Gan v. Van Buren St. Methodist Church

• Decision Date: 13 February 2020
• Docket Number: No. 17-CV-22,17-CV-22
• Citation: 224 A.3d 1205
• Parties: Oron and Rebeccah GAN, Appellants, v. VAN BUREN STREET METHODIST CHURCH, Appellee.
• Court: D.C. Court of Appeals

224 A.3d 1205

Oron and Rebeccah GAN, Appellants,

v.VAN BUREN STREET METHODIST CHURCH, Appellee.

No. 17-CV-22

District of Columbia Court of Appeals.

Argued March 27, 2018

Decided February 13, 2020

Aaron Sokolow, with whom Morris R. Battino and Vivianette Velázquez were on the brief, for appellant.

Robert Maxwell for appellee.

Before Thompson and McLeese, Associate Judges, and Ruiz, Senior Judge.

Separate statement by Associate Judge Thompson at page 1213.

Dissenting opinion by Senior Judge Ruiz at page 1213.

McLeese, Associate Judge:

Appellants Oron and Rebeccah Gan and appellee Van Buren Street Methodist Church own adjacent properties, and they dispute ownership of a driveway that touches the border between the two properties. The Gans challenge the trial court's grant of summary judgment to the Church. We vacate and remand for further proceedings.

I.

The following facts are undisputed except as indicated. The Gans own a property located at 6638 Eastern Avenue NW. The Church owns an adjacent property located at 35 Van Buren Street NW. The Church's deed includes the property at issue in this case: a paved driveway, approximately ten feet wide, running from the back of the Church's property to Eastern Avenue, parallel to the Gans' property line.

The Gans purchased 6638 Eastern Avenue from Ms. Bernice Harleston in 2008. The deed conveyed "all that/those certain piece(s) or parcel(s) of land, together with the improvements, rights, privileges and appurtenances to the same belonging ... as described in Exhibit A attached hereto and made a part hereof." Exhibit A, attached to the deed, describes the bounds of the Gans' property (which do not include the driveway), and also describes "a right of way more particularly described in Liber 8973 at folio 581, of [the D.C.] land records." Liber 8973 at folio 581 recorded an easement over the driveway.

It is uncontested that according to the pertinent deeds the Church is the title owner of the driveway. The Gans argue, however, that they are the rightful owners of the driveway under the doctrine of adverse possession. "To establish title by adverse possession, appellants must demonstrate possession of the land that is actual, open and notorious, exclusive, continuous, and hostile, throughout a period of fifteen years." Sears v. Catholic Archdiocese , 5 A.3d 653, 658 (D.C. 2010) (internal quotation marks omitted). According to the Gans, by no later than 2000 Ms. Harleston put up a fence that prevented the Church from gaining access to the driveway. The Gans further allege that the fence remained in existence thereafter, although at some point the original fence was replaced by a wooden fence. In support of their adverse-possession claim, the Gans submitted an affidavit executed by Ms. Harleston in 2016. In the affidavit, Ms. Harleston attested that her purchase deed had referred to "an easement area on the property (the ‘Easement’)"; that in 2000 she put a fence across the Easement to prevent access to the property; that she maintained that fence until she sold the property; that she had believed that she owned the Easement; and that she had intended to convey ownership of the Easement to the Gans.

The Gans claim that they are entitled to "tack" Ms. Harleston's period of adverse possession onto their own, thereby meeting the fifteen-year threshold. See generally, e.g. , Tacking , Black's Law Dictionary (10th ed. 2014) ("The joining of consecutive periods of possession by different persons to treat the periods as one consecutive period; esp., the adding of one's own period of land possession to that of a prior possessor to establish continuous adverse possession for the statutory period.").

The Church disputes as a matter of fact that there has been a fence since 2000 preventing its use of the driveway. That factual dispute, if material, would have to be decided at a trial. For current purposes, we assume the truth of the Gans' contention that Ms. Harleston and the Gans have adversely possessed the driveway since 2000. The Church also argues, however, that as a matter of law the Gans are not entitled to base their adverse-possession claim in part on the time before they purchased their property, because the deed from Ms. Harleston to the Gans did not by its terms convey either title to the driveway or an inchoate adverse-possession interest in the driveway.

The trial court granted summary judgment to the Church on the ground that tacking was precluded because the deed from Ms. Harleston to the Gans on its face did not convey title to, or an inchoate adverse-possession interest in, the driveway, instead conveying only the right to an easement over the driveway.

II.

We review de novo a trial court's grant of summary judgment, viewing the evidence in the light most favorable to the non-moving party. Sears , 5 A.3d at 657. "If there are no disputed issues of material fact, summary judgment is appropriate if the movant is entitled to judgment as a matter of law." Id. The Church suggests in passing that the Gans failed to preserve in the trial court the arguments they present in this court. To the contrary, we conclude that the Gans' opposition to the Church's motion for summary judgment adequately preserved the issues that we decide in this opinion.

The central issue in this appeal is whether the Gans are foreclosed as a matter of law from tacking Ms. Harleston's period of adverse possession onto their own. We conclude that, under controlling precedent, the Gans may tack Ms. Harleston's period of adverse possession onto their own if they can prove at trial by clear and convincing evidence that Ms. Harleston intended to grant them possession of the disputed driveway.

A.

Almost one hundred years ago, the Court of Appeals for the District of Columbia approved the tacking of periods of adverse possession in circumstances very similar to those of the present case. Brumbaugh v. Gompers , 269 F. 472 (1920). Brumbaugh involved a dispute that arose in 1915 about the ownership of a strip of land. Id. at 473. Under the applicable deeds, the defendants held fee title to the strip of land. Id. The plaintiff had bought an adjacent property in 1906 and was in actual possession of the disputed strip thereafter. Id. That period of possession, however, was not sufficient to meet the then-applicable thirty-year period required to establish adverse possession. Id. The prior owners who sold the adjacent property to the plaintiff, however, had been in actual possession of the disputed strip of land back to at least 1883. Id. In response to the suggestion that the two periods of possession could not be tacked, the court explicitly held to the contrary. Id. ("Some suggestion is made that there has been no tacking of possession, within the meaning of the law. This contention may be put out of view by a citation of the following authorities ...."). The cited authorities included St. Louis Southwestern Railway Co. v. Mulkey , 100 Ark. 71, 139 S.W. 643, 644 (1911) ("While it is true that the land described in the deed ... does not include the strip in controversy, still [appellee's] grantor ... thought it did, and at the time of the conveyance transferred to her the possession of it in fact .... This was sufficient even if it be conceded there was no conveyance of it in writing, and constituted such privity as entitled [appellee] to avail of his or their adverse possession and to tack her possession to theirs if necessary to complete her title and claim of ownership."); Viking Refrigerator & Manufacturing Co. v. Crawford , 84 Kan. 203, 114 P. 240, 240-41 (1911) (approving tacking of periods of adverse possession by successive occupants; rejecting view that tacking is permitted only if deed or other writing transfers adverse-possession interest, and approving principle that "[a]ll the law requires is continuity of possession, where it is actual") (internal quotation marks omitted); and Illinois Steel Co. v. Paczocha , 139 Wis. 23, 119 N.W. 550, 552 (1909) (approving tacking of periods of adverse possession where there is privity between successive occupants, but required privity is "merely [that of] physical possession, and is not dependent on any claim, or attempted transfer, of any other interest or title in the land").

In Brumbaugh , tacking was held proper where (1) there was continuous adverse possession of the disputed property by two successive occupants who owned an adjacent property, and (2) the first occupant sold the adjacent property to the second occupant. 269 F. at 472-74. Brumbaugh thus adopted what was then and continues to be the majority approach to the issue of tacking. See, e.g. , 16 Michael Allan Wolf, Powell on Real Property § 91.10[2], at 91-76 (2009) ("When, however, A conveys Blackacre to B , and B then seeks to claim[ ] adverse possession of adjacent land not covered by the deed, and wishes to tack the possession to prior possession by A , the cases are not unanimous. It is believed that both the weight of authority, and the more desirable rule, find privity in these circumstances, and so permit tacking."); 3 Am. Jur. 2d Adverse Possession § 73 (2013) ("Thus, if one adverse claimant, by agreement, surrenders possession to another, and the acts of the parties are such that the two possessions actually connect, leaving no interval for the constructive possession of the true owner to intervene, the two possessions are blended into one, and the running of the limitation period on the right of the true owner to reclaim the land is continued."); id. at § 76 ("If, in connection with a conveyance of lands, there are circumstances showing an intent to transfer to the grantee the possession of other adjacent land occupied by the grantor, but not covered by the deed, there is privity, and the grantee is entitled to tack the period of the grantor's occupancy to the grantee's own in establishing title by adverse possession to the land not conveyed."); 2 C.J.S. Adverse Possession § 172 (2013) ("Most...