Steven Q. Wruck v. Private Road Parcel (35' x 202')

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 6, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP50 Cir. Ct. No. 2020CV18

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STEVEN Q. WRUCK,

PLAINTIFF-APPELLANT,

V.

PRIVATE ROAD PARCEL (35' X 202'), WILLIAM K. KOEPER,
MARY C. KOEPER, BARBARA J. PINEKENSTEIN, DAVID KOEPER,
RACHEL KOEPER, TONY L. LARSON, DIANE LARSON, JEFFREY L. SORENSEN,
HEATHER A. SORENSEN AND LOT OWNERS BLOCK 1 ISLAND VIEW
SUBDIVISION,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL J. APRAHAMIAN, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.
No. 2023AP50

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Steven Q. Wruck appeals from an order dismissing
on summary judgment his action against Private Road Parcel (35’ x 202’), et al.
Wruck had asserted claims of adverse possession, prescriptive easement, and
easement by necessity. For the reasons that follow, we affirm.

¶2 This case arises from a dispute between neighbors over a small
parcel of land in Mukwonago. The parcel consists of a short private road with a
few feet of land on either side. It connects a main road (County Road E) to the
east with a small residential subdivision to the west. The parcel is the only means
of vehicular access to and from the subdivision and is regularly used by the
residents there.

¶3 Wruck is the owner of properties that abut the parcel but are not part
of the subdivision. He purchased a residential property to the north of the parcel
in 1991. Ten years later, he purchased a vacant property to the south. Wruck did
not have his properties surveyed before he bought them and never received any
documentation informing him that he had access rights to the parcel.

¶4 Wruck lived in a duplex house on his northern property from
approximately 1992 to 2001. During that time, he sometimes used the parcel’s
private road. He also added a swing set and flower box to the parcel’s northern
edge. Wruck subsequently moved out and later rented one unit in the duplex from
approximately 2004 to 2016. Wruck also periodically used the other unit in the
duplex as a vacation home or a place to stay when working in the area.

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¶5 Around the time of Wruck’s departure in 2001, the residents of the
subdivision sent him a letter asking that he “remove all personal items from [their]
land,” and notifying him that “the use of [their] private driveway is prohibited,
which includes crossing over the driveway to gain access to the land south of the
driveway.” The residents sent Wruck a similar letter a year and a half later.
Wruck acknowledged receiving the letters.

¶6 In the years that followed, the residents of the subdivision performed
various improvements and maintenance to the parcel. This included paving and
snow plowing the private road. In the fall of 2013, they resurfaced the private
road and relandscaped the surrounding area.

¶7 Both Wruck and his renter continued to use the parcel at times to
access County Road E or Wruck’s southern property. However, they consistently
used an alternative route (i.e., a northerly neighbor’s driveway) to access Wruck’s
northern property. In addition, Wruck considered adding driveways to his
properties, which would connect them directly with County Road E.

¶8 In 2020, four years after anyone had resided on Wruck’s properties,
Wruck filed this action against both the residents of the subdivision1 and the parcel
itself. Wruck sought a declaration that he had acquired the parcel, either in whole

1
The residents of the subdivision at the time of the action were William and Mary
Koeper, Barbara Pinekenstein, David and Rachel Koeper, Tony and Diane Larson, and Jeffrey
and Heather Sorensen.

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No. 2023AP50

or in part, through adverse possession. Alternatively, he sought declarations that
he had easement rights, either prescriptive or by necessity, to use the parcel.2

¶9 The residents of the subdivision ultimately moved for summary
judgment seeking dismissal of Wruck’s claims. After a hearing on the matter, the
circuit court granted the motion and awarded costs to the residents. This appeal
follows.

¶10 We review a circuit court’s decision on a motion for summary
judgment de novo, applying the same standard as the circuit court. Green Spring
Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary
judgment is appropriate if there are no genuine issues of material fact and one
party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2)
(2021-22).3

¶11 On appeal, Wruck contends that the circuit court erred in dismissing
his action on summary judgment. He renews his claims of adverse possession,
prescriptive easement, and easement by necessity. He asks that we reverse the
circuit court order and vacate the costs awarded against him.

2
In his complaint, Wruck suggested that the parcel was actually owned by the unknown
heirs of Harvey and Mary Wambold. The Wambolds were the 1891 grantors of land that would
become the subdivision at issue. In response, the residents of the subdivision identified the
Wambold heirs and obtained affidavits from them attesting that they do not and never had any
interest in the parcel. The Wambold heirs also provided the residents with quitclaim deeds
transferring any unknown and latent interest in the parcel to the residents, thereby confirming that
they had no interest in the parcel and that the residents owned it.
3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP50

¶12 We begin with Wruck’s claim of adverse possession. “Adverse
possession is a legal action that enables a party to obtain valid title of another’s
property by operation of law.” Wilcox v. Estate of Hines, 2014 WI 60, ¶19, 355
Wis. 2d 1, 849 N.W.2d 280.

¶13 WISCONSIN STAT. § 893.25 governs adverse possession claims and
provides that a person may commence an action to establish title if that person “is
in uninterrupted adverse possession of real estate for 20 years.” Sec. 893.25(1).
Under the statute, property is adversely possessed when the possessor “is in actual
continued occupation under claim of title, exclusive of any other right,” and the
property is “[p]rotected by a substantial enclosure” or “[u]sually cultivated and
improved.” Sec. 893.25(2). The statute codifies the common law elements of
adverse possession, which require physical possession that is, among other things,
continuous, exclusive, and open. Wilcox, 355 Wis. 2d 1, ¶20.

¶14 Here, Wruck’s adverse possession claim fails as a matter of law
because he cannot establish that he possessed the parcel, either in whole or in part,
continuously, exclusively, or openly for 20 years. His possession was not
continuous because he only lived in the area for nine years. Likewise, his
possession was not exclusive because the residents of the subdivision used,
maintained, and even asserted ownership over the parcel during the time period in
question. Finally, by its nature, the parcel could not be used in a manner that
would openly apprise others of an intent to usurp possession absent some
barricade or other evidence not found in the record.4 See Peter H. & Barbara J.
4
We are not persuaded Wruck’s addition of a swing set and flower box to the parcel’s
northern edge, which was initially done without objection, evinced an intent to usurp possession.
Wruck also cites a “short fence” as a third “flag” of his adverse possession. However, in his
deposition, he specifically denied putting up any fencing along the parcel.

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Steuck Living Tr. v. Easley, 2010 WI App 74, ¶14, 325 Wis. 2d 455, 785 N.W.2d
631 (explaining that the nature of the disputed area is relevant in deciding if the
use is sufficient to apprise the true owner of an adverse claim).

¶15 We turn next to Wruck’s prescriptive easement claim. Unlike
adverse possession, a prescriptive easement is based on a person’s use of another’s
property rather than a person’s possession of another’s property. Shellow v.
Hagen, 9 Wis. 2d 506, 511, 101 N.W.2d 694 (1960).

¶16 WISCONSIN STAT. § 893.28 governs prescriptive rights by adverse
users and provides in relevant part:

Continuous adverse use of rights in real estate of another
for at least 20 years … 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 … may
commence an action to establish prescriptive rights under
ch. 843.

Sec. 893.28(1).

¶17 Again, Wruck’s claim fails as a matter of law because he cannot
show a continuous adverse use of rights in the parcel for at least 20 years. As
noted, Wruck only lived in the area for nine years. During this time and the years
that followed, he never prevented the residents of the subdivision from exercising
their rights over the parcel. They regularly used it for travel5 and maintained it as
they saw fit. Moreover, the residents twice sent Wruck a letter seeking to exclude
him and his personal items from the parcel. Such actions destroyed whatever

5
By contrast, Wruck and his renter regularly used an alternative route to access Wruck’s
northern property.

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No. 2023AP50

prescriptive easement right Wruck claims to have had. See Red Star Yeast &
Prods. Co. v. Merchandising Corp., 4 Wis. 2d 327, 335, 90 N.W.2d 777 (an
unambiguous act of a landowner showing an intent to exclude others destroys a
claimed prescriptive easement right).

¶18 Finally, we turn to Wruck’s claim of an easement by necessity. An
easement by necessity typically arises when an owner of land severs a landlocked
portion of the land by conveying it to another. Ludke v. Egan, 87 Wis. 2d 221,
229-30, 274 N.W.2d 641 (1979). A way of access is then implied over the land
retained by the grantor. Id. at 230.

¶19 Common ownership of the two parcels is a necessary precondition
for the establishment of an easement by necessity. Richards v. Land Star Grp.,
Inc., 224 Wis. 2d 829, 845, 593 N.W.2d 103 (Ct. App. 1999). It is also necessary
to establish that the property is landlocked, meaning that it is surrounded by land
belonging to other persons so that it cannot be reached by a public roadway. Id. at
845-46.

¶20 Wruck fails to meaningfully address these requirements in his brief,
and we can reject his claim for that reason alone. See State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“We may decline to review issues
inadequately briefed.”). In any event, the record makes clear that Wruck’s
properties are not landlocked. They abut County Road E, and Wruck can connect
them directly by simply adding driveways.

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No. 2023AP50

¶21 For these reasons, we are satisfied that the circuit court properly
dismissed Wruck’s action.6

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

6
To the extent we have not addressed an argument raised by Wruck on appeal, the
argument is deemed rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261
N.W.2d 147 (1978).

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