Chace v. Anarumo

• Decision Date: 09 May 1968
• Docket Number: No. 103,103
• Citation: 104 R.I. 48,241 A.2d 628
• Parties: Isabel J. CHACE et al. v. N. James ANARUMO et ux. Appeal
• Court: Rhode Island Supreme Court

Page 628

241 A.2d 628

104 R.I. 48

Isabel J. CHACE et al. v. N. James ANARUMO et ux.

Appeal No. 103.

Supreme Court of Rhode Island.

May 9, 1968.

[104 R.I. 57] Dolbashian & Chappell, N. Jameson Chace, Portsmouth, for complainants.

Graham, Reid, Ewing & Stapleton, Edward J. Regan, Providence, for respondents.

OPINION

ROBERTS, Chief Justice.

This bill in equity filed on April 6, 1964, was brought to enjoin the respondents from trespassing upon two parcels of land located in the town of Little Compton, to which the complainants claim the right to immediate and exclusive possession. The respondents filed an answer and a cross bill, in which they alleged that the two tracts in dispute were conveyed to them by the administrator of the estate of their predecessor in title, who, they allege, had acquired title thereto by adverse possession pursuant to the provisions of G.L. 1956, § 34-7-1. The cause was heard by a justice of the superior court sitting in equity, who on June 30, 1966, denied and dismissed the cross bill and entered judgment granting the injunctive relief sought by the complainants. From that judgment the respondents prosecuted an appeal to this court.

It appears from the record that in 1898 respondents' predecessor in title, Alton B. Wilcox, purchased a tract of land that subsequently came to be known as the Wilcox farm and continued to occupy and work the farm until his death in 1963. It further appears that the tracts of land, title to which is in dispute, about the Wilcox farm on the west and are known as the Otis Lake lot and the Snell Wood lot. It is not disputed that respondents had unsuccessfully negotiated with Wilcox for the purchase of the farm prior to his death. Subsequent to his death they purchased the farm from the administrator of Wilcox at a public auction held on August 21, 1963.

That record title to the wood lots under consideration is in complainants is not disputed. From the evidence it appears that in 1940 Dennis Arruda purchased the Otis Lake lot from a Lester F. Allen and Alice M. Rankin, the conveyance being by a quitclaim deed. In March 1952 Dennis Arruda conveyed the Otis Lake lot to Frank Arruda, who reconveyed it to Dennis on January 5, 1954. On April 15, 1955, the Otis Lake lot was conveyed by Dennis to the complainant, Isabel J. Chace. It further appears that the Snell Wood lot had been owned by George W. Snell for many years and that on March 10, 1952, he conveyed the tract to Alice T. Arruda, wife of Dennis Arruda. On April 15, 1955, Alice T. Arruda conveyed the Snell Wood lot to complainant, Isabel J. Chace.

The primary issue here is whether Wilcox during his lifetime had acquired title to the Otis Lake and Snell lots by adverse possession. The respondents so argue and contend that, therefore, the deed of the administrator conveying all of Wilcox's right, title, and interest in the farm passed to them whatever title he had in the Otis Lake and Snell lots. It appears, however, that the case was tried in the superior court on the assumption that the deed of the administrator to respondents included within its description the land comprising the Otis Lake and Snell lots, for it is only in this court that for the first time complainants argue that the conveyance from the administrator to respondents did not include land comprising the Otis Lake and Snell lots. However, because we are persuaded that respondents did not sustain the burden of proving that Wilcox during his lifetime had acquired title to the lots by adverse possession, the question of the boundaries of the farm conveyed becomes immaterial.

In cases involving adverse possession, strict proof is required. Sherman v. Goloskie, 95 R.I. 457, 188 A.2d 79, 370. Adverse possession requires proof by a preponderance of the clear and positive evidence or, as was stated otherwise by us in Finocchiaro v. Francescone, 97 R.I. 371, 373, 198 A.2d 37, 38, 200 A.2d 703, '* * * by evidence that is unambiguous and affirmative in its character.' We are unable to perceive that respondents met this burden of proof.

The statute upon which respondents rely provides that such title may be acquired by one who '* * * shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands * * * for and during the said time, claiming the same as his, her or their proper, sole and rightful estate in fee simple * * *.' G.L. 1956, § 34-7-1. This requires proof of actual possession of the property claimed and of acts of dominion over that property sufficient in law to vest title thereto in him. It is generally accepted that the possession required under the statute to confer title must be actual, open, notorious, hostile, under claim of right, continuous and exclusive. Sherman v. Goloskie, supra.

We are aware that respondents here urge that the particular land included in the two lots under consideration is wild and unimproved rural land and that under the rule as we stated it in Sherman v. Goloskie, supra, the possession is sufficient if it has been maintained in the manner in which owners of like land in similar locations make use thereof. As we said in that case, the test basically is that the use to which the land has been put is similar to that which would be made ordinarily of like land by the owners thereof. Conceding that this test is applicable here, we are unable to perceive in those circumstances that respondents satisfied the burden of proof imposed upon them to eatablish the acquisition of title by adverse possession.

In finding that respondents had not met the burden of proof, the trial judge stated: '* * * Neither the testimony nor the facts as shown by the testimony had that continuous dominion, and the open, notorious and continuous dominion that the law requires in cases such as the one in question.' He went on then to conclude that '* * * Mr. Wilcox never claimed the twenty-two acres as his own, never exercised the dominion over the land or the two lots in question, as required under our law.' We attach considerable significance to these statements because they disclose a recognition on the part of the trial justice of what, in our opinion, clearly appears upon an examination of the transcript, that is, a paucity of evidence tending to establish that the possession of Wilcox was sufficiently open, notorious, and continuous to satisfy the statute. In short, the trial justice rested his finding that the burden of proof had not been met primarily on the absence of such testimony from the record. It is settled that the findings of fact of a trial justice sitting in equity will not be disturbed by this court on appeal unless shown to be clearly wrong. City of Warwick v. Del Bonis Sand & Gravel Co., 99 R.I. 537, 209 A.2d 227; Cianciarulo v. Tarro, 92 R.I. 352, 168 A.2d 719.

To meet the requirement of showing that the trial justice was clearly wrong, respondents urge that he overlooked evidence of acts of dominion on the part of Wilcox and misconceived certain uncontradicted, unimpeached evidence adduced by respondents to establish such acts of dominion. They argue that the latter evidence, under the rule stated in Jackowitz v. Deslauriers, 91 R.I. 269, 162 A.2d 528, would be controlling on the basic issue. We cannot agree that the trial justice either overlooked or misconceived material evidence on the issue of the acquisition of title by adverse possession.

We have closely scrutinized his decision and are persuaded that he therein discussed fully the evidence bearing on the adverse possession of Wilcox. He noted particularly that such evidence of an exercise of dominion over the lots by Wilcox fails to establish that such acts of dominion were continuous and thus fails to establish one of the essential elements to be proved under the terms of ...