Gan v. Van Buren Street United Methodist Church ( 2020 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CV-22
ORON and REBECCAH GAN, APPELLANTS,
v.
VAN BUREN STREET METHODIST CHURCH, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB-8393-15)
(Hon. Thomas J. Motley, Trial Judge)
(Argued March 27, 2018 Decided)
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.
Opinion for the court by Associate Judge MCLEESE.
Separate statement by Associate Judge THOMPSON at page 20.
Dissenting opinion by Senior Judge RUIZ at page 21.
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
2
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.
3
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.
4
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
5
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.
6
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, 139 S.W. 643, 644 (Ark. 1911) (“While it is true that the land
described in the deed . . . does not include the strip in controversy, still [appellee’s]
7
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, 114 P. 240, 240-41 (Kan. 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, 119 N.W.
550, 552 (Wis. 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
8
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 particularly where the claimant relies on an actual transfer rather than on a
deed to establish privity of possessions, the failure of the deed to pass the disputed
land will not destroy the privity. Successive adverse possessions of property omitted
from a deed description, especially contiguous property, may be tacked if it appears
9
that the adverse possessor intended to and actually turned over possession of the
undescribed part with the portion of the land included in the deed. Where land that
is adversely held, adjoins land described in a deed, but is not described in the deed,
and continues to an obvious boundary, such as a fence, the grantor’s intent to convey
the entire enclosed area is implied from the circumstances.”) (footnotes omitted); 4
Herbert Thorndike Tiffany, The Law of Real Property § 1146, at 776 (1975) (privity
required to permit tacking may be based “upon any connecting relationship which
will prevent a break in the adverse possessions and refer the several possessions to
the original entry, and for this purpose no written transfer or agreement is
necessary”); W.W. Allen, Annotation, Tacking Adverse Possession of Area not
within Description of Deed or Contract, 17 A.L.R. 2d 1128, 1131-32 (1951) (“At the
present time, making allowance for contrary rulings still apparently adhered to in a
few jurisdictions, the cases, especially the later ones, run generally to the effect that
in order to permit the tacking of successive adverse possessions of vendor and
purchaser of an area not within the premises as described in the deed or contract but
contiguous thereto, the composite fact to be established is the intended and actual
transfer or delivery of possession of such area to the grantee or vendee as successor
in ownership or claim.”) (footnotes omitted); id. at 1135 (“In most jurisdictions a
transfer of possession of the disputed area sufficient for tacking purposes may be
shown to have taken place by implication and without express words or any
10
ceremony of transfer.”); 2 C.J. Adverse Possession § 97 (1915) (“[S]uccessive
grantors may transfer their possession of a strip of land successively and
continuously occupied as part of the granted premises, but not included in the
description in any of the deeds, and . . . by such continuity of possession for the
prescriptive period title by limitations may be acquired.”).
Brumbaugh’s holding is binding on divisions of this court. Davidson v.
United States, 137 A.3d 973, 974 n.2 (D.C. 2016) (“[C]ases decided by the United
States Court of Appeals for the District of Columbia Circuit (and its predecessors)
prior to February 1, 1971, are part of the case law of this court.”; citing inter alia
1896 decision of the Court of Appeals for the District of Columbia); M.A.P. v. Ryan,
285 A.2d 310, 312 (D.C. 1971) (“[N]o division of this court will overrule a prior
decision of this court or refuse to follow a decision of the United States Court of
Appeals rendered prior to February 1, 1971, and . . . such result can only be
accomplished by this court en banc.”) (footnote omitted).
The Gans contend that the trial court erred in concluding that the periods of
adverse possession at issue could be tacked only if the deed conveying property from
Ms. Harleston to the Gans on its face conveyed an adverse-possession interest in the
driveway. In deciding that contention, we are bound to follow Brumbaugh even
11
though no party brought Brumbaugh to the attention of the trial court and the initial
briefs of the parties in this court did not cite Brumbaugh. See, e.g., Martin v.
Bicknell, 99 A.3d 705, 709 (D.C. 2014) (“While both parties have failed to cite to
them, we have identified a number of decisions on this subject, which, while old, are
still binding precedent.”); Mims v. Mims, 635 A.2d 320, 323 (D.C. 1993) (“Our
obligation under M.A.P. v. Ryan to follow otherwise binding precedents does not
evaporate because a party has failed to cite them to us.”). (At the court’s request,
the parties did file supplemental briefs addressing Brumbaugh.)
Rather than addressing Brumbaugh, the trial court focused on Sears, our most
recent decision addressing the issue of tacking for purposes of adverse possession.
Sears did not mention Brumbaugh, instead inaccurately stating that this court had
“not had the occasion to discuss tacking in the context of adverse possession to claim
ownership in land.” 5 A.3d at 662. Sears also said seemingly contradictory things
about whether tacking is permissible where no deed explicitly transfers an adverse-
possession interest in the property at issue. Compare 5 A.3d at 662 (“[W]here title
by adverse possession is inchoate, a deed by [a] grantor which fails to convey such
inchoate right is ineffective to create privity which allows tacking.”) (brackets and
internal quotation marks omitted), with id. (“Generally, for the purpose of effecting
title by adverse possession, where the traditional requisites are present, tacking of
12
periods of possession by successive possessors is permitted against an owner seeking
to defeat such title, unless it is shown that the claimant’s predecessor in title did not
intend to convey the disputed parcel.”) (internal quotation marks omitted). We need
not attempt to further parse our decision in Sears on this issue, however, because
even if Sears were properly understood to have held that an express conveyance is
required, we are bound to follow Brumbaugh rather than Sears. See, e.g., Thomas
v. United States, 731 A.2d 415, 420 n.6 (D.C. 1999) (“Where a division of this court
fails to adhere to earlier controlling authority, we are required to follow the earlier
decision rather than the later one.”).
In sum, we hold that the trial court erred in concluding that tacking was
precluded in this case unless the deed on its face conveyed an adverse-possession
interest from Ms. Harleston to the Gans.
B.
The holding that express conveyance is not a prerequisite to tacking does not
fully resolve this appeal. A number of courts following the general rule permitting
tacking in the absence of express conveyance carve out an exception to that general
rule where (a) the deed at issue expressly excludes the disputed parcel or (b) the
13
seller did not intend to turn over possession of the disputed parcel to the buyer. E.g.,
2 Am. Jur. 2d Adverse Possession § 77; 2 C.J.S. Adverse Possession § 172. This
court in Brumbaugh did not address the question whether such exceptions should be
recognized, presumably because no such argument was presented to the court. 269
F. at 472-74. Sears, however, did address a similar argument, and concluded that as
to two of the lots at issue the prior owner “expressly disavowed” conveyance of
rights to the disputed property. 5 A.3d at 663. Specifically, as to one of those lots,
the deed had an attached plat expressly stating that the disputed property was not
being conveyed; and as to the other lot the seller orally advised the purchaser that
the disputed property at issue did not convey. Id. Sears held that these disavowals
were an additional reason to preclude tacking. Id. Sears’s recognition that express
disavowal will preclude tacking is not contrary to our holding in Brumbaugh, and it
is therefore binding on us. More generally, we accept the principle that a period of
adverse possession by a prior owner may not be tacked if (1) the prior owner
expressly disavows transfer of an interest in the disputed property to the subsequent
owner, or (2) the party claiming adverse possession fails to show by clear and
convincing evidence that the prior owner intended to turn over to the subsequent
owner possession of the property in dispute. See generally Sears, 5 A.3d at 658
(“[T]he party seeking to establish a claim by adverse possession has the burden of
doing so by clear and convincing evidence.”) (internal quotation marks omitted).
14
The dissent, however, argues for a different exception to the majority
approach we adopted in Brumbaugh. Infra at 25-36. That exception apparently is
as follows: tacking is generally impermissible if the deed at issue in any way
mentions, but does not convey, the disputed property. Id. at 33-35. That is not the
exception we applied in Sears, in which we emphasized that the sellers of the
property at issue “expressly disavowed” an intent to transfer the disputed property.
5 A.3d at 663. Nor do the other cited authorities support the formulation advocated
by the dissent. Some do state that actual transfer of possession is ordinarily sufficient
to permit tacking when the deed at issue omits reference to the disputed property.
E.g., 2 C.J.S. Adverse Possession § 172 (referring to property omitted from deed
description). But those authorities do not state the converse proposition apparently
advanced by the dissent: that tacking is precluded any time the deed at issue makes
any mention of the disputed property. Moreover, a number of the authorities at
various points use formulations that contradict the theory of the dissent. See, e.g.,
Viking Refrig., 114 P. at 240-41 (“All the law requires is continuity of possession,
where it is actual.”) (internal quotation marks omitted); Tiffany, The Law of Real
Property § 1146, at 776 (tacking may be based “upon any connecting relationship
which will prevent a break in the adverse possessions and refer the several
possessions to the original entry, and for this purpose no written transfer or
15
agreement is necessary”). Finally, the dissent’s theory would seemingly lead to
unjustified results. For example, imagine a case involving a deed that referred
generally at some point to an adjacent alley but did not by its terms convey the alley.
According to the theory of the dissent, tacking would be precluded in such a case,
even if (1) the deed did not expressly disavow conveyance of the alley; (2) the parties
to the deed established that the mutual intent was to convey the alley and that the
property description in the deed was inadvertently erroneous; and (3) the seller had
previously possessed the alley openly and notoriously; (4) contemporaneously with
the sale, the seller relinquished actual possession of the alley to the buyer; (5)
thereafter, the buyer possessed the alley openly and notoriously; and (6) taken
together, the two periods of open and notorious possession exceeded fifteen years.
Such a conclusion would be inconsistent with the logic of the majority approach to
tacking that we adopted in Brumbaugh.
1.
In granting summary judgment to the Church, the trial court did not rely on
exceptions to the general rule we adopted in Brumbaugh. It also is not entirely clear
whether the Church relies on such exceptions in this court. The dissent, however,
takes the view that the trial court’s summary-judgment ruling can be upheld on the
16
alternative grounds that (1) the deed between Ms. Harleston and the Gans expressly
disavowed transfer of an ownership interest in the driveway, infra at 37-38; and (2)
Ms. Harleston’s affidavit was insufficient to support a finding that Ms. Harleston
intended to transfer an ownership interest in the driveway to the Gans, infra at 35
n.10, 37-38. We disagree.
First, the deed between Ms. Harleston and the Gans did not contain any
express disavowal as to the driveway. It is true that the driveway did not fall within
the bounds of the property transferred in fee simple by the deed. It is also true that
the deed explicitly conveyed an easement over the driveway. But that only shows
that the deed did not affirmatively transfer any ownership interest to the driveway.
Our holding in Brumbaugh establishes that the mere absence of such an affirmative
grant of title is not fatal to tacking. What was present in Sears but is missing in the
present case is express language of disavowal. Specifically, for example, one of the
deeds at issue in Sears explicitly stated that the disputed property was not being
conveyed. 5 A.3d at 663.
Second, the dissent takes the view that the plain meaning of Ms. Harleston’s
affidavit is that Ms. Harleston understood herself to be conveying only an easement
interest in the driveway, not an ownership interest. Infra at 35 n.10. We note at the
17
outset that the dissent’s interpretation of Ms. Harleston’s affidavit is contrary to the
interpretation given to the affidavit by both parties and by the trial court, all of whom
have read the affidavit as reflecting the understanding that Ms. Harleston had and
conveyed an ownership interest in the driveway. In any event, we conclude that the
dissent’s proposed interpretation of Ms. Harleston’s affidavit is not at all plain. Ms.
Harleston’s affidavit notes that her purchase deed referred to an “easement area,” an
area that the affidavit then defines as “the ‘Easement.’” The affidavit goes on to
aver that Ms. Harleston put a fence across the Easement to preclude use of the
Easement by others. The affidavit concludes by averring that Ms. Harleston believed
that she owned the Easement and the she intended to convey the Easement to the
Gans. We conclude that this affidavit can reasonably be understood to reflect an
intent to convey ownership of the driveway. Most importantly, if Ms. Harleston
believed that she only had an easement over the driveway, rather than an ownership
interest, she would have had no legal basis to take the step of erecting a barrier to
prevent all others from using the driveway. Moreover, the affidavit can reasonably
be understood to use the word “Easement” to define an area that Ms. Harleston
believed she owned, not a description of Ms. Harleston’s legal interest in that area.
2.
18
We finally address two comments the trial court made about Ms. Harleston’s
affidavit, to explain why those comments do not persuade us that summary judgment
is appropriate. First, the trial court noted that Ms. Harleston’s affidavit was executed
in 2016 and thus was not contemporaneous with the sale of the property. That,
however, does not make the affidavit irrelevant to the issue of Ms. Harleston’s intent.
See Penn v. Ivey, 615 P.2d 1, 2, 4 (Alaska 1980) (finding sufficient evidence of intent
to support tacking based on trial testimony of parties about intent as to transactions
that occurred in 1966 and 1973); Kennedy v. Findley, 552 S.W.2d 352, 355 (Mo. Ct.
App. 1977) (same as to trial testimony about intent as to transaction that occurred in
1957). Our decision in Sears is not to the contrary. In Sears, we held that a non-
contemporaneous affidavit was not sufficient to contradict the unambiguous
language of a deed. 5 A.3d at 661 n.15. But that holding addressed the question
whether, despite its unambiguous language, the deed could be interpreted to convey
title to the disputed property. That holding in Sears did not address the different
question whether, considering all of the circumstances, the seller intended to grant
an interest in the disputed property sufficient to permit tacking of adverse-possession
periods. Id.
Second, the trial court interpreted Ms. Harleston’s affidavit as reflecting Ms.
Harleston’s erroneous belief that she owned the driveway at the time of the sale. In
19
fact, Ms. Harleston at that time did not own the driveway, instead having at most an
inchoate adverse-possession interest. Ms. Harleston’s mistake as to the precise legal
nature of her interest in the driveway, however, does not undermine the relevance of
her affidavit to the critical point: whether Ms. Harleston intended to grant to the
Gans such interests as she may have had in the driveway. See generally Smith, 569
A.2d at 1192 (“[O]ur jurisdiction recognizes the doctrine that a claim of adverse
possession may be rooted in ignorance or mistake.”) (internal quotation marks
omitted).
To summarize, we hold that (1) tacking is permissible in this case even if the
deed between Ms. Harleston and the Gans did not convey any ownership or adverse-
possession interest in the driveway; (2) tacking would have been precluded if the
deed between Ms. Harleston and the Gans expressly disclaimed any transfer of an
ownership or adverse-possession interest in the driveway, but there was no such
disclaimer in this case; (3) tacking is permissible in this case only if the Gans can
show by clear and convincing evidence that Ms. Harleston intended to surrender
possession of the driveway to the Gans; and (4) Ms. Harleston’s affidavit creates a
dispute of material fact on the issue of her intent.
20
We therefore conclude that the trial court erred in granting summary judgment
on the ground that tacking was precluded as a matter of law. In light of our
disposition, we need not and do not address the Gans’ claim that the trial court erred
by granting summary judgment when there was an outstanding discovery request.
We also do not address the alternative grounds for summary affirmance raised by
the Church for the first time on post-argument supplemental briefing.
For the foregoing reasons, we vacate the judgment of the Superior Court and
remand for further proceedings.
So ordered.
Separate statement of THOMPSON, Associate Judge: I agree with Judge Ruiz
that our holding in this case is “problematic from a policy perspective” and that
“[t]he rules we adopt to recognize transfer of right to ownership by adverse
possession should be in harmony with and not undermine the important purposes
underlying the requirement of recordation of deeds: notice, stability, clarity, and
certainty.” However, I join Judge McLeese’s opinion because I agree with him that
we are bound by the holding of Brumbaugh to reach the result it reaches.
21
RUIZ, Senior Judge, dissenting: I cannot agree with the majority that the trial
court’s grant of summary judgment to appellee, the title owner of the disputed
driveway, should be reversed and the case remanded to permit further consideration
of extraneous evidence of the grantor’s intent to convey inchoate adverse possession
rights in the driveway to appellants. Appellants memorialized their transaction with
respect to the disputed parcel in a written deed. As the deed is clear on its face that
there was no transfer to appellants of whatever inchoate rights the grantor might
have had to the driveway, there is no need to remand to consider parol evidence.
Summary judgment to the title owner was therefore the correct resolution of this
case.
The law of adverse possession can be arcane, at times inconsistent, and many
times has to be extracted from old cases that do not fully explain their reasoning.
This is even more so when it comes to the rules that apply to tacking of inchoate
rights to adverse possession. But there are certain guideposts. “‘Tacking’ has been
defined as ‘successive, uninterrupted possessions by persons between whom privity
exists. If such tacked possessions constitute one continuous adverse possession for
the statutory period it will be sufficient.’” Sears v. Catholic Archdiocese of
Washington, 5 A.3d 653, 662 (D.C. 2010) (quoting Bonds v. Smith, 143 F.2d 369,
371 (D.C. Cir. 1944). The rules that govern claims of adverse possession and that
22
permit tacking of successive periods of adverse possession to satisfy the statutory
limitations period are designed to favor the title owner. These rules include 1) the
heightened burden of proof imposed on the adverse-possession claimant who must
prove his or her claim by clear and convincing evidence1; 2) the requirement of
privity between those who seek to cumulate periods of adverse possession; and 3)
the strict requirement of uninterrupted actual adverse possession between parties
with privity. If any of these requirements is not proved by the requisite clear and
convincing evidence, tacking is not permitted “because the moment the first
occupant quits possession, the constructive possession of the owner is restored, and
the entry of the next occupant constitutes him a new disseisor.” Id. (quoting Gore
v. Hall, 112 A.2d 675, 678 (Md. 1955)). Whether there has been actual continuous
adverse possession for the requisite time even if tacking were allowed in this case is
a disputed issue. The question of law that is presented, and on which the trial court
granted summary judgement, is whether there is the requisite privity between
appellants and their grantor to permit tacking.
1
“Because ‘courts presume that one who occupies the land of another does
so with the latter’s consent,’ the party seeking to establish a claim by adverse
possession has the burden of doing so by ‘clear and convincing evidence.’” Sears,
5 A.3d at 658 (quoting Smith v Tippett, 569 A.2d 1186, 1190 (D.C. 1990)).
23
“Privity” is a “connection or relationship between two parties, each having a
legally recognized interest in the same subject matter (such as a transaction,
proceeding, or piece of property).” Black’s Law Dictionary (10th ed. 2014). Privity
can be established in different ways, for example, by descent, devise, purchase or
grant. “Generally, a grantee may not tack the adverse possession of the grantor over
land not included in the conveyance of other land, to the grantee’s own subsequent
possession unless such omission was included in a correction deed or unless the
claimant relies on an actual transfer rather than on the deed to establish privity.” 2
C.J.S. Adverse Possession § 172 (2019). Tacking is “generally [not permitted]
where the disputed land was not mentioned, included, or contemplated in a deed or
conveyance . . . .” Id. “One who has acquired property by deed and seeks to tack
the prior adverse possession of his or her grantor onto his or her own possession, to
establish continuity of possession for purposes of adverse possession, ordinarily
must show an express reference to or description of the disputed property in the
grantor’s deed. Possession generally cannot be tacked to make out title by adverse
possession where the deed by which the last occupant claims title does not include
the land in dispute.” 3 Am. Jur. 2d Adverse Possession § 76 (2019); see Sears, 5
A.3d at 658, 663; Messer v. Hibernia Sav. & Loan Soc., 84 P. 835, 837 (Cal. 1906)
(“A claimant of land by adverse possession cannot tack to the time of his possession
that of a previous holder, where the land is not included in the boundaries in the deed
24
from such holder.”); Senez v. Collins, 957 A.2d 1057, 1075 (Md. 2008) (“[G]enerally
the rule is that possession cannot be tacked to make out title by prescription where
the deed by which the last occupant claims title does not include the land in
dispute.”); Sheldon v. Michigan Cent. R. Co., 126 N.W. 1056, 1059 (Mich. 1910)
(“The general rule is that possession cannot be tacked to make out title by
prescription where the deed under which the last occupant claims title does not
include the land in dispute.”); Ramsey v. Ramsey, 49 S.E.2d 476, 477 (N.C. 1948)
(“It is true there is evidence tending to show that [the defendant’s] predecessor in
title used [the disputed land] as he used it. But [the defendant’s] deed did not convey
or purport to convey [the disputed land] or the triangular tract upon which [the
disputed land] is located. The description contained in defendant's deed does not
embrace it. . . . Therefore, he is not permitted to tack their possession, even if adverse
within the meaning of the law, to his possession so as to show adverse possession
for the requisite statutory period.”); Baylor v. Soska, 658 A.2d 743, 746 (Pa. 1995)
(“The only method by which an adverse possessor may convey the title asserted by
adverse possession is to describe in the instrument of conveyance by means
minimally acceptable for conveyancing of realty that which is intended to be
conveyed.”) (cited in Sears, 5 A.3d at 660); Tissino v. Mavrakis, 228 P.2d 106, 116
(Wyo. 1951) (quoting 2 C.J.S., Adverse Possession, § 131 d, which states “[a]s a
general proposition, a claimant may not tack to his claim arising from his possession
25
of a disputed piece or strip of land the possession of his grantor where the disputed
land was not mentioned, included, or contemplated in a deed or conveyance to him
of other land.”).
There can be exceptions to the general rule, however, as when the disputed
parcel was inadvertently omitted from the deed and there is a subsequent deed
correcting the oversight. 2 C.J.S. Adverse Possession § 172. Some cases allow
tacking where the disputed parcel is “omitted from a deed description, especially
contiguous property” and there is proof that the grantor “intended to and actually
turned over possession.” Id.2 This appears to have been the situation in Brumbaugh
2
The treatises cited in the majority’s opinion, see ante at 8-10, also emphasize
that tacking might be permitted in situations where the deed is silent with respect to
the disputed parcel. See 16 Michael Allan Wolf, Powell on Real Property § 91.10[2]
(2009) (referring to “conveying instrument [that] contains no legal description of the
property” and property “omitted from a deed description,” at 91-73; “adjacent land
not covered by the deed,” at 91-76; 3 Am. Jur. 2d Adverse Possession § 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.”) (emphasis added); 2 C.J.S.
Adverse Possession § 172 (referring to tacking of adverse possession periods with
respect to adjacent property “omitted from a deed description,” the “undescribed
part,” and land that “adjoins land described in a deed, but is not described in the
26
v. Gompers, 269 F.472 (D.C. Cir. 1920), where the deed did not mention the disputed
parcel. See ante at 6-7. I cautiously say “appears” because the Brumbaugh opinion
does not explain its rationale for allowing tacking in that case. All the court says is
that “a suggestion” was made that tacking should not be permitted and that it was
rejected. We do not know what that suggestion was or why the court decided against
it. We do not know whether the court was even focused on the contents of the deed
with respect to the disputed parcel. What we do know, because we have obtained
the record in that case — although the briefs could not be located — is that the deed
did not convey or mention the disputed parcel as to which adverse possession claims
were made.3
deed.”). As discussed in the text, this is not a case where the deed is silent with
respect to the disputed parcel as the driveway is expressly referred to in the deed, as
a right of way.
3
The 100-year-old Brumbaugh opinion was not presented to this court when
it decided Sears, nor was it cited by the parties in this appeal until the court brought
it to their attention and requested supplemental briefing. Counsel’s failure to
identify it as possibly relevant precedent in two appeals before this court is telling.
27
Faced with such a cryptic opinion, we can try to discern what the court had in
mind from the cases it cites. They are not much help, however, to the majority’s
interpretation. Of the five cases cited in Brumbaugh, two relied on deeds that
conveyed the disputed property, Reid v. Anderson, 13 App. D.C. 30, 34 (App. D.C.
1898),4 and Lea v. Polk County Copper Co., 62 U.S. 493 (1858).5 Two cases cited
in Brumbaugh allowed tacking where there was a deed that did not convey (or
mention) the disputed parcel as to which adverse possession rights were claimed.
See St. Louis Sw. Ry. Co. v. Mulkey, 139 S.W. 643, 644 (Ark. 1911), and Viking
Refrigerator & Mfg. Co. v. Crawford, 114 P. 240, 241 (Kan. 1911). The fifth case
4
The court in Reid rejected the claim of adverse possession because “there
was no such open, actual, exclusive and continued possession of the premises by
[the claimant] and those under whom he claims, for the full period of twenty years,
as would make a good defensible title as against the party having a clear and
paramount title by deed.” Id. at 36.
5
In Lea two persons claimed to own property pursuant to two different deeds
which purported to convey the same property. The question for the court in Lea was
whether one of the deeds, which was unregistered and held by a bona fide purchaser,
qualified for confirmation under a Tennessee limitations act “intended to protect and
confirm void deeds purporting to convey an estate in fee simple, where seven years’
adverse possession had been held under them.” 62 U.S. at 505. The court held that
it did and dismissed the action for ejectment. There was no question that the two
successive adverse possessors that made up the seven years had conveyed the
property by deed between them. See id. at 498.
 28
allowed tacking based on several transfers of actual possession, mostly between
family members, where there was no writing at all documenting the transfers. See
Illinois Steel Co. v. Paczocha, 119 N.W. 550, 552 (Wis. 1909).6
Notwithstanding Brumbaugh’s obscure text and the wide variety of
circumstances involved in the authorities it cites, my colleagues assert that
Brumbaugh adopted what they describe as the “majority rule” that generally allows
tacking of inchoate adverse-possession rights whenever there is continuous adverse
possession by two successive occupants of adjacent property and the first occupant
sold the adjacent property to the second occupant. See ante at 8. That broad
interpretation is unwarranted, however, as it reads into Brumbaugh a holding that
goes well beyond the facts presented and authority cited in that case. The question
is: what did Brumbaugh hold and does it govern this case? The answer is that
Brumbaugh’s holding, to the extent we can divine it, does not govern this case
because the facts are distinctly different.
6
Because there was no writing or deed that set out the parties’ understanding,
the court allowed parol evidence about the circumstances of the successive transfers.
See 119 N.W. at 553.
29
In Brumbaugh, tacking of the grantor’s adverse-possession rights was allowed
where the grantee of the property continued to use adversely an adjacent disputed
parcel of land not mentioned in the deed. The Brumbaugh opinion did not say, one
way or another, whether the same result would have obtained if the parcel had been
referred to in the deed. It did not need to because it was not a fact in evidence. A
court’s opinion is to be understood in the context of its factual setting. See District
of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C. 1996); see also Levy v. District
of Columbia Rental Hous. Comm'n, 126 A.3d 684, 690 (D.C. 2015). Moreover, the
scope of a court’s holding is measured by whether a factor is an “integrated
component” that is “essential to the outcome.” Parker v. K & L Gates, LLP, 76 A.3d
859, 874 (D.C. 2013) (Ferren, S.J., concurring for the court).7 Particular care should
be taken not to overread a court’s opinion as adopting an expansive holding. See id.
7
As we explained in Parker,
This court has “equated binding precedent under M.A.P. with the rule
of stare decisis,” which “is never properly invoked unless in the
decision put forward as precedent the judicial mind has been applied to
and passed upon the precise question.” Accordingly, for purposes of
binding precedent, a holding is a narrow concept, a statement of the
outcome accompanied by one or more legal steps or conclusions along
the way that — as this court and other have repeatedly held — are
“necessary” to explain the outcome; other observations are dicta.
76 A.3d at 873 (quoting United States v. Debruhl, 38 A.3d 293, 298 (D.C. 2012).
30
at 876 (“The prior decision should not be construed more broadly by reference to
nonessential, often ambiguous, sentences that can trigger hours of discussion as to
whether the earlier decision was a binding holding or dictum.”); see also Albertie v.
Louis & Alexander Corp., 646 A.2d 1001, 1005 (D.C. 1994). This caution is
particularly prudent where (as in Brumbaugh) the court does not identify the precise
issue it is deciding or explain its rationale. Applying these principles, Brumbaugh
should be interpreted as holding that the fact there is no conveyance of the disputed
parcel in the deed does not preclude tacking where there is continuous adverse
possession and sale from the first adverse occupant to the second. It does not stand
for the much broader proposition asserted by the majority that tacking is permissible
so long as those conditions are met, regardless of what the deed says. And
Brumbaugh most definitely does not address, much less decide, the consequence,
for tacking, of the type of reference to the disputed parcel contained in the deed in
this case.
That issue was addressed head on by this court in Sears, where
notwithstanding transfer from seller to buyer of adjacent property and continuous
possession of the disputed parcel — the conditions in Brumbaugh — tacking was
precluded because the grantees could not establish the requisite privity with their
grantors. See Sears, 5 A.3d at 663. Privity could not be shown because the deeds at
31
issue did not mention the disputed parcel as part of the conveyance and, “in
addition,” the grantors had alerted the grantees (one orally, and the other in a note to
a plat attached to the deed) that the disputed parcel did not convey. Id. Brumbaugh
was not an impediment to Sears’s holding because Sears addressed a different
question, not presented or contemplated in Brumbaugh, where the grantees could not
show by clear and convincing evidence that they had the requisite privity with the
grantor with respect to the disputed parcel. This case, like Sears, is also one in which
tacking is not permissible because the grantees cannot make the requisite showing
of privity. Here, unlike in Brumbaugh, the deed between the parties is not silent
with respect to the disputed driveway. To the contrary, the deed expressly mentions
the driveway, excludes it from the conveyancing paragraph and specifically and
accurately refers to it as a “right of way,” further identifying it by reference to the
liber and folio recordation of an easement granted over that parcel that has been
recorded in the land records of the District of Columbia since 1949.8 In this case,
8
The 2008 deed to appellants:
Convey[s] . . . all that/those certain piece(s) or parcel(s) of land,
together with the improvements, rights, privileges and appurtenances to
the same belonging, situate in the District of Columbia, and as
described in Exhibit A attached hereto and made a part hereof.
32
the deed is even clearer than in Sears that no transfer of adverse-possession rights to
the driveway was intended and thus the required privity does not exist.
There is no need for a remand because there is no reason to think that there
was any ambiguity or mistake9 in the deed that warrants looking outside its four
corners to ascertain the intent of the parties at the time of the conveyance. In addition
to describing the property being conveyed by metes and bounds, lot and square
number, the deed adds that it conveys “the same property as described in Deed from
Margaret C. Newsom dated May 23, 1998.” Supra note 8, at 31. There is no
Being all of the same property as described in Deed from Margaret C.
Newsom dated May 23, 1998, recorded June 5, 1998 among the records
of the Recorder of Deeds for the District of Columbia as Instrument No.
43251 . . . .
Exhibit A, entitled “Legal Description,” refers to “Lot 50 in Square
3366 . . . recorded in Liber No. 75 at Folio 163 . . . TOGETHER WITH
a right of way more particularly described in Liber 8973 at [F]olio 581,
of said land records.” (emphasis added).
The right of way described in Exhibit A is the driveway appellants now claim
to own.
9
The majority refers to a situation with “unjustified results,” where the
description of the property conveyed in the deed was “inadvertently erroneous.”
Ante at 15. But as mentioned, supra note 2, at 25, in such cases a corrected deed can
be filed. In any event, there is no assertion that descriptions in the deed were
erroneous. To the contrary, the references to the driveway were specific and
accurately described it as a right of way.
33
contention made or evidence presented that in 1998 Ms. Newsom, the predecessor
to appellants’ grantor Ms. Harleston, had any inchoate adverse-possession rights to
the driveway; appellants’ disputed contention is that adverse possession began with
Ms. Harleston’s acquisition of the property and erection of a fence across the
driveway sometime between 1998 (when she acquired the property from Margaret
Newsome) and 2000. See ante at 3. Therefore, by its precise legal description of
the property being conveyed, by additionally fixing the ownership rights being
conveyed with reference to those existing in 1998, and by its express and accurate
description of the grantor’s interest in the driveway as a right of way, the deed in this
case could not be more clear. Transfer of inchoate adverse-possession rights in the
driveway was simply not contemplated by the parties as coming within the privity
created by their sale transaction.
The rule the majority adopts is not only not mandated by Brumbaugh, but also
contravenes fundamental principles of contract law we have long followed. Where
parties enter into a transaction that is documented in a writing, it is that writing that
contains the intent of the parties with respect to their agreement on the subject matter.
Consistent with this principle, in determining whether there is the necessary privity
to allow tacking of adverse-possession rights to an adjacent parcel, it is necessary to
look at the deed in the first instance as Sears did. This is reasonable because any
34
adverse possessory rights to an adjacent parcel will have arisen in connection with
use appurtenant to the titled property being conveyed in the deed and the parties can
be expected to have been aware of both parcels, as was the case in Sears, and in this
case. The deed (which appellants call “immaterial”) is the best evidence of the
parties’ intentions in establishing their relationship.
In cases where, as here, there is a conveyance by deed and the deed refers to
the disputed parcel, the deed is the touchstone with respect to that parcel and we
should resist going beyond the deed to permit a broad-ranging review of extraneous
evidence of the grantor’s subjective intent as the majority proposes. The majority’s
approach is inconsistent with well-established law on the interpretation of deeds and
the policy in favor of public recordation of land titles. “We interpret deeds as we do
contracts, i.e., under the ‘objective law of contracts.’ This means that ‘the written
language embodying the terms of an agreement will govern the rights and liabilities
of the parties [regardless] of the intent of the parties at the time they entered into the
contract . . . .’” Joyner v. Estate of Johnson, 36 A.3d 851, 855 (D.C. 2012) (internal
citations omitted and alteration in original). The majority gives license to set aside
35
a written recorded instrument that addresses the disputed parcel in favor of a search
for parol evidence, including evidence of previously unexpressed subjective intent.10
The majority’s holding is deeply problematic from a policy perspective. The
doctrine of adverse possession — which recognizes ownership only under specific,
narrow conditions — is an exception to the general rule of property ownership
through acquisition of title by means of instruments (e.g., deeds, wills) that are
readily verifiable and generally available in public records. The rules we adopt to
10
Even if we were to look beyond the deed to divine the grantor’s intent,
the affidavit of Ms. Harleston presented by appellants plainly states that she believed
she had an “easement” in the driveway and that she intended to “convey ownership
of the easement.” Ms. Harleston, who is a lawyer, and who signed an affidavit to be
presented in court, should be presumed to have used the legal term “easement”
according to its plain and longstanding meaning. See Easement, Black’s Law
Dictionary (10th ed. 2014) (“an interest in land owned by another person, consisting
in the right to use or control the land . . . for a specific or limited purpose. . . .”)
(emphasis added). The majority’s strained reading of the affidavit, and its attempt
to interpret surrounding circumstances to support an atextual interpretation, ante at
17-18, simply cannot be squared with what the affidavit actually says. The plain
language of Ms. Harleston’s affidavit does not say that she claimed ownership of the
driveway or intended to convey inchoate adverse-possession rights to it. The
affidavit plainly states the opposite, that she had an easement to use a driveway
owned by someone else.
Evidence that Ms. Harleston erected a fence that, appellants claim, prevented
appellee from using the driveway may support her adverse possession, but it is
hardly evidence of her intent to transfer to appellants whatever inchoate rights her
adverse possession might have created. See ante at 17. As discussed above, both
the deed she executed at the time she sold her property to appellants and the affidavit
she signed for them in this litigation say she was conveying a right of way in the
driveway.
36
recognize transfer of right to ownership by adverse possession should be in harmony
with and not undermine the important purposes underlying the requirement of
recordation of deeds: notice, stability, clarity, and certainty. See, e.g., Smart v.
Nevins, 298 A.2d 217, 219 (D.C. 1972) (“It is fundamental that the purpose of
recordation is to protect the rights of bona fide purchasers, creditors, assignees, and
others relying upon the indicia of record ownership.”); Young v. Howard, 120 F.2d
712, 713 (D.C. Cir. 1941) (“A primary purpose of the recordation of an instrument
is to give notice of its existence to those about to deal with the property involved.
Such persons are protected by, and charged with, notice of the recorded
instrument.”); see also D.C. Code § 47-1431 (a) (2015 Repl.) (“Within 30 days after
the execution of a deed or other document by which legal title to real property . . . is
transferred . . . all transferees . . . shall record a fully acknowledged copy of the deed
or other document, including the lot and square number of the real property
transferred or encumbered, with the Recorder of Deeds of the District of
Columbia.”).11
11
As the Supreme Court of Pennsylvania has persuasively observed, “the
entire concept of ‘circumstances’ in the context of tacking is misplaced”:
37
These important purposes were fully met in this case by a deed that clearly
described the property transferred in detail, with a metes and bounds description,
reference to square and lot number, and liber and folio recordation. That detailed
description did not include the disputed driveway. The deed also expressly referred
to the driveway as a right-of-way that has been recorded in the District of Columbia
since 1949, with specific reference to its liber and folio numbers, without any
indication that there was any change and that the grantor had a claim to ownership
by adverse possession. The majority’s holding undermines the purpose of
recordation generally, and flies in the face of the documents actually recorded in this
case by allowing consideration of the grantor’s subjective and heretofore
Interested parties have a right to discern from the record of the state the
title of any parcel of land. If tacking were to be permitted because of
vague, undefined “circumstances,” there could be and most likely
would be no way for one not a party to the conveyance to know this.
But the law mandates that a person asserting a claim of adverse
possession make this assertion openly and notoriously to all the world.
There must be no secret that the adverse possessor is asserting a claim
to the land in question. If the adverse possessor’s claim is to be passed
onto a successor in title, therefore, there must be some objective indicia
of record by which it can be discerned with some degree of certainty
that a claim of title by adverse possession is being made and that the
duration of this claim has been passed on to a successor in title.
Baylor, 658 A.2d at 745-46 (internal citation omitted).
38
unexpressed intent to convey adverse possession rights against the record owner of
title. Ante at 19-20.
Finally, I would point out that even under the rule announced by the majority,
two necessary elements are not met in appellants’ case. The majority asserts that to
show the privity required to permit tacking, a claimant must prove, by clear and
convincing evidence, that (1) the claimant acquired an adjacent property, (2) the
claimant’s grantor and the claimant were in continuous adverse possession of the
property at issue; (3) the deed between the claimant’s grantor and the claimant did
not expressly disavow transfer of an ownership interest in the property at issue; and
(4) the claimant’s grantor intended to surrender possession of the property at issue.
Ante at 7-8, 19-20. The first element is met, but the second element is factually
disputed. It is the third and fourth elements that cannot be met in this case as a matter
of law.
The deed in this case expressly disavowed any inchoate adverse possessory
interest in the driveway by specifically referring to a “right of way” in that parcel.
As with “easement,” the term “right of way” is well understood to mean a right to
“pass through property owned by another person.” Right-of-Way, Black’s Law
39
Dictionary (10th ed. 2014) (emphasis added). This is the type of disavowal of an
ownership interest, similar to one made in Sears,12 that the majority recognizes as
precluding tacking. Ante at 19-20. The deed also disavows transfer of any
ownership interest in the driveway by stating that the property being conveyed is “all
of the same property” that was transferred to the grantor in 1998, before any of the
alleged adverse possessions began. See supra note 8, at 31. The deed therefore does
not convey any rights that appellants’ grantor might have acquired after 1998.13
Thus, by its terms the deed did expressly disavow transfer of inchoate adverse-
possession rights in the driveway. It is difficult to conceive — and the majority does
not say — what more would be required to constitute an “express disavowal” of the
transfer of adverse possession rights.
Nor does the evidence outside the deed suffice to remand in search for support
that appellants’ grantor, Ms. Harleston, intended to transfer adverse possession
12
Sears, 5 A.3d at 655 (“As to lot 816, Ms. Downey warned Sears when he
bought it in 1996, that ‘we always enjoyed the use of this property, that we held it
but we didn’t have a deed to it, and that he could legally pursue this if he wanted to
. . . . I said that all of the land did not convey. Whatever was on the deed was on the
deed, but they had the full use of the yard and that we had always had it too.’”)
(emphasis in original).
13
Appellants allege that their grantor erected a fence across the driveway
sometime between the time when she purchased the property in 1998 and 2000. Ante
at 3.
40
rights to the driveway. While summary judgment is inappropriate where there are
genuine disputes of material fact, there is no genuine dispute here in light of the
exacting burden — clear and convincing evidence — appellants must bear. The
deed is the foremost expression of the intent of the parties to the transaction. Both
in the deed contemporaneous with the sale of land in 2008 and even in Ms.
Harleston’s subsequent affidavit prepared for the purpose of this litigation in 2016,
it is clear from the face of both documents that there was a disavowal of ownership
of the driveway, which always and correctly described the grantor’s rights in the
driveway as a right of way and an easement. In the face of these two written
documents, appellants cannot, as a matter of law, succeed in establishing with the
requisite convincing clarity that the deed did not expressly disavow ownership in the
driveway or that the grantor intended to convey inchoate adverse possessory rights
to the driveway.14 Thus, even applying the elements the majority would require to
permit tacking, the record in this case does not warrant a remand.
14
The sufficiency of evidence to meet the clear and convincing standard of
proof in light of the unequivocal language of the deed and plain meaning of the
affidavit is a question of law we decide de novo.
41
As tacking by appellants was not permissible, I dissent from the majority’s
decision to reverse and remand for further proceedings. I would affirm the trial
court’s grant of summary judgment to appellee, the title owner of record.