Nome 2000 v. Charges Fagerstrom

799 P.2d 304 (Alaska 1990)

 

RULE:

Whether a claimant's physical acts upon the land are sufficiently continuous, notorious and exclusive does not necessarily depend on the existence of significant improvements, substantial activity or absolute exclusivity. Indeed, this area of law is not susceptible to fixed standards because the quality and quantity of acts required for adverse possession depend on the character of the land in question. Thus, the conditions of continuity and exclusivity require only that the land be used for the statutory period as an average owner of similar property would use it. Where the land is rural, a lesser exercise of dominion and control may be reasonable.

FACTS:

The title holder filed suit to eject the adverse possessors from the disputed parcel. The adverse possessors counterclaimed that through their use of the parcel they had acquired title by adverse possession. A jury trial ensued and at the close of the adverse possessors' case, the title holder moved for a directed verdict. The trial court denied the motion. The jury found that the adverse possessors had adversely possessed the entire parcel and the trial court entered judgment in their favor. The title holder appealed and the court reversed in part and held that the trial court erred in its denial of the title holder's motion for a directed verdict as to the southerly portion. The court remanded and held that the jury could have reasonably concluded that the adverse possessors established, by clear and convincing evidence, continuous, notorious, and exclusive possession for 10 years prior to the date the title holder filed suit. The adverse possessors were not entitled to the entire disputed parcel because their use of the southerly portion of the disputed parcel did not provide a reasonably diligent owner with visible evidence of their exercise of dominion and control.

ISSUE:

Did the claimant prove, by clear and convincing evidence, his use of the land was continuous, open and notorious, exclusive and hostile to the true owner of the entirety of the land in question?

ANSWER:

No.

CONCLUSION:

The adverse possessors were not entitled to the entire disputed parcel because their use of the southerly portion of the disputed parcel did not provide a reasonably diligent owner with visible evidence of their exercise of dominion and control. The character of the land in question is also relevant to the notoriety requirement. Use consistent with ownership which gives visible evidence of the claimant's possession, such that the reasonably diligent owner could see that a hostile flag was being flown over his property, is sufficient. Where physical visibility is established, community repute is also relevant evidence that the true owner was put on notice. 

Click here to view the full text case and earn your Daily Research Points.