Lysak v. Grull
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Lysak v. Grull (2001-137); 174 Vt. 523; 812 A.2d 840
[Filed 21-Aug-2002]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2001-137
MARCH TERM, 2002
Albert M. Lysak } APPEALED FROM:
}
}
v. } Rutland Superior Court
}
Richard and Jeanne Grull }
} DOCKET NOS. S0104-98 & 348-98RcC
Trial Judge: Richard W. Norton
In the above-entitled cause, the Clerk will enter:
This appeal arises out of the consolidation of two separate petitions
filed in the Probate Court for the District of Fair Haven, pursuant to 14
V.S.A. § 1801, seeking a determination of whether the Estate of Priscilla
Watson, the record owner of a parcel of land on Lake Hortonia in Sudbury,
Vermont, possessed an existing enforceable interest on the property, and
claiming that the separate petitioners had each established adverse
possession on a portion of the parcel. On appeal from the probate court
decision, the Rutland Superior Court found for the petitioners. We affirm.
The dispute in this case concerns three parcels of contiguous land,
all owned at one time by James D. Watson and Priscilla Watson, which were
bordered on the north by Vermont Route 144 and on the south by Lake
Hortonia. In 1966, Priscilla Watson, then a widow, conveyed to one party a
parcel on the western portion of the property. In 1971, she conveyed to
another party a parcel on the eastern portion of the property. Between the
two conveyed parcels lay a third parcel - the disputed parcel in this case.
The disputed center parcel, roughly 46 by 150 feet, was never conveyed by
Ms. Watson, likely because of a 1968 surveying error which left her unaware
that such a parcel existed.
In time, both the eastern and western parcels were conveyed to Edgar
and Marjorie Preseau. In 1982, the Preseaus conveyed the eastern parcel to
petitioners Albert and Margaret Lysak and the western parcel to John Welch,
who conveyed the property to petitioners Frederick Everson and Genevieve
Zacek. Both the Lysaks and Everson and Zacek used the disputed center lot
as an extension of their respective properties. In 1990, the neighbors
agreed on a boundary line and erected a post and rail fence running
diagonally from Route 144 to Lake Hortonia, cutting the disputed lot
roughly in half.
In 1987, Richard and Jeanne Grull purchased a house on property across
Route 144 from the disputed lot. At the time of the purchase, the Grulls
learned from the Welches - the previous owners of the eastern parcel -
about the center parcel. In June 1997, the Grulls, under the impression
that the Preseaus owned the disputed lot, contacted the Preseaus and
obtained a quitclaim deed from them.
In 1997, Everson, Zacek, and the Lysaks became aware of the Grulls'
claim of ownership on the disputed parcel. In November 1997, they filed
separate 14 V.S.A. § 1801 petitions, which were consolidated in the Probate
Court for the District of Fair Haven, claiming that (1) the disputed parcel
had never been conveyed by Priscilla Watson; (2) no probate proceedings for
the Estate of Priscilla Watson had ever been commenced in that county; (3)
the heirs of Priscilla Watson were not known; and (4) the petitioners had
individually been in open, notorious, hostile, and continuous possession of
roughly one-half of the disputed lot for fifteen years - the Lysaks
possessing the portion east of the fence and Everson and Zacek possessing
the portion west of the fence.
The Grulls, respondents here, became a party to the consolidated
action in the probate court, challenging the petition and claiming
ownership of the parcel. In January 1998, respondents, through their
attorney, contacted James Watson, the grandson of Priscilla Watson, who
executed a special quitclaim deed, conveying his interest in the disputed
lot to respondents.
The probate court, in a June 1998 order, declared respondents'
quitclaim deed void and found that petitioners had established adverse
possession of each portion of the disputed lot. Respondents appealed to
the Rutland Superior Court. The superior court consolidated this appeal
with a case petitioners had filed in the superior court, following the
probate court decision, seeking an injunction to keep respondents off the
land. The superior court, in a February 2001 order, found that neither
conveyance to respondents had legal effect, and therefore, record title to
the disputed parcel still stood in the name of Priscilla Watson, subject to
petitioners' adverse possession claims. The court further found that both
petitioners had established open, notorious, hostile, and continuous
possession of each portion of the disputed parcel; directed the probate
court to appoint an administrator of the Estate of Priscilla Watson; and
ordered that the administrator convey the record title to petitioners.
Respondents appealed.
On appeal, respondents argue that (1) the deed executed by James
Watson to respondents conveyed his interest and legal title to the property
and prevents the probate court from resolving title to the property under
14 V.S.A. § 1801; and (2) petitioners failed to establish open, notorious,
hostile, and continuous possession for the full statutory period of fifteen
years.
Respondents argue that the deed executed by James Watson, the heir of
Priscilla Watson, conveying his interest in the disputed lot to
respondents, effectively conveyed legal title to respondents. Legal title
to real property vests immediately at death in the heirs, subject only to
liens and legally enforceable debts of the estate. In Re Estate of Bettis,
133 Vt. 310, 313, 340 A.2d 57, 59 (1975). At the time of death, the heir
has a possibility coupled with a vested interest, a property right which
the heir can sell or assign. In Re Callahan's Estate, 115 Vt. 128, 135, 52 A.2d 880, 884 (1947). However, until such time as the estate is probated,
and the debts of the estate are settled, the heir cannot demand either
title to or possession of the property. Id.
By its enactment of 14 V.S.A. §§ 1801 and 1802, the Legislature has
granted the probate court the statutory power to determine a question of
title to real estate in "limited . . . special and specific factual
circumstances." In Re Estate of Allen, 129 Vt. 107, 110, 272 A.2d 130, 132
(1970). The probate court may exercise its jurisdiction when the title to
real estate is in the name of a person who has been deceased for at least
seven years, who has made no conveyance of such property during his
or her lifetime, and whose interest in such real estate has not been
administered in the probate court. Id.
Each of these circumstances is present in the instant case. Priscilla
Watson had been deceased for over seven years, she had never conveyed the
disputed lot during her lifetime, though no doubt by error, her estate had
never been probated in Probate Court for the District of Fair Haven, and at
the time the petition was filed no person claiming to be her heir had
attempted to or effectively conveyed their interest in the disputed
property. Therefore, the probate court had proper jurisdiction over the
disputed property pursuant to 14 V.S.A. § 1801.
Although respondents argue that the special quitclaim deed executed by
James Watson to the respondents in January 1998, several months after
petitioners had filed in probate court claiming adverse possession of the
disputed parcel, should defeat the jurisdiction of the probate court to
determine title to real estate in this matter, the jurisdiction of the
probate court continues if "the heirs of the deceased have made no
conveyance of their interest in the real estate, or if made, such
conveyances are defective." Estate of Allen, 129 Vt. at 110, 272 A.2d at
132 (emphasis added). In upholding the determination of the probate court,
the superior court concluded the quitclaim deed from James Watson to the
respondents "was a defective conveyance and of no legal effect," noting
that there was no evidence that the land in question was ever conveyed by
Priscilla Watson to any other person nor was there ever any conveyance from
a duly appointed personal representative of the Watson estate since it was
never submitted to probate. Thus, having found the necessary facts
specified in the statute to confer jurisdiction upon it, the probate court,
in determination of whether there exists an enforceable title in a deceased
person, her estate, or in her heirs, could find - as we have previously
recognized - it necessary and proper to address the matter of adverse
possession. Id. at 112, 272 A.2d at 133.
Respondents' claim that petitioners have not established open,
notorious, hostile, and continuous possession of the individual parcels for
the full statutory period of fifteen years is without merit. We review an
adverse possession claim as a mixed question of law and fact. N.A.S.
Holdings, Inc. v. Pafundi, 169 Vt. 437, 438, 736 A.2d 780, 782 (1999). We
review questions of law de novo. Id. at 438-39, 736 A.2d at 782. When
reviewing factual findings, however, we take them in the light most
favorable to the party prevailing below, disregarding any modifying
evidence. Id. at 438, 736 A.2d at 782. We will not set aside the findings
unless they are clearly erroneous; hence, findings supported by any
credible evidence will stand. Id.; V.R.C.P. 52(a).
In order to earn title to property by adverse possession, each of the
petitioners must establish open, notorious, hostile, and continuous
possession of the property through the statutory period of fifteen years.
Lawrence v. Pelletier, 154 Vt. 29, 33, 572 A.2d 936, 939 (1990); 12 V.S.A.
§ 501. The burden of proving adverse possession is on the parties claiming
it. Bemis v. Lamb, 135 Vt. 618, 621, 383 A.2d 614, 617 (1978).
Respondents' challenge to petitioners' adverse possession claims are
essentially that each owner must establish the elements of adverse
possession individually on each portion of the disputed lot that they claim
to possess, that neither Everson and Zacek nor the Lysaks established
possession for the full statutory period, and that the Lysaks' activities
may never have amounted to open, notorious, or hostile possession.
Petitioners, acting no differently than any record title owners,
individually established open, notorious, hostile, and continuous
possession of each side of the disputed lot: Everson and Zacek mowed and
removed snow from the western half
of the disputed lot; the Welches, before Everson and Zacek, had also mowed
the property, and had installed a fence, a driveway, trees, swings, a
concrete slab, a garden, and an outdoor fireplace for grilling.
Simultaneously, the Lysaks mowed and cared for the eastern portion of the
disputed lot since taking possession, and the Preseaus, before the Lysaks,
had installed a septic tank on their lot, using a portion of the disputed
lot as a leachfield.
Moreover, both parties have established the required continuous
possession period of fifteen years through the doctrine of tacking, where a
party claiming adverse possession may add his period of possession to the
possession of the previous owner in order to meet the statutory period.
See Deyrup v. Schmitt, 132 Vt. 423, 425, 321 A.2d 42, 44 (1974) (tacking
permits an adverse possessor "to add his period of possession to that of a
prior adverse possessor"). The Lysaks, by tacking possession of the
Preseaus, have established open, notorious, hostile, and continuous use,
starting as early as 1978, with the use of the eastern portion of the
disputed lot as a leachfield, and latest in the summer of 1982, when they
took possession, with mowing and caring for the property. Everson and
Zacek, by tacking possession of the Welches, established adverse use of the
western portion of the disputed lot in 1982, starting with mowing and
eventually paving, and installing hammocks, swings, and other yard
accessories. Respondents argue that the building of the fence in 1990 was
the first adverse use; however, the fence was merely a memorial of the
boundaries of the disputed lot that the Lysaks had established much earlier
with the Welches, and later with Everson and Zacek. See generally Richard
R. Powell & Michael Allan Wolf, 16 Powell on Real Property § 91.09[3] at
91-63 (2000) (fencing may be an indication of ongoing physical control
necessary for adverse possession) (emphasis added).
Finally, respondents argue that petitioners' possession came no
earlier than the late summer and early fall of 1982, and thus the use did
not occur for the statutorily required period because the respondents had
filed an initial 14 V.S.A. § 1801 petition in the probate court on August
5, 1997. This argument fails to account for respondents' later withdrawal
of this petition, and petitioners' later filing of the petitions at issue
in this appeal, in November of that same year. Accordingly, all actions
which took place in the summer of 1982 meet the fifteen year statutory
period.
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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