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Unoccupied land is presumed to be in the constructive possession of the true owner or the party with better title. Since entry is presumptively with permission of the owner, the burden rests on the party claiming title by adverse possession to show a distinct and positive assertion of a right hostile to the owner.
Robert Young brought a quiet title suit claiming title to all eighty acres of United States Survey 691 located on Prince of Wales Island by adverse possession and under claim and color of title. William Shilts counter-claimed contending that he has record title to 240,000 square feet of the property and that Robert Young has not established title by adverse possession. The trial court found in favor of Mr. Young. Mr. Shilts has appealed, and Young has cross-appealed from the failure of the trial court to award him attorney's fees.
Did the court err in holding that adverse possession had been established as to the 240,000 square feet of property in dispute?
The court reversed and held that Young’s acts of flying over the property in an airplane, occupying the property at least once a year for a half or full day, and walking the boundary lines hardly would give indication to Shilts that there was a hostile claim. It also held that Young’s acts of paying taxes on the property, filing for and obtaining water rights, and filing a statement of real property ownership were not tantamount to indicating a hostile claim on the land. Therefore, the court held that no "hostile flag" was hoisted over the land, so the adverse possession claim failed.