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Vezey v Green (11/16/2001) sp-5501
Vezey v Green (11/16/2001) sp-5501
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
ALLEN VEZEY, )
) Supreme Court No. S-9440
Appellant, )
) Superior Court No.
v. ) 4FA-95-1383 CI
)
ANGELA GREEN, ) O P I N I O N
)
Appellee. ) [No. 5501 - November 16, 2001]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Richard D. Savell, Judge.
Appearances: William R. Satterberg, Jr.,
Fairbanks, for Appellant. No appearance by Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
MATTHEWS, Justice, with whom EASTAUGH,
Justice, joins, dissenting.
I. INTRODUCTION
Angela Green took possession of part of her family's land
in 1982. The land was probably an oral gift to Green from her
grandparents. For the following decade, Green lived on the land
during the summer. She gradually built a house, cleared
surrounding land, cultivated a garden and fruit trees, and raised
poultry. In 1994 her grandparents sold their interest in the land
to Allen Vezey. Green brought suit claiming that she had gained
title by adverse possession to the house and surrounding land. The
superior court upheld her claim. Vezey now challenges the finding
of adverse possession as well as the superior court's determination
of what land Green actually possessed. Because Green has
demonstrated adverse possession of part but not all of the area
awarded, we affirm as to the north, east, and south portions, but
remand as to the west portion.
II. FACTS AND PROCEEDINGS
In 1982 Angela Green's grandmother, Billie Harrild,
offered Green a piece of the family's land near Shaw Creek. Billie
was declining in health, and wanted her granddaughter to have a
home near the Harrilds' own. Green selected a parcel of land on a
bluff, across Shaw Creek from her grandparents' house. The alleged
gift was not recorded, and Billie and Elden Harrild, the
grandparents, and John Harrild, a cousin, remained the owners of
record. However, according to Green's testimony, in the ten years
following her entry onto the property, all three "absolutely"
recognized the land as hers. John Harrild, the only record owner
alive at the time of trial, waived participation in this case and
indicated his agreement that Green's claims be recognized.
Neighbors testified that Billie consistently referred to the land
as Green's property, and a stranger to Green who asked Billie about
buying the property around 1987 testified that she told him she
could not sell the bluff because it belonged to her granddaughter.
Elden and Billie Harrild died in the winter of 1995-1996.
Between 1982 and 1992 Green gradually constructed a house
and cultivated grounds on the bluff. She worked on the property
over the summers, and worked as a nurse and glassmaker in
California for the rest of the year. In 1982 she planned the site
of her house and cleared trees on the lot. In the summers of 1983
and 1984 she lived in a camper on the property, cleared more trees
and stumps, and oversaw hand excavation for the foundation of the
house. In the following summers, she gradually expanded the
cultivated section of the property, planting lilac bushes and fruit
trees and installing a coop for chickens and turkeys. A neighbor,
Art McTaggart, helped to erect the house itself and to install a
water system, propane heater, electrical wiring, and a generator.
He worked with Green on the house every summer from 1982 through
1991. Beginning in 1987 Green lived in the nearly complete house
during the summers. She arranged for telephone service beginning
around 1985, and dealt with fire authorities to determine how far
away from the house to clear trees. In 1986 Green worked in
Fairbanks the whole year and visited the property by snow machine
during the winter; in 1989 she lived on the property for eight or
nine months. Green lived on the bluff and with her grandmother for
a month and a half in the summer of 1992, but did not come to
Alaska in 1993.
Green left trees standing on much of the property, but
cleared undergrowth and planted native plants over an area of
several acres. She also cut trees from a wide area on the southern
hillside in order to clear the view from the cabin. She posted "No
Trespassing"signs and built benches in some areas away from the
house. She put up a chain across the road entering the property,
but did not fence the entire area. Although the improvements were
not entirely visible from the road, a neighbor testified that local
residents as far away as Delta Junction, twenty miles down
Richardson Highway, knew of the bluff as Angela Green's property.
A lien filed against the property reflected this belief: Despite
the fact that land records showed the Harrilds as owners, the lien
declared that Green held the property either in her own right or as
a constructive trust for Billie.
In 1990 the house was considerably damaged by vandalism.
Green repaired the damage when she returned to Alaska in the
spring. Witnesses who visited the property in the summer of 1993,
the year that Green did not visit Alaska, said that the house
looked empty, vandalized, and not kept up.
Green arranged with her grandparents that, for the
remainder of their lives, they could extract and sell small
quantities of rock from the property in order to support themselves
and John Harrild. This extraction was not to involve heavy
equipment; according to Green, both she and Billie Harrild strongly
opposed use of such equipment on the property.
Sometime between 1988 and 1991 the Harrilds executed a
contract with an extraction company, Earthmovers, allowing them to
excavate rock from the family property, including the bluff. The
contract apparently included an option for Earthmovers to buy the
property. According to Green, Billie's mental capacities were
declining at the time of this contract, and she no longer handled
her own finances or affairs.
Earthmovers excavated a trench on the bluff on a day when
Green was not at home. When Green returned and found the workers
and equipment on the property, however, she told them that they
were not allowed to excavate there. Green granted the workers
permission to finish the task at hand, insisted that they arrange
to repair a telephone line that they had damaged, and ordered them
to leave the property.
In 1988 Allen Vezey became interested in Shaw Creek area
properties. Vezey planned to consolidate property in the area in
order to quarry for rock. He purchased property adjoining the
Harrilds' and carried out dynamiting and excavation. Green
testified that Billie strongly opposed this use of the property,
and that her grandmother was "absolutely livid"with Vezey.
Vezey approached the Harrilds about purchasing their land
in 1993. He and his engineer, Ken Colette, had a number of
meetings with the Harrilds. Both testified that the tone was
cordial and Billie exhibited no hostility toward Vezey, although
Colette testified that Billie Harrild was "in and out of
cognizance"during this period, and that he himself would have been
reluctant to enter into a contract with her at times. According to
Vezey, the Harrilds mentioned Green only to say that they planned
to give her an acre of land. Colette recalled mention of "Angela's
acre"in early meetings with the Harrilds, but did not testify that
the Harrilds said the land was only a planned gift for the future.
The Harrilds' statements caused Vezey and Colette to double-check
the property records for the bluff area -- a response which
suggests that the Harrilds gave Vezey reason to fear that Green
already owned the land.
In 1994, while Vezey was still in negotiations with the
Harrilds, he received a phone call from Angela Green. According to
Vezey, Green was "borderline hysterical"and objected to his
purchasing the property. She expressed some involvement or
interest in the land, he testified, but did not say that she owned
it. According to Green, she told Vezey during the phone call that
the land belonged to her, that it was not for sale, and that he was
to stay off of her property. The trial court accepted Green's
version of the call, and expressed scepticism about Vezey's
testimony on this and other issues.
In the winter of 1994-1995 Vezey purchased Elden
Harrild's one-third interest in a property which included the
contested bluff area. He separately purchased Billie Harrild's
one-third interest from her son James, who obtained and recorded
power of attorney on the same afternoon as the closing. John
Harrild (who does not contest Green's ownership claim to the bluff)
retained the remaining one-third interest in the family property.
After Vezey purchased the property, Green brought suit
against him, John Harrild, the deceased Elden and Billie Harrild,
and Billie's estate. Only Vezey contested the action. Green's
complaint stated that she had been given Elden and Billie's
interest in the property through a parol gift, and that her
possession had at all times been open, notorious, and hostile to
the claims of all others. At trial, Green claimed ownership of the
bluff property by adverse possession. Both parties presented
detailed witness testimony regarding the area used by Green, and
Green presented two witnesses to attest to the duration and nature
of her use. After four days of trial, Superior Court Judge Richard
D. Savell held that Green had by adverse possession acquired title
to the entire bluff area. Vezey appeals.
III. STANDARD OF REVIEW
We review the trial court's findings of fact under the
"clearly erroneous"standard. [Fn. 1] Under this standard, we will
reject a factual finding only if we are "left with the definite and
firm conviction on the entire record that a mistake has been
committed."[Fn. 2] In addition, we have stated that "[w]hen a
trial court's decision of a factual issue depends largely on
conflicting oral testimony, the trial court's competence to judge
credibility of witnesses provides even a stronger basis for
deference by the reviewing court."[Fn. 3]
We use our independent judgment in reviewing the trial
court's legal analysis, [Fn. 4] and adopt "the rule of law that is
most persuasive in light of precedent, reason, and policy."[Fn. 5]
Our review of the denial of a motion for summary judgment is de
novo. [Fn. 6]
IV. DISCUSSION
We must consider three sets of issues. First, whether
Green has met the requirements for adverse possession; second,
whether the alleged parol gift affects her adverse possession
claim; third, procedural issues raised by Vezey.
A. Adverse Possession
Under AS 09.10.030, Green may claim title to the bluff
property by adverse possession only if she shows by clear and
convincing evidence [Fn. 7] that she has possessed the property for
ten consecutive years. [Fn. 8] We stated in Nome 2000 v.
Fagerstrom that "in order to acquire title by adverse possession,
the claimant must prove, by clear and convincing evidence, . . .
that for the statutory period his use of the land was continuous,
open and notorious, exclusive and hostile to the true owner."[Fn.
9] Continuity, notoriety, and exclusivity of use, we explained,
are "not susceptible to fixed standards,"but rather "depend on the
character of the land in question."[Fn. 10]
1. The statutory period
An adverse possession claimant must show that she
possessed the property for the statutory period of ten years. [Fn.
11] Judge Savell found that Green had used the bluff property from
1982 through the summer of 1993, in satisfaction of AS 09.10.030's
ten-year possession requirement for adverse possession. Because
Green presented the most evidence of consistent use for the period
running from early summer of 1983 to early summer of 1993, we base
our adverse possession analysis on those ten years.
Vezey challenges the evidentiary sufficiency of the
superior court's finding that Green used the property during this
time; he claims that Green admitted to being absent in 1991 or
1992. At trial, Green did say that she had missed a visit in one
year, and hesitated briefly as to whether that year was 1991, 1992,
or 1993. However, she concluded that the missed year was 1993,
seeming to place it by reference to the more memorable visit of the
following year. Art McTaggart also testified that he had worked
with Green in 1991, and Green later testified that she had filed an
insurance claim following a break-in to the house in 1992. Vezey's
own testimony and that of others who visited the bluff in 1993
indicate that this indeed was the year of Green's absence. This
evidence supports the conclusion that Green possessed the property
at least from early summer of 1983 to the same season in 1993, in
fulfillment of the statutory ten-year-period requirement.
2. Continuity
Vezey argues that because Green has spent only short
periods of time on the bluff property, her occupation has not been
continuous. In Nome 2000, we stated that continuity required "only
that the land be used for the statutory period as an average owner
of similar property would use it."[Fn. 12] This flexible standard
for continuous use in adverse possession claims is appropriate to
Alaska's geography and climate, and is established in our
jurisprudence. We found that the Nome 2000 claimants, a family
that had made periodic subsistence use of a rural parcel of land,
satisfied the continuity requirement for adverse possession. [Fn.
13] In reaching this conclusion, we cited with approval a Utah
case in which pasturing sheep for three weeks each year was found
sufficient to adversely possess land suitable only for grazing,
[Fn. 14] and a Michigan case in which six yearly visits to a
hunting cabin and some timber cutting were found sufficient to
possess wild and undeveloped land. [Fn. 15]
In addition, where land is best suited for seasonal use,
such use may satisfy the continuity requirement. [Fn. 16] The
trial court heard undisputed testimony that "[i]t'd take a fool to
live up there [on the bluff property] in the cold winter months."
Given the bluff's location and unsuitability for winter use, Green
used the property as an average owner of similar property would and
therefore meets the requirement for continuous use under Nome 2000.
[Fn. 17]
Vezey challenges the evidentiary sufficiency of the
superior court's factual findings, claiming that Green did not
actually use or improve the property prior to 1987. He implies
that Green testified that she did not work on the house in those
years; however, the testimony which he cites for this claim
establishes only that Green did do other things, such as camping,
visiting her grandmother, and leaving Alaska for the winter. In
addition, Vezey complains that there is no documentary evidence of
the work prior to 1987. Green and two other witnesses testified
that Green began working on the house in 1982 and continued through
1987 and beyond. Given this testimony and the trial court's
particular competence to assess the credibility of witnesses, its
conclusion that Green continuously used the property is not clearly
erroneous.
3. Exclusivity
Vezey argues that Earthmover's use of the bluff property
demonstrates that Green's claim was not exclusive. Green also
allowed her relatives to take rock from the bluff property. These
facts do not preclude a finding of exclusive use.
Like continuity, exclusivity requires "only that the land
be used for the statutory period as an average owner of similar
property would use it."[Fn. 18] In Nome 2000, the adverse
possessors of rural property allowed others to enter the land in
order to pick berries and fish, but excluded a group of campers who
took and burned the family's firewood. [Fn. 19] We held that
allowing berry-picking and fishing was "consistent with the conduct
of a hospitable landowner."[Fn. 20] We did not find, or even
suggest, that exclusivity of possession had been affected by the
campers' actions. Green's situation is closely analogous: She
allowed moderate use of her resources, but when uninvited
trespassers tried to excavate rock, she ordered them off the
property. As the superior court stated, Green "acted as an owner"
in directing the Earthmover crew to leave. This finding meets Nome
2000's requirement that an adverse possessor demonstrate
exclusivity by using the land "as an average owner of similar
property would use it."[Fn. 21]
4. Notoriety
We have stated that "the function of the notoriety
requirement is to afford the true owner an opportunity of notice."
[Fn. 22] This requirement is fulfilled when the record owner knew
or should have known of the adverse possession -- "what a duly
alert owner would have known, the owner is charged with knowing."
[Fn. 23] In this case, we need not examine the question of
constructive notice, because the record owners had actual notice.
During the statutory period, the record owners of the bluff
property were Billie, Elden, and John Harrild. It is undisputed
that all three owners knew of Green's presence on the bluff.
Therefore, the notoriety requirement has been met. [Fn. 24]
5. Hostility
In order to meet the hostility requirement, adverse
possession claimants must prove both that they acted as owners and
that they did not act with the true owner's permission. [Fn. 25]
As we have explained:
The determinative question is whether or not
the claimant acted toward the land as if he owned it. However, the
hostility requirement is not satisfied if the adverse claimant has
the record owner's permission to use the property. There is a
presumption that one who possesses or uses another's property does
so with the owner's permission. The adverse claimant may rebut
this presumption by showing that he was not on the owner's land
with permission, and that the record owner could have ejected him.[[Fn. 26]]
Because of her extensive work on the property, Green has
satisfied the first requirement of using the land as if she owned
it. She has also rebutted the presumption of permissive use. The
trial court found by clear and convincing evidence that Green held
the property as an owner, not a tenant or licensee. Her occupancy
was not permissive because it was not dependent on the consent or
permission of the Harrilds. Therefore, it was legally hostile to
the record owners.
As the superior court noted, the Earthmovers incident
presents particularly compelling evidence that Green's possession
was hostile to the interests of all others, including the Harrilds.
By excluding her grandparents' contractors from the property, Green
indicated that she claimed all rights to the property as her own;
she did not recognize any residual interest held by the Harrilds or
any subordination of her own title to theirs. [Fn. 27]
Vezey challenges the superior court's finding of
hostility on two grounds. First, he argues that the statute of
frauds bars transfers of real property by oral promise. Because
Green's claim is based on adverse possession and not on the
validity of the gift itself, the statute of frauds is irrelevant.
Second, he asserts that Green's possession could not have been
hostile because it was permissive. Vezey's evidence in support of
this claim is unpersuasive: He wrongly claims that Green herself
testified that her occupancy was permissive, and inaccurately
implies that the superior court reached the same conclusion. We
reject these challenges, and affirm the superior court's finding of
hostile possession.
Because Green demonstrated all of the elements of adverse
possession, Judge Savell properly concluded that she has
established title to the bluff property. In the next section, we
will consider how the alleged parol gift affects her legal claims.
B. The Alleged Parol Gift Reinforces Green's Adverse
Possession Claim.
Vezey argues that because Green held the bluff property
as a gift from her grandparents, her possession was permissive.
Therefore, he claims, she cannot meet the hostility requirement for
adverse possession. We reject this argument because possession of
land based on a gift is not the same as possession by permission of
the true owner. A donee who accepts a gift of land asserts a
property right independent of the record owner's. The possessor's
use of land in these circumstances is not permissive because the
possessor's claim is not subordinate to the record owner's title;
it is instead an assertion of ownership in the possessor's own
right.
Almost all state courts concur that land transferred by
parol gift may become the donee's property through adverse
possession. [Fn. 28] Most require that claimants prove the donor's
intent to transfer ownership by clear and convincing evidence. [Fn.
29] This focus on the record owner's intent is in keeping with our
own cases requiring adverse possession claimants to prove that
record owners did not intend to permit use of the land by the
claimant. [Fn. 30]
When a record owner gives property as a gift, the gift
strengthens the possessor's claims to the property by establishing
that the possessor claims full ownership, and that the record owner
knows of her claim. We conclude that a parol gift of land, when
proven by clear and convincing evidence, establishes two
presumptions helpful to the adverse possession claimant. First,
the donee's claim to the property is presumptively hostile to the
donor. As we have explained of the relationship between buyers and
sellers of land, "once the grantor has purported to convey
property, neither he nor his grantee believe that the grantee's
possession is subordinate to the grantor's title."[Fn. 31]
Similarly, when a gift has been made, and both the record owner and
the possessor believe that the possessor owns the property, the
possessor's claim is hostile.
Second, when a possessor's claim to property is founded
on a gift from the record owner, we will presume that the notoriety
requirement has been satisfied. "The function of the notoriety
requirement is to afford the true owner an opportunity for notice."
[Fn. 32] When the record owner herself gave the property away,
such notice may be presumed. [Fn. 33]
In its decision below, the trial court did not determine
whether the alleged initial gift of land had taken place, although
its findings strongly suggest that a gift was made. [Fn. 34]
Because Green has made the stronger showing necessary to prove
adverse possession without a gift, she would necessarily also meet
the lower threshold for adverse possession based on a gift. [Fn.
35]
C. Boundaries of the Contested Property
The superior court found by clear and convincing evidence
that Green adversely possessed a parcel defined by a telephone line
to the north, Shaw Creek to the east, Old Richardson Highway to the
south, and a line 300 feet from the house to the west. The parcel
is rectangular, with the house closest to the northern border and
roughly equidistant from the east and west borders. To the south
and east, the land slopes and becomes a cliff descending to Shaw
Creek on the east and Old Richardson highway on the south.
Vezey argues that the area defined by the superior court
was not adversely possessed by Green. He maintains that the
court's reliance on "natural boundaries"to define the property is
without legal precedent, that the area defined by the court
includes land not "actually possessed"by Green, and that the
evidence was insufficient to support the court's findings.
Judge Savell's use of the road, creek, and telephone line
as boundaries poses no legal problem in itself. Natural barriers
such as rivers may serve as boundaries in adverse possession cases.
[Fn. 36] Vezey presents no argument why these "natural boundaries"
are themselves objectionable.
The more serious issue raised by Vezey is whether Green
actually possessed all of the land enclosed by those boundaries.
Courts may look to a number of factors in determining what area of
land a claimant has actually possessed. Evidence of actual
possession must be sufficient to alert a reasonably diligent owner
to the possessor's exercise of dominion and control. [Fn. 37]
Visible evidence of use, such as occupation, fencing, and
construction of permanent improvements, provides particularly
compelling evidence of actual possession. [Fn. 38] The threshold
for legal sufficiency of such physical acts as proof of possession,
however, varies with the character of the land. [Fn. 39] Other
factors, such as the possessor's exclusion of other people from the
property, [Fn. 40] community repute, [Fn. 41] the intent of the
adverse possessor, [Fn. 42] and the extent of the possessor's use
as perceived by the record owner [Fn. 43] may all be relevant to a
determination of actual possession. Such evidence is particularly
relevant in this case because Green's possession was predicated on
a gift; the court found that the record owners recognized her
property claim to the bluff during the adverse possession period.
The record does not, however, offer clear evidence of where Green
or the record owners believed the boundaries of the bluff property
to lie. Our inquiry will therefore focus on the physical indicia
of use as well as the apparent intent of Green and the record
owners. We note that an adverse possessor may claim title only to
that area actually possessed for the full statutory period, from
the first year to the last: While evidence from later years is
relevant to continuity of use, the adverse possessor may not rely
on evidence from later years to expand the boundaries of her claim.
1. North of the house
The trial court found that Green had used and adversely
possessed the land between the house and a telephone line to the
north. This conclusion was supported by the evidence, and was not
clearly erroneous. To the immediate north of the house, Green
built the structure housing her electrical generator, installed a
propane tank, and stored gardening supplies. She also cleared
undergrowth from the woods as far as the phone line, and when the
telephone poles were replaced, arranged to haul out the old logs to
use as construction material. In the area between the house and
the telephone line, to both the northeast and northwest of the
house, she raised chickens in a movable pen. The telephone line
was also the border of the land originally held by the Harrilds;
the record contains no indication that they intended to give Green
less than the full northern portion of the bluff.
2. East of the house
Green's use of the eastern area of the claimed property
was also sufficient to demonstrate actual use for purposes of
adverse possession. To the immediate east of the house, Green
planted a garden. Further out, at a distance of some forty feet
from the house, she put in fruit trees and perennials. She also
cleared a trail leading from the house southeast to the edge of the
bluff. In the northeast area of the bluff, she set up a picnic
table and bench, and used the area for outdoor lunches. In
addition, Green extracted rock from the eastern bluff throughout
the adverse possession period. The extraction areas were in the
northeast corner of the property, at the top of the bluff, and in
the southeast corner at the bottom of the bluff.
A neighbor offered strong testimony that the "bluff side
of Shaw Creek"overlooking Billie Harrild's house -- an area
defined by Green's claimed eastern border -- was locally reputed to
belong to Green, and Green testified that she believed her
grandmother had given her "that piece of the [family's] property
across from Shaw Creek." In Bentley Family Trust v. Lynx
Enterprises, we found that an adverse possessor took title to
property bordered by a highway and a slough, in part because the
record owner and adverse possessor had treated the highway and
slough as boundaries enclosing the possessor's unified parcel of
property. [Fn. 44] Following Bentley Family Trust, evidence that
Green, the record owners, and others in the community believed that
Green owned land bordered by Shaw Creek weighs significantly in
favor of her actual possession claim for this part of the property.
Much of the eastern section of the property is a steep
slope descending to Shaw Creek. As Vezey's engineer testified, the
property is difficult to use; he suggested that a landowner's use
for the area might reasonably be limited to toboggan runs. Because
the actual use required of adverse possessors varies with the
nature of the property, [Fn. 45] we conclude that Green's
activities on the claimed land to the east of the house are
sufficient to show actual use, and that Judge Savell correctly
awarded her the eastern area of the bluff property.
3. South of the house
Green's use of the land between the house and the Old
Richardson Highway to the south was less extensive than her use of
the eastern area. Given the character of the land, however, her
activities are still sufficient to show actual use. Like the
eastern side of the property, the area to the south is a bluff face
descending steeply to a natural boundary: the old Richardson
highway. [Fn. 46] Unlike the eastern area, there is not a
significant flat area between the house and the slope; Ken Colette
indicated that the steep drop-off began only about thirty-five feet
from the house. As was discussed above, Green extracted rock from
the southeast corner of the property, at the base of the bluff. In
addition, she cleared trees to the south of the cabin in order to
see the Alaska Range from her house. Over a period of years, she
enlarged the cleared area to the southwest in order to bring more
mountain peaks into view. Green testified that she had originally
planned to plant lilac bushes along the cleared southern slope, but
decided to keep the natural foliage because she "didn't want to
look out on anything that looked citified like that." Given the
rugged nature of the bluff's south slope, Green's activities in
clearing trees to the south and southwest and quarrying for rock to
the southeast are sufficient to support the trial court's finding
that she adversely possessed the area.
4. West of the house
The superior court found that Green had by adverse
possession established title to property extending 300 feet to the
west of the house. Although the court did not specify what
evidence of actual use supported its conclusion, the record
contains evidence that Green used at least some of the area to the
west of the house. There is also some indication that Green
believed herself to be the owner of land extending to the western
end of her grandparents' lot: In the 1980s, she looked into
purchasing the adjacent land to the west. However, it is not clear
which, if any, of Green's physical uses supports the superior
court's finding that her possession extended 300 feet west from the
house. Therefore, we remand the case for additional findings
supporting the trial court's conclusion, or for reconsideration of
the western boundary of Green's property.
Green and other witnesses testified to three uses of the
land to the west of the house. To the southwest, Green cleared
trees to improve the view from the house. To the northwest, Green
testified that she raised chickens and turkeys. Nothing in the
record indicates how far to the west these activities extended. In
addition, beginning in 1982, Green cleared and used an old road
running across the western portion of the claimed property; she put
a chain across the road at the border of the neighboring property
and mounted "No Trespassing"signs. The road cut up from Old
Richardson Highway and across the neighboring property to reach the
top of the bluff. Green invested substantial time and labor in
clearing the access road: She testified that she removed trees
four inches in diameter from a swath wide enough to drive through.
The record suggests two possible locations for the access
road cleared by Green. Most testimony suggests that her road cuts
through the navigable flat land directly to the west of the house,
but other testimony indicates that the road runs along the
telephone line at the northern edge of the property. In addition,
it is unclear from the record whether the location of Green's chain
across the road correlates to the 300-foot boundary defined by the
court, or whether the chained section was in fact nearer or farther
than 300 feet from the house.
Nome 2000 v. Fagerstrom [Fn. 47] provides some benchmarks
for determining what actual use is sufficient to establish adverse
possession. In that case, we found that the claimants' use of the
north end of a disputed property constituted adverse possession,
while their use of the south end did not. [Fn. 48] The possessors
had built structures, planted trees, and resided on the north end
of the property, [Fn. 49] but in the south they had only used pre-
existing trails in connection with subsistence and recreation,
picked up litter, and allegedly placed stakes at the corners of the
claimed property. [Fn. 50] Green's use of the western area of the
bluff property goes beyond the use found inadequate in Nome 2000:
She cleared a road through the woods, marked her border clearly
with a chain, cleared trees, and raised poultry. Depending how far
west these activities extended, they may be sufficient to support
the court's award of property extending 300 feet west of the house.
We remand this issue to the trial court for further findings
regarding Green's actual use of that area.
D. Procedural Issues
1. Admission of exhibit
Vezey complains that, "[d]uring the course of the trial,
the court, on its own motion, admitted a lien document marked
Exhibit AD by the defense." Neither party had offered this exhibit
into evidence, and Vezey objected to its admission at the time.
Vezey argues that no case law permits a judge to admit evidence
that has not been offered, and that Judge Savell's action was that
of an advocate, not an impartial adjudicator. [Fn. 51]
Civil Rule 43.1(c) states that "[e]xhibits properly
marked for identification may be admitted into evidence upon the
motion of any party or upon the court's own motion." Pursuant to
this rule, Judge Savell permissibly admitted the challenged
exhibit. He did not err in doing so.
2. Summary judgment
Prior to trial, Vezey moved for summary judgment, arguing
that the statute of frauds, AS 09.25.010, barred Green from
claiming title to land by oral gift. In his later reply to the
opposition to motion for summary judgment, he expanded his claim to
argue that because Green received the property as a gift, her
possession was permissive and therefore could not be hostile. The
superior court denied his motion. Vezey appeals the denial,
reiterating his argument that an oral gift cannot be the predicate
for an adverse possession claim. As discussed above, a gift does
not prevent a donee possessor from being hostile to the donor
record owner for purposes of an adverse possession claim.
Therefore, we find that the superior court correctly denied Vezey's
motion.
V. CONCLUSION
Because Green has proved the elements of adverse
possession, we hold that she has established title to at least part
of the claimed property. The alleged parol gift of land from her
grandmother does not defeat her claim, but rather strengthens it.
Because Green has made the more difficult showing for ordinary
adverse possession, she would also meet the lower standard for
adverse possession arising from a gift. However, it is not clear
that Green has demonstrated actual possession of the entire area
awarded by the superior court. Although we AFFIRM the award as to
the north, east, and south areas of the property, we REMAND for
further findings regarding the land to the west of the house.
MATTHEWS, Justice, with whom EASTAUGH, Justice, joins, dissenting.
The principle that should govern this case is that the
boundaries of property claimed by adverse possession not under
color of title must be established by visible evidence of
possession for the statutorily required ten-year period. The
judgment of the superior court violates this principle in two ways.
First, the acts that give rise to the visible evidence of
possession on which the court relied to establish boundaries were
carried out less than ten years before the end of the ten-year
period. Second, there was no visible evidence of possession
extending to the southern or western boundaries which the court
ordered established. Therefore the judgment of the court must be
reversed and this case should be remanded with instructions to the
court to draw boundaries that are coterminous with acts creating
visible evidence of possession that took place ten years or more
before the end of the statutory period.
It is well established that the extent of land adversely
possessed not under color of title must be defined by visible
possession of the land for the statutory period. [Fn. 1] The
authoritative treatise Thompson on Real Property notes that the
possession must, among other elements, be "visible""during the
time necessary to create a bar under the statute of limitations."
[Fn. 2] Thompson goes on to observe that
the extent of the ground claimed must be
indicated in some way and be of such character as to clearly show
that such ground is claimed by the party asserting to the right
thereto. There must be such marks as indicate that the land is
under the actual control of the party claiming it.[ [Fn. 3]]
In order to determine whether land has been adversely
possessed for at least ten years there must be a date that ends the
ten-year period. From this a beginning date can be calculated.
Activities demonstrating possession that take place before the
beginning date can serve to establish the boundaries of the
adversely possessed land, but those that come after the beginning
date cannot for they do not meet the ten-year requirement. In this
case the superior court appears to have settled on the end of the
summer of 1993 as the ending date of the ten-year period. [Fn. 4]
Therefore the beginning of the ten-year period was the end of the
summer of 1983. Activities before then can serve as boundary
markers, but activities occurring after then may not because they
do not satisfy the ten-year statute.
The record shows that Green's activities on the land in
1982 consisted of clearing the pre-existing access road from the
west, clearing a pre-existing trail that went to the bluff at the
east of the property, and doing "some"clearing of the property.
In addition Green placed a chain at some unspecified point across
the road from the west and hung a "no trespassing"sign from it.
In 1983 Green did "more"land clearing and sold "very small
quantities"of rock from the bottom of the Shaw Creek bluff. Given
an end-of-summer-of-1993 ending date for the ten-year adverse
possession period, the boundaries of the adversely possessed
property must be limited to the areas encompassed by these
activities.
But the trial court did not limit itself to the 1982 and
1983 activities in fixing the boundaries of the property. Instead,
the court relied on clearing, construction, and gardening
activities that took place in 1984 and later, even though these
encompassed new land. [Fn. 5] The court erred when it relied on
"expanded"activities that occurred after the summer of 1983 in
fixing the boundaries. The evidence of possession resulting from
post-1983 activities does not meet the ten-year requirement of
AS 09.10.030.
Moreover, even if all of Green's activities, no matter
when they occurred, were used to measure the boundaries on the
land, the west and south boundaries established by the court would
still not be justified. Most of the approximately twelve acres
awarded by the court lie to the south, southwest, and west of the
house. Apart from the cleared area where the house sits, said to
be no more than one-half of an acre, no other work was done to the
southwest. To the west, all that was done was clearing the road,
stretching a chain across it, and putting up a no trespassing sign.
The road work can justify awarding Green an easement by
prescription in the road where it crosses land not otherwise
possessed by her. The clearing around the house to the south and
west can justify awarding land so cleared to her. But the south
and west boundaries are located hundreds of feet away from this
clearing. As to the land to the south, southwest, and west between
this clearing and these boundaries there is simply no evidence of
visible acts of possession.
In summary, in deciding the boundaries of the land
adversely possessed by Green the court impermissibly relied on
activities that did not occur ten years or more before the end of
the statutory period. In addition, the boundaries as set by the
court encompassed much land to the south, southwest, and west that
was never actually possessed by Green by any activities indicating
her control, no matter when those activities might have taken
place.
For these reasons I would reverse the judgment of the
superior court and remand with directions to redraw the boundaries
to encompass only the land that she actually possessed for the
applicable ten-year period.
FOOTNOTES
Footnote 1:
Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 833
(Alaska 1974).
Footnote 2:
Alaska Foods, Inc. v. American Mfrs. Mut. Ins. Co., 482 P.2d
842, 848 (Alaska 1971).
Footnote 3:
Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1118 n.5 (Alaska 1996).
Footnote 4:
See Walsh v. Emerick, 611 P.2d 28, 30 (Alaska 1980).
Footnote 5:
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 6:
See Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d
654, 656 n.3 (Alaska 1991).
Footnote 7:
See Curran v. Mount, 657 P.2d 389, 391-92 (Alaska 1982).
Footnote 8:
AS 09.10.030 states:
A person may not bring an action for the
recovery of real property, or for the recovery of the possession of
it unless the action is commenced within 10 years. An action may
not be maintained for the recovery unless it appears that the
plaintiff, an ancestor, a predecessor, or the grantor of the
plaintiff was seized or possessed of the premises in question
within 10 years before the commencement of the action.
This court has interpreted the statute as creating a time
period for adverse possession claims absent color of title. See
Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 830 n.13
(Alaska 1974).
Footnote 9:
799 P.2d 304, 309 (Alaska 1990) (internal quotations and
citations omitted).
Footnote 10:
Id.; see also 3 Am. Jur. 2d Adverse Possession sec. 22, 112-13
(1986) (requirements for finding of actual possession vary with the
character of the property).
Footnote 11:
See AS 09.10.030.
Footnote 12:
799 P.2d at 309. Continuous possession must also be
uninterrupted in order to ripen into adverse possession. Alaska
Nat'l Bank v. Linck, 559 P.2d 1049, 1052 (Alaska 1977). The
superior court found that Green's possession had been interrupted
for one day by the Earthmover equipment and workers, but that this
did not destroy her claim because the interruption was of such
short duration and because Green acted as an owner in ordering them
off the property. Vezey does not challenge this conclusion.
Footnote 13:
799 P.2d at 309-10. Alaska National Bank v. Linck, 559 P.2d
1049 (Alaska 1977) includes discussion, germane to this case, of
evidence that supports a finding of continuous actual possession.
Linck concerned an undeveloped parcel located very near to Green's
bluff along the Richardson Highway. Id. at 1049. In that case, we
found that an adverse possessor who only periodically visited a
property and who never erected a building there, but who did
cultivate a garden during two summers, installed a power line and
access road, put up a barricade on the road, gathered litter, and
interacted as an owner with state agencies and a public utility
company, had actually possessed and established a claim to the 44
acre lot. Id. at 1049, 1053-54. Our conclusion in that case also
relied on community repute. Id. at 1054.
Footnote 14:
Id. at 309 (citing Cooper v. Carter Oil Co., 316 P.2d 320
(Utah 1957)).
Footnote 15:
Id. at 309 (citing Monroe v. Rawlings, 49 N.W.2d 55, 56 (Mich.
1951)).
Footnote 16:
See 3 Am. Jur. 2d Adverse Possession sec. 83 (1986) (seasonal
use
adequate for showing continuity in adverse possession cases). In
Nome 2000, although we did not explicitly base our holding on the
property's seasonal suitability for use, we noted that the disputed
parcel was best suited to summer uses, and that little or no use
was made of the property in the winter months. Nome 2000, 799 P.2d
at 307.
Footnote 17:
See also Linck, 559 P.2d at 1052 (citing adverse possession
claimant's periodic visits to a rural property, work clearing the
land and keeping it clean, and construction and maintenance of
barricades as evidence of continuous use).
Footnote 18:
Nome 2000, 799 P.2d at 309; see also Peters, 519 P.2d at 831
(possessor did not disrupt his exclusive possession by allowing
visitors to dig for clams).
Footnote 19:
799 P.2d at 308, 310.
Footnote 20:
Id. at 310.
Footnote 21:
Id. at 309.
Footnote 22:
Id. at 309 n.7.
Footnote 23:
Shilts v. Young, 567 P.2d 769, 776 (Alaska 1977), quoting
Linck, 559 P.2d at 1053.
Footnote 24:
Because the notice requirement pertains only to the record
owner, the adverse possessor's title does not directly depend on
whether parties other than the record owner are on notice of the
adverse possession. A purchaser of land from the record owner does
not have a cause of action against an adverse possessor whose title
has already ripened; rather, the purchaser's remedy lies in an
action against the person who sold the adversely possessed land.
See generally 17 Richard A. Lord, Williston on Contracts sec. 50,
274-583 (4th ed. 2000).
Footnote 25:
See Smith v. Krebs, 768 P.2d 124, 126 (Alaska 1989).
Footnote 26:
Id. (internal quotations and citations omitted).
Footnote 27:
See Hubbard v. Curtiss, 684 P.2d 842, 848 (Alaska 1984)
(discussing acknowledgment that grantee's title is not subordinate
as element of hostility in grantor-grantee relationship).
Footnote 28:
See V. Woerner, Annotation, Adverse Possession Under Parol
Gift of Land sec. 2, 43 A.L.R. 2d 6 (1955); 3 Am. Jur. 2d Adverse
Possession sec. 219 (1986). Only Virginia has adopted a rule that
adverse possession cannot be founded on a parol gift of land.
Clarke v. McClure, 51 Va. (10 Graft) 305 (1853).
Footnote 29:
See Eldridge v. Loftis, 723 So. 2d 562, 564 (Ala. 1998);
Andreotti v. Andreotti, 36 Cal. Rptr. 709, 713 (Cal. App. 1964);
Mertz v. Arendt, 564 N.W.2d 294, 296 (N.D. 1997); Barnwell v.
Barnwell, 476 S.E.2d 492, 497 (S.C. 1996).
Footnote 30:
See Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1120 (Alaska 1996);
Swift v. Kniffen, 706 P.2d 296, 303-04 (Alaska 1985).
Footnote 31:
See Hubbard, 684 P.2d at 848 (finding that grantee purchaser
was an adverse possessor where he took possession of one property,
but inadvertently accepted a deed describing a second property).
Footnote 32:
See Nome 2000, 799 P.2d at 309, n.7.
Footnote 33:
Cf. Humphrey v. Harrison, 646 S.W.2d 340, 342 (Ky. 1983)
(holding that parol gift itself constitutes notice to donor that
occupant's possession is adverse).
Footnote 34:
For example, the court found that the record owners
acknowledged before the 10-year period had run that Green owned the
property.
Footnote 35:
We note that some states have adopted an alternate theory to
support parol gift donees' claims to real property. Following this
theory, a claimant who shows evidence of (1) the donor's intent to
make a gift and (2) her own reliance on the gift in making valuable
improvements to the property may establish ownership despite the
statute of frauds. See, e.g., Locke v. Pyle, 349 So. 2d 813, 815
(Fla. 1977); Gran v. Gran, 290 N.W. 241, 242-03 (N.D. 1940);
Holohan v. McCarthy, 281 P. 178, 181 (Or. 1929); Adams v. Adams,
205 S.W.2d 801, 802 (Tex. 1947); Kelly v. Crawford, 88 N.W. 296,
299 (Wis. 1901). This theory was not argued by either party or
considered by the superior court below, and we therefore do not
reach it.
Footnote 36:
See Bentley Family Trust v. Lynx, 658 P.2d 761, 769 (Alaska
1983).
Footnote 37:
See Nome 2000, 799 P.2d at 311.
Footnote 38:
See id.; Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1119 (Alaska
1996).
Footnote 39:
See Nome 2000, 799 P.2d at 309. At trial, Green argued that
her legal claim to possess the property should not be diminished by
the fact that she maintained many natural features of the bluff
landscape. She objected vehemently to a legal standard that "means
you possess something because you totally destroy it." Green's
conservation-oriented uses of the property, which included planting
indigenous rather than non-native plants and thinning trees and
undergrowth rather than clearing them entirely, have the same legal
weight as would more transformative or destructive uses: They are
significant to the extent that they did, or should have, alerted
the record owner to the adverse possession.
Footnote 40:
See Tenala, Ltd., 921 P.2d at 1119.
Footnote 41:
See Nome 2000, 799 P.2d at 309.
Footnote 42:
See 3 Am. Jur. 2d Adverse Possession sec. 19 (1986).
Footnote 43:
In Bentley Family Trust v. Lynx, 658 P.2d 761, 769 (Alaska
1983), a record owner argued that adverse possessors had actually
possessed only one of two adjoining lots, because the adverse
possessors had "acted as the true owners"by leasing one lot, but
not the other. Id. at 768. We rejected this argument on the
grounds that the record owner herself had treated the two lots as
unified property, and had never prior to the lawsuit recognized any
invisible line dividing what she commonly
referred to as the property "across the Steese [Highway]". In
actuality, the highway to the east and the slough to the west
provided easily identifiable natural boundaries marking the
triangle property and were treated as such by the parties involved.
Id. at 769.
Footnote 44:
658 P.2d 761, 769 (Alaska 1983).
Footnote 45:
See 3 Am. Jur. 2d Adverse Possession sec. 22 (1986).
Footnote 46:
The record contains no direct evidence as to whether Green's
grandparents intended to give Green the southern edge of the
property as part of the alleged gift. However, the superior court
heard testimony on community repute, based in part on the
witnesses' conversations with Billie Harrild, that "Angela's place"
consisted of "the bluff itself." It seems likely that "the bluff"
would include not only the top but the steep sloping sides which
define a bluff, and would therefore encompass both the east and
south portions of the claimed property.
Footnote 47:
799 P.2d 304 (Alaska 1990).
Footnote 48:
Id. at 310-11.
Footnote 49:
Id. at 310.
Footnote 50:
Id. at 311.
Footnote 51:
Vezey cites Chugach Electrical Ass'n v. Great Northern Corp.,
562 P.2d 1053, 1061 (Alaska 1977), a case in which this court found
that a trial judge abused discretion by considering after trial
evidence that had never been introduced. Judge Savell's
introduction of evidence during trial is clearly distinguishable.
FOOTNOTES (Dissent)
Footnote 1:
In fact the, principal feature that distinguishes color of
title cases from those adverse possession cases not involving color
of title -- apart from the different statutory periods -- is that
in color of title cases the description in the document of title
defines the boundaries of the property possessed, whereas in non-
color of title cases boundaries are defined by the extent of the
actual possession. We made this point in Hubbard v. Curtiss, 684
P.2d 842, 847 (Alaska 1984): "The supposed conveyance must
accurately describe the land claimed and it is the description, not
the physical use of the land by the claimant, that determines the
boundaries of the land that may be acquired by adverse possession
under color of title."
Footnote 2:
10 Thompson on Real Property sec. 87.01, at 75 (David A.
Thomas
ed., 2d ed. 1998).
Footnote 3:
Id. sec. 87.06, at 122.
Footnote 4:
The court did not make formal written findings. Instead, the
court's oral decision serves to meet the findings and conclusions
requirement of Civil Rule 52(a). The court did not directly say
that the summer of 1993 would be the end of the ten-year period,
but I believe that is the import of the court's remarks:
The boundaries of the times of evidence,
with minor exception, are the periods from 1982 through the summer
of 1993 and that period of time primarily is all evidence presented
by the plaintiff and of events recounted by plaintiff concerning
that property. I say with rare exception because with the
exception of what we can call "Earthmover's evidence,"there is no
evidence presented by the defense that falls within the statutory
period.
Footnote 5:
I set out here the transcript of the court's findings
concerning Green's activities from 1984 through 1991.
But continuing with the facts. In 1984,
spring and summer, Ms. Green continued her activities: sleeping on
the bluff in a trailer, setting it up on the bluff, clearing, hand
excavation, excavation of the foundation with employees hired from
the Delta area. Art McTaggart, brother or cousin James, Jeff
Scully, Cummings cleared enough to be safe from fire and this --
and, in this regard, I find it significant that Ms. Green dealt
with public officials and, in particular, the Delta Fire Department
or fire authorities that she had come up to the property to advise
the necessary distance to clear trees to have a practical fire
break. Trees were cut on the south and east of the property -- of
the house to improve her road, yet to contain -- continue
invisibility from the road below. The absence of heavy equipment
by her wish caused the work to be longer and harder but, through
use of axes, chain saws, trucks for stumps, the area of the house
and, then, the back area for the drive and turn-around area was
cleared. It was in these years, through the mid- and late-'80's,
that the chicken and turkeys were put in coops and chicken wire on
the property and, as she expanded her activities out backwards and
forwards, to clear woods of dead trees and thin the area.
Trees were cleared through to the
telephone line which is what's commonly called the parallel
east/west road to the north of the structure.
Block work went in in 1985. A contractor
was hired with whom she eventually -- whose services she eventually
terminated. In '85 she went in early enough to go in by
snowmachine, I believe, and in, as Mr. McTaggart testified, on
numerous years he would open the house after it was constructed for
Ms. Green by snowmachine and close it down afterwards.
In 1986, waiting for Mr. Cummings to
continue -- or to build the foundation and she eventually
terminated him and hired Mutt Montgomery to build in '87. In 1986
to the summer of '87, she wintered in Fairbanks and snowmachined
into the property during the winter. Construction began in 1987.
In 1987 she began to live in the rough structure; worked on windows
and doors, a pantry; hired a cabinet man for the kitchen in 1988.
Prepare area for the propane stove, cabinet and wood stove and
lived in Fairbanks in the winter of '87, visiting her property also
during the winter. In 1988 the closets went in, shelving and other
activities. The turkeys, as I mentioned before, were added in '88.
In 1985 or 1986 a telephone was put in and, although in later
years, there might be some uncertainty, it was listed in the
directory at the time. A garden was planted, fruit trees were
planted and trees were thinned in areas that are still visible in
the 1993 photo, AB. (Emphasis added.)
