Jarvis v. Gillespie, 89-529

• Citation: 155 Vt. 633,587 A.2d 981
• Decision Date: 18 January 1991
• Docket Number: No. 89-529,89-529
• Parties: Royal W. JARVIS v. Hubert GILLESPIE.
• Court: United States State Supreme Court of Vermont

Page 981

587 A.2d 981

155 Vt. 633

Royal W. JARVIS v. Hubert GILLESPIE.

No. 89-529.

Supreme Court of Vermont.

Jan. 18, 1991.

Polow & Polow, Hyde Park, for plaintiff-appellee.

Molde & Black, P.C., Johnson, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY and MORSE, JJ.

ALLEN, Chief Justice.

Defendant, grantee of a quitclaim deed from the Town of Waterville for a 1.2-acre parcel of land, contests the trial court's ruling that title to the parcel had previously passed from the Town of Waterville to plaintiff by way of adverse possession. We affirm.

The Town of Waterville acquired title to the parcel in 1935 from the administrator of the estate of the then owner. In 1932, the owner had mortgaged the parcel to the Town in order to receive public assistance. ¹ The Town provided support for the owner until his death, after which the administrator of the owner's estate deeded the parcel over to the Town.

In 1947, plaintiff purchased over 200 acres of land which surround the disputed parcel on three sides. The fourth side of the parcel is bounded by a road.

On May 7, 1986, the Town of Waterville, by quitclaim deed, conveyed the disputed parcel to defendant. Shortly thereafter, defendant went to the property and removed "No Trespassing" signs which plaintiff had posted on the property. Plaintiff replaced the signs and built a wooden fence on the property.

On February 24, 1988, plaintiff filed a declaratory judgment action to establish his ownership of the disputed parcel by way of adverse possession or, in the alternative, to obtain a prescriptive easement over a roadway which crosses the parcel. Defendant contested the action by denying plaintiff's claims and by asserting as an affirmative defense that plaintiff could not gain title to, nor a prescriptive easement over, the parcel because lands given to a public use are exempted from adverse possession claims by 12 V.S.A. § 462.

The trial court found that at various times between the years 1947 and 1986 plaintiff had used the land for a variety of purposes, such as grazing cattle and horses, parking vehicles, as a staging area for a logging operation on surrounding property, and to store slab wood from a sawmill which was located on adjacent property. The court also found that during that period plaintiff, at various times, maintained a fence on the roadside boundary of the parcel, tapped maple trees on the parcel, planted trees on the parcel, cut Christmas trees and firewood from the parcel, posted "No Trespassing" signs on the parcel, and built a loading ramp on the parcel for the logging operation which remained in use to load and unload his tractor after the logging operation ceased. The court found that these uses were clearly visible from the road which abutted the parcel. Further, the court found that plaintiff was the only person to make use of the property for any reason during the period and that neither the Town of Waterville nor the public made any use of the parcel during that time.

From these facts, the court concluded that plaintiff had established title to the property by adverse possession. The court further concluded that the exemption provided in 12 V.S.A. § 462 did not apply in this instance because the property was not given to a public use. Defendant then brought this appeal contesting both of these conclusions.

I.

We first address defendant's assertion that the trial court's findings numbered 17, 19, 20, 21, 22, 23, and 30 are clearly erroneous. ²

When reviewing the factual findings of a trial court, this Court will view them in the light most favorable to the prevailing party below, disregarding the effect of modifying evidence, and will not set aside the findings unless they are clearly erroneous. Brown v. Whitcomb, 150 Vt. 106, 109, 550 A.2d 1, 3 (1988); V.R.C.P. 52(a). The findings will stand if there is any reasonable and credible evidence to support them. Harlow v. Miller, 147 Vt. 480, 481-82, 520 A.2d 995, 997 (1986).

A review of the record discloses sufficient evidence to support findings 17, 19, and 23, and, therefore, they will not be set aside. Also, defendant's challenge to finding 30 is directed at the conclusion the trial court drew from the finding and not at the substance of the finding itself. Therefore, the substance of this finding stands.

Defendant's challenge to findings 20, 21, and 22 have merit. Findings 20, 21, and 22 are clearly erroneous as to the dates specified therein. There is no evidence to support a finding that the uses mentioned in finding 20 started in the mid-1950s. Those uses started in 1965. Therefore, findings 20 and 21 are erroneous as to the period of the mid-1950s to 1965. Also, there is no support for finding that plaintiff conducted a logging operation in 1973, as is stated in finding 23. The evidence clearly shows that the logging operation took place in 1971 and 1972. Therefore, finding 23 is erroneous as to the year 1973.

These errors, though, are harmless. The errors in findings 21 and 22 concern only the period from the mid-1950s to 1965. This period is not crucial because, as will be discussed below, plaintiff's possession from 1965 to 1986 was sufficient to establish title. See infra note 3 and accompanying text. The error in finding 23 concerns only the logging operation in 1973 which is unessential because there were other activities on the property in 1973. Therefore, because the errors concern only unessential findings, they do not provide a basis for reversal. See Tetreault v. Tetreault, 148 Vt. 448, 453, 535 A.2d 779, 782 (1987) (unessential findings do not provide grounds for reversal even when such findings are incorrect).

II.

Defendant next contends that the trial court erred in finding that plaintiff had established all the elements necessary to gain title to the parcel by adverse possession. One acquires title by adverse possession through " 'open, notorious, hostile and continuous' possession of another's property for a period of fifteen years." Moran v. Byrne, 149 Vt. 353, 355, 543 A.2d 262, 263 (1988) (quoting Laird Properties New England Land Syndicate v. Mad River Corp., 131 Vt. 268, 277, 305 A.2d 562, 567 (1973)). The claimant has the burden of establishing all of these elements. Laird, 131 Vt. at 279, 305 A.2d at 569.

Defendant argues that except for the logging operation in 1971 and 1972 and storing the slab wood in 1983 and 1984, none of plaintiff's uses of the parcel constituted sufficient possession to establish adverse possession. Defendant relies on case law asserting that certain acts, such as tapping trees or cutting timber, by themselves are insufficient to establish possession. See Caskey v. Lewis, 54 Ky. (15 B. Mon.) 27, 32 (1854) (occasional use for sugaring and cutting timber and firewood did not constitute possession); Adams v. Robinson, 6 Pa. 271, 272 (1847) (annual use of land as a sugar camp constituted a succession of trespasses rather than occupancy). Such a general proposition, however, is not conclusive of the particular controversy before us. "The ultimate fact to be proved in an adverse possession case is that the claimant has acted toward the land in question as would an average owner, taking properly into account the geophysical nature of the land." 7 R. Powell, The Law of Real Property p 1013[h], at 91-62 (1990); see Laird, 131 Vt. at 280, 305 A.2d at 569 (acts needed to give rise to constructive possession must be consistent with the nature of the property). Thus, although certain of the acts of possession taken by a claimant may not be sufficient to establish possession in all circumstances, each case must be examined individually, viewing the claimant's acts in light of the nature of the land.

In this case, the land is a 1.2-acre parcel surrounded on three sides by 280 acres of plaintiff's land and bounded on the fourth side by a road. The area in which it is located is rural and agricultural in nature. In 1947 there were no buildings on the property and there had not been any for many years. Grazing cattle and horses, cutting hay, planting and tapping trees, and cutting firewood and Christmas trees are the types of acts which are consistent with the nature of the parcel.

Defendant contends, however, that these acts are not the uses an average owner would have made of the parcel. He argues that because at one point before 1947 there had been a house on the parcel, because the parcel is flat, open, dry and well drained, because more trees could have been planted on it, and because defendant plans to build a house upon it, plaintiff did not use the parcel as an average owner might. We do not agree. Simply because a parcel may be susceptible to uses other than those to which the claimant chose to put it does not necessarily lead to the conclusion that the claimant failed to act toward the parcel as an average owner would have. " 'The possession is gauged by the actual state of the land, and not with reference to its capability of being changed into another state which would reasonably admit of a different character of possession.' " Bergen v. Dixon, 527 So.2d 1274, 1278 (Ala.1988) (quoting Goodson v. Brothers, 111 Ala. 589, 595, 20 So. 443, 445 (1896)). Plaintiff used the parcel for purposes which were consistent with its condition as he found it. He was not required to change nor necessarily improve the land, but was merely required to perform acts of possession which were consistent with the parcel's nature. Plaintiff's acts, while not necessarily sufficient to constitute possession of every piece of land, were sufficient to establish his possession of this parcel of rural, agricultural land.

Defendant argues that plaintiff also failed to establish a continuous fifteen-year period of possession. One basis of the argument is that plaintiff failed to establish the exact date in 1971 on which the loading ramp was constructed on the parcel. This is significant because of defendant's entry on the land in...