Property I
Fall 2012
Susan Keller
Reading Assignments
On the following pages, you will find the reading assignments for the Fall Semester.
The required text for the course is Dukeminier, et al., PROPERTY (7th ed. 2007). All page
references are to this text. Assignments labeled Handout will be distributed ahead of time in class
and will also be available on the course website.
Handouts 1 and 2, which contain material assigned for the first two weeks, accompany this
document.
Principle cases with starting page numbers in parentheses are noted for useful reference. These page
numbers will refer to the Dukeminier text unless noted with an H, which means they are in the
handout assigned for that class session. You should, however, read all pages listed in the assignment.
Assume any Problems that fall within the assigned pages are to be studied for discussion purposes,
unless instructed otherwise. The problems in the book will be supplemented by additional exercises
and worksheets, which will be handed out in class; completing them as instructed will also be part of
required preparation.
Proper preparation for class includes reading the material carefully (which means re-reading when
necessary and looking up unfamiliar terms or phrases), fully briefing all principle cases, and
reviewing the material shortly before class so that it is fresh in your mind. During the first class, we
will review the important elements of a brief for this course.
A detailed list of Course Requirements and an explanation of Learning Goals will be distributed in
class at the first session.
Please note that there will be no class scheduled for September 25. That class will be made up on
Tuesday, December 4, a class that will also serve as a review session.
INTRODUCTION: PROPERTY RIGHTS AND POSSESSIN
WEEK
1
TOPICS
ASSIGNMENT
Understanding Property
Rights in the AngloAmerican legal system
CASES
Handout 1:
88-96
Friendship Farms Camps v. Parson (H)
Jacque v. Steenberg Homes (89)
State v. Shack (90)
116-122
Handout 2
136-141
Snowball v. Pope (H)
Vezey v. Green (H)
Mannillo v. Gorski (136)
8/28
Trespass
Broad and Narrow
Holdings
2
9/4
Adverse Possession
Applying/Distinguishing
PART I: THE SYSTEM OF ESTATES
3
Possessory Estates
183-198 (top), 202-210,
217 (note 4)- 242
Future Interests
253-264, 268 (d.)-273,
274 (chart), 280 (E.)-284
9/11
4
White v. Brown (202)
Woodrick v. Wood (218)
Mahrenholz v. County Board (226)
Mountain Brow v. Toscano (236)
9/18
9/25
5
CLASS DOES NOT MEET
(Giving you a whole extra week to get really excited about learning the Rule Against Perpetuities!)
The Rule Against
Perpetuities
285-292, 305 (b.)-308.
Handout 3
Turner v. Peacock (H)
St. Regis Paper Co. v. Brown (H)
319-358
Riddle v. Harmon (324)
Harms v. Sprague (330)
Delfino v. Vealencis (338)
Spiller v. Mackereth (348)
Swartzbaugh v. Sampson (351)
10/2
6
10/9
7
10/16
The Rule Against
Perpetuities, continued
Concurrent Interests
WEEK
8
TOPIC
ASSIGNMENT
Midterm (first half)
10/23
9
11/6
359-390
Introduction to
Leasehold Estates
419-423 (top), 427-442,
469 (2.)-479
Handout 4
Hannan v. Dusch (438)
Sommer v. Kridel (469)
Wallis v. Falkensmith (H)
Assignment and Sublease
442 (E.)-459
Ernst v. Conditt (442)
Kendall v. Ernest Pestana (450)
Berg v. Wiley (461)
Petroleum Collections, Inc. v. Swords (H)
Cox v. Hardy (H)
Ingalls v. Hobbes (H)
Boston Housing Auth. V. Hemingway (H)
Haddad v. Gonzalez (H)
Robinson v. Diamond Housing (H)
Peterson v. Paribas (H)
Midterm Review
11
The Eviction Process
11/13
Constructive Eviction
461-469
Handout 5
489-492
Warranty of Habitability
Handout 6
12
499 (bottom) – 503
11/20
13
Retaliatory Eviction
Landlord Tort Liability
11/17
Negotiations Exercise
14
12/4
(these cases not on midterm)
Sawada v. Endo (361)
In Re Marriage of Graham (371)
Elkus v. Elkus(378)
Marital Property (second
half)
10/30
10
CASES
Review
Handout 7
Handout 1
Ancient Hawaiian Land Use: Ahupua`a
The concept of private property was unknown to ancient Hawaiians, but they did follow a complex
system of land division. All land was controlled ultimately by the highest chief or king who held it in
trust for the whole population. Who supervised these lands was designated by the king based on rank and
standing. A whole island, or mokupuni, was divided in smaller parts, down to a basic unit belonging to a
single family.
Each mokupuni was divided into several moku, the largest units within each island, usually wedgeshaped and running from the mountain crest to shore. O`ahu was divided into six moku.
Each moku was divided into ahupua`a, narrower wedge-shaped land sections that again ran from the
mountains to the sea. The size of the ahupua`a depended on the resources of the area with poorer
agricultural regions split into larger ahupua`a to compensate for the relative lack of natural abundance.
Each ahupua`a was ruled by an ali`i or local chief and administered by a konohiki.
Within the ahupua`a, `ili were smaller divisions (two or three per ahupua`a) that constituted the estate of
the chief. Each `ili could be formed of noncontiguous pieces called lele, or jumps. Mo`o were sections of
the `ili that were arable; usually these agricultural units did not extend to the sea. Smaller yet were the
kuleana, or land tracts used by the common people for cultivation of crops. The size of kuleana, like the
size of ahupua`a, depended on the natural fertility and abundance of the land.
The ancient ahupua`a, the basic self-sustaining unit, extended elements of Hawaiian spirituality into the
natural landscape. Amidst a belief system that emphasized the interrelationship of elements and beings,
the ahupua`a contained those interrelationships in the activities of daily and seasonal life.
Shaped by island geography, each ahupua`a was a wedge-shaped area of land running from the uplands
to the sea, following the natural boundaries of the watershed. Each ahupua`a contained the resources the
human community needed, from fish and salt, to fertile land for farming taro or sweet potato, to koa and
other trees growing in upslope areas. Villagers from the coast traded fish for other foods or for wood to
build canoes and houses. Specialized knowledge and resources peculiar to a small area were also shared
among ahupua`a.
Although there was no private ownership of property, land tenure of the maka`ainana (commoners) was
stable. They paid weekly labor taxes and annual taxes to the konohiki, or local overseer, who collected
goods to support the chief and his court. The konohiki supervised communal labor within the ahupua`a
and also regulated land, water and ocean use.
Stewardship of the land and its resources was formalized through the kapu system. The kapu (taboo) administered and enforced by konohiki and kahuna, or priests - placed restrictions on fishing certain
species during specific seasons, on gathering and replacing certain plants, and on many aspects of social
interaction as well. In this way, the community maintained a sustainable lifestyle. Through sharing
resources and constantly working within the rhythms of their natural environment, Hawaiians enjoyed
abundance and a quality lifestyle with leisure time for recreation during the harvest season of the year.
This lifestyle also encouraged a high level of artistic achievement. Many crafts, including Hawaiian kapa
and featherwork, were the finest in the Pacific. Hawaiians devoted themselves to competitive sport and
martial arts as well as expression through dance and chant, creating rich traditions that continue today.
http://www.hawaiihistory.org/index.cfm?fuseaction=ig.page&CategoryID=299 (last visited July 5, 2012).
Property I
Susan Keller
BROAD AND NARROW HOLDINGS – A User’s Guide ©
A significant feature of the Anglo-American legal system is the role played by precedent. Each case
we read is interesting not just for its resolution of the conflict between the two parties, or even as a
model of the application of an existing rule or standard to a particular conflict, but most importantly
as a source of law—as potential precedent to be applied in future conflicts.
Therefore, it is important to read cases with an eye toward the future as well as toward the past. The
past is represented in our analysis of what happened and what rules or standards from pre-existing
precedent applied to the conflict. Mostly, the case itself is written in the mode of looking at the past.
However, it is our job as lawyers and law students to read the case’s future. What is the effect the
case will have as precedent in future conflicts?
An important tool in preparing oneself to answer the question about the case’s future is the holding,
or a brief statement of the lesson of the case. A holding connects the outcome of the case to the
circumstances in which that outcome is likely to apply. A holding can often take the following
simple form:
When A [character] does B [situation], C [outcome] happens.
It is unlikely a case decision will itself announce its own holding; more likely, the court opinion will
instead refer to holdings of other earlier cases that serve as precedent for the current controversy.
Writing the holding(s) for the current case is the job of either the law student studying the case, the
lawyer arguing about the case’s meaning in a future dispute, or a judge interpreting the case in a
future dispute.
Holdings can be stated either broadly or narrowly. A broad holding states the situation in an
abstract manner, so that it might apply to a large number of different fact patterns. A narrow holding
states the situation in a more specific manner, following closely the facts of the case, so that it might
apply to only a limited number of very similar fact patterns. Although a narrow holding tracks the
facts of the case, it should be stated in general terms, so that it could apply in the future to very
similar facts. For example, A should not be ―Janet Smith‖ but rather ―a tenant‖ or ―a property
owner‖ or ―a fox hunter.‖ The narrow holding and the broad holding should not contradict each
other, even though one is more detailed than the other.
Broad holdings are generally deployed by lawyers who seek to emphasize the similarities between
the case and a future controversy as part of an argument that the case and its outcome apply to the
new controversy. Narrow holdings are used when a lawyer wants to emphasize the difference
between the case and the facts in a new controversy as part of an argument that the new controversy
can be distinguished from the old case: i.e., come out the other way.
For law students, broad and narrow holdings
1. facilitate applying or distinguishing cases,
2. demonstrate the ―stretch‖ of a case—how different its interpretations can be,
3. help identify the key facts or circumstances on which a court opinion relies.
2
Broad and Narrow Holdings In Action
The use by courts of broad and narrow holdings can be demonstrated by examining a series of
Nineteenth Century British cases concerning rights to water.
In Acton v. Blundell [12 Mees. and W. 324, 152 Eng. Rep. 1223 (Exch. 1843)], the effect of the
defendant’s coal mine was to drain off the water that would otherwise supply a well on the plaintiff’s
land. The court refused to apply the existing rule that governed the use of surface streams, a rule that
required the upstream owner to refrain from interfering in any way with the water flowing to the
downstream owner. Instead, the court said that the plaintiff with the dry well had no cause of action.
It justified its decision by suggesting the various ways in which underground water differed from
surface streams (for instance, its unpredictability).
Dickinson v. Grand Canal Junction Co. [7 Exch. 282, 155 Eng. Rep. 953 (1852)], and Chasemore v.
Richards [7 HLC 344, 11 Eng. Rep. 140 (1859)], followed. Because they occurred in the same
jurisdiction, Acton was binding precedent. Both cases dealt with a combination of surface streams
and underground water. In each one, the effect of the defendant’s underground well was to drain off
water that would otherwise have flowed to the surface and joined a river. If all that water had instead
gone into the river, the river in each case would have been swifter in current and would have better
operated the plaintiff’s mill. In Dickinson, the court sought to distinguish Acton. Therefore, it
offered a narrow holding of the prior case:
―…it was held that the owner of a piece of land, who has made a well in it, and
thereby enjoyed the benefit of underground water…has no right of action against a
neighboring proprietor, who, in sinking for and getting coals from his soil in the usual
and proper manner, causes the well to become dry.‖
Note how specific the situation is: the reference to the well and the coal mine, even to the fact that
the coals were mined in ―the usual and proper manner.‖ From this point, it was easy for the
Dickinson court to demonstrate how different the circumstances of its case were, and how they
justified a different outcome.
In Chasemore, the court sought to apply Acton. Therefore, it offered a broad holding:
―In the earlier case of Acton v. Blundell, the Court of the Exchequer was of opinion
that the owner of the surface might apply subterranean water as he pleased, and that
any inconvenience to his neighbour from so doing…gave no ground of action.‖
Note how devoid of specifics this example is. Having stated the holding of Acton so broadly, it was
easy for the Chasemore court to apply the same outcome to the facts at hand. Of course, the
Chasemore court had to distinguish Dickinson in order to do so.
Compare the two holdings set out above. Remember that they are both statements of the lesson of the
same case, Acton v. Blundell. Also, note that the Acton court didn’t give us the holding; that
occurred in future cases.
Your task is to do what the Dickinson and Chasemore courts did for the Acton case and generate
broad and narrow holdings for all of your cases. By writing these holdings, you will enable yourself
to apply and distinguish cases when required to do so.
3
Frequently Asked Questions about Broad and Narrow Holdings
1. What if I don’t plan to be a litigator (or a judge), do I need these skills?
Yes. Whenever you are counseling a client, negotiating a settlement, drafting a document, you will
need to be able to make judgments about how a case might be interpreted in the future.
2. I’ve just read a case that deals with two different issues. Do I need to fit the outcomes on both of
them into the same holding?
No. Often, cases lend themselves to more than one holding. For those cases, it’s often much easier
and more useful to write separate holdings. Of course, you should still write broad and narrow
versions of each one.
3. I’ve just read a case in which the court doesn’t seem to rely on the factual circumstances at all.
How do I generate broad and narrow holdings?
Sometimes, courts either ignore the details of the case, or state a rule in such definitive terms that it
is hard to imagine that the court relied on any specifics of the case. In such instances, try to state the
rule or standard the court announces in both an open-ended (broad) way, and in a way that will
more tightly limit its future applicability (narrow).
4. I understand the form for writing holdings, and I’ve read and understood the case, but I don’t
know where to begin in making broad and narrow holdings.
Different people find different methods helpful. Some people find it easiest to begin with a narrow
holding, and then turn each of the specifics into abstractions for a broad holding. Other people find
it easiest to start broad and then fill in details for a narrow holding. Others write an “in-between”
holding and then move in both directions.
5. How do I know if my broad/narrow holding is broad/narrow enough?
Broad and narrow are just relative terms. Theoretically, an infinite number of holdings exist on a
continuum from broad to narrow. Just try to get a sense of how far the case will stretch by trying to
be as broad and narrow as you plausibly can. Not every case will have a lot of stretch; in some
instances the broadest plausible holding and the narrowest plausible holding are very close to each
other. For testing purposes, I simply require that the holding you label as “broad” must be broader
than the holding you label “narrow.” (Of course both holdings will also need to reflect accurately
the case and its lessons).
© 2012 Susan Etta Keller
4
Friendship Farms Camps, Inc. and Ronald Gabbard v. Leo Parson, Dorothy
Parson, Max Combs and Lena Combs
Court of Appeals of Indiana, First District
172 Ind. App. 73; 359 N.E.2d 280; 1977 Ind. App. LEXIS 738
February 3, 1977, Filed
OPINION:
Defendants-appellants Friendship Farms Camps, Inc. (Friendship) is appealing the awarding of damages to
each of the plaintiffs-appellees, Parsons and Combs, as well as the trial court's granting of an injunction
designed to abate a nuisance.
***
We affirm the trial court's judgment.
The record shows that Ronald Gabbard, his wife, and parents orally leased their 80 acres of rural property
to Friendship Farms Camps, Inc. for use as a campground. Friendship Farms Camps, Inc. was organized and
incorporated by Ronald Gabbard, his wife, and another primarily for the purpose of providing camping
facilities on the Gabbard property.
Prior to 1972, youth day camps were held on the property, but beginning in 1972, a number of weekly
high school marching band camps were held. The bands would arrive on Sunday afternoon and stay until
Friday evening during which time they would practice both marching and playing music. During 1973 and
1974, the band camps use increased, and Friendship proposed to extend the 1975 program to include weekend
band camps during football season.
The Parsons and the Combs, whose residences were located across the road from Friendship, brought an
action against Friendship to abate an alleged nuisance and for damages. The essence of their testimony at trial
was that during the summer months loud band music and electronically amplified voices could be heard from
7:00 or 8:00 A.M. until 9:00 or 10:00 P.M. which interfered with their sleep and use of their property during
the evening hours. They had complained to Gabbard and asked that the band music be confined to an earlier
hour. Gabbard made an effort to enforce quiet hours. However, the evening noise continued for the reason
that the cooler period of the day was better for practice time.
The trial court awarded Parsons and Combs $600 each in damages and permanently enjoined Friendship
from permitting music or the use of bull horns on its property between 500 P.M. and 8:00 A.M. on weekdays
and any time during weekends.
Friendship first contends that the judgment is not supported by sufficient evidence in that the evidence
fails to show that the Parsons and the Combs were reasonable people of ordinary sensibilities, tastes, and
habits and that no actual injury or sickness resulted from the alleged nuisance.
In determining the sufficiency of the evidence, this Court will look only to that evidence most favorable to
the appellee and the reasonable inferences to be drawn therefrom. * * *
Friendship's contention that actual physical sickness or illness must result before a nuisance may be found
is without merit. This court has repeatedly stated that the essence of a private nuisance is the fact that one
party is using his property to the detriment of the use and enjoyment of others. While injury to health is a
factor to be considered in determining if one's propery is being detrimentally used, it is not the only factor to
be considered for our legislature has defined a nuisance as:
5
"Whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the
free use of property, so as essentially to interfere with the comfortable enjoyment of life or
property, is a nuisance and the subject of an action." IC 1971, 34-1-52-1 (Burns Code Ed.).
It is settled that noise, in and of itself, may constitute a nuisance if such noise is unreasonable in its degree.
Reasonableness is a question for the trier of fact.
The evidence at trial shows that the proximity of the band music and amplified voices aggravated existing
illnesses of Dr. Parsons and Mrs. Combs. Additionally, the noise interfered with sleep, required windows and
doors to be kept closed on summer evenings, prohibited hearing television or conversing with another person
in the same room, and made sitting outside unpleasant and visiting with others virtually impossible.
We are of the opinion that there is an adequate evidentiary foundation for the trial court's judgment.
***
Friendship argues that the trial court's decision is contrary to law because . . . the net effect of the
injunction was to destroy the operation of a lawful and useful business.
***
As to whether the operation of a lawful and useful business is being destroyed, we agree that curtailment
exists, but not its destruction.
It is the law in Indiana that a lawful and useful business is not to be destroyed unless the necessity for
doing so be strong, clear, and urgent. In the present case, the injunction granted by the trial court will not
destroy Friendship's business operation. The evidence shows Friendship Farms may continue to conduct band
camps during the week-days within the specified time periods. Furthermore, the camping facilities operated
by Friendship were shown to be amenable for uses other than band camps.
Friendship next contends that the trial court committed reversible error in refusing to permit defendant's
witness, Stanley Barkley, to testify as to the general economic conditions of the community surrounding
Friendship Farms.
At trial, Mr. Barkley was asked to describe the general economic conditions of the area. An objection was
made on the grounds of relevancy, and it was sustained. He was then asked if the camping facility operated by
Friendship had any effect upon the community. The same objection was made, and the court sustained the
objection over defendants' offer to prove.
Friendship argues that the trial court's action prevented it from showing that the operation of its business
promoted the interests of the surrounding area to an extent outweighing the private inconvenience resulting
therefrom. Friendship relies upon Northern Indiana Public Service Co. v. W.J. & M.S. Vesey (1936), 210 Ind.
338, 200 N.E. 620, for the proposition that it is a defense to an action to enjoin a nuisance that the act promotes
the public convenience and interest to such an extent as to outweigh the private inconvenience. In Northern
Indiana Public Service Co., our Supreme Court refused to abate the operation of a gas plant because of the
overriding public interest to be served by the continued production of gas for the community's use. While
refusing to enjoin the gas plant, the court did award permanent damages.
We feel that in certain circumstances the continued operation of a nuisance creating business is necessary
for the benefit and convenience of the community. In these limited situations less injury would be occasioned
by the continued operation of the nuisance than by enjoining it. However, the private injury suffered must be
compensated by an award of permanent damages if appropriate.
We believe the trial court was correct in finding that this case does not present a situation where the social
utility of the Friendship business greatly outweighed the private harm to the adjoining land owners. Therefore,
no error existed in the trial court's ruling.
***
6
Handout 2
SNOWBALL CORPORATION, Appellant-Plaintiff, v. LEO POPE
and BEULAH LOCKE POPE, et al., Appellee-Defendants
No. 32A01-9103-CV-78
Court of Appeals of Indiana, First District
580 N.E.2d 733; 1991 Ind. App. LEXIS 1871
November 14, 1991, Filed
OPINION BY: BAKER
OPINION
[*734] This dispute concerns ownership of
an unimproved parcel of real estate located in
Brownsburg,
Indiana.
Plaintiff-appellant
Snowball Corporation (Snowball) initiated an
action to quiet title to land it claimed it owned.
Defendant-appellees Leo and Beulah Locke
Pope (the Popes) counterclaimed on a theory of
adverse possession. From an adverse judgment
in favor of the Popes, Snowball appeals and
raises two issues for our review:
1. Whether the ten years in which a true
owner must oust an adverse claimant is stayed
if the owner is unaware of its true ownership.
2. Whether the Popes' use of the land in
question was sufficiently notorious, exclusive,
and open and visible to satisfy the elements of
an adverse possession claim.
We affirm.
FACTS
The disputed real estate in question is
located as part of 35 Odell Street, Brownsburg,
Indiana, and comprises about 8,000 square feet
of land. Leo and Buelah Locke Pope have lived
there since 1956, when they purchased a house
and moved it onto the property. Until 1957,
most if not all of the disputed section of land
was a swamp approximately three feet deep. It
was usable only occasionally as a garden
during dry summers and as a makeshift skating
rink in the winter. The swamp was mostly filled
in 1957. At one point there was at least one
fence surrounding the entire property, but only
an occasional post remains today. Lines of trees
demarcate the approximate boundaries of the
disputed land, which now appears as simply an
extension of the Popes' lawn.
DISCUSSION AND DECISION
I.
"It is well established in Indiana law that
title to real estate may be defeated by adverse
possession where the possession has been
actual, visible, notorious, exclusive, under a
claim of ownership, hostile to the true owner,
and continuous for the statutory period." Estate
of Mark. v. H.H. Smith Co. (1989), Ind., 547
N.E.2d 796, 799. Further, IND. CODE 32-120-1 imposes an additional adverse possession
element: the adverse claimant must have paid
all taxes and special assessments falling due on
the real estate during the period the adverse
claimant possessed the land adversely. The
party seeking title by adverse possession has
the burden of proving all elements. Id. Once the
elements are established, fee simple title to the
disputed tract of land is conferred upon the
possessor by operation of law, and title is
1
extinguished in the original owner. Marathon
Petroleum Co. v. Colonial Motel (1990), Ind.
App., 550 N.E.2d 778, 782. An action to oust
an adverse claimant must be initiated within ten
years after the accrual of the cause of action.
IND. CODE 34-1-2-2(6).
Snowball argues the ten year statute of
limitations is stayed if the true legal owner is
unaware of its ownership. * * *
Simply put, the ten year statute of
limitations is not stayed when the true owner is
unaware of its ownership. Were we to rule
otherwise, the entire doctrine of adverse
possession would be abrogated. This was
recognized by the court in Craven v. Craven
(1913), 181 Ind. 553, 103 N.E. 333, an adverse
possession case, in which the court said that
"the bare fact that [the true owner] had no
knowledge of his rights to the land would not
prevent the statute [of limitations] running." Id.
at 559, 103 N.E. at 335.
The trial court did not err in failing to rule
that the statute of limitations was stayed
because Snowball was unaware it was the true
owner.
II.
As its second contention on appeal,
Snowball argues the Popes failed to meet their
burden of proof in proving their adverse
possession. Specifically, Snowball insists, the
Popes offered no evidence that they mowed or
maintained the disputed property on any
regular basis, or that they erected or maintained
any fences, ornamentation, or improvements on
the disputed land. This lack of evidence shows
the Popes failed to prove the notorious,
exclusive, and open and visible elements of
their claim. In essence, Snowball maintains, the
evidence was insufficient to support the
adverse judgment it received from the trial
court.
When we review a claim concerning the
sufficiency of the evidence, we will neither
reweigh the evidence nor reassess the
credibility of the witnesses. Instead, we view
only the evidence supporting the judgment. If
each material element is supported by
substantial evidence of probative value, we will
not disturb the judgment. Marathon Petroleum
Co., supra at 782. We turn to each of the three
elements Snowball says was absent.
A. Notorious
In the context of adverse possession claims,
"notorious" possession means possession "so
conspicuous that it is generally known and
talked of by the public--at least by people in the
vicinity of the premises." McCarty v. Sheets
(1981), Ind., 423 N.E.2d 297, 301 (quoting
Philbin v. Carr (1920), 75 Ind. App. 560, 584,
129 N.E. 19, 27). The idea is to alert the owner
that a stranger is asserting dominion over the
owner's land. Id.
Here, there was substantial evidence
supporting the trial court's conclusion that the
Popes' possession was notorious. Both Leo and
Buelah Locke Pope have lived at the disputed
real estate since 1956. Evidence was admitted
showing that in 1957 the Brownsburg Town
Board was aware of the Popes' possession
when it required the Popes to fill the swamp
that was then on the land. Marjorie Stephens, a
long-time Brownsburg denizen, in referring to
the disputed land testified, "I know that we all
considered that to be Pope, the Pope's land.
Enjoyed the flowers." Record at 242. Laverne
Armstrong, another long-time Brownsburg
resident, testified that he too had not heard or
considered that the property belonged to
anyone else until Snowball made its claim. The
trial court was correct in determining the Popes'
possession was notorious.
B. Exclusive
An exclusive possession is one in which
only one entity claims possession adversely. "It
is evident that two or more persons cannot hold
one tract of land adversely to each other at the
2
same time." Marengo Cave, supra, 633, 10
N.E.2d at 921. Further, "the possession must be
exclusive also as against persons other than the
owner of legal title; and where the claimant
occupies the land in common with third
persons, or with the public generally, the
possession is not such exclusive possession as
will constitute the basis of title." Philbin, supra,
at 585-86, 129 N.E. at 28.
Snowball argues the Popes failed to meet
this standard of exclusivity because the Popes
did nothing to exclude the legal owners or
others. Specifically, Snowball argues that
neighborhood children frequently ice skated on
the swamp during the winter months, and in
later years pedestrians were allowed to walk
across the property on their way to a nearby
restaurant. There were no fences and no "no
trespassing" signs.
We find Snowball's arguments largely
irrelevant to the issue of exclusivity. There is
no evidence whatsoever the Popes shared their
claim to and possession of the land with any
third party or the public in general. Children ice
skating and pedestrians taking shortcuts across
the property are not, in our view, indications
that the Popes intended to share ownership of
their property with others; if anything, they are
indications of licensure. The trial court
correctly found the Popes' possession was
exclusive.
C. Open and Visible
"What constitutes open and visible
possession has been stated in general terms,
thus: it is necessary and sufficient if its nature
and character is such as is calculated to apprise
the world that the land is occupied and who the
occupant is." Marengo Cave, supra, at 631, 10
N.E.2d at 920. It has been said open and visible
possession is analogous to unfurling a flag and
keeping it waving, so that the owner may know
that another has invaded his territory and
"planted the standard of conquest." Id.
Snowball argues that the Popes' use of the
land was not sufficiently open and visible to
warrant the judgment rendered. Snowball notes
the Popes erected no buildings or fences, and
since 1957, when the swamp was filled, did
nothing to the land other than perhaps cut the
grass.
We agree with the Popes that in
determining whether the elements of adverse
possession have been met, the character of the
land must be considered. Moore v. Hinkle
(1898), 151 Ind. 343, 345, 50 N.E. 822, 823.
"What constitutes possession of a 'wild' land
may not constitute possession of a residential
lot, just as possession of the latter may not
constitute possession of a commercial lot."
McCarty, supra, at 300.
Our examination of the photographic and
testimonial evidence convinces us that the
failure to utilize this property for purposes
other than a lawn is not fatal to the Popes'
claim. First, the land is not spacious enough for
much development. Second, the land still lies in
a depressed area; when the swamp was filled, it
was not filled completely. Neither was it
leveled off to make it the same elevation as the
surrounding land. In short, it is not well-suited
for most uses. We repeat the reasoning
espoused in Folley v. Thomas (1910), 46 Ind.
App. 559, 93 N.E. 181, in which this court held
that an adverse possessor of "wild marsh land"
need only exert such dominion as the land
would permit. We hold the Popes' use of the
land was sufficiently open and visible to justify
the trial court's determination.
In sum, the Popes presented sufficient
evidence of notorious, exclusive, and open and
visible possession to satisfy their burden of
proof. Snowball's arguments amount to nothing
more than a request for us to reweigh the
evidence. This, of course, is not within our
prerogative. Marathon Oil Co., supra.
The judgment of the trial court is affirmed.
3
ALLEN VEZEY, Appellant, v. ANGELA GREEN, Appellee.
Supreme Court No. S-11353, No. 6202
SUPREME COURT OF ALASKA
171 P.3d 1125; 2007 Alas. LEXIS 166
November 16, 2007, Decided
OPINION
[*1127] PER CURIAM.
I. INTRODUCTION
In an earlier decision on appeal in this case,
we concluded that Angela Green had
established title by adverse possession to land
to the north, south, and east of a cabin she had
built near Fairbanks, but we remanded the issue
of the extent to which she had adversely
possessed land to the west of her cabin. On
remand, the superior court determined that
Green had acquired title to all of the land up to
300 feet west of her cabin primarily because
she had cleared and improved a western trail
leading to the property.
Allen Vezey appeals this determination . . .
.
[Vezey] contends that the superior court
erred in concluding that Green proved that she
had adversely possessed the land to the west of
her cabin. Because . . . the evidence only
supports granting Green the land forty feet to
the west of her cabin, we reverse the decision
of the superior court awarding Green all land
up to 300 feet west of the cabin.
II. FACTS AND PROCEEDINGS
The underlying facts of this case are set out
in our earlier decision, Vezey v. Green (Vezey I.
1
In brief, in 1982 Angela Green's grandmother,
Billie Harrild, gave Green a piece of the
family's land on Shaw Creek Bluff. The gift
was not recorded. Between 1982 and the mid1990s, Green constructed a cabin and cultivated
grounds on the property. In the winter of 19941995, Allen Vezey bought a two-thirds interest
in a parcel of land that included Green's
property. 2 After Vezey purchased the property,
Green brought suit to establish her right to a
[**3] portion of the land.
At the first trial in 1999, the superior court
held that Green had acquired title to the entire
bluff area, noting that Green had proven use of
the land from 1982 until 1993. . . . We
remanded for further findings on the extent of
Green's possession of the property to the west
of her cabin. . . .
Following the second trial in 2003, the
superior court determined that Green had
proven that she had adversely possessed the
entire western section of the property. The
superior court began by noting that its inquiry
was limited to determining the western
boundary of Green's claim. It found that in
[**5] 1982 Green started renovating the
westerly trail by creating a turnaround for cars
and clearing away underbrush and larger trees.
The court also determined that Green and her
friends and employees had used and cleared the
western trail from 1982 onwards and noted that
her use of the access trail predated her use of
the land on which she built her cabin.
The superior court discounted the testimony
of Raymond Kreig, Vezey's photographic
expert, who testified that clearing of the trail
4
was not apparent before 1986 because Kreig
admitted that improvements visible on the
ground might not be visible in the photos.
Instead, the court credited the testimony of
Green and other witnesses that the trail had
been improved in 1982 and 1983.
The superior court also found that Green
had placed chains or cables at the end of her
western access road: she placed one cable at the
end of the road where it connected to the
telephone road, one on the trail roughly 300
feet west of her cabin, and one near her house.
The court noted that two of Green's neighbors
testified to seeing chains and flagging tape at
various places and that one of them stated that
she understood the flagging to show that the
property [**6] belonged to Green. The court
also noted that this witness testified that she
had seen the flagging two to three years before
Green's cabin was constructed. . . . .
Finally, the court concluded that Green had
established [**7] by clear and convincing
evidence that her widening, clearing, and
continual use of the trail supported her adverse
possession claim to the entire portion of land
300 feet to the west of her cabin. Vezey
appeals.
IV. DISCUSSION
****
B. It Was Error To Determine that Green
Acquired Title to Land 300 Feet West of Her
Cabin by Adverse Possession.
To prove adverse possession Green must
show that she possessed the land for ten
consecutive years. 19 To acquire title by adverse
possession, she must provide clear and
convincing evidence that she used the land for
the statutory period in a "continuous, open and
notorious" manner that was
[*1130]
"exclusive and hostile to the true owner." 20 In
determining whether a party's use was
continuous, open and notorious, and
sufficiently exclusive, we apply a "flexible
standard" that takes into account Alaska's
geography and climate and the character of the
land in question. 21 Our inquiry into these
separate requirements involves some overlap
because these requirements all serve the same
goal of putting the record owner on notice of
the existence of an adverse claimant.
Vezey argues that Green did not prove by
clear and convincing evidence that she used the
property for the statutory period. . . . .
Because Vezey purchased an interest in the
land "in the winter of 1994-1995," 27 adverse
possession cannot be established [**14] by
uses of the land beginning after the winter of
1984-1985. 28 And in order to gain title to any
of the western land at issue, Green must show
actual possession of the area awarded. 29 As this
is not a color of title case, Green cannot gain
possession of the entire western land simply by
possession of some portion of the land. 30 Green
can therefore only gain title to land which she
possessed in a "continuous, open and
notorious" manner during the relevant statutory
period. 31 Although the trial court found that
Green had acquired title to the entire western
parcel, land that extends 300 feet west of her
cabin, a careful review of [*1131] the
evidence presented to the trial court only
supports a finding that Green has acquired title
to land forty feet west of her cabin.
Green testified that in 1983 she began
clearing out the smaller trees and underbrush in
the woods to the west of the cabin site for
aesthetic and fire safety reasons; she noted that
she wanted to clean up the land but did not
wish to take it too far from its natural state. We
consider the natural characteristics of the land
when determining whether a party's use of the
land was sufficient to establish adverse
possession 32 and conclude that Green's use
comports with the sort of use a reasonable
owner would make of a wooded area on the
5
outskirts of her property. 33 The improvements
that Green made before the winter of 19841985 34 included making space for a cabin and
clearing an area twenty feet to the west of the
cabin site. Her use of the land therefore
establishes title to the cabin site and the land
twenty feet to the west of it. Green cleared an
additional twenty-foot portion at the
recommendation of the fire department, "either
in '84 or '85," according to Green's testimony
on remand. 35 The addition of this evidence is
sufficient [**16] to establish Green's claim to
the land forty feet to the west of the cabin, but
not to the rest of the land 300 feet west of the
cabin. Notably, Green testified that even by
1988 she had only cleared some seventy-five
feet to the west of her cabin.
Flagging is a non-permanent marker and
without more permanent indications of use,
such as clearing of land or erecting permanent
improvements, the flagging alone is not
sufficient to support finding a boundary line
300 feet to the west of Green's cabin. For these
reasons, we conclude that the evidence at trial
supports only the conclusion that Green
established possession of the land forty feet
west of her cabin. . . .
Two of Green's neighbors, Jan Fairbanks
and William Ridder, testified that they saw
flagging along the western edge of Green's
property. Fairbanks testified that she would
drive dogsleds through the area along the
western boundary in 1982, 1983, and 1984, and
recalled seeing flagging at the entrance to the
renovated trail. The superior court described
Fairbanks's testimony as stating that she first
saw the flagging two to three years before the
cabin was built. Ridder also testified to seeing
flagging "[a]ll through the woods" along what
he deemed to be the "property line." However,
the area where Fairbanks indicated she saw the
flagging was to the west of the 300-foot
boundary line. And Ridder's testimony was
inconclusive as to where and when he saw the
flagging. . . . However, even if Green had put
up flagging along the line 300 feet to the west
of her cabin, this act alone is not enough to
establish her ownership of the entire parcel 300
feet to the west of her cabin. As we stated in
Vezey I, "[e]vidence of actual possession must
be sufficient to alert a reasonably diligent
owner to the possessor's exercise of dominion
and control. Visible evidence of use, such as
occupation, fencing, and construction of
permanent improvements, provides particularly
compelling evidence of actual possession." 36
Today's Opinion looks only to a portion of
the evidence supporting the superior court's
factual finding that Angela Green had
adversely possessed the land in question, and
then concludes that the evidence is insufficient.
But if one looks at all of the evidence before
Judge Savell, it is clear that there was sufficient
evidence to support his conclusion. For that
reason, I would affirm his decision.
Accordingly, I dissent.
DISSENT BY: CARPENETI
DISSENT
CARPENETI,
Justice,
with
whom
BRYNER, Chief Justice, joins, dissenting.
The Opinion begins by characterizing Judge
Savell's decision as resting "primarily" on the
fact that Green had cleared and improved a
western trail leading to the property. While it is
true that Judge Savell put some weight on this
evidence, there was much more evidence
[**24] on which he relied, including evidence
that Green blocked the road at the point that
"her property" began, that she cleared the
western portion of the property, that she
flagged the property along the line marking its
western boundary, and that her neighbors
considered the western portion of the land to be
"her property." The evidence supporting the
superior court's decision includes the
following:
6
1. Green did substantial work along the
trail, in effect turning it into a road, and she
chained it off at the point that corresponded to
what she claimed as her land -- about 300 feet
to the west of her cabin. Green testified, "it's a
claim this is my property, keep out, so I put a
sign up." Her testimony was corroborated by
her near neighbor William Ridder's description
of where her driveway began. Even granting
that by its previous use the trail had become
public, and that one cannot adversely possess
public land (and that at most she therefore
shares in an easement over the road), her
chaining off of the road is strong evidence of
the extent of her claim to the land that the road
crosses.
2. In addition to clearing around the cabin
site and working on the road, Green did
clearing "under [**25] the canopy." She
testified that in 1983 "instead of just focusing
on the road I started clearing out the -- between
the trees there, and so I wouldn't say it looks -would look park-like, but so that there wouldn't
be a fire hazard from old, old trees that were
lying around or whatever." . . . . This testimony
about clearing out the west end under the tree
canopy supports the trial judge's findings that
"[b]ecause Green was using and clearing the
trail and western portion . . ., she necessarily
occupied the western land [for the requisite
period]."
....
4. The clearing work in the woods need not
have been extensive. As we made clear in our
earlier decision in this case, whether the
claimant's physical acts are enough depends on
the character of the land in question. 1 For
remote rural land, three weeks of sheep grazing
during the entire year was deemed to be enough
to establish adverse possession in Cooper v.
Carter Oil Co., 2 a case we cited with approval
in Nome 2000 v. Fagerstrom. 3 Surely for the
land in question in this case, about which a
witness at the first trial testified, "[i]t'd take a
fool to live up there in the cold winter months,"
4
it was enough to make major improvements to
the access road, block off that road so as to
make it -- as a neighbor testified -- a
"driveway" on the property, flag the edge of the
property, and do some clearing under the
canopy of trees on the property.
7