William M. Stein of counsel (Hood & Stein, attorneys), for appellant.

Andrew C. Bisulca of counsel (Mann, Mann & Lewis, P. C., attorneys), for Helen V. Ackley, respondent.

Jeffrey J. Ellis of counsel (Quirk & Bakalor, P. C., attorneys), for Ellis Realty, respondent.

Rubin, J.

Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years. Plaintiff promptly commenced this action seeking rescission of the contract of sale. Supreme Court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in this jurisdiction.

The unusual facts of this case, as disclosed by the record, clearly warrant a grant of equitable relief to the buyer who, as a resident of New York City, cannot be expected to have any familiarity with the folklore of the Village of Nyack. Not being a “local”, plaintiff could not readily learn that the home he had contracted to purchase is haunted. Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic, having reported their presence in both a national publication (Readers’ Digest) and the local press (in 1977 and 1982, respectively), defendant is estopped to deny their existence and, as a matter of law, the house is haunted. More to the point, however, no divination is required to conclude that it is defendant’s promotional efforts in publicizing her close encounters with these spirits which fostered the home’s reputation in the community. In 1989, the house was included in five-home walking tour of Nyack and described in a November 27th newspaper article as “a riverfront Victorian (with ghost).” The impact of the reputation thus created goes to the very essence of the bargain between the parties, greatly impairing both the value of the property and its potential for resale. The extent of this impairment may be presumed for the purpose of reviewing the disposition of this motion to dismiss the cause of action for rescission and represents merely an issue of fact for resolution at trial.

While I agree with Supreme Court that the real estate broker, as agent for the seller, is under no duty to disclose to a potential buyer the phantasmal reputation of the premises and that, in his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn’t a ghost of a chance, I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his down payment. New York law fails to recognize any remedy for damages incurred as a result of the seller’s mere silence, applying instead the strict rule of caveat emptor. Therefore, the theoretical basis for granting relief, even under the extraordinary facts of this case, is elusive if not ephemeral.

“Pity me not but lend thy serious hearing to what I shall unfold” (William Shakespeare, Hamlet, Act I, Scene V [Ghost]).

From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: “Who you gonna’ call?” as a title song to the movie “Ghostbusters” asks. Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale. It portends that the prudent attorney will establish an escrow account lest the subject of the transaction come back to haunt him and his client–or pray that his malpractice insurance coverage extends to supernatural disasters. In the interest of avoiding such untenable consequences, the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.

It has been suggested by a leading authority that the ancient rule which holds that mere nondisclosure does not constitute actionable misrepresentation “finds proper application in cases where the fact undisclosed is patent, or the plaintiff has equal opportunities for obtaining information which he may be expected to utilize, or the defendant has no reason to think that he is acting under any misapprehension” (Prosser, Torts § 106, at 696 [4th ed 1971]). However, with respect to transactions in real estate, New York adheres to the doctrine of caveat emptor and imposes no duty upon the vendor to disclose any information concerning the premises unless there is a confidential or fiduciary relationship between the parties or some conduct on the part of the seller which constitutes “active concealment” (see, 17 E. 80th Realty Corp. v 68th Assocs., – AD2d – [1st Dept, May 9, 1991] [dummy ventilation system constructed by seller]; Haberman v Greenspan, 82 Misc 2d 263 [foundation cracks covered by seller]). Normally, some affirmative misrepresentation (e.g., Tahini Invs. v Bobrowsky, 99 AD2d 489 [industrial waste on land allegedly used only as farm]; Jansen v Kelly, 11 AD2d 587 [land containing valuable minerals allegedly acquired for use as campsite]) or partial disclosure (Junius Constr. Corp. v Cohen, 257 NY 393 [existence of third unopened street concealed]; Noved Realty Corp. v A. A. P. Co., 250 App Div 1 [escrow agreements securing lien concealed]) is required to impose upon the seller a duty to communicate undisclosed conditions affecting the premises (contra, Young v Keith, 112 AD2d 625 [defective water and sewer systems concealed]).

Caveat emptor is not so all-encompassing a doctrine of common law as to render every act of nondisclosure immune from redress, whether legal or equitable. “In regard to the necessity of giving information which has not been asked, the rule differs somewhat at law and in equity, and while the law courts would permit no recovery of damages against a vendor, because of mere concealment of facts under certain circumstances, yet if the vendee refused to complete the contract because of the concealment of a material fact on the part of the other, equity would refuse to compel him so to do, because equity only compels the specific performance of a contract which is fair and open, and in regard to which all material matters known to each have been communicated to the other” (Rothmiller v Stein, 143 NY 581, 591-592 [emphasis added]). Even as a principle of law, long before exceptions were embodied in statute law, the doctrine was held inapplicable to contagion among animals, adulteration of food, and insolvency of a maker of a promissory note and of a tenant substituted for another under a lease. Common law is not moribund. Ex facto jus oritur (law arises out of facts). Where fairness and common sense dictate that an exception should be created, the evolution of the law should not be stifled by rigid application of a legal maxim.

The doctrine of caveat emptor requires that a buyer act prudently to assess the fitness and value of his purchase and operates to bar the purchaser who fails to exercise due care from seeking the equitable remedy of rescission. For the purposes of the instant motion to dismiss the action pursuant to CPLR 3211 (a) (7), plaintiff is entitled to every favorable inference which may reasonably be drawn from the pleadings, specifically, in this instance, that he met his obligation to conduct an inspection of the premises and a search of available public records with respect to title. It should be apparent, however, that the most meticulous inspection and the search would not reveal the presence of poltergeists at the premises or unearth the property’s ghoulish reputation in the community. Therefore, there is no sound policy reason to deny plaintiff relief for failing to discover a state of affairs which the most prudent purchaser would not be expected to even contemplate.

The case law in this jurisdiction dealing with the duty of a vendor of real property to disclose information to the buyer is distinguishable from the matter under review. The most salient distinction is that existing cases invariably deal with the physical condition of the premises (e.g., London v Courduff, supra [use as a landfill]; Perin v Mardine Realty Co., 5 AD2d 685, affd 6 NY2d 920 [sewer line crossing adjoining property without owner’s consent]), defects in title (e.g., Sands v Kissane, 282 App Div 140 [remainderman]), liens against the property (e.g., Noved Realty Corp. v A. A. P. Co., supra), expenses or income (e.g., Rodas v Manitaras, supra [gross receipts]) and other factors affecting its operation. No case has been brought to this court’s attention in which the property value was impaired as the result of the reputation created by information disseminated to the public by the seller (or, for that matter, as a result of possession by poltergeists).

Where a condition which has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure constitutes a basis for rescission as a matter of equity. Any other outcome places upon the buyer not merely the obligation to exercise care in his purchase but rather to be omniscient with respect to any fact which may affect the bargain. No practical purpose is served by imposing such a burden upon a purchaser. To the contrary, it encourages predatory business practice and offends the principle that equity will suffer no wrong to be without a remedy.

Defendant’s contention that the contract of sale, particularly the merger or “as is” clause, bars recovery of the buyer’s deposit is unavailing. Even an express disclaimer will not be given effect where the facts are peculiarly within the knowledge of the party invoking it. Moreover, a fair reading of the merger clause reveals that it expressly disclaims only representations made with respect to the physical condition of the premises and merely makes general reference to representations concerning “any other matter or things affecting or relating to the aforesaid premises.” As broad as this language may be, a reasonable interpretation is that its effect is limited to tangible or physical matters and does not extend to paranormal phenomena. Finally, if the language of the contract is to be construed as broadly as defendant urges to encompass the presence of poltergeists in the house, it cannot be said that she has delivered the premises “vacant” in accordance with her obligation under the provisions of the contract rider.

To the extent New York law may be said to require something more than “mere concealment” to apply even the equitable remedy of rescission, the case of Junius Constr. Corp. v Cohen (257 NY 393, supra), while not precisely on point, provides some guidance. In that case, the seller disclosed that an official map indicated two as yet unopened streets which were planned for construction at the edges of the parcel. What was not disclosed was that the same map indicated a third street which, if opened, would divide the plot in half. The court held that, while the seller was under no duty to mention the planned streets at all, having undertaken to disclose two of them, he was obliged to reveal the third.

In the case at bar, defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public- at-large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee. It has been remarked that the occasional modern cases which permit a seller to take unfair advantage of a buyer’s ignorance so long as he is not actively misled are “singularly unappetizing” (Prosser, Torts § 106, at 696 [4th ed 1971]). Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.

Accordingly, the judgment of the Supreme Court, New York County (Edward H. Lehner, J.), entered April 9, 1990, which dismissed the complaint pursuant to CPLR 3211 (a) (7), should be modified, on the law and the facts, and in the exercise of discretion, and the first cause of action seeking rescission of the contract reinstated, without costs.

Smith, J., Dissenting.

I would affirm the dismissal of the complaint by the motion court.

Plaintiff seeks to rescind his contract to purchase defendant Ackley’s residential property and recover his down payment. Plaintiff alleges that Ackley and her real estate broker, defendant Ellis Realty, made material misrepresentations of the property in that they failed to disclose that Ackley believed that the house was haunted by poltergeists. Moreover, Ackley shared this belief with her community and the general public through articles published in Reader’s Digest (1977) and the local newspaper (1982). In November 1989, approximately two months after the parties entered into the contract of sale but subsequent to the scheduled October 2, 1989 closing, the house was included in a five-house walking tour and again described in the local newspaper as being haunted.

Prior to closing, plaintiff learned of this reputation and unsuccessfully sought to rescind the $650,000 contract of sale and obtain return of his $32,500 down payment without resort to litigation. The plaintiff then commenced this action for that relief and alleged that he would not have entered into the contract had he been so advised and that as a result of the alleged poltergeist activity, the market value and resaleability of the property was greatly diminished. Defendant Ackley has counterclaimed for specific performance.

“It is settled law in New York State that the seller of real property is under no duty to speak when the parties deal at arm’s length. The mere silence of the seller, without some act or conduct which deceived the purchaser, does not amount to a concealment that is actionable as a fraud. The buyer has the duty to satisfy himself as to the quality of his bargain pursuant to the doctrine of caveat emptor, which in New York State still applies to real estate transactions.” (London v Courduff, 141 AD2d 803, 804 , lv dismissed 73 NY2d 809 .)

The parties herein were represented by counsel and dealt at arm’s length. This is evidenced by the contract of sale which, inter alia, contained various riders and a specific provision that all prior understandings and agreements between the parties were merged into the contract, that the contract completely expressed their full agreement and that neither had relied upon any statement by anyone else not set forth in the contract. There is no allegation that defendants, by some specific act, other than the failure to speak, deceived the plaintiff. Nevertheless, a cause of action may be sufficiently stated where there is a confidential or fiduciary relationship creating a duty to disclose and there was a failure to disclose a material fact, calculated to induce a false belief. However, plaintiff herein has not alleged and there is no basis for concluding that a confidential or fiduciary relationship existed between these parties to an arm’s length transaction such as to give rise to a duty to disclose. In addition, there is no allegation that defendants thwarted plaintiff’s efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor.

Finally, if the doctrine of caveat emptor is to be discarded, it should be for a reason more substantive than a poltergeist. The existence of a poltergeist is no more binding upon the defendants than it is upon this court.

Based upon the foregoing, the motion court properly dismissed the complaint.

Mitchell W. Mandler and Patricia M. Silver of Smith & Mandler, Miami Beach, for petitioners.

Stanley M. Newmark, Joe N. Unger of the Law Offices of Joe N. Unger, Miami, and Joseph G. Abromovitz, Boston, Mass., for respondents.

Adkins, Justice.

We have before us a petition to review the decision in Johnson v. Davis, 449 So. 2d 344 (Fla. 3d DCA 1984), which expressly and directly conflicts with Banks v. Salina, 413 So. 2d 851 (Fla. 4th DCA 1982), and Ramel v. Chasebrook Construction Co., 135 So. 2d 876 (Fla. 2d DCA 1961). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and approve the decision of the district court.

In May of 1982, the Davises entered into a contract to buy for $310,000 the Johnsons’ home, which at the time was three years old. The contract required a $5,000 deposit payment, an additional $26,000 deposit payment within five days and a closing by June 21, 1982. The crucial provision of the contract, for the purposes of the case at bar, is Paragraph F which provided:

 

F. Roof Inspection: Prior to closing at Buyer’s expense, Buyer shall have the right to obtain a written report from a licensed roofer stating that the roof is in a watertight condition. In the event repairs are required either to correct leaks or to replace damage to facia or soffit, seller shall pay for said repairs which shall be performed by a licensed roofing contractor.

 

The contract further provided for payment to the “prevailing party” of all costs and reasonable fees in any contract litigation.

Before the Davises made the additional $26,000 deposit payment, Mrs. Davis noticed some buckling and peeling plaster around the corner of a window frame in the family room and stains on the ceilings in the family room and kitchen of the home. Upon inquiring, Mrs. Davis was told by Mr. Johnson that the window had had a minor problem that had long since been corrected and that the stains were wallpaper glue and the result of ceiling beams being moved. There is disagreement among the parties as to whether Mr. Johnson also told Mrs. Davis at this time that there had never been any problems with the roof or ceilings. The Davises thereafter paid the remainder of their deposit and the Johnsons vacated the home. Several days later, following a heavy rain, Mrs. Davis entered the home and discovered water “gushing” in from around the window frame, the ceiling of the family room, the light fixtures, the glass doors, and the stove in the kitchen.

Two roofers hired by the Johnsons’ broker concluded that for under $1,000 they could “fix” certain leaks in the roof and by doing so make the roof “watertight.” Three roofers hired by the Davises found that the roof was inherently defective, that any repairs would be temporary because the roof was “slipping,” and that only a new $15,000 roof could be “watertight.”

The Davises filed a complaint alleging breach of contract, fraud and misrepresentation, and sought recission of the contract and return of their deposit. The Johnsons counterclaimed seeking the deposit as liquidated damages.

The trial court entered its final judgment on May 27, 1983. The court made no findings of fact, but awarded the Davises $26,000 plus interest and awarded the Johnsons $5,000 plus interest. Each party was to bear their own attorneys’ fees.

The Johnsons appealed and the Davises cross-appealed from the final judgment. The Third District found for the Davises affirming the trial court’s return of the majority of the deposit to the Davises ($26,000), and reversing the award of $5,000 to the Johnsons as well as the court’s failure to award the Davises costs and fees. Accordingly, the court remanded with directions to return to the Davises the balance of their deposit and to award them costs and fees.

The trial court included no findings of fact in its order. However, the district court inferred from the record that the trial court refused to accept the Davises’ characterization of the roof inspection provision of the contract. The district court noted that if there was a breach, the trial court would have ordered the return of the Davises’ entire deposit because there is no way to distinguish the two deposit payments under a breach of contract theory. We agree with this interpretation and further find no error by the trial court in this respect.

The contract contemplated the possibility that the roof may not be watertight at the time of inspection and provided a remedy if it was not in such a condition. The roof inspection provision of the contract did not impose any obligation beyond the seller correcting the leaks and replacing damage to the facia or soffit. The record is devoid of any evidence that the seller refused to make needed repairs to the roof. In fact, the record reflects that the Davises’ never even demanded that the areas of leakage be repaired either by way of repair or replacement. Yet the Davises insist that the Johnsons breached the contract justifying recission. We find this contention to be without merit.

We also agree with the district court’s conclusions under a theory of fraud and find that the Johnsons’ statements to the Davises regarding the condition of the roof constituted a fraudulent misrepresentation entitling respondents to the return of their $26,000 deposit payment. In the state of Florida, relief for a fraudulent misrepresentation may be granted only when the following elements are present: (1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and, (4) consequent injury by the party acting in reliance on the representation. See Huffstetler v. Our Home Life Ins. Co., 67 Fla. 324, 65 So. 1 (1914).

The evidence adduced at trial shows that after the buyer and the seller signed the purchase and sales agreement and after receiving the $5,000 initial deposit payment the Johnsons affirmatively repeated to the Davises that there were no problems with the roof. The Johnsons subsequently received the additional $26,000 deposit payment from the Davises. The record reflects that the statement made by the Johnsons was a false representation of material fact, made with knowledge of its falsity, upon which the Davises relied to their detriment as evidenced by the $26,000 paid to the Johnsons.

The doctrine of caveat emptor does not exempt a seller from responsibility for the statements and representations which he makes to induce the buyer to act, when under the circumstances these amount to fraud in the legal sense. To be grounds for relief, the false representations need not have been made at the time of the signing of the purchase and sales agreement in order for the element of reliance to be present. The fact that the false statements as to the quality of the roof were made after the signing of the purchase and sales agreement does not excuse the seller from liability when the misrepresentations were made prior to the execution of the contract by conveyance of the property. It would be contrary to all notions of fairness and justice for this Court to place its stamp of approval on an affirmative misrepresentation by a wrongdoer just because it was made after the signing of the executory contract when all of the necessary elements for actionable fraud are present. Furthermore, the Davises’ reliance on the truth of the Johnsons’ representation was justified and is supported by this Court’s decision in Besett v. Basnett, 389 So. 2d 995 (1980), where we held “that a recipient may rely on the truth of a representation, even though its falsity could have been ascertained had he made an investigation, unless he knows the representation to be false or its falsity is obvious to him.” Id. at 998.

In determining whether a seller of a home has a duty to disclose latent material defects to a buyer, the established tort law distinction between misfeasance and nonfeasance, action and inaction must carefully be analyzed. The highly individualistic philosophy of the earlier common law consistently imposed liability upon the commission of affirmative acts of harm, but shrank from converting the courts into an institution for forcing men to help one another. This distinction is deeply rooted in our case law. Liability for nonfeasance has therefore been slow to receive recognition in the evolution of tort law.

In theory, the difference between misfeasance and nonfeasance, action and inaction is quite simple and obvious; however, in practice it is not always easy to draw the line and determine whether conduct is active or passive. That is, where failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and affirmative representations is tenuous. Both proceed from the same motives and are attended with the same consequences; both are violative of the principles of fair dealing and good faith; both are calculated to produce the same result; and, in fact, both essentially have the same effect.

Still there exists in much of our case law the old tort notion that there can be no liability for nonfeasance. The courts in some jurisdictions, including Florida, hold that where the parties are dealing at arms’s length and the facts lie equally open to both parties, with equal opportunity of examination, mere nondisclosure does not constitute a fraudulent concealment. See Ramel v. Chasebrook Construction Co., 135 So.2d 876 (Fla. 2d DCA 1961). The Fourth District affirmed that rule of law in Banks v. Salina, 413 So.2d 851 (Fla. 4th DCA 1982), and found that although the sellers had sold a home without disclosing the presence of a defective roof and swimming pool of which the sellers had knowledge, “[i]n Florida, there is no duty to disclose when parties are dealing at arms length.” Id. at 852.

These unappetizing cases are not in tune with the times and do not conform with current notions of justice, equity and fair dealing. One should not be able to stand behind the impervious shield of caveat emptor and take advantage of another’s ignorance. Our courts have taken great strides since the days when the judicial emphasis was on rigid rules and ancient precedents. Modern concepts of justice and fair dealing have given our courts the opportunity and latitude to change legal precepts in order to conform to society’s needs. Thus, the tendency of the more recent cases has been to restrict rather than extend the doctrine of caveat emptor. The law appears to be working toward the ultimate conclusion that full disclosure of all material facts must be made whenever elementary fair conduct demands it.

The harness placed on the doctrine of caveat emptor in a number of other jurisdictions has resulted in the seller of a home being liable for failing to disclose material defects of which he is aware. This philosophy was succinctly expressed in Lingsch v. Savage, 213 Cal. App. 2d 729 (1963):

 

It is now settled in California that where the seller knows of facts materially affecting the value or desirability of the property which are known or accessible only to him and also knows that such facts are not known to or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer.

 

In Posner v. Davis, 76 Ill. App.3d 638 (1979), buyers brought an action alleging that the sellers of a home fraudulently concealed certain defects in the home which included a leaking roof and basement flooding. Relying on Lingsch, the court concluded that the sellers knew of and failed to disclose latent material defects and thus were liable for fraudulent concealment. Numerous other jurisdictions have followed this view in formulating law involving the sale of homes. See Flakus v. Schug, 213 Neb. 491 (1983) (basement flooding); Thacker v. Tyree, 297 S.E.2d 885 (W.Va.1982) (cracked walls and foundation problems); Maguire v. Masino, 325 So. 2d 844 (La.Ct.App.1975) (termite infestation); Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68 (1974) (roach infestation); Cohen v. Vivian, 141 Colo. 443, 349 P.2d 366 (1960) (soil defect).

We are of the opinion, in view of the reasoning and results in Lingsch, Posner and the aforementioned cases decided in other jurisdictions, that the same philosophy regarding the sale of homes should also be the law in the state of Florida. Accordingly, we hold that where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used.

In the case at bar, the evidence shows that the Johnsons knew of and failed to disclose that there had been problems with the roof of the house. Mr. Johnson admitted during his testimony that the Johnsons were aware of roof problems prior to entering into the contract of sale and receiving the $5,000 deposit payment. Thus, we agree with the district court and find that the Johnsons’ fraudulent concealment also entitles the Davises to the return of the $5,000 deposit payment plus interest. We further find that the Davises should be awarded costs and fees.

The decision of the Third District Court of Appeals is hereby approved.

It is so ordered.

Boyd, Chief Justice, dissenting.

I respectfully but strongly dissent to the Court’s expansion of the duties of sellers of real property. This ruling will give rise to a flood of litigation and will facilitate unjust outcomes in many cases. If, as a matter of public policy, the well settled law of this state on this question should be changed, the change should come from the legislature. Moreover, I do not find sufficient evidence in the record to justify rescission or a finding of fraud even under present law. I would quash the decision of the district court of appeal.

My review of the record reveals that there is not adequate evidence from which the trier of fact could have found any of the following crucial facts: (a) that at the time Johnson told Mrs. Davis about the previous leaks that had been repaired, he knew that there was a defect in the roof; (b) that at that time or the time of the execution of the contract, there were in fact any defects in the roof; (c) that it was not possible to repair the roof to “watertight” condition before closing.

As the district court and this Court’s majority have implied but have not stated, we are hampered by the lack of specific written findings by the trial court on issues of fact and the application of the law to the facts. Some of the issues on which specific findings would be helpful are:

 

(a) what was the condition of the roof at the time of the discussion between Mr. Johnson and Mrs. Davis after the Davises had paid the partial deposit of $5,000 and before they paid the additional $26,000, and had it in fact leaked more recently than 1979?

 

(b) what was the extent of Mr. Johnson’s knowledge of the condition of the roof at the time of the signing of the contract and at the time of the conversation?

 

(c) during that conversation, did Mr. Johnson say that there were no problems with the roof or that he had not experienced any problems with it since the time of the previous repairs?

 

(d) was it possible, and at what cost, to repair the roof to watertight condition and had the sellers complied with their contractual obligation by offering to do so?

 

On these crucial questions, there is insufficient evidence to justify a finding of fraudulent misrepresentation or nondisclosure of material facts.

It should be noted that very soon after first seeing the house, the purchasers agreed to buy it for $310,000 and paid a deposit of $5,000. Of course they had full opportunity to inspect the house and to have it inspected by experts before they contracted to buy it. The contract of sale provided that prior to closing, the buyers would have the opportunity to have the roof inspected by a licensed roofer and that the seller would pay for repairs necessary to correct any leaks found and to restore the roof to watertight condition. Rather than demand that the necessary repairs be made, the purchasers announced that they would not complete the sale and demanded return of their deposit. The sellers indicated that they were willing to repair the leaks and make the roof watertight but were not prepared to go beyond their contractual obligation by undertaking to ensure “future watertight integrity” of the roof as demanded by the purchasers. The buyers had agreed that in the event of a breach by them, the sellers could retain the deposit paid as liquidated damages.

The district court of appeal referred to evidence showing that Mr. Johnson told Mrs. Davis about previous leaks that had been repaired. From this fact the district court found that Mr. Johnson had knowledge that the roof was in a defective condition at the time of the conversation. This evidence simply does not provide substantial, competent evidence to support the factual conclusion drawn by the third district.

Homeowners who attempt to sell their houses are typically in no better position to measure the quality, value, or desirability of their houses than are the prospective purchasers with whom such owners come into contact. Based on this and related considerations, the law of Florida has long been that a seller of real property with improvements is under no duty to disclose all material facts, in the absence of a fiduciary relationship, to a buyer who has an equal opportunity to learn all material information and is not prevented by the seller from doing so. See, e.g., Ramel v. Chasebrook Construction Co., 135 So.2d 876 (Fla. 2d DCA 1961). This rule provides sufficient protection against overreaching by sellers, as the wise and progressive ruling in the Ramel case shows. The Ramel decision is not the least bit “unappetizing.”

The majority opinion sets forth the elements of actionable fraud as they are stated in Huffstetler v. Our Home Life Ins. Co., 67 Fla. 324, 65 So.1 (1914). Those elements were not established by sufficient evidence in this case. There was no competent, substantial evidence to show that Mr. Johnson made a false statement knowing it to be false. There was absolutely no evidence that the statement was made with the intention of causing Mrs. Davis to do anything; she had already contracted to purchase the house. There was no competent evidence that Mrs. Davis in fact relied on Mr. Johnson’s statement or was influenced by it to do anything. And the only detriment or injury that can be found is that, when the Davises subsequently decided not to complete the transaction, they stood to forfeit the additional $26,000 deposit paid in addition to the original $5,000. The Davises had already agreed to pay the additional deposit at the time of the conversation. They had to pay the additional deposit if they wanted to preserve their rights under the contract. They chose to do so. Mr. Johnson’s statements, even if we believe Mrs. Davis’ version of them rather than Mr. Johnson’s, did not constitute the kind of representation upon which a buyer’s reliance is justified.

I do not agree with the Court’s belief that the distinction between nondisclosure and affirmative statement is weak or nonexistent. It is a distinction that we should take special care to emphasize and preserve. Imposition of liability for seller’s nondisclosure of the condition of improvements to real property is the first step toward making the seller a guarantor of the good condition of the property. Ultimately this trend will significantly burden the alienability of property because sellers will have to worry about the possibility of catastrophic post-sale judgments for damages sought to pay for repairs. The trend will proceed somewhat as follows. At first, the cause of action will require proof of actual knowledge of the undisclosed defect on the part of the seller. But in many cases the courts will allow it to be shown by circumstantial evidence. Then a rule of constructive knowledge will develop based on the reasoning that if the seller did not know of the defect, he should have known about it before attempting to sell the property. Thus the burden of inspection will shift from the buyer to the seller. Ultimately the courts will be in the position of imposing implied warranties and guaranties on all sellers of real property.

Although as described in the majority opinion this change in the law sounds progressive, high-minded, and idealistic, it is in reality completely unnecessary. Prudent purchasers inspect property, with expert advice if necessary, before they agree to buy. Prudent lenders require inspections before agreeing to provide purchase money. Initial deposits of earnest money can be made with the agreement to purchase being conditional upon the favorable results of expert inspections. It is significant that in the present case the major portion of the purchase price was to be financed by the Johnsons who were to hold a mortgage on the property. If they had been knowingly trying to get rid of what they knew to be a defectively constructed house, it is unlikely that they would have been willing to lend $200,000 with the house in question as their only security.

I would quash the decision of the district court of appeal. This case should be remanded for findings by the trial court based on the evidence already heard. The action for rescission based on fraud should be dismissed. The only issue is whether the Johnsons were in compliance with the contract at the time of the breach by the Davises. Resolving this issue requires a finding of whether the roof could have been put in watertight condition by spot repairs or by re-roofing and in either case whether the sellers were willing to fulfill their obligation by paying for the necessary work. If so, the Johnsons should keep the entire $31,000 deposit.

Maureen M. Lober, Litchfield (Gerald Patrick Huber, Raymond, of counsel), for appellant.

Paul McWilliams, of McWilliams & McWilliams, Litchfield, for appellees.

Underwood, Justice:

Plaintiffs instituted this action in the Montgomery County circuit court based on an alleged breach of the covenant of seisin in their warranty deed. The trial court held that although there had been a breach of the covenant of seisin, the suit was barred by the 10-year statute of limitations in section 16 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 17). Plaintiffs’ post-trial motion, which was based on an alleged breach of the covenant of quiet enjoyment, was also denied. A divided Fifth District Appellate Court reversed and remanded. We allowed the defendant’s petition for leave to appeal.

The parties submitted an agreed statement of facts which sets forth the relevant history of this controversy. Plaintiffs purchased 80 acres of Montgomery County real estate from William and Faith Bost and received a statutory warranty deed (Ill. Rev. Stat. 1957, ch. 30, par. 8), containing no exceptions, dated December 21, 1957. Subsequently, plaintiffs took possession of the land and recorded their deed.

On May 8, 1974, plaintiffs granted a coal option to Consolidated Coal Company (Consolidated) for the coal rights on the 80-acre tract for the sum of $6,000. Approximately two years later, however, plaintiffs “discovered” that they, in fact, owned only a one-third interest in the subsurface coal rights. It is a matter of public record that, in 1947, a prior grantor had reserved a two-thirds interest in the mineral rights on the property. Although plaintiffs had their abstract of title examined in 1958 and 1968 for loan purposes, they contend that until May 4, 1976, they believed that they were the sole owners of the surface and subsurface rights on the 80-acre tract. Upon discovering that a prior grantor had reserved a two-thirds interest in the coal rights, plaintiffs and Consolidated renegotiated their agreement to provide for payment of $2,000 in exchange for a one-third interest in the subsurface coal rights. On May 25, 1976, plaintiffs filed this action against the executor of the estate of Faith Bost, seeking damages in the amount of $4,000.

The deed which plaintiffs received from the Bosts was a general statutory form warranty deed meeting the requirements of section 9 of “An Act concerning conveyances” (Ill. Rev. Stat. 1957, ch. 30, par. 8). That section provides:

 

Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed.

 

Ill. Rev. Stat. 1957, ch. 30, par. 8.

The effect of this provision is that certain covenants of title are implied in every statutory form warranty deed. Subsection 1 contains the covenant of seisin and the covenant of good right to convey. These covenants, which are considered synonymous, assure the grantee that the grantor is, at the time of the conveyance, lawfully seized and has the power to convey an estate of the quality and quantity which he professes to convey.

Subsection 2 represents the covenant against incumbrances. An incumbrance is any right to, or interest in, land which may subsist in a third party to the diminution of the value of the estate, but consistent with the passing of the fee by conveyance.

Subsection 3 sets forth the covenant of quiet enjoyment, which is synonymous with the covenant of warranty in Illinois. By this covenant, “the grantor warrants to the grantee, his heirs and assigns, the possession of the premises and that he will defend the title granted by the terms of the deed against persons who may lawfully claim the same, and that such covenant shall be obligatory upon the grantor, his heirs, personal representatives, and assigns.” Biwer v. Martin (1920), 294 Ill. 488, 497.

Plaintiffs’ complaint is premised upon the fact that “William Roy Bost and Faith Bost covenanted that they were the owners in fee simple of the above described property at the time of the conveyance to the plaintiffs.”While the complaint could be more explicit, it appears that plaintiffs were alleging a cause of action for breach of the covenant of seisin. This court has stated repeatedly that the covenant of seisin is a covenant In praesenti and, therefore, if broken at all, is broken at the time of delivery of the deed. Tone v. Wilson (1876), 81 Ill. 529; Jones v. Warner (1876), 81 Ill. 343.

Since the deed was delivered to the plaintiffs on December 21, 1957, any cause of action for breach of the covenant of seisin would have accrued on that date. The trial court held that this cause of action was barred by the statute of limitations. No question is raised as to the applicability of the 10-year statute of limitations (Ill. Rev. Stat. 1975, ch. 83, par. 17). We conclude, therefore, that the cause of action for breach of the covenant of seisin was properly determined by the trial court to be barred by the statute of limitations since plaintiffs did not file their complaint until May 25, 1976, nearly 20 years after their alleged cause of action accrued.

In their post-trial motion, plaintiffs set forth as an additional theory of recovery an alleged breach of the covenant of quiet enjoyment. The trial court, without explanation, denied the motion. The appellate court reversed, holding that the cause of action on the covenant of quiet enjoyment was not barred by the statute of limitations. The appellate court theorized that plaintiffs’ cause of action did not accrue until 1976, when plaintiffs discovered that they only had a one-third interest in the subsurface coal rights and renegotiated their contract with the coal company for one-third of the previous contract price. The primary issue before us, therefore, is when, if at all, the plaintiffs’ cause of action for breach of the covenant of quiet enjoyment is deemed to have accrued.

This court has stated on numerous occasions that, in contrast to the covenant of seisin, the covenant of warranty or quiet enjoyment is prospective in nature and is breached only when there is an actual or constructive eviction of the covenantee by the paramount titleholder. Biwer v. Martin (1920), 294 Ill. 488.

The cases are also replete with statements to the effect that the mere existence of paramount title in one other than the covenantee is not sufficient to constitute a breach of the covenant of warranty or quiet enjoyment: “(T)here must be a union of acts of disturbance and lawful title, to constitute a breach of the covenant for quiet enjoyment, or warranty * * *.” (Barry v. Guild (1888), 126 Ill. 439.) “(T)here is a general concurrence that something more than the mere existence of a paramount title is necessary to constitute a breach of the covenant of warranty.” (Scott v. Kirkendall (1878), 88 Ill. 465, 467.) “A mere want of title is no breach of this covenant. There must not only be a want of title, but there must be an ouster under a paramount title.” Moore v. Vail (1855), 17 Ill. 185, 189.

The question is whether plaintiffs have alleged facts sufficient to constitute a constructive eviction. They argue that if a covenantee fails in his effort to sell an interest in land because he discovers that he does not own what his warranty deed purported to convey, he has suffered a constructive eviction and is thereby entitled to bring an action against his grantor for breach of the covenant of quiet enjoyment. We think that the decision of this court in Scott v. Kirkendall (1878), 88 Ill. 465, is controlling on this issue and compels us to reject plaintiffs’ argument.

In Scott, an action was brought for breach of the covenant of warranty by a grantee who discovered that other parties had paramount title to the land in question. The land was vacant and unoccupied at all relevant times. This court, in rejecting the grantee’s claim that there was a breach of the covenant of quiet enjoyment, quoted the earlier decision in Moore v. Vail (1855), 17 Ill. 185, 191:

 

“Until that time, (the taking possession by the owner of the paramount title,) he might peaceably have entered upon and enjoyed the premises, without resistance or molestation, which was all his grantors covenanted he should do. They did not guarantee to him a perfect title, but the possession and enjoyment of the premises.”

 

88 Ill. 465, 468.

Relying on this language in Moore, the Scott court concluded:

 

We do not see but what this fully decides the present case against the appellant. It holds that the mere existence of a paramount title does not constitute a breach of the covenant. That is all there is here. There has been no assertion of the adverse title. The land has always been vacant. Appellant could at any time have taken peaceable possession of it. He has in no way been prevented or hindered from the enjoyment of the possession by any one having a better right. It was but the possession and enjoyment of the premises which was assured to him, and there has been no disturbance or interference in that respect. True, there is a superior title in another, but appellant has never felt “its pressure upon him.”

 

88 Ill. 465, 468-69.

Admittedly, Scott dealt with surface rights while the case before us concerns subsurface mineral rights. We are, nevertheless, convinced that the reasoning employed in Scott is applicable to the present case. While plaintiffs went into possession of the surface area, they cannot be said to have possessed the subsurface minerals. “Possession of the surface does not carry possession of the minerals * * *. (Citation.) To possess the mineral estate, one must undertake the actual removal thereof from the ground or do such other act as will apprise the community that such interest is in the exclusive use and enjoyment of the claiming party.” Failoni v. Chicago & North Western Ry. Co. (1964), 30 Ill.2d 258, 262.

Since no one has, as yet, undertaken to remove the coal or otherwise manifested a clear intent to exclusively “possess” the mineral estate, it must be concluded that the subsurface estate is “vacant.” As in Scott, plaintiffs “could at any time have taken peaceable possession of it. (They have) in no way been prevented or hindered from the enjoyment of the possession by any one having a better right.” (88 Ill. 465, 468.) Accordingly, until such time as one holding paramount title interferes with plaintiffs’ right of possession (E.g., by beginning to mine the coal), there can be no constructive eviction and, therefore, no breach of the covenant of quiet enjoyment.

What plaintiffs are apparently attempting to do on this appeal is to extend the protection afforded by the covenant of quiet enjoyment. However, we decline to expand the historical scope of this covenant to provide a remedy where another of the covenants of title is so clearly applicable. As this court stated in Scott v. Kirkendall (1878), 88 Ill. 465, 469:

 

To sustain the present action would be to confound all distinction between the covenant of warranty and that of seizin, or of right to convey. They are not equivalent covenants. An action will lie upon the latter, though there be no disturbance of possession. A defect of title will suffice. Not so with the covenant of warranty, or for quiet enjoyment, as has always been held by the prevailing authority.

 

The covenant of seisin, unquestionably, was breached when the Bosts delivered the deed to plaintiffs, and plaintiffs then had a cause of action. However, despite the fact that it was a matter of public record that there was a reservation of a two-thirds interest in the mineral rights in the earlier deed, plaintiffs failed to bring an action for breach of the covenant of seisin within the 10-year period following delivery of the deed. The likely explanation is that plaintiffs had not secured a title opinion at the time they purchased the property, and the subsequent examiners for the lenders were not concerned with the mineral rights. Plaintiffs’ oversight, however, does not justify us in overruling earlier decisions in order to recognize an otherwise premature cause of action. The mere fact that plaintiffs’ original contract with Consolidated had to be modified due to their discovery that paramount title to two-thirds of the subsurface minerals belonged to another is not sufficient to constitute the constructive eviction necessary to a breach of the covenant of quiet enjoyment.

Finally, although plaintiffs also have argued in this court that there was a breach of the covenant against incumbrances entitling them to recovery, we decline to address this issue which was argued for the first time on appeal. It is well settled that questions not raised in the trial court will not be considered by this court on appeal. Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141.

Accordingly, the judgment of the appellate court is reversed, and the judgment of the circuit court of Montgomery County is affirmed.

Trigg T. Davis, Owens, Davis & Bartlett, Anchorage, for appellants.

Suzanne Pestinger, Birch, Jermain, Horton & Bittner, Anchorage, for appellee.

Before Boochever, Chief Justice, and Rabinowitz, Connor, Erwin and Burke, Justices.

Boochever, Chief Justice.

This appeal arises because Grover C. Lowery conveyed the same five-acre piece of land twice-first to William A. Horvath and Barbara J. Horvath and later to William Sabo and Barbara Sabo. Both conveyances were by separate documents entitled ‘Quitclaim Deeds.’ Lowery’s interest in the land originates in a patent from the United States Government under 43 U.S.C. s 687a (1970) ( ‘Alaska Homesite Law’). Lowery’s conveyance to the Horvaths was prior to the issuance of patent, and his subsequent conveyance to the Sabos was after the issuance of patent. The Horvaths recorded their deed in the Chitna Recording District on January 5, 1970; the Sabos recorded their deed on December 13, 1973. The transfer to the Horvaths, however, predated patent and title, and thus the Horvaths’ interest in the land was recorded ‘outside the chain of title.’ Mr. Horvath brought suit to quiet title, and the Sabos counterclaimed to quiet their title.

In a memorandum opinion, the superior court ruled that Lowery had an equitable interest capable of transfer at the time of his conveyance to the Horvaths and further said the transfer contemplated more than a ‘mere quitclaim’-it warranted patent would be transferred. The superior court also held that Horvath had the superior claim to the land because his prior recording had given the Sabos constructive notice for purposes of AS 34.15.290.¹ The Sabos’ appeal raises the following issues:

1. Under 43 U.S.C. s 687a (1970), when did Lowery obtain a present equitable interest in land which he could convey?

    

1. Are the Sabos, as grantees under a quitclaim deed, ‘subsequent innocent purchaser(s) in good faith’?

    

1. Is the Horvaths’ first recorded interest, which is outside the chain of title, constructive notice to Sabo?

    

We affirm the trial court’s ruling that Lowery had an interest to convey at the time of his conveyance to the Horvaths. We further hold that Sabo may be a ‘good faith purchaser’ even though he takes by quitclaim deed. We reverse the trial court’s ruling that Sabo had constructive notice and hold that a deed recorded outside the chain of title is a ‘wild deed’ and does not give constructive notice under the recording laws of Alaska.²

The facts may be stated as follows. Grover C. Lowery occupied land in the Chitna Recording District on October 10, 1964 for purposes of obtaining Federal patent. Lowery filed a location notice on February 24, 1965, and made his application to purchase on June 6, 1967 with the Bureau of Land Management (BLM). On March 7, 1968, the BLM field examiner’s report was filed which recommended that patent issue to Lowery. On October 7, 1969, a request for survey was made by the United States Government. On January 3, 1970, Lowery issued a document entitled ‘Quitclaim Deed’ to the Horvaths; Horvath recorded the deed on January 5, 1970 in the Chitna Recording District. Horvath testified that when he bought the land from Lowery, he knew patent and title were still in the United States Government, but he did not rerecord his interest after patent had passed to Lowery.

Following the sale to the Horvaths, further action was taken by Lowery and the BLM pertaining to the application for patent³ and culminating in issuance of the patent on August 10, 1973.

Almost immediately after the patent was issued, Lowery advertised the land for sale in a newspaper. He then executed a second document also entitled ‘quitclaim’ to the Sabos on October 15, 1973. The Sabos duly recorded this document on December 13, 1973.

Luther Moss, a representative of the BLM, testified to procedures followed under the Alaska Homesite Law (43 U.S.C. s 687a (1970)). After numerous steps,⁴ a plat is approved and the claimant notified that he should direct publication of his claim. In this case, Lowery executed his conveyance to the Horvaths after the BLM field report had recommended patent.

The first question this court must consider is whether Lowery had an interest to convey at the time of his transfer to the Horvaths. Lowery’s interest was obtained pursuant to patent law 43 U.S.C. s 687a (1970) commonly called the ‘Alaska Homesite Law’.⁵ Since Lowery’s title to the property was contingent upon the patent ultimately issuing from the United States Government and since Lowery’s conveyance to the Horvaths predated issuance of the patent, the question is ‘at what point in the pre-patent chain of procedures does a person have a sufficient interest in a particular tract of land to convey that land by quitclaim deed.’ Willis v. City of Valdez, 546 P.2d 570, 575 (Alaska 1976).

Here we must determine whether Congress, in passing 43 U.S.C. s 687a (1970), intended to prohibit the prepatent conveyance by Lowery. This court has upheld early conveyances under the Soldiers’ Additional Homestead Act, 43 U.S.C. ss 271-74. Willis v. City of Valdez, supra at 575. However, cases decided under other patent laws prohibit alienation at early stages in the ‘pre-patent chain.’⁶ We have found no recorded legislative history of 43 U.S.C. s 687a (1970) which assists us, and case law decided under this statute and its statutory predecessors does not clarify at what point in the prepatent chain alienation is permitted.⁷

We note initially that 43 U.S.C. s 687a (1970) and the regulations administering the Alaska Homesite Law are silent as to alienability. In the context of land patent law, this silence is significant. By comparison, the general homestead laws specifically prohibit alienation prior to final proof by requiring the filing of an affidavit which states under oath that ‘no part of such land has been alienated… .’43 U.S.C. s 164 (1964). Homestead regulations further specify nonalienation prior to affidavit and final proof.⁸ Cases decided under patent laws which contain specific prohibition against alienation have uniformly held that an attempted conveyance prior to final proof precludes patent from issuing from the United States Government, and such conveyances are held entirely void and unenforceable between the parties.⁹

The importance of the Alaska Homesite Law’s silence with respect to alienation is again underlined by the fact that Congress extended the anti-alienation provision of the general homestead laws to the Alaska Homestead Act, 43 U.S.C. s 270 (1970).¹⁰

It is clear from the provision in the Alaska Homestead Act, the general homestead laws, and the regulations promulgated pursuant to them, that Congress and the BLM knew how specifically to prohibit alienation. Their failure to prohibit alienation in the Alaska Homesite Law or regulations therefore is quite significant. In Willis v. Valdez, supra at 574 n.7, we cited Barnes v. Poirier, 64 F. 14, 18 (8th Cir. 1894), which points to the significance of the absence of a specific alienation clause in the Soldiers’ Additional Homestead statute. Numerous cases relating to United States land patents under other statutes hold that the silence of land patent statutes is determinative of the issue of alienability.¹¹ Significantly, the United States Supreme Court has stated:

 

There is no requirement … that the entryman shall make oath that he has not alienated any interest in the land. The policy of the government to require such affidavit when it intends to make it a condition precedent to granting a title was indicated in the homestead act, and could readily have been pursued by a similar provision in the timber culture act if it was intended to extend the principle to that statute … .

 

… If the entryman has complied with the statute and made the entry in good faith, in accordance with the terms of the law and the oath required of him upon making such entry, and has done nothing inconsistent with the terms of the law, we find nothing in the fact that, during his term of occupancy, he has agreed to convey an interest, to be conveyed after patent issued, which will defeat his claim and forfeit the right acquired by planting the trees and complying with the terms of the law. Had Congress intended such result to follow from the alienation of an interest after an entry in good faith, it would have so declared in the law. (citation omitted)

 

Adams v. Church, 193 U.S. at 515-17, 24 S.Ct. at 514-515, 48 L.Ed. at 771-72.

It should also be noted that prior to the conveyance to the Horvaths, Lowery had complied with a substantial portion of his obligation under the statute and regulations. He had filed his notice of location and his application to purchase and had lived on the land the required amount of time. A BLM field examiner’s report had recommended patent be issued. It is true that various other events were necessary prior to the issuance of the patent. After the conveyance, a survey was conducted, various mineral reservations claimed, application to purchase was published and the payment of $12.50 was made to the BLM. We do not think that the mere fact that steps remained before issuance of patent precluded the existence of an alienable interest, where there has been basic compliance with the statutory demands.

In Willis v. City of Valdez, supra at 578, we held that one who later secured a patent under the Solders’ Additional Homestead Act had an interest in land which was alienable at the time that he requested a survey. Here, Lowery had complied with numerous requirements under the Homesite Law including those of occupancy, and the BLM had recommended issuance of the patent. Since 43 U.S.C. s 687a (1970) does not prohibit alienation, we hold that at the time Lowery executed the deed to the Horvaths he had complied with the statute to a sufficient extent so as to have an interest in the land which was capable of conveyance.

Since the Horvaths received a valid interest from Lowery, we must now resolve the conflict between the Horvaths’ first recorded interest and the Sabos’ later recorded interest.

The Sabos, like the Horvaths, received their interest in the property by a quitclaim deed. They are asserting that their interest supersedes the Horvaths under Alaska’s statutory recording system. AS 34.15.290 provides that:

 

A conveyance of real property … is void as against a subsequent innocent purchaser … for a valuable consideration of the property … whose conveyance is first duly recorded. An unrecorded instrument is valid … as against one who has actual notice of it.

 

Initially, we must decide whether the Sabos, who received their interest by means of a quitclaim deed, can ever be ‘innocent purchaser(s)’ within the meaning of AS 34.15.290. Since a ‘quitclaim’ only transfers the interest of the grantor, the question is whether a ‘quitclaim’ deed itself puts a purchaser on constructive notice. Although the authorities are in conflict over this issue, the clear weight of authority is that a quitclaim grantee can be protected by the recording system, assuming, of course, the grantee purchased for valuable consideration and did not otherwise have actual or constructive knowledge as defined by the recording laws.¹² We choose to follow the majority rule and hold that a quitclaim grantee is not precluded from attaining the status of an ‘innocent purchaser.’

In this case, the Horvaths recorded their interest from Lowery prior to the time the Sabos recorded their interest. Thus, the issue is whether the Sabos are charged with constructive knowledge because of the Horvaths’ prior recordation. Horvath is correct in his assertion that in the usual case a prior recorded deed serves as constructive notice pursuant to AS 34.15.290, and thus precludes a subsequent, recordation from taking precedence. Here, however, the Sabos argue that because Horvath recorded his deed prior to Lowery having obtained patent, they were not given constructive notice by the recording system. They contend that since Horvaths’ recordation was outside the chain of title, the recording should be regarded as a ‘wild deed’.

It is an axiom of hornbook law that a purchaser has notice only of recorded instruments that are within his ‘chain of title.’¹³ If a grantor (Lowery) transfers prior to obtaining title, and the grantee (Horvath) records prior to title passing, a second grantee who diligently examines all conveyances under the grantor’s name from the date that the grantor had secured title would not discover the prior conveyance. The rule in most jurisdictions which have adopted a grantor-grantee index system of recording is that a ‘wild deed’ does not serve as constructive notice to a subsequent purchaser who duly records.¹⁴

Alaska’s recording system utilizes a ‘grantor-grantee’ index. Had Sabos searched title under both grantor’s and grantee’s names but limited his search to the chain of title subsequent to patent, he would not be chargeable with discovery of the pre-patent transfer to Horvath.

On one hand, we could require Sabo to check beyond the chain of title to look for pretitle conveyances. While in this particular case the burden may not have been great, as a general rule, requiring title checks beyond the chain of title could add a significant burden as well as uncertainty to real estate purchases. To a certain extent, requiring title searches of records prior to the date of a grantor acquired title would thus defeat the purposes of the recording system. The records as to each grantor in the chain of title would theoretically have to be checked back to the later of the grantor’s date of birth or the date when records were first retained.

On the other hand, we could require Horvath to rerecord his interest in the land once title passes, that is, after patent had issued to Lowery. As a general rule, rerecording an interest once title passes is less of a burden than requiring property purchasers to check indefinitely beyond the chain of title.

It is unfortunate that in this case due to Lowery’s double conveyances, one or the other party to this suit must suffer an undeserved loss. We are cognizant that in this case, the equities are closely balanced between the parties to this appeal. Our decision, however, in addition to resolving the litigants’ dispute, must delineate the requirements of Alaska’s recording laws.

Because we want to promote simplicity and certainty in title transactions, we choose to follow the majority rule and hold that the Horvaths’ deed, recorded outside the chain of title, does not give constructive notice to the Sabos and is not ‘duly recorded’ under the Alaskan Recording Act, AS 34.15.290. Since the Sabos’ interest is the first duly recorded interest and was recorded without actual or constructive knowledge of the prior deed, we hold that the Sabos’ interest must prevail. The trial court’s decision is accordingly.

REVERSED.

Mark E. Wills, Wills & Sadler, Princeton, for Appellees.

Robert H. Miller, II, Katz, Kantor & Perkins, Bluefield, for Appellants.

Cleckley, Justice.

This case involves the doctrines of adverse possession and tacking. David L. Gobble and Sue Ann Gobble, appellants/defendants below, appeal from a final order of the Circuit Court of Mercer County. At the conclusion of a bench trial the circuit court granted judgment for a strip of land to Gary S. Brown and Mitzi Brown, appellees/plaintiffs below. In prosecuting this appeal, the defendants allege two assignments of error: (1) it was error for the circuit court to apply a clear and convincing evidence standard of proof to the doctrine of adverse possession, and (2) the circuit court committed error in finding that the evidence failed to prove adverse possession.

 

I. FACTUAL AND PROCEDURAL BACKGROUND

 

The plaintiffs instituted this action by filing a complaint on August 25, 1994. The complaint sought to have the defendants enjoined from interfering with the plaintiffs’ intended use of a two-feet-wide tract of land that formed a boundary running between the adjoining properties of the parties. The defendants answered the complaint and filed a counterclaim alleging ownership to the tract of land by adverse possession.

The record reveals that the defendants purchased their property by deed dated April 24, 1985. At the time of this land purchase a fence was in place which ran along the rear boundary of defendants’ property. The two-feet-wide tract of land in question here, was enclosed by the fence and visually appeared to be part of the defendants’ property. When the defendants bought their land, they were informed by their real estate agent that their property ran up to and included the fence. The call references in their deed “read” as though the two-feet-wide tract of land was part of the conveyance.¹ The defendants believed the two-feet-wide tract of land was part of their property, and utilized it consistent with ownership rights up until the filing of this law suit.

The plaintiffs purchased their property by deed dated April 28, 1989. Shortly before making this purchase, the plaintiffs had a survey of the property done. The survey revealed that the fenced-in two-feet-wide tract of land was part of plaintiffs’ property.² Although the plaintiffs were aware at the time of the purchase of their property that the two-feet-wide tract of land was, in fact, theirs, they did nothing to show ownership to the tract until around August, 1994. It was in August of 1994, that the plaintiffs decided to build a road along the two-feet-wide tract of land. To do this meant cutting down several trees that were along the tract.³ The defendants apparently attempted to prevent the plaintiffs from building the road by asserting that they owned the tract of land. The plaintiffs thereafter instituted the present suit. The trial of this matter was held by the circuit court, sitting as factfinder, on December 13, 1994. The trial court made findings of fact and conclusions of law, wherein it held that “the defendants have failed to show by clear and convincing evidence their ownership by way of adverse possession[.]”

 

II. DISCUSSION

 

The contentions raised on appeal require us to scrutinize the record and determine whether the evidence was sufficient to prove adverse possession by the clear and convincing standard that we explicitly have adopted today. We note at the outset that the standard of review for judging a sufficiency of evidence claim is not appellant friendly. Following a bench trial, the circuit court’s findings, based on oral or documentary evidence, shall not be overturned unless clearly erroneous, and due regard shall be given to the opportunity of the circuit judge to evaluate the credibility of the witnesses. Under this standard, if the circuit court’s account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse it, even though convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently. We will disturb only those factual findings that strike us wrong with the “force of a five-week-old, unrefrigerated dead fish.” United States v. Markling, 7 F.3d 1309, 1319 (7th Cir.1993). Nor is the scope of our review broadened because the burden of proof is clear and convincing. Indeed, the burden of proof has an impact only if the evidence is in equipoise. Under these well established principles, we now review the errors raised by the defendants.

 

 

A. Standard of Proof for Adverse Possession Claims

 

 

The first argument raised by the defendants is that the circuit court committed error by requiring them to prove adverse possession by clear and convincing evidence. Although neither party presents any binding precedent of this Court, the defendants contend that the proper standard for proving adverse possession is by a preponderance of the evidence, and that this is implicitly established by some of our cases. The defendants cite language in our decision in Naab v. Nolan, 174 W.Va. 390, 392 (1985), wherein we stated:

 

The circuit court found by a preponderance of the evidence the existence of facts sufficient to establish title by adverse possession[.] We agree with the court’s decision.

 

(Emphasis added.)

The plaintiffs contend that the above language in Naab is not controlling for two reasons. First, the quote is not intended to be a statement of law, but is merely part of the discussion from the court below, and there was no explicit acceptance of this standard by the Court. Second, the standard of proof was not disputed on appeal and, therefore, this Court was not asked to decide the issue. The plaintiffs take the position that we have yet, definitively, to establish a standard of proof for adverse possession, and would further urge that we adopt the clear and convincing standard.⁴

There is a minority view that a preponderance of the evidence is sufficient to establish adverse possession. [citations to cases in Missouri, Nebraska, Ohio, and Arkansas] There is little reason given for adopting this standard other than it is the usual rule in civil cases.

On the other hand, the view adopted by a majority of jurisdictions is that adverse possession must be shown by clear and convincing evidence. [citations to cases in a large number of states]

It is appropriate, in our opinion, that adverse possession be proved by a more stringent standard than a mere preponderance of the evidence. First, West Virginia appears to have been leaning toward the majority rule. Even before the turn of the century, this Court had indicated that “clear” evidence was needed to establish adverse possession. In Syllabus Point 2 of Boggs v. Bodkin, 32 W.Va. 566 (1889), this Court explicitly stated: “whether he has had ten years’ adversary possession of the land, he must, … specifically establish by clear evidence, that he has had such adversary possession for ten years … .” (emphasis added). Moreover, we agree with the plaintiffs that it would be inconsistent for this Court to adopt a preponderance of the evidence standard for adverse possession, in light of the fact that we have adopted a clear and convincing standard for proving an easement. See Syl. pt. 3, Norman v. Belcher, 180 W.Va. 581 (1989).

Second, on policy grounds there is sound and reasonable justification for the majority view. The function of a standard of proof is to “instruct the factfinder concerning the degree of confidence our society thinks he [or she] should have in the correctness of a factual conclusion for a particular kind of adjudication.” In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J. Concurring). “The standard [of proof] serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” Addington v. Texas, 441 U.S. 418, 423 (1979).

While the preponderance standard applies across the board in civil cases, a higher standard is needed where fairness and equity require more persuasive proof. Although the standard clear and convincing is less commonly used, it nonetheless is no stranger to West Virginia civil cases. In Wheeling Dollar Sav. & Trust Co. v. Singer, 162 W.Va. 502, 510 (1978), this Court stated that “clear and convincing” is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established. It should be the highest possible standard of civil proof. Cramer v. Dep’t of Hwys., 180 W.Va. 97, 99 n. 1 (1988). The interest at stake in an adverse possession claim is not the mere loss of money as is the case in the normal civil proceedings. Rather, it often involves the loss of a homestead, a family farm or other property associated with traditional family and societal values. To this extent, most courts have used the clear and convincing standard to protect these important property interests. See Stevenson v. Stein, 412 Pa. 478, 482 (1963) (to prove adverse possession “credible, clear and definitive proof” is needed). Adopting the clear and convincing standard of proof is more than a mere academic exercise. At a minimum, it reflects the value society places on the rights and interests being asserted.

The bottom line is that the function of the legal process is to minimize the risk of erroneous decisions. See Mathews v. Elderidge, 424 U.S. 319, 335 (1976). The law should not allow the land of one to be taken by another, without a conveyance or consideration, merely upon slight presumption or probabilities. The relevant evidence in an adverse action must necessarily expand over a ten year period. A preponderance standard, in our judgment, would create the risk of increasing the number of cases whereby land is erroneously taken from the title owner under spurious adverse possession claims. This heightened standard of clear and convincing is one way to impress the factfinder with the importance of the decision, and thereby reduce the chances that spurious claims of adverse possession will be successful. Having concluded that the preponderance standard falls short of meeting the demands of fairness and accuracy in the factfinding process in the adjudication of adverse possession claims, we hold that the burden is upon the party who claims title by adverse possession to prove by clear and convincing evidence all elements essential to such title. To the extent that a different standard is intimated in our previous decisions, we herein expressly reject such intimations.

 

 

B. The Sufficiency of the Evidence

 

 

The next argument raised by the defendants is that their evidence was sufficient to establish adverse possession under either a preponderance of the evidence standard or, on the other hand, under the clear and convincing evidence standard. Of course, we now must determine whether the record supports the trial court’s findings under the clear and convincing standard.

It is well settled in this jurisdiction that in a case tried without the aid of a jury, the trial court, and not the appellate court, is the judge of the weight of the evidence. Actually, in a nonjury trial, the trial judge has usually been regarded as a surrogate for the jury, and his or her findings are accorded corresponding weight. Subject only to W.Va.R.Civ.P. 52(a)’s clearly erroneous standard, this standard precludes a reviewing court from reversing a finding of the trier of fact simply because the reviewing court would have decided the case differently. In fact, it is clear that the burden on an appellant attempting to show clear error is especially strong when the findings are primarily based upon oral testimony and the circuit court has viewed the demeanor and judged the credibility of the witnesses. Accordingly, the circuit court’s factual findings come here well armed with the polished buckle and shield of the “clearly erroneous” standard embodied in Rule 52(a). Because of the weight to be given to evidence is peculiarly within the province of the trial court, it is the trial court and not this Court that draws the distinction between evidence which is clearly convincing and that which merely preponderates. However, the question whether the circuit court considered the proper material elements for adverse possession is a question of law, subject to our de novo review.

Were we given the task, we would not hesitate to find that the record before this Court demonstrates overwhelmingly that adverse possession has been proven by clear and convincing evidence. However, our decisions have made plain that an appellate court is not the appropriate forum for a resolution of the persuasive quality of evidence. To the contrary, our opinions have suggested that a reviewing court ought not to disturb such a finding unless, on the whole of the record, this Court forms a strong, unyielding belief that a mistake has been made. In plain terms, we should not overrule a circuit court’s finding or conclusion as to whether the burden of persuasion has been met unless the evidence is so one-sided that it may be said that a reasonable factfinder could not have gone the way of the circuit court. In order to sharpen the focus of our inquiry, we first illuminate the legal framework and elucidate the requirements that attend a proper showing of adverse possession.

Regarding the doctrine of adverse possession, we stated in Naab, 174 W.Va. at 392, the following:

 

The doctrine of adverse possession is firmly established in our property law and accompanies W. Va.Code 55-2-1 in settling land disputes equitably and efficiently. This doctrine enables one who has been in possession of a piece of real property for more then ten years to bring an action asserting that he is now the owner of that piece of property even when title rests in another. In Syllabus Point 3 of Somon v. Murphy Fabrication and Erection Co., 160 W.Va. 84, 232 S.E.2d 524 (1977) this Court stated:

 

 

One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: (1) That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That possession has been under claim of title or color of title.

 

 

We also held in Syllabus Point 4 of Somon, that:

 

Where one by mistake occupies land up to a line beyond his actual boundary, believing it to be the true line, such belief will not defeat his right to claim that he holds such land adversely or hostilely under the doctrine of adverse possession.⁵

 

In addition to recognizing the common law doctrine of adverse possession, we have long recognized the principle of “tacking.” … .

With the above principles of law in view, we now turn to the evidence presented below. The plaintiffs called three witnesses during their case-in-chief. Plaintiff Mr. Brown testified that he and his wife purchased property in 1989, and that their deed gave them ownership of the two-feet-wide tract. The plaintiffs called Dana Pettrey, the surveyor of their property. Mr. Pettrey testified that his survey in 1989, revealed that the two-feet-wide tract of land was part of the plaintiffs’ property. The plaintiffs also called defendant Mrs. Gobble for the purpose of showing that the defendants did not have possession of the two-feet-wide tract ten years prior to the month of August, 1995, when the plaintiffs first exercised ownership rights to the two-feet-wide tract. During the plaintiffs’ case-in-chief, the following exchange occurred between defendant Mrs. Gobble and counsel for plaintiffs:

 

Q. Mrs. Gobble, you have not lived on that property for 10 years, have you?

 

 

A. No, sir.

 

 

Q. It won’t be 10 years until April, 1995?

 

 

A. Yes, sir.

 

The defendants do not contend that they are the lawful owners of the two-feet-wide tract of boundary land as a result of call references in their deed. That is, they do not claim possession under color of title. They have alleged ownership through claim of title or right.⁶ The defendants also do not contend that they have personally possessed the two-feet-wide tract for the requisite ten-year period. Instead, they contend that they have established adverse possession by tacking on the time periods that their predecessors in title claimed the two-feet-wide tract. We have held that “tacking” permits adding together the time period that successive adverse possessors claim property, and that should this period of time added together be more than ten years, adverse possession may be allowed.

To establish the element of “tacking” the defendants presented evidence that Edward and Virgie Blevins (the “Blevins”) were the original owners of the property they purchased in 1985. The Blevins owned the property as far back as 1937, and during the entire time of their ownership they believed the two-feet-wide tract was part of their land, and they exercised dominion and control over the tract consistent with ownership rights. The Blevins sold their property on October 30, 1978, to Norman and Martha Fletcher (the “Fletchers”), believing that they were also conveying the two-feet-wide tract. Mr. Fletcher testified that when they bought the property they believed that they had purchased the two-feet-wide tract, and possessed it consistent with ownership rights. The defendants testified that they bought their property from the Fletchers in 1985, and believed their land purchase included the two-feet-wide tract of boundary land, and that they possessed it consistent with ownership rights, up until the filing of this lawsuit. Based upon this tacking evidence, the defendants contend that they are entitled as a matter of law to add the period 1937-1985, to their nine-and-a-half year claim to the two-feet-wide tract, which would give them far in excess of ten years adverse possession of the tract.⁷

To establish the element of “hostile” or “adverse” possession by tacking, the defendants called several witnesses who testified that the two-feet-wide tract was fenced off as far back as 1937, that the Blevins placed the fence along the tract, and that the Blevins claimed the tract as theirs.⁸ Evidence was presented to show that the Fletchers maintained the fence along the two-feet-wide tract, and that the fence remained in place throughout their ownership of the property. The defendants testified that they purchased their property from the Fletchers in 1985, and that they claimed ownership of the two-feet-wide tract, and that it remained fenced off up until the start of the instant law suit.

To establish the element of “actual” possession by tacking, the defendants called several witnesses who testified that the Blevins periodically repaired the fence surrounding the two-feet-wide tract, that they routinely planted a garden along the tract, and that the Blevins constructed and maintained a shed along a portion of the tract. Mr. Fletcher testified that he regularly planted a garden along the tract, that he routinely removed weeds from along the tract and fence, and that he picked blackberries from the area and walnuts from trees that had grown along the tract.⁹ The defendants testified that they planted gardens along the tract, that they built a treehouse in one of the trees that had grown along the tract, and that they regularly mowed the grass and weeds in the area.

To establish the element of “open and notorious” possession by tacking, the defendants called several witnesses who testified that during the period that the Blevins owned the defendants’ property, the reputation of the two-feet-wide tract in the community was that it belonged to the Blevins.¹⁰ Mr. Fletcher testified that the reputation in the community was that the two-feet-wide tract was part of his property. The defendants testified that the reputation in the community was that the two-feet-wide tract was part of their property.

To establish the element of “exclusive” possession by tacking, the defendants presented testimony by two of the original owners of plaintiffs’ property.¹¹ These two witnesses testified that neither the Blevins’ nor the Fletchers’ claim to the two-feet-wide tract was ever objected to by them or those who owned the property with them. The defendants also presented evidence to show that only the Blevins and Fletchers respectively had control and dominion over the two-feet-wide tract. The defendants also testified that they had exclusive control and dominion over the two-feet-wide tract up until the time of this law suit.

To establish the element of “continuous” possession the defendants presented testimony that the Blevins enclosed, maintained, cultivated and claimed ownership of the two-feet-wide tract up until they sold their property to the Fletchers.¹² Mr. Fletcher testified that he maintained, cultivated and claimed ownership of the two-feet-wide tract up until he sold the property to the defendants. The defendants testified that they maintained, cultivated and claimed ownership of the two-feet-wide tract up until the instant law suit.

To establish the element of “claim of title” the defendants presented evidence to show that neither the Blevins, Fletchers nor the defendants had actual title to the two-feet-wide tract, yet each claimed ownership of it pursuant to all of the above conduct, during their entire respective occupancy.¹³

Based upon the above evidence of tacking and adverse possession, the defendants contend that they established adverse possession under the clear and convincing evidence standard. The trial court found that this evidence did not establish tacking or adverse possession by clear and convincing evidence. The trial court made this finding notwithstanding the fact that none of the defendants’ tacking or adverse possession evidence was challenged or rebutted by the plaintiffs.

Nevertheless, we are reluctant to conclude, though invited to do so by the defendants, that the evidence was so one-sided that no rational trier of fact could find that adverse possession had not been established by clear and convincing evidence. While we agree with the defendants, that the quantity of evidence tends to fall in their favor, in assessing evidence, the trier of fact is the ultimate judge of credibility and is free to accept or reject any testimony it does not find credible. However, when a judge, sitting without jury, decides against the greater amount of the evidence, the judge is obligated to give a fuller explanation for his or her ruling. Under these circumstances, the findings in a bench trial must be sufficiently detailed, reasoned, and logical to enable the reviewing court to trace a persuasive path between the evidence and the judgment. See Schneiderman v. United States, 320 U.S. 118, 129-31. Where the determinative factor at trial is the credibility of the witnesses, this requires a trial court to specify what witnesses were not credited and why.

Additionally, though the clear error standard is formidable, it is not a bulldozer that crushes everything in its way. One important qualification is that the jurisprudence of clear error does not inhibit an appellate court’s power to correct errors of law, including those that may affect a so-called mixed finding of law and fact that is predicated on the misunderstanding of the governing rule of law. Similarly, the deference accorded to a circuit court may evaporate when, in making its ultimate decision: (1) a relevant factor that should have been given significant weight is not considered; (2) all proper factors, and no improper factors, are considered, but the circuit court in weighing those factors commits an error of judgment; and (3) the circuit court failed to exercise any discretion at all in issuing its decision. Banker v. Banker, 196 W.Va. 535 (1996).

Consistent with this approach, courts must be careful not to wear blinders. The judge must sift the evidence produced at trial and gather enough information to paint a true picture of the attendant facts and circumstances. The trial judge must then make a realistic appraisal of what the picture discloses. We think this analysis exposes the principal flaw in this case. The findings made by the trial court are inadequate to allow this Court to find that all relevant factors were considered. Though helpful, the findings are not all-encompassing. Indeed, the findings of the circuit court ignored the central thrust of the defendants’ evidence.

The circuit court either misunderstood or misapplied the theory of the defendants. The defendants do not claim that their actual possession of the property in question is sufficient to establish adverse possession. Rather, they contend that their predecessors in interest met all the necessary prerequisites of adverse possession and under the doctrine of tacking, the predecessors’ interest was passed onto the defendants. The circuit court’s findings never addressed this aspect of the defendants’ case. This conclusion draws sustenance from the circuit court’s order which provides in pertinent part:

 

10. Defendants did not exercise actual dominion over the area between the deed description and fence line.

 

 

11. The fence … was more likely a fence around the plaintiffs’ [property] rather than enclosing defendants’ property. The defendants did not maintain the fence nor did the defendants make any use of the small area of land in dispute between the boundary line and fence.

 

The upshot is that the circuit court failed to make any findings that would dispose of the defendants’ tacking claim. As we have stated several times above, a circuit court sitting without a jury cannot paint with too broad a brush. Rule 52(a) requires the trial judge make findings and conclusions of law that are sufficiently detailed to permit a reviewing court to ascertain the factual core of, and the legal foundation for, the ruling below. This bedrock rule has particular force in cases of this genre. Adverse possession claims are often marked by a significant degree of complexity. Typically, the resolution of such claims demands a careful sifting of imbricated and highly ramified facts. The legal principles that must be applied are convoluted, and they almost always touch upon ancient common-law precepts. Accordingly, a trial court must be scrupulous in chronicling the relevant facts and delineating the linkage of those facts and the ultimate conclusion of adverse possession vel non. To this end, the circuit court must discuss not only the evidence that supports its decision but also all the substantial evidence contrary to its opinion.¹⁴

Even though the circuit failed to make adequate findings, and virtually ignored the thrust of the defendants’ evidence as to tacking, the defendants are not entitled to an adverse judgment decision on appeal. It must be remembered that we do not sit in nisi prius, and at all times the burden of proof remains with the defendants as to adverse possession; plaintiffs’ burden is an entry level burden of production, if they have any at all. Thus, once the plaintiffs have proffered enough evidence to raise their title to the land, the ultimate burden of persuading the factfinder that they were the beneficiaries of adverse possession under the tacking theory rests with the defendants. On this basis, we reject the defendants’ request for judgment as to their adverse possession claim. As we stated in Burnside, 194 W.Va. at 275, “[f]indings of facts are adequate only if they are sufficient to indicate the factual basis for the ultimate conclusions. If an order lacks adequate detail, the case will be remanded for additional specificity.”

 

III. CONCLUSION

 

To recapitulate, the circuit court’s opinion in many respects deftly navigates the marshy terrain of adverse possession jurisprudence. Yet, we believe that the circuit court’s opinion lacks essential clarity in its factual findings. For one thing, the circuit court neither acknowledges nor discusses critical evidence that appears to support establishing adverse possession under the tacking theory. For another thing, it never identified nor adequately explained the evidence upon which it relied to support its ultimate conclusion. And, finally, it omits any meaningful discussion or mention of potentially salient factors such as the persuasive quality of the defendants’ overall evidence.

We leave the procedure to be followed on remand to the circuit court’s informed discretion, without endeavoring to set an outer limit on its range of options. At a minimum, the circuit court must discuss the evidence we have identified as troubling (or as possibly overlooked), and explain the relationship of this evidence to the issue of tacking and adverse possession. The circuit court need not stop there, however, it is free to reopen the record, to take additional evidence, and to reconsider any parts of its earlier ruling. To this end, while we neither require or anticipate a new trial, the court may in its discretion permit the parties to supplement the record with additional facts. Accordingly, the judgment of the Circuit Court of Mercer County is reversed and remanded.

James H. Reilly, Esq., for Plaintiff.

Lauren E. Jones, Esq., for Defendant.

 

Justice Indeglia, for the Court.

 

 

I: Facts and Procedural History

 

The property in dispute is located on Gooseberry Road in the Snug Harbor section of South Kingstown, Rhode Island. Identified as lot 19 on assessor’s plat 88-1, the land is sandwiched between lot 20, currently owned by Cahill, and lot 18, formerly co-owned by members of the Morrow family. Morrow is the record owner of the subject property, lot 19.

In 1969, Morrow’s husband, George Morrow, purchased lot 19,¹ and the same year George and his brothers jointly purchased lot 18. At the time of lot 19’s purchase, it was largely undeveloped, marked only by a preexisting clothesline, grass, and trees. Since that time, the Morrows have not improved or maintained lot 19, but have paid all property taxes assessed to it. As such, instead of vacationing on their lot 19, the Morrows annually spent two weeks in the summer at the cottages on the adjacent lot 18. During these vacations, the Morrow children and their cousins played on lot 19’s grassy area. Around 1985, the Morrows ceased summering on Gooseberry Road,² but continued to return at least once a year to view the lot. Morrow stopped visiting lot 19 in October 2002, after her husband became ill, and she did not return again until July 2006.

In 1971, two years after George Morrow purchased lot 19, Cahill’s mother bought the land and house designated as lot 20 as a summer residence. Between 1971 and 1975, Cahill and her brother did some work on lot 19. They occasionally cut the grass, placed furniture, and planted trees and flowers on it.

Cahill’s mother passed away in 1975, and in 1977, after purchasing her siblings’ shares, Cahill became the sole record owner of the lot 20 property. Once she became lot 20’s owner, Cahill began living in the house year-round. From that time through 1991, she and her boyfriend, James M. Cronin, testified that they continued to mow lot 19’s grass on occasion. In addition, she hung clothing on the clothesline, attached flags to the clothesline pole, used the picnic table,³ positioned a bird bath and feeder, and planted more flowers and trees. Cahill placed Adirondack chairs on lot 19 and eventually replaced the clothesline and picnic table. In 1987, Cahill held the first annual “cousins’ party” allowing her relatives free rein with respect to her property and lot 19 for playing, sitting, and car parking. She also entertained friends and family on lot 19 during other summer days. Mary Frances McGinn, Cahill’s cousin, likewise recalled that lot 19 was occupied by Cahill kindred during various family functions throughout this time period. Cahill admitted that she never objected to neighborhood children using lot 19, however.

During the period of 1991 through 1997, Cahill testified that she planted more flowers and trees, in addition to cutting the grass occasionally. Cahill also stored her gas grill and yard furniture on the lot and had her brother stack lobster pots for decorative purposes. In 1991 or 1992, she began hosting the annual “Cane Berry Blossom Festival,” another outdoor event that used both her lot and lot 19 as the party venue. Like the other gatherings, the festival always took place on a day during a warm-weather month. In 1997 or 1998, she installed a wooden border around the flower beds.

On July 22, 1997, Cahill wrote to George Morrow expressing an interest in obtaining title to lot 19. In the 1997 letter, Cahill stated: “I am interested in learning if your narrow strip of property is available for sale. If so, I would be interested in discussing purchasing it from you.” Cahill continued: “If there is a possibility that you would like to sell it, could you please either call me or send me a note?” Cahill did not receive a response.

In the “late 1990s,” though Cahill is unclear whether this occurred before or after the 1997 letter, a nearby marina sought permission to construct and elevate its property. Cahill attended the related zoning board hearings and expressed her concerns about increased flooding on lot 19 due to the marina elevation. She succeeded in having the marina developer grade part of lot 19 to alleviate flooding. Additionally, Cahill instituted her own trench and culvert drainage measures to divert water off of lot 19 and then reseeded the graded area. By Cahill’s own admission, however, her trenching and reseeding work occurred in 1999 or 2000.

Subsequent to 2001, the new owners of lot 18⁴ stored their boat on lot 19 and planted their own flowers and small trees on the property. In 2002, when the town (with approval from George Morrow) erected a stone wall and laid a sidewalk on the Gooseberry Road border of lot 19, Cahill loamed and planted grass on that portion of the lot. Also in 2002, Cahill asked Morrow’s two sisters on separate occasions whether George Morrow would be interested in selling lot 19. The Morrows gave no response to her 2002 inquiries. In 2003, George Morrow passed away.

After making her third inquiry concerning the purchase of lot 19 in 2002, Cahill testified, she continued using the property in a fashion similar to her prior practice until December 2005, when she noticed heavy-machinery tire marks and test pits on the land. Thereafter, she retained counsel and authorized her attorney to send a letter on January 10, 2006 to Morrow indicating her adverse possession claim to a “20-foot strip of land on the northerly boundary” of lot 19. According to a survey of the disputed property, however, the width of lot 19 from the northerly boundary (adjacent to Cahill’s property) to lot 18 is 49.97 feet and therefore, more than double what Cahill originally claimed in this letter. Nonetheless, on April 25, 2006, Cahill instituted a civil action requesting a declaration that based on her “uninterrupted, quiet, peaceful and actual seisin and possession” “for a period greater than 10 years,” she was the true owner of lot 19 in its entirety. On July 25, 2007, the trial justice agreed that Cahill had proved adverse possession under G.L.1956 § 34-7-1 and vested in her the fee simple title to lot 19.

… .

 

II: Standard of Review

 

“This Court gives great weight to the factual findings of a trial justice sitting without a jury in a civil matter, and we will not disturb such findings unless they are ‘clearly erroneous or unless the trial justice misconceived or overlooked material evidence or unless the decision fails to do substantial justice between the parties.’” … . “However, ‘[i]n contrast to our deferential stance vis-[a]-vis factual findings made by a trial justice, we review in a de novo manner a trial justice’s rulings concerning questions of law.’” Costa, 996 A.2d at 611 (quoting Grady v. Narragansett Electric Co., 962 A.2d 34, 41 (R.I. 2009)).

 

III: Analysis

 

 

 

A: The History and Policy Rationale of Adverse Possession

 

 

Before we begin our analysis, a brief history of adverse possession may be of assistance. After first using an amalgamation of Roman and Germanic doctrine, our English predecessors in common law later settled upon statutes of limitation to effect adverse possession. See Axel Teisen, Contributions of the Comparative Law Bureau, 3 A.B.A. J. 97, 126, 127, 134 (1917). In practice, the statutes eliminated a rightful owner’s ability to regain possession after the passing of a certain number of years, thereby vesting de facto title in the adverse possessor. See Restatement (Third) Property: Servitudes § 2.17, cmt. b at 263-64 (2000). For example, a 1623 statute of King James I restricted the right of entry to recover possession of land to a period of twenty years. 10 Thompson on Real Property § 87.01 at 74-75 (2d Thomas ed. 1998) (citing An Act for Limitation of Actions, and Avoiding of Suit in Law, 1623, 21 Jac. I., c. 16). Essentially, in England, the “[o]riginal policy supporting the development of adverse possession reflected society’s unwillingness to take away a ‘right’ which an adverse possessor thought he had. Similarly, society felt the loss of an unknown right by the title owner was minimal.” William G. Ackerman & Shane T. Johnson, Comment, Outlaws of the Past: A Western Perspective on Prescription and Adverse Possession, 31 Land & Water L.Rev. 79, 83 (1996). As an overarching principle, however, the English adhered to an irrefutable truth that “neither fraud nor might can make a title where there wanteth right.” J & M Land Co. v. First Union National Bank, 166 N.J. 493, 766 A.2d 1110, 1114 (2001) (quoting Altham’s Case, 8 Coke Rep. 150b, 153b, 77 Eng. Rep. 701, 707 (1610)).

In the United States, although the 1623 statute of King James I “came some years after the settling of Jamestown (the usual date fixed as the crystalizing of the common law in America), its fiat is generally accepted as [our] common law. Hence ‘adverse possession’ for 20 years under the common law in this country passes title to the adverse possessor with certain stated qualifications.” 10 Thompson on Real Property § 87.01 at 75. Today, all fifty states have some statutory form of adverse possession, typically requiring proof that “possession was actual, hostile, open and notorious, exclusive, and continuous for the period of the statute of limitations. Color of title and payment of taxes can also be elements in some cases.” Jeffrey Evans Stake, The Uneasy Case for Adverse Possession, 89 Geo. L.J. 2419, 2423 (2001); see Ackerman, 31 Land & Water L.Rev. at 84 n. 42, 111 (collecting adverse possession statutes for the fifty states).

Given the doctrine’s widespread codification in this country, adverse possession is certainly “part of our adoptive consciousness.” Ackerman, 31 Land & Water L.Rev. at 84. Courts and commentators generally ascribe to “four traditional justifications or clusters of justifications which support transferring the entitlement to the [adverse possessor] after the statute of limitations runs: the problem of lost evidence, the desirability of quieting titles, the interest in discouraging sleeping owners, and the reliance interests of [adverse possessors] and interested third persons.” Thomas W. Merrill, Property Rules, Liability Rules, and Adverse Possession, 79 Nw. U.L.Rev. 1122, 1133 (1984); see also Finley v. Yuba County Water District, 99 Cal.App.3d 691, 160 Cal.Rptr. 423, 427 (1979) (summarizing the rationales supporting adverse possession). Effectively, our society has made a policy determination that “all things should be used according to their nature and purpose” and when an individual uses and preserves property “for a certain length of time, [he] has done a work beneficial to the community.” Teisen, 3 A.B.A. J. at 127. For his efforts, “his reward is the conferring upon him of the title to the thing used.” Id. Esteemed jurist Oliver Wendell Holmes, Jr. went a step further than Teisen, basing our society’s tolerance of adverse possession on the ideal that “[a] thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1016 (10th Cir.2004) (quoting Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L.Rev. 457, 477 (1897)).

Regardless of how deeply the doctrine is engrained in our history, however, courts have questioned “whether the concept of adverse possession is as viable as it once was, or whether the concept always squares with modern ideals in a sophisticated, congested, peaceful society.” Finley, 160 Cal.Rptr. at 427. Commentators have also opined that, along with the articulated benefits of adverse possession, numerous disadvantages exist including the “infringement of a landowner’s rights, a decrease in value of the servient estate, and the encouraged exploitation and development of land. In addition, they represent the generation of animosity between neighbors, a source of damages to land or loss of land ownership, and the creation of uncertainty for the landowner.” Ackerman, 31 Land & Water L.Rev. at 92; see also Stake, 89 Geo. L.J. at 2432, 2433 (listing also “diminish[ing] utility by discouraging owners from letting others use their land,” wasting the rightful owner’s time and resources to monitor his land, and “creat[ing] an opportunity to steal land” as other costs associated with adverse possession). In reality, “[a]dverse possession ‘[i]s nothing more than a person taking someone else’s private property for his own private use.’ It is hard to imagine a notion more in contravention of the ideals set forth in the U.S. Constitution protecting life, liberty and property.” Ackerman, 31 Land & Water L.Rev. at 94-95 (quoting 2 C.J.S. Adverse Possession § 2 (1972)).

Although this Court duly recognizes its role as the judicial arm of government tasked with applying the law, rather than making law, it is not without an eyebrow raised at the ancient roots and arcane rationale of adverse possession that we apply the doctrine to this modern property dispute.

 

 

B: The Trial Justice’s Application of Rhode Island’s Adverse-Possession Precedent

 

 

In Rhode Island, obtaining title by adverse possession requires actual, open, notorious, hostile, continuous, and exclusive use of property under a claim of right for at least a period of ten years. Corrigan v. Nanian, 950 A.2d 1179, 1179 (R.I.2008) (mem.); see also § 34-7-1. “The party who asserts that adverse possession has occurred must establish the required elements by strict proof, that is, proof by clear and convincing evidence.”⁵Corrigan, 950 A.2d at 1179 (citing Tavares v. Beck, 814 A.2d 346, 350 (R.I.2003)); see also Carnevale v. Dupee, 853 A.2d 1197, 1199 (R.I.2004).

Here, the trial justice recited the proper standard of proof for adverse possession and then found that Cahill had

 

“met her burden of establishing all of the elements of an adverse possession claim to lot 19 by her and her mother’s continuous and uninterrupted use of the parcel for well in excess of ten years. She maintained the property, planted and improved the property with shrubs, trees, and other plantings, sought drainage control measures, and used the property as if it were her own since 1971. She established that use not only by her own testimony, but as corroborated by other witnesses, photographs, and expert testimony relative to the interpretation of aerial photographs.”

 

At trial, as here on appeal, Morrow argued that Cahill’s offers to purchase the property invalidated her claim of right and the element of hostile possession. To dispose of that issue, the trial justice determined that “even assuming that [Cahill’s] inquiry is circumstantial evidence of her knowledge that George Morrow, and subsequently Margaret [Morrow], were the legal title holders of [lot] 19, that does not destroy the viability of this adverse possession claim.” The trial justice relied upon our opinion in Tavares, 814 A.2d at 350, to support his conclusion. Recalling that this Court stated in Tavares that “even when the claimants know they are nothing more than black-hearted trespassers, they can still adversely possess the property in question under a claim [of] right to do so if they use it openly, notoriously, and in a manner that is adverse to the true owner’s rights for the requisite ten-year period,” the trial justice found that Cahill’s outward acknowledgement of Morrow’s record title did not alone “negate her claim of right.” He further found that “even if somehow the expression of interest in purchasing lot 19, made initially in 1997, stopped the running of the ten[-]year period under * * * § 34-7-1, the evidence was overwhelming that [Cahill] and her predecessor in title had commenced the requisite ten-year period beginning in 1971.”

 

 

C: Issues on Appeal

 

 

On appeal, Morrow challenges the trial justice’s legal conclusion that Cahill’s offers to purchase lot 19 did not extinguish her claim of right, hostile possession, and ultimately, the vesting of her title by adverse possession. Morrow also contends that the trial justice erred in finding that Cahill’s testimonial and demonstrative evidence was sufficient to prove adverse possession under the clear and convincing burden of proof standard. We agree that as a matter of law the trial justice failed to consider the impact of Cahill’s offers to purchase on the prior twenty-six years of her lot 19 use. As a result, we hold that this failure also affects his factual determinations.

 

 

 

1. 1997 Offer-to-Purchase Letter

 

 

 

In Tavares, this Court explained that “requir[ing] adverse possession under a claim of right is the same as requiring hostility, in that both terms simply indicate that the claimant is holding the property with an intent that is adverse to the interests of the true owner.” Tavares, 814 A.2d at 351 (quoting 16 Powell on Real Property, § 91.05[1] at 91-28 (2000)). “Thus, [we said] a claim of right may be proven through evidence of open, visible acts or declarations, accompanied by use of the property in an objectively observable manner that is inconsistent with the rights of the record owner.” Id. (citing Picerne v. Sylvestre, 122 R.I. 85, 91-92, 404 A.2d 476, 479-80 (1979)). Here, the first issue on appeal is how an offer to purchase has an impact on these elements.

To assert her position that Cahill’s 1997 offer to purchase lot 19 negates Cahill’s claim of right by failing to deny the owner’s title, Morrow argues that this Court should adhere to our precedent in Picerne and decline to credit the “dicta” in Tavares that the trial justice relied upon. Opportunely, however, the instant case permits this Court to affirm both precedents while clarifying a salient point of law regarding the effect offers to purchase have on the adverse possession elements of hostility and claim of right.

In Picerne, 122 R.I. at 91-92, 404 A.2d at 479-80, we focused on the narrow issue of whether a taxpayer who lost a home in a tax sale could prove hostile use for purposes of adverse possession. This Court considered whether the taxpayer’s affirmative and open acts, such as painting the exterior, installing a new door and windows, and replacing the front stairs put the tax-sale purchaser on sufficient notice that there was a “hostile air.” Id. at 92, 404 A.2d at 480. We explained that the “[h]ostility of possession necessary to establish adverse possession implies the denial of the owner’s title; and possession, however open and long it may be, is not adverse without the denial of the owner’s title.” Id. This Court held that the individuals in possession of the house failed to deny the tax-sale owner’s title for at least three years of the ten-year period because their possession was permissive. Id. We likewise ruled that the claim had failed because the taxpayer’s adverse actions did not meet the requisite ten-year period. Id. Without the requisite ten years of denying the owner’s title and ten years of possessing adversely to the owner’s title, the Picerne claimants could not establish adverse possession.

Analogously here, Cahill did not deny Morrow’s title when she sent her 1997 letter to George Morrow. Rather, she was outwardly declaring to the rightful owner himself the viability of his title and fully acknowledging her subservient interest to that owner’s title. This manifestation from Cahill interrupted the accrual of her claim. See Heggen v. Marentette, 144 N.W.2d 218, 242 (N.D.1966) (“[T]he recognition of the owner’s title by an adverse claimant interrupts the adverse possession.”); Smith v. Vermont Marble Co., 99 Vt. 384, 133 A. 355, 358 (1926) (“Nothing can more effectively interrupt the running of the [adverse possession] statute than an express acknowledgment of the true owner’s title. * * * This recognition of another’s title may be by acts, as well as words. So when one who was wrongfully [using another’s land] * * * yields to the latter’s demands * * * and offer[s] to buy the right, his adverse use is interrupted, and his claim of prescriptive right fails.”); see also Bowen v. Serksnas, 121 Conn.App. 503, 997 A.2d 573, 579 (2010) (“[T]he possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other. * * * Such an acknowledgment of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew.”) (quoting Allen v. Johnson, 79 Conn.App. 740, 831 A.2d 282, 286 (2003)); 3 Am.Jur.2d Adverse Possession § 104 at 171-72 (2002) (“Although efforts to obtain deeds from other claimants to the property do not disprove the hostile character of a possession, efforts to buy the property from the record owner constitute an acknowledgment of the record owner’s superior title, and thus disprove the adverse holding, because there has been no claim of right.”). Accordingly, applying Picerne to the instant facts, we hold that Cahill failed to deny George Morrow’s title by her 1997 letter, thereby halting her adverse-possession claim at that time. See Picerne, 122 R.I. at 92, 404 A.2d at 480.

Likewise, in Tavares, 814 A.2d at 351, with regard to “establishing hostility and possession under a claim of right,” we explained that “the pertinent inquiry centers on the claimants’ objective manifestations of adverse use rather than on the claimants’ knowledge that they lacked colorable legal title.” (Emphases added.) Essentially, Tavares turned on the difference between the adverse possession claimant’s “knowledge” regarding the owner’s title and his “objective manifestations” thereof. In that case, the adverse-possession claimant surveyed his land and discovered “that he did not hold title to the parcels in question.” Id. at 350. After such enlightenment, however, the claimant objectively manifested his claim of ownership to the parcels by “posting no-trespass signs, constructing stone walls, improving drainage, and wood cutting.” Id. at 352. This Court explained that simply having knowledge that he was not the title owner of the parcels was not enough to destroy his claim of right given his objective, adverse manifestations otherwise. Id. at 351-52. In fact, we went so far as to state that “even when claimants know that they are nothing more than black-hearted trespassers, they can still adversely possess the property in question under a claim of right to do so if they use it openly, notoriously, and in a manner that is adverse to the true owner’s rights for the requisite ten-year period.” Tavares, 814 A.2d at 351. This statement is legally correct considering that adverse possession does not require the claimant to make “a good faith mistake that he or she had legal title to the land.” 16 Powell on Real Property § 91.05[2] at 91-23; see 5 Restatement of the Law Property: Servitudes § 458, cmt. d at 2927 (1944) (“[I]t is not necessary in order that a use be adverse that it be made either in the belief or under a claim that it is legally justified.”). However, to the extent that Tavares’s reference to “black-hearted trespassers” suggests that this Court endorses an invade-and-conquer mentality in modern property law, we dutifully excise that sentiment from our jurisprudence.

In the case before this Court, Cahill went beyond mere knowledge that she was not the record owner by sending the offer-to-purchase letter. As distinguished from the Tavares claimant who did not communicate his survey findings with anyone, Cahill’s letter objectively declared the superiority of George Morrow’s title to the record owner himself. See Tavares, 814 A.2d at 352; see also Eddy v. Clayton, 44 So.2d 395, 397 (Miss.1950) (“Moreover, the request of appellant to purchase the land, which was later repeated, is a pointed answer to any contention of an adverse claim, since it was an acknowledgment of a superior title and claim of [the record owner].”); Chambers v. Bessent, 17 N.M. 487, 134 P. 237, 240 (1913) (“It may safely be assumed as a general proposition that, if a defendant in possession of disputed territory concede[s] that the true title is in another, and offer to purchase from him, then the continuity of adverse possession is broken.”) (quoting Headerick v. Fritts, 93 Tenn. 270, 24 S.W. 11, 12 (1893)); Shanks v. Collins, 782 P.2d 1352, 1355 (Okla.1989) (“A recognition by an adverse possessor that legal title lies in another serves to break the essential element of continuity of possession.”).

In the face of this precedent, Cahill contends that the trial justice accurately applied the law by finding that an offer to purchase does not automatically negate a claim of right in the property. While we agree that this proposition is correct with respect to offers made in an effort to make peace in an ongoing dispute, we disagree that this proposition applies in situations, as here, where no preexisting ownership dispute is evident. For example, the trial justice and Cahill both cited Richterberg v. Wittich Memorial Church, 222 F.Supp. 324, 328 (W.D.Okla.1963), to support their view that an offer to purchase should not defeat an otherwise valid claim of adverse possession. However, Richterberg dealt with an already disputed claim and offer to compromise. Id. (concluding that “[a]n offer of settlement or compromise made with reference to a pending suit is not admissible in evidence” and that “[b]argaining for an outstanding claim or title does not constitute a recognition of the superiority of such claim or title”). Here, there was no dispute ongoing when Cahill sent the 1997 letter. Her offer was not an olive branch meant to put an end to pending litigation with the Morrows. Rather, it was a clear declaration that Cahill “wanted title to the property” from the record owner. By doing so, she necessarily acknowledged that her interest in lot 19 was subservient to George Morrow’s. Likewise, the trial justice’s and Cahill’s citations to Manning v. Gregoire, 97 Or. 394, 191 P. 657, 658 (1920), are equally inapposite because again, unlike Cahill’s letter, the adverse possessor’s offer-to-purchase letter in Manning was an attempt “to buy his peace.” See also Sanderson v. McManus, 252 S.W.2d 351, 356 (Mo.1952) (“The fact that defendants attempted to purchase a strip 3 feet wide from plaintiffs * * * might have been persuasive evidence against the claim of adverse possession in some circumstances, but is not conclusive here * * *. If this were an effort to settle and adjust the controversy * * * an issue of fact was presented.”). Cahill also incorrectly proffers the holding of Branch v. Hinson, 183 So.2d 655, 659-60 (La.Ct.App. 1966), as supporting her position. In Branch, after a survey was conducted on the property, “a dispute arose between the adjoining owners as to precisely where the [property] line lay.” Id. at 659. Although “on several occasions [the claimant] attempted to purchase the strip in controversy as a means of settling all doubt as to where the correct dividing line lay[,]” the court held that these “offers to purchase did not constitute recognition of [the record owner’s] title * * *, but were merely attempts to compromise a disagreement without acknowledging or recognizing [the record owner’s] title to the land in dispute.” Id. at 660. Again, Cahill’s situation is distinguishable from the parties’ plight in Branch because there was no preexisting, ongoing dispute between Cahill and Morrow when Cahill sent the letter. Based on this caselaw, Cahill’s 1997 offer for purchase does, in fact, recognize the superior title of the record owner and arrests the accrual of her claim.

… .

As such, Cahill’s cited authorities do not convince this Court that an offer to purchase does not destroy the elements of hostility and claim of right when there is no ongoing dispute or outstanding claim. Here, the 1997 letter was not an attempt to make peace with her neighbors as a way to avoid litigation. Rather, Cahill was openly and objectively manifesting direct evidence that George Morrow was the true owner of lot 19 and her interest in the property was subservient to his. This communication negates the requisite claim of right that the doctrine of adverse possession requires and interrupts the accrual of Cahill’s claim. See Heggen, 144 N.W.2d at 242 (“[T]he recognition of the owner’s title by an adverse claimant interrupts the adverse possession.”); see also Bowen, 997 A.2d at 579 (“‘Such an acknowledgment of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew.’“). This Court holds as a matter of law that Cahill’s 1997 letter to George Morrow was an unequivocal offer to purchase that halted her claim of adverse possession at that point.

Accordingly, the trial justice erred by considering any incidents of ownership exhibited by Cahill after the 1997 letter to George Morrow interrupted her claim. Because the “drainage control measures” were instituted in 1999 or 2000 (by Cahill’s own admission), the trial justice should not have cited these acts as supporting Cahill’s adverse-possession case. Likewise, if the trial justice’s reference to Cahill’s “maint[enance of] the property” or “improve[ment of] the property with * * * other plantings” implicitly considered her reloaming and reseeding after the town installed the retaining wall and sidewalk in 2002 or her reseeding after the drainage improvements in 1999 or 2000, this reliance also was in error.

 

 

 

2. The Impact of Cahill’s Offer to Purchase on her Pre-1997 Adverse-Possession Claim

 

 

 

Furthermore, we also conclude that the trial justice should not have assumed that even if Cahill’s “inquiry is circumstantial evidence of her knowledge that George Morrow, and subsequently [Morrow], were the legal title holders of [lot] 19, that does not destroy the viability of this adverse possession claim.” We agree that an offer to purchase does not automatically invalidate a claim already vested by statute, but we nonetheless hold that the objective manifestations that another has superior title, made after the statutory period and not made to settle an ongoing dispute, are poignantly relevant to the ultimate determination of claim of right and hostile possession during the statutory period. See Harp v. Christian, 215 Ark. 833, 223 S.W.2d 778, 779 (1949) (“It is true that an offer to purchase will not divest a title that has already become vested in the adverse claimant, but such testimony may be considered in determining the character of the possession during the statutory period.”); Okuna v. Nakahuna, 60 Haw. 650, 594 P.2d 128, 132 n. 5 (1979) (“[A]ppellant’s conduct subsequent to the expiration of the statutory period of limitations, while not enough to defeat title already acquired by adverse possession, is evidence to be considered in determining whether the prior possession of appellant was in fact hostile.”); see also First National Bank of Marshall v. Beavers, 602 S.W.2d 327, 330 (Tex.Civ.App.1980) (“[W]here a possessor acknowledges another’s superior title * * * after the limitation period has been completed, such acknowledgment does not automatically destroy the title thus obtained, but it is admissible in evidence as tending to show that possession was not in fact adverse.”).

Cahill’s 1997 offer-to-purchase letter and the two 2002 purchase inquiries (though occurring after a time period statutorily sufficient to convey title by adverse possession) still are relevant as to whether the twenty-six years of possession prior to 1997 were made under a claim of right. How the offer and inquiries affect the nature and character of Cahill’s pre-1997 possession necessarily are questions for the fact-finder to evaluate and are not resolvable by this Court. See Lowe v. Cox, 210 Ark. 169, 194 S.W.2d 892, 896 (1946) (holding that “the weight to be given to such recognition [in an offer to purchase] would be a question for the jury, and the court could not declare as a matter of law that the mere fact that defendant had recognized the title of the [plaintiff] entitled plaintiff to a judgment for possession”) (quoting Shirey v. Whitlow, 80 Ark. 444, 97 S.W. 444, 445 (1906)); Gonthier v. Horne, 576 A.2d 745, 748 (Me.1990) (stating that deed requests made after the statutory period “rationally could be considered indicative of the nature of [the claimant’s] prior holding during the 20-year [statutory] period [that] * * * [t]he Superior Court acting as the trier of fact was free to determine, as clearly it did, that this evidence indicated that [the claimant] did not possess the parcel under a claim of right during the crucial 20-year period”).

 

 

 

3. Questions of Fact Remain

 

 

 

Despite the significant deference afforded to the trial justice’s findings of fact, such findings are not unassailable. Here, we find clear error in the trial justice’s conclusion that “even if somehow the expression of interest in purchasing [lot] 19, made initially in 1997, stopped the running of the ten[-]year period * * * the evidence was overwhelming that [Cahill] and her predecessor in title had commenced the requisite ten-year period beginning in 1971.” Given our opinion that some of Cahill’s lot 19 activities cannot be considered because of the time frame of their occurrence, we disagree that the trial record can be classified as presenting “overwhelming” evidence of adverse possession.

Specifically, this Court holds that the drainage improvements and lawn reseedings that occurred after the 1997 offer-to-purchase letter cannot be used as evidence of Cahill’s adverse possession. Whether the evidence remaining in the record is sufficient to constitute clear and convincing proof that Cahill perfected her claim prior to 1997 remains a question of fact. On remand, the trial justice is directed to limit his consideration to pre-1997 events and make specific determinations whether Cahill’s intermittent flower and tree planting, flag flying, clothesline replacing, lawn chair and beach-paraphernalia storing, and annual party hosting are adequate. Furthermore, given our ruling today, the trial court must evaluate the nature of Cahill’s and her predecessor’s twenty-six-year acts of possession in the harsh light of the fact that Cahill openly manifested the existence of George Morrow’s superior title on three occasions. Lastly, this Court instructs the trial court to determine the impact of Cahill’s initial demand, made in the letter of January 10, 2006, from her counsel to Morrow, on the claim of right and hostility elements. Cahill’s 2006 letter staked a claim only to “a 20-foot strip,” less than half the area of lot 19, while the later-filed 2006 complaint declared Cahill’s right to the entire parcel. How Cahill’s change of heart colors the adverse nature of her possession is a question that must be addressed by the finder of fact.

… .

Justice Flaherty, dissenting.

I respectfully dissent from the holding of the majority in this case. Before setting forth my reasons for doing so, however, I take this opportunity to express my approval of the Court’s scholarly opinion with respect to the origin and philosophy underpinning the doctrine of adverse possession. In summary, I agree with the majority’s observations about the efficacy of adverse possession in a modern world. The doctrine is a legal anachronism reminiscent of a time when landowners lived on or near their land and thus could observe encroachments on their property. Also, it is certainly worth noting that during the period when the adverse-possession doctrine developed, our society believed that it was in the public interest that land be used productively rather than being allowed to lie fallow. Neither of those situations is the case at present in our more mobile society. However, adverse possession remains the law in this state until the Legislature sees fit to change it.

 

A: The 1997 Letter

 

Simply put, I do not agree that the correspondence between plaintiff and defendant in which plaintiff offers to purchase defendant’s interest in lot 19 is the smoking gun the majority perceives it to be. As is clear from a fair reading of plaintiffs testimony, she believed that she owned the property as a result of her longtime use of and dominion over it. But her testimony also demonstrates that she drew a crisp distinction between whatever ownership rights she may have acquired and record title, which she recognized continued to reside in the Morrows. In my opinion, the trial justice correctly found that the “fact that the plaintiff beginning in 1997 inquired as to the Morrow’s willingness to consider a sale of the lot to her may certainly show that she was aware of the Morrow’s record title. That alone, however, does not negate her claim of right.” In Tavares v. Beck, 814 A.2d 346, 351 (R.I.2003), we held that the trial justice improperly factored a party’s subjective knowledge into a claim-of-right analysis. In that case, we clarified that “a claim of right to own or use property does not arise from the claimants’ mistaken belief that they hold title to the land, but rather from their objective acts of ownership evidencing an intent to use and possess the premises in a manner adverse to the owner of record.” Id. at 351-52. Further, we held that “[t]his remains true even in a situation in which the claimants know that they do not hold record title to the property in question * * *.” Id. at 352. Such is the case here. Therefore, the 1997 letter was not a “silver bullet,” but simply another piece of evidence that should have been, and properly was, considered by the trial justice.

Even if that letter were as significant as the majority contends, there is no doubt that it was sent after the statutory period had run. It is beyond dispute that plaintiffs correspondence could not serve to divest her of title if she had already acquired it by adverse possession. Rather, as this Court has discussed about the elements of exclusivity and claim of right, “in order for a defendant to successfully defend against an adverse possession claim of disputed land, ‘there would have to be evidence indicating that the defendants or others had made improvements to the land or, at the very least, had used the land in a more significant fashion than merely walking across it.’” Anthony v. Searle, 681 A.2d 892, 898 (R.I.1996) (quoting Gammons v. Caswell, 447 A.2d 361, 368 (R.I. 1982)). There certainly was credible evidence for the trial justice to find that plaintiff had used the property as her own for well over twenty years before she corresponded with Mr. Morrow in 1997. Further, there was a stark absence of evidence that the Morrows “used the land in a more significant fashion than merely walking across it.” Id. There is, in my opinion, ample support for this finding in the record, and the trial justice’s finding is not clearly wrong.

 

B: The Factual Findings

 

Likewise, it is my view that there is sufficient evidence in the record that plaintiffs use of the property satisfied the statutory requirements of actual, open, notorious and hostile use for a period of at least ten years. As we have said in numerous cases, to establish the requisite hostility, the adverse possessor “need only establish a use ‘inconsistent with the right of the owner without permission asked or given, * * * such as would entitle the owner to a cause of action against the intruder [for trespass].’” Tavares, 814 A.2d at 351 (quoting 16 Powell on Real Property, § 91.05[1] at 91-23 (2000)). Similarly, to satisfy the requirement of open and notorious use, a claimant must demonstrate that “the use to which the land is put must be similar to that which would ordinarily be made by owners of similarly situated real estate.” Id. at 352 (citing Sherman v. Goloskie, 95 R.I. 457, 466, 188 A.2d 79, 84 (1963)). Furthermore, it is appropriate for the trial court to “tak[e] properly into account the geophysical nature of [the] land.” Carnevale v. Dupee, 853 A.2d 1197, 1201 (R.I.2004) (quoting Anthony, 681 A.2d at 898).

The majority makes much of the fact that the plaintiff’s use of the land was somewhat sporadic and seasonal in nature. However, this is consistent with how owners of a vacant lot adjoining a home in a beach area of the state would use this type of property. To this point our Court has said, “[y]ear-round occupation is not required to prove actual and continuous possession.” Lee v. Raymond, 456 A.2d 1179, 1183 (R.I.1983). And, this Court also has held “that in determining whether there has been actual possession of property, there must be considered its character and locality, and the uses and purposes for which it is naturally adapted * * *.” Sherman, 95 R.I. at 466, 188 A.2d at 84 (quoting Goen v. Sansbury, 219 Md. 289, 149 A.2d 17, 21-22 (1959)). There was uncontradicted testimony that the plaintiff cut the grass, planted flowers, improved the flower beds, and entertained on the property. This is entirely compatible with the type of use that would be expected of the owner of unimproved land. Moreover, this Court repeatedly has made the statement that “[c]ultivating land, planting trees, and making other improvements in such a manner as is usual for comparable land have been successfully relied on as proof of the required possession.” Acampora v. Pearson, 899 A.2d 459, 467 (R.I. 2006) (quoting Anthony, 681 A.2d at 898).

I realize that because he discounted the legal effect of the 1997 letter from the plaintiff to the defendant inquiring about a possible sale of the property, the trial justice referred to some improvements that were made after the letter was sent. But, even discounting that consideration, the trial justice found “overwhelming evidence” that the plaintiff had exercised dominion over lot 19 as an owner would for well in excess of ten years.⁶ Viewing this case through the prism of our deferential standard of review, I am unable to conclude that the trial justice was clearly wrong when he found that the plaintiffs use of that land for a period exceeding two decades met the legal requirements to establish that she had acquired lot 19 by adverse possession. I therefore would affirm the judgment of the Superior Court.

James R. Bowers, Jr. and Keith E. Uhl of Scalise, Scism, Gentry, Brick & Brick, Des Moines, for appellant.

John D. Hudson and Timothy R. Williams of Carney, Hudson, Williams & Green, Des Moines, for appellees.

Considered by Uhlenhopp, P. J., and McCormick, Allbee, Larson,, and Schultz, JJ.

McCormick, Justice

Plaintiff Virginia Carpenter appeals from an adverse decree in her action to quiet title to land adjacent to her residential premises based on a theory of adverse possession. Defendants Charles L. Ruperto, Edith C. Ruperto, and Tom McCormick cross-appeal from a portion of the decree awarding plaintiff limited relief on equitable grounds. We affirm on the merits of the appeal and dismiss the cross-appeal for want of jurisdiction.

The determinative question on the appeal is whether the trial court misinterpreted the law governing the claim of right element in finding plaintiff failed to carry her burden of proof. The determinative question on the cross-appeal is whether it was timely.

Because the case was tried in equity, we find the facts anew. The evidence is largely undisputed.

Plaintiff and her husband moved in 1951 to a home which they purchased in southeast Des Moines. Plaintiff’s husband subsequently died, but plaintiff has lived on the premises continuously. Her lot has a frontage of 40 feet and is 125 feet long. It is legally described as:

 

Lot One Hundred Forty-Four (144) in Gray’s Subdivision of Lots Fifty (50) and Sixty-Two (62) in BROOKS AND COMPANY, an Addition, now included in and forming a part of the City of Des Moines, Iowa.

 

A larger undeveloped lot bounded plaintiff’s property to the north. It is described as:

 

The East 125 Feet of the North 474 Feet of Lot Sixty-Two (62) in BROOKS AND COMPANY’S ADDITION TO THE CITY OF DES MOINES, now included in and forming a part of the City of Des Moines, Iowa.

 

Defendants and their predecessors have held record title to this lot at all material times.

The property which plaintiff claims to have acquired by adverse possession is the south 60 feet of defendants’ lot. Thus, the property in dispute is a 60 by 125 foot parcel adjacent to the north boundary of plaintiff’s lot.

When plaintiff and her husband moved into their home in July 1951, the lot north of their property was a cornfield. Although plaintiff was not certain of the location of the northern boundary of her lot, she knew her lot’s dimensions, and she knew it did not include the cornfield. In 1952 the corn was not planted as far south on the adjacent lot. Concerned about rats and the threat of fire, and desiring additional yard for their children, plaintiff and her husband cleared several feet of the property to the north, graded it, and planted grass seed on it. Since that time plaintiff has used the land as an extension of her yard. She planted peony bushes on it during the 1950’s, installed a propane tank on it approximately 30 feet north of her lot in 1964, constructed a dirt bank on the city right of way to divert water from that parcel in 1965, and put in a driveway infringing five feet onto the land in 1975.

The remainder of defendants’ lot was planted in corn until approximately 1957. The lot was owned by Abraham and Beverly Rosenfeld from July 1960 until February 1978. During that period the only use Rosenfelds made of the property was to store junk and debris on it. Except for the strip used by plaintiff, the lot was overgrown with brush and weeds. The Rosenfelds paid all taxes and special assessments on the property. Plaintiff and her husband at one time obtained the Rosenfelds’ permission to keep a horse on the lot. On one occasion in the 1960’s plaintiff examined the plat of defendants’ lot in the courthouse to see if it ran all the way to a street to the north.

When defendant McCormick purchased his interest in the lot in 1978, he was aware of the possibility of a boundary dispute because of the location of plaintiff’s propane tank and driveway. He and the other defendants were unsuccessful in their efforts to settle the dispute with plaintiff, who subsequently brought this action.

In seeking to establish her ownership of the disputed parcel, plaintiff alleged she had “for more than thirty (30) years last past been in open, exclusive, hostile, adverse and actual possession under claim of right.”The trial court held in part that she did not establish her possession was under a claim of right. The court reasoned that a claim of right must be made in good faith and that plaintiff was not in good faith because she knew someone else had title to the land. Although the court found plaintiff had not proved her claim of adverse possession, it ordered defendants to “do equity” by deeding to her the strip of land her driveway was on and to pay the costs of moving the propane tank to her lot. The appeal and cross-appeal followed.

I. The appeal.

The doctrine of adverse possession is based on the ten-year statute of limitations for recovery of real property in section 614.1(5), The Code. One claiming title by adverse possession must establish hostile, actual, open, exclusive and continuous possession, under a claim of right or color of title, for at least ten years, by clear and positive proof. Because the law presumes possession under regular title, the doctrine is strictly construed. These and other governing principles are explained in I-80 Associates, Inc. v. Chicago, Rock Island and Pacific Railroad, 224 N.W.2d 8, 10-11 (Iowa 1974).

As permitted, plaintiff relied on claim of right rather than color of title. In contending the trial court erred in finding she failed in her proof of this element, she attacks the viability of the principal case relied on by the trial court, Goulding v. Shonquist, 159 Iowa 647, 141 N.W. 24 (1913). Its facts are analogous to those here.

In Goulding the individual also cleared land adjacent to his house. The land was overrun with brush and willows and was frequented by hunters. After clearing it, the individual used the land as a pasture and garden. In finding he did not establish good faith claim of right, the court said:

 

When he moved into his present property, the lands in question were objectionable because they were frequented by hunters, and for that reason he and his wife thought they ought to clear them up. He says he supposed they were part of the old river bed or waste land upon which anyone could enter. No other facts are offered by defendant as a reason for entering into the possession of the land at that time. Whether the title to the land was in the state or some other person, the defendant knew that he had no title and that he had no claim of title, and no right whatever to enter into the possession, and his possession was not in good faith for that reason.

 

Id. at 651, 141 N.W. at 25. The court quoted a statement from Litchfield v. Sewell, 97 Iowa 247, 251, 66 N.W. 104, 106 (1896), that “that there can be no such thing as adverse possession where the party knows he has no title, and that, under the law, he can acquire none by his occupation.”

Plaintiff argues that it is inconsistent to say ownership can be acquired by claim of right as an alternative to color of title and at the same time say ownership cannot be acquired by a person who knows he does not have title. She also argues that the good faith requirement was eliminated by the court’s decision in I-80 Associates, Inc. Although we agree it is an overstatement to say ownership cannot be acquired by a person who knows he does not have title, plaintiff is incorrect in her argument that good faith is not an essential component of claim of right. Moreover, we agree with the trial court that plaintiff did not prove this element of her adverse possession claim.

The overbreadth of the statement that title cannot be obtained through adverse possession by one who knows he has no title is demonstrated in Litchfield, Goulding and subsequent decisions. In Litchfield the court rejected the adverse possession claim of a person in possession of land under a quitclaim deed from a squatter. In finding an absence of good faith, the court noted the adverse possession doctrine “has no application to one who actually knows that he has no claim, or title, or right to a title.” 97 Iowa at 250, 66 N.W. at 106. Under this holding a mere squatter or one who claims under a squatter cannot have a good faith claim of right to the property, but mere knowledge by the person that he has no title is not preclusive. A claim of right by a squatter is a false claim. To permit a squatter to assert a claim of right would put a premium on dishonesty. See 4 H. Tiffany, Real Property s 1147 at 792 (3d ed. 1975). One of the main purposes of the claim of right requirement is “to bar mere squatters from the benefits of adverse possession.”7 R. Powell, Real Property P 1015 (Rohan ed. 1981).

As in Litchfield, the possessor in Goulding not only knew that he had no title but that he had no claim of title or any right to enter into possession of the property. He was a mere squatter.

Knowledge of a defect in title is not alone sufficient to preclude proof of good faith:

 

One is not deprived of the benefit of the statute of limitations merely because his claim of right is unenforceable or his title is known to be defective. The doctrine of adverse possession presupposes a defective title. It is not based on, but is hostile to, the true title. If the statute were to run only in favor of a valid title, it would serve no purpose. The holder of such a title has no need to invoke the statute. Where bad faith is held to negative an alleged claim of right, it is only another way of saying that such claim has been disproved.

 

Creel v. Hammans, 234 Iowa 532, 535, 13 N.W.2d 305, 307 (1944).

Nevertheless, when knowledge of lack of title is accompanied by knowledge of no basis for claiming an interest in the property, a good faith claim of right cannot be established. For example, a mere exchange of quitclaim deeds by persons who know legal title is in another will not support a claim of right:

 

It is evident the claim and possession of George C. Abel could not have been in good faith. There was no reason why he and his brother should believe they had any right to divide and apportion between themselves the real estate of their father while he was an insane patient in the state hospital. They must be held to have known the quitclaim deeds they exchanged gave them no title. At best, they proceeded upon what proved to be an unfounded assumption that their father would never be discharged from the adjudication of insanity. No claim of ownership by adverse possession will be sustained upon such a foundation. Plaintiff’s position at this point does not appeal to a court of equity.

 

Abel v. Abel, 245 Iowa 907, 920, 65 N.W.2d 68, 75 (1954).

The good faith requirement was not an issue in I-80 Associates, Inc. The discussion of claim of right in that case concerned mode of proof and did not include a comprehensive definition of the element. See 224 N.W.2d at 11. The requirement of good faith was implicitly reaffirmed in a subsequent case, Pearson v. City of Guttenberg, 245 N.W.2d 519, 532 (Iowa 1976). We now confirm that good faith, as explained in this case, is essential to adverse possession under a claim of right.

We believe plaintiff failed to prove a good faith claim of right in the present case. She knew her lot did not include the cornfield north of it. She knew someone else had title to it and she had no interest in it or claim to it. This is not a case of confusion or mistake. At the time she entered possession of the disputed land, plaintiff knew she had no legal right to do so. To say that one can acquire a claim of right by merely entering possession would recognize squatter’s rights. Possession for the statutory period cannot be bootstrapped into a basis for claiming a right to possession.

We hold that the trial court was right in rejecting plaintiff’s claim.

II. The cross-appeal.

Under Iowa R.App. 5(a), a “cross-appeal may be taken within the thirty days for taking an appeal or in any event within five days after the appeal is taken.”Defendants did not take their cross-appeal within the thirty days for taking an appeal. Nor did they take their cross-appeal within five days after plaintiff filed her notice of appeal with the clerk of the district court. They argue, however, that the rule should be interpreted to allow a cross-appeal within five days after receipt of a copy of the notice of appeal. They provided an affidavit to show their cross-appeal was taken within five days after their attorney received a copy of the notice of appeal in the mail.

The rule is not susceptible to the interpretation urged by defendants. The five-day period commences when an appeal is “taken.” Under rule 6(a), the appeal is “taken and perfected by filing a notice with the clerk of court where the order, judgment or decree was entered, signed by appellant or his attorney.”Therefore the five-day period began on the date the notice of appeal was filed with the clerk, and the cross-appeal was taken too late. Compliance with the time limitations for taking a cross-appeal is mandatory and jurisdictional. See Hogan v. Chesterman, 279 N.W.2d 12 (Iowa 1979). Because the cross-appeal was untimely, we did not acquire jurisdiction of it, and it must be dismissed.

AFFIRMED ON THE APPEAL; DISMISSED ON THE CROSS-APPEAL.

Glenn E. Correa, Shelton, for appellant.

R. F. Dotsch, Philip W. Richardson, Olympia, for respondent.

Pearson, Judge.

Land surveying is an ancient art but not one free of the errors that often creep into the affairs of men. In this case, we are presented with the question of what happens when the descriptions in deeds do not fit the land the deed holders are occupying. Defendants appeal from a decree quieting title in the plaintiffs of a tract of land on the shore of Hood Canal in Mason County.

At least as long ago as 1932 the record tells us that one McCall resided in the house now occupied by the appellant-defendants, Kunto. McCall had a deed that described a 50-foot-wide parcel on the shore of Hood Canal. The error¹ that brings this case before us is that 50 feet described in the deed is not the same 50 feet upon which McCall’s house stood. Rather, the described land is an adjacent 50-foot lot directly west of that upon which the house stood. In other words, McCall’s house stood on one lot and his deed described the adjacent lot.² Several property owners to the west of defendants, not parties to this action, are similarly situated.

Over the years since 1946, several conveyances occurred, using the same legal description and accompanied by a transfer of possession to the succeeding occupants. The Kuntos’ immediate predecessors in interest, Millers, desired to build a dock. To this end, they had a survey performed which indicated that the deed description and the physical occupation were in conformity. Several boundary stakes were placed as a result of this survey and the dock was constructed, as well as other improvements. The house as well as the others in the area continued to be used as summer recreational retreats.

The Kuntos then took possession of the disputed property under a deed from the Millers in 1959. In 1960 the respondent-plaintiffs, Howard, who held land east of that of the Kuntos, determined to convey an undivided one-half interest in their land to the Yearlys. To this end, they undertook to have a survey of the entire area made. After expending considerable effort, the surveyor retained by the Howards discovered that according to the government survey, the deed descriptions and the land occupancy of the parties did not coincide. Between the Howards and the Kuntos lay the Moyers’ property. When the Howards’ survey was completed, they discovered that they were the record owners of the land occupied by the Moyers and that the Moyers held record title to the land occupied by the Kuntos. Howard approached Moyer and in return for a conveyance of the land upon which the Moyers’ house stood, Moyer conveyed to the Howards record title to the land upon which the Kunto house stood. Until plaintiffs Howard obtained the conveyance from Moyer in April, 1960, neither Moyer nor any of his predecessors ever asserted any right to ownership of the property actually being possessed by Kunto and his predecessors. This action was then instituted to quiet title in the Howards and Yearlys. The Kuntos appeal from a trial court decision granting this remedy.

At the time this action was commenced on August 19, 1960,³ defendants had been in occupance of the disputed property less than a year. The trial court’s reason for denying their claim of adverse possession is succinctly stated in its memorandum opinion: “In this instance, defendants have failed to prove, by a preponderance of the evidence, a continuity of possession or estate to permit tacking of the adverse possession of defendants to the possession of their predecessors.”

Finding of fact 6,⁴ which is challenged by defendants, incorporates the above concept and additionally finds defendant’s possession not to have been “continuous” because it involved only “summer occupancy.”

Two issues are presented by this appeal:

 

(1) Is a claim of adverse possession defeated because the physical use of the premises is restricted to summer occupancy?

 

 

(2) May a person who receives record title to tract A under the mistaken belief that the has title to tract B (immediately contiguous to tract A) and who subsequently occupies tract B, for the purpose of establishing title to tract B by adverse possession, use the periods of possession of tract B by his immediate predecessors who also had record title to tract A?

 

In approaching both of these questions, we point out that the evidence, largely undisputed in any material sense, established that defendant or his immediate predecessors did occupy the premises, which we have called tract B, as though it was their own for far more than the 10 years as prescribed in RCW 4.16.020.⁵

We also point out that findings of fact is not challenged for its factual determinations but for the conclusions contained therein to the effect that the continuity of possession may not be established by summer occupancy, and that a predecessor’s possession may not be tacked because a legal ‘claim of right’ did not exist under the circumstances.

We start with the oft-quoted rule that:

 

(T)o constitute adverse possession, there must be actual possession which is uninterrupted, open and notorious, hostile and exclusive, and under a Claim of right made in good faith for the statutory period.

 

(Italics ours.) Butler v. Anderson, 71 Wash.2d 60, 64, 426 P.2d 467, 470 (1967). Also see Fadden v. Purvis, 77 Wash.Dec.2d 22, 459 P.2d 385 (1969) and cases cited therein.

We reject the conclusion that summer occupancy only of a summer beach home destroys the continuity of possession required by the statute. It has become firmly established that the requisite possession requires such possession and dominion ‘as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition.’ Whalen v. Smith, 183 Iowa 949, 953, 167 N.W. 646, 647 (1918). Also see Mesher v. Connolly, 63 Wash.2d 552, 388 P.2d 144 (1964); Skoog v. Seymour, 29 Wash.2d 355, 187 P.2d 304 (1947); Butler v. Anderson, Supra; Fadden v. Purvis, Supra.

We hold that occupancy of tract B during the summer months for more than the 10-year period by defendant and his predecessors, together with the continued existence of the improvements on the land and beach area, constituted ‘uninterrupted’ possession within this rule. To hold otherwise is to completely ignore the nature and condition of the property. See Fadden v. Purvis, Supra.

We find such rule fully consonant with the legal writers on the subject. In F. Clark, Law of Surveying and Boundaries, s 561 (3d ed. 1959) at 565: “Continuity of possession may be established although the land is used regularly for only a certain period each year.” Further, at 566:

 

This rule (which permits tacking) is one of substance and not of absolute mathematical continuity, provided there is no break so as to sever two possessions. It is not necessary that the occupant should be actually upon the premises continually. If the land is occupied during the period of time during the year it is capable of use, there is sufficient continuity.

 

We now reach the question of tacking. The precise issue before us is novel in that none of the property occupied by defendant or his predecessors coincided with the property described in their deeds, but was contiguous.

In the typical case, which has been subject to much litigation, the party seeking to establish title by adverse possession claims More land than that described in the deed. In such cases it is clear that tacking is permitted.

In Buchanan v. Cassell, 53 Wash.2d 611, 614, 335 P.2d 600, 602 (1959) the Supreme Court stated:

 

This state follows the rule that a purchaser may tack the adverse use of its predecessor in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description.

 

El Cerrito, Inc. v. Ryndak, 60 Wash.2d 847, 376 P.2d 528 (1962).

The general statement which appears in many of the cases is that tacking of adverse possession is permitted if the successive occupants are in ‘privity.’ See Faubion v. Elder, 49 Wash.2d 300, 301 P.2d 153 (1956). The deed running between the parties purporting to transfer the land possessed traditionally furnishes the privity of estate which connects the possession of the successive occupants. Plaintiff contends, and the trial court ruled, that where the deed does not describe Any of the land which was occupied, the actual transfer of possession is insufficient to establish privity.

To assess the cogency of this argument and ruling, we must turn to the historical reasons for requiring privity as a necessary prerequisite to tacking the possession of several occupants. Very few, if any, of the reasons appear in the cases, nor do the cases analyze the relationships that must exist between successive possessors for tacking to be allowed. See W. Stoebuck, The Law of Adverse Possession In Washington in 35 Wash.L.Rev. 53 (1960).

The requirement of privity had its roots in the notion that a succession of trespasses, even though there was no appreciable interval between them, should not, in equity, be allowed to defeat the record title. The ‘claim of right,’ ‘color of title’ requirement of the statutes and cases was probably derived from the early American belief that the squatter should not be able to profit by his trespass.⁶

However, it appears to this court that there is a substantial difference between the squatter or trespasser and the property purchaser, who along with several of his neighbors, as a result of an inaccurate survey or subdivision,⁷ occupies and improves property exactly 50 feet to the east of that which a survey some 30 years later demonstrates that they in fact own. It seems to us that there is also a strong public policy favoring early certainty as to the location of land ownership which enters into a proper interpretation of privity.

On the irregular perimeters of Puget Sound exact determination of land locations and boundaries is difficult and expensive. This difficulty is convincingly demonstrated in this case by the problems plaintiff’s engineer encountered in attempting to locate the corners. It cannot be expected that every purchaser will or should engage a surveyor to ascertain that the beach home he is purchasing lies within the boundaries described in his deed. Such a practice is neither reasonable nor customary. Of course, 50-foot errors in descriptions are devasting where a group of adjacent owners each hold 50 feet of waterfront property.

The technical requirement of ‘privity’ should not, we think, be used to upset the long periods of occupancy of those who in good faith received an erroneous deed description. Their ‘claim of right’ is no less persuasive than the purchaser who believes he is purchasing More land than his deed described.

In the final analysis, however, we believe the requirement of ‘privity’ is no more than judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or the trespasser. We think such reasonable connection exists in this case.

Where, as here, several successive purchasers received record title to tract A under the mistaken belief that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, we hold there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter of law.

We see no reason in law or in equity for differentiating this case from Faubion v. Elder, 49 Wash.2d 300, 301 P.2d 153 (1956) where the appellants were claiming More land than their deed described and where successive periods of occupation were allowed to be united to each other to make up the time of adverse holding. To the same effect See Naher v. Farmer, 60 Wash. 600, 111 P. 768 (1910), and cases cited therein; Buchanan v. Cassell, 53 Wash.2d 611, 335 P.2d 600 (1959) and cases cited therein; El Cerrito, Inc. v. Ryndak, 60 Wash.2d 847, 376 P.2d 528 (1962); See 17 A.L.R.2d 1128 (1951). This application of the privity requirement should particularly pertain where the holder of record title to tract B acquired the same with knowledge of the discrepancy.

Judgment is reversed with directions to dismiss plaintiffs’ action and to enter a decree quieting defendants’ title to the disputed tract of land in accordance with the prayer of their cross-complaint.

ARMSTRONG, P.J., and PETRIE, J., concur.

Constance Cates Ringstad, Paul A. Barrett, Call, Barrett & Burbank, Fairbanks, for appellants.

Jon R. Larson, Larson, Timbers & Van Winkle, Inc., Nome, for appellees.

Before Matthews, C.J., and Rabinowitz, Burke, Compton and Moore, JJ.

Matthews, Chief Justice.

This appeal involves a dispute over a tract of land measuring approximately seven and one-half acres, overlooking the Nome River (hereinafter the disputed parcel).¹ Record title to a tract of land known as mineral survey 1161, which includes the disputed parcel, is held by Nome 2000.

On July 24, 1987, Nome 2000 filed suit to eject Charles and Peggy Fagerstrom from the disputed parcel. The Fagerstroms counterclaimed that through their use of the parcel they had acquired title by adverse possession.

A jury trial ensued and, at the close of the Fagerstroms’ case, Nome 2000 moved for a directed verdict on two grounds. First, it maintained that the Fagerstroms’ evidence of use of the disputed parcel did not meet the requirements of the doctrine of adverse possession. Alternatively, Nome 2000 maintained that the requirements for adverse possession were met only as to the northerly section of the parcel and, therefore, the Fagerstroms could not have acquired title to the remainder. The trial court denied the motion. After Nome 2000 presented its case, the jury found that the Fagerstroms had adversely possessed the entire parcel. The court then entered judgment in favor of the Fagerstroms.

On appeal, Nome 2000 contests the trial court’s denial of its motion for a directed verdict and the sufficiency of the evidence in support of the jury verdict. It also challenges two evidentiary rulings made by the trial court and the trial court’s award of attorney’s fees to the Fagerstroms.

I. FACTUAL BACKGROUND²

The disputed parcel is located in a rural area known as Osborn. During the warmer seasons, property in Osborn is suitable for homesites and subsistence and recreational activities. During the colder seasons, little or no use is made of Osborn property.

Charles Fagerstrom’s earliest recollection of the disputed parcel is his family’s use of it around 1944 or 1945. At that time, he and his family used an abandoned boy scout cabin present on the parcel as a subsistence base camp during summer months. Around 1947 or 1948, they moved their summer campsite to an area south of the disputed parcel. However, Charles and his family continued to make seasonal use of the disputed parcel for subsistence and recreation.

In 1963, Charles and Peggy Fagerstrom were married and, in 1966, they brought a small quantity of building materials to the north end of the disputed parcel. They intended to build a cabin.

In 1970 or 1971, the Fagerstroms used four cornerposts to stake off a twelve acre, rectangular parcel for purposes of a Native Allotment application.³ The northeast and southeast stakes were located on or very near mineral survey 1161. The northwest and southwest stakes were located well to the west of mineral survey 1161. The overlap constitutes the disputed parcel. The southeast stake disappeared at an unknown time.

Also around 1970, the Fagerstroms built a picnic area on the north end of the disputed parcel. The area included a gravel pit, beachwood blocks as chairs, firewood and a 50-gallon barrel for use as a stove.

About mid-July 1974, the Fagerstroms placed a camper trailer on the north end of the disputed parcel. The trailer was leveled on blocks and remained in place through late September. Thereafter, until 1978, the Fagerstroms parked their camper trailer on the north end of the disputed parcel from early June through September. The camper was equipped with food, bedding, a stove and other household items.

About the same time that the Fagerstroms began parking the trailer on the disputed parcel, they built an outhouse and a fish rack on the north end of the parcel. Both fixtures remained through the time of trial in their original locations.⁴ The Fagerstroms also planted some spruce trees, not indigenous to the Osborn area, in 1975-76.

During the summer of 1977, the Fagerstroms built a reindeer shelter on the north end of the disputed parcel. The shelter was about 8×8 feet wide, and tall enough for Charles Fagerstrom to stand in. Around the shelter, the Fagerstroms constructed a pen which was 75 feet in diameter and 5 feet high. The shelter and pen housed a reindeer for about six weeks and the pen remained in place until the summer of 1978.

During their testimony, the Fagerstroms estimated that they were personally present on the disputed parcel from 1974 through 1978, “every other weekend or so” and “[a] couple times during the week … if the weather was good.” When present they used the north end of the parcel as a base camp while using the entire parcel for subsistence and recreational purposes. Their activities included gathering berries, catching and drying fish and picnicking. Their children played on the parcel. The Fagerstroms also kept the property clean, picking up litter left by others.

While so using the disputed parcel, the Fagerstroms walked along various paths which traverse the entire parcel. The paths were present prior to the Fagerstroms’ use of the parcel and, according to Peggy Fagerstrom, were free for use by others in connection with picking berries and fishing. On one occasion, however, Charles Fagerstrom excluded campers from the land. They were burning the Fagerstroms’ firewood.

Nome 2000 placed into evidence the deposition testimony of Dr. Steven McNabb, an expert in anthropology, who stated that the Fagerstroms’ use of the disputed parcel was consistent with the traditional Native Alaskan system of land use. According to McNabb, unlike the non-Native system, the traditional Native system does not recognize exclusive ownership of land. Instead, customary use of land, such as the Fagerstroms’ use of the disputed parcel, establishes only a first priority claim to the land’s resources. The claim is not exclusive and is not a matter of ownership, but is more in the nature of a stewardship. That is, other members of the claimant’s social group may share in the resources of the land without obtaining permission, so long as the resources are not abused or destroyed. McNabb explained that Charles’ exclusion of the campers from the land was a response to the campers’ use of the Fagerstroms’ personal property (their firewood), not a response to an invasion of a perceived real property interest.⁵

Nevertheless, several persons from the community testified that the Fagerstroms’ use of the property from 1974 through 1977 was consistent with that of an owner of the property. For example, one Nome resident testified that since 1974 “[the Fagerstroms] cared for [the disputed parcel] as if they owned it. They made improvements on it as if they owned it. It was my belief that they did own it.”

During the summer of 1978, the Fagerstroms put a cabin on the north end of the disputed parcel. Nome 2000 admits that from the time that the cabin was so placed until the time that Nome 2000 filed this suit, the Fagerstroms adversely possessed the north end of the disputed parcel. Nome 2000 filed its complaint on July 24, 1987.

II. DISCUSSION

 

 

A.

 

 

The Fagerstroms’ claim of title by adverse possession is governed by AS 09.10.030, which provides for a ten-year limitations period for actions to recover real property.⁶ Thus, if the Fagerstroms adversely possessed the disputed parcel, or any portion thereof, for ten consecutive years, then they have acquired title to that property. See Hubbard v. Curtiss, 684 P.2d 842, 849 (Alaska 1984) (“[T]itle automatically vests in the adverse possessor at the end of the statutory period.”). Because the Fagerstroms’ use of the parcel increased over the years, and because Nome 2000 filed its complaint on July 24, 1987, the relevant period is July 24, 1977 through July 24, 1987.

We recently described the elements of adverse possession as follows: “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.’” Smith v. Krebs, 768 P.2d 124, 125 (Alaska 1989) (citations omitted). The first three conditions-continuity, notoriety and exclusivity-describe the physical requirements of the doctrine. See R. Cunningham, W. Stoebuck and D. Whitman, The Law of Property § 11.7 at 758-60, 762-63 (1984). The fourth condition, hostility, is often imprecisely described as the “intent” requirement. Id. at 761.

On appeal, Nome 2000 argues that as a matter of law the physical requirements are not met absent “significant physical improvements” or “substantial activity” on the land. Thus, according to Nome 2000, only when the Fagerstroms placed a cabin on the disputed parcel in the summer of 1978 did their possession become adverse. For the prior year, so the argument goes, the Fagerstroms’ physical use of the property was insufficient because they did not construct “significant structure[s]” and their use was only seasonal. Nome 2000 also argues that the Fagerstroms’ use of the disputed parcel was not exclusive because “[o]thers were free to pick the berries, use the paths and fish in the area.” We reject these arguments.

Whether a claimant’s physical acts upon the land are sufficiently continuous, notorious and exclusive does not necessarily depend on the existence of significant improvements, substantial activity or absolute exclusivity. Indeed, this area of law is not susceptible to fixed standards because the quality and quantity of acts required for adverse possession depend on the character of the land in question. Thus, the conditions of continuity and exclusivity require only that the land be used for the statutory period as an average owner of similar property would use it. Alaska National Bank v. Linck, 559 P.2d 1049, 1052 (Alaska 1977) (One test for determining continuity of possession is to ask whether the land was used as an average owner would use it.); Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 831 (Alaska 1974) (“[P]ossession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner’s use.”). Where, as in the present case, the land is rural, a lesser exercise of dominion and control may be reasonable. See Linck, 559 P.2d at 1052 (citing Cooper v. Carter Oil Co., 7 Utah 2d 9, 316 P.2d 320 (1957) for the proposition that “pasturing of sheep for three weeks a year is sufficient where land is suitable only for grazing”), 1053 (citing Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d 55, 56 (1951) for the proposition that “6 visits per year to hunting cabin plus some timber cutting found sufficient where land was wild and undeveloped”); Peters, 519 P.2d at 831 (citing Pulcifer v. Bishop, 246 Mich. 579, 225 N.W. 3 (1929) for the proposition that exclusivity is not destroyed as to beach property commonly used by others).

The character of the land in question is also relevant to the notoriety requirement. Use consistent with ownership which gives visible evidence of the claimant’s possession, such that the reasonably diligent owner “could see that a hostile flag was being flown over his property,” is sufficient. Shilts v. Young, 567 P.2d 769, 776 (Alaska 1977). Where physical visibility is established, community repute is also relevant evidence that the true owner was put on notice.⁷Id.

Applying the foregoing principles to this case, we hold that the jury could reasonably conclude that the Fagerstroms established, by clear and convincing evidence, continuous, notorious and exclusive possession for ten years prior to the date Nome 2000 filed suit.⁸ We point out that we are concerned only with the first year, the summer of 1977 through the summer of 1978, as Nome 2000 admits that the requirements of adverse possession were met from the summer of 1978 through the summer of 1987.

The disputed parcel is located in a rural area suitable as a seasonal homesite for subsistence and recreational activities. This is exactly how the Fagerstroms used it during the year in question. On the premises throughout the entire year were an outhouse, a fish rack, a large reindeer pen (which, for six weeks, housed a reindeer), a picnic area, a small quantity of building materials and some trees not indigenous to the area. During the warmer season, for about 13 weeks, the Fagerstroms also placed a camper trailer on blocks on the disputed parcel. The Fagerstroms and their children visited the property several times during the warmer season to fish, gather berries, clean the premises, and play. In total, their conduct and improvements went well beyond “mere casual and occasional trespasses” and instead “evince[d] a purpose to exercise exclusive dominion over the property.” See Peters, 519 P.2d at 830. That others were free to pick berries and fish is consistent with the conduct of a hospitable landowner, and undermines neither the continuity nor exclusivity of their possession. See id. at 831 (claimant “merely acting as any other hospitable landowner might” in allowing strangers to come on land to dig clams).

With respect to the notoriety requirement, a quick investigation of the premises, especially during the season which it was best suited for use, would have been sufficient to place a reasonably diligent landowner on notice that someone may have been exercising dominion and control over at least the northern portion of the property. Upon such notice, further inquiry would indicate that members of the community regarded the Fagerstroms as the owners. Continuous, exclusive, and notorious possession were thus established.

Nome 2000 also argues that the Fagerstroms did not establish hostility. It claims that “the Fagerstroms were required to prove that they intended to claim the property as their own.” According to Nome 2000, this intent was lacking as the Fagerstroms thought of themselves not as owners but as stewards pursuant to the traditional system of Native Alaskan land usage. We reject this argument and hold that all of the elements of adverse possession were met.

What the Fagerstroms believed or intended has nothing to do with the question whether their possession was hostile. See Peters, 519 P.2d at 832 (with respect to the requirement of hostility, the possessor’s “beliefs as to the true legal ownership of the land, his good faith or bad faith in entering into possession … are all irrelevant.”); The Law of Property at 761 (citing, inter alia, Peters for the view “of most decisions and of nearly all scholars, that what the possessor believes or intends should have nothing to do with [hostility]”). Hostility is instead determined by application of an objective test which simply asks whether the possessor “acted toward the land as if he owned it,” without the permission of one with legal authority to give possession. Hubbard, 684 P.2d at 848 (citing Peters, 519 P.2d at 832). As indicated, the Fagerstroms’ actions toward the property were consistent with ownership of it, and Nome 2000 offers no proof that the Fagerstroms so acted with anyone’s permission. That the Fagerstroms’ objective manifestations of ownership may have been accompanied by what was described as a traditional Native Alaskan mind-set is irrelevant. To hold otherwise would be inconsistent with precedent and patently unfair.

Having concluded that the Fagerstroms established the elements of adverse possession, we turn to the question whether they were entitled to the entire disputed parcel. Specifically, the question presented is whether the jury could reasonably conclude that the Fagerstroms adversely possessed the southerly portion of the disputed parcel.⁹

Absent color of title,¹⁰ only property actually possessed may be acquired by adverse possession. Bentley Family Trust v. Lynx Enterprises, Inc., 658 P.2d 761, 768 (Alaska 1983) and Linck, 559 P.2d at 1052-53 n. 8. See also Krebs, 768 P.2d at 126 and n. 7 (recognizing the possibility that the requirements of adverse possession may be met only as to a portion of a disputed parcel). Here, from the summer of 1977 through the summer of 1978, the Fagerstroms’ only activity on the southerly portion of the land included use of the pre-existing trails in connection with subsistence and recreational activities, and picking up litter. They claim that these activities, together with their placement of the cornerposts, constituted actual possession of the southerly portion of the parcel. Nome 2000 argues that this activity did not constitute actual possession and, at most, entitled the Fagerstroms to an easement by prescription across the southerly portion of the disputed parcel.

Nome 2000 is correct. The Fagerstroms’ use of the trails and picking up of litter, although perhaps indicative of adverse use, would not provide the reasonably diligent owner with visible evidence of another’s exercise of dominion and control. To this, the cornerposts add virtually nothing. Two of the four posts are located well to the west of the disputed parcel. Of the two that were allegedly placed on the parcel in 1970, the one located on the southerly portion of the parcel disappeared at an unknown time. The Fagerstroms maintain that because the disappearing stake was securely in place in 1970, we should infer that it remained for a “significant period.” Even if we draw this inference, we fail to see how two posts on a rectangular parcel of property can, as the Fagerstroms put it, constitute “[t]he objective act of taking physical possession” of the parcel. The two posts simply do not serve to mark off the boundaries of the disputed parcel and, therefore, do not evince an exercise of dominion and control over the entire parcel. Thus, we conclude that the superior court erred in its denial of Nome 2000’s motion for a directed verdict as to the southerly portion. This case is remanded to the trial court, with instructions to determine the extent of the Fagerstroms’ acquisition in a manner consistent with this opinion.

… .

Affirmed in part, reversed in part, and remanded.

APPENDIX (omitted)