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Striefel v. C-K-L Partnership
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 111
Docket:	Han-98-689
Submitted
on Briefs:	June 29, 1999
Decided:	July 16, 1999	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.


JOSEPH H. STRIEFEL v. CHARLES-KEYT-LEAMAN PARTNERSHIP et al.


RUDMAN, J.

	[¶1]	Joseph H. Striefel appeals from the judgment entered in the
Superior Court (Hancock County, Mead, J.) in favor of Donna Brignull,
Donald W. MacLeod III, and Martha M. Sikkema (collectively, "the
MacLeods") in Striefel's action seeking a declaration of his rights in a strip
of land.  Striefel contends that: (1) the trial court applied the wrong
standard of proof; and (2) the evidence was insufficient to establish the
elements of adverse possession.  We disagree, and affirm the judgment. 
	[¶2]	The dispute in issue pertains to a portion of an approximately
twenty-foot-wide strip of land in Bar Harbor.  Striefel filed a declaratory
judgment action against the MacLeods, seeking a declaration that he owned
title to the land in question in fee simple absolute.  The MacLeods claimed
title by adverse possession to the portion of the land extending westward
from the border of their deeded property line to a wire fence embedded in a
tree line ("the parcel").  The trial court concluded that the MacLeods
satisfied their burden of establishing title to the parcel by adverse
possession.  This appeal followed.  
I. STANDARD OF PROOF
	[¶3]	A party claiming title by adverse possession bears the burden of
proving each of the elements of adverse possession by a "fair preponderance
of the evidence."  Stowell v. Swift, 576 A.2d 204, 205 (Me. 1990); Milliken
v. Buswell, 313 A.2d 111, 117 (Me. 1973).  Contrary to Striefel's contention,
the court did not err in applying the preponderance of the evidence
standard. 
II. ADVERSE POSSESSION
	[¶4]	As an initial matter, we recognize that the law disfavors the
transfer of land by adverse possession.{1}  See, e.g., Grace v. Koch, 692 N.E.2d
1009, 1011-12 (Ohio 1998); Potts v. Burnette, 273 S.E.2d 285, 288 (N.C.
1981).  "Society generally prefers that traditional recordable conveyances
control the status of titles for real property interests."  Nusekabel v.
Cincinnati Pub. Sch. Employees Credit Union, Inc., 708 N.E.2d 1015, 1020
(Ohio Ct. App. 1997) (quotations omitted).  "[T]here is every presumption
that the occupancy is in subordination to the true title, and if the possession
is claimed to be adverse the acts of the wrong-doer must be strictly
construed and the character of the possession clearly shown."  Webber v.
Barker Lumber Co., 121 Me. 259, 263, 116 A. 586, 587 (1922); accord
Miller v. Anderson, 964 P.2d 365, 368 (Wash. Ct. App. 1998) (stating that
possession and use of property are presumed to be in subordination to title
of true owner).  
  	[¶5]	"Title by adverse possession may be established either pursuant
to the common law or statutory provisions."  Colquhoun v. Webber, 684 A.2d
405, 410 (Me. 1996); see also 14 M.R.S.A. §§ 801-816 (1980 & Supp.
1998).  The MacLeods did not claim title by adverse possession pursuant to
statute.{2}  The common law applies. 
	[¶6]	A party claiming title by adverse possession pursuant to the
common law must prove by a preponderance of the evidence that its
possession and use of the property were: (1) "actual"; (2) "open"; (3)
"visible"; (4) "notorious"; (5) "hostile"; (6) "under a claim of right"; (7)
"continuous"; (8) "exclusive"; and (9) of a duration exceeding the twenty-
year limitations period.  See Falvo v. Pejepscot Indus. Park, 1997 ME 66,
¶ 8, 691 A.2d 1240, 1243.  "Whether specific acts are sufficient to establish
the elements of adverse possession can only be resolved in light of the
nature of the land, the uses to which it can be put, its surroundings, and
various other circumstances."  Id. (internal quotations omitted).
	[¶7]	Adverse possession presents a mixed question of law and fact. 
See Bowman v. Geyer, 127 Me. 351, 355, 143 A. 272, 274 (1928); Webber,
121 Me. at 262, 116 A. at 587; accord Miller, 964 P.2d at 369 ("[W]hether
the necessary facts exist is for the trier of fact, but whether those facts
constitute adverse possession is an issue of law for the court to decide.").  In
Webber, 121 Me. at 262, 116 A. at 587, we stated:
	In the abstract[,] what acts of dominion will result in
	creating title by adverse possession is a question of law.  In
	this field[,] the powers of the court are primary and
	plenary.  Whether those acts were really done, and the
	circumstances under which they were done, raise
	questions of fact.  In this field[,] the powers of the
	[factfinder], in the first instance, are primary and plenary.  
We will uphold a trial court's determination that a claimant established each
of the elements of adverse possession "if supported by credible evidence in
the record."  Maine Gravel Servs., Inc. v. Haining, 1998 ME 18, ¶ 3, 704
A.2d 417, 418.  "It is primarily for the factfinder to judge the credibility of
witnesses and to consider the weight and significance of any other
evidence."  Cates v. Smith, 636 A.2d 986, 988 (Me. 1994) (quotations
omitted).  "As such, [we] must give due regard to the trier of fact's
determinations on credibility, weight[,] and significance of evidence."  Id.
(quotations omitted). 
	[¶8]	We direct our attention to the elements of adverse possession, to
determine whether the record contains sufficient credible evidence to
support the trial court's determination that the MacLeods met their burden
of establishing each of the elements.

A.  "Actual"

	[¶9]	"Actual" means "[e]xisting in fact or reality."  WEBSTER'S II NEW
RIVERSIDE UNIVERSITY DICTIONARY 76 (1988).  "Actual" possession and use
exists when the land is in the "immediate occupancy and physical control"
of the adverse possession claimant.  BLACK'S LAW DICTIONARY 1163 (6th ed.
1990).  "Actual" possession and use consist of a literal, physical entry upon
the land, and are manifested by "acts of occupancy [that] indicate a present
ability to control the land and an intent to exclude others from such
control."  Flowers v. Roberts, 979 S.W.2d 465, 469 (Mo. Ct. App. 1998).  The
purpose of this requirement is to give the true owner notice of the extent of
the trespass, because adverse possession generally does not extend beyond
the land that the claimant actually occupies.{3}  See Solomon's Rock Trust v.
Davis, 675 A.2d 506, 509-10 (Me. 1996);  Estate of Stone v. Hanson, 621
A.2d 852, 854 (Me. 1993); Emerson v. Maine Rural Missions Ass'n, 560 A.2d
1, 2-3 (Me. 1989).  Whether a claimant "actually" possessed and used the
land at issue will depend on the nature and location of the property, the
potential uses of the property, and the kind and degree of use and
enjoyment to be expected of the average owner of such property.  See
Emerson, 560 A.2d at 2; Flowers, 979 S.W.2d at 469.  
	[¶10]	The record indicates that the entire parcel remained in the
immediate occupancy and physical control of the MacLeod family from 1950
to 1995.  Brignull testified that her family in fact possessed and used the
portion of the land between the western boundary of their deeded property
line and the fence embedded in the tree line, but not the land beyond the
fence.  Brignull's testimony and photographs indicate that the MacLeod
family used the parcel in a typically residential manner that included
recreation, storage, and gardening.{4}  The MacLeod family's possession and
use of the parcel were "in kind and degree the same as . . . to be expected of
the average owner of such property," and were sufficient to put the true
owner on notice of the extent of their trespass.  Baptist Youth Camp v.
Robinson, 1998 ME 175, ¶ 13, 714 A.2d 809, 814 (quotations omitted). 
The record contains sufficient credible evidence to support the trial court's
finding that the MacLeods established "actual" possession and use,
throughout the limitations period, of that portion of the land extending to
the fence within the tree line.  

B.  "Open," "Visible," and "Notorious"

	[¶11]	"Open" means without attempted concealment.  See, e.g., Foot v.
Bauman, 129 N.E.2d 916, 919 (Mass. 1955); Hindall v. Martinez, 591 N.E.2d
308, 310 (Ohio Ct. App. 1990).  "Visible" means capable of being seen by
persons who may view the premises.{5}  See Gaudio, American Law Of Real
Property § 11.02[3] at 11­p;20 to ­p;21 (1994).  "Notorious" means known to
some who might reasonably be expected to communicate their knowledge to
an owner maintaining a reasonable degree of supervision over his property.{6} 
See, e.g., Foot, 129 N.E.2d at 919; Hindall, 591 N.E.2d at 310.  The purpose
of these three requirements is to provide the true owner with adequate
notice that a trespass is occurring, and that the owner's property rights are
in jeopardy.  See Emerson, 560 A.2d at 2-3.  Hence, a claimant will fail to
satisfy the requirements of openness, visibility, and notoriety unless the
possession and use were sufficiently apparent to put the true owner on
notice that the claimant was making an adverse claim of ownership.  See id.;
Maine Gravel Servs., Inc., 1998 ME 18, ¶ 3, 704 A.2d at 418.  "Such notice
need not be actual; it is sufficient to prove acts so open[, visible,] and
notorious that the owner's knowledge of them and of their adverse
character may be presumed."  Emerson, 560 A.2d at 3. (citations omitted);
see also Estate of Stone, 621 A.2d at 854.   
	[¶12]	The MacLeod family's possession and use of the parcel were
sufficiently apparent to put the true owner on notice that they were making
an adverse claim of ownership.  See Emerson, 560 A.2d at 3.  First, the
record does not indicate, nor does Striefel assert, that the MacLeods
attempted to conceal their possession and use of the parcel (i.e., that the
possession and use were not "open").  Second, Brignull testified that,
throughout the limitations period, neighbors and passersby on the bordering
municipal street were able to clearly observe her family's possession and use
of the parcel (i.e., the possession and use were "visible").  Third, the record
indicates that the possession and use were "notorious" because, inter alia,
the families of the neighborhood children who played on the parcel with the
MacLeod children might reasonably have been expected to communicate
their knowledge of the possession and use to a true owner maintaining a
reasonable degree of supervision over its property.  The record supports the
trial court's finding that the MacLeod family's possession and use were
"open," "visible," and "notorious" throughout the limitations period. 

C.  "Hostile"

	[¶13]	"Hostile" simply means that the possessor does not have the
true owner's permission to be on the land, see Falvo, 1997 ME 66, ¶ 9, 691
A.2d at 1243, and "has nothing to do with demonstrating a heated
controversy or a manifestation of ill will, or that the claimant was in any
sense an enemy of the owner of the servient estate."{7}  Glidden v. Belden,
684 A.2d 1306, 1318 n.19 (Me. 1996) (internal quotations omitted). 
Permission negates the element of hostility, and precludes the acquisition of
title by adverse possession.  See, e.g., Miller, 964 P.2d at 369 ("Use with the
true owner's permission . . . cannot be hostile to the true owner's title."). 
Permission can be either express or implied.  See id.  Brignull's testimony
clearly indicates that the MacLeods received neither express nor implied
permission from the true owner to use the parcel.  The record supports the
trial court's finding that the MacLeod family's possession and use of the
parcel were "hostile" throughout the limitations period.  

D.  "Claim of Right"

	[¶14]	"Under a claim of right" means that the claimant "is in
possession as owner, with intent to claim the land as [its] own, and not in
recognition of or subordination to [the] record title owner."  BLACK'S LAW
DICTIONARY 248 (6th ed. 1990).  "By its very nature[,] adverse possession
involves an act of disseisin; that is, exclusive possession of another's land
with intent to claim title."{8}  Estate of Stone, 621 A.2d at 854.  
	[¶15]	As Brignull's testimony and photographs demonstrate, the
MacLeod family intentionally possessed and used the parcel as though they
owned it, without recognition of or subordination to the true owner.  Striefel
does not assert, nor does the record indicate, that the MacLeod family
possessed and used the parcel under a mistaken assumption of ownership.{9} 
The record supports the trial court's finding that the MacLeod family
possessed and used the parcel "under a claim of right" throughout the
limitations period.

E.  "Continuous"

	[¶16]	"Continuous" means "occurring without interruption."  BRYAN A.
GARNER, A DICTIONARY OF MODERN LEGAL USAGE 213 (2d ed. 1995).  Like
actual possession and use, continuous possession and use requires only the
kind and degree of occupancy (i.e., use and enjoyment) that an average
owner would make of the property.  See Maine Gravel Servs., Inc., 1998 ME
18, ¶ 3, 704 A.2d at 418.  Brignull testified that her family's possession and
use of the parcel occurred without interruption from 1950 to 1995.  The
record supports the trial court's conclusion that the possession and use
were "continuous" throughout the limitations period.

F.  "Exclusive"

	[¶17]	"Exclusive" possession and use means that the possessor is not
sharing the disputed property with the true owner or public at large.{10}  See
Emerson, 560 A.2d at 3.  Brignull testified that, although her family allowed
neighborhood children to play with them on the parcel, they did not share
the parcel with the true owner or the public at large.  The record supports
the court's finding that the MacLeod family's possession and use were
"exclusive" throughout the limitations period.

G.  Twenty-Year Limitations Period

	[¶18]	A claimant must prove that its possession and use satisfied each
of the aforementioned elements simultaneously "for a period of at least
twenty years."  Maine Gravel Servs., Inc., 1998 ME 18, ¶ 3, 704 A.2d at 418
(quotations omitted).  Brignull testified that her family possessed and used
the parcel consistently from 1950 to 1995.  The record supports the court's
finding that the duration of the family's possession and use exceeded the
duration of the twenty-year limitations period.
	[¶19]	We conclude that the record contained sufficient credible
evidence to support the trial court's conclusion that the MacLeod family's
possession and use of the parcel were "actual, open, [visible,]{11} notorious,
hostile, under a claim of right, continuous, and exclusive for a period of at
least twenty years."  Maine Gravel Servs., Inc., 1998 ME 18, ¶ 3, 704 A.2d at
418; see also Falvo, 1997 ME 66, ¶ 8, 691 A.2d at 1243.  Therefore,
contrary to Striefel's contention, the trial court did not err in determining
that the MacLeods satisfied their burden of establishing title by adverse
possession.  
	The entry is:
				Judgment affirmed.

Footnotes and Attorneys