Vezey v. Green
2001 Alas. LEXIS 158, 2001 WL 1448759, 35 P.3d 14 (2001)
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Rule of Law:
Possession of land under an unwritten (parol) gift is hostile, not permissive, for adverse possession purposes, as it constitutes an assertion of ownership. The requirements for adverse possession, such as continuous use, are evaluated based on how an average owner would use land of a similar character, such as seasonal use of rural property.
Facts:
- In 1982, Angela Green's grandmother, Billie Harrild, orally offered Green a parcel of family land on a bluff near Shaw Creek, which Green accepted.
- Between 1982 and 1992, Green occupied the property primarily during the summers.
- During this decade, Green gradually constructed a house, cleared trees and undergrowth, planted a garden and fruit trees, installed utilities, and raised poultry.
- Green posted "No Trespassing" signs, placed a chain across the access road, and was known by neighbors to be the owner of the property.
- Sometime between 1988 and 1991, Green confronted and ordered workers from an excavation company, Earthmovers, off the property after they began excavating pursuant to a contract with her grandparents, the record owners.
- In 1993, Allen Vezey began negotiating to purchase the larger tract of land from the Harrilds, which included the bluff property occupied by Green.
- In 1994, Green telephoned Vezey, telling him that the land belonged to her, was not for sale, and that he should stay off her property.
- In the winter of 1994-1995, Vezey purchased the record title interest in the property from Green's grandparents.
Procedural Posture:
- Angela Green filed a complaint in Alaska Superior Court against Allen Vezey and the Harrilds' estate, seeking to quiet title to the bluff property based on adverse possession.
- Vezey moved for summary judgment, arguing Green's possession was permissive due to the oral gift, which the superior court denied.
- After a four-day bench trial, the superior court found in favor of Green, holding she had acquired title to the entire bluff area by adverse possession.
- Vezey, as appellant, appealed the superior court's judgment to the Supreme Court of Alaska.
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Issue:
Does a person who takes possession of land under an unrecorded oral gift and uses it seasonally for over ten years, making improvements and acting as an owner, acquire title by adverse possession?
Opinions:
Majority - Fabe, Chief Justice
Yes, a person who takes possession of land under an unrecorded oral gift and uses it seasonally for over ten years can acquire title by adverse possession because such use meets the requirements of being continuous, exclusive, notorious, and hostile. The court reasoned that Green’s seasonal use was sufficient for rural Alaskan land, satisfying the continuity requirement as an average owner would use it similarly. Her use was exclusive because, while she allowed some permissive use by family, she asserted her ownership by ordering her grandparents' contractors (Earthmovers) off the property. Notoriety was met because the record owners had actual notice of her possession, having made the initial gift. Critically, the court held that possession under a parol gift is hostile, not permissive, because a donee claims ownership in their own right, not subordinate to the donor's title; the gift strengthens the claim by proving the possessor's intent to own. The Earthmovers incident was compelling evidence that Green's possession was hostile to all others, including the record owners.
Dissenting - Matthews, Justice
No, title by adverse possession is not acquired to the extent found by the trial court because the boundaries of the claimed property were not established by visible evidence of possession that existed for the entire statutory ten-year period. The dissent argued that the majority and trial court improperly relied on Green's activities that occurred after the start of the ten-year period to define the boundaries of her claim. To establish boundaries for a claim vesting in 1993, only acts of possession from 1983 or earlier are relevant. Many of Green's significant improvements happened after 1983 and could not expand the scope of her claim. Furthermore, even considering all activities, there was insufficient evidence of visible possession to justify the south and west boundaries, which were hundreds of feet from her main area of activity.
Analysis:
This case significantly clarifies the 'hostility' element of adverse possession in the context of an informal, intra-family transfer of land. By holding that a parol gift supports rather than defeats a finding of hostility, the court provides a clear rule that a donee's possession is a claim of right, not permissive use. This decision also reinforces the flexible, context-dependent standard for continuity and exclusivity from Nome 2000, solidifying its application to seasonal use of rural property. For future cases, this ruling establishes helpful presumptions that a parol gift satisfies both the hostility and notoriety requirements, easing the evidentiary burden on claimants in similar situations.
