Statutes updated from Official Statutes on: January 26, 2022
The Pepper case makes clear the intended relationship between secs. 893.06 and 893.07, Stats., (1971). As provided in sec. 893.06, if a party enters into possession of land under a claim of title, then that party can be awarded those premises through adverse possession if that party can show "continual occupation and possession of the premises" included in the claim of title " or of some part of such premises" for a ten year period.
The color of title analysis applies to Rasmussen's deed to Brekke. Rasmussen obtained her lot in 1960. Though Brekke obtained Rasmussen's lot in 1972, and Perpignani filed this action in 1980, Brekke still satisfies the 10-year statutory period because he can tack his eight years of possession to Rasmussen's 12 years. See Mortenson v. Murphy, 153 Wis. 389, 393, 141 N.W. 273, 274 (1913); § 893.06, Stats. Similar to the Pieper deed, the description is accurate but for the reference to "Government Lot Two (2)."
There are several enumerated exemptions and exceptions to this comprehensive statute dealing with so-called "controlled substances". Section 893.04 exempts pharmacists who dispense controlled substances under certain conditions. Sections 893.05 and 893.06 exempt physicians, certain other types of practitioners, manufacturers, others in the chain of legitimate distribution, hospitals and various laboratories, from the prohibitions of the act. Section 893.08, entitled "Exceptions", permits retail sales of certain scheduled substances without a prescription under certain identified circumstances. It seems apparent that the exemptions and exceptions mentioned in Section 893.10(1) have reference to these various provisions of the law, which are in the nature of affirmative defenses to a prosecution for possession of a prohibited substance.
Appellants also contend that their use of the right-of-way was made under color of title and therefore comes within the ten-year restriction as to adverse use prescribed by secs. 893.06 and 893.10, Stats. Appellants' claim of an easement by adverse use was over the substitute strip, while their deeds granted a right-of-way over the original strip. Sec. 893.06 requires "occupation and possession of the premises included in such instrument or judgment or of some part of such premises . . . ." In Zuleger v. Zeh (1915), 160 Wis. 600, 604, 605, 150 N.W. 406, it was held that lands not described in a deed could not be acquired by adverse use under the ten-year statute of limitations:
Subsection (2)(a) requires original entry on the adversely possessed premises to be ‘in good faith,’ language not included in the previous s. 893.06. The addition is designed to make clear that one who enters under a deed, for example, knowing it to be forged or given by one not the owner, should not have the benefit of the 10–year statute. Some Wisconsin case law (contrary to the nationwide weight of authority) suggests otherwise, and the change is intended to reverse these cases. See Polanski v. Town of Eagle Point, 30 Wis.2d 507, 141 N.W.2d 281 (1966); Peters v. Kell, 12 Wis.2d 32, 106 N.W.2d 407 (1960); McCann v. Welch, 106 Wis. 142, 81 N.W. 996 (1900).
When the claim to land is under color of title by virtue of a written conveyance or a judgment of a competent court the period of possession required to exclude another's claim is ten years. Sec. 893.06, Stats. 1973.
Practitioners ordinarily obtain controlled substances such as morphine sulfate for office use by ordering it from licensed distributors which are required by law to distribute such substances to practitioners, pharmacists and others only pursuant to a written order on a form approved by State and Federal governments. Sec. 893.06(1), F.S. 1973; 21 U.S.C. § 828. Dr. Richardson thought it inconvenient to supply his needs for morphine sulfate by submitting government forms to distributors because, he said, it was practical in that way only to order larger quantities of the drug than he desired to keep in the office. Dr. Richardson felt that keeping any amount of morphine sulfate in the office beyond the end of the day encouraged repeated break-ins.
Appellants' alternative claim of title by adverse possession is grounded either on the Wisconsin 10 and 20-year statutes, Wis.Stat.Ann., §§ 893.06 and 893.08, respectively, or on the federal 20-year Color of Title Act, 43 U.S.C.A. § 1068.
The trial court apparently construed the plaintiff's deed not to include the disputed land because, in its opinion, to construe it otherwise would be to render the exception of the lands included in the highway conveyance meaningless. Such would not actually be the case as previously pointed out and an examination of the Gasner deed, that of the plaintiffs' predecessor in title, and the plaintiffs' deed reveals that the entire south one-half of the southwest quarter of the section was conveyed with the exception of the highway conveyance and the parcel now owned by Rueping. The disputed area is not within the highway lines nor within the parcel now owned by Rueping. Thus, the plaintiff is entitled to summary judgment unless defendant Rueping can prevail on his contention that he is within the provisions of secs. 893.06 and 893.07, Stats., relating to adverse possession under color of title.