Opinion
C.A. No. 99C-10-017 HDR
Submitted: March 29, 2001
Decided: July 10, 2001
Decision after trial judgment for defendant.
Glenn E. Hitchens, Esq., of Morris, James, Hitchens Williams LLP, Dover, Delaware, for plaintiff.
William D. Simpson, Dover, Delaware, pro se.
ORDER
This is an ejectment action brought by Plaintiff Sally A. Dickerson, Trustee, against an adjoining landowner Defendant William D. Simpson. At issue is the boundary line between the parties' properties which include both land and marsh in Kent County, Delaware. After considering the evidence presented at trial I conclude that Plaintiff has not proven title up to the boundary she claims and that the boundary is as depicted on Kent County Map ED-00-08802.
Plaintiff is an individual trustee of two trust agreements, one of Harry R. Draper dated October 20, 1978, and the other of Audrey O. Draper dated October 20, 1978. She is the owner of a parcel of land in St. Jones Neck, East Dover Hundred, Kent County, Delaware on the shore of the Delaware Bay. The parcel contains 150 acres of land and marsh, more or less, according to the last deed of record. A survey of the lands recorded in 1995 shows 124.5131 acres.
Defendant Simpson is the owner of a parcel of land known as Lot 49, Section A of a plot of lots of Safe Harbor Realty Company recorded in the Office of the Recorder of Deeds for Kent County, Delaware in Plot Book 1, Page 204. He acquired title to that parcel by deed of the Sheriff of Kent County dated May 7, 1992.
The parties agree these properties adjoin. Plaintiff contends that a "compromise boundary," as determined by her surveyor and agreed to by some but not all adjoining property owners, reflects the actual boundary between the properties. Defendant disputes this and responds that the actual boundary is consistent with the Kent County tax maps of record since 1972. He further argues that the map conforms to an adverse possession of the lot by him and his predecessors in title within the Safe Harbor development. He contends that the original developer constructed a fifty-foot wide canal, built an access road, plotted the lots based on these improvements, offered them for sale, sold them, and that lot owners have paid taxes on them for more than 20 years under a claim of right. He further points out that Plaintiff's proposed boundary moves his lot completely from one side of the canal to the other and will divide other lots in two by the same waterway which the developer dug between 1937 and 1954.
In actions of ejectment, the Plaintiff must recover upon the strength of her own title. She must prove her title by a preponderance of the evidence. In order to acquire title adversely to the legal owner, Delaware law generally requires that a party's intended possession must be (1) hostile and under a claim of right, (2) exclusive, (3) open and notorious, (4) actual, and (5) continuous for the statutory 20-year period. Periods of adverse possession by more than one person may be tacked. The burden of proof rests upon the claimant to show, by a preponderance of the evidence, that each of these elements has been met.
Addy v. Short, Del. Super., 81 A.2d 300 (1951).
Doe ex dem. Townsend v. Roe, Del. Super., 80 A. 352 (1911).
Nevin v. Disharoon, Del. Super., 66 A. 362 (1907); Steller v. David, Del. Super., 257 A.2d 391 (1969), rev'd, 269 A.2d 203 (1970).
Marvel v. Barley Mill Road Homes, Del. Ch., 104 A.2d 908 (1954).
Marvel v. Barley Mill Road Homes, supra.
Determining boundaries of marsh land is difficult at best. The deeds to the properties here do not make it any easier. Plaintiffs deed and prior conveyances refer to the adjoining lands of others and Defendant's deed describes his land as lot 49 within the Safe Harbor Development. However, it is clear from the testimony at trial that the tax map as drawn by Kent County officials conforms to the actual placement and possession of the Safe Harbor Realty lots for more than 20 years as intended by the developer. As this Court has noted, "[t]he nature or kind of possession from which the law presumes legal title to real estate, depends in a great degree upon the nature and character of the property." This case does not involve an isolated trespass upon marsh land. Here, construction of a fifty foot wide canal and access road for the development no later than 1954, the sale and re-sale of this lot, and the use of it by its owners for waterfowl hunting (which is the best use) was sufficient to put a person of ordinary prudence on notice of the elements of adverse possession. This history was the basis for the tax map. Until the Plaintiff's claim in 1994, adjoining land owners also respected the boundaries of Safe Harbor Realty as shown on the Kent County Map. On the facts presented, I am persuaded by a preponderance of the evidence that there has been adverse possession of the lots as shown on the tax map for more than 20 years.
Doe ex dem. Townsend v. Roe, op. cit., supra, at 355.
Accordingly, judgment is entered in favor of Defendant Simpson. The northerly property line of Plaintiff (also being the southerly property line of Defendant Simpson, and others) depicted on Kent County Map ED-00-088.02 is correctly drawn. Costs of this action shall be borne by Plaintiff.
IT IS SO ORDERED.