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Knapp v. Wise - 122 Ariz. 327 (Ariz. Ct. App. 1979)

Rule:

Adverse possession is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another. Ariz. Rev. Stat. § 12-521(A)(1). The enclosure of land is evidence of possession and, either in itself or in connection with other acts of ownership, may be a sufficient basis for an adverse possession claim.

Facts:

Plaintiff Edith Knapp owned a parcel land and lived on it since 1948. In 1959, defendants George Wise and his wife, Eunice Wise, purchased the parcel that was directly adjacent to and abutted Knapp's parcel. A barbed-wire fence ran between the two parcels. Both Knap and the Wises had always believed that the fence marked the parties' boundary line. In reality, the fence crossed onto the Wise parcel, leaving the Knapp parcel on the east side of the fence; the fence also crossed through part of the Knapp parcel, leaving the Wise parcel on the west side of the fence. Knapp filed a lawsuit against the Wises in Arizona state court seeking to quiet title, through adverse possession, to that part of the Wises land where the fence meandered off the Knapp property. By counterclaim, Wises claimed they owned, through adverse possession that part of the Knapp land where the fence meandered off their property. The trial court agreed with each party and awarded the parties the claimed properties. Both parties appealed.

Issue:

Did the trial court err in awarding each party a part of the other's property through adverse possession?

Answer:

No.

Conclusion:

The appellate court affirmed the trial court's judgment. The court noted that the parties' dispute was an "enclosure case." The court ruled that, contrary to the Wises' contention, the trial court's finding that the fence was in place from before 1960 up to 1973 was sustained by the evidence. The enclosure of land, the court explained, was evidence of possession and, either in itself or in connection with other acts of ownership, was sufficient basis for an adverse possession claim so long as it was complete and so open and notorious as to charge the owner with knowledge thereof. In the present action, the enclosure, like other acts of possession, was sufficient to "fly the flag" over the land and put the true owner on notice that his land was held under an adverse claim of ownership. The premises were fenced and being used as the Knapp residence, which was enough to alert the Wises that Knapp was claiming her parcel, as it existed with the meandering fence. The Wises always thought their property was west of the fence; the logical inference was that they believed the property east of the fence belonged to Knapp. The trial court did not err in awarding the claimed parcel to Knapp. The Wises used their parcel, as it existed with the meandering fence, for over 10 years as would a normal owner of the land, taking into consideration the uses for which the property was suitable. Furthermore, the evidence showed that Knapp always knew that the Wises claimed to be the owners of that parcel. Thus, the trial court properly awarded the claimed parcel to the Wises.

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