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Issue  241  Article  382
Published:  12/1/2017

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Proof of Adverse Possession by Lappage
Chris Burti, Vice President and Senior Legal Counsel

Parker v. Desherbinin, COA17-377, filed on October 17, 2017

This is a case demonstrating the potentially disastrous result of closing on a purchase without resolving known title problems beforehand. The appeal results from denial of a directed verdict made at the close of the plaintiff's evidence, renewed at the close of all evidence and from a judgment entered in favor of the defendants as well as a subsequent order denying the plaintiff's motion for judgment notwithstanding the verdict, to amend the judgment and for a new trial. The parties to this case own adjoining tracts of real property in New Hanover County, adjacent to the Intracoastal Waterway. The plaintiff acquired his property, located on the north, from himself as trustee of a Trust by a general warranty deed dated December 21, 1983 and properly recorded on January 16, 1984.

The defendants acquired their property, a vacant lot, located on the south, by a warranty deed dated December 16, 2013 and properly recorded the next day. The defendants purchased their property intending to build a residence and, prior to their purchase, were made aware of a dispute that existed over the boundary line of the two properties by their seller. The defendants hired a surveyor to survey the property and prepare a plat. This survey (the "Glenn survey") fixed the boundary between the plaintiff's and the defendants' properties approximately 5 feet south of the line established in a recorded 1982 survey by surveyor George Losak (the "Losak survey"). The Glenn survey shows a chain link fence installed by the plaintiff to the north of the boundary line between the parties' properties. The Glenn survey failed to reference the prior recorded Losak surveys or disclose any overlaps in the surveyed boundary lines.

Early in 2014, the plaintiff and the defendants met regarding the boundary line between their properties. The plaintiff informed the defendants of an existing issue regarding the location of the boundary line. The defendants' attorney closed on the property as shown in the Glenn survey, certified title and obtained title insurance.

The defendants filed for a building permit for the residence they intended to construct on the property and attached a copy of the Glenn survey to their application. The plaintiff unsuccessfully complained to the New Hanover County planning and zoning office and shared the recorded Losak survey with them, prior to the issuance of the defendants' building permit being issued. The defendants continued with their construction based on their belief that the Glenn survey showed the correct boundary. The plaintiff secured another survey from Charles Riggs (the "Riggs survey") during the construction of defendants' house.

The plaintiff filed an initial complaint on 23 June 2015 and after pleadings the case was tried in August of 2016. The parties agreed to waive trial by jury. The trial court found in favor of the defendants on all of the plaintiff's claims and entered judgment based upon the findings of fact cited by the Court of Appeals as follows:

7. The Plaintiff's and Defendants' properties adjoin each other with the Defendants' property lying adjacent to and to the north of Plaintiff's property.

8. A map of Edgewater Subdivision recorded in Map Book  2, at Page 113, is the original map of Edgewater Subdivision (herein "Edgewater Map") and created said subdivision.

9, Plaintiff's and Defendants' properties are portions of Lots 4 and Lot 5 as shown on the map of Edgewater Subdivision, as recorded in Map Book 2, at Page 113, of the New Hanover County Registry.

10. The Defendants engaged James B. Blanchard, PLS, a licensed registered land surveyor to perform a survey of the parties properties in February, 2016 to establish the dividing line between Lots 4 and 5 of Edgewater Subdivision as shown on Map Book 2, at Page 113, of the

New Hanover County Registry and then to establish the boundary-line between the property of the parties.

11. At the trial of this matter, Defendants presented the testimony of Mr. Blanchard who was tendered to and accepted by the Court without objection by Plaintiff as an expert witness in land surveying.

12. That none of the original monuments shown on the Edgewater Map could be located by Mr. Blanchard.

13. Mr. Blanchard established the dividing line between Lots 4 and 5 of Edgewater Subdivision as follows:

a. By determining the northern line of Edgewater Subdivision by determining the southern line of Avenel Subdivision, the adjoining property to the north of Edgewater, as shown on a map recorded in Map Book 31, at Page 36 (herein "Avenel Map") and a map recorded in Map Book 7, at Page 14, both in the New Hanover County Registry.

b. That concrete monuments evidencing the southern line of Avenel and the northern line of Edgewater are shown on the Avenel Map and were located by Mr. Blanchard.

c. Mr. Blanchard established a line southwardly and perpendicular to the northern line of Edgewater Subdivision and along the eastern right of way of Final Landing Lane, as shown on the Edgewater Map, for the distance shown on the Edgewater Subdivision Map required to reach the dividing line between Lots 4 and 5 all as shown on the Edgewater Map.

d. Mr. Blanchard located the northern line of the tract adjoining Edgewater Subdivision on the south, i.e. the southern line of Edgewater Subdivision, as shown on a map recorded in Map Book 11, at Page 17, of the New Hanover County Registry.

e. Mr. Blanchard found monuments confirming his determination of the southern line of Edgewater Subdivision as shown on the original Edgewater Map.

f. That the Edgewater Map showed a fence running the northern line of Edgewater Subdivision and that Mr. Blanchard, during the performance of his field work, located remnants of a wire fence running along the line which he determined to be the northern line of Edgewater.

14. The Defendants introduced a map by Mr. Blanchard dated July 9, 2016 (Defendants' Exhibit 21, herein the "Blanchard Map"), showing the findings of his survey and illustrating his testimony and opinions as to the location of the boundary-line between Lots 4 and 5 of Edgewater Subdivision, as well as the boundary-line between the Defendants' tract to the north described in Deed Book 5788, at Page 1866, of the New Hanover County Registry, and Plaintiff's tract to the south described in Deed Book 1243, at Page 769, of the New Hanover County Registry.

15. George Losak, registered land surveyor, prepared a map for "The William Lyon Company" dated December 30, 1982, recorded in February 10, 1983 and in Map Book 21, at Page 63, of the New Hanover County Registry (the "Losak Survey") showing or purporting to show the property later purchased by Plaintiff.

16. In August 1983, Mr. Losak prepared a second map of the property for "The Grace Pittman Trust" which was recorded on September 7, 1983 in Map Book 22, at Page 20, of the New Hanover County Registry. The purpose of this map was to correct errors contained in the Losak Survey.

17. Plaintiff's deed dated December 21, 1983 and recorded on January 16, 1984 referred to the Losak Survey, recorded in Map Book 21, at Page 63, of the New Hanover County Registry.

18. The Losak Survey referred to hereinabove depicts pipes and monuments which Mr. Losak ignored in determining the boundary-line between the subject properties.

19. The Court finds Mr. Blanchard's testimony to be credible and correct as to the location of the boundary-line between the Plaintiff's and Defendants' properties.

20. The true location of the boundary-line between Plaintiff's property and Defendants' property is shown on the Blanchard Map dated July 9, 2016 which describes the dividing line between the parties' properties as follows:

. . . .

21. Defendants purchased their property, also known as 1450 Edgewater Club Road, in December of 2013.

22. At the time the Defendants purchased their property the Plaintiff and Defendants' predecessor in title were engaged in a dispute with regard to the boundary-line between the parties' tracts.

. . . .

24. The Defendants hired Polaris Surveying, LLC and Marc Glenn, PLS to survey the property and prepare a boundary survey, a site plan, and topographical survey.

25. Marc Glenn determined the boundary-line to be as shown on his map recorded in Map Book 58, at Page 363, of the New Hanover County Registry, which is substantially where Mr. Blanchard locates the boundary line.

. . . .

30. After closing on their property the Defendants had a chance meeting with the Plaintiff on site on or about April or May of 2014 while they were meeting with a contractor during the design phase of their home.

31. During this chance meeting Plaintiff raised the boundary-line issue and told Defendants about the Losak Survey and the monuments Losak found, but he did not show any of the monuments to the Defendants nor did he point them out.

32. In October 2014, after hiring several surveyors and attempting to hire several other surveyors Plaintiff hired Charles Riggs to survey his property and to confirm the description contained on the Losak Surveys.

33. At the time Plaintiff hired Mr. Riggs the Defendants house was approximately forty percent (40%) complete.

34. Charles Riggs provided the Plaintiff with a survey reflecting his findings on January 30, 2015.

35. The Defendants first saw the Riggs Survey in 2015 when their house was approximately seventy percent (70%) complete.

36. The New Hanover County zoning ordinance requires a minimum side set back of fifteen feet (15') for structures built on Defendants' property.

37. In 1985, the Plaintiff constructed a fence along what he believed to be the northern-boundary line of his property and the southern boundary-line of Defendants' property. This area is hereto referred to [as] the "Disputed Area".

38. After 2005, Plaintiff would occasionally reach through the fence or lean over the fence to trim vines growing on the property to the north of the fence, the property now owned by Defendants.

39. The [D]isputed [A]rea could not be mowed because it was so overgrown. There was nothing visible to indicate anyone was in possession of or maintaining the Disputed Area.

The opinion reports that trial court also made the following relevant conclusions of law:

2. Plaintiff's and Defendants' chains of title and vesting deeds both establish that the dividing line between the property, i.e. their common boundary, is the dividing line between tracts 4 and 5 of Edgewater Subdivision as shown on the map of said subdivision recorded in Map Book 2, at Page 113, of the New Hanover County Registry or can only be determined by locating the line between Lots 4 and 5 of Edgewater Subdivision.

3. That the true boundary-line between Plaintiff and Defendants is as shown on the Blanchard Map referred to in the findings of fact and further more particularly described as follows:

. . . .

4. That the Defendants were not negligent in purchasing their property or in proceeding with the construction of their residence on their property.

5. That the construction and location of Defendants' home does not violate the fifteen foot (15') minimum side set back requirement of the New Hanover County zoning ordinance.

6. That the actions of the Defendants did not constitute a substantial interference with the Plaintiff's use of his property and were not unreasonable and therefore do not constitute a nuisance.

7. That Plaintiff's possession, if any, of any portion of the [D]isputed [A]rea was not open, notorious, or continuous and therefore [does] not constitute adverse possession either with or without color of title.

The Court of Appeals determined that several of the trial court's findings of fact were unsupported by competent evidence, and several of the court's conclusions of law were supported and improper in light of the relevant findings of facts and law.

The opinion states that no evidence supports the trial court's finding of fact 37 that the plaintiff constructed a fence along what he believed to be the northern-boundary line of his property. "The overwhelming, non-contradicted evidence indicates the plaintiff constructed a fence within the boundary of his property as purportedly established by the Losak survey." We omit this analysis as the conclusion of the Court of Appeals is amply supported by the recited facts. It might be well to look at the character of the evidence if contemplating litigation on this issue.

The determination by the Court of Appeals that the trial court's finding of fact 39 was "not supported by competent evidence, to the extent it expresses the Disputed Area 'could not be mowed because it was so overgrown. There was nothing visible to indicate anyone was in possession of or maintaining the Disputed Area'" is bit more troublesome. It appears that the finding of fact was clearly wrong as to the portion of the disputed land on the plaintiff's side of the fence, but we are not provided any statement of fact that the record may, or may not, have disclosed as to the portion on the defendant's side of the fence.

The Court of Appeals also determined that the trial court's conclusion of law 7 was clearly wrong as to the of the Disputed Area on the plaintiff's side of the chain link fence as "the plaintiff's installation of the chain link fence and his admitted maintenance of the area around and inside it since he established the fence in 1984 or 1985 shows his actual, open, notorious, exclusive and hostile use of property located on the south side of the chain link fence in the Disputed Area to support his claim for adverse possession under the requisite twenty year possession period. See Blue v. Brown, 178 N.C. 334, 337, 100 S.E. 518, 519 (1919) (holding a fence, maintained for many years, a hedgerow and possession for 30 or 40 years justified verdict for adverse possession); Brittain v. Correll, 77 N.C. App. 572, 575, 335 S.E.2d 513, 515 (1985) (holding a fence and other outbuildings showed claimants were asserting exclusive right over the disputed property); Snover v. Grabenstein, 106 N.C. App. 453, 459, 417 S.E.2d 284, 287 (1992) (holding that fence in place for more than fifty years such that the possession exercised by parties on either side of it was open, notorious and continuous so as to constitute adverse possession)."

The plaintiff argued that he was entitled to the entire Disputed Area on both sides of the fence through adverse possession under color of title. The defendants argued that this claim fails, as a matter of law, because the boundary line shown on the survey referenced in the plaintiff's deed was wrong.

The Court of Appeals cited the North Carolina Supreme Court holding that:

A deed offered as color of title is such only for the land designated and described in it. Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Barfield v. Hill, 163 N.C. 262, 79 S.E. 677. "A deed cannot be color of title to land in general, but must attach to some particular tract." Barker v. Southern Railway , 125 N.C. 596, 34 S.E. 701. To constitute color of title a deed must contain a description identifying the land or referring to something that will identify it with certainty. Carrow v. Davis, 248 N.C. 740, 105 S.E.2d 60; Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759.

. . . .

When a party introduces a deed in evidence which he intends to use as color of title, he must, in order to give legal efficacy to his possession, prove that the boundaries described in the deed cover the land in dispute. Smith v. Fite, 92 N.C. 319. He must not only offer the deed upon which he relies for color of title, he must by proof fit the description in the deed to the land it covers-in accordance with appropriate law relating to course and distance, and natural objects and other monuments called for in the deed. Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1, 89 S.E.2d 765; Skipper v. Yow, 238 N.C. 659, 78 S.E.2d 600; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Locklear v. Oxendine, supra; Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451.

McDaris v. "T" Corp., 265 N.C. 298, 300-01, 144 S.E.2d 59, 61 (1965) (emphasis supplied).

A plaintiff's burden at trial is also well established:

[I[n order to present a prima facie case [of adverse possession], [a plaintiff] must . . . show that the disputed tract lies within the boundaries of their property. See Cutts v. Casey, 271 N.C. 165, 167, 155 S.E.2d 519, 521 (1967); Batson v. Bell, 249 N.C. 718, 719, 107 S.E.2d 562, 563 (1959). Plaintiffs thus bear the burden of establishing the on-the-ground location of the boundary lines which they claim. Virginia Electric and Power Co. v. Tillett, 80 N.C. App. 383, 391, 343 S.E.2d 188, 194, disc. review denied, 317  N.C. 715, 347 S.E.2d 457 (1986). If they introduce deeds into evidence as proof of title, they must "locate the land by fitting the description in the deeds to the earth's surface." Andrews v. Bruton, 242 N.C. 93, 96, 86 S.E.2d 786, 788 (1955).

Chappell v. Donnelly, 113 N.C. App. 626, 629, 439 S.E.2d 802, 805 (1994).

Though the trial court found the Blanchard survey accurately shows the true boundary line between the plaintiff and the defendants' properties, the Court of Appeals determined that as the trial court made no findings regarding whether the plaintiff had shown the on-the-ground boundary lines described in his deed and depicted in the Losak survey referenced they reversed and remand this matter to the trial court to determine whether the deed and survey under which the plaintiff acquired title sufficiently describes the remaining portion of the Disputed Area.  

The way in which the Court of Appeals addressed the lappage issue raised in the case are bit more problematic.  The opinion states:

In a case of "lappage," a dispute between property owners where their respective titles purport to grant ownership to and over an overlapping area, the adverse claimant is not required to show actual possession of the entire area under lappage:

It is thoroughly established law that when a person having color of title to a particular tract of land, which the written instrument, that is color of title, describes by known and visible lines and boundaries, enters into and adversely holds a part of such tract under the authority ostensibly given him by such instrument asserting ownership of the whole, his ensuing possession is not limited to the portion of the tract as to which there has been an entry or actual possession, but is commensurate with the limits of the tract to which the instrument purports to give him title, that at the inception, and during the continuance of the possession, there has been no adverse possession of the tract in whole or in part by another: and in this State such possession, if exclusive, open, continuous and adverse for seven consecutive years, the title being out of the State, will ripen into an unimpeachable title to the whole, provided there has been and is no adverse possession of the tract in whole or in part during such seven consecutive years by another.

Wachovia Bank & Tr. Co. v. Miller, 243 N.C. 1, 6, 89 S.E.2d 765, 769 (1955) (emphasis supplied)(citations omitted).

If on remand, the trial court determines the plaintiff's metes-and-bounds deed description and incorporated reference to the Losak survey contained in the  plaintiff's deed can be located upon the ground and is sufficient to establish Defendant possessed color of title to the remaining Disputed Area, Defendant will be entitled to quiet title to the entirety of the Disputed Area, based on his undisputed adverse possession for twenty years of that portion of the Disputed Area south of the chain link fence. See id.

The problem with this interpretation as applied to the facts is that it seems clear that as to the portion of the Disputed property beyond the plaintiff's fence, not only is there no evidence of possession by the plaintiff, there is, more significantly, no evidence that the plaintiff's deed description is based upon a deed that "describes by known and visible lines".

The Court of Appeals remanded the case instructing the trial court to enter judgment to quiet title and award the plaintiff ownership to the portion of the Disputed Area on the south (plaintiff's) side of the fence and if the physical location of the fence is not sufficiently located, to direct the surveyor, to physically locate, fit and describe the location of the fence.

The opinion directs that the plaintiff must establish that the boundaries described in his deed and the incorporated Losak survey, describe the portion of the Disputed Area north of the chain link fence and if the trial court finds and concludes that the plaintiff has met this burden, it is to also enter judgment quieting title and awarding the plaintiff ownership of that portion of the Disputed Area north of the chain link fence and to the entire Disputed Area.

However, the opinion cites Wachovia Bank & Tr. Co. v. Miller, which stated that "There is evidence to show that the ... line was well known and established by two independent walls to buildings on adjacent lands and as such it was a natural boundary." This conforms to the long established principles of adverse possession doctrine that the true landowner must be put on notice of the adverse claim. As noted above, there is nothing to indicate that the boundary shown in the Losak surveys was ever visible. As any description that closes, can be put on the ground, the Court's instructions seem to expand the lappage doctrines in place which require there to be some notice of the claim by physical possession tied implicitly tied to physically observable boundaries. The facts of this case do not suggest that such notice exists.


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