighbors’ attorney had attempted to intimidate the land trust into abandoning the parking area. However, the land trust attorney countered with a demand that the neighbor prove his (and/or the prior land owner’s) continuous and exclusive use of the parking area for 20 years. When the neighbors could not prove this use, their case folded.

Now the neighbors have recorded a “Prescriptive Easement” where in the land trust retains ownership of the land, has the exclusive use of 2 parking spaces for trail users, and the neighbor has the principal use of the other 8 spaces. However, the land trust has the right to the exclusive use of all the spaces for a few events a year with 2 weeks advance notice.

Jerry says that “this matter should have been pursued back in the 60s by the prior land owner.” At this point the land trust didn’t have any other options since the 20 year time period had expired.” The land trust attorney did some pro bono work and the land trust was able to keep his charges below $4,000. However, land trust Board members spent over 200 hours of volunteer time on the case. According to Jerry, legal costs could easily have been over $25,000 if the land trust, and its attorney, had not short circuited the neighbors’ contentions through their interviews and their attorney’s skilled handling of the case.

The land trust extended the trail this spring to the opposite side of the preserve. The land trust is accomplishing its objectives of making the property available to the public, and expanding its use for youth education; especially for high school students to learn more about flora and fauna in this unique geological area.

Now that the land trust is alert to “Adverse Possession” risk, the board acts to preclude it from becoming a problem on other fee property. In this case some neighboring home owners are starting to cut their lawns over their lot lines. This time the land trust is taking immediate action to post the boundary, and to educate the neighbors.

For more information:
Jerry Petersen
Kettle Moraine Land Trust

Kettle Moraine is a large moraine in the state of Wisconsin stretching from Walworth County in the south to Kewaunee County in the north. It has also been referred to as the Kettle Range and, in geological texts, as the Kettle Interlobate Moraine.

The moraine was created when the Green Bay Lobe of the glacier, on the west, collided with the Lake Michigan Lobe of the glacier, on the east, depositing sediment. The western glacier formed the Bay of Green Bay, Lake Winnebago and the Horicon Marsh while the eastern one formed Lake Michigan. The major part of the Kettle Moraine area is considered interlobate moraine, though other types of moraine features, and other glacial features are common.

The moraine is dotted with kettles caused by buried glacial ice that subsequently melted. This process left depressions ranging from small ponds to large lakes and enclosed valleys. Elkhart Lake, Geneva Lake, Big Cedar Lake are among the larger kettles now filled by lakes.

Some 20,000 years ago, two lobes of a great ice sheet met along a line extending northeast from Richmond in Walworth County through the Oconomowoc Lake country to Kewaunee County. One lobe moved down what is now the Green Bay-Lake Winnebago area. Spreading under tremendous pressure, the two lobes met and in the encounter, large blocks of ice were broken off and buried in the glacial deposit or till. As the ice melted, "kettles" were formed, some only a few yards across, others 100 to 200 feet deep.

The ice moved under great pressure, changing shape rather than sliding across the face of the land. As it changed shape, large amounts of rock, gravel, sand and silt were picked up and carried along by the glacier. When the ice melted, this material was deposited, in some instances, across glacier-formed valleys. Some "kettles" were formed this way.

The Kettle Moraine is an area of varied topography--parallel, steep-sided ridges, conical hills and flat outwash plains, mostly composed of sand and gravel. Many of the conical hills are conspicuous. Holy Hill reaches an elevation of 1,361 feet above sea level and some 340 feet above the stream valley to the east. Sugar Loaf or Pulford Peak (elevation 1,320 feet) is 320 feet above Pike Lake. Lapham Peak (elevation 1,233 feet), where there is a picnic area and observation tower, is 343 feet above Nagawicka Lake.

Similar detached sand and gravel conical hills, called kames, characterize the moraine throughout much of its extent. Some of these kames are cones formed beneath the glacier by surface streams which fell through holes in the ice. The undulating level-topped, narrow ridges called eskers were probably deposits in open cracks (crevasses) in the ice. In some areas the outwash terraces are pitted due to the melting of buried ice masses.

The Kettle Moraine area rises to 300 or more feet above the lands to the east and west yet is not a continuous divide. Maximum thickness of the drift is not known because few wells reach bedrock. It is possible that the drift reaches a thickness of 500 feet in some places.

Limestone underlies much of the Kettle Moraine. This formation is 450 to 800 feet thick and dips gently eastward. Its western edge or escarpment extends from Washington Island to the Illinois line near Walworth. It lies 20 miles to the west of Kettle Moraine at Greenbush, is completely covered by the moraine in the Waukesha County area, and is 8 miles east of the moraine at Elkhorn. Because of the cover of drift, there are few outcrops in the moraine.

Lakes, of several origins, add greatly to the attractiveness of the Kettle Moraine. With the exception, of Pewaukee Lake, which lies in a preglacial valley blocked on the west and east by drift, all lakes in the Oconomowoc area occupy kettles. Long Lake, Big Cedar Lake and Elkhart Lake occupy preglacial valleys between morainic ridges. These valleys were probably occupied by ice blocks and escaped being filled by glacial drift.

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