Jarvis v. Gillespie

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-529


Royal W. Jarvis                              Supreme Court

                                             On Appeal from
     v.                                      Lamoille Superior Court

Hubert Gillespie                             October Term, 1990


Linda Levitt, J.

Polow & Polow, Hyde park, for plaintiff-appellee

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


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ.


     ALLEN, C.J.   Defendant, grantee of a quitclaim deed from the Town of
Waterville for a 1.2-acre parcel of land, contests the trial court's ruling
that title to the parcel had previously passed from the Town of Waterville
to plaintiff by way of adverse possession.  We affirm.
     The Town of Waterville acquired title to the parcel in 1935 from the
administrator of the estate of the then owner.  In 1932, the owner had
mortgaged the parcel to the Town in order to receive public assistance. (FN1)
The Town provided support for the owner until his death, after which the
administrator of the owner's estate deeded the parcel over to the Town.
     In 1947, plaintiff purchased over 200 acres of land which surround the
disputed parcel on three sides.  The fourth side of the parcel is bounded by
a road.
     On May 7, 1986, the Town of Waterville, by quitclaim deed, conveyed the
disputed parcel to defendant.  Shortly thereafter, defendant went to the
property and removed "No Trespassing" signs which plaintiff had posted on
the property.  Plaintiff replaced the signs and built a wooden fence on the
property.
     On February 24, 1988, plaintiff filed a declaratory judgment action to
establish his ownership of the disputed parcel by way of adverse possession
or, in the alternative, to obtain a prescriptive easement over a roadway
which crosses the parcel.  Defendant contested the action by denying
plaintiff's claims and by asserting as an affirmative defense that plaintiff
could not gain title to, nor a prescriptive easement over, the parcel
because lands given to a public use are exempted from adverse possession
claims by 12 V.S.A. { 462.
     The trial court found that at various times between the years 1947 and
1986 plaintiff had used the land for a variety of purposes, such as grazing
cattle and horses, parking vehicles, as a staging area for a logging
operation on surrounding property, and to store slab wood from a sawmill
which was located on adjacent property.  The court also found that during
that period plaintiff, at various times, maintained a fence on the roadside
boundary of the parcel, tapped maple trees on the parcel, planted trees on
the parcel, cut Christmas trees and firewood from the parcel, posted no
trespassing signs on the parcel, and built a loading ramp on the parcel for
the logging operation which remained in use to load and unload his tractor
after the logging operation ceased.  The court found that these uses were
clearly visible from the road which abutted the parcel.  Further, the court
found that plaintiff was the only person to make use of the property for any
reason during the period and that neither the Town of Waterville nor the
public made any use of the parcel during that time.
     From these facts, the court concluded that plaintiff had established
title to the property by adverse possession.  The court further concluded
that the exemption provided in 12 V.S.A. { 462 did not apply in this
instance because the property was not given to a public use.  Defendant then
brought this appeal contesting both of these conclusions.
                                    I.
     We first address defendant's assertion that the trial court's findings
numbered 17, 19, 20, 21, 22, 23, and 30 are clearly erroneous. (FN2)
     When reviewing the factual findings of a trial court, this Court will
view them in the light most favorable to the prevailing party below,
disregarding the effect of modifying evidence, and will not set aside the
findings unless they are clearly erroneous.  Brown v. Whitcomb, 150 Vt. 106,
109, 550 A.2d 1, 3 (1988); V.R.C.P. 52(a).  The findings will stand if there
is any reasonable and credible evidence to support them.  Harlow v. Miller,
147 Vt. 480, 481-82, 520 A.2d 995, 997 (1986).
     A review of the record discloses sufficient evidence to support
findings 17, 19, and 23, and, therefore, they will not be set aside.  Also,
defendant's challenge to finding 30 is directed at the conclusion the trial
court drew from the finding and not at the substance of the finding itself.
Therefore, the substance of this finding stands.
     Defendant's challenge to findings 20, 21, and 22 have merit.  Findings
20, 21, and 22 are clearly erroneous as to the dates specified therein.
There is no evidence to support a finding that the uses mentioned in finding
20 started in the mid-1950s.  Those uses started in 1965.  Therefore,
findings 20 and 21 are erroneous as to the period of the mid-1950s to 1965.
Also, there is no support for finding that plaintiff conducted a logging
operation in 1973, as is stated in finding 23.  The evidence clearly shows
that the logging operation took place in 1971 and 1972.  Therefore, finding
23 is erroneous as to the year 1973.
     These errors, though, are harmless.  The errors in findings 21 and 22
concern only the period from the mid-1950s to 1965.  This period is not
crucial because, as will be discussed below, plaintiff's possession from
1965 to 1986 was sufficient to establish title.  See infra note 4 and
accompanying text.  The error in finding 23 concerns only the logging
operation in 1973 which is unessential because there were other activities
on the property in 1973.  Therefore, because the errors concern only
unessential findings, they do not provide a basis for reversal.  See
Tetreault v. Tetreault, 148 Vt. 448, 453, 535 A.2d 779, 782 (1987)
(unessential findings do not provide grounds for reversal even when such
findings are incorrect).
                                    II.
     Defendant next contends that the trial court erred in finding that
plaintiff had established all the elements necessary to gain title to the
parcel by adverse possession.  One acquires title by adverse possession
through "'open, notorious, hostile, and continuous' possession of another's
property for a period of fifteen years."  Moran v. Byrne, 149 Vt. 353, 355,
543 A.2d 262, 263 (1988) (quoting Laird Properties New England Land
Syndicate v. Mad River Corp., 131 Vt. 268, 277, 305 A.2d 562, 567 (1973)).
The claimant has the burden of establishing all of these elements.  Laird,
131 Vt. at 279, 305 A.2d  at 569.
     Defendant argues that except for the logging operation in 1971 and 1972
and storing the slab wood in 1983 and 1984, none of plaintiff's uses of the
parcel constituted sufficient possession to establish adverse possession.
Defendant relies on case law asserting that certain acts, such as tapping
trees or cutting timber, by themselves are insufficient to establish
possession.  See Caskey v. Lewis, 54 Ky. (15 B. Mon.) 27, 32 (1854)
(occasional use for sugaring and cutting timber and firewood did not
constitute possession); Adams v. Robinson, 6 Pa. 271, 272 (1847) (annual use
of land as a sugar camp constituted a succession of trespasses rather than
occupancy).  Such a general proposition, however, is not conclusive of the
particular controversy before us.  "The ultimate fact to be proved in an
adverse possession case is that the claimant has acted toward the land in
question as would an average owner, taking properly into account the
geophysical nature of the land."  7 R. Powell, The Law of Real Property ^
1013[2][h], at 91-62 (1990); see Laird, 131 Vt. at 280, 305 A.2d  at 569
(acts needed to give rise to constructive possession must be consistent with
the nature of the property).  Thus, although certain of the acts of
possession taken by a claimant may not be sufficient to establish possession
in all circumstances, each case must be examined individually, viewing the
claimant's acts in light of the nature of the land.
     In this case, the land is a 1.2-acre parcel surrounded on three sides
by 280 acres of plaintiff's land and bounded on the fourth side by a road.
The area in which it is located is rural and agricultural in nature.  In
1947 there were no buildings on the property and there had not been any for
many years.  Grazing cattle and horses, cutting hay, planting and tapping
trees, and cutting firewood and Christmas trees are the types of acts which
are consistent with the nature of the parcel.
     Defendant contends, however, that these acts are not the uses an
average owner would have made of the parcel.  He argues that because at one
point before 1947 there had been a house on the parcel, because the parcel
is flat, open, dry and well drained, because more trees could have been
planted on it, and because defendant plans to build a house upon it,
plaintiff did not use the parcel as an average owner might.  We do not
agree.  Simply because a parcel may be susceptible to uses other than those
to which the claimant chose to put it does not necessarily lead to the
conclusion that the claimant failed to act toward the parcel as an average
owner would have.  "'The possession is gauged by the actual state of the
land, and not with reference to its capability of being changed into another
state which would reasonably admit of a different character of possession.'"
Bergen v. Dixon, 527 So. 2d 1274, 1278 (Ala. 1988) (quoting Goodson v.
Brothers, 111 Ala. 589, 595, 20 So. 443, 445 (1896)).  Plaintiff used the
parcel for purposes which were consistent with its condition as he found it.
He was not required to change nor necessarily improve the land, but was
merely required to perform acts of possession which were consistent with the
parcel's nature.  Plaintiff's acts, while not necessarily sufficient to
constitute possession of every piece of land, were sufficient to establish
his possession of this parcel of rural, agricultural land.
     Defendant argues that plaintiff also failed to establish a continuous
fifteen-year period of possession.  One basis of the argument is that
plaintiff failed to establish the exact date in 1971 on which the loading
ramp was constructed on the parcel.  This is significant because of
defendant's entry on the land in May 1986, which, defendant contends,
effectively interrupted plaintiff's possession.  This contention ignores the
fact that plaintiff's claim predates 1971.
     Another basis for the argument raised by defendant is that the acts of
possession were merely fragmentary and occasional.
         '[T]o constitute continuous possession of lands, the law
         does not require the occupant to be present on the site
         at all times.  The kind and frequency of the acts of
         occupancy necessary to constitute continuing possession
         is dependent on the nature and condition of the premises
         as well as the uses to which it is adapted.'

           There may be lapses of time between acts of
         possession.

Montgomery v. Branon, 129 Vt. 379, 386, 278 A.2d 744, 748 (1971) (quoting
Amey v. Hall, 123 Vt. 62, 67, 181 A.2d 69, 73 (1962)).
     The uses made of the parcel from 1965 until 1986 (FN3) consisted of cutting
firewood and Christmas trees, parking vehicles, staging the logging
operation, building the loading ramp, loading and unloading a tractor using
the ramp, storing slab wood, cutting brush, and posting "No Trespassing"
signs.  Further, plaintiff testified that although there were times when he
had not been on the parcel for as long as a month, he was never absent for
as long as a year.
     This Court has held that using property only at certain times of the
year for certain activities and not using it for the rest of the year can
constitute sufficiently continuous use for adverse possession.  Thibault v.
Vartuli, 143 Vt. 178, 181, 465 A.2d 248, 250 (1983) (using island only in
summer for recreational activities); Montgomery, 129 Vt. at 386, 278 A.2d  at
748 (using hunting camp only during season); Amey, 123 Vt. at 67-68, 181 A.2d  at 73 (using logging camp only during cutting times).  Although
plaintiff did not use the parcel constantly, he used it each year during
certain seasons in ways which were both consistent with the season and with
the nature of the parcel.  The uses, therefore, were more than fragmentary
and occasional, and were sufficiently continuous.  Thus, plaintiff
established a continuous period of use from 1965 until 1986, which is more
than sufficient to satisfy the statutory requirement of fifteen years.
     Defendant also contends that plaintiff's acts were not open and
notorious.  Acts of possession are deemed sufficiently open and notorious if
they are conducted in a manner which would put a person of ordinary prudence
on notice of the claim.  Waterman v. Moody, 92 Vt. 218, 238-239, 103 A. 325,
334 (1918).  As the parcel bordered on the road, anyone passing would have
been able to see plaintiff's activities.  Further, there was testimony from
a former town lister and from the Town Clerk, who had worked in the Town
Clerk's office since 1939, that they both knew that plaintiff claimed to own
the parcel.  There was no error in finding plaintiff's possession to be open
and notorious.
     Lastly, defendant argues that the plaintiff's acts were not hostile
because they "were beneficial to the Town."  Hostility, when used in the
context of adverse possession, does not require the presence of ill will
toward the actual owner nor destructiveness toward the land.  Grubb v.
State, 433 N.W.2d 915, 918 (Minn. Ct. App. 1988); Sinicropi v. Town of
Indian Lake, 148 A.D.2d 799, 800, 538 N.Y.S.2d 380, 381 (N.Y. App. Div.
1989); 7 R. Powell, The Law of Real Property ^ 1013[2][c], at 91-23 to 91-26
(1990).  Rather, what is required is that the adverse possessor intends to
claim the land and treat it as his own.  Lathrop v. Levarn, 83 Vt. 1, 4, 74 A. 331, 331-32 (1909).  The trial court properly found that plaintiff's
claim was hostile.
                                   III.
     Defendant argues that while the parcel was owned by the Town of
Waterville it was exempt from adverse possession claims by 12 V.S.A. { 462.
The statute reads:  "Nothing in this chapter [relating to the limitations of
actions] shall extend to lands given, granted, sequestered or appropriated
to a public, pious or charitable use, or to lands belonging to the state."
12 V.S.A. { 462.  While we have applied the statute in the past, we have yet
to face the issue presented by this case, namely, how to determine whether
property owned by a municipality is "given, granted, sequestered or
appropriated to a public . . . use."
     Defendant urges that the proper focus of such an inquiry is whether
the Town was acting in its "governmental capacity" or its "proprietary
capacity" when it acquired the property.  The significance of this
distinction, defendant contends, is that land which is acquired or held by a
municipality in its governmental capacity is within the meaning of the
statutory phrase "given . . . to a public . . . use."  We do not find this
argument persuasive.
     Other jurisdictions which have faced the question are split.  New
Hampshire, for example, in applying N.H. Rev. Stat. Ann. { 477:34 (1983),
which reads "[n]o person shall acquire by prescription a right to . . . any
public ground by . . . occupying it adversely for any length of time," has
held that "'mere retention of title, without more,'" is a public use for
lands owned by a municipality.  Kellison v. McIsaac, 131 N.H. 675, 681, 559 A.2d 834, 837 (1989) (quoting McInnis v. Town of Hampton, 112 N.H. 57, 60,
288 A.2d 691, 694 (1972)).  This, in essence, exempts all municipal lands
from adverse possession claims.  This standard, however, is in conflict with
our statute which only exempts lands given to a "public, pious, or
charitable use."  Our statute does not provide a blanket exemption for
municipally owned lands, which it easily could have, as evidenced by the
provision exempting state-owned land.  Therefore, we decline to follow New
Hampshire's example.
     We find the approach of the Supreme Court of Connecticut to be more in
accord with our statute.  In American Trading Real Estate Properties, Inc.
v. Town of Trumbull, 215 Conn. 68, 574 A.2d 796 (1990), the court held that
land which is owned by a municipality is presumed to be given to a public
use.  Id. at 80, 574 A.2d  at 802.  However, this presumption can be
rebutted by demonstrating that the town has abandoned any plans for the
land.  Id.  Evidence to be considered in determining this issue may include
the reason the property was acquired by the town, uses the town has made of
the property since acquisition, and whether the town has manifested an
intention to use the property in the future.
     This standard is a simple, balanced approach for determining which
municipal lands are given to a public use and thereby exempt from claims of
adverse possession.  It allows a municipality to be protected from adverse
protection claims on property which it is not using at present but may have
future plans for or on property which it has set aside as open space or to
be left in its natural state for the benefit of the community and the
environment.  It does not, however, clash with 12 V.S.A. { 462 by giving a
town a blanket exemption to adverse possession claims.  It provides only for
a presumption that the property is given to a public use which can be
rebutted by evidence to the contrary.
     In American Trading, the court reviewed an older Connecticut case which
found that a piece of property could be adversely possessed although it was
owned by a municipality because it was not given to a public use.  Id. at
81, 574 A.2d  at 802 (examining Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687 (1955)).  Goldman involved a claim of adverse possession against a piece
of property which a city had acquired by tax foreclosure.  Goldman, 142
Conn. at 400, 114 A.2d  at 689.  The city then did nothing with the property
for twenty-four years until it conveyed it to a private individual.  Id.
The American Trading court found that Goldman was in accord with the
rebuttable-presumption standard because the city acquired the property only
to protect its fisc from a delinquent taxpayer, because the city never used
the property for any reason, and because the city, by selling the property
to a private individual, manifested "no intention to develop the property,
then or later, for any public purpose whatsoever."  American Trading, 215
Conn. at 81, 574 A.2d  at 802.
     The facts of the case at hand are very similar to those of Goldman.
The Town of Waterville acquired the parcel in 1935 as settlement for the
support it had provided for the owner.  The Town then did nothing with the
parcel for fifty-one years.  Finally, in 1986, the Town conveyed the
property to defendant by quitclaim deed.
     Based on these facts, we find that plaintiff has carried his burden of
rebutting the presumption that the parcel, while owned by the Town of
Waterville, was given to a public use.  The Town acquired the parcel as
settlement of a debt, the parcel was not used by the public while the Town
had title, and by conveying the parcel to defendant, a private individual,
the Town manifested that it had no intention of ever using the parcel for a
public use.  Therefore, the trial court properly concluded that the parcel
was not given to a public use and that it was not exempt from claims of
adverse possession by 12 V.S.A. { 462.
     Affirmed.
                                        FOR THE COURT:


                                        Chief Justice




FN1.    The welfare laws in effect in 1932 read, in part:
	Sec. 4215. Duties of towns.  A town shall relieve and
	support poor and indigent persons residing or found
	therein, when they are in need thereof, as provided in
	this chapter.
	. . .
	Sec. 4224. Recovery from estate of pauper.  Upon the
	death of a property owner who has been assisted by a
	town under the provisions of this chapter, such town may
	recover against his estate the amount it has expended
	for such assistance, in an action of contract, on this
	statute, in the name of such town.
	Gen. Laws of 1917, {{ 4215, 4224 (most recent version
	of { 4215 was 33 V.S.A. { 702 (repealed by 1967, No. 147
	(Bien. Sess.), { 53(b)) and most recent version of {
	4224 was 33 V.S.A. { 991 (repealed by 1977, No. 147
	(Adj. Sess.), { 1)).

FN2.    The pertinent findings read:
	17.  Between the years 1951 and 1961, Plaintiff tapped
	several maple trees on the disputed parcel in connection
	with his sugaring operation.  The tapping of the maple
	trees was visible to the public in the early spring of
	each of those years.
	19.  In the late 1940s, Plaintiff planted twenty-five
	to thirty trees on the disputed parcel.
	20. From the mid 1950s until 1972, Plaintiff used the
	disputed parcel to cut Christmas trees and firewood, to
	load logs, to drive his tractor on and off, and to park
	his vehicles.  He also constructed a loading ramp on the
	parcel.
	21.  Plaintiff utilized the premises each and every year
	from the mid 1950s to 1972 for one of the uses noted
	above.  [T]he Plaintiff's use of the parcel was visible
	to the public.
	22.  In 1972 and 1973, the disputed parcel was used as a
	staging area for a logging operation.  This logging
	operation was not conducted personally by Plaintiff but
	was undertaken by a person hired by Plaintiff.
	23.  From 1974 through 1982, Plaintiff cut firewood from
	the logs left on the land by the men conducting the
	logging operation, parked his vehicles on the disputed
	parcel, used the loading ramp for loading and unloading
	his tractor while working in the woods and continued to
	act and consider the disputed parcel to be his own.
	30.  At all times during the period from 1947 to 1986,
	Plaintiff was the exclusive person to utilize the
	disputed parcel.  Plaintiff used the disputed parcel
	consistent with a rural and agricultural purpose, which
	was seasonal in nature.

FN3.    We do not address the period predating 1965 because the correction
of findings 20 and 21 present a period from the Spring of 1961 until 1965
for which there are no findings.  Because there is a sufficient period after
this in which plaintiff could establish title, we do not address the
significance or lack of significance of this period.