In Timothy M. Casa De Calvo, Jr. v. Town of Hudson (2019AP185), the Wisconsin Court of Appeals upheld a circuit court decision dismissing an adverse possession claim against the Town of Hudson because the specific property was held by the Town “for highway purposes” and so not subject to adverse possession. 

Facts

Casa De Calvo purchased 3 property lots in a newly formed subdivision in 1986. He subsequently built a house and driveway on the property. The driveway was built over a platted but unimproved portion of the subdivision that was originally supposed to continue the road. Casa De Calvo did not believe the town would ever pave the section so he continued to improve and use the driveway. In 2017, he commenced a lawsuit against the Town of Hudson to claim adverse possession of the strip of land. He indisputably adversely possessed the platted but unimproved portion for the requisite 20 years. 

The Town argued that Casa De Calvo still could not claim adverse possession because the property was “for highway purposes” and therefore, under Wis. Stat. § 893.29(2)(c), met an explicit exception to adverse possession claims. 

Decision

Wis. Stat. § 893.29(2)(c) reads:

Notwithstanding sub. (1), no title to or interest in any of the following property shall be obtained by adverse possession … :
(c) Real property of a highway as defined in s. 340.01(22) and including property held by the state or a political subdivision for highway purposes, including but not limited to widening, alteration, relocation, improvement, reconstruction and construction.

The court of appeals went on to analyze what constituted “highway purposes.” Since the property was dedicated for public use as a street on the recorded subdivision plat, it found the strip could held for highway purposes.

The court further ruled against Casa De Calvo’s argument that “highway purposes” be limited to property that has already been opened for public use or that it should consider evidence regarding the town’s intent to actually use the property for that purpose. 

Casa De Calvo’s adverse possession claim therefore failed under the exception.