Akin v. Castleberry

• Decision Date: 18 September 2012
• Docket Number: No. 108,342.,108,342.
• Citation: 286 P.3d 638,2012 OK 79
• Parties: Chad H. AKIN, Plaintiff/Appellant, v. Don S. CASTLEBERRY, Sam D. Castleberry, and Terry G. Castleberry, all if living, and if dead their unknown heirs, executors, administrators, devisees, trustees and assigns, Defendants/Appellees, and The County Commissioners of Tillman County, State of Oklahoma, Defendants.
• Court: Oklahoma Supreme Court

286 P.3d 638

2012 OK 79

Chad H. AKIN, Plaintiff/Appellant,

v. Don S. CASTLEBERRY, Sam D. Castleberry, and Terry G. Castleberry, all if living, and if dead their unknown heirs, executors, administrators, devisees, trustees and assigns, Defendants/Appellees,andThe County Commissioners of Tillman County, State of Oklahoma, Defendants.

No. 108,342.

Supreme Court of Oklahoma.

Sept. 18, 2012.

CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION III; Honorable Richard Darby, Trial Judge

¶ 0 This cause concerns a dispute over the title to real property along the Red River in Tillman County, Oklahoma. The plaintiff/appellee, Chad H. Akin (Akin), asserts title by adverse possession, even though he also insists that he owns the property through a deed given to him by his father, Hugh L. Akin (father), in 1975. The defendants/appellees, Don S. Castleberry, Sam D. Castleberry, Terry G. Castleberry, (collectively Castleberrys) deny Akin's assertion of adverse possession and, instead, insist that they own the property through a deed obtained from their aunt in 1986. The trial court determined that Akin neglected to prove title by adverse possession and Akin appealed. The Court of Civil Appeals reversed. We granted certiorari and hold that the trial court should be affirmed because title by adverse possession was not proven under the facts presented.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

Babette Patton, Oklahoma City, Oklahoma, for Plaintiff/Appellant.

Brandon Wilson, Oklahoma City, Oklahoma, for Defendants/Appellees.

KAUGER, J.:

¶ 1 The only issue presented on appeal is whether the trial court erred in determining that title to the property was not held by adverse possession. We affirm the trial court's decision because title by adverse possession was not proven under the facts presented.

FACTS

¶ 2 In October of 1956, Robert and Florence McKinney (collectively McKinneys) purchased the disputed real property from a widower. The deed described the property as follows:

The Surface rights only in and to:

The South Half (S 1/2) of the Southeast Quarter (SE 1/4) of Section Eight (8), and Lots One (1), Two (2) and Three (3) of Section Seventeen (17), all in Township Four (4) South, Range Seventeen (17) West, I.M., Tillman County, Oklahoma, containing 162.37 acres more or less.

¶ 3 On September 26, 1975, the McKinneys retired from farming and sold their land at public auction. According to the auction flyer, the sale involved two parcels of land. The first sale was identified as “Sale No. 1” and it concerned “[t]he West 90 acres of the NE 1/4 Section of 17W.” The second parcel was identified as “Sale No. 2” and it was described as “The South 1/2 of the SE 1/4 Section, 8–4S17W, and Lot 3 of Section 17–42–17W. Containing 160 acres, more or less in all grass.” Lots 1 and 2 which were part of the original 1956 deed were not mentioned in the flyer and apparently not included in the sale.

¶ 4 Lots 1 and 2 consist of grass, trees, and shrub land along the Red River. Lot 1 is approximately 38.02 acres and Lot 2 is approximately 25.40 acres. The lots, unsuitable for cultivation, are primarily used for running cattle, hunting, or access to the river for fishing or other recreational activities. The lots are land-locked with no road to access them. Two sides of the lots are abutted by land owned by the Akin family, another side is abutted by land owned by a person named Wright and the fourth side borders the Red River.

¶ 5 Akin's father purchased the second parcel identified in the real estate auction flyer as “Sale No. 2” at the auction and entered into a real estate mortgage for the property with the McKinney's for $13,125.00.¹ Three days later, the father deeded the property to Akin who was 12 years old at the time. On February 21, 1986, Florence McKinney, then a widow, deeded Lots 1 and 2, as described in the original 1956 deed, to the Castleberrys.²

¶ 6 On January 5, 2007, Akin filed a petition to quiet title to real estate in Tillman County District Court, seeking title to Lots 1 and 2 as described in the Castleberry's deed. He alleged that for more than 30 years prior to the institution of the action, he and his predecessors had been in open, notorious, adverse, exclusive and continuous possession of the property. The Castleberrys denied the allegations and counterclaimed, alleging that Akin had interfered with their use of the property and caused a cloud upon their title to the property.

¶ 7 A trial was held before the District Judge on June 9, 2008. On June 27, 2008, the trial judge filed a journal entry of judgment concluding that title to the disputed Lots 1 and 2 was vested exclusively in Akin. The Castleberrys appealed and in case no. 106,151, on September 11, 2009, in an unpublished opinion, the Court of Civil Appeals reversed and remanded the matter to the trial court. It held that the trial court erred when it neglected to consider the testimony of the Castleberry's lawyer's corroborative evidence concerning permissive use of the property.³

¶ 8 On February 12, 2010, the trial court heard the testimony of the Castleberry's lawyer. On February 22, 2010, the trial court, after reconsidering all the evidence and the additional testimony, determined that Akin failed to prove his claim of adverse possession. On February 26, 2010, Akin filed a motion for new trial/motion to vacate judgment which the trial court denied on April 9, 2010 in an order filed April 21, 2010. Akin appealed on May 21, 2010, and on September 23, 2011, in an unpublished opinion, the Court of Civil appeals reversed the trial court.⁴ We granted certiorari on December 12, 2011.

¶ 9 TITLE BY ADVERSE POSSESSION WAS NOT PROVEN UNDER THE FACTS PRESENTED.

¶ 10 Recognizing that the time limit has expired to correct any alleged mistake in the 1975 deed that his father may have received after the public auction,⁵ Akin seeks to quiet title to the property by way of a claim of adverse possession. The Castleberrys deny Akin's claim and argue that the unbroken chain of record title shows ownership in the property belongs to them. They also insist that any adverse claim that Akin might assert is defeated by the fact that they have been in possession of the property since 1986, and have paid taxes on the property since then as well.

¶ 11 In adverse possession cases, the appellate court weighs evidence presented but will not reverse the trial court's judgement unless it is against the clear weight of evidence.⁶ To establish adverse possession, the claimant must show that possession was hostile, under a claim of right or color of title, actual, open, notorious, exclusive,⁷ and continuous for the statutory period of fifteen years.⁸

¶ 12 Furthermore, a claim of ownership must notify persons seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but against all titles or claimants.⁹ Acquisition by prescription is disfavored, and not to be made out by inference.¹⁰ The party claiming title adversely has the burden of proving every element by clear and positive proof.¹¹ In questionable cases, presumptions favor the record title holder.¹²

¶ 13 What constitutes adverse possession depends on the circumstances of the particular case, as measured by the judgment of reasonable people. The determination in any given case must largely depend on the situation of the parties, size and extent of land, and purpose for which it is adapted.¹³ Payment of taxes is not controlling circumstances but is one means whereby claim of ownership is asserted.¹⁴

¶ 14 At trial, the evidence of record title to the property was clear and uncontroverted. Direct and circumstantial evidence showed that the McKinneys were the record owners of lots 1 and 2 from 1956 until 1986, when, then widowed, Florence McKinney deeded the lots to the Castleberrys. Once the Castleberrys obtained the lots, they paid all of the ad valorem property taxes since 1986. While Akin testified that he and his father thought that his father had purchased lots 1 and 2 at auction, the deeds never reflected such and neither Akin nor his father ever attempted to correct their deeds to reflect this belief. Obviously, McKinney did not share this belief or she would not have deeded the property in 1986. Nevertheless, an abstract that Akin had prepared on October 17, 1975, includes lots 1 and 2 in a map of the property purchased and in the caption of the title opinion.

¶ 15 The evidence also reflects that both parties exercised possession and/or control of the property over the years. For example, on January 15, 1979, Akin granted a right of way/easement for all three lots to Diamond Shamrock Corporation for an oil and gas pipeline. The Akin family also built fences around the property and kept a gate with a lock on it which would inhibit access to the property in question when locked. Nevertheless, the Castleberrys claimed to have had, at some point in time, a key to unlock the gate, so that they could access their property. None of the Castleberrys lived in Tillman County and they only occasionally used the property for recreational purposes. Akin posted “NO TRESPASSING” signs on various points along the property borders.

¶ 16 In 2005, the Castleberrys inquired into the possibility of the county clearing a road to the property. Both parties presented evidence of use of the property either for cattle grazing, hunting or access to the river. In 1987, the Castleberrys asked an attorney to draft an agreement to present to Akin which would allow them to permissively run cattle on the disputed property in exchange for access to the property. Apparently, this “agreement” was never signed by Akin.¹⁵

¶ 17 In addition to the uncontroverted evidence that the Castleberrys paid the taxes on the property since 1986, the uncontroverted evidence also shows that both Akin and the Castleberrys were in possession of and used the property...