In the matter of: Tax Parcel Nos WD-00-063.00-01-01.00-00001 and WD-00-063.00-01-34.00-00001 ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
In the Matter of )
)
TAX PARCEL NOS. ) C.A. No. 2018-0733-PWG
WD-00-063.00-01-01.00-00001 and )
WD-00-063.00-01-34.00-00001 )
MASTER’S REPORT
Date Submitted: January 4, 2022
Final Report: May 2, 2022
Nicole M. Faries, Esq., Mackenzie M. Peet, Esq., BAIRD MANDALAS
BROCKSTEDT, LLC, Wilmington, Delaware, Attorneys for Petitioner Janet
Szelestei, Individually and as Trustee of the Steve Szelestei, Jr. Revocable Trust
Dated August 14, 2009
Gary R. Dodge, Esq., CURLEY, DODGE, FITZGERALD & FUNK, LLC, Dover,
Delaware, Attorney for Respondents James Melville and Nancy Melville
Griffin, Master
Pending before me is an action by a landowner seeking to quiet title to
approximately 13.5 acres of land that join her two separate properties. Alternatively,
she seeks to establish title to the land by adverse possession. Neighboring
landowners claim ownership of 3.6 acres encompassed within the approximately
13.5-acre parcel.
This dispute arises from the actions of certain individuals who were buying
and selling land in western Kent County in the first decade of the twentieth century.
They left in their wake a trail of deeds that provide little insight into the nature of
those century-old transactions, and missing documentation of alleged conveyances,
that are largely irreconcilable with the ownership claims for that property today.
On summary judgment, I found that there were material factual disputes
concerning ownership of the 3.6-acre parcel at issue, due to the uncertainty created
by those more than 100-year-old deeds. Although the parties made their best efforts
to provide further clarity at trial, I regret to say that the issue of record ownership
remains “clear as mud.” However, I find that sufficient evidence was presented at
trial to show one landowner adversely possessed the approximately 13.5-acre
property, including the 3.6-acre parcel, through maintaining trails around and in the
property and leasing it out for hunting for more than 20 years. This is a final master’s
report.
1
I. Background1
At the center of this dispute is a 3.6-acre landlocked wooded parcel of land
(“Disputed Parcel”), located west of Hartly in Kent County, Delaware. The
Disputed Parcel is part of the hub between two neighbors’ separate parcels of
farmland: Petitioner Janet Szelestei (“Szelestei,” and collectively with other
members of her family “Szelesteis”), acting individually and as Trustee of the Steve
Szelestei, Jr. Revocable Trust (“Trust”), owns properties to the north of the Disputed
Parcel, on Ford’s Corner Road, and to the south of it, on Butterpat Road.
Respondents James and Nancy Melville (“Melvilles”) own properties to the east of
the Disputed Parcel, also fronting on Ford’s Corner Road, and to the west, on
Butterpat Road. The importance of the Disputed Parcel to both parties arises from
its unique location – it lies between Szelestei’s properties to its north and south, and
between the Melvilles’ properties to the east and west.
A. Deeds and Conveyances Related to the Properties
On December 27, 1905, Nathaniel J. Williams and his wife (“Williamses”)
conveyed approximately 149 acres of land in West Dover Hundred (“Williams
1
In this matter, I refer to the transcript of the evidentiary hearing that occurred on
September 28, 2021 and September 29, 2021 as “Trial Tr.” I refer to entries on the docket
as “D.I.” I refer to the Petitioner’s trial exhibits as “Pet’r Tr. Ex.” and the Respondents’
trial exhibits as “Resp’t Tr. Ex.”
2
Tract”) to Thomas Victor Clark (“Clark”).2 The Williams Tract was further
described as “adjoining on the east side of the public road going from Kenton to the
Maryland line, lands of William Clough, [and] the lands of Nathaniel Williams and
others.”3 Clark conveyed 10 acres of this land to William Van DerWeild (“Van
DerWeild Tract”) on January 8, 1907,4 and the remainder – described as 149 acres
more or less in the deed – to Frank Shakespeare (“Shakespeare”) on May 12, 1909.5
Shakespeare conveyed his interest in the Williams Tract, along with other lands, to
William S.H. Davis (“Davis”) on June 16, 1909.6
On September 28, 1910, Davis conveyed by deed (“Portas Deed”) to Louis
Portas and his wife (“Portases”):
All that certain plantation, tract, piece or parcel of land and premises
situated in West Dover Hundred, Kent County and State of Delaware
and lying on the Southeast side of the public road leading from Kenton
to Maryland line adjoining the lands now or late of William Clough,
lands now or late of Nathaniel J. Williams and lands of others and
containing One Hundred and Twelve (112) acres of land be the same
more or less and being all the land and premises which were conveyed
in fee to Thomas V. Clarke by Nathaniel J. Williams and wife,
excepting a small lot of land contracted for by Samuel E. Harris on
September 23, 1907 containing fifteen acres … of land and also a small
lot contracted to be sold to William Gibbs on September 12, 1907
containing eleven (11) acres, and also a small lot of ten (10) acres sold
2
Pet’r Tr. Ex. 15.
3
Id.
4
Pet’r Tr. Ex. 16.
5
Pet’r Tr. Ex. 17.
6
Pet’r Tr. Ex. 18.
3
and conveyed by Thomas V. Clark to Warren Vanderweldt which deed
is dated the eighth day of January A.D. 1907 …7
(“Portas Tract”). Importantly, Davis excepted from the Portas Tract 15 acres
contracted for by Samuel E. Harris (“Harris Tract”) on September 23, 1907, 11 acres
contracted to be sold to William Gibbs (“Gibbs”) on September 17, 1907, and the
Van DerWeild Tract.
1) Portas Tract
On July 15, 1936, the Portases conveyed the Portas Tract to Ludwig T.
Schweitzer (“Schweitzer”).8 On April 7, 1966, Schweitzer and his wife conveyed
the Portas Tract to Kathryn Louise Schweitzer Gunter.9 On November 28, 1967,
Kathryn Louise Schweitzer Gunter Demby and her husband (“Dembys”) conveyed
the Portas Tract to National Enterprises, Inc. (“N.E.”).10 On March 8, 1973, N.E.
conveyed 13.35 acres of the Portas Tract to James Melville (“Melville”) and Ronald
Melville.11 On December 28, 1984, Ronald Melville conveyed his interest in this
13.35 acres to Melville.12
7
Pet’r Tr. Ex. 19.
8
Pet’r Tr. Ex. 20.
9
Pet’r Tr. Ex. 21.
10
Pet’r Tr. Ex. 22.
11
Pet’r Tr. Ex. 23.
12
Resp’t Tr. Ex. 7.
4
On July 31, 2012, N.E. conveyed by deed (“2012 N.E. Deed”) 92.08 acres of
the Portas Tract to the Melvilles, described with specificity through meets and
bounds.13 On January 10, 2013, N.E. conveyed to the Melvilles by quit claim deed
(“2013 Quitclaim Deed”) property identified as “Tax Parcel Number WD-00-
063.00-01-34.00-000 and consisting of 3.60 acres, more or less” and “[b]eing the
remainder of” land conveyed by the Dembys to N.E. (or the remainder of the Portas
Tract.14 In addition to these lands, Melville and other family members own a farm
along Butterpat Road.15
2) Van DerWeild Tract
On June 28, 1941, William Vanderveild, a descendant of Warren Van
DerWeild,16 conveyed the Van DerWeild Tract to Steve Szelestei and his wife.17 On
13
Pet’r Tr. Ex. 25. In addition to the meets and bounds description, the conveyance was
described as “[b]eing the same land and premises which … was granted and conveyed by
… [the Dembys] unto National Enterprises, Inc.” Id. And, on June 9, 1986, N.E. conveyed
2.8429 acres from the Portas Tract to Robert N. Wilkie and Dorothy M. Wilkie. See Pet’r
Tr. Ex. 24.
14
Pet’r Tr. Ex. 13.
15
Resp’t Tr. Ex. 4; Trial Tr. 343:7-17.
16
The spelling of this family’s name is inconsistent among the deeds. In an attempt for
clarity, I use the spelling for each person as it appears in the earliest deed.
17
Pet’r Tr. Ex. 2.
5
December 8, 2009, Steve Szelestei, Jr. conveyed the Van DerWeild Tract, along with
another parcel, to the Trust.18
3) Harris Tract
On May 5, 1911, Davis conveyed the Harris Tract to Harris and his wife.19
N.E. purchased the Harris Tract in a monitions sale in 1968.20 The Harris Tract
does not form part of the N.E. lands now held by the Melvilles.21
4) Gibbs Parcel
There is no evidence of a deed between Davis and Gibbs transferring the 11
acres identified in the Portas Deed as contracted to be sold to Gibbs (“Gibbs
Parcel”),22 nor of subsequent conveyances of that property from Gibbs, until Rachel
Brown, an heir of Gibbs, executed a quitclaim deed on June 26, 1992 (“1992 Brown
Deed”).23 She conveyed 11 acres “more or less” which were identified as a part of
18
Pet’r Tr. Ex. 1; Pet’r Tr. Ex. 3. The other parcel encompassed approximately 110 acres
of land adjoining Butterpat Road that was not part of the Williams Tract or the Portas Tract.
See Pet’r Tr. Ex. 4.
19
Resp’t Tr. Ex. 2.
20
Resp’t Tr. Ex. 3; D.I. 48, Ex.
21
Since the Melvilles only took from N.E. what N.E. acquired from the Dembys, they
obtained no interest in lands conveyed to N.E. through the monitions sale deed. See Pet’r
Tr. Ex. 25 (“being part of the same lands and premises which were conveyed unto [N.E.]
… by deed of … [the Dembys]”); Pet’r Tr. Ex. 13 (“[b]eing the remainder of the lands
which … [were] granted and conveyed by [the Dembys] unto [N.E.]”).
22
See Pet’r Tr. Ex. 19.
23
Pet’r Tr. Ex. 6.
6
the lands transferred through the Portas Deed and as “the 11 acre parcel contracted
to be sold to Williams Gibbs on September 12, 1907,” to Steve Szelestei, Jr. and
Janet Szelestei, who subsequently transferred that parcel to the Trust on December
8, 2009.24
B. Szelestei’s and Melville’s Competing Ownership Claims
Both the Szelesteis and the Melvilles own lands adjoining Butterpat Road and
Fords Corner Road that were not connected. The connecting parcel (“Connecting
Parcel”)25 between their respective properties was land that they believed belonged
to Gibbs or his heirs,26 and they both wanted to acquire this land.27 Although there
was no recorded deed evidencing a conveyance to Gibbs, it appears Gibbs and his
heirs paid property taxes on the Gibbs Parcel.28 Beginning in 1973, Melville
contacted Esther Mordecai (“Mordecai”), Gibbs’ heir, who was listed as the owner
of the Gibbs Parcel in tax records, seeking to acquire the Gibbs Parcel.29 Melville
testified that Mordecai responded that she “did not have good title” and refused to
24
Id.; Pet’r Tr. Ex. 5.
25
For purposes of this report, Connecting Parcel means both the Gibbs Parcel and the
Disputed Parcel.
26
See Trial Tr. 47:3-8; id. 331:15-21.
27
See id. 44:20-45:4; id. 337:2-11 (negotiations between Melville and Esther Mordecai);
id. 352:13-353:2.
28
Id. 324:24-325:5.
29
Id. 331:16-18; id. 337:2-11.
7
sell the property and that their communications ceased in 1986.30 In the mid-to-late
1980s, after checking property tax records to learn that Mordecai was listed as the
owner of the Gibbs Parcel, Szelestei wrote to Mordecai to express interest in
acquiring the property.31 After Mordecai died, Rachel Brown, Mordecai’s heir,
executed the 1992 Brown Deed.32 The Szelesteis believed that they had purchased
the entire Connecting Parcel, including the Disputed Parcel, and hired a surveyor,
Robert Larimore (“Larimore”) in 1993 to draw a survey of the Connecting Parcel
(“1993 Larimore Survey”) but did not record the survey.33
The Szelesteis began licensing hunters to hunt on the entire Connecting Parcel
in 1993.34 The Szelesteis and the hunters whom they licensed to hunt on the
Connecting Parcel were allowed to hunt wild turkeys and deer during the hunting
seasons specified by Delaware state law.35 The Szelesteis, or their licensed hunters,
have maintained the trails, one of which is 10-12 feet wide, on the Connecting
30
Id. 337:6-7; id. 352:13-353:2.
31
Id. 44:23-45:3; id. 49:21-24.
32
Id. 45:7-9; id. 46:12-14; id. 48:24-49:20.
33
Pet’r Tr. Ex. 8; Trial Tr. 306:20-22.
34
Trial Tr. 62:1-6. See, e.g., Pet’r Tr. Ex. 28; Trial Tr. 122:10-23 (hunters paid Szelestei
every year for hunting rights on the properties).
35
Trial Tr. 106:14-107:11; id. 141:5-14. The wild turkey season is in the spring and deer
from September through January unless crop damage permits allowed hunting until April.
Id. 107:5-8.
8
Parcel.36 The hunters have put signs on the trails to ensure that none of the hunters
cross into another’s property and have maintained and marked their deer stands.37
After Melville acquired a portion of the Portas Tract in 1973 and was unable
to purchase the Gibbs Parcel, he approached N.E. in 2000 about purchasing
additional land it owned from the Portas Tract, but they were unable to negotiate a
sale.38 In 2012, N.E. contacted Melville and offered to sell the remainder of its
holdings of the Portas Tract to Melville because it was closing its business.39
Melville agreed to purchase whatever lands he could that were bounded by “good
monuments.”40 Melville hired a surveyor, who relied on the monuments to plot a
tract of land that did not include the Disputed Parcel.41 The surveyor’s description
resulted in the 2012 N.E. Deed.42 Melville testified he thought that he had purchased
the whole property, including the Disputed Parcel, but the Tax Office assigned the
36
Id. 89:15-20 (“We went through with a backhoe and removed the trees just off the
property line.”); id. 91:4-16; id. 132:9-15; id. 124:19-24; id. 125:13-15. Melville testified
that the Szelesteis cut a trail over the Disputed Parcel starting in the early to mid-1990s. Id.
375:4-9. He also testified that he has used that trail. Id. 376:22-23. Further, the Melvilles’
family and associates had a deer stand on the Disputed Parcel as early as 2001 that was
located along the property line. See id. 397:9-398:14.
37
Id. 107:24-108:12; id. 62:16-20. I observed a sign marking the hunters’ deer stand on
the Disputed Parcel when I conducted a site visit of the property.
38
Id. 351:4-10
39
Id. 353:21-354:4.
40
Id. 354:23-355:16.
41
Id.; Pet’r Tr. Ex. 25.
42
Trial Tr. 356:5-14.
9
Disputed Parcel to an unknown owner.43 Melville then contacted N.E. again and
negotiated the 2013 Quitclaim Deed, and the Tax Office then assigned the Disputed
Parcel to him.44
Brian Costa (“Costa”), a technician responsible for maintaining tax maps for
the Kent County tax assessment office (“Tax Office”), testified that the Tax Office
tracks land ownership for assessment purposes, with the goal of ascertaining a
property’s acreage for tax purposes.45 He further testified that the maps maintained
by the Tax Office are constantly being adjusted as new deeds and surveys are
recorded.46 Where there are conflicts among deeds, he testified that Tax Office
officials will generally attempt to get more information and will not make
adjustments on the maps.47 He further testified that tax maps are “not survey
accurate.”48
The Tax Office assigned the Gibbs Parcel to Gibbs, and it appears Gibbs,
and/or his heirs, paid taxes on it.49 At one point, the Tax Office had assigned the
43
Id. 356:17-23; id. 359:8-17.
44
Id. 359:8-18; Pet’r Tr. Ex. 13; Trial Tr. 318:19-319:1.
45
Trial Tr. 301:2-8; id. 316:9-12.
46
Id. 300:6-19.
47
Id. 300:23-301:2.
48
Id. 305:21-22.
49
Id. 305:1-3; id. 324:14-325:5.
10
Disputed Parcel to the Portas Tract,50 but upon receiving an additional survey related
to the 2012 N.E. Deed,51 the Tax Office created a new tax map parcel and listed the
Disputed Parcel with an unknown owner.52 Costa testified that if the 1993 Larimore
Survey had been recorded, the Tax Office would have noted on the tax map that
ownership of the Disputed Parcel was disputed and, when the new parcel was created
in 2012, the Tax Office would have defaulted to the 1993 Larimore Survey and
attributed 13.55 acres to Szelestei.53
The Melvilles’ and Szelestei’s competing ownership claims to the Disputed
Parcel have caused difficulties between these longstanding neighbors, resulting in
what Melville termed as “pleasant unpleasantness.”54 Melville testified, in earlier
times, “there weren’t many boundary issues” concerning these properties.55 But,
disputes emerged when the Melvilles claimed the Disputed Parcel under the 2013
Quitclaim Deed, and subsequently planted trees on the Disputed Parcel.56 Melville
encountered some of Szelestei’s hunters on the Disputed Parcel.57 Melville was not
50
Trial Tr. 303:8-19; id. 317:7-12; D.I. 48, at JS-003.
51
See Pet’r Tr. Ex. 11; Trial Tr. 306:23-307:17.
52
Trial Tr. 304:1-10.
53
Id. 306:2-13.
54
Id. 377:1-2.
55
Id. 370:5-7.
56
Id. 362:21-24; id. 363:9-14.
57
See id. 368:21-369:18.
11
necessarily opposed to these hunters on the Disputed Parcel due to deer
overpopulation,58 but he did move some of the hunters off of the Disputed Parcel
onto what he considered to be Szelestei’s property.59 In 2017, the Trust, through its
attorney, asked Melville to remove a deteriorating deer stand from the Disputed
Parcel.60 Attached to the letter was the 1993 Larimore Survey of the Connecting
Parcel.61 The Melvilles communicated with the Trust’s attorney regarding their
property claims, which led to this dispute.62
C. Procedural History
On October 11, 2018, Szelestei, as trustee of the Trust, filed a petition to quiet
title on the Connecting Parcel, including the Gibbs Parcel and the Disputed Parcel,
claiming to have obtained title to the Connecting Parcel through the 1992 Brown
Deed.63 Szelestei also asserts that her family has adversely possessed the Connecting
Parcel since at least 1992, by permitting persons to hunt on that property and
maintaining a path over the Connecting Parcel to connect her two properties.
Further, she asks for attorneys’ fees under the bad faith exception.
58
Id. 369:6-10.
59
Id. 372:19-24.
60
See Resp’t Tr. Ex. 6; Trial Tr. 419:6-18.
61
Trial Tr. 364:15-365:1.
62
Id. 365:7-12.
63
D.I. 1.
12
In the Melvilles’ November 13, 2018 answer and counterclaim, they deny
Szelestei’s ownership claims, assert that they have good title to the Disputed Parcel
through the 2013 Quit Claim Deed, and seek attorneys’ fees.64
Following discovery, Szelestei filed a motion for summary judgment, on
December 31, 2019, seeking invalidation of the 2013 Quit Claim Deed and arguing
that the recorded deeds and historical property boundary markers show that she is
the owner of the Connecting Parcel.65 The Melvilles, in their January 31, 2020
answering brief, asserted that they own the Disputed Parcel through the Portas chain
of title, and that the surveys and monuments do not support Szelestei’s claims.66 On
March 31, 2020, I issued a final report denying the summary judgment motion,
holding that the lack of clarity in the deeds left issues of material fact to be
determined at trial.67 The Court adopted the final report on April 14, 2020.68
With the motion for summary judgment, Szelestei also filed a motion in limine
to exclude the Melvilles’ expert’s report at trial.69 Following my report on summary
judgment, the Melvilles indicated that the motion in limine was not opposed, and I
64
D.I. 7.
65
D.I. 21.
66
D.I. 25.
67
D.I. 27.
68
D.I. 28.
69
D.I. 22.
13
granted that motion.70 This issue was further discussed at the September 16, 2021
pre-trial conference and later resolved through agreement by the parties.71
A two-day trial was held in this matter on September 28, 2021 and September
29, 2021.72 The parties supplemented the record on October 6, 2021.73 At the
parties’ request, I conducted a site visit of the Connecting Parcel and adjoining
properties on December 13, 2021. The parties submitted simultaneous written
closing arguments on January 4, 2022.74
II. Analysis
A. Parties’ Contentions
Szelestei argues that she has proven legal title because (1) she has shown, by
a preponderance of the evidence, the existence of a missing deed giving Gibbs’
ownership of the entire Connecting Parcel, and substantial evidence of the contents
of that deed,75 (2) the physical monuments—the stones, iron pipe, and the iron
70
D.I. 31; D.I. 32.
71
D.I. 38. At the pre-trial conference, the parties indicated that they could resolve the issue
addressed in the motion in limine. D.I. 38. However, following that conference, Szelestei
requested guidance from the Court concerning the implementation of the granted motion
in limine. D.I. 39. At the September 23, 2021 hearing, the parties agreed that the expert’s
report would be excluded from evidence at trial but that certain demonstrative exhibits
could be used based upon the expert’s surveys. D.I. 45.
72
D.I. 46.
73
D.I. 47.
74
D.I. 52; D.I. 53.
75
D.I. 53, at 2-8, 19-20.
14
axle—depict the property boundaries of the Connecting Parcel, which is referenced
as the Gibbs holding in the Portas Deed,76 and (3) the use, or non-use, of the term
“more or less” in deeds has no significance in the Portas Deed and no bearing on the
acreage being conveyed.77 Alternatively, she contends that she has proven adverse
possession of the Connecting Parcel because she has acted as if the Connecting
Parcel was exclusively owned by her since 1992, by cutting trails and renting the
land out to hunters.78
The Melvilles assert that they have good title in the Disputed Parcel through
their chain of title, relying on (1) the lack of evidence that there was a deed from
Davis to Gibbs,79 (2) that the 1988 Spec Plan shows that the Disputed Parcel was
part of the Portas property, not the Gibbs property,80 and (3) the use of the term
“more or less” with the conveyance to the Portases, and not with the other
descriptions of conveyances, in the Portas Deed means that the Disputed Parcel
passed to the Portases.81 The Melvilles also contend that Szelestei has not proven
adverse possession because the Szelesteis never attempted to exclude others from
76
Id., at 8-12.
77
Id., at 14-18.
78
Id., at 21-24.
79
D.I. 52, at 7, 12.
80
Id., at 8-12; see D.I. 47. The 1988 Spec Plan was taken from a 1988 Spec Print book
created by a company which compiled Kent County tax maps. Trial Tr. 297:2-298:10.
81
D.I. 52, at 14-16.
15
the Disputed Parcel and both parties accessed the Disputed Parcel and used it for
hunting, and that they, and their predecessors in interest, paid taxes on it.82
B. Record Title
Both parties contend that they have good legal title to the Disputed Parcel
through the chain of title contained in their deeds. Parties “seeking to remove a
cloud on title must prevail on the strength of their own titles and may not rely on the
weakness of another’s title.”83 The standard for proving legal title, in this instance,
is preponderance of the evidence.84
In a dispute involving deeds, the “construction of a deed is a question of law
upon which the court must rule.”85 “The fundamental rule in construing a deed is to
ascertain and give effect to the intent of the parties as reflected in the language they
selected.”86 The “scope and extent of a grant [of land] contained in a deed depends
82
Id., at 17-20.
83
Smith v. Smith, 622 A.2d 642, 646 (Del. 1993) (citation omitted); see also State v.
Sweetwater Point, LLC [hereinafter Sweetwater Point], 2017 WL 2257377, at *8 (Del. Ch.
May 23, 2017).
84
See Sweetwater Point, 2017 WL 2257377, at *8; see also ABC Woodlands, LLC v.
Shreppler, 2012 WL 3711085, at *2 (Del. Ch. Aug. 15, 2012). Because only the Melvilles
were named as respondents in this matter, and the Court never ordered service by
publication or posting, I conclude that this is an in personam action and the applicable
standard of proof is preponderance of the evidence. See D.I. 1; D.I. 4.
85
Rohner v. Niemann, 380 A.2d 549, 552 (Del. 1977) (citations omitted); see also Smith,
622 A.2d at 645.
86
Smith, 622 A.2d at 646; see also Phillips v. State, ex rel. Dep’t of Nat. Res. & Envtl.
Control, 449 A.2d 250, 253 (Del. 1982) (citations omitted); Sweetwater Point, 2017 WL
2257377, at *8.
16
upon the meaning of the language of the deed, and where that language contains
ambiguities the deed must be read in the light of the intent of the parties as
determined by the facts and circumstances surrounding the transaction.”87
Ambiguities are resolved “in favor of the grantee so long as such a construction does
not violate any apparent intention of the parties to the transaction.”88 However, a
“grantor can convey only such title and interest in land that he actually owns.” 89 In
construing deed language, there is an order of preference involving various factors:
calls “to natural monuments take the first priority, then to artificial monuments, then
to courses of distances, then to acreage. Calls to adjoiners [or adjoining properties]
are akin to calls to artificial monuments.”90 However, this order of preference is not
“absolute” but a tool to be used in ascertaining the parties’ intent.91
1. Szelestei has not Proven Record Title
Szelsetei’s chain of title rests upon a lost deed that conveyed the
approximately 13.5 acres of the Connecting Parcel to Gibbs, which she claims
87
Rohner, 380 A.2d at 552.
88
Smith, 622 A.2d at 646 (citing Rohner, 380 A.2d at 552); Richard Paul, Inc. v. Union
Imp. Co., 91 A.2d 49, 53 (Del. Ch. 1952) (citation omitted).
89
Scureman v. Judge, 626 A.2d 5, 16 (Del. Ch. 1992) (citation omitted), aff’d sub
nom. Wilmington Tr. Co. v. Judge, 628 A.2d 85 (Del. 1993) (TABLE); see also ABC
Woodlands, LLC, 2012 WL 3711085, at *4.
90
Sweetwater Point, 2017 WL 2257377, at *8; see also McCabe v. Wilson, 1986 WL
15429, at *10 (Del. Super. Dec. 10, 1986).
91
Sweetwater Point, 2017 WL 2257377, at *8.
17
included the Disputed Parcel. Both parties attempted to purchase the Gibbs Parcel
from Gibbs’ heirs in the past.92 But, the parties disagree whether the Disputed Parcel
was conveyed to Gibbs.
I consider what standard of proof to apply in this case for proving a lost or
missing deed. Szelestei argues that the burden to prove the execution and delivery
of a missing deed is preponderance of the evidence.93 Although more than a century
old, the Superior Court in Hitchens v. Ellingsworth held that
Parol evidence is admissible to show the execution and contents of a
lost deed, but such evidence to establish the contents should be clear
and certain. It should show, by the preponderance of the evidence, that
the deed was properly executed with the formalities required by law,
and should show the contents of the deed not literally but
substantially.94
92
See supra notes 29-32 and accompanying text. Both parties appeared to acknowledge
that Gibbs owned the Gibbs Parcel at some point in the past. Trial Tr. 44:23-45:3; id.
422:10-15.
93
D.I. 53, at 2.
94
Hitchens v. Ellingsworth, 94 A. 903, 904 (Del. Super. 1915); see also Bartholomew v.
Edwards, 6 Del. 247, 250 (Del. Super. 1856) (“The previous existence and subsequent loss
of the deed are first to be proved to the satisfaction of the Court; and afterwards the
evidence of its contents is addressed to the [finder of fact]; and to do this, the existence and
identification of the deed as a deed, and the parties to it, must be sufficiently proved to the
Court, before the secondary evidence as to its contents can be allowed to go to the [finder
of fact].”). Both Hitchens and Bartholomew address the standard of proof in the context
of a jury trial on the issue of a lost deed – they provide that the judge decides whether the
evidence proves the existence of the lost deed before the issue of the deed’s contents is
submitted to the jury. Other jurisdictions are “apparently unanimous in holding that
something more than the degree of proof required in an ordinary civil action is exacted in
cases involving the proof of the former existence and contents of a lost instrument.”
Comment, Degree or Quantum of Evidence Necessary to Establish a Lost Instrument, 148
A.L.R. 400 (originally published in 1944) (collecting sources and citing Hitchens, 94 A.
903); see also 52 Am. Jur. 2d Lost and Destroyed Instruments § 33 (2022).
18
Applying the approach articulated in Hitchens, I first consider whether the evidence
shows, by a preponderance of the evidence, that the lost deed was executed and then
whether the evidence establishing the lost deed’s contents was clear and certain.
“Proof by a preponderance of the evidence means proof that something is more likely
than not.”95 “[I]f the evidence is in equipoise the party carrying the burden will
lose.”96
Here, Szelsetei has not met her burden – she has not shown proof that the deed
conveying the Gibbs Parcel to Gibbs was ever executed. The only reference to a
sale of the Gibbs Parcel to Gibbs is the Portas Deed, which excepts “a small lot
contracted to be sold to William Gibbs on September 12, 1907 containing eleven
(11) acres” from the conveyance creating the Portas Tract.97 This references a
contract for the sale of land and provides no evidence that the Gibbs Parcel was ever
conveyed to Gibbs.98 The language “lot contracted to be sold” related to the Gibbs
Parcel is similar to the language used to describe “a small lot of land contracted for
by … Harris.”99 After the Portas Deed in 1910, Davis conveyed the Harris Tract to
95
In re Coinmint, LLC, 261 A.3d 867, 888 (Del. Ch. 2021) (internal quotation marks and
citations omitted).
96
Id. (internal quotation marks and citations omitted).
97
Pet’r Tr. Ex. 19.
98
See Trial Tr. 324:7-12.
99
Pet’r Tr. Ex. 19.
19
Harris and his wife in 1911.100 Unlike the later Harris Tract conveyance, there is no
evidence that the Gibbs Parcel was ever conveyed to Gibbs.101 And, there was
language in the Portas Deed excluding land “sold and conveyed by” Clark to Van
DerWeild in a deed dated January 8, 1907.102 If the Gibbs Parcel had been sold to
Gibbs prior to the execution of the Portas Deed, it would be consistent for that deed
to refer to it as land previously “sold and conveyed.” It appears that the Tax Office
assigned the Gibbs Parcel to Gibbs or his heirs.103 But, Mordecai indicated to
Melville that she did not have good title to the land and, as a result, she could not
“do anything with that property.”104 Because Szelestei has not shown, by a
preponderance of the evidence, the existence of a deed conveying the Gibbs Parcel
to Gibbs, I deny her claim that she has proven record title to the Gibbs Parcel and
the Disputed Parcel.105
100
Resp’t Tr. Ex. 2.
101
Despite the plain language of the Portas Deed reading that the lot was “contracted to be
sold” to Gibbs, Szelestei argues that the timing of the Portas Deed suggests that a deed had
already been executed to Gibbs. D.I. 53, at 3-4. I find this is not a reasonable inference to
draw from the plain language of the Portas Deed.
102
Pet’r Tr. Ex. 19.
103
See Trial Tr. 326:17-327:1; id. 324: 7-12 (“See, that was the funny thing about the whole
area. I never could find a deed for William Gibbs. It was actually reference din other deeds
that surround it, saying that the land was to be sold to William Gibbs for -- as 11 acres.
But I could never find a deed for it.”). The Tax Office attributed 11 acres to Gibbs. Id.
305:1-3.
104
Id. 352:13-19.
105
Since I find that Szelestei has not proven the existence of the lost deed conveying the
Gibbs Parcel to Gibbs by a preponderance of the evidence, I do not need to address the
20
2. The Melvilles have not Proven Record Title
The Melvilles must prove the strength of their record title to the Disputed
Parcel. They argue that, through their chain of title, they get any remainder of the
149-acre Williams Tract and that the Disputed Parcel was part of the land conveyed
to the Portases through the Portas Deed.106
Through their chain of title, the Melvilles obtained the Portas Tract, which is
described, in the Portas Deed, as land “lying on the Southeast side of the public road
leading from Kenton to Maryland line adjoining the lands now or late of William
Clough, … Nathaniel J. Williams and lands of others” and containing 112 acres of
land “be the same more or less and being all of the land” of the Williams Tract,
excepting a small lot of land contracted for by Samuel E. Harris on
September 23, 1907 containing fifteen acres … and also a small lot
contracted to be sold to William Gibbs on September 12, 1907
containing eleven (11) acres, and also a small lot of ten (10) acres sold
and conveyed by Thomas V. Clark to Warner Vanderveldt which deed
is dated the eighth day of January A.D. 1907 and of record in the
Recorder’s Office at Dover . . .107
The order of preference in construing deed language begins with calls to
natural monuments, then artificial monuments, including to adjoiners, or adjoining
properties, followed by course of distances, and acreage, which is a tool for
question of, or the standard that applies to proving the contents of such a deed. See Hitchens
v. Ellingsworth, 94 A. 903, 904 (Del. Super. 1915).
106
D.I. 52, at 12-16.
107
Pet’r Tr. Ex. 19.
21
interpreting the parties’ intent.108 Thus, to understand the land that the Melvilles
hold through their chain of title, it is necessary to understand what land was
conveyed through the Portas Deed, as well as the location of the land that was
excepted from that conveyance – the lands contracted for sale to Gibbs and Harris,
and the land previously sold to Van DerWeild.
The difficulty here is that the Portas Deed offers very little guidance from
which the Court can discern the location of the land conveyed and the lands excepted
from that conveyance. It contains no calls to natural monuments or courses of
distance and its only references are to artificial monuments – a road and adjoining
properties – and to acreage.
During the trial, witnesses identified various stones and markers purported to
be on the boundaries of the properties, which roughly align with what the parties
agree constitute some of the boundaries of their properties.109 Stones and markers
on certain boundaries are reflected on previous surveys of the Connecting Parcel or
adjoining properties, including a 1993 Larimore survey, which shows an axle and
pipe at the boundaries on one end and two stones at the other end of the Connecting
Parcel;110 a 2012 survey prepared by Julian Marvel (“Marvel”) of the N.E. lands
108
See supra notes 90-91 and accompanying text.
109
See, e.g., Trial Tr. 98:15-99:12; id. 120:23-121:5; id. 181:10-184:10; id. 354:23-355:16.
110
Pet’r Tr. Ex. 8.
22
being conveyed to Melville, which shows an axle and pipe at one end, and a stone
one of the other ends of the Connecting Parcel;111 and a 2019 Marvel survey of the
Melvilles’ property closest to Butterpat Road, which shows a pipe and a stone on
two of the boundaries of the Connecting Parcel.112 Melville testified that he thought
all of the stones were his survey stones.113 Larimore, Szelestei’s expert witness,
testified that he believed the stones had been intentionally placed at the boundaries
between 150 and 200 years ago and the pipe at least 20 years ago.114
However, the Portas Deed, or other deeds in the chain of title, do not reference
these stones and markers. Although artificial monuments can be used to mark
property boundaries,115 their use in interpreting a deed’s language is limited if they
are not referenced in a controlling deed, or cannot be otherwise tied to the facts and
circumstances of the conveyance reflected in the deed.116 While the stones and
markers appear to have been adopted, in some part, by subsequent grantees of
111
Pet’r Tr. Ex. 11. The 2012 Marvel survey does not show one of the Connecting Parcel’s
boundaries. Id. It further shows the Connecting Parcel as the “lands now or formerly of
Steve Szelestei Jr. (Trustee).” Id.
112
Resp’t Tr. Ex. 4.
113
Trial Tr. 358:4-8.
114
Id. 181:11-183:24.
115
See Sweetwater Point, 2017 WL 2257377, at *8 (Del. Ch. May 27, 2017); McCabe v.
Wilson, 1986 WL 15429, at *10 (Del. Super. Dec. 10, 1986).
116
See Rohner v. Niemann, 380 A.2d 549, 552 (Del. 1977) (ambiguities in deeds are
resolved in light of the “facts and circumstances of the transaction”).
23
adjoining properties, including the Szelesteis and the Melvilles, the evidence does
not tie them as boundary markers for land conveyed in the early twentieth century
deeds at issue.
In addition, the Portas Deed and other deeds in the chain of title describe the
land being conveyed as lying on a “public road going from Kenton to the Maryland
line.”117 Calls to roads are calls to artificial monuments.118 This call is ambiguous,
since, at this point, neither Fords Corner Road nor Butterpat Road run directly from
Kenton to the Maryland border. There was testimony that another road once existed
in that area, but its exact location is unclear.119
Next, I consider calls to adjoiners or adjoining property. The Portas Deed
refers to the adjoining lands “now or late of William Clough, … Nathaniel J.
Williams and lands of others.”120 The interpretation of calls to adjoiners “requires
considerable collateral showing as to the location of the adjoiners named, and then
117
Pet’r. Tr. Ex. 15 (“east side of the public road going from Kenton to the Maryland line”);
Pet’r Tr. Ex. 16 (“on the public road leading from Kenton to the Maryland line”); Pet’r Tr.
Ex. 17 (“South east side of the public road leading from Kenton to the Maryland line”);
Pet’r Tr. Ex. 18 (“south-east side of the public road leading from Kenton to the Maryland
line”); Pet’r Tr. Ex. 19 (“Southeast side of the public road leading from Kenton to the
Maryland line”); Pet’r Tr. Ex. 20 (“southeast side of the public road leading from Kenton
to Maryland line”); Pet’r Tr. Ex. 21 (“southeast side of the public road leading from Kenton
to Maryland line”); Pet’r Tr. Ex. 22 (“southeast side of the public road leading from Kenton
to Maryland line”);
118
See 4 Tiffany Real Property § 993 (3d ed.) (2021).
119
Trial Tr. 74:3-24; id. 142:11-13.
120
Pet’r Tr. Ex. 19.
24
considerable checking to ascertain that their respective boundaries enclose and
correctly describe the land to which title is being examined.”121 Since the evidence
does not show the location of adjoining lands referenced in the Portas Deed, these
calls are not helpful. Further, there are no courses of distance contained in the Portas
Deed, and it is not until relatively recently that an adjoining property’s deed included
a description based on courses and distances.122
The Portas Deed does contain calls to acreage. “[O]f all the indicia by which
boundaries of land are to be ascertained that of quantity is held perhaps the least
reliable.”123 The Portas Deed describes the land being conveyed to the Portases as
all of Clark’s property that was owned by Davis, consisting of 112 acres “more or
less,” except for three parcels of land that were excepted (Gibbs Parcel, Harris Tract,
and Van DerWeild Tract),124
121
1 Patton and Palomar on Titles § 128 (3d ed.) (2021). See Sweetwater Point, 2017 WL
225377, at *9-23 (Del. Ch. May 23, 2017) (detailed discussion of each call to adjoiner and
related deeds).
122
The first deed of any neighboring property to include a description based on courses
and distances was the 1973 conveyance of 13.35 acres between N.E. and the Melvilles. See
Pet’r Tr. Ex. 23. The first survey of the Gibbs Parcel was completed in 1993 and depicted
13.55 acres based on monuments, courses and distances. Pet’r Tr. Ex. 8. However, the
recorded deeds of the Gibbs Parcel and the Disputed Parcel depict calls only to adjoiners,
acreage, and, in 2013, by reference to a tax parcel number. See Pet’r Tr. Ex. 6; Pet’r Tr.
Ex. 13.
123
1 Patton and Palomar on Titles § 158 (3d ed.) (2021) (internal quotation marks and
citations omitted).
124
Pet’r Tr. Ex. 19.
25
The Melvilles argue that the omission of the phrase “more or less” for the
excepted parcels compared to its inclusion for the conveyance to the Portases, means
that only the exact acreage specified for the excepted parcels was not conveyed to
the Portases. They assert that, since the Gibbs Parcel was described as 11 acres and
the land claimed by Szelestei (the Gibbs Parcel and the Disputed Parcel) exceeds
that acreage, the Disputed Parcel transferred to the Portases through the Portas
Deed.125
I disagree with the Melvilles’ argument that the use of “more or less” in
referencing the quantity of acreage in one conveyance, while omitting it in other
references, reflected the parties’ differing intent for the conveyances in the Portas
Deed.126 It has been held that, in modifying a quantity term for a deed, the phrase
“more or less” accounts for “only minor inaccuracies in measurement.”127 Larimore
testified that the phrase “more or less” is used “in every deed” when quantifying
acreage and, when asked how he would interpret the omission of “more or less” in
certain descriptions in a deed, he responded “[s]omebody just forgot to say ‘more or
less.’”128
125
D.I. 52, at 15.
126
See id., at 20-22.
127
Pryde v. Delmarva Power & Light Co., 2009 WL 388942, at *4 (Del. Super. Feb. 17,
2009).
128
Trial Tr. 195:21-196:12.
26
The parties’ intent in using the phrase “more or less” in one instance and
omitting it in others in the Portas Deed is not clear. The Harris Tract, which was
described as 15 acres in the Portas Deed without the phrase “more or less,” 129 was
subsequently described as “18 acres of land more or less,” when Davis sold the land
to Harris in 1911.130 So, in that instance, Davis (the grantor in both conveyances)
did not intend that the acreage excepted from the Portas conveyance to be sold to
Harris was exact; indeed, there was a difference of three acres. Further, if the phrase
“more or less’ accounts for only minor inconsistencies in measurement, then it
would not support adding 3.6 acres – not a minor inconsistency – to the Portases’
lands. I conclude that the evidence does not show that the parties intended to
mandate the exactness of the acreage being transferred through the use, or non-use,
of the phrase “more or less.”
The Melvilles also rely on the 1988 Spec Plan to show that the Disputed Parcel
was part of the Portases’ property and not the Gibbs Parcel.131 The 1988 Spec Plan
depicted the Gibbs Parcel as 11 acres and included the Disputed Parcel in an adjacent
98.7-acre tax parcel owned by N.E.132 It is undisputed that N.E. paid taxes on the
129
Pet’r Tr. Ex. 19.
130
Resp’t Tr. Ex. 2. Indeed, the Melvilles in their closing memorandum acknowledge this
and other inconsistencies in acreage descriptions among the deeds that are relevant to this
matter. See D.I. 52, at 3; id., at 4 n. 3; id. at 15 n. 10.
131
D.I. 52, at 12.
132
D.I. 47.
27
Disputed Parcel while it owned the adjacent parcel.133 However, when the Tax
Office reviewed the survey related to the 2012 N.E. Deed, which did not include the
Disputed Parcel in the land transferred to the Melvilles, it created a new tax parcel
for the Disputed Parcel and listed it with unknown owner, which precipitated the
Melvilles obtaining the 2013 Quitclaim Deed from N.E. for the Disputed Parcel.134
Costa testified that the Tax Office tracks land ownership only for tax assessment
purposes and that tax maps are “not survey accurate.”135 He also testified that, if the
1993 Larimore Survey reflected that the Gibbs Parcel owned by Szelestei was 13.55
acres, the tax map would have noted the ownership dispute and when the new parcel
was created, the 13.55 acres would have been attributed to Szelestei.136 The 1988
Spec Plan did not include the Disputed Parcel as a part of the Gibbs Parcel. Although
tax payment on a property is an indicia of ownership,137 the tax maps reflected in the
1988 Spec Plan are not survey accurate and are not determinative of land ownership,
especially considering the unusual circumstances surrounding the Disputed Parcel.
Here, the passage of time and a lack of clarity in the controlling deeds greatly
hinders the ability to ascertain the parties “intent—the controlling consideration in
133
Resp. Tr. Ex. 8; Trial Tr. 318:13-18.
134
See Pet’r Tr. Ex. 13; Trial Tr. 356:19-357:4.
135
Trial Tr. 301:2-8; id. 305:20-22.
136
Id. 306:2-19.
137
See Walker v. Five N. Corp., 2007 WL 2473278, at *4 (Del. Super. Aug. 31, 2007).
28
any determination of conveyances.”138 It is not unusual in property disputes that
“the passage of time obscures the relevant facts.”139 In this analysis, the intent that
I am called upon to effectuate is that of parties from over 100 years ago, each of
whom has long since passed away. While I commend both parties for their
admirable efforts to give meaning to these conveyances, I cannot ascertain, based on
the record before me, the true intentions of those parties. Little evidence was
presented that would give meaning to the calls contained in the Portas Deed, or other
related deeds. It may be that the early twentieth century parties involved had
relationships which ensured that they understood, among themselves, the full
meaning of their property transactions. However, based upon the evidence available
today, I cannot reconstruct that intent and understanding with sufficient certainty to
conclude that the Melvilles obtained record ownership to the Disputed Parcel, and I
deny their claim.
C. Adverse Possession
Szelestei contends that she has established title to the Connecting Parcel,
encompassing both the Gibbs Parcel and the Disputed Parcel, through adverse
138
Sweetwater Point, 2017 WL 2257377, at *8 (Del. Ch. May 27, 2017) (citing 4 Tiffany
Real Property §§ 993, 997 (3d ed.)).
139
Savage v. Barreto, 2013 WL 3773983, at *6 n. 48 (Del. Ch. July 17, 2013).
29
possession.140 The Melvilles do not generally contest Szelestei’s title to the Gibbs
Parcel, but deny Szelestei’s claim to the Disputed Parcel.141
“To establish title by adverse possession therefore, [Szelestei] must show, by
a preponderance of the evidence: (1) open and notorious, (2) hostile and adverse, (3)
exclusive, (4) actual possession, (5) that was continuous for twenty years.”142 The
burden of proof for adverse possession is preponderance of the evidence. 143 “Acts
indicative of ownership vary according to the nature of the land. The land need only
be used as other owners of similar land would use land of that type, and only in such
a manner as is practicable or to be expected.”144
As background, both the Disputed Parcel and the Gibbs Parcel are landlocked,
densely forested parcels of land that appear to have limited economic value or
potential for cultivation.145 Their main use appears to be for hunting.146 These
observations were confirmed by my site visit of the Disputed Parcel and the Gibbs
140
D.I. 1, at ¶¶ 20-22.
141
D.I. 7, ¶ 27; D.I. 52, at 17-20.
142
Tumulty v. Schreppler, 132 A.3d 4, 24 (Del. Ch. 2015).
143
Id.144
Edwards v. Estate of Muller, 1993 WL 489381, at *13 (Del. Ch. Oct. 18, 1993).
145
See Trial Tr. 61:9-23; id. 333:1-3; id. 338:22-23; see also D.I. 52, at 17. This was
confirmed by my visit to the properties.
146
Trial Tr. 61:9-23.
30
Parcel. Parts of the Disputed Parcel, in particular, are swampy, which impedes other
uses and efforts to create paths through those portions of the property.147
1. Continuous Possession for Twenty Years
The twenty-year continuous possession requirement “is a bright-line
inquiry.”148 The issues that most often arise out of this requirement is determining
when the twenty-year period begins.149 The Szelesteis recorded a deed that she
argues conveys both the Gibbs Parcel and the Disputed Parcel in 1992.150 They hired
a surveyor in 1993 to draw a survey of the Connecting Parcel,151 and began licensing
hunters to hunt on both properties—the Gibbs Parcel and the Disputed Parcel—in
1993.152 I find that the Szelesteis began asserting ownership over the Connecting
Parcel in 1992 or 1993, so the requisite 20-year period ran well before Szelestei filed
the Petition on October 11, 2018.153
147
Id. 112:9-113:1.
148
Tumulty v. Schreppler, 132 A.3d 4, 24 (Del. Ch. 2015).
149
See id.150
Pet’r Tr. Ex. 6.
151
Pet’r Tr. Ex. 8.
152
Trial Tr. 62:1-6. See, e.g., Pet’r Tr. Ex. 28; Trial Tr. 122:10-23 (hunters paid Szelestei
every year for hunting rights on the properties).
153
D.I. 1. For completeness’ sake, I address the effect of the transfer of the Szelesteis’
interest in the parcels to the Trust on December 8, 2009. Pet’r Tr. Ex. 5. Since they
conveyed their rights in the parcels to the Trust, and there is no evidence of any lapse in
use during the relevant period, the doctrine of tacking applies and this transfer does not
disturb the twenty-year period required for adverse possession. See Marvel v. Barley Mill
Road Homes, 104 A.2d 908, 913-14 (Del. Ch. 1954).
31
2. Open and Notorious Possession
“Open and notorious means that the possession must be public so that the
owner and others have notice of the possession. If possession was taken furtively or
secretly, it would not be adverse and no title possession could be acquired.”154
“[W]hat constitutes open and notorious use of land depends on the properties and
characteristics of the land in question.”155
Szelestei has proven open and notorious possession of both the Disputed
Parcel and the Gibbs Parcel by a preponderance of the evidence. The Szelesteis
began selling hunting rights on the entire Connecting Parcel in 1993.156 The
Szelestei family and hunters have hunted on the Connecting Parcel since that time.157
154
Tumulty v. Schreppler, 132 A.3d 4, 27 (Del. Ch. 2015) (internal quotation marks and
citations omitted).
155
Id. at 28.
156
See supra note 152.
157
Trial Tr. 116:12-15. William Szelestei, Szelestei’s grandson, testified that he hunts deer
and turkeys on the Connecting Parcel. Id. 106:14-20. The leader of one of the hunting
clubs, Ronald Malice (“Malice”), described his rights extending to the “tree with a pipe
coming out of it.” Id. 121:2-5. While there was some confusion about references on the
map used at trial for demonstrative purposes, see id. 120:1-22, the descriptions given in
Malice’s testimony indicated that he and his hunting club hunted on the Gibbs Parcel and
the Disputed Parcel. The “tree with a pipe coming out of it” is the marker that separates
the Disputed Parcel from Szelestei’s land that adjoins Butterpat Road. And, in my personal
observations of the properties, I observed the tree stand of a member of Malice’s club on
the Disputed Parcel.
The Melvilles argue that “the location of most if not all of the stands rented by the
Szelesteis seemed, based on the testimony of the two hunters who testified, to have been
on the parcels located to the north and south of the Disputed Parcel.” D.I. 52, at 18. For
32
And, Melville knew that the Szelesteis’ hunters were on the Disputed Parcel.158 The
Szelesteis’ hunters put signs up on their trails and deer stands to mark them.159 The
Szelesteis and their hunters cleared a 10-12 foot wide trail in the Disputed Parcel
and the Gibbs Parcel.160 The Szelesteis have maintained the trail.161 Melville used
the trail at times and knew that the Szelesteis were maintaining the trail.162
Additionally, at least on one occasion, the Szelesteis put up “No Trespassing” signs
to prevent unauthorized persons bringing all-terrain vehicles through, and damaging,
the Szelesteis’ properties, including the Gibbs Parcel and the Disputed Parcel.163
Szelestei and her agents made no secret of their use of the Disputed Parcel and
the Gibbs Parcel. However, like the lands at issue in Tumulty v. Schreppler,164 these
properties are secluded and landlocked. The Court in Tumulty found that the adverse
possessor had met his burden of showing an open and notorious use based upon the
the reasons discussed in the preceding paragraph, I disagree with that characterization of
the evidence.
158
Trial Tr. 368:23-369:18; see also id. 372:19-24. Melville testified that he moved the
Szelesteis’ hunters off the Disputed Parcel one time, but it appears this action occurred
after this litigation was instituted. Id. 372:19-24.
159
Id. 124:19-24; id. 125:13-15. Additionally, I observed such a sign on Mr. Johnson’s
deer stand on the Disputed Parcel.
160
Id. 62:16-20; see id. 89:11-91:13.
161
Id. 89:15-17; see also id. 89:19-20; id. 91:4-16; id. 132:9-15.
162
Id. 375:5-10; id. 376:22-23; id. 377:22-378:3.
163
Id. 378:22-379:5.
164
132 A.3d 4, 28 (Del. Ch. 2015).
33
activities that the adverse possessor conducted on the land, which included hunting,
fishing, camping, cutting trials, inviting friends to do the same, and making some
efforts to exclude trespassers.165 Similarly here, the Szelesteis hunted on the
Disputed Parcel and the Gibbs Parcel, cut trails on both parcels, and licensed hunters
to do the same. Additionally, the Szelesteis put up no trespassing signs when
necessary to exclude others from damaging the properties. Thus, Szelestei has
proven open and notorious use by a preponderance of the evidence.
3. Actual Possession
“The requirement of actual possession overlaps to a large extent with open
and notorious possession.”166 The inquiry is whether “the possession comports with
the usual management of similar lands by their owners.”167 “Neither the actual
occupation, cultivation, nor residence is necessary where neither the situation of the
property nor the use to which it is adapted or applied admits of, or requires, such
evidence of ownership.”168
The Szelesteis began selling hunting rights on the Gibbs Parcel and the
Disputed Parcel in 1993.169 They also hunt on the properties whatever they are
165
Id. at 30.
166
Id.
167
Id. (quoting Marvel v. Barley Mill Road Homes, 104 A.2d 908, 912 (Del. Ch. 1954)).
168
Id. (quoting Marvel, 104 A.2d at 912) (emphasis omitted).
169
See supra note 152.
34
allowed to hunt pursuant to Delaware state law.170 The hunters whom the Szelesteis
license similarly hunt what and when they are allowed under Delaware state law.171
When there is no active hunting season, there is not much activity on the properties,
except maintenance by either the Szelesteis or the hunting clubs.172
Szelestei, through this conduct, has proven actual possession by a
preponderance of evidence. “Delaware law consistently has recognized that
‘recreational’ usage can support an adverse possession claim.”173 Even though the
Szelesteis and their agents made little use of the Connecting Parcel outside of the
hunting season, this is sufficient under Delaware law for a claim of adverse
possession.174 The Szelesteis used the parcels in a manner as an owner of
comparable lands would. And, they, and their agents, made use of the properties
throughout – the trail cut by the Szelesteis runs along the western boundary of these
parcels, and the deer stand of one of their hunters is near the southeast corner of the
Disputed Parcel, as indicated by the iron axle. Thus, the Szelesteis have shown
actual possession by a preponderance of the evidence.
170
Trial Tr. 106:14-107:11.
171
Id. 141:5-14.
172
Id. 107:24-108:12.
173
Tumulty, 132 A.3d at 31.
174
See id. at 30-32; see also id. at 26 (the adverse possessor “used the land as a weekend
getaway”).
35
4. Exclusive Possession
“The exclusivity element does not require absolute exclusivity.”175
“Exclusive possession means that the adverse possessor must show exclusive
dominion over the land and an appropriation of it to his or her benefit.”176
“Possession is exclusive when the claimant’s possession excludes the record owner
and the public.”177
Beginning in 1993, the Szelesteis licensed hunters to hunt on the Disputed
Parcel and the Gibbs Parcel; these hunters paid the Szelesteis annually for their
hunting rights.178 The Szelesteis would enforce their hunting rights and get involved
if persons whom they had not granted hunting rights to came onto the property.179
By licensing others to hunt on the Disputed Parcel and the Gibbs Parcel – and
appropriating the economic value of those properties to their benefit – the Szelesteis
exercised exclusive possession over the entire Connecting Parcel.180
175
Id. at 26.
176
Id. (quoting Walker v. Five N. Corp., 2007 WL 2473278, at *4 (Del. Ch. Aug. 31, 2007))
(internal quotation marks omitted).
177
Berger v. Colonial Parking, Inc., 1993 WL 208761, at *2 (Del. Ch. June 9, 1993), as
modified, 1993 WL 257329 (Del. Ch. July 2, 1993); see also Tumulty, 132 A.3d at 27 (“An
ordinary landowner may experience trespasses on her land; promptly excluding such
individuals upon discovery reinforces a claim of exclusive ownership.”)
178
Trial Tr. 62:1-6. See, e.g., Pet’r Tr. Ex. 28; Trial Tr. 122:10-23.
179
Trial Tr. 94:15-18.
180
See Walker v. Five N. Corp., 2007 WL 2473278, at *4 (Del. Ch. Aug. 31, 2007).
36
The Melvilles argue that Szelestei cannot meet the burden of showing
exclusive use because the Melvilles also used the Disputed Parcel.181 Specifically,
the Melvilles and their family had a deer stand on the Disputed Parcel, hunted on the
Disputed Parcel, and used the Disputed Parcel to traverse between their properties.182
In 2017, the Melvilles planted trees on the Disputed Parcel, on the advice of the state
forestry service.183 They have also asked one of the Szelesteis’ hunters to leave the
Disputed Property.184 But, the actions that would most strongly detract from a
finding of exclusive possession arose after 2013, which is beyond Szelestei’s 20-
year period for adverse possession, which began accruing in 1993. The Melvilles
and their associates did have a deer stand on the Disputed Parcel as early as 2001,
but I do not find that this negates a finding of exclusive possession since the deer
stand was along the property line.185 This minor incursion onto the Disputed Parcel,
in a heavily forested area where property boundaries are not entirely clear, does not
alone defeat Szelesteis’ exclusive possession.186
181
D.I. 52, at 17-20.
182
Trial Tr. 361:9-22; id. 419:6-18. “As a kid, we used to hunt back through [the Gibbs
Parcel and the Disputed Parcel]. There weren’t very many boundary issues, I guess, at that
point.” Id. 370:5-7.
183
See id. 362:21-24; id. 363:9-14.
184
Id. 372:19-24.
185
Id. 397:9-398:14.
186
See Tumulty v. Schreppler, 132 A.3d 4, 26-27 (Del. Ch. 2015). Delaware law recognizes
that “mixed possession” does not necessarily defeat a claim of adverse possession. See
Edwards v. Est. of Muller, 1993 WL 489381, at *13 (Del. Ch. Oct. 18, 1993). “Where
37
5. Hostile Possession
“A hostile claim goes against the claim of ownership of all others, including
the record owner.”187 “It is not necessary that one entering a property must expressly
declare his intention to take and hold the property as his own. The actual entry upon
and the use of the premises as if it were his own, to the exclusion of all others, is
sufficient.”188 The Szelesteis have maintained the Gibbs Parcel and the Disputed
Parcel using heavy equipment, which can be heard from neighboring properties.189
No evidence was presented that the Szelesteis used the Gibbs Parcel and the
Disputed Parcel with permission from some record owner. Thus, Szelestei has met
her burden of showing hostile possession.
In conclusion, Szelestei has established, by preponderance of the evidence,
title to the Gibbs Parcel and the Disputed Parcel through adverse possession.
there has been ‘mixed possession,’ that is, where both parties have demonstrated acts of
ownership over time, then the party who has shown legal title enjoys the right of
possession.” Id. (quoting Nevin v. Disharoon, 66 A. 362, 363 (Del. Super. 1907)). Here,
because I hold that neither party enjoys legal title to the Disputed Parcel, this rule does not
apply. Unresolved by this Report is whether the Melvilles have any type of property right
in the Disputed Parcel. Unlike Szelestei, the Melvilles claimed only legal title to the
Disputed Parcel in this action. See D.I. 7, ¶¶ 27-30. There was evidence that the Melvilles,
their family, and associates have accessed the Connecting Parcel for generations. See D.I.
52, at 17-18; Trial Tr. 422:2-15. It may be that their use has ripened into an easement or
other interest; however, that issue is not properly before the Court at this time.
187
Tumulty, 132 A.3d at 27 (cleaned up).
188
Id. (cleaned up).
189
Trial Tr. 91:13-19.
38
D. Attorneys’ Fees
Both parties have requested fee-shifting under the bad faith exception to the
American Rule.190 Both argue that the other has acted in bad faith by taking actions
to claim ownership of the Disputed Parcel while knowing the other has a justifiable
claim of right to the parcel.191 “Delaware follows the ‘American Rule,’ which
provides that each party is generally expected to pay its own attorneys’ fees
regardless of the outcome of the litigation.”192 Equitable exceptions to the American
Rule include the bad faith exception.193 I find no evidence that either party has acted
in bad faith in this litigation – both parties advanced non-frivolous claims for their
ownership of the Disputed Parcel – and I decline to shift fees.
190
See D.I. 1, ¶¶ 23-26; D.I. 7, ¶¶ 31-38. In the pre-trial stipulation, the Melvilles stated
that their attorney’s fees request was under 10 Del. C. § 348(e). D.I. 29, at 5. However,
this litigation is not related to deed restrictions, so Section 348(e) does not apply. See 10
Del. C. § 348(e).
191
See D.I. 1, ¶¶ 23-26; D.I. 7, ¶¶ 31-38.
192
Shawe v. Elting, 157 A.3d 142, 149 (Del. 2017); see also ATP Tour, Inc. v. Deutscher
Tennis Bund, 91 A.3d 554, 558 (Del. 2014); Mahani v. Edix Media Grp., Inc., 935 A.2d
242, 245 (Del. 2007).
193
Delaware courts have awarded attorney’s fees for bad faith when “parties have
unnecessarily prolonged or delayed litigation, falsified records or knowingly asserted
frivolous claims.” Kaung v. Cole Nat. Corp., 884 A.2d 500, 506 (Del. 2005) (citing
Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 546 (Del. 1998)); see
also RBC Capital Markets, LLC v. Jervis, 129 A.3d 816, 877 (Del. 2015) (citation omitted).
39
III. Conclusion
For the reasons set forth above, I recommend that the Court quiet title on the
Connecting Parcel, including the Disputed Parcel and the Gibbs Parcel, in favor of
the Steve Szelestei, Jr. Revocable Trust Dated August 14, 2009. I also recommend
that the Court decline to shift attorneys’ fees. This is a final master’s report, and the
parties may take exceptions under Court of Chancery Rule 144. Within 15 days after
this report becomes final, I ask the parties to submit a proposed implementing order.
40