Lloyd C. Meyer v. Xcel Energy Services Inc.

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.
April 27, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2022AP900 Cir. Ct. No. 2019CV110

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

LLOYD C. MEYER,

PLAINTIFF-APPELLANT,

V.

XCEL ENERGY SERVICES INC.,
NEILLSVILLE IMPROVEMENT CORPORATION
AND NORTHERN STATES POWER COMPANY,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Clark County:
RICHARD A. RADCLIFFE, Judge. Affirmed in part; reversed in part and
remanded.

Before Kloppenburg, Fitzpatrick, and Nashold, JJ.

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).
No. 2022AP900

¶1 PER CURIAM. Lloyd C. Meyer appeals an order of the Clark
County Circuit Court granting summary judgment to Northern States Power
Company (“NSP”) on Meyer’s adverse possession and prescriptive easement
claims. Meyer argues that the circuit court erred in granting summary judgment as
to both claims. For the following reasons, we affirm the circuit court’s order with
respect to Meyer’s adverse possession claim, but we reverse the circuit court’s
order with respect to Meyer’s prescriptive easement claim.

BACKGROUND

¶2 There is no dispute as to the following material facts.

¶3 NSP is a public utility that transmits and distributes electricity in
Wisconsin. NSP owns a 100-foot-wide strip of land (the “NSP Property”) that
abuts property owned by Meyer. The NSP Property is a section of a longer strip
of land owned by NSP that spans over twelve miles between Neillsville,
Wisconsin and Chili, Wisconsin. In 1997, NSP constructed a transmission line
from Neillsville to Chili, and a portion of that transmission line was built on what
is now the NSP Property. Since that time, NSP has maintained on, or over, the
NSP Property eleven power poles, a transmission line, and accompanying
transmission infrastructure that hangs from those poles. NSP has not used the
NSP Property for any other purpose since it constructed the transmission line.

¶4 Meyer owns the land on both sides of the NSP Property. No later
than 1987, Meyer built a pond on his property that is also partially located on the
NSP Property. Meyer also performed the following activities on the NSP
Property: installed a buried electrical line for a pond aerator; constructed a steel
windmill; farmed and harvested crops; lowered the grade of the NSP Property;
developed and maintained three roads across the NSP Property; pastured livestock;

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No. 2022AP900

mowed and cut brush; and stored on the NSP Property firewood, logs, steel,
lumber, and farm machinery.

¶5 In 2019, Meyer filed in the circuit court a complaint against NSP
alleging that he adversely possessed the entire NSP Property or, in the alternative,
that he is entitled to a prescriptive easement to continue using the NSP Property.1
NSP moved for summary judgment on Meyer’s claims, arguing that: (1) Meyer’s
adverse possession claim fails because his occupation of the NSP Property was not
“exclusive of any other right”; and (2) Meyer’s prescriptive easement claim fails
because his use of the NSP Property was not “hostile and inconsistent” with NSP’s
use of the NSP Property. The circuit court granted NSP’s motion.2 Meyer appeals
the court’s order.

¶6 Additional material facts are mentioned in the following discussion.

DISCUSSION

¶7 On appeal, Meyer argues that the circuit court erroneously granted
summary judgment on his adverse possession and prescriptive easement claims.

1
Meyer also sued Xcel Energy Services Inc. and Neillsville Improvement Corporation.
Meyer does not appeal the circuit court’s order granting summary judgment in favor of those
parties, and we do not further address those parties in this opinion.
2
On its own initiative, the circuit court also granted partial summary judgment to Meyer.
See WIS. STAT. § 802.08(6) (2021-22). More specifically, the circuit court held that Meyer is
entitled to a prescriptive easement for the pond on the NSP Property and ten feet around the pond
“for continued recreational use.” On appeal, NSP does not object to this grant of partial summary
judgment to Meyer.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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We begin by setting forth the governing principles and our standard of review
regarding motions for summary judgment.

I. Governing Principles and Standard of Review for Summary Judgment.

¶8 We review a circuit court’s decision granting or denying summary
judgment independently, but we apply the same methodology as the circuit court.
Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶14, 281 Wis. 2d 448, 699 N.W.2d 54.
On summary judgment, the moving party is entitled to judgment as a matter of law
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” WIS. STAT. § 802.08(2); Bank of N.Y. Mellon v. Klomsten, 2018 WI App
25, ¶31, 381 Wis. 2d 218, 911 N.W.2d 364.

¶9 In reviewing this motion for summary judgment, we apply the
following methodology.3 We consider the moving party’s affidavits or other proof
to determine whether the moving party has made a prima facie case for summary
judgment under WIS. STAT. § 802.08(2). L.L.N. v. Clauder, 209 Wis. 2d 674, ¶14,
563 N.W.2d 434 (1997). “If the defendant is the moving party, the defendant must
establish a defense that defeats the plaintiff’s cause of action.” Id., ¶14 n.6. If the
moving party has made a prima facie case for summary judgment, “the opposing
party must show, by affidavit or other proof, the existence of disputed material

3
The initial step in summary judgment methodology is to examine the pleadings to
“determine whether a claim for relief is stated.” L.L.N. v. Clauder, 209 Wis. 2d 674, ¶13, 563
N.W.2d 434 (1997). Here, the parties do not dispute that this step has been satisfied.

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No. 2022AP900

facts or undisputed material facts from which reasonable alternative inferences
may be drawn that are sufficient to entitle the opposing party to a trial.” Id., ¶14.

¶10 When determining whether there is a “genuine issue of material
fact,” the affidavits and other proof submitted by the parties “are viewed in a light
most favorable to the opposing party.” Id., ¶15. Additionally, in deciding whether
there are factual disputes, “the circuit court and the reviewing court consider
whether more than one reasonable inference may be drawn from undisputed facts;
if so, the competing reasonable inferences may constitute genuine issues of
material fact.” H & R Block E. Enters., Inc. v. Swenson, 2008 WI App 3, ¶11,
307 Wis. 2d 390, 745 N.W.2d 421 (2007).

¶11 We next consider in turn the parties’ arguments regarding adverse
possession and a prescriptive easement concerning the NSP Property.

II. Adverse Possession.

A. Governing Principles of Adverse Possession.

¶12 “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. 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 this statute, property is adversely
possessed only if the possessor is in “actual continued occupation under claim of
title, exclusive of any other right,” and the property is “protected by a substantial

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No. 2022AP900

enclosure” or “usually cultivated and improved.” Sec. 893.25(2).4 This statute
“codifies the common law elements of adverse possession, which require physical
possession that is ‘hostile, open and notorious, exclusive and continuous.’”
Wilcox, 355 Wis. 2d 1, ¶20 (citation omitted).

¶13 As we discuss shortly, the exclusivity element is dispositive and we
now consider that factor. To establish that a person occupied property “exclusive
of any other right” under WIS. STAT. § 893.25(2)(a), the person must “show an
exclusive dominion over the land and an appropriation of it to [the person’s] own
use and benefit.” Kruckenberg v. Krukar, 2017 WI App 70, ¶8, 378 Wis. 2d 314,
903 N.W.2d 164 (citing 3 AM. JUR. 2D Adverse Possession § 61 (2011)). For this
reason, the person’s possession of the property must be “exclusive of the true
owner.” Illinois Steel Co. v. Tamms, 154 Wis. 340, 344, 141 N.W. 1011 (1913);
see also 3 AM. JUR. 2D Adverse Possession § 63 (“In order for possession to be
exclusive for purposes of adverse possession, the claimant must shut out or wholly
exclude the rightful owner from possession of the property during the required
statutory period.” (internal footnote omitted)); see, e.g., Cuskey v. McShane, 2
Wis. 2d 607, 609-10, 87 N.W.2d 497 (1958) (holding that use was not exclusive of

4
WISCONSIN STAT. § 893.25(2) states in full:

(2) Real estate is possessed adversely under this section:

(a) Only 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; and

(b) Only to the extent that it is actually occupied and:

1. Protected by a substantial enclosure; or

2. Usually cultivated or improved.

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No. 2022AP900

the true owners because the true owners cut grass, trimmed trees, parked cars and
equipment, and erected an advertising banner on the property).

B. The Circuit Court Property Granted Summary Judgment on
Meyer’s Adverse Possession Claim.

¶14 To repeat, we first determine whether NSP as the moving party has
made a prima facie case for summary judgment. See L.L.N., 209 Wis. 2d 674,
¶14. NSP argues that it is entitled to judgment because Meyer did not exclusively
occupy the NSP Property as required under WIS. STAT. § 893.25(2)(a). In support,
NSP points to evidence in the record demonstrating that NSP constructed a
transmission line on the NSP Property in 1997 and has continuously used the NSP
Property for the purposes of operating and maintaining that transmission line.
Meyer does not dispute that NSP maintained power poles, power lines, and other
transmission infrastructure on the NSP Property during the period of alleged
adverse possession. In addition, Meyer admitted in his complaint that “authorized
personnel of … NSP and its contractors” accessed the NSP Property “for purposes
of powerline maintenance.” These undisputed facts establish that Meyer did not
have “exclusive dominion” over the NSP Property because he did not exclude the
true owner—NSP—from exercising its right to occupy the NSP Property through
its use of operating and maintaining transmission lines. See Kruckenberg, 378

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No. 2022AP900

Wis. 2d 314, ¶8. Therefore, NSP has satisfied its burden of making a prima facie
case for summary judgment. See L.L.N., 209 Wis. 2d 674, ¶15.5

¶15 The next step in the summary judgment analysis is to determine
whether Meyer has shown the existence of disputed material facts, or undisputed
material facts from which reasonable alternative inferences may be drawn, that are
sufficient to entitle him to a trial. See id., ¶14. Meyer argues that summary
judgment is not appropriate because there are disputed material facts regarding
NSP’s “reentry” on the NSP Property. See Kruckenberg, 378 Wis. 2d 314, ¶8
(“The true owner’s casual reentry upon property does not defeat the continuity or
exclusivity of an adverse claimant’s possession.” (quoted source omitted)).

¶16 First, relying on statements in the record from NSP’s witnesses,
Meyer asserts that NSP’s reentry to the property was “casual and sporadic”
because his use of the NSP Property prevented NSP from performing regular
maintenance of its power lines and other infrastructure. This argument fails
because it ignores the undisputed fact that NSP’s transmission line, power poles,
and accompanying transmission infrastructure physically occupied portions of the
NSP Property during the entire period of Meyer’s purported adverse possession.
Even if we assume that Meyer’s use of the NSP Property limited NSP’s ability to
enter the property to perform maintenance or affected the frequency with which

5
Meyer argues that the circuit court erred in determining that NSP made a prima facie
case for summary judgment because it stated during its oral ruling that the NSP Property was
“open and undeveloped.” According to Meyer, the circuit court should have considered this issue
as part of his prescriptive easement claim, not as part of his adverse possession claim. This
argument fails because our review of the court’s summary judgment decision is de novo, and we
are not bound by the circuit court’s reasoning. Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶14, 281
Wis. 2d 448, 699 N.W.2d 54. This argument from Meyer also fails because the court’s order
granting summary judgment was based solely on the exclusivity element of adverse possession,
not whether the NSP Property was “open and undeveloped.”

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No. 2022AP900

NSP did so—and we do not make that assumption—the physical presence of
NSP’s infrastructure and NSP’s continuous use of the NSP Property for electrical
transmission purposes establish that Meyer’s possession of the NSP Property was
not “exclusive of the true owner.” See Illinois Steel Co., 154 Wis. at 344.

¶17 Second, Meyer argues that NSP’s “entry” onto the NSP Property
should not be considered because NSP did not commence an action within one
year of such entry. Meyer relies on WIS. STAT. § 893.32, which provides:

No entry upon real estate is sufficient or valid as an
interruption of adverse possession of the real estate unless
an action is commenced against the adverse possessor
within one year after the entry and before the applicable
adverse possession period of limitation specified in this
subchapter has run, or unless the entry in fact terminates
the adverse possession and is followed by possession by the
person making the entry.

Sec. 893.32. This argument fails because Meyer does not identify which actions
by NSP constitute an “entry” under this statute. Nonetheless, from other
assertions in Meyer’s briefing in this court, we assume that the “entry” to which
Meyer refers is NSP’s entry onto the NSP Property for maintenance of the power
lines. In any event, this statute does not undermine our conclusion regarding
Meyer’s adverse possession claim. As explained above, NSP’s maintenance and
continued use of electrical transmission infrastructure on the NSP Property
establishes that Meyer did not have exclusive possession of that property.
Regardless of NSP’s entry for maintenance purposes, NSP occupied and used the
NSP Property for electrical transmission lines throughout the time of Meyer’s
alleged adverse possession. Therefore, NSP’s failure to commence an action
against Meyer pursuant to § 893.32 does not affect our conclusion that Meyer did
not exclusively occupy the NSP Property.

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No. 2022AP900

¶18 Third, Meyer argues that he had “exclusive possession” of certain
portions of the NSP Property, including the pond and an adjacent berm, roads, and
storage areas. According to Meyer, these “encroachments” are evidence that he
had exclusive possession of the entire NSP Property.6 As with Meyer’s other
arguments discussed above, this argument fails because it misses the mark. Meyer
ignores the undisputed fact that NSP maintained and used electrical transmission
infrastructure on the entire NSP Property during the period of Meyer’s purported
adverse possession. Meyer’s purported possession of certain portions of the NSP
Property does not undermine our conclusion that Meyer fails to demonstrate a
material factual dispute about NSP’s maintenance and use of its transmission lines
on the NSP Property.7

¶19 In sum, we conclude that NSP is entitled to summary judgment on
Meyer’s adverse possession claim in light of Meyer’s failure to demonstrate that
there are genuine issues of material fact on the element of exclusivity, which is a

6
Meyer’s adverse possession claim sought title to the entire NSP Property, and Meyer
confirms on appeal that his adverse possession claim is not limited to only the portions of the
NSP Property that he asserts he exclusively possessed.
7
NSP argues in the alternative that this argument from Meyer fails because Meyer did
not provide an adequate legal description of the portions of the NSP Property that he asserts he
occupied exclusively. Because we conclude that Meyer’s argument regarding his purportedly
exclusive possession of portions of the NSP Property fails, we need not address this alternative
argument from NSP. See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis.
2d 436, 842 N.W.2d 508 (2013).

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No. 2022AP900

necessary element of his claim.8 We therefore affirm the circuit court’s order with
respect to Meyer’s adverse possession claim.

III. Prescriptive Easement.

¶20 We now consider the parties’ arguments regarding Meyer’s
prescriptive easement claim.

A. Governing Principles Regarding Prescriptive Easements.

¶21 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). In this
case, Meyer’s prescriptive easement claim is governed by WIS. STAT. § 893.28,
which 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 [WIS. STAT.] ch. 843.

Sec. 893.28(1). Wisconsin courts have interpreted the language of this statute as
requiring four elements to be satisfied: “(1) adverse use hostile and inconsistent
with the exercise of the titleholder’s rights; (2) which is visible, open and

8
Meyer also argues that there are factual disputes regarding the other elements of his
adverse possession claim, including: the pertinent time period of occupation; the precise area of
his alleged adverse possession; whether Meyer’s use was hostile; and whether the NSP Property
was either “[p]rotected by a substantial enclosure” or “[u]sually cultivated or improved.” We
need not address these arguments because NSP moved for—and the circuit court granted—
summary judgment on the exclusivity element of Meyer’s adverse possession claim. In any
event, we need not address these other arguments because our conclusion regarding the
exclusivity element is dispositive. See Barrows, 352 Wis. 2d 436, ¶9.

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No. 2022AP900

notorious; (3) under an open claim of right; (4) and is continuous and
uninterrupted for twenty years.” Ludke v. Egan, 87 Wis. 2d 221, 230, 274
N.W.2d 641 (1979).

¶22 WISCONSIN STAT. § 893.28 also creates an exception to the
“adverse” use: “The mere use of a way over unenclosed land is presumed to be
permissive and not adverse.” Sec. 893.28(3). This presumption of permissive use
applies to unimproved property that is “wild, unoccupied, or of so little present use
as to lead legitimately to the inference that an owner would have no motive in
excluding persons from passing over the land.” Shepard v. Gilbert, 212 Wis. 1, 6,
249 N.W. 54 (1933).

B. Summary Judgment Was Not Proper as to Meyer’s
Prescriptive Easement Claim.

¶23 NSP argued in its motion for summary judgment, and argues on
appeal, that Meyer’s prescriptive easement claim fails because Meyer’s use of the
NSP Property was not an “adverse use hostile and inconsistent” with NSP’s
exercise of rights as the landowner. See Ludke, 87 Wis. 2d at 230. In response,
Meyer argues that summary judgment is not proper because his use of the NSP
Property was “adverse” under WIS. STAT. § 893.28(1). For the following reasons,
we conclude that summary judgment should not have been granted as to this
disputed element.9

9
Meyer also argues that summary judgment is not proper as to the other elements of his
prescriptive easement claim, including whether his use was: visible, open and notorious; under
an open claim of right; and continuous and uninterrupted for twenty years. We need not address
these arguments because NSP only moves for—and the circuit court only granted—summary
judgment based on the adverse use element of Meyer’s prescriptive easement claim.

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No. 2022AP900

1. There are Disputed Issues of Fact Regarding Whether Meyer’s Use of the NSP
Property Was Adverse Under WIS. STAT. § 893.28(1).

¶24 To repeat, a prescriptive easement requires proof of “adverse use
hostile and inconsistent with the exercise of the titleholder’s rights.” Ludke, 87
Wis. 2d at 230. Under this rule, an act is “hostile” when it is “inconsistent with
the right of the owner and not done in subordination thereto.” Shellow, 9 Wis. 2d
at 511. “A use which is permissive is subservient and not adverse.” Ludke, 87
Wis. 2d at 230.

¶25 In the present case, the facts asserted by Meyer establish that there
are genuine issues of material fact regarding whether Meyer’s use of the NSP
Property was “hostile and inconsistent” with NSP’s rights as the property owner.
According to Meyer’s factual assertions, Meyer regularly trespassed on the NSP
Property and stored items on the property without NSP’s permission. Meyer also
points out that his construction of the pond—which the circuit court held to be
adverse and a basis for a prescriptive easement—was just as inconsistent with
NSP’s rights as the owner as his other uses of the NSP Property. Thus, viewing
the factual assertions of Meyer in a light most favorable to him (as we must on
summary judgment), Meyer has shown that a finder of fact must resolve the
parties’ factual dispute concerning whether his use of the NSP Property was
adverse and whether it was inconsistent with NSP’s right to exclude others (in this
case, Meyer) from its property. See Jacque v. Steenberg Homes, Inc., 209 Wis.
2d 605, 617, 563 N.W.2d 154 (1997) (“[T]he private landowner’s right to exclude
others from his or her land is one of the most essential sticks in the bundle of
rights that are commonly characterized as property.” (citation omitted)).

¶26 NSP argues that Meyer’s use of the NSP Property was not adverse as
a matter of law because his use was “compatible with NSP’s historical use and

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No. 2022AP900

ownership of the NSP Property.” According to NSP, Meyer did not provide any
evidence that his use of the NSP Property interfered with NSP’s use of the
property for operating an electrical transmission line. NSP’s argument fails; the
requirement of adverse use focuses on whether the person’s use was inconsistent
with the true owner’s property rights, not the true owner’s particular use of the
property. Widell v. Tollefson, 158 Wis. 2d 674, 685, 462 N.W.2d 910 (Ct. App.
1990) (“Hostility merely requires that the use be inconsistent with the titleowner’s
rights”). The parties do not dispute that Meyer used the NSP Property for building
a pond with a berm, installing a pond aerator with a steel windmill and
underground electrical service, building and improving roads, harvesting crops,
pasturing livestock, and storing farm implements. Thus, Meyer has raised genuine
factual disputes on the issue of whether his use of the NSP Property was adverse
under WIS. STAT. § 893.28(1) even though that use did not interfere with NSP’s
operation of an electrical transmission line on the property.

2. Presumption of Permissive Use Under WIS. STAT. § 893.28(3).

¶27 The parties also dispute whether the presumption of permissive use
under WIS. STAT. § 893.28(3) applies to Meyer’s use of the NSP Property. To
repeat, this statute provides that “[t]he mere use of a way over unenclosed land is
presumed to be permissive and not adverse.” Sec. 893.28(3). Reasonably
interpreted, this statute requires proof of two elements for the presumption in favor
of NSP to apply: (1) Meyer used a “way” over NSP’s property; and (2) the land
was “unenclosed.” See id. For the following reasons, we conclude that
§ 893.28(3) does not apply in these circumstances.

¶28 The presumption of permissive use under WIS. STAT. § 893.28(3)
originated from our supreme court’s decision in Bassett v. Soelle, 186 Wis. 53,

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No. 2022AP900

202 N.W. 164 (1925). In that case, our supreme court held that the “mere use of a
track or way over un[e]nclosed lands, and especially woodlands, for the statutory
period does not raise a presumption that the use is adverse to the rights of the
owner.” Bassett, 186 Wis. at 57. The court explained that this rule applies only to
a person who travels or passes through another’s land:

[I]t is a matter of common knowledge that where there is
un[e]nclosed woodland, … it is customary for the public,
for purposes of pleasure or convenience, to pass through it
without express permission. So long as such use causes no
inconvenience to the owner he would be regarded as
unneighborly and churlish to forbid the use. In some parts
of this state there are large areas of open woodland through
which many persons pass without restraint.

Id. at 57. The legislature codified this rule in 1941 in what is now § 893.28(3).
Shellow, 9 Wis. 2d at 513-14 (citing Christenson v. Wikan, 254 Wis. 141, 35
N.W.2d 329 (1948)).

¶29 Our supreme court has recognized that the presumption of
permissive use under WIS. STAT. § 893.28(3) does not apply to actions other than
traveling or passing through another’s land. For instance, the presumption does
not apply to the construction of a road over another’s land:

Had one claiming to have acquired an easement by
prescription surveyed a road over such lands, and improved
it, or cut such trees as interfered with it, the character of
such acts would be a sufficient indication to the owner that
they were not in response to the permission and that the
user was hostile or adverse.

Shepard, 212 Wis. at 8; Carlson v. Craig, 264 Wis. 632, 637, 60 N.W.2d 395
(1953) (presumption did not apply, in part, because plaintiff “cut grass and brush
and made improvements to the roadway”). The presumption also does not apply
to building structures, storing objects, and recreating on another’s land. Shellow,

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No. 2022AP900

9 Wis. 2d at 509, 512, 514 (holding that presumption did not apply to plaintiffs
who built a pier, parked vehicles, stored boats, fished, and swam on another’s
land). These interpretations are consistent with the ordinary meaning of the word
“way.” See Way, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “way” as
“[a] passage or path.”).

¶30 In the present case, and although there are genuine factual disputes
concerning the disputed element of adverse use as already discussed, the facts that
are not disputed by the parties establish that Meyer used the NSP Property for
more than merely traveling or passing through. Therefore, Meyer’s actions on the
NSP Property do not constitute the “mere use of a way.”

¶31 In sum, we conclude that NSP has failed to establish a defense that
defeats Meyer’s prescriptive easement claim because there are genuine issues of
material fact about whether Meyer’s use of the NSP Property was adverse under
WIS. STAT. § 893.28(1). In addition, Meyer’s use of the NSP Property was more
than the “mere use of a way” under § 893.28(3) and that statutory subpart does not
apply in these circumstances. See L.L.N., 209 Wis. 2d 674, ¶14 n.6. We therefore
reverse the circuit court’s order with respect to Meyer’s prescriptive easement
claim and remand for further proceedings consistent with this opinion.

CONCLUSION

¶32 For the foregoing reasons, the order of the circuit court is affirmed in
part, reversed in part, and remanded for further proceedings consistent with this
opinion.

By the Court.—Order affirmed in part; reversed in part and
remanded for further proceedings.

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No. 2022AP900

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

17