Does the 15 years prescriptive easement include the predecessors of property

Full question:

A Brick 2ft x 6ft Barbecue pit was built on property "A" 30 yrs ago. Four different residents have lived at Property "A." The most recent is 14 years. Property " B" believes that 1 ft of the BBQ pit is on his property. An official land survey agrees. Property " A" states that "prescriptive easement" entitles him to keep the BBQ pit and not remove it from property line. The prescriptive easement term is 15 years in Michigan. Does the 15 years prescriptive easement include the predecessors of property " A" or just the recent owner of 14 years of property "A"?

• Category: Real Property
• Subcategory: Easements
• Date: 04/07/2025
• State: Michigan

Answer:

Please refer to the following case:

FREED v. CLOVERLEA ASSN., 246 Md. 288 (1967)

228 A.2d 421

FREED, ET UX. v. CLOVERLEA CITIZENS ASSOCIATION, INC.

[No. 196, September Term, 1966.]

Court of Appeals of Maryland.

Decided April 10, 1967.

EVIDENCE — Boundary Dispute — Declarations Of Deceased Former
Owner Are Admissible As Exception To Hearsay Rule To Prove
Boundaries If There Was No Controversy As To Boundaries When
Declarations Were Made — Wilt v. Wilt, 242 Md. 129, Applied.

p. 295

 

 

ADVERSE POSSESSION — Definition Of Area — Fencing Of Property
No Longer Requisite For Finding Of Adverse Possession Of Clearly
Defined Area — Blickenstaff v. Bromley, 243 Md. 164, Applied.

pp. 295-296

 

 

ADVERSE POSSESSION — Permissive Use — Designation Of Disputed
Area As "Park" On Plat Does Not Render Use Permissive Rather Than
Adverse — Grading, Gardening, And Planting Of Flowers And Trees
Not Merely Exercise Of Communal Rights — Test Is Whether Claimed
Adverse Possession Resembles Ordinary Management Of Similar Lands
By Their Owners. p. 296

ADVERSE POSSESSION — Hostile Possession — Inadvertent
Extension Of Boundaries Can Result In Adverse Possession Where
There Are Unequivocal Acts Of Ownership — Fact That Possession
Was Due To Inadvertence, Ignorance Or Mistake Does Not Prevent It
From Being Adverse Under Modern Rule. pp. 297-298
Page 289

ADVERSE POSSESSION — Tacking — Ordinarily Possession Cannot Be
Tacked To Establish Title By Adverse Possession Where Deed By
Which Last Occupant Claims Title Does Not Include Land In Dispute
— However, Exception To Rule Exists Where Disputed Area Was
Contiguous To Property Deeded To Last Occupant And Deeded Land
And Disputed Area Were Visibly Used Together As A Unit — Where
Deeded And Disputed Areas Were Visibly Used As Unit, Deed Is
Evidence Of Privity, Not Evidence Against It. In 1926, one Lyon
acquired title to a 70-acre tract of land, subject to a purchase
money mortgage. He recorded a poorly marked plat, subdividing the
tract into 183 lots, and leaving a portion of the tract
designated as a "park." In 1933, the heirs of the seller of the
land foreclosed on the purchase money mortgage. In 1935, the
heirs sold three lots adjacent to the "park" to one Pitts. One of
the heirs drove a stake (since vanished by reason of erosion)
including a portion of a ditch within the boundaries of the
"park" as part of the property conveyed. Pitts commenced growing
flowers and vegetables in the edges of the ditch, together with a
grape arbor and willow tree. He never fenced the property, since
the ditch made a natural boundary. In 1952 Pitts sold the lots to
one Regan, and delivered possession not merely of the platted
lots but of the ditch. The land passed in similar fashion through
two additional conveyances to one Freed. Freed claimed title by
adverse possession through tacking, but made no claim that he
possessed title through the 1935 deed. The Court held that
title by adverse possession was in Freed, who could "tack" his
possession with that of his predecessors despite the omission of
the disputed ditch from the deeds. The view was taken that the
delivery of possession of the disputed area accompanying the
deeds was sufficient basis for "tacking" when the disputed
property was used with the deeded property as one unit.
pp. 298-304

REAL PROPERTY — Boundaries — Where Plat Boundaries Are Not
Established On The Ground, Land Pointed Out And Actually
Delivered By Seller Of Lot On Plat Establishes Boundary Of Lot —
Not Necessary To Apply This Principle Here, Since Question Of
Title By Deed Was Not Raised In Case And Title By Adverse
Possession Was Found To Exist. pp. 304-305

G.W.L.
Page 290

Decided April 10, 1967.

Appeal from the Circuit Court for Anne Arundel County (CHILDS,
J.).

Action in ejectment by the Cloverlea Citizens Association
against Louis I. Freed and Elizabeth M. Freed, his wife. From a
judgment of the Circuit Court for Anne Arundel County granting
plaintiff possession of the disputed land, together with one cent
damages and costs, the defendants appeal.

Judgment reversed, appellee to pay the costs.

The cause was argued before HAMMOND, C.J., and MARBURY,
OPPENHEIMER, McWILLIAMS and FINAN, JJ.

Charles C. Hartman, Jr. for appellants.

Thomas M. Schifanelli for appellee.

McWILLIAMS, J., delivered the opinion of the Court.

To prevail in this Court appellants (the Freeds) must establish
their right to tack their adverse possession of 0.6 of an acre on
the Rhode River (the triangular hatched area on Plat B) to the
adverse possession of their predecessors in title. They lost in
the court below because the trial judge thought they had shown
"no color of title whatsoever." In our recital of the facts we
shall refer again to Plat B. Plat A, about which we shall also
have more to say, is a part of the "Plat of Cloverlea." Both are
reproduced herein.

On 18 June 1926 Thomas Collison conveyed a 40 acre tract in
Anne Arundel County to Walter Lyon. The deferred consideration
for the transfer was secured by a purchase money mortgage. On 13
July 1929 Lyon recorded the "Plat of Cloverlea" which was dated
28 June 1926. It showed the subdivision of about 34 of the 40
acres into 183 lots, 47 of which fronted on the Rhode River. In
1933, as a result of the foreclosure of the purchase money
mortgage, title to the 40 acre tract, including "Cloverlea,"
reverted to the heirs of Thomas Collison.

Early in 1935 Donald Pitts, then about 26, his wife and his
Page 291
parents visited Cloverlea. They were accosted by Emanuel
Collison, one of the five children of Thomas, and asked to state
their business. When they expressed an interest in buying a place
for a summer home Collison, representing himself and the other
owners, brought out a plat (probably the "Plat of Cloverlea") and
showed them around. They liked what appeared to be lots 19 and
20. Since the only access to lot 18, according to Collison, was
across a drainage ditch he urged the Pitts to buy it also. They
agreed. The transaction was concluded by the execution of a
contract of sale for lots 18, 19 and 20. In July 1938 the Pitts,
pere et fils, obtained and recorded a deed for lots 18, 19 and
20.

Donald Pitts testified that, on the day they looked at the
property, Collison picked up a stake and drove it into the ground
on the north side of the drainage ditch near where it emptied
into Rhode River, saying, "Your property line will run to
here."[fn1] The southern boundary of lot 18 as thus pointed out
by Collison ran along the north side of the drainage ditch, to
the water's edge. The "bulkhead or retaining wall" shown on Plat
B coincides with the north side of the ditch.

There are some deficiencies in the plat of Cloverlea (Plat A)
which should be pointed out. There are no stakes, no pipes, no
bench marks, no monuments, no Coast and Geodetic Survey markers,
no works of man (except Cliff Drive, then a dirt road), no
natural phenomena (other than Rhode River), no established lines
or boundaries of adjoining properties shown thereon. There is not
a line on the plat for which a compass course is shown. The depth
of all lots and the frontage of some are shown by numbers
followed by the more or less () symbol. Other than the lot
numbers and the street names the only other useful information
appearing thereon consists of the arrow pointing North and the
scale (1" = 100'). In short, like so many of the subdivision
plats of the time, it was nothing more than a graphic
representation of someone's notion of how the property might be
developed. There can be little doubt that lots 18, 19 and 20 did
not exist on the ground. They existed only on the
Page 292
plat. In fact, there was no information on the plat which would
have enabled a surveyor or anyone else to locate accurately on
the ground the boundary lines of any of the lots there shown.

Plat B was made by Warren Suitt who was employed by a surveying
firm. He testified that his employer was hired "to establish the
outlines of Cherry Stone Park" for the appellee (the
association). He said "the plat of Cloverlea is not too easy to
work with, because of the lack of information." (Emphasis
supplied.) He thought, however, they had done "enough work in
there that * * * [they] were positive that * * * [they] did have
the boundaries of Cherry Stone Park established." It will be
observed that the northern boundary of the park, according to
Plat A, is also the southern boundary of lot 18. Since Mr. Suitt
did not explain how he arrived at that conclusion we can only
suppose that he intended nothing more than the delineation on
paper of the contention of his employer's client. We shall have

more to say about that.

 

 

Pitts said that because of a spring on the east side of Cliff
Drive the "ditch was formed by nature." He told how he put the
first culvert under the road and how he "spent many hours in
there keeping that ditch open." The low area north of the ditch
was filled, little by little, at first with dirt from the digging
of the basement and afterwards with dirt thrown up from the
bottom of the ditch in the course of "keeping it open." He had a
vegetable garden in the hatched area within 4 or 5 feet of the
ditch where he grew tomatoes, beans, squash and cantaloupes.
Flowers were planted. He remembers a row of peonies. There was a
grape arbor and a willow tree. He kept the area mowed except
during World War II when he was on duty with the Armed Forces.
His pier having been destroyed by ice during the war he built one
himself about in the center of the hatched area. On
cross-examination he told how he had lost 8 to 10 feet of his
property from erosion because he did not have a seawall. He said
the stake driven by Emanuel Collison in 1935 disappeared as a
result of the erosion. He never built a fence because "the ditch
was a natural fence" and it "was a fairly straight ditch."
Page 293

William J. Collison is a grandson of Thomas Collison. His
mother owns lots 16 and 17. Lot 17 adjoins the south side of
Cherry Stone Park. She also owns an undivided 1/5 interest in the
park. He has lived in Cloverlea or within a few miles of it
nearly all of his life. From 1937 to 1941 he was in charge of a
crew that "used to take care of all those places along there,
cutting grass, trimming." He was familiar with the ditch and
"helped clean it out lots and lots of times" and he and his crew
would mow the grass on the Pitts property "down as close to the
ditch as * * * [they] could get which was within a couple of feet
of it." He noticed there was a garden there (in the hatched area)
"every year or so" except when Mr. Pitts was away.

Mrs. Edna Gessford had lived three doors from the property and
she said she was familiar with the ditch and the hatched area.
She remembers when Pitts sold to the Regans in February 1952. She
said the Regans were looking for rocks to "build up a rock
garden" and that "there was grass right straight to the edge of
the ditch" except where flowers and shrubs were planted. She
recalled also when the Johnsons, "a young couple," bought the
lots from the Regans in June 1953. They "put in a vegetable
garden down along the ditch, close to the edge of the ditch, plus
a rock garden," she said.

William A. Irvine rented the property from the Johnsons from
June 1954 to June 1956. He testified that "as far as * * * [he]
knew, the ditch was the property line and * * * [he] maintained
and cut the lawn all the way down to this ditch area all the way
out to the water."

Harry Hasslinger testified his wife's parents bought lots 21,
22, 23 and 24 (adjoining the Freeds) in 1924 and that he had been
a summer resident since 1931. He was "quite familiar with the
ditch." In 1935 he helped the Pitts clean out the ditch. In
respect of the hatched area he said Pitts and the subsequent
owners mowed the grass, and "there was vegetable gardens, flower
gardens * * * [and] a grape arbor." Regan, he thought "started a
rock garden which was completed by Mr. Johnson."

The conveyances from Pitts to Regan and Regan to Johnson
Page 294
were both by lot numbers. In October 1956 Johnson conveyed lots
18, 19 and 20 to the Freeds.

Freed, called as a witness by the opposing party, said that
although "nobody trespassed" on the hatched area he had "ordered
Mr. Price's children off" and some adults who "crossed that
property." When he bought the property, Johnson showed him a
stake between lot 20 and the "Hasslinger house" (lot 21) and told
him his line went "right down to the ditch on the edge of the
cliff." "Everyone believed it was his land" even after he
constructed the bulkhead and the retaining wall. When called to
testify on his own behalf he located the culvert under Cliff
Drive by an X placed on each side of the road. He said the ground
north of the ditch was mowed and the rock garden was still there.
He drew a circle to indicate the location of the rock garden. The
grape arbor is indicated by five dots just west of the rock
garden. A heavy blue line shows where the peony bed was. He said
"many of * * * [his] neighbors came around and watched" the
bulldozer in operation when he filled behind the bulkhead near
the water. He guessed he had put "a little over $3,600 in that
pie-shaped area." He said the neighbors thought "it was wonderful
* * * [that] he was improving the neighborhood."

At a meeting of the association in July 1961 Freed was given a
copy of the Plat of Cloverlea. He said, "this * * * [was] the
first time * * * [he had] ever seen" the plat. After he studied
it he was concerned that he might have built the bulkhead on park
land. He announced his concern to some members of the
association. In February 1965, after the association filed this
suit against him, he bought from his heirs the undivided 1/5
interest of Emanuel Collison in the park. The association
acquired from her heirs the undivided 1/5 interest of Sarah
Hardesty in September 1963. The remaining 3/5 is still owned by
the heirs of Thomas Collison.

The principal witness for the association was George Kerwin
Collison Hardesty, a son of Sarah Hardesty who was one of the
five children of Thomas Collison. He moved to Cloverlea in 1951.
His knowledge of the property before 1951 was obtained while
attending an occasional oyster roast or picnic on
Page 295
the beach. He did not recall a "clearly defined ditch." In 1954
he helped "clean out the ditch." He testified the hatched area
"was never improved." He never saw a "fence" or a "no trespassing
sign." (There is no evidence of the existence of a fence or a
sign.) He has no recollection of a rock garden or a vegetable
garden. There was a pier, he said, but it was not "substantial."
He said Freed told him that he "had taken some of the community
property" and that if the community made him move "he'd never
speak to any of them again."

Lester Cunningham first started coming to Cloverlea in 1944. He
didn't know Pitts. He never noticed whether the hatched area was
seeded. He never noticed a vegetable garden or a rock garden. He
never noticed a fence or a "no trespassing" sign. Nor did William
C. Voight who also testified on behalf of the association.

Before trial the parties stipulated that the issues to be
decided were:

1. Do the Freeds "have fee simple title, through
adverse possession" to the hatched area.

 

2. If the first issue is decided in favor of the
association "where is the boundary line between"
lot 18 and Cherry Stone Park.

 

 

I.

The Freeds contend the trial judge erred when he refused to
allow Donald Pitts to testify that Emanuel Collison said, as he
drove the stake, "Your property line will run to here." We think
the trial judge ruled incorrectly, but it should be observed that
our holding in Wilt v. Wilt, 242 Md. 129, 218 A.2d 180 (1966),
which we think disposes of this contention, was not published
until about six or eight months after the decision of the trial
judge. It is unlikely, however, that the exclusion of Collison's
statement could have made much difference as the obvious purpose
in driving the stake was to designate a boundary which, in the
circumstances, could have been only the south line of lot 18.

II.

The trial judge, in his opinion, said he was "convinced * * *
there was never a definite period in time wherein this specific
Page 296
area in question was ever occupied * * * in its entirety, and
held adversely to the world." The association, in like manner,
argues that the possession of the Freeds and their predecessors
was not open, notorious, exclusive, hostile, or within a clearly
defined area. A comparison of the circumstances in the case
before us with those present in our recent decisions in East
Wash. Railway v. Brooke, 244 Md. 287, 223 A.2d 599 (1966) and
Blickenstaff v. Bromley, 243 Md. 164, 220 A.2d 558 (1966) makes
it clear that the trial judge has misapprehended the situation
and that there is no merit in the contention of the association.
There has been advanced also the suggestion that the use made by
Pitts and his successors was permissive. The association argues
that since they were entitled, in common with other lot owners,
to the use of Cherry Stone Park, their possession could not have
been adverse. We do not agree. There is nothing on the plat of
Cloverlea to suggest that Cherry Stone Park was dedicated to the
use of the future residents of Cloverlea. The label "Cherry Stone
Park" could as easily have suggested that Lyon or the Collisons
had reserved it as a home site for themselves or as a site for
some future commercial enterprise. In any event the use made of
the hatched area by Pitts and his successors was entirely
consistent with their ownership of lots 18, 19 and 20 and quite
inconsistent with any notion that they were exercising merely
their communal right to swim, sun bathe and picnic. After all one
does not grade, mow, plant flowers, trees, grapevines and
vegetables, and make a rock garden, in an area, the use of which
one must share with several hundred others. In Blickenstaff,
supra, at 171, we quoted with approval from 3 Am.Jur.2d,
Adverse Possession, § 14, the following:

"It is sufficient if the acts of ownership are of
such a character as to openly and publicly indicate
an assumed control or use such as is consistent with
the character of the premises in question. The
standard to be applied to any particular tract of
land is whether the possession comports with the
ordinary management of similar lands by their owners,
and if so, it furnishes satisfactory evidence of
adverse possession."
Page 297

 

III.

Our consideration of the pivotal question whether the Freeds
can tack their adverse possession to that of their predecessors
in title must begin with Tamburo v. Miller, 203 Md. 329,
100 A.2d 818 (1953). Although tacking was not an issue in Tamburo,
the situation was generally similar to the case before us.
Tamburo owned lot 32. Miller, who owned lot 33, claimed Tamburo
had encroached upon his lot. The apex of the triangular wedge of
land in dispute was tangent to the road on which both of these
waterfront lots bordered. The base of the triangle was at the
water's edge. One surveyor said the survey was difficult; the
other (J. Revell Carr) said he could not determine the true line
because of the surveying uncertainties and difficulties inherent
in the Manhattan Beach Development. The boundary line claimed by
Tamburo consisted of a few strands of barbed wire, mostly lying
on the ground, replaced in spots by a hedge. We held Tamburo's
possession was exclusive, notorious, actual and hostile. Judge
Hammond (now Chief Judge), for the Court, said:

"It has been said often in the earlier cases that
where a land owner extends his fence, through
inadvertence, ignorance or mistake, as to the
location of the true boundary line, so as to embrace
the land of a neighbor, but with no intention of
claiming the area thus enclosed, adverse possession
cannot be established because the holding of the
extended area is neither adverse nor hostile to the
true owner. See, for example, Davis v. Furlow's
Lessee, 27 Md. 536. The modern trend and the better
rule is that where the visible boundaries have
existed for the period set forth in the Statute of
Limitations, title will vest in the adverse possessor
where there is evidence of unequivocal acts of
ownership. In this view it is immaterial that the
holder supposed the visible boundary to be correct
or, in other words, the fact that the possession was
due to inadvertence, ignorance, or mistake, is
entirely immaterial. See Sadtler v. The Peabody
Heights Company, 66 Md. 1; Rother v.
Page 298
Sharp St. Station Methodist Church, 85 Md. 528,
530; and Hiss v. McCabe, 45 Md. 77." Id. at 336.

We cited Tamburo with approval in Blickenstaff, supra. The
juxtaposition of Tamburo and the case at bar makes it apparent
that there can be little doubt the possession of Pitts and his
successors also was exclusive, notorious, actual, hostile and
embraced all of the hatched area. As Judge Hammond also said in
Tamburo, "actual enclosure * * * [is] not necessary to prove
title." Code, Art. 75, § 33 (1966 Repl. Vol.)

The trial judge, in holding the Freeds could not tack the
possession of their predecessors, relied entirely upon Sachs and
Sons v. Ward, 182 Md. 385, 394-95, 35 A.2d 161 (1943) and the
cases cited therein. There it was said:

"This [tacking] is precisely what this court had
already decided cannot be done, the rule being that
possession cannot be tacked to make out title by
prescription where the deed by which the last
occupant claims title does not include the land in
dispute. Fleischmann v. Hearn, 141 Md. 463,
118 A. 847; Hansel v. Collins, 180 Md. 209, 23 A.2d 686;
Oliver v. Hook, 47 Md. 301; Oberheim v. Reeside,
116 Md. 265, 81 A. 590; 2 C.J.S. Adverse
Possession, Sec. 131."

While the language quoted from Sachs, standing alone, is a
familiar and correctly stated principle of law, it should be
observed that the facts in Sachs beget a horse of a much
different color than the facts in the case at bar. In Sachs the
disputed parcel was actually part of a public street. After
making the statement quoted above, Judge Melvin, who spoke for
the Court, went on to say:

"In weighing the equities here it is also to be
borne in mind that appellants not only never acquired
title to any portion of the bed of Sutton Street, but
were expressly charged with notice in their own title
papers and by the land records that this alley was
always to be kept open and unobstructed, certainly as
to the parties to the original agreements. They were
Page 299
charged, too, with notice from the record that the
bed of the alley was never owned by any of their
predecessors. Therefore, when they found this
first-floor structure across the alley, completely
destroying its use for the purposes originally
defined of record, they took possession of it with
knowledge that it did not pass to them under their
deed." (Italics supplied.)

However, we shall not undertake an analysis of the factual
disparity between Sachs and the case before us because, in our
judgment, this case falls into one of the exceptions to Sachs,
which seems to be well recognized in other jurisdictions and
which, until now, we have not had occasion to consider. The rule
which prevails in most of the jurisdictions where the question
has been raised is succinctly stated in the annotation in 17
A.L.R.2d 1128, 1131:

"* * * where title by adverse possession is claimed
to an area contiguous to that described in the deed
or contract, and the whole property, described and
not described, was in use by the vendor as a unit,
and the fact thereof was apparent by reason of the
position of fences, hedges, buildings, etc., the
instrument instead of operating to negative the
element of privity, seems to possess, as conjoined
with such circumstances, an evidentiary value in
support of privity, and this is most noticeable in
instances in which the description used was such that
it might reasonably have been supposed to include the
whole property.

"At the present time, making allowance for contrary
rulings still apparently adhered to in a few
jurisdictions, the cases, especially the later ones,
run generally to the effect that in order to permit
the tacking of successive adverse possessions of
vendor and purchaser of an area not within the
premises as described in the deed or contract but
contiguous thereto, the composite fact to be
established is the intended and actual transfer or
delivery of possession of such area to the grantee or
vendee as successor in ownership or claim."
Page 300

In Mary v. Maurer, 339 Mich. 115, 62 N.W.2d 455 (1954) the
disputed strip was 8 1/4 feet by 33 feet. In 1919 Briggs sold to
Moran who took possession of the strip although it was not
included in his deed. In fact, it was included in the deed of the
adjoining owner. In 1930 Moran placed a clothes pole and a
clothes line between it and a tree, all three located on the
strip, and the Morans used it for laundry purposes while they
lived there. The Morans always kept the strip mowed. Moran's
tenants continued to use the clothes line and mow the lawn. They
also kept their dog and the dog house on the strip. When Moran
sold to Mrs. Maurer in 1947 the strip was pointed out to her as
part of the property. She continued the use of it, kept up the
lawn and maintained control over it. Mr. Mary, who owned the
adjoining lot thought the strip did not belong to him. The
Supreme Court (Michigan) agreed with the trial judge that the
requisites of adverse possession had been established. Mary
argued that Maurer could not tack the possession of Moran. The
Michigan court affirmed the earlier case of Gregory v. Thorrez,
277 Mich. 197, 269 N.W. 142 (1936) and held, speaking through
Dethmers, J.:

"The proofs accepted as true show that (a)
defendant [Moran] and her predecessors did take
possession of the strip in the belief that it was
theirs and that no objections or adverse claims were
voiced thereto by plaintiffs or their predecessors,
thus indicating acquiescence; (b) that the line and
stake were pointed out by Miss Moran and her realtor
to defendant [Maurer], at the time of her purchase,
indicating that the strip was included; and that
during the years of occupancy by the Morans, Edward
[Moran] used and treated the strip as his own, in a
manner equivalent to and constituting as effective a
pointing out of the boundary line in connection with
his devise to his sister as it would have been had he
pointed out the line at the time of conveying the lot
to her; (c) that defendant and Miss Moran did take
possession of the disputed strip with the rest of the
premises, regarding it as conveyed to them. The
Page 301
Gregory case is applicable and controlling here."
Id. 62 N.W.2d at 458.

In Gregory v. Thorrez, supra, the facts were much the same as
they were in Mary and quite like the facts in the case at bar.
There, Butzel, J., for the Michigan court, said:

"The main question for our determination is whether
the appellant Thorrez may tack to his possession the
adverse occupancy of his predecessors in title so as
to make out the statutory period without having the
disputed strip described in his deed. Numerous cases
in Michigan have laid down the general rule that
successive possessions may not be tacked where the
disputed land is not described in the deed. Lake
Shore & M.S.R. Co. v. Sterling, 189 Mich. 366,
155 N.W. 383; Hanlon v. Ten Hove, 235 Mich. 227,
209 N.W. 169, 46 A.L.R. 788; Jeffries v. Sheehan,
242 Mich. 167, 218 N.W. 703. These cases, however, do not
consider the question of whether tacking is permitted
where successive grantees over a period of 15 years
had the lots first pointed out to them and possession
given with the deed. Is the last grantee entitled to
the ownership of the disputed strip under such
circumstances, notwithstanding the fact that he has
not owned it for 15 years, and it has not been
described in his deed, notwithstanding that he and
his predecessors have claimed ownership and
possession for over 15 years and this claim has been
acquiesced in by plaintiffs and their predecessors in
title? The rule outside of Michigan permits such
parol transfer. It is not the deed that creates the
privity, but the parol transfer of possession. See
Davock v. Nealon, 58 N.J. Law, 21, 32 A. 675. In
Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239, a
similar question was raised and the court held that
privity could be established by parol and that
successive periods could be added together where
possession had been given by parol. See, also,
Wishart v. McKnight, 178 Mass. 356,
Page 302
59 N.E. 1028, 86 Am. St. Rep. 486, where the court held:
`This evidence would have warranted the jury in
finding that each of the grantees transferred to his
successor his possession of the strip of land in
question, and that thereby the demandant was
continuously kept out of possession.' This seems to
be the prevailing rule in most of the other States.
See Hanlon v. Ten Hove, 235 Mich. 227,
209 N.W. 169, 46 A.L.R. 792." Id. 269 N.W. at 143. (Emphasis
supplied.)

In Howind v. Scheben, 233 Ky. 139, 25 S.W.2d 57, 58 (1930) a
small triangular parcel of land was in dispute. It was said
there:

"The testimony shows that the fence now maintained
has been there for more than 15 years, and that it
replaced a rail fence maintained on substantially the
same location for forty years. The transfer of
possession of a strip of land occupied by the
grantor, although without title, which is inclosed
with and used as part of the land described in the
deed, is not affected by its omission from the
description in the deed. In such cases the possession
of the grantor and that of the grantee is continuous,
and there is such privity of contract between them
that the period of possession by each must be added
in ascertaining the total period of adverse
possession. Wishart v. McKnight, 178 Mass. 356,
59 N.E. 1028, 86 Am. St. Rep. 486; H.B. Jones Coal Co.
v. Mays, 225 Ky. 365, 8 S.W.2d 626; 2 C.J. p.
82, § 66."

Although Sachs, supra, was cited in the brief of one of the
parties in a recent New Hampshire decision, Alukonis v.
Kashulines, 96 N.H. 107, 108-109, 70 A.2d 202 (1950), it was not
mentioned in the court's opinion, an excerpt from which follows:

"However, the defendants claim that the plaintiff may
not tack the possession of her predecessors because
the deeds in her chain of title do not include the
strip in question, and cite authority in support of
this proposition.
Page 303
It is significant that among the authorities cited,
including both Hanlon v. Ten Hove, 235 Mich. 227,
209 N.W. 169, 46 A.L.R. 792, 793, and 1 Am. Jur.
Adverse Possession, § 156, it is stated that the
rule forbidding tacking under these circumstances is
`very sharply limited' to cases where only the deed
is relied on `and there is no circumstances showing
an intent to transfer any property beyond the calls
of the deed.' 1 Am. Jur., supra. In the case before
us there was evidence the plaintiff was shown the
bounds, which included the two rod tract, by her
predecessor in title and that this tract had been
inclosed and cultivated for many years by the
plaintiff and her predecessors. This appears
sufficient to support the plaintiff's right to tack.
Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028,
86 Am. St. Rep. 486; 2 C.J.S. Adverse Possession, §
131. See also Hoben v. Bucklin, 88 N.H. 73, 85,
184 A. 362, 186 A. 8, and authorities cited."

In an appeal from the Alaska District Court, Ringstad v.
Grannis, 171 F.2d 170, 174 (9th Cir. 1948), the Court of
Appeals, in a situation almost the same as Tamburo, followed
the rule expressed in the decisions set forth above. In the
opinion by Chief Judge Denman it was said:

"It is generally held that if, in connection with
the conveyance of lands, there are circumstances
showing an intent to transfer to the grantee the
possession of other adjacent land occupied by the
grantor and not covered by the deed, there is created
such a privity that the grantee is permitted to tack
the period of the grantor's occupancy to his own in
establishing title by adverse possession to the land
not mentioned in the deed. `Where the deed is
followed by the delivery of possession of the entire
inclosure, it is sufficient evidence of a transfer of
possession to raise the requisite privity between the
parties.' Rich v. Naffziger, 255 Ill. 98,
99 N.E. 341, 343."

In 3 Am. Law of Prop., § 15.10, it is said:
Page 304

"In some of the cases, it is held that if the adverse
possessor conveys by deed which does not include part
of the land of which he had possession, though the
grantee takes possession of that part as well as of
the part described in the deed, the two adverse
possessions of the land so omitted in the deed cannot
be tacked. By weight of authority, however, the two
possessions will be tacked if it appears that the
adverse possessor actually turned over possession of
that part as well as of that portion of the land
expressly included in his deed." (Emphasis
supplied.)

See, also, 3 Am.Jur.2d, Adverse Possession, § 64; 17 Md. L.

Rev. 61 (1957).

Since the parties have stipulated that the principal issue is
the adverse possession vel non of the hatched area, we hold
that:

(a) Pitts, conjointly with his use and occupation of
lots 18, 19 and 20, possessed the hatched area
adversely from 1935 until 1952 when he sold
lots 18, 19 and 20 to Regan and delivered to
Regan the possession of those lots and the
hatched area;

 

 

(b) Regan took possession of the lots and the hatched
area and continued to possess it adversely
until 1953 when he sold the lots to Johnson and
delivered to Johnson the possession of the lots
and the hatched area;

 

 

(c) Johnson took possession of the lots and the
hatched area and continued (together with
Irvine, his tenant) to possess it adversely
until 1956 when he sold the lots to the Freeds
and delivered to the Freeds the possession of
the lots and the hatched area;

 

 

(d) the Freeds took possession of the lots and the
hatched area and continued to possess it
adversely until the present; and, that

 

 

(e) the Freeds are entitled to tack to their adverse
possession of the hatched area, the possession
of Johnson (and Irvine), Regan and Pitts.

 

An odd feature of this case is the absence of a claim by the
Freeds that Pitts acquired a fee simple title to the edge of the
ditch in 1935. We have already mentioned the deficiencies of
Page 305
the Plat of Cloverlea. Judge Hammond, in Tamburo, supra,
pointed out similar deficiencies in the Plat of Manhattan Beach.
He said there were no metes and bounds descriptions and that no
compass courses were shown for the sides of the lots. J. Revell
Carr, who was a competent and conscientious surveyor, was unable
to locate the true line between the Manhattan Beach lots.
Cloverlea was at least as bad; very likely it was worse. The
boundary between lot 18 and Cherry Stone Park had not been
established on the ground in 1935 and the plat was devoid of
information from which it could have been ascertained. As earlier
suggested, Suitt's survey, despite his self-serving assertion of
its accuracy, could have been nothing more than a graphic post
hoc representation of the contention of the association. It is
obvious that the boundaries of lot 18 could have been established
only by a location survey after corner stakes had been
arbitrarily placed, or by agreement with a purchaser. When,
therefore, Pitts entered into the possession of the land up to
the line pointed out to him by Emanuel Collison, that line became
the boundary between lot 18 and Cherry Stone Park. 12 Am.Jur.2d,
Boundaries, §§ 77, 78; 11 C.J.S. Boundaries, § 67. Since
no argument based on this theory was advanced either in the court
below or in this Court we expressly avoid making a decision in
respect thereof. We have ventured the comment, however, because,
in the circumstances, it seems appropriate and because it may
enable the association to bear with more graceful resignation the
necessity for our reversal of the trial judge.

Still another odd feature is the fact that the association owns
only an undivided 1/5 interest in Cherry Stone Park. The owners
of the other 3/5 interest have remained aloof and neither side
has tried to make them parties. The trial judge thought Freed's
purchase of the remaining undivided 1/5 interest was not
"indicative of a conviction of a full ownership." He also said it
illustrated Freed's state of mind. The relevance of his statement
is unclear. Pitts' state of mind might have been interesting but

since Tamburo, supra, it is unimportant.

 

 

For the reasons herein stated the judgment of the trial court
will be reversed.

Judgment reversed.

Appellee to pay the costs.