Opinion
Civil Action No. 2093-S.
Date Submitted: February 12, 2003.
Date Decided: April 11, 2003.
David J. Weidman, of HUDSON, JONES, JAYWORK FISHER, Georgetown, Delaware, Attorney for Petitioners.
John A. Sergovic, Jr., of SERGOVIC, ELLIS SHIREY, P.A., Georgetown, Delaware, Attorney for Respondent.
MEMORANDUM OPINION
This dispute involves an adverse possession claim by the petitioners, Lewis P. Miller and Janet A. Miller, seeking to quiet title to approximately one acre of real property in Baltimore Hundred. Before the Court are exceptions to the Master's Report of November 19, 2002. In that report, the Master found the evidence established that "open, notorious and hostile use of the disputed acre by the Millers took place for a period of at least 25 years (1946 — 1971)." In his exceptions, the respondent, Ralph C. Steele, asserts that there is no "clear and convincing" evidence to establish the beginning of the period of adverse possession prior to 1967, the date of Mrs. Miller's earliest personal memories of the use of the acre in dispute. In addition, the respondent questions the Master's decision to accept Mrs. Miller's eyewitness testimony as to the use of the disputed acre from 1967 onward over the contradictory eyewitness testimony of Mr. Steele. Because this was not raised in the respondent's initial exceptions to the Draft Master's Report and does not relate to a change made to the draft report in the final report, it may not be raised now.
Del. Ct. Ch. R. 144(a). In any event, following a review of the testimony, I agree that both Mrs. Miller and Mr. Steele appear to have testified truthfully to the best of their memory and belief, but that Mrs. Miller's testimony is more credible because she had more experience on the property. Mrs. Miller grew up on the Melson property whereas Mr. Steele visited his family's adjacent property only infrequently in his boyhood. This is not to make the determination on the basis of where each of the witnesses resided either at the time of trial or during the years in question, but on the basis of which witness had greater familiarity and experience with the property in issue during the relevant period.
In determining whether the Master's Report should be approved, I am required to engage in a de novo review of the relevant issues, regardless of whether the issues are ones of fact or law. I have engaged in such a review and conclude that Mr. Steele's exceptions should be denied and that the Master's Report should be approved.
Id.; DiGiacobbe v. Sestak, 743 A.2d 180, 184 (Del. 1999).
I. FACTUAL BACKGROUND
This dispute originates in a 1927 transfer of real property by deed from the respondent's grandfather, Ralph C. Steele, Sr. to Rufus Daisey. The deed's metes and bounds description called out a parcel of approximately one acre, fronting on the county road from Millville to Railway, yet purported to transfer "two acres be the same more or less." This same deed references an iron axle driven at the western (rear) corner of the property conveyed. All other documents in the chain of title contain the same problematic property description, apparently taken from the Steele to Daisey deed. In 1946, Daisey's heirs transferred this same property to Wallace and Dolores Melson, parents of petitioner, Janet Miller. All parties agree that under Delaware law the metes and bounds description is controlling and the petitioners do not seek reformation of the deed. Rather their claim is solely based upon adverse possession of the disputed real property.
Lewis Miller, the co-petitioner, is Janet Miller's husband.
Also in 1946 Mr. Steele, Sr. died. His will left most of his real property to his wife, Lulu, and devised to his son (the respondent's father), Charles Steele, "ten acres" lying between the town ditch and the Daisey property. The estate engaged Issac Bennett to conduct a survey of the ten acres. This survey, which was then recorded with the Recorder of Deeds, indicates that the property owned by the Melsons (former Daisey property) includes the roughly one acre called out in the metes and bounds description of the deed and also an additional approximately one-acre area at the rear of that property. It is ownership of this second "back acre" that is in dispute.
II. ANALYSIS
The legal standard for adverse possession is accurately stated in the Master's Report:
To obtain legal title to land by adverse possession, one must occupy or possess the land in a manner that is open, notorious and hostile, for a continuous period of not less than twenty years. Once title has been obtained through adverse possession, title is not forfeited unless the former adverse possessor evidences an intent to abandon and the former owner reasserts possession. Because a claim perfected by adverse possession works a forfeiture of title, entitlement to property by adverse possession must be shown by clear and convincing evidence.
Master's Report at 7 — 8 (citing 10 Del. C. § 7901; Marvel v. Barley Mill Road Homes, Inc., 104 A.2d 908 (Del.Ch. 1954); Dukes v. Williams, 2000 Del. Ch. LEXIS 49 at *67 (Del.Ch.)).
The petitioners' brought evidence seeking to demonstrate adverse possession of the disputed back acre by petitioner, Janet Miller, and her parents, the Melsons, from 1946 until sometime after Mr. Melson's death in 1971. This evidence is most easily analyzed in three separate groups: that establishing the end of the period at which time the adverse possession was no longer open and notorious; that establishing the earliest date of adverse possession; and that tending to show that the adverse possession was or was not continuous in the interim.
A. Evidence of When Open, Notorious and Hostile Use Terminated
The latest segment, to which the respondent did not raise an exception to the Master's Report, is 1967 — 1971. Petitioner, Mrs. Miller, testified from her personal memory that during this time period her family used the entire two-acre parcel, including the disputed back acre, as though they were the true owners (believing themselves to be in fact the true owners) in a manner that was open, notorious and hostile to any other claim to the property. The indicia of ownership included iron axles set at the rear corners of the property, beyond which Mrs. Miller (then, Miss Melson) was not permitted to play; a family vegetable garden on portions of the disputed back acre; and keeping livestock (chickens/chicken coops and a cow staked and permitted to graze near a lean-to shed) on the disputed back acre. Following Mr. Melson's death in 1971, Mrs. Melson arranged to have the farmer who cultivated the Steele property also till and cultivate the back acre (and ultimately portions of the undisputed front acre, as well). Since that time the disputed property has been tilled and cultivated along with and in the same fashion as parts of the Steele property. Importantly, from that time onward the Melson's use of the back acre was no longer "open and notorious" for purposes of establishing ownership through adverse possession. Thus, any adverse possession claim would have to have been perfected in 1971, which is to say that the period of uninterrupted adverse possession must have begun by 1951, in order to meet the statutory 20-year requirement.
B. Earliest Evidence Establishing Open, Notorious and Hostile Use
The earliest evidence presented of adverse possession was the 1946 Bennett survey recorded in respondent's chain of title. The respondent takes exception to the Master's report with regard to this survey. Respondent contends that the Master's report depends on a factual finding that iron axles were in place demarcating the property boundary when Mr. Bennett conducted the 1946 survey. Because the survey itself does not refer to any monuments and there is insufficient evidence to establish precisely when the iron axles were placed, the respondent contends that there is not clear and convincing evidence to support such a finding.
Initially, I note that the Master's Report is not dependent on such a finding because it clearly states that the Bennett survey demonstrates that the Melsons or Daiseys had asserted ownership "by the placement of the axles or other indicia of possession, at least as early as 1946." Masters Report at 16 (emphasis added). A factual finding that the axles were in place in 1946 would be sufficient to support the conclusion in the Master's Report but is not necessary. The original Steele to Daisey deed describes an iron axle driven into the western corner of the property designating the rear property boundary. That deed and all subsequent property descriptions in the petitioners' chain of title refer only to one iron axle, not two. Mrs. Miller, in her testimony, described two iron axles driven at the rear corners of the back acre that marked the rear boundary of her parent's property in the 1960s and beyond which she was not permitted to play as a child. When Maxwell Morris, a surveyor hired by the petitioners to conduct a survey of their property in preparation for subdividing it, discovered a discrepancy between the property lines indicated in the Miller's deed and that of the adjoining Steele property, he sought to find the original iron axle described in the Miller's deed. When he was unable to do so, he sought to find monuments at the locations indicated on the Bennett survey, which provides the legal description of the Steele property, as the corners of the Melson property. Although the Bennett survey did not contain any notation that monuments were present at the corners where the Steele and Melson adjoined, Mr. Morris found iron axles buried at both corners with the properties one at the western corner appearing to be an old buggy axle. The top of this axle was bent over, quite likely hit by a plow at some point since this part of the property has been tilled and cultivated for about the past thirty years.
At the trial, there was quite a bit of testimony about precisely how Mr. Bennett might have come to the conclusion that the back acre was part of the Melson property and excluded it from the ten acres set aside in Mr. Steele, Sr.'s will for his son, Charles, the respondent's father. The respondent's theory is that Mr. Bennett was a lazy and careless surveyor; that Mr. Bennett worked from one of the deeds to the Daiseys or Melsons; and that Mr. Bennett found it less taxing to calculate two acres noted at the end of the deed without making reference to the metes and bounds description than to draw up the controlling metes and bounds description that described roughly one acre. The problem with this theory is that is either proves too much or too little and is internally inconsistent. First, in order to determine how to establish the width of the Melson's parcel, any surveyor (whether careless or conscientious) would have to either refer to the metes and bounds description of the property or would have to observe the subject property and the various indicia of ownership and possession. The Bennett survey shows the width and position of the Melson parcel to be that described in the metes and bounds description of the deed, which also coincides with the property claimed by the petitioners and their predecessors in interest. It is clear that Mr. Bennett did not generate a survey that is consistent with the metes and bounds description of the property contained in the Steele to Daisey deed. It is incredible, however, to imagine that had he examined the deed Mr. Bennett or anyone would have seen only that it called for two acres, completely ignored the one-acre metes and bounds description, and then proceeded to draw the precise two acres that are claimed by the petitioners.
Second, I also note that the interested parties — Mrs. Lulu Steele and Mr. Charles Steele — apparently accepted the Bennett survey as accurate because it has been recorded and used ever since as the legal description of the ten acres devised to Charles. The only plausible interpretation of the evidence is that in 1946 the Melson property appeared to encompass the two acres claimed by the petitioners and that at that time there was sufficient indicia of possession that the predecessors in title to both parties in interest in this matter, as well as a surveyor hired by the Steele estate, believed and accepted that the Melson property was the two-acre parcel described in the Bennett survey. Mr. Bennet's survey is clear and convincing evidence that in 1946 the use to which the back acre was being put was sufficient notice that the Melsons or Daiseys claimed title to it openly, notoriously, and in a manner hostile to the interests of the Steeles.
C. Evidence of Continuous and Uninterrupted Possession Between 1946-71
Finally, there is adequate clear and convincing evidence that between 1946 and 1971 the adverse possession continued in an uninterrupted fashion. Anal photographs of the area from 1954, 1960, and 1968 indicate that the two-acre parcel was used in a manner different from that of the adjoining Steele property and from that of adjoining property not owned by the Steeles. Willard Gray testified that he and his family have cultivated the Steele property since sometime in the 1960s and some years later began tilling the back acre as well. Mr. Gray testified that to his knowledge he and his family had always believed that the back acre belonged to the Melsons and then to the Millers. Property tax records spanning 1947-69 were entered into evidence and the parties stipulated that the Melsons paid property taxes on two acres throughout this time period. Upon review of all the evidence entered at trial, I conclude that the Melsons, predecessors in title to the respondents, possessed and used the disputed back acre in a manner that was open, notorious and hostile for a continuous period between Issac Bennett's survey in 1946 and Mr. Melson's death in 1971.
III. CONCLUSION
Having considered and reviewed the matter on a de novo basis, I conclude that the Master's Report should be approved. The evidence at trial was adequate to establish through clear and convincing evidence that the Melsons established ownership of the back acre by adverse possession during 1946-71. Petitioners should submit a form of order consistent with the Master's Report and this Memorandum Opinion.