N.A.S Holdings, Inc. v. Pafundi

Annotate this Case

N.A.S. Holdings, Inc. v. Pafundi (98-044); 169 Vt. 437; 736 A.2d 780

[Opinion Filed 02-Jul-1999]
[Motion for Reargument Denied 02-Aug-1999]

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, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 98-044

N.A.S. Holdings, Inc. Supreme Court

On Appeal from
v. Rutland Superior Court

Connie Pafundi January Term, 1999

Alden T. Bryan, J.

Craig Weatherly of Gravel and Shea, Burlington, and Rosemary A. Macero
of Callahan and Macero, Boston, Massachusetts, for Plaintiff-Appellee.

Allan R. Keyes of Ryan Smith & Carbine, Ltd., and John E. McCamley of
Medor & McCamley P.C., Rutland, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

JOHNSON, J. This is a case in which the unusual and complicated facts
involved can easily draw attention away from the relatively simple legal
issues that are the key to resolving the underlying conflict. The dispute
arises out of competing claims to ownership of a slate quarry located in
West Pawlet, Vermont. Appellant Connie Pafundi challenges a ruling of the
superior court holding that she had established, through adverse
possession, title to the floor of this quarry but not to its walls.
Appellee N.A.S. Holdings, Inc. (N.A.S.), which holds record title to almost
the entire property, challenges the trial court's conclusion that appellant
had

established adverse possession of the quarry floor, and vigorously opposes
appellant's argument that she has established adverse possession of the
entire quarry. We affirm in part and reverse in part.

Adverse possession is a mixed question of law and fact. See
Montgomery v. Branon, 125 Vt. 362, 365, 216 A.2d 41, 43 (1965). When
reviewing the factual findings of a trial court, we view them in the light
most favorable to the prevailing party below, disregarding the effect of
modifying evidence, and we will not set aside the findings unless they are
clearly erroneous. See 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. See Harlow v. Miller,
147 Vt. 480, 481-82, 520 A.2d 995, 997 (1986). Review of conclusions of
law, however, is nondeferential and plenary. See State v. Pollander, 167
Vt. 301, 304, 706 A.2d 1359, 1360 (1997) (questions of law reviewed de
novo); State v. Madison, 163 Vt. 360, 371, 658 A.2d 536, 543 (1995)
("review de novo" commonly used to describe nondeferential on-the-record
standard of review that appellate courts apply to lower court
determinations regarding questions of law or mixed questions of law and
fact).

The quarry over which the parties are asserting ownership has a
vertical wall on the east, approximately one hundred feet in height, and a
slant wall on the west. The east wall holds black slate while the west
wall holds green. The quarry is roughly bounded on three sides by two
lines of dumped slate on the surface beyond the terminus of the east and
west walls and by a rock divider to the south. To the north lies the
so-called "Jones Quarry," purchased by

appellant's father-in-law, Ted Pafundi, from their neighbor, Marguerite
Scott, in 1971.(FN1)

In 1972, Ted Pafundi acquired additional property from Marguerite
Scott, what was then referred to as the "Scott Quarry" and later as the
"Pafundi Quarry," which is the parcel contested in this case. The deed
vaguely described the eastern boundary of the acquired property as "the
westerly boundary of the lands of Rising & Nelson" (the neighboring
property owners at the time). The trial court found that "[w]hen Rising &
Nelson owned what is now the N.A.S. property, no one in that firm knew the
location of their west boundary." Ted Pafundi began quarrying operations
in this quarry in 1972, primarily extracting green slate from the slant
wall on the west side of the quarry.

N.A.S. acquired the property from Rising & Nelson in 1992. Though no
one at Rising & Nelson knew the location of their western boundary and no
one from the firm had ever enforced a boundary at the quarry, the survey
conducted by N.A.S. upon their acquisition of the land revealed that
virtually the entire quarry was within Rising & Nelson lands and that Ted
Pafundi had in actuality purchased only a small strip of land to the west
side of the quarry.

The current conflict arose when N.A.S. attempted to begin operations
in the quarry in 1992, and appellant blocked access to the quarry. N.A.S.
filed suit seeking to establish its superior title to the quarry.
Appellant conceded the issue of record title, but maintained she had
achieved title to the quarry through adverse possession. The trial court
concluded that the Pafundis' use of the east and west walls of the quarry
was of insufficient duration to establish adverse possession of the walls,
though they did establish adverse possession of the quarry floor as it was
the base of operations for the quarrying activity that took place.

To achieve title through adverse possession, a claimant must
demonstrate that possession of the land was open, notorious, hostile and
continuous throughout the statutory period of fifteen years. See Higgins
v. Ringwig, 128 Vt. 534, 538, 267 A.2d 654, 656 (1970); 12 V.S.A. § 501.
While the trial court concluded that the Pafundis' possession of the quarry
was clearly open, notorious, and hostile, the evidence was less conclusive
concerning the location and continuity of the possessory acts. The court
determined that while Ted Pafundi worked the west wall of the quarry more
or less continuously from 1972 until his death in 1979, and his son, Gary
Pafundi, had worked the east wall of the quarry more or less continuously
from 1979 until his death in 1989, neither of the walls of the quarry had
been used continuously for the fifteen-year statutory time period.
Nonetheless, because the floor of the quarry was the base of operations for
both Ted and Gary Pafundi between 1972 and 1989, they had successfully
established adverse possession of the quarry floor. Disconcerted by this
awkward result, the trial court invited further briefing by the parties.

Appellant argued in a post-trial motion that her claim based on actual
use and possession of the quarry should succeed because the evidence
showed that moving from wall to wall was consistent with the manner in
which the quarry would be used by an average owner and with the nature of
the property. See Darling v. Ennis, 138 Vt. 311, 313-14, 415 A.2d 228, 230
(1980) ("Continuity of use is merely such as an average owner would make
of the property, taking into account its nature and condition.").
Appellant further argued that the quarry was clearly bounded and must be
thought of as a single physical and economic unit, and that it was
therefore illogical to grant title only to the quarry floor.

In its final judgment order, the trial court concluded that, because
the pits themselves are not clearly bounded, and because the quarry could
theoretically be operated by multiple persons

at once, one can not necessarily conclude "that to establish ownership in
the base of the quarry is to own the sides." This appeal followed.

II.

A claim of adverse possession that proceeds under bare claim of right
extends only to that property which the claimant has actually occupied.
See Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152,
156, 559 A.2d 1068, 1070 (1989). A claimant may also, however, seek to
prove ownership through constructive possession, the doctrine under which
a claimant achieves possession of an entire plot of land through actual
occupation of a part. See id. The trial court erred in failing to apply
the doctrine of constructive possession to this case, instead proceeding
directly to analyzing the Pafundis' use of the various parts of the
contested property without first explicitly categorizing it as an actual
possession or constructive possession claim.(FN2) This was error because
such categorization is a threshold inquiry necessary to the assessment of
the claimant's possessory acts.

Vermont has long recognized two methods of achieving constructive
possession: (1) when

the claimant is operating under color of title(FN3) and (2) when the land
is marked by clear and definite boundaries. See id. (where there is
neither color of title nor definite boundary marks on the land, adverse
possession extends only as far as claimant has actually occupied and
possessed land); Thurston v. Batchellor, 100 Vt. 334, 341, 137 A. 199,
202, (1927) (marking claim to land with fence has same effect as
proceeding under color of title; that is, it "extends acts of possession
on any part of the land to the boundary so marked"); Lang v. Clark, 85 Vt.
222, 233, 81 A. 625, 630 (1911) ("[A]ctual possession of a part of a lot
may give constructive possession of the whole lot if it has boundaries
sufficiently well indicated by whomsoever those boundaries may have been
erected or indicated upon the land."); Rice v. Chase, 74 Vt. 362, 366, 52 A. 967, 968 (1902) (for actual occupation of part to establish
constructive possession of whole, claimant must act under claim to whole
either because the boundaries are clearly marked or because the claimant
operates under color of title).

The trial court did not respond to the case law (cited by appellant in
her post-judgment motion) holding that possession of a part established
possession of the whole when a claimant proceeded under color of title or
when there were clear boundaries on the claimed property. Instead, the
trial court focused on the morass of factual issues concerning which
portions of the quarry the Pafundis consistently worked and whether the
quarry must be thought of - on an abstract level - as a single physical
and economic unit. This analysis is ultimately the same analysis
necessary under a constructive possession framework, however, the trial
court did not make use of the related case law to give the analysis its
proper legal effect. As a result, the trial

court did not apply the doctrine to the facts presented to draw a
conclusion concerning whether the subject property possessed sufficiently
clear boundaries.

Nonetheless, the trial court did make findings to the effect that the
quarry was a distinct and recognizable parcel:

The configuration of the quarry is quite clear once one visits the
site. The east butt is a nearly vertical wall over 100 feet high.
There are slate dumps from many years ago along the ridge to the
east. The west slant is a sharp, perhaps 45 degree or more in
places, slope to the west. It too is topped with slate dumps from
years past.

Furthermore, in the judgment order, the trial court acknowledged that
Connie Pafundi had record title from the slate dumps on the west side to
the survey line, located somewhere down the slant face on the west side of
the quarry. This shows both that the western-most boundary is not in
dispute, as appellant has record title to it, and that the slate dumps are
an acknowledged and clear surface demarcation of the quarry boundaries.

III.

In light of this discussion, the issues on appeal can now be addressed
succinctly. First, the trial court's holding concerning the quarry floor
is affirmed. The appellant prevailed on this issue below, therefore the
evidence is viewed in the light most favorable to her. See Brown, 150 Vt.
at 109, 550 A.2d at 3. The findings of the trial court were supported by
credible evidence, and there was no misapplication of law.

In arguing that the trial court erred by concluding that appellant had
achieved adverse possession of the quarry floor, appellee argues that (1)
the Pafundis did not use the quarry floor continuously and (2) appellant
did not present evidence of how an average quarry operator would have used
the contested land. On the second point, appellee cites no law requiring
claimants to

present evidence specifically directed to the issue of average use.
Rather, "average use" is a standard that has developed in the case law and
that is to be used by the trial court in assessing a claimant's possessory
acts. The testimony at trial of individuals involved in the quarry
business provided a sufficient evidentiary basis for the court to draw
conclusions as to average use.

Additionally, appellee fails to show that the trial court lacked
credible evidence to support its finding that the use of the quarry floor
was continuous. The kind and frequency of acts of occupancy depend on the
condition of the property, the uses to which it is adapted, and the
intentions of the claimant. See Barrel v. Renehan, 114 Vt. 23, 29, 39 A.2d 330, 333 (1944); Stephenson v. Wilson, 6 N.W. 240, 241 (Wisc. 1880)
(mining operations need only be "constant and continuous as the nature of
the business and customs of the country would permit or allow"). It is
well established that there may be lapses of time between acts of
possession. See Montgomery, 125 Vt. at 365, 216 A.2d at 43. Whether the
amount of time between acts of occupancy interrupts the running of the
period depends on circumstances and intention of occupier. See Barrel,
114 Vt. at 29, 39 A.2d 333.

In this case, it is hard to imagine how the Pafundis would have acted
any differently toward the land had they held record title to it. See,
e.g., A. Charles Bussen Trust v. Kertz, 723 S.W.2d 922, 929 (Mo. Ct. App.
1987) (fact that claimant engaged in quarrying activities in the disputed
area and engaged in continuous preparation of the land for excavation
"showed [the claimant] occupied the disputed area as his own"). The
evidence shows that Ted Pafundi began working in the quarry shortly after
purchasing it. (FN4) Though his son Gary also pursued

other lines of work, he assisted his father in the quarry over the years,
and transitioned to operating the quarry after his father's death. The
periods of time when operations slowed or stopped are consistent with the
exigencies of a family-run business. It is clear the Pafundis intended to
continue working there. A claimant's use of the land need not be optimal.
See Jarvis v. Gillespie, 155 Vt. 633, 639, 587 A.2d 981, 985 (1991)
("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 Pafundis planted their flag on the land and left
it unfurled, not always working the land to its maximum capacity, but
certainly never retreating in their claim to it. See Barrel, 114 Vt. at
29, 39 A.2d at 333 (claimant must "unfurl his flag on the land and keep it
flying" to give the owner notice of occupancy). There was continuous
notice of occupancy. The fact that this went unnoticed by Rising & Nelson
was due to the fact that it was entirely absent from the land and unaware
of its boundaries. There is sufficient credible evidence to uphold the
trial court's ruling as to the quarry floor.

Second, the trial court's holding concerning the remainder of the
quarry is reversed. The appellee prevailed on this issue below, therefore
the evidence is viewed in the light most favorable to N.A.S. Nonetheless,
the trial court misapplied Vermont law to the facts of this case. The
trial court should have assessed the evidence in light of the fact that
this was a clearly bounded piece of property, instead of first assessing
actual use, and only then considering on an abstract level whether the
parcel was "a single physical and economic unit."

The trial court essentially subsumed the question of the physical
nature of the property

into the question of average use (i.e., would the average owner use
different walls at different times; could more than one operator
theoretically work the quarry), rather than treating it as an issue of
notice, which is the true concern of the constructive possession doctrine.
The question is whether the holder of record title would understand the
extent of the property claimed by the claimant's "unfurled flag."

Here, the findings of the trial court indicate that the boundaries on
the surface of the land were definite, and these findings should have been
given their proper legal effect. The court observed that "the
configuration of the quarry is quite clear" and recognized the slate dumps
as obvious features on both the eastern and western sides of the quarry.
The slate dumps on the western side of the quarry establish one of the
boundaries of the parcel which Ted Pafundi did, in fact, purchase. The
trial court made no finding that Rising & Nelson ever transgressed the
slate-dump boundaries.

While the trial court did examine the issue of whether the quarry was
a "single physical and economic unit," it conducted this inquiry without
reference to the relevant case law. Furthermore, it answered this
question by considering whether more than one operator could theoretically
work the quarry. The relevant legal issue, however, is the objective
physical characteristics of the property, that is: Would it appear as a
bounded parcel so that a person observing occupation of some part of it
would be on notice as to the extent of the claim?

If there are clear boundaries on the claimed property, actual
possession of a part results in constructive possession of the whole. See
Community Feed Store, 151 Vt. at 156, 559 A.2d at 1070; Lang v. Clark, 85
Vt. at 233, 81 A. at 630. Here, the trial court made findings of fact
indicating that the property was clearly bounded. Therefore, the
conclusion that appellant had established adverse possession of the quarry
floor necessarily leads to the conclusion that she

established adverse possession of the entire quarry.

Some question remains as to the exact location of these boundaries for
purposes of describing with precision what land has been possessed by
appellant. This is an issue properly dealt with by the trial court, and
therefore we remand it. Appellee N.A.S. argues that the lack of such
specificity defeats appellant's claim altogether.(FN5) Mere lack of
specificity in boundaries, however, does not defeat a constructive
possession claim. In another constructive possession case, this one under
color of title, we held that where a record title owner was confronted
with uncontroverted evidence of occupation,

the burden was on the [owners] to show any competing evidence of
possession or intrusion affecting the land claimed by [claimants]. .
. . [Owners] rested their case simply on their record title and the
fact that the boundary lines of [claimants'] parcel were not readily
deducible from the deed. This is insufficient to establish ouster as
a matter of law. . . . [T]he issue of adverse possession has been
settled . . . [and t]he only matter for determination is the fixation of
the boundary lines of the lot to which the [claimants] are entitled.

Montgomery v. Branon, 127 Vt. 83, 89-90, 238 A.2d 650, 654-55 (1968). In
this case, the

statutory period passed entirely under Rising & Nelson's watch. Rising &
Nelson never transgressed the slate dump boundary or sought to enforce any
other boundary in the area. No one contested the Pafundis' use of the
quarry until 1992, when the neighboring property changed hands.

"[C]ontinued satisfaction and compliance with a boundary marked on the
ground is persuasive evidence which supports its selection as the correct
division." Amey v. Hall, 123 Vt. 62, 67, 181 A.2d 69, 72 (1962). A line
established by acquiescence for the statutory period of fifteen years
prevails over the line established by a later survey. See id. at 68, 181 A.2d at 73. Here, Rising & Nelson recognized the boundaries by default.
Rising & Nelson's complete absence from the contested area implies
acquiescence to whatever boundary line the Pafundis observed. This is the
principle underlying the doctrine of adverse possession: That a landowner
so inattentive as to permit occupation of its land for fifteen years must
accept the subsequent loss of title. The limited factual issue to be
determined by the trial court on remand is the precise location of the
boundary lines based on the obvious physical characteristics of the
property.

Finally, appellee asserts two evidentiary errors; both rulings are
affirmed. The trial court has broad discretion in issuing an evidentiary
ruling, and we review such rulings only for abuse of discretion. See
Haynes v. Golub Corp., 166 Vt. 228, 236, 692 A.2d 377, 382 (1997).
Appellee contends that the trial court erred in refusing to admit evidence
of appellee's damages from the allegedly wrongful injunction. V.R.C.P.
65. Appellee alleges that the injunction was wrongfully granted because
appellant had no record title to the quarry and had never conducted a
survey to determine the true boundaries of the land. This argument
misapprehends the very nature of an adverse possession claim, which may be
based on a claim of title, but which ultimately seeks to triumph over
record title through bare possession. Upon request for an

injunction, the court was faced with some form of occupation of the quarry
by the Pafundis for the period between 1972 and 1989, and Rising &
Nelson's complete absence from the land during that period. Given these
facts, it was not error for the trial court to deny appellee's request to
admit evidence of damages allegedly flowing from a wrongful injunction.
Appellee also contends that the trial court erred by admitting evidence
that appellant failed to produce prior to trial. V.R.C.P. 26. Appellee
has not demonstrated nor made any argument that it was prejudiced by the
ruling. See Gilman v. Towmotor Corp., 160 Vt. 116, 122, 621 A.2d 1260,
1263 (1992) (trial court's decision to admit or exclude evidence will not
be reversed absent abuse of discretion resulting in prejudice). Appellee
has failed to show that the trial court abused or withheld its discretion.

Appellant established, on the basis of facts found by the trial court,
constructive possession of the entire quarry for the statutory time period
of fifteen years.

Affirmed as to the question of adverse possession of the quarry floor,
and reversed and remanded for further proceedings not inconsistent with
this opinion and for establishment of the exact boundaries of the
property.

FOR THE COURT:

_______________________________________
Associate Justice

-------------------------------------------------------------------------------
Footnotes

FN1. The two quarries were formerly separated by a rock divider but this
was removed by the Pafundis in the late 1970s, creating one continuous
pit.

FN2. Appellant exacerbated the problem by referring to her claim as one of
actual possession, when her argument was based on the theory of
constructive possession, a fact recognized by appellee in its brief, where
it refutes the constructive possession argument. (Appellant subsequently
argues in her reply brief that she could succeed under either an actual or
constructive possession theory.) The theory was forwarded, if
unforcefully, by appellant and was clearly in the case. Appellant cited
Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068 (1989), in her post-trial motion for the proposition that actual
possession of a part can establish constructive possession of the whole
only where the claimant proceeds under color of title or where the lot is
marked by clearly defined boundaries. Appellant pointed out that the
quarry had "very definite boundaries marking the limit of possession on the
eastern side," namely, "a line of slate dumps [lying] atop the butt along
the eastern side of the quarry creating a vertical wall running the entire
north/south length of the western side of [Rising & Nelson's] land."
Referring to the clear boundaries around the quarry to argue that there was
"actual possession" of the entire quarry is - despite appellant's
insistence on referring to it as a claim based on "actual possession" -
the essence of a constructive possession claim.

FN3. Claim of title, or "color of title," is present where "[a]ny fact,
extraneous to the act or mere will of the claimant . . . has the
appearance, on its face, of supporting [the claimant's] claim of a present
title to land, but which, for some defect, in reality falls short of
establishing it." Black's Law Dictionary 241 (5th ed. 1979).

FN4. Appellee argues that quarrying is an act of trespass, not possession.
This argument has no merit. See A. Charles Bussen Trust, 723 S.W.2d at
928-29 (quarrying activities in the disputed area are acts of occupancy
sufficient to establish adverse possession); Carrington v. McNeil, 396 N.Y.S.2d 286, 287-88 (N.Y. App. Div. 1977) (use of property as quarry and
for storage of quarrying equipment, along with at least partial fencing and
payment of taxes, are acts of occupancy sufficient to establish adverse
possession).

FN5. Appellee also argues that constructive possession can be achieved only
pursuant to a deed that clearly describes the property in terms of metes
and bounds measurements, a position that is in direct conflict with our
case law, which also recognizes constructive possession claims where a lot
has clearly marked boundaries. See Community Feed Store, 151 Vt. at 156,
559 A.2d at 1070.

Appellee additionally argues that the quarrying activity established
possession only of the stone already quarried, and that appellant can
therefore lay no claim to anything beyond the surface of the quarry as it
now exists. This proposition is only true, however, in cases where
mineral and surface rights have been severed from one another. See White
v. Miller, 139 N.Y.S. 660, 663 (N.Y. Sup. Ct. 1912) (where surface and
mineral rights have been severed, the mere opening and working of quarry
does not establish adverse possession to anything beyond the face of the
quarry, but "where there has been no severance between the title to the
surface and that to the minerals beneath, one entering upon the surface
and conducting mining operations thereon is in adverse possession both of
such surface and of the minerals"). There is no severance here.

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