Peters v. Juneau-Douglas Girl Scout Council

• Decision Date: 15 March 1974
• Docket Number: Nos. 1660,JUNEAU-DOUGLAS,1661,s. 1660
• Citation: 519 P.2d 826
• Parties: Willis PETERS, Appellant, v.GIRL SCOUT COUNCIL, Appellee.GIRL SCOUT COUNCIL, Cross-Appellant, v. Willis PETERS, Cross-Appellee.
• Court: Alaska Supreme Court

Page 826

519 P.2d 826

Willis PETERS, Appellant, v. JUNEAU-DOUGLAS GIRL SCOUT COUNCIL, Appellee.

JUNEAU-DOUGLAS GIRL SCOUT COUNCIL, Cross-Appellant, v. Willis PETERS, Cross-Appellee.

Nos. 1660, 1661.

Supreme Court of Alaska.

March 15, 1974.

Avrum M. Gross and Randall J. Weddle, of Faulkner, Banfield, Doogan, Gross & Holmes, Juneau, for appellant, cross-appellee.

R. J. Annis, Juneau, for appellee, cross-appellant.

Before RABINOWITZ, C. J., and CONNOR and FITZGERALD, JJ.

OPINION

CONNOR, Justice.

The property in dispute is a small section of breachfront in a protected cove of Tee Harbor, a semi-wilderness area near Juneau, Alaska. ¹ Record title to the property is held by the Juneau-Douglas Girl Scout Council. ² Claiming the property by adverse possession is Willis M. Peters, a 71 year-old Tlingit Indian. ³

At trial, Mr. Peters stated that he first came to Tee Harbor when he was about eight years old. However, his family's particular interest in the property involved in this dispute dates from 1916. In the spring of that year according to Mr. Peters' testimony, his uncle Elijah Sharclane 'bought the place' from one Henry Phillips for twenty-five dollars in gold. ⁴ Before Elijah died, he asked his oldest brother, Jerry, to take care of the property after he 'took off.' Similarly, when Jerry Sharclane felt he was getting too old to manage the property, he gave it to his nephew Willis Peters. This transfer occurred in about 1932. Mr. Peters described it as follows:

'Well, he's (Jerry Sharclane is) getting pretty old and that is howcome he tell me I have to take care of it now, You're (sic) old enough to take care of it. That is howcome I got it, yes.'

At the time Elijah purchased the building for his store, a community of Tlingit Indians occupied the area. A nearby cannery apparently ceased operation sometime in the 1920's, and the Tlingits gradually began to move away. By the time Jerry Sharclane gave the property to Willis, only Peters and his family remained on the land.

Over the 40 years since then, Peters has used the land in various ways. Although he has had a house in Juneau for 'close to twenty' of those years and has only lived solely on the claimed property for the last five years, ⁵ Peters made regular and extensive use of the property throughout the 40-year period. While he lived in Juneau, according to his testimony, he drove out there every weekend. He lived on the Tee Harbor property off and on every year during seal hunting season. ⁶ A bench for scraping seal hides was built there. During the summers, he repaired boats there, his own and those of certain of his relatives. Throughout the period, Peters has worked to keep the beach area free of rocks so that it will be a good place to land his boats. He has used his boats for sealing and for fishing, returning to his land at Tee Harbor to process the seal and smoke the fish. In addition, Peters has used the property as a station from which he hunts deer. He has also dug clams and planted a somewhat unsuccessful garden on it. Apart from these rather numerous activities, there are several structures on the land which should have indicated Peters' occupancy to the record owners. The property is dotted with the remains of several cabins, some of them caved-in and abandoned now like Jerry Sharclane's, Tom Sharclane's, and Flora Rudy's. ⁷ Other structures appear to be still in use. These include the house Peters built on the site of Elijah's old store, ⁸ a platform with a tent on it which Peters testified he put up six years ago to store his boat motors and trolling outfit, a smokehouse put up 'close to twenty years ago' for smoking fish and seal and deermeat, a seal skinning bench, and a well dug by Peters' sons. ⁹

The boundaries of Peters' claim are marked on the southwest by the remains of Jerry Sharclane's cabin, on the north or northwest by a bronze or brass post and on the east by the shoreline. The bronze post marking the north boundary is a piece of air pipe given to Peters to mark the end of his claim and to replace other markers that had been knocked down. The marker post has been knocked down four times. Peters testified that the first post was put there before 1930. He further testified that the piece of pipe was given to him in 'maybe 1935,' and that he had a sign on it indicating his ownership of the property until someone threw the sign away. He testified:

'After Donohue gave me this pipe I attach a notice to it. I say this property owned by Willis M. Peters. Please don't pull this post away. We see it on the beach.'

It is not clear when Mr. Peters first decided he should 'get papers' for his property like other people had. But at some point, apparently through talking to people, he became aware that in order to protect his holding and preserve it for his children, he must acquire a written paper title. ¹⁰ He sought the help of many people in his search for these papers. He went first to Territorial Governor Ernest Gruening, and after that to Gruening's successors. He went to the Land Management Office and to Alaska Native Services. He talked to several people. At some point he was told that the land belonged to Nick Bez and that he should see Nick Bez about it. Nick Bez is apparently an official in the company that owned the cannery. Peters testified that in 1950 he and his wife went down to Seattle to see Nick Bez and were told to stay 'right there' on the land because that was their home and the cannery no longer had any use for it. Peters stated that Nick Bez told them he, Bez, no longer owned it. ¹¹ It was not until about 1969 that Peters learned that the Girl Scouts had title to the property. ¹² Shortly thereafter, in January, 1970, Peters brought the present action seeking to establish his title to the property.

The case was tried by the superior court, without a jury. After hearing the evidence, the court found that Peters had satisfactorily shown that his use of the land was continuous, open and notorious for the ten-year statutory period. ¹³ However, the court further concluded that Peters had failed to prove that his use of the property was exclusive or that his possession was hostile. Hence, judgment was rendered against Peters and for the Girl Scout Council.

I. EXCLUSIVITY

Contrary to the conclusion of the trial court, we find that Peters' use of the property was sufficiently exclusive to satisfy the requirements of adverse possession.

The exclusive use requirement is often defined quite similarly to certain of the other requirements of adverse possession. ¹⁴ This seems natural since the main purpose of nearly all the requirements is essentially the same, that is, to put the record owner on notice of the existence of an adverse claimant. That purpose should, therefore, be kept in mind when deciding whether any given set of circumstances satisfies the exclusive use requirement.

An owner would have no reason to believe that a person was making a claim of ownership inconsistent with his own if that person's possession was not exclusive, but in participation with the owner or with the general public. To deprive the record owner of his title, the adverse claimant's acts must 'evince a purpose to exercise exclusive dominion over the property.' ¹⁵ The 'exclusive use' requirement is further described in 5 Thompson on Real Property § 2547 (1957 Replacement) as follows:

'It is necessary that the adverse claimant hold possession of the land for himself, as his own, and not for another. . . . In determining the exclusive character of the possession, the character and locality of the property and the uses and purposes for which it is naturally adopted are considered, and mere casual and occasional trespasses upon the land by a stranger are not generally considered as interrupting the continuity of adverse possession of land.' (Footnotes omitted.)

In the present case there is no real indication that Peters and his family shared possession with anyone else. All the improvements to the property were made by Perters or his relatives. Peters testified that to his knowledge, no one in the last twenty years had actually stayed on the property other than his family and the people to whom he gave permission. During extreme low tides, the beach fronting on Peters' land as well as his neighbors' lands was often populated with numerous clamdiggers. Peters admitted that he never made any effort to keep those people off his beach because, as he put it, 'I haven't got that kind of heart.'

The only reason given by the trial court for finding that Peters had not proven exclusive use of the property was:

'Clamdiggers, picnickers, and others have certainly occasionally made use of the beach area off and on through the years, and not necessarily with permission of plaintiff or anyone.'

There is no indication in the record of picnics on the property by anyone other than Peters and his family, nor is it clear who the 'others' referred to by the trial court are. ¹⁶ In any case, occasional use of the beach by clamdiggers or other trespassers does not destroy the exclusivity of Peters' use. Total exclusivity is not required. In the words of the Oregon Supreme Court, a claimant's 'possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use.' Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 496 (1960).

In Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969) the defendant adverse-possessors had used a cabin located on the disputed land on weekends and vacations during the summer. The trial judge found that, because the public used part of the property in question for picnicking, there was no exclusive possession of the property for the statutory period. The Colorado Supreme Court held that this was error, stating that

'(i)n order for possession to be exclusive, it is not necessary that all use of that property by the public be prevented. . . . In light of the...