Christian Turner Assistant Professor of Law

235^ See Note, Deeds-Quitclaim Grantee as a Bona Fide Purchaser, 28 Ore.L.Rev. 258 n. 1 (1949) and the many cases cited therein. See generally, Annot., 59 A.L.R. 632 (1929); Annot., 162 A.L.R. 556, 560-62 (1946); 77 Am.Jur.2d Vendor and Purchaser, ss 711-13. On the other hand, there is also authority which holds that a quitclaim grantee cannot be a good faith purchaser. See 28 Ore.L.Rev. 258, at 259 n. 2. See also the territorial case of Crossly v. Campion Mining Co., 1 Alaska 391 (1901). There it was held that a grantee accepting a quitclaim deed with full knowledge of a prior unrecorded deed was not a subsequent innocent purchaser in good faith. This case would not be conclusive with respect to quitclaim grantees who record under a recording system and without actual knowledge. See also Wickwire v. City and Borough of Juneau, 557 P.2d 783, fn. 7 (Alaska 1976), holding that the right to recover damages for condemnation is not an interest in real property which passes by quitclaim deed.

236^ 1 R. Patton & C. Patton, Patton on Land Titles s 69, at 230-33 (2d ed. 1957). Cities Service Oil Co. v. Adair, 273 F.2d 673, 676 (10th Cir. 1959); Stafford v. Ballinger, 199 Cal.App.2d 289, 18 Cal.Rptr. 568, 572 (1962); Pierson v. Bill, 138 Fla. 104, 189 So. 679, 684 (1939); Jenkins v. Bates, 230 Miss. 406, 92 So.2d 655, 657 (1957); Baker v. Koch, 114 Ohio App. 519, 183 N.E.2d 434, 437 (1960); Portman v. Earnhart, 343 S.W.2d 294, 297 (Tex.Civ.App.1960); Lone Star Gas Co. v. Sheaner, 197 S.W.2d 855, 857 (Tex.Civ.App.1957); Hyson v. Dodge, 198 Va. 792, 96 S.E.2d 792, 796 (1957).

237^ 1 R. Patton & C. Patton, Patton on Land Title s 69, at 230-33 (2d ed. 1957); Lacey v. Humphres, 196 Ark. 72, 116 S.W.2d 345, 347 (1938); Etchison v. Dail, 182 Ark. 350, 31 S.W.2d 426, 427 (Ark.1930); Brown v. Copp, 105 Cal.App.2d 1, 232 P.2d 868, 871 (1951); Hawley v. McCabe, 117 Conn. 558, 169 A. 192, 194 (1933); Ward v. Parks, 166 Ga. 149, 142 S.E. 690, 692 (1928); Manson v. Berkman, 356 Ill. 20, 190 N.E. 77, 79 (1934); Blumenthal v. Serota, 129 Me. 187, 151 A. 138, 141 (1930); Smith v. Williams, 132 Okl. 141, 269 P. 1067, 1073 (1928); Brown v. Ackerman, 17 S.W.2d 771 (Tex.Civ.App.1929).

238^ The pertinent call references of defendants’ deed provide:

thence leaving the said Willowbrook Road N 71° 28’ E 184.80 feet to a fence post in the line of said private driveway, thence S 32° 33’ E 133.80 feet to a fence post in the line of said driveway, thence S 17° 04’ W 13 feet to a fence post in the line of said private driveway[.]

(Emphasis added.)

239^ The pertinent call references of plaintiffs’ deed provide:

thence S. 62° 00’ W. 31.41 feet crossing a road to a fence post corner of the David Gobble parcel; thence running with the David Gobble parcel the following calls: N. 17° 32’ E. 13.00 feet to a fence post; thence N. 32° 05’ W. 133.80 feet to a fence post[.]

(Emphasis added.)

240^ The road was going to provide access to an animal clinic the plaintiffs had constructed on their property.

241^ This Court approved in passing an adverse possession preponderance of the evidence jury instruction given by the trial court in Selman v. Roberts, 185 W.Va. 80, 86 n. 6(1991).

242^ Thus, the law in West Virginia is that where a person, acting under a mistake as to the true boundary lines between his or her land and that of another, takes possession of land believing it to be his or her own, up to the mistaken line, claims a prescriptive right to it and so holds, the holding is adverse, and, if continued for the requisite period may ripen into adverse possession. The fact that the one who takes possession under these circumstances had no intention of taking what did not belong to him or her, does not effect the operation of this rule. In all cases, the intention and not the mistake is the test by which the character of the possession is determined.

243^ In Somon, 160 W.Va. at 91-92, 232 S.E.2d at 529, we distinguished claim of title and color of title as follows:

A claim of title has generally been held to mean nothing more than that the disseisor enters upon the land with the intent to claim it as his own. Whereas, “color of title” imports there is an instrument giving the appearance of title, but which instrument in point of law does not.

(Citations omitted.)

244^ Based upon the evidence the defendants presented regarding the Blevins and Fletchers, the defendants actually misunderstand the import of their evidence. The evidence seems to suggest that the Blevins may very well have actually established adverse possession to the two-feet-wide tract, because they maintained the tract for over ten years. The Blevins conveyed their adversely possessed property to the Fletchers, and the Fletchers in turn conveyed the same to the defendants. Therefore the tacking involved here does not require analysis of the defendants’ period of ownership, unless it is established that the Blevins did not in fact acquire adverse possession. If it is determined that the Blevins acquired adverse possession of the two-feet-wide tract, the issue then merely becomes whether the Blevins intended to convey the two-feet-wide tract to the Fletchers, and whether the Fletchers intended to convey the two-feet-wide tract to the defendants. See Doty v. Chalk, 632 P.2d 644, 646 (Colo.App.1981) (“Title to property acquired by adverse possession matures into an absolute fee interest after the statutory prescriptive period has expired.”). The period of ownership by the defendants becomes irrelevant under this scenario. It is only if a determination is made that the Blevins did not establish adverse possession that the defendants’ period of ownership becomes relevant for tacking on the time period of the Fletchers.

245^ We have held that to establish “hostile” or “adverse” possession, evidence must be presented which shows that possession of disputed property was against the right of the true owner and is inconsistent with the title of the true owner for the entire requisite ten-year period.

246^ We have held that to establish “actual” possession, evidence must be presented which shows that possession of disputed property was used for enjoyment, cultivation, residence or improvements for the entire requisite ten-year period.

247^ We have held that to establish “open and notorious” possession, evidence must be presented which shows that possession of disputed property was in such a manner as to give notice to the true owner that the property is being claimed by another for the entire requisite ten-year period.

248^ We have held that to establish “exclusive” possession, evidence must be presented which shows that possession of disputed property was used only by the occupant and others were not permitted to use it or claim ownership during the entire requisite ten-year period.

249^ We have held that to establish “continuous” possession, evidence must be presented which shows that possession of disputed property was enclosed, maintained or cultivated during the entire requisite ten-year period.

250^ We have held that to establish “claim of title,” evidence must be presented which shows that possession of disputed property was claimed without actual title ownership by the occupant during the entire requisite ten-year period.

251^ We take this step reluctantly, mindful that the circuit courts have heavy caseloads. An appellate tribunal should not stand unduly on ceremony, but should fill in the blanks in the circuit court’s account when the record and circumstances permit this to be done without short-changing the parties. In this situation, however, the record and the burden of proof do not lend itself to curing the omission in this fashion. We are fortified in this cautious approach by what we envision as the distinct possibility that the circuit court undervalued the import of the tacking doctrine and the defendants’ evidence in support of it. Upon remand, the circuit court may summon and utilize the efforts of counsel in submitting detailed and case specific proposed findings of fact and legal conclusions.

252^ Morrow became the successor in interest and legal title holder of lot 19 after George passed away in 2003.

253^ In 1991, George Morrow and his joint-owner brothers sold lot 18.

254^ The record was unclear as to who first placed a picnic table on lot 19, but Cahill testified that there was a table on the lot from at least 1981.

255^ In approximately 2001, new owners purchased lot 18 from the Morrow brothers’ successor.

256^ Clear and convincing evidence is defined in a variety of ways; for example, to establish a fact or an element by clear and convincing evidence a party must persuade the jury that the proposition is highly probable, or must produce in the mind of the factfinder a firm belief or conviction that the allegations in question are true. The clear and convincing evidence standard does not require that the evidence negate all reasonable doubt or that the evidence must be uncontroverted.” 29 Am.Jur.2d Evidence § 173 at 188-89 (2008).

257^ It is true that the trial justice did not make use of the terms “strict proof” or “clear and convincing evidence” in his decision, but to me, evidence that is found to be “overwhelming” easily surpasses that criteria.

258^ Plaintiff’s survey, the validity of which is challenged by defendant, demonstrates the error.

259^ Defendant’s deed and chain of title purported to convey

The West fifth (50) feet of the East two hundred (200) feet of Government Lot two (2), Section nineteen (19); and the West fifty (50) feet of the East two hundred (200) feet of Government Lot one (1), Section thirty (30); all in Township twenty-two (22), North, of Range two (2) West, W.M.; …

The land defendants and their predecessors occupied, according to the survey, was the ‘West 50 feet of the east 150 feet of Government Lot 2, in Section 19, Township 22 North, of Range 2 West of W.M. …

260^ The inordinate delay in bringing this matter to trial appears from the record to be largely inexcusable. However, neither counsel who tried the case was at fault in any way. We have intentionally declined to consider defendant’s motion (probably well founded) to dismiss this case for want of prosecution (Rules of Pleading, Practice and Procedure 41.04W (1950)) for the reason that a new trial of the same issues would be inevitable and in light of our disposition of the case on the merits, defendants are not prejudiced by disregarding the technical grounds.

261^ “In the instant case the defendants” building was not simply over the line, but instead was built wholly upon the wrong piece of property, not the property of defendants, described in Paragraph Four (4) of the complaint herein, but on the property of plaintiffs, described in Paragraph Three of the complaint and herein. That the last three deeds in the chain of title, covering and embracing defendants’ property, including defendants’ deed, were executed in other states, specifically, California and Oregon. And there is no evidence of pointing out to the grantees in said three deeds, aforesaid, including defendants’ deed, of any specific property, other than the property of defendants, described in their deed, and in Paragraph Four (4) of the complaint, and herein; nor of any immediate act of the grantees, including defendants, in said Three (3) deeds, aforesaid, of taking possession of any property, other than described in said three (3) deeds, aforesaid; and the testimony of husband, defendant, was unequivocally that he had no intention of possessing or holding anything other than what the deed called for; and, that there is no showing of any continuous possession by defendants or their immediate predecessors in interest, since the evidence indicates the property was in the nature, for us, as a summer occupancy, and such occupancy and use was for rather limited periods of time during comparatively short portions of the year, and was far from continuous.’

262^ This statute provides:

(4.16.020) Actions to be commenced within ten years. The period prescribed in RCW 4.16.010 for the commencement of actions shall be as follows: “Within ten years; Actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action.”

263^ The English common law does not require privity as a prerequisite for tacking. See F. Clark, Law of Surveying and Boundaries, s 561 (3d ed. 1959) at 568.

264^ Defendants’ deed and chain of title had an alternate description referring to an unrecorded plat called the Navy Yard Additions 1 and 2.

265^ A diagram of the disputed parcel is attached as an appendix to this opinion.

266^ Because Nome 2000 challenges the trial court’s denial of its motion for a directed verdict, and the sufficiency of the evidence underlying the jury verdict, we are constrained to view the evidence in a light most favorable to the Fagerstroms. See Kavorkian v. Tommy’s Elbow Room, Inc., 694 P.2d 160, 163 (Alaska 1985); Levar v. Elkins, 604 P.2d 602, 603 (Alaska 1980). Our statement of the facts is made from this viewpoint.

267^ Federal law authorizes the Secretary of the Interior to allot certain non-mineral lands to Native Alaskans. See Act of May 17, 1906, 34 Stat. 197, as amended, Act of August 2, 1956, 70 Stat. 954; repealed by the Alaska Native Claims Settlement Act, § 18, with a savings clause for applications pending on December 18, 1971, 43 U.S.C. § 1617(a) (1982); modified by the Alaska National Interest Lands Conservation Act, § 905, 43 U.S.C. § 1634 (1982). As a result of her application, Peggy was awarded two lots (lots 3 and 12) which border the disputed parcel along its western boundary. (See Appendix.)

268^ The outhouse was blown over one winter by strong winds, but was re-erected the following summer with additional supports.

269^ However, Charles Fagerstrom testified that when he excluded the campers he felt that they were “on our property.” He also testified that during the mid to late 70’s he would have “frown[ed]” upon people camping on “my property.”

270^ A seven-year period is provided for by AS 09.25.050 when possession is under “color and claim of title.” The Fagerstroms do not maintain that their possession was under color of title.

271^ The function of the notoriety requirement is to afford the true owner an opportunity for notice. However, actual notice is not required; the true owner is charged with knowing what a reasonably diligent owner would have known. Linck, 559 P.2d at 1053.

272^ Neither the trial court’s denial of Nome 2000’s motion for a directed verdict nor the jury’s verdict should be disturbed if reasonable jurors could have concluded that the requirements for adverse possession were met. See Kavorkian, 694 P.2d at 163; Municipality of Anchorage v. Baugh Construction & Engineering Co., 722 P.2d 919, 927 (Alaska 1986).

273^ See supra n. 8.

274^ “Color of title exists only by virtue of a written instrument which purports to pass title to the claimant, but which is ineffective because of a defect in the means of conveyance or because the grantor did not actually own the land he sought to convey.” Hubbard, 684 P.2d at 847. As noted above, see n. 6, the Fagerstroms do not claim the disputed parcel by virtue of a written instrument.

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