You realize that a neighboring property owner is encroaching upon District property.  Your first instinct is to confront the neighboring property owner with a claim of trespass.  However, there are necessary procedures to protect the District’s legal interest to the land in dispute before pursuing litigation on this matter. 

According to Wisconsin Statute 943.13[1], trespass is defined as anyone who enters on to the property of another without express or implied consent of the owner or occupant or remains on the land of another after being notified by the owner or occupant to not remain on the premises.  The statute also defines the factors a trier of fact will use to determine whether an owner has given implied consent.  The factors include whether the owner or occupant agreed to previous entries by the person or by other persons under similar circumstances, the customary use of the property by other persons, whether the owner or occupant represented to the public that the land may be entered for particular purposes and the general arrangement or design of any improvements or structures on the land. 

Owners can give notice not to enter or remain on the property either in writing, orally, or by posting a notice on the land.  Based upon the foregoing, one should ensure that they have not provided express or implied consent to the encroaching individual before claiming trespass.  Expressed or implied consent would negate the intent element for trespass.  Further, it would strengthen the owner’s position and prevent arguments that the trespass was justified if the owner can document that notice was provided or that the land was posted for no trespassing. 

If an individual is using District property without authorization, it is imperative that you contact the individual, preferably in writing, to create a record of your correspondence.  The correspondence should direct the individual that their use of the land is not permitted and it must be terminated immediately.  You should also post the land with signage to that effect.  It is also advisable to take date-stamped photographs of the posted signage for your documentation.  The photographs will bolster the District’s claim that the trespasser did not have express or implied consent for his or her trespass.  If the trespass continues, it is a good idea to document the intrusion through police reports to show the intrusion was not permitted. 

The hope would be that the parties can resolve the dispute amicably by offering to allow the neighboring property owner’s until they voluntarily discontinue their use or the use discontinues over time under the terms of a written easement/encroachment agreement. 

The easement or encroachment agreement should address the easement/encroachment area and any restrictions thereon, maintenance of the easement/encroachment area, insurance on the easement/encroachment area, indemnification and a clause addressing whether the easement/encroachment agreement runs with the land.  By “running with the land”, the easement/encroachment agreement would specifically state whether the terms of the agreement are specific to the parties named in the easement/encroachment agreement or alternatively whether the terms and conditions of the agreement continue on with any successors’ in interests.  An alternative dispute clause is also helpful in agreements of this nature allowing disputes between the parties to be resolved through either mediation or arbitration, avoiding litigation.  It is also important to record the easement/encroachment agreement with the Register of Deeds’ office in the county where the property is located to make the agreed upon terms of use of public record. 

If an amicable resolution cannot be achieved, the property owner may need to proceed with filing an action through the circuit court in the county where the property is located.  Most likely the action would be for trespass, requesting from the court an injunction of the continued use of the land by the neighboring property owner in addition to damages suffered by the party due to the actions of trespass.  If there are specific questions as to whether there is an actual encroachment, the property owner may also want to seek a declaratory judgment, whereby the court would provide a decision as to whether an encroachment exists and the specifics thereof through this litigation, the parties are acting proactively, with court involvement, in the resolution of this matter after they have exhausted all other methods to the resolution of this issue.  Proper positioning and litigation planning in situations such as these can have a big impact in the outcome of the case and thus should be analyzed before any decisions are made on how to proceed with the resolution of matters such as these.

[1] “(a) Enters any enclosed, cultivated or undeveloped land of another, other than open land …, without the express or implied consent of the owner or occupant; (am) Enters any land of another that is occupied by a structure used for agricultural purposes without the express or implied consent of the owner or occupant; (b) Enters or remains on any land of another after having been notified by the owner or occupant not to enter or remain on the premises … (e) Enters or remains on open land that is an inholding of another after having been notified by the owner or occupant not to enter or remain on the land; (f) Enters undeveloped private land from an abutting parcel of land that is owned by the United States, this state or a local governmental unit, or remains on such land, after having been notified by the owner or occupant not to enter or remain on the land.”

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Kelly J. Schwab

Kelly J. Schwab | 920.230.4582

Our legal updates provide general information only and are not intended to provide legal advice or create an attorney-client relationship.