One of the most frequent questions I hear from agri-business members starts out, “My neighbor just had his property surveyed and the surveyor is putting stakes out in my field fifty feet from the fence line.” The next sentence is, “My grandfather built the fence over sixty years ago and we have farmed the land since.”

There are various reasons why current surveys do not match the fence and other boundaries established years ago in agricultural areas. The simplest reason is that today’s high tech instruments using lasers and GPS are much more accurate than old surveying methods and can map over hills and through trees with precision. The result is that there is rarely a fence line established 75 years ago that will match a current survey line.

Does this new survey line mean your neighbor gets to take part of your field? Not necessarily so, as Wisconsin law and the common law of adverse possession anticipate this kind of problem and provide a solution.

Sec. 893.25 of the Wisconsin Statutes provides, in part, that:

….A person, who in connection with his or her predecessors in interest, is in uninterrupted adverse possession of real estate for 20 years…may commence an action to establish title under ch. 841.

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

1. 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 right; and
2. Only to the extent that it is actually occupied and :

1. Protected by a substantial enclosure; or
2. Usually cultivated or improved.

In simple language, if you and your predecessor owners established a line and cultivated or used the property for 20 years thinking it was yours, you are the owner regardless of what the current survey says.* The law recognizes continued usage and the long established fence lines. Unfortunately, if the parties cannot work matters out, these disputes often end up in court.

If a survey shows a line discrepancy, the parties need to look at “adverse possession” criteria to determine who has what rights. Even if the parties agree that the fence line rather than the survey should determine rights, however, some action may be necessary. Once the survey shows a discrepancy, you are on notice that your actual land may not be the same as the description on your deed. You and your neighbors may need to see an attorney to reform your deeds so that your deed descriptions match the location of the fence line. If the deeds are not reformed, future claims and issues could arise between subsequent owners after you and your neighbor are no longer around. Deed problems don’t get better with age and need to be dealt with when they arise.

The good news is that 20 years of usage of property generally means that the line established by the neighbors is the true property line and takes precedence over any new survey.

Note: This article is general in nature and is not intended as legal advice in any specific situations. When issues arise, you are urged to contact legal counsel for advice.

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