(dissenting). I disagree with the majority's decision that the lowest burden of proof applies in adverse possession cases. The issue of the proper burden of proof is well established in this state as the middle burden of proof. I believe that this burden is justified by sound policy reasons and I would not deviate from our previous decisions. Accordingly, I dissent.
The majority concludes that the burden of proof in adverse possession cases is one of first impression for *368this court. The majority reaches this conclusion by characterizing the phrase "clear and positive" evidence as descriptive of "the quality of evidence which may even be considered." At pages 361-362. The phrase allegedly is not indicative of the quantum of evidence necessary to establish the elements of adverse possession. I disagree with the court's characterization of "clear and positive" evidence as not being a burden of proof. I also disagree that we have not previously specifically addressed the burden of proof in adverse possession cases.
In Meyer v. Hope, 101 Wis. 123, 129, 77 N.W. 720 (1898), this court unambiguously stated that the burden of proof in adverse possession cases requires clear and satisfactory proof: "Much stress is laid by the learned counsel for appellant on language often found in the books, that 'adverse possession is not to be made out of inference, but by clear and satisfactory proof.' That is good law." Later in the same opinion, we referred to this burden of proof as requiring "clear and positive evidence." Id. at 130. We also concluded that the primary facts of the adverse possession claim in that case were established by "clear, positive, and satisfactory" evidence.
In Spengler v. Knaus, 194 Wis. 100, 102, 215 N.W. 900 (1927), we also defined the burden of proof for adverse possession in terms of "clear and satisfactory" proof, while using this phrase interchangeably with "positive and satisfactory" evidence:
" 'The essential elements of adverse possession cannot properly be found to exist except upon testimony of a positive and satisfactory character. That does not mean that such elements must all be established by direct evidence, but that they must be established in a clear and satisfactory manner by evi*369dence, direct or circumstantial, of a positive, unequivocal character. Meyer v. Hope, 101 Wis. 123, 77 N.W. 720. It is not consistent with that to find such elements from mere general statements of witnesses, not based on facts clearly warranting them, nor in the face of facts clearly established which are so inconsistent with adverse possession as to render it altogether improbable.' Illinois Steel Co. v. Budzisz, 115 Wis. 68, 84, 90 N.W. 1019."
Also see Austin v. Holt, 32 Wis. 478, 490 (1873); Wadleigh v. Marathon County Bank, 58 Wis. 546, 552 (1883); Zellmer v. Martin, 157 Wis. 341, 344, 147 N.W. 371 (1914), for proposition that adverse possession must be "clearly" established.
Thus, even assuming that "clear and positive" evidence does not describe a standard of proof, we are still not deciding this case on a clean slate. We have defined the burden of proof in terms of "clear and satisfactory" evidence, which is the middle burden of proof. In Kuehn v. Kuehn, 11 Wis. 2d 15, 29, 104 N.W.2d 138 (1960), we stated that "clear and satisfactory" evidence is equivalent to "clear, satisfactory, and convincing" evidence. This is the middle burden of proof. Thus, we have previously applied the middle burden of proof in adverse possession cases and for this court to now apply the lowest burden of proof constitutes an abrupt departure from precedent. I do not see the justification for the change.
I could not accept the majority's conclusion to apply the lowest burden of proof even if we had not previously and expressly applied the phrase "clear and satisfactory" evidence to adverse possession cases. I believe that the consideration of the overall burden of proof cannot meaningfully separate the quality of evi*370dence from the quantum of evidence. I am unaware of any such distinction and do not believe that such a distinction has meaning. "Clear and positive" is not different than "clear and convincing" in terms of defining a burden of proof. Thus, if the majority is correct that "clear and positive" refers to the quality of evidence and is not a burden of proof, then "clear and convincing" is also not a burden of proof. This proposition obviously is incorrect and so is the majority's treatment of the "clear and positive" language. Furthermore, to state that "clear and positive" only defines the evidence that may even be considered by a jury, at pages 361-362, is to establish a new qualification for the admissibility of evidence in addition to the requirement of relevancy and materiality. Under the majority's analysis, evidence may be material and relevant, but in an adverse possession case before a jury may consider it, the evidence also must be clear and positive proof of the elements of the claim. I find this new requirement to be improper, just as I find the majority's reasoning to be attempted sophistry in applying the law and concocted to arrive at a result.
The majority's conclusion that "clear and positive" is not a burden of proof is inconsistent with the court's own reasoning. The majority states that other jurisdictions are divided as to whether the phrase corresponds to the lower or middle burden of proof.1 At page 363. The *371implication from this statement is that other jurisdictions do consider the phrase to constitute a burden of proof. It therefore is beyond understanding why this court refuses to consider "clear and positive" to be such a burden.
The artificiality of the majority's claim that "clear and positive" is not a burden of proof is indicated by the fact that the majority now directs trial courts not to use the phrase in jury instructions. At page 362. The "clear and positive" requirement, however, is a requirement well established by many decisions of this court. If the phrase refers to an evidentiary requirement that is independent of the burden of proof, as suggested by the majority, then the majority has not shown why this limitation on the "quality of evidence which may even be considered" is so cavalierly eliminated. I submit that the reason is because "clear and positive" really is a burden of proof and that the adjective "clear" conclusively identifies the standard as the middle burden of proof. The majority concedes that the word clear "frequently appears in the middle burden of proof." At page 362. Instead of treating this fact as a clue to the correct *372burden of proof in adverse possession cases, the majority too conveniently decides to eliminate the troublesome phrase. I would hold that "clear and positive" is a burden of proof and that the majority incorrectly dismisses it as a meaningless phrase affecting only the quality of evidence.
The majority relies on an improper distinction between the quality and quantity of evidence as defining a burden of proof. In Kuehn, 11 Wis. 2d at 28, we stated that the correct statement of the complete rule for a burden of proof contains both the element of reasonable certainty and some degree of preponderance of the evidence, such as fair preponderance, clear preponderance or preponderance beyond a reasonable doubt. That all burdens of proof require a preponderance of the evidence is self-evident. In Klipstein v. Raschein, 117 Wis. 248, 252-53, 94 N.W. 63 (1903), we stated this obvious rule in the following language: "In the very nature of things no fact can be established to a reasonable certainty, . . . less than a preponderance of the evidence." Thus, the necessary quantity of proof always remains the preponderance of evidence, i.e., more probable than not, while the adjective phrases fair, greater, clear, satisfactory, and convincing define the quality of the evidence which distinguishes the various burdens of proof. The quality aspect of a burden of proof relates to the degree of certainty required. In Kuehn, 11 Wis. 2d at 30, we specifically stated that the preferable way to define the middle burden of proof is in terms of "clear, satisfactory and convincing evidence. This language better describes the quality and convincing power of the evidence.” (Emphasis added.) Thus, the phrase "clear and convincing" evidence refers to the quality of the persuasiveness of evidence.
*373Having concluded that "clear and convincing" and "clear and positive" both describe a quality of evidence, which is an essential element of a burden of proof, I next consider whether "clear and positive" characterizes, the middle or the lower burden of proof. I believe that the use of the word "clear" indicates that the middle burden of proof is intended by the phrase. In Bengston v. Estes, 260 Wis. 595, 598-99, 51 N.W.2d 539 (1952), we concluded that the addition of the word "clear" in a burden of proof instruction, without some additional qualifying adjective like "clear and satisfactory" or "clear and convincing" was itself sufficient to indicate the middle burden of proof. We stated that the single adjective "clear" frequently has been used to indicate the higher burden of proof. Inclusion of the adjective in the phrase "clear and positive," therefore, sufficiently indicates the middle burden of proof. Similarly, the word "positive" connotes a greater degree of certainty than the lowest burden of proof. "Positive" evidence is that which is free from ambiguity. Thus, I construe the phrase "clear and positive" to refer to the middle burden of proof.
I conclude that this court has routinely applied the middle burden of proof to adverse possession cases in the past. I consider this to be the appropriate burden of proof. The purpose of a burden of proof is to instruct the factfinder concerning the degree of confidence our society thinks should be present in the correctness of factual conclusions for a particular type of adjudication. State v. Hanson, 100 Wis. 2d 549, 563, 302 N.W.2d 452 (1981). In adverse possession cases, the evidence of possession must be clear and positive and must be strictly construed against the claimant. All reasonable presumptions must be made in favor of the true owner. *374Allie v. Russo, 88 Wis. 2d 334, 343, 276 N.W.2d 730 (1979). The court's treatment of adverse possession prior to this opinion indicates that it is a disfavored claim. Section 893.30, Stats., codifying the presumption that the titleholder was in possession of the property, indicates that the legislature also has special concerns about adverse possession claims. The elements of adverse possession themselves indicate society's reluctance to casually dispossess a titleholder of his property by adverse possession cases. These factors indicate that a high degree of confidence in factual findings should be required in adverse possession cases. Therefore, the middle burden of proof is appropriate.
The majority's decision to apply the lowest burden of proof is inconsistent with the other factors indicating the disfavored status of adverse possession. The majority reasons that because adverse possession claims are otherwise disfavored, we should not further burden such claims. This is illogical. If the claim is disfavored, then consistency requires application of the middle burden of proof. It should require a high degree of confidence in the factual findings in support of adverse possession.
Finally, I disagree with the majority's discussion of the effect of a presumption. Section 893.30, Stats., recognizes a presumption that the titleholder was in possession of the property claimed by adverse possession. The majority's analysis of the presumption makes it a legal theory with no value to the beneficiary. The majority interprets sec. 903.01 to mean that "presumptions do not 'disappear' or 'burst' when evidence to the contrary of the presumed fact is introduced.” At page 365. However, the majority then states that a presumption "is met by evidence of equal weight." At page 366. *375Under this standard, the opponent of a presumption only has a burden to come forth with equal evidence. It does not give any value to a presumption that cannot be overcome by merely evidence of equal weight. The opponent of the presumption does not have a burden of proof. It is not really a presumption under that test, but merely an advantage to not have to initially produce evidence showing a lack of possession by the titleholder. I would construe sec. 903.01 as imposing a burden of proof on the adverse claimant.
For the above reasons, I dissent from the majority opinion.
I note that the majority misleadingly indicates that other jurisdictions are split on the proper construction of the phrase "clear and positive." The majority relies on three opinions that apply the lowest burden of proof in adverse possession cases. None of these opinions, however, construed the phrase "clear and positive." That standard apparently did not apply in those jurisdictions. Thus, the *371decisions are not examples of "jurisdictions which have attempted to correspond the phrase to accepted standards of proof." Majority op. at page 363. A fourth opinion, Russo v. Stearns Farms Realty, Inc., 367 A.2d 714, 717 (R.I. 1977), seems to construe the key phrase to be a more rigorous test than the lowest burden of proof. The Russo opinion states that "strict proof," i.e., proof by a preponderance of the clear and positive evidence, is required in adverse possession cases. The decision therefore defines the standard in terms of the phrase "clear and positive," without further defining that phrase. I question, however, whether "strict proof" constitutes the lowest burden of proof in Rhode Island. Thus, there does not appear to be any support for the majority's construction of "clear and positive" as being equivalent to the lowest burden of proof.