Gan v. Van Buren Street United Methodist Church

• Court: District of Columbia Court of Appeals
• Decided: February 13, 2020
• Docket: 17-CV-22
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-CV-22

ORON and REBECCAH GAN, APPELLANTS,

v.

VAN BUREN STREET METHODIST CHURCH, APPELLEE.

Appeal from the Superior Court of the District of Columbia (CAB-8393-15)

(Hon. Thomas J. Motley, Trial Judge)

(Argued March 27, 2018 Decided)

Aaron Sokolow, with whom Morris R. Battino and Vivianette Velázquez were on the brief, for appellant.

Robert Maxwell for appellee.

Before THOMPSON and MCLEESE, Associate Judges, and RUIZ, Senior Judge.

Opinion for the court by Associate Judge MCLEESE.

Separate statement by Associate Judge THOMPSON at page 20.

Dissenting opinion by Senior Judge RUIZ at page 21.

MCLEESE, Associate Judge: Appellants Oron and Rebeccah Gan and appellee

Van Buren Street Methodist Church own adjacent properties, and they dispute

ownership of a driveway that touches the border between the two properties. The 2

Gans challenge the trial court’s grant of summary judgment to the Church. We

vacate and remand for further proceedings.

I.

The following facts are undisputed except as indicated. The Gans own a

property located at 6638 Eastern Avenue NW. The Church owns an adjacent

property located at 35 Van Buren Street NW. The Church’s deed includes the

property at issue in this case: a paved driveway, approximately ten feet wide,

running from the back of the Church’s property to Eastern Avenue, parallel to the

Gans’ property line.

The Gans purchased 6638 Eastern Avenue from Ms. Bernice Harleston in

2008. The deed conveyed “all that/those certain piece(s) or parcel(s) of land,

together with the improvements, rights, privileges and appurtenances to the same

belonging . . . as described in Exhibit A attached hereto and made a part hereof.”

Exhibit A, attached to the deed, describes the bounds of the Gans’ property (which

do not include the driveway), and also describes “a right of way more particularly

described in Liber 8973 at folio 581, of [the D.C.] land records.” Liber 8973 at folio

581 recorded an easement over the driveway. 3

It is uncontested that according to the pertinent deeds the Church is the title

owner of the driveway. The Gans argue, however, that they are the rightful owners

of the driveway under the doctrine of adverse possession. “To establish title by

adverse possession, appellants must demonstrate possession of the land that is actual,

open and notorious, exclusive, continuous, and hostile, throughout a period of fifteen

years.” Sears v. Catholic Archdiocese, 5 A.3d 653, 658 (D.C. 2010) (internal

quotation marks omitted). According to the Gans, by no later than 2000 Ms.

Harleston put up a fence that prevented the Church from gaining access to the

driveway. The Gans further allege that the fence remained in existence thereafter,

although at some point the original fence was replaced by a wooden fence. In

support of their adverse-possession claim, the Gans submitted an affidavit executed

by Ms. Harleston in 2016. In the affidavit, Ms. Harleston attested that her purchase

deed had referred to “an easement area on the property (the ‘Easement’)”; that in

2000 she put a fence across the Easement to prevent access to the property; that she

maintained that fence until she sold the property; that she had believed that she

owned the Easement; and that she had intended to convey ownership of the Easement

to the Gans. 4

The Gans claim that they are entitled to “tack” Ms. Harleston’s period of

adverse possession onto their own, thereby meeting the fifteen-year threshold. See

generally, e.g., Tacking, Black’s Law Dictionary (10th ed. 2014) (“The joining of

consecutive periods of possession by different persons to treat the periods as one

consecutive period; esp., the adding of one’s own period of land possession to that

of a prior possessor to establish continuous adverse possession for the statutory

period.”).

The Church disputes as a matter of fact that there has been a fence since 2000

preventing its use of the driveway. That factual dispute, if material, would have to

be decided at a trial. For current purposes, we assume the truth of the Gans’

contention that Ms. Harleston and the Gans have adversely possessed the driveway

since 2000. The Church also argues, however, that as a matter of law the Gans are

not entitled to base their adverse-possession claim in part on the time before they

purchased their property, because the deed from Ms. Harleston to the Gans did not

by its terms convey either title to the driveway or an inchoate adverse-possession

interest in the driveway.

The trial court granted summary judgment to the Church on the ground that

tacking was precluded because the deed from Ms. Harleston to the Gans on its face 5

did not convey title to, or an inchoate adverse-possession interest in, the driveway,

instead conveying only the right to an easement over the driveway.

II.

We review de novo a trial court’s grant of summary judgment, viewing the

evidence in the light most favorable to the non-moving party. Sears, 5 A.3d at 657.

“If there are no disputed issues of material fact, summary judgment is appropriate if

the movant is entitled to judgment as a matter of law.” Id. The Church suggests in

passing that the Gans failed to preserve in the trial court the arguments they present

in this court. To the contrary, we conclude that the Gans’ opposition to the Church’s

motion for summary judgment adequately preserved the issues that we decide in this

opinion.

The central issue in this appeal is whether the Gans are foreclosed as a matter

of law from tacking Ms. Harleston’s period of adverse possession onto their own.

We conclude that, under controlling precedent, the Gans may tack Ms. Harleston’s

period of adverse possession onto their own if they can prove at trial by clear and

convincing evidence that Ms. Harleston intended to grant them possession of the

disputed driveway. 6

A.

Almost one hundred years ago, the Court of Appeals for the District of

Columbia approved the tacking of periods of adverse possession in circumstances

very similar to those of the present case. Brumbaugh v. Gompers, 269 F. 472 (1920).

Brumbaugh involved a dispute that arose in 1915 about the ownership of a strip of

land. Id. at 473. Under the applicable deeds, the defendants held fee title to the strip

of land. Id. The plaintiff had bought an adjacent property in 1906 and was in actual

possession of the disputed strip thereafter. Id. That period of possession, however,

was not sufficient to meet the then-applicable thirty-year period required to establish

adverse possession. Id. The prior owners who sold the adjacent property to the

plaintiff, however, had been in actual possession of the disputed strip of land back

to at least 1883. Id. In response to the suggestion that the two periods of possession

could not be tacked, the court explicitly held to the contrary. Id. (“Some suggestion

is made that there has been no tacking of possession, within the meaning of the law.

This contention may be put out of view by a citation of the following

authorities . . . .”). The cited authorities included St. Louis Southwestern Railway

Co. v. Mulkey, 139 S.W. 643, 644 (Ark. 1911) (“While it is true that the land

described in the deed . . . does not include the strip in controversy, still [appellee’s] 7

grantor . . . thought it did, and at the time of the conveyance transferred to her the

possession of it in fact . . . . This was sufficient even if it be conceded there was no

conveyance of it in writing, and constituted such privity as entitled [appellee] to avail

of his or their adverse possession and to tack her possession to theirs if necessary to

complete her title and claim of ownership.”); Viking Refrigerator & Manufacturing

Co. v. Crawford, 114 P. 240, 240-41 (Kan. 1911) (approving tacking of periods of

adverse possession by successive occupants; rejecting view that tacking is permitted

only if deed or other writing transfers adverse-possession interest, and approving

principle that “[a]ll the law requires is continuity of possession, where it is actual”)

(internal quotation marks omitted); and Illinois Steel Co. v. Paczocha, 119 N.W.

550, 552 (Wis. 1909) (approving tacking of periods of adverse possession where

there is privity between successive occupants, but required privity is “merely [that

of] physical possession, and is not dependent on any claim, or attempted transfer, of

any other interest or title in the land”).

In Brumbaugh, tacking was held proper where (1) there was continuous

adverse possession of the disputed property by two successive occupants who owned

an adjacent property, and (2) the first occupant sold the adjacent property to the

second occupant. 269 F. at 472-74. Brumbaugh thus adopted what was then and

continues to be the majority approach to the issue of tacking. See, e.g., 16 Michael 8

Allan Wolf, Powell on Real Property § 91.10[2], at 91-76 (2009) (“When, however,

A conveys Blackacre to B, and B then seeks to claim[] adverse possession of adjacent

land not covered by the deed, and wishes to tack the possession to prior possession

by A, the cases are not unanimous. It is believed that both the weight of authority,

and the more desirable rule, find privity in these circumstances, and so permit

tacking.”); 3 Am. Jur. 2d Adverse Possession § 73 (2013) (“Thus, if one adverse

claimant, by agreement, surrenders possession to another, and the acts of the parties

are such that the two possessions actually connect, leaving no interval for the

constructive possession of the true owner to intervene, the two possessions are

blended into one, and the running of the limitation period on the right of the true

owner to reclaim the land is continued.”); id. at § 76 (“If, in connection with a

conveyance of lands, there are circumstances showing an intent to transfer to the

grantee the possession of other adjacent land occupied by the grantor, but not

covered by the deed, there is privity, and the grantee is entitled to tack the period of

the grantor’s occupancy to the grantee’s own in establishing title by adverse

possession to the land not conveyed.”); 2 C.J.S. Adverse Possession § 172 (2013)

(“Most particularly where the claimant relies on an actual transfer rather than on a

deed to establish privity of possessions, the failure of the deed to pass the disputed

land will not destroy the privity. Successive adverse possessions of property omitted

from a deed description, especially contiguous property, may be tacked if it appears 9

that the adverse possessor intended to and actually turned over possession of the

undescribed part with the portion of the land included in the deed. Where land that

is adversely held, adjoins land described in a deed, but is not described in the deed,

and continues to an obvious boundary, such as a fence, the grantor’s intent to convey

the entire enclosed area is implied from the circumstances.”) (footnotes omitted); 4

Herbert Thorndike Tiffany, The Law of Real Property § 1146, at 776 (1975) (privity

required to permit tacking may be based “upon any connecting relationship which

will prevent a break in the adverse possessions and refer the several possessions to

the original entry, and for this purpose no written transfer or agreement is

necessary”); W.W. Allen, Annotation, Tacking Adverse Possession of Area not

within Description of Deed or Contract, 17 A.L.R.2d 1128, 1131-32 (1951) (“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.”) (footnotes omitted); id. at 1135 (“In most jurisdictions a

transfer of possession of the disputed area sufficient for tacking purposes may be

shown to have taken place by implication and without express words or any 10

ceremony of transfer.”); 2 C.J. Adverse Possession § 97 (1915) (“[S]uccessive

grantors may transfer their possession of a strip of land successively and

continuously occupied as part of the granted premises, but not included in the

description in any of the deeds, and . . . by such continuity of possession for the

prescriptive period title by limitations may be acquired.”).

Brumbaugh’s holding is binding on divisions of this court. Davidson v.

United States, 137 A.3d 973, 974 n.2 (D.C. 2016) (“[C]ases decided by the United

States Court of Appeals for the District of Columbia Circuit (and its predecessors)

prior to February 1, 1971, are part of the case law of this court.”; citing inter alia

1896 decision of the Court of Appeals for the District of Columbia); M.A.P. v. Ryan,

285 A.2d 310, 312 (D.C. 1971) (“[N]o division of this court will overrule a prior

decision of this court or refuse to follow a decision of the United States Court of

Appeals rendered prior to February 1, 1971, and . . . such result can only be

accomplished by this court en banc.”) (footnote omitted).

The Gans contend that the trial court erred in concluding that the periods of

adverse possession at issue could be tacked only if the deed conveying property from

Ms. Harleston to the Gans on its face conveyed an adverse-possession interest in the

driveway. In deciding that contention, we are bound to follow Brumbaugh even 11

though no party brought Brumbaugh to the attention of the trial court and the initial

briefs of the parties in this court did not cite Brumbaugh. See, e.g., Martin v.

Bicknell, 99 A.3d 705, 709 (D.C. 2014) (“While both parties have failed to cite to

them, we have identified a number of decisions on this subject, which, while old, are

still binding precedent.”); Mims v. Mims, 635 A.2d 320, 323 (D.C. 1993) (“Our

obligation under M.A.P. v. Ryan to follow otherwise binding precedents does not

evaporate because a party has failed to cite them to us.”). (At the court’s request,

the parties did file supplemental briefs addressing Brumbaugh.)

Rather than addressing Brumbaugh, the trial court focused on Sears, our most

recent decision addressing the issue of tacking for purposes of adverse possession.

Sears did not mention Brumbaugh, instead inaccurately stating that this court had

“not had the occasion to discuss tacking in the context of adverse possession to claim

ownership in land.” 5 A.3d at 662. Sears also said seemingly contradictory things

about whether tacking is permissible where no deed explicitly transfers an adverse-

possession interest in the property at issue. Compare 5 A.3d at 662 (“[W]here title

by adverse possession is inchoate, a deed by [a] grantor which fails to convey such

inchoate right is ineffective to create privity which allows tacking.”) (brackets and

internal quotation marks omitted), with id. (“Generally, for the purpose of effecting

title by adverse possession, where the traditional requisites are present, tacking of 12

periods of possession by successive possessors is permitted against an owner seeking

to defeat such title, unless it is shown that the claimant’s predecessor in title did not

intend to convey the disputed parcel.”) (internal quotation marks omitted). We need

not attempt to further parse our decision in Sears on this issue, however, because

even if Sears were properly understood to have held that an express conveyance is

required, we are bound to follow Brumbaugh rather than Sears. See, e.g., Thomas

v. United States, 731 A.2d 415, 420 n.6 (D.C. 1999) (“Where a division of this court

fails to adhere to earlier controlling authority, we are required to follow the earlier

decision rather than the later one.”).

In sum, we hold that the trial court erred in concluding that tacking was

precluded in this case unless the deed on its face conveyed an adverse-possession

interest from Ms. Harleston to the Gans.

B.

The holding that express conveyance is not a prerequisite to tacking does not

fully resolve this appeal. A number of courts following the general rule permitting

tacking in the absence of express conveyance carve out an exception to that general

rule where (a) the deed at issue expressly excludes the disputed parcel or (b) the 13

seller did not intend to turn over possession of the disputed parcel to the buyer. E.g.,

2 Am. Jur. 2d Adverse Possession § 77; 2 C.J.S. Adverse Possession § 172. This

court in Brumbaugh did not address the question whether such exceptions should be

recognized, presumably because no such argument was presented to the court. 269

F. at 472-74. Sears, however, did address a similar argument, and concluded that as

to two of the lots at issue the prior owner “expressly disavowed” conveyance of

rights to the disputed property. 5 A.3d at 663. Specifically, as to one of those lots,

the deed had an attached plat expressly stating that the disputed property was not

being conveyed; and as to the other lot the seller orally advised the purchaser that

the disputed property at issue did not convey. Id. Sears held that these disavowals

were an additional reason to preclude tacking. Id. Sears’s recognition that express

disavowal will preclude tacking is not contrary to our holding in Brumbaugh, and it

is therefore binding on us. More generally, we accept the principle that a period of

adverse possession by a prior owner may not be tacked if (1) the prior owner

expressly disavows transfer of an interest in the disputed property to the subsequent

owner, or (2) the party claiming adverse possession fails to show by clear and

convincing evidence that the prior owner intended to turn over to the subsequent

owner possession of the property in dispute. See generally Sears, 5 A.3d at 658

(“[T]he party seeking to establish a claim by adverse possession has the burden of

doing so by clear and convincing evidence.”) (internal quotation marks omitted). 14

The dissent, however, argues for a different exception to the majority

approach we adopted in Brumbaugh. Infra at 25-36. That exception apparently is

as follows: tacking is generally impermissible if the deed at issue in any way

mentions, but does not convey, the disputed property. Id. at 33-35. That is not the

exception we applied in Sears, in which we emphasized that the sellers of the

property at issue “expressly disavowed” an intent to transfer the disputed property.

5 A.3d at 663. Nor do the other cited authorities support the formulation advocated

by the dissent. Some do state that actual transfer of possession is ordinarily sufficient

to permit tacking when the deed at issue omits reference to the disputed property.

E.g., 2 C.J.S. Adverse Possession § 172 (referring to property omitted from deed

description). But those authorities do not state the converse proposition apparently

advanced by the dissent: that tacking is precluded any time the deed at issue makes

any mention of the disputed property. Moreover, a number of the authorities at

various points use formulations that contradict the theory of the dissent. See, e.g.,

Viking Refrig., 114 P. at 240-41 (“All the law requires is continuity of possession,

where it is actual.”) (internal quotation marks omitted); Tiffany, The Law of Real

Property § 1146, at 776 (tacking may be based “upon any connecting relationship

which will prevent a break in the adverse possessions and refer the several

possessions to the original entry, and for this purpose no written transfer or 15

agreement is necessary”). Finally, the dissent’s theory would seemingly lead to

unjustified results. For example, imagine a case involving a deed that referred

generally at some point to an adjacent alley but did not by its terms convey the alley.

According to the theory of the dissent, tacking would be precluded in such a case,

even if (1) the deed did not expressly disavow conveyance of the alley; (2) the parties

to the deed established that the mutual intent was to convey the alley and that the

property description in the deed was inadvertently erroneous; and (3) the seller had

previously possessed the alley openly and notoriously; (4) contemporaneously with

the sale, the seller relinquished actual possession of the alley to the buyer; (5)

thereafter, the buyer possessed the alley openly and notoriously; and (6) taken

together, the two periods of open and notorious possession exceeded fifteen years.

Such a conclusion would be inconsistent with the logic of the majority approach to

tacking that we adopted in Brumbaugh.

1.

In granting summary judgment to the Church, the trial court did not rely on

exceptions to the general rule we adopted in Brumbaugh. It also is not entirely clear

whether the Church relies on such exceptions in this court. The dissent, however,

takes the view that the trial court’s summary-judgment ruling can be upheld on the 16

alternative grounds that (1) the deed between Ms. Harleston and the Gans expressly

disavowed transfer of an ownership interest in the driveway, infra at 37-38; and (2)

Ms. Harleston’s affidavit was insufficient to support a finding that Ms. Harleston

intended to transfer an ownership interest in the driveway to the Gans, infra at 35

n.10, 37-38. We disagree.

First, the deed between Ms. Harleston and the Gans did not contain any

express disavowal as to the driveway. It is true that the driveway did not fall within

the bounds of the property transferred in fee simple by the deed. It is also true that

the deed explicitly conveyed an easement over the driveway. But that only shows

that the deed did not affirmatively transfer any ownership interest to the driveway.

Our holding in Brumbaugh establishes that the mere absence of such an affirmative

grant of title is not fatal to tacking. What was present in Sears but is missing in the

present case is express language of disavowal. Specifically, for example, one of the

deeds at issue in Sears explicitly stated that the disputed property was not being

conveyed. 5 A.3d at 663.

Second, the dissent takes the view that the plain meaning of Ms. Harleston’s

affidavit is that Ms. Harleston understood herself to be conveying only an easement

interest in the driveway, not an ownership interest. Infra at 35 n.10. We note at the 17

outset that the dissent’s interpretation of Ms. Harleston’s affidavit is contrary to the

interpretation given to the affidavit by both parties and by the trial court, all of whom

have read the affidavit as reflecting the understanding that Ms. Harleston had and

conveyed an ownership interest in the driveway. In any event, we conclude that the

dissent’s proposed interpretation of Ms. Harleston’s affidavit is not at all plain. Ms.

Harleston’s affidavit notes that her purchase deed referred to an “easement area,” an

area that the affidavit then defines as “the ‘Easement.’” The affidavit goes on to

aver that Ms. Harleston put a fence across the Easement to preclude use of the

Easement by others. The affidavit concludes by averring that Ms. Harleston believed

that she owned the Easement and the she intended to convey the Easement to the

Gans. We conclude that this affidavit can reasonably be understood to reflect an

intent to convey ownership of the driveway. Most importantly, if Ms. Harleston

believed that she only had an easement over the driveway, rather than an ownership

interest, she would have had no legal basis to take the step of erecting a barrier to

prevent all others from using the driveway. Moreover, the affidavit can reasonably

be understood to use the word “Easement” to define an area that Ms. Harleston

believed she owned, not a description of Ms. Harleston’s legal interest in that area.

2. 18

We finally address two comments the trial court made about Ms. Harleston’s

affidavit, to explain why those comments do not persuade us that summary judgment

is appropriate. First, the trial court noted that Ms. Harleston’s affidavit was executed

in 2016 and thus was not contemporaneous with the sale of the property. That,

however, does not make the affidavit irrelevant to the issue of Ms. Harleston’s intent.

See Penn v. Ivey, 615 P.2d 1, 2, 4 (Alaska 1980) (finding sufficient evidence of intent

to support tacking based on trial testimony of parties about intent as to transactions

that occurred in 1966 and 1973); Kennedy v. Findley, 552 S.W.2d 352, 355 (Mo. Ct.

App. 1977) (same as to trial testimony about intent as to transaction that occurred in

1957). Our decision in Sears is not to the contrary. In Sears, we held that a non-

contemporaneous affidavit was not sufficient to contradict the unambiguous

language of a deed. 5 A.3d at 661 n.15. But that holding addressed the question

whether, despite its unambiguous language, the deed could be interpreted to convey

title to the disputed property. That holding in Sears did not address the different

question whether, considering all of the circumstances, the seller intended to grant

an interest in the disputed property sufficient to permit tacking of adverse-possession

periods. Id.

Second, the trial court interpreted Ms. Harleston’s affidavit as reflecting Ms.

Harleston’s erroneous belief that she owned the driveway at the time of the sale. In 19

fact, Ms. Harleston at that time did not own the driveway, instead having at most an

inchoate adverse-possession interest. Ms. Harleston’s mistake as to the precise legal

nature of her interest in the driveway, however, does not undermine the relevance of

her affidavit to the critical point: whether Ms. Harleston intended to grant to the

Gans such interests as she may have had in the driveway. See generally Smith, 569

A.2d at 1192 (“[O]ur jurisdiction recognizes the doctrine that a claim of adverse

possession may be rooted in ignorance or mistake.”) (internal quotation marks

omitted).

To summarize, we hold that (1) tacking is permissible in this case even if the

deed between Ms. Harleston and the Gans did not convey any ownership or adverse-

possession interest in the driveway; (2) tacking would have been precluded if the

deed between Ms. Harleston and the Gans expressly disclaimed any transfer of an

ownership or adverse-possession interest in the driveway, but there was no such

disclaimer in this case; (3) tacking is permissible in this case only if the Gans can

show by clear and convincing evidence that Ms. Harleston intended to surrender

possession of the driveway to the Gans; and (4) Ms. Harleston’s affidavit creates a

dispute of material fact on the issue of her intent. 20

We therefore conclude that the trial court erred in granting summary judgment

on the ground that tacking was precluded as a matter of law. In light of our

disposition, we need not and do not address the Gans’ claim that the trial court erred

by granting summary judgment when there was an outstanding discovery request.

We also do not address the alternative grounds for summary affirmance raised by

the Church for the first time on post-argument supplemental briefing.

For the foregoing reasons, we vacate the judgment of the Superior Court and

remand for further proceedings.

So ordered.

Separate statement of THOMPSON, Associate Judge: I agree with Judge Ruiz

that our holding in this case is “problematic from a policy perspective” and that

“[t]he rules we adopt to recognize transfer of right to ownership by adverse

possession should be in harmony with and not undermine the important purposes

underlying the requirement of recordation of deeds: notice, stability, clarity, and

certainty.” However, I join Judge McLeese’s opinion because I agree with him that

we are bound by the holding of Brumbaugh to reach the result it reaches. 21

RUIZ, Senior Judge, dissenting: I cannot agree with the majority that the trial

court’s grant of summary judgment to appellee, the title owner of the disputed

driveway, should be reversed and the case remanded to permit further consideration

of extraneous evidence of the grantor’s intent to convey inchoate adverse possession

rights in the driveway to appellants. Appellants memorialized their transaction with

respect to the disputed parcel in a written deed. As the deed is clear on its face that

there was no transfer to appellants of whatever inchoate rights the grantor might

have had to the driveway, there is no need to remand to consider parol evidence.

Summary judgment to the title owner was therefore the correct resolution of this

case.

The law of adverse possession can be arcane, at times inconsistent, and many

times has to be extracted from old cases that do not fully explain their reasoning.

This is even more so when it comes to the rules that apply to tacking of inchoate

rights to adverse possession. But there are certain guideposts. “‘Tacking’ has been

defined as ‘successive, uninterrupted possessions by persons between whom privity

exists. If such tacked possessions constitute one continuous adverse possession for

the statutory period it will be sufficient.’” Sears v. Catholic Archdiocese of

Washington, 5 A.3d 653, 662 (D.C. 2010) (quoting Bonds v. Smith, 143 F.2d 369,

371 (D.C. Cir. 1944). The rules that govern claims of adverse possession and that 22

permit tacking of successive periods of adverse possession to satisfy the statutory

limitations period are designed to favor the title owner. These rules include 1) the

heightened burden of proof imposed on the adverse-possession claimant who must

prove his or her claim by clear and convincing evidence1; 2) the requirement of

privity between those who seek to cumulate periods of adverse possession; and 3)

the strict requirement of uninterrupted actual adverse possession between parties

with privity. If any of these requirements is not proved by the requisite clear and

convincing evidence, tacking is not permitted “because the moment the first

occupant quits possession, the constructive possession of the owner is restored, and

the entry of the next occupant constitutes him a new disseisor.” Id. (quoting Gore

v. Hall, 112 A.2d 675, 678 (Md. 1955)). Whether there has been actual continuous

adverse possession for the requisite time even if tacking were allowed in this case is

a disputed issue. The question of law that is presented, and on which the trial court

granted summary judgement, is whether there is the requisite privity between

appellants and their grantor to permit tacking.

1 “Because ‘courts presume that one who occupies the land of another does so with the latter’s consent,’ the party seeking to establish a claim by adverse possession has the burden of doing so by ‘clear and convincing evidence.’” Sears, 5 A.3d at 658 (quoting Smith v Tippett, 569 A.2d 1186, 1190 (D.C. 1990)). 23

“Privity” is a “connection or relationship between two parties, each having a

legally recognized interest in the same subject matter (such as a transaction,

proceeding, or piece of property).” Black’s Law Dictionary (10th ed. 2014). Privity

can be established in different ways, for example, by descent, devise, purchase or

grant. “Generally, a grantee may not tack the adverse possession of the grantor over

land not included in the conveyance of other land, to the grantee’s own subsequent

possession unless such omission was included in a correction deed or unless the

claimant relies on an actual transfer rather than on the deed to establish privity.” 2

C.J.S. Adverse Possession § 172 (2019). Tacking is “generally [not permitted]

where the disputed land was not mentioned, included, or contemplated in a deed or

conveyance . . . .” Id. “One who has acquired property by deed and seeks to tack

the prior adverse possession of his or her grantor onto his or her own possession, to

establish continuity of possession for purposes of adverse possession, ordinarily

must show an express reference to or description of the disputed property in the

grantor’s deed. Possession generally cannot be tacked to make out title by adverse

possession where the deed by which the last occupant claims title does not include

the land in dispute.” 3 Am. Jur. 2d Adverse Possession § 76 (2019); see Sears, 5

A.3d at 658, 663; Messer v. Hibernia Sav. & Loan Soc., 84 P. 835, 837 (Cal. 1906)

(“A claimant of land by adverse possession cannot tack to the time of his possession

that of a previous holder, where the land is not included in the boundaries in the deed 24

from such holder.”); Senez v. Collins, 957 A.2d 1057, 1075 (Md. 2008) (“[G]enerally

the rule is 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.”); Sheldon v. Michigan Cent. R. Co., 126 N.W. 1056, 1059 (Mich. 1910)

(“The general rule is that possession cannot be tacked to make out title by

prescription where the deed under which the last occupant claims title does not

include the land in dispute.”); Ramsey v. Ramsey, 49 S.E.2d 476, 477 (N.C. 1948)

(“It is true there is evidence tending to show that [the defendant’s] predecessor in

title used [the disputed land] as he used it. But [the defendant’s] deed did not convey

or purport to convey [the disputed land] or the triangular tract upon which [the

disputed land] is located. The description contained in defendant's deed does not

embrace it. . . . Therefore, he is not permitted to tack their possession, even if adverse

within the meaning of the law, to his possession so as to show adverse possession

for the requisite statutory period.”); Baylor v. Soska, 658 A.2d 743, 746 (Pa. 1995)

(“The only method by which an adverse possessor may convey the title asserted by

adverse possession is to describe in the instrument of conveyance by means

minimally acceptable for conveyancing of realty that which is intended to be

conveyed.”) (cited in Sears, 5 A.3d at 660); Tissino v. Mavrakis, 228 P.2d 106, 116

(Wyo. 1951) (quoting 2 C.J.S., Adverse Possession, § 131 d, which states “[a]s a

general proposition, a claimant may not tack to his claim arising from his possession 25

of a disputed piece or strip of land the possession of his grantor where the disputed

land was not mentioned, included, or contemplated in a deed or conveyance to him

of other land.”).

There can be exceptions to the general rule, however, as when the disputed

parcel was inadvertently omitted from the deed and there is a subsequent deed

correcting the oversight. 2 C.J.S. Adverse Possession § 172. Some cases allow

tacking where the disputed parcel is “omitted from a deed description, especially

contiguous property” and there is proof that the grantor “intended to and actually

turned over possession.” Id.2 This appears to have been the situation in Brumbaugh

2 The treatises cited in the majority’s opinion, see ante at 8-10, also emphasize that tacking might be permitted in situations where the deed is silent with respect to the disputed parcel. See 16 Michael Allan Wolf, Powell on Real Property § 91.10[2] (2009) (referring to “conveying instrument [that] contains no legal description of the property” and property “omitted from a deed description,” at 91-73; “adjacent land not covered by the deed,” at 91-76; 3 Am. Jur. 2d Adverse Possession § 76 (“If, in connection with a conveyance of lands, there are circumstances showing an intent to transfer to the grantee the possession of other adjacent land occupied by the grantor, but not covered by the deed, there is privity, and the grantee is entitled to tack the period of the grantor’s occupancy to the grantee’s own in establishing title by adverse possession to the land not conveyed.”) (emphasis added); 2 C.J.S. Adverse Possession § 172 (referring to tacking of adverse possession periods with respect to adjacent property “omitted from a deed description,” the “undescribed part,” and land that “adjoins land described in a deed, but is not described in the 26

v. Gompers, 269 F.472 (D.C. Cir. 1920), where the deed did not mention the disputed

parcel. See ante at 6-7. I cautiously say “appears” because the Brumbaugh opinion

does not explain its rationale for allowing tacking in that case. All the court says is

that “a suggestion” was made that tacking should not be permitted and that it was

rejected. We do not know what that suggestion was or why the court decided against

it. We do not know whether the court was even focused on the contents of the deed

with respect to the disputed parcel. What we do know, because we have obtained

the record in that case — although the briefs could not be located — is that the deed

did not convey or mention the disputed parcel as to which adverse possession claims

were made.3

deed.”). As discussed in the text, this is not a case where the deed is silent with respect to the disputed parcel as the driveway is expressly referred to in the deed, as a right of way. 3 The 100-year-old Brumbaugh opinion was not presented to this court when it decided Sears, nor was it cited by the parties in this appeal until the court brought it to their attention and requested supplemental briefing. Counsel’s failure to identify it as possibly relevant precedent in two appeals before this court is telling. 27

Faced with such a cryptic opinion, we can try to discern what the court had in

mind from the cases it cites. They are not much help, however, to the majority’s

interpretation. Of the five cases cited in Brumbaugh, two relied on deeds that

conveyed the disputed property, Reid v. Anderson, 13 App. D.C. 30, 34 (App. D.C.

1898),4 and Lea v. Polk County Copper Co., 62 U.S. 493 (1858).5 Two cases cited

in Brumbaugh allowed tacking where there was a deed that did not convey (or

mention) the disputed parcel as to which adverse possession rights were claimed.

See St. Louis Sw. Ry. Co. v. Mulkey, 139 S.W. 643, 644 (Ark. 1911), and Viking

Refrigerator & Mfg. Co. v. Crawford, 114 P. 240, 241 (Kan. 1911). The fifth case

4 The court in Reid rejected the claim of adverse possession because “there was no such open, actual, exclusive and continued possession of the premises by [the claimant] and those under whom he claims, for the full period of twenty years, as would make a good defensible title as against the party having a clear and paramount title by deed.” Id. at 36. 5 In Lea two persons claimed to own property pursuant to two different deeds which purported to convey the same property. The question for the court in Lea was whether one of the deeds, which was unregistered and held by a bona fide purchaser, qualified for confirmation under a Tennessee limitations act “intended to protect and confirm void deeds purporting to convey an estate in fee simple, where seven years’ adverse possession had been held under them.” 62 U.S. at 505. The court held that it did and dismissed the action for ejectment. There was no question that the two successive adverse possessors that made up the seven years had conveyed the property by deed between them. See id. at 498. 28

allowed tacking based on several transfers of actual possession, mostly between

family members, where there was no writing at all documenting the transfers. See

Illinois Steel Co. v. Paczocha, 119 N.W. 550, 552 (Wis. 1909).6

Notwithstanding Brumbaugh’s obscure text and the wide variety of

circumstances involved in the authorities it cites, my colleagues assert that

Brumbaugh adopted what they describe as the “majority rule” that generally allows

tacking of inchoate adverse-possession rights whenever there is continuous adverse

possession by two successive occupants of adjacent property and the first occupant

sold the adjacent property to the second occupant. See ante at 8. That broad

interpretation is unwarranted, however, as it reads into Brumbaugh a holding that

goes well beyond the facts presented and authority cited in that case. The question

is: what did Brumbaugh hold and does it govern this case? The answer is that

Brumbaugh’s holding, to the extent we can divine it, does not govern this case

because the facts are distinctly different.

6 Because there was no writing or deed that set out the parties’ understanding, the court allowed parol evidence about the circumstances of the successive transfers. See 119 N.W. at 553. 29

In Brumbaugh, tacking of the grantor’s adverse-possession rights was allowed

where the grantee of the property continued to use adversely an adjacent disputed

parcel of land not mentioned in the deed. The Brumbaugh opinion did not say, one

way or another, whether the same result would have obtained if the parcel had been

referred to in the deed. It did not need to because it was not a fact in evidence. A

court’s opinion is to be understood in the context of its factual setting. See District

of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C. 1996); see also Levy v. District

of Columbia Rental Hous. Comm'n, 126 A.3d 684, 690 (D.C. 2015). Moreover, the

scope of a court’s holding is measured by whether a factor is an “integrated

component” that is “essential to the outcome.” Parker v. K & L Gates, LLP, 76 A.3d

859, 874 (D.C. 2013) (Ferren, S.J., concurring for the court).7 Particular care should

be taken not to overread a court’s opinion as adopting an expansive holding. See id.

7 As we explained in Parker,

This court has “equated binding precedent under M.A.P. with the rule of stare decisis,” which “is never properly invoked unless in the decision put forward as precedent the judicial mind has been applied to and passed upon the precise question.” Accordingly, for purposes of binding precedent, a holding is a narrow concept, a statement of the outcome accompanied by one or more legal steps or conclusions along the way that — as this court and other have repeatedly held — are “necessary” to explain the outcome; other observations are dicta.

76 A.3d at 873 (quoting United States v. Debruhl, 38 A.3d 293, 298 (D.C. 2012). 30

at 876 (“The prior decision should not be construed more broadly by reference to

nonessential, often ambiguous, sentences that can trigger hours of discussion as to

whether the earlier decision was a binding holding or dictum.”); see also Albertie v.

Louis & Alexander Corp., 646 A.2d 1001, 1005 (D.C. 1994). This caution is

particularly prudent where (as in Brumbaugh) the court does not identify the precise

issue it is deciding or explain its rationale. Applying these principles, Brumbaugh

should be interpreted as holding that the fact there is no conveyance of the disputed

parcel in the deed does not preclude tacking where there is continuous adverse

possession and sale from the first adverse occupant to the second. It does not stand

for the much broader proposition asserted by the majority that tacking is permissible

so long as those conditions are met, regardless of what the deed says. And

Brumbaugh most definitely does not address, much less decide, the consequence,

for tacking, of the type of reference to the disputed parcel contained in the deed in

this case.

That issue was addressed head on by this court in Sears, where

notwithstanding transfer from seller to buyer of adjacent property and continuous

possession of the disputed parcel — the conditions in Brumbaugh — tacking was

precluded because the grantees could not establish the requisite privity with their

grantors. See Sears, 5 A.3d at 663. Privity could not be shown because the deeds at 31

issue did not mention the disputed parcel as part of the conveyance and, “in

addition,” the grantors had alerted the grantees (one orally, and the other in a note to

a plat attached to the deed) that the disputed parcel did not convey. Id. Brumbaugh

was not an impediment to Sears’s holding because Sears addressed a different

question, not presented or contemplated in Brumbaugh, where the grantees could not

show by clear and convincing evidence that they had the requisite privity with the

grantor with respect to the disputed parcel. This case, like Sears, is also one in which

tacking is not permissible because the grantees cannot make the requisite showing

of privity. Here, unlike in Brumbaugh, the deed between the parties is not silent

with respect to the disputed driveway. To the contrary, the deed expressly mentions

the driveway, excludes it from the conveyancing paragraph and specifically and

accurately refers to it as a “right of way,” further identifying it by reference to the

liber and folio recordation of an easement granted over that parcel that has been

recorded in the land records of the District of Columbia since 1949.8 In this case,

8 The 2008 deed to appellants:

Convey[s] . . . all that/those certain piece(s) or parcel(s) of land, together with the improvements, rights, privileges and appurtenances to the same belonging, situate in the District of Columbia, and as described in Exhibit A attached hereto and made a part hereof. 32

the deed is even clearer than in Sears that no transfer of adverse-possession rights to

the driveway was intended and thus the required privity does not exist.

There is no need for a remand because there is no reason to think that there

was any ambiguity or mistake9 in the deed that warrants looking outside its four

corners to ascertain the intent of the parties at the time of the conveyance. In addition

to describing the property being conveyed by metes and bounds, lot and square

number, the deed adds that it conveys “the same property as described in Deed from

Margaret C. Newsom dated May 23, 1998.” Supra note 8, at 31. There is no

Being all of the same property as described in Deed from Margaret C. Newsom dated May 23, 1998, recorded June 5, 1998 among the records of the Recorder of Deeds for the District of Columbia as Instrument No. 43251 . . . .

Exhibit A, entitled “Legal Description,” refers to “Lot 50 in Square 3366 . . . recorded in Liber No. 75 at Folio 163 . . . TOGETHER WITH a right of way more particularly described in Liber 8973 at [F]olio 581, of said land records.” (emphasis added).

The right of way described in Exhibit A is the driveway appellants now claim to own. 9 The majority refers to a situation with “unjustified results,” where the description of the property conveyed in the deed was “inadvertently erroneous.” Ante at 15. But as mentioned, supra note 2, at 25, in such cases a corrected deed can be filed. In any event, there is no assertion that descriptions in the deed were erroneous. To the contrary, the references to the driveway were specific and accurately described it as a right of way. 33

contention made or evidence presented that in 1998 Ms. Newsom, the predecessor

to appellants’ grantor Ms. Harleston, had any inchoate adverse-possession rights to

the driveway; appellants’ disputed contention is that adverse possession began with

Ms. Harleston’s acquisition of the property and erection of a fence across the

driveway sometime between 1998 (when she acquired the property from Margaret

Newsome) and 2000. See ante at 3. Therefore, by its precise legal description of

the property being conveyed, by additionally fixing the ownership rights being

conveyed with reference to those existing in 1998, and by its express and accurate

description of the grantor’s interest in the driveway as a right of way, the deed in this

case could not be more clear. Transfer of inchoate adverse-possession rights in the

driveway was simply not contemplated by the parties as coming within the privity

created by their sale transaction.

The rule the majority adopts is not only not mandated by Brumbaugh, but also

contravenes fundamental principles of contract law we have long followed. Where

parties enter into a transaction that is documented in a writing, it is that writing that

contains the intent of the parties with respect to their agreement on the subject matter.

Consistent with this principle, in determining whether there is the necessary privity

to allow tacking of adverse-possession rights to an adjacent parcel, it is necessary to

look at the deed in the first instance as Sears did. This is reasonable because any 34

adverse possessory rights to an adjacent parcel will have arisen in connection with

use appurtenant to the titled property being conveyed in the deed and the parties can

be expected to have been aware of both parcels, as was the case in Sears, and in this

case. The deed (which appellants call “immaterial”) is the best evidence of the

parties’ intentions in establishing their relationship.

In cases where, as here, there is a conveyance by deed and the deed refers to

the disputed parcel, the deed is the touchstone with respect to that parcel and we

should resist going beyond the deed to permit a broad-ranging review of extraneous

evidence of the grantor’s subjective intent as the majority proposes. The majority’s

approach is inconsistent with well-established law on the interpretation of deeds and

the policy in favor of public recordation of land titles. “We interpret deeds as we do

contracts, i.e., under the ‘objective law of contracts.’ This means that ‘the written

language embodying the terms of an agreement will govern the rights and liabilities

of the parties [regardless] of the intent of the parties at the time they entered into the

contract . . . .’” Joyner v. Estate of Johnson, 36 A.3d 851, 855 (D.C. 2012) (internal

citations omitted and alteration in original). The majority gives license to set aside 35

a written recorded instrument that addresses the disputed parcel in favor of a search

for parol evidence, including evidence of previously unexpressed subjective intent.10

The majority’s holding is deeply problematic from a policy perspective. The

doctrine of adverse possession — which recognizes ownership only under specific,

narrow conditions — is an exception to the general rule of property ownership

through acquisition of title by means of instruments (e.g., deeds, wills) that are

readily verifiable and generally available in public records. The rules we adopt to

10 Even if we were to look beyond the deed to divine the grantor’s intent, the affidavit of Ms. Harleston presented by appellants plainly states that she believed she had an “easement” in the driveway and that she intended to “convey ownership of the easement.” Ms. Harleston, who is a lawyer, and who signed an affidavit to be presented in court, should be presumed to have used the legal term “easement” according to its plain and longstanding meaning. See Easement, Black’s Law Dictionary (10th ed. 2014) (“an interest in land owned by another person, consisting in the right to use or control the land . . . for a specific or limited purpose. . . .”) (emphasis added). The majority’s strained reading of the affidavit, and its attempt to interpret surrounding circumstances to support an atextual interpretation, ante at 17-18, simply cannot be squared with what the affidavit actually says. The plain language of Ms. Harleston’s affidavit does not say that she claimed ownership of the driveway or intended to convey inchoate adverse-possession rights to it. The affidavit plainly states the opposite, that she had an easement to use a driveway owned by someone else.

Evidence that Ms. Harleston erected a fence that, appellants claim, prevented appellee from using the driveway may support her adverse possession, but it is hardly evidence of her intent to transfer to appellants whatever inchoate rights her adverse possession might have created. See ante at 17. As discussed above, both the deed she executed at the time she sold her property to appellants and the affidavit she signed for them in this litigation say she was conveying a right of way in the driveway. 36

recognize transfer of right to ownership by adverse possession should be in harmony

with and not undermine the important purposes underlying the requirement of

recordation of deeds: notice, stability, clarity, and certainty. See, e.g., Smart v.

Nevins, 298 A.2d 217, 219 (D.C. 1972) (“It is fundamental that the purpose of

recordation is to protect the rights of bona fide purchasers, creditors, assignees, and

others relying upon the indicia of record ownership.”); Young v. Howard, 120 F.2d

712, 713 (D.C. Cir. 1941) (“A primary purpose of the recordation of an instrument

is to give notice of its existence to those about to deal with the property involved.

Such persons are protected by, and charged with, notice of the recorded

instrument.”); see also D.C. Code § 47-1431 (a) (2015 Repl.) (“Within 30 days after

the execution of a deed or other document by which legal title to real property . . . is

transferred . . . all transferees . . . shall record a fully acknowledged copy of the deed

or other document, including the lot and square number of the real property

transferred or encumbered, with the Recorder of Deeds of the District of

Columbia.”).11

11 As the Supreme Court of Pennsylvania has persuasively observed, “the entire concept of ‘circumstances’ in the context of tacking is misplaced”: 37

These important purposes were fully met in this case by a deed that clearly

described the property transferred in detail, with a metes and bounds description,

reference to square and lot number, and liber and folio recordation. That detailed

description did not include the disputed driveway. The deed also expressly referred

to the driveway as a right-of-way that has been recorded in the District of Columbia

since 1949, with specific reference to its liber and folio numbers, without any

indication that there was any change and that the grantor had a claim to ownership

by adverse possession. The majority’s holding undermines the purpose of

recordation generally, and flies in the face of the documents actually recorded in this

case by allowing consideration of the grantor’s subjective and heretofore

Interested parties have a right to discern from the record of the state the title of any parcel of land. If tacking were to be permitted because of vague, undefined “circumstances,” there could be and most likely would be no way for one not a party to the conveyance to know this. But the law mandates that a person asserting a claim of adverse possession make this assertion openly and notoriously to all the world. There must be no secret that the adverse possessor is asserting a claim to the land in question. If the adverse possessor’s claim is to be passed onto a successor in title, therefore, there must be some objective indicia of record by which it can be discerned with some degree of certainty that a claim of title by adverse possession is being made and that the duration of this claim has been passed on to a successor in title.

Baylor, 658 A.2d at 745-46 (internal citation omitted). 38

unexpressed intent to convey adverse possession rights against the record owner of

title. Ante at 19-20.

Finally, I would point out that even under the rule announced by the majority,

two necessary elements are not met in appellants’ case. The majority asserts that to

show the privity required to permit tacking, a claimant must prove, by clear and

convincing evidence, that (1) the claimant acquired an adjacent property, (2) the

claimant’s grantor and the claimant were in continuous adverse possession of the

property at issue; (3) the deed between the claimant’s grantor and the claimant did

not expressly disavow transfer of an ownership interest in the property at issue; and

(4) the claimant’s grantor intended to surrender possession of the property at issue.

Ante at 7-8, 19-20. The first element is met, but the second element is factually

disputed. It is the third and fourth elements that cannot be met in this case as a matter

of law.

The deed in this case expressly disavowed any inchoate adverse possessory

interest in the driveway by specifically referring to a “right of way” in that parcel.

As with “easement,” the term “right of way” is well understood to mean a right to

“pass through property owned by another person.” Right-of-Way, Black’s Law 39

Dictionary (10th ed. 2014) (emphasis added). This is the type of disavowal of an

ownership interest, similar to one made in Sears,12 that the majority recognizes as

precluding tacking. Ante at 19-20. The deed also disavows transfer of any

ownership interest in the driveway by stating that the property being conveyed is “all

of the same property” that was transferred to the grantor in 1998, before any of the

alleged adverse possessions began. See supra note 8, at 31. The deed therefore does

not convey any rights that appellants’ grantor might have acquired after 1998.13

Thus, by its terms the deed did expressly disavow transfer of inchoate adverse-

possession rights in the driveway. It is difficult to conceive — and the majority does

not say — what more would be required to constitute an “express disavowal” of the

transfer of adverse possession rights.

Nor does the evidence outside the deed suffice to remand in search for support

that appellants’ grantor, Ms. Harleston, intended to transfer adverse possession

12 Sears, 5 A.3d at 655 (“As to lot 816, Ms. Downey warned Sears when he bought it in 1996, that ‘we always enjoyed the use of this property, that we held it but we didn’t have a deed to it, and that he could legally pursue this if he wanted to . . . . I said that all of the land did not convey. Whatever was on the deed was on the deed, but they had the full use of the yard and that we had always had it too.’”) (emphasis in original). 13 Appellants allege that their grantor erected a fence across the driveway sometime between the time when she purchased the property in 1998 and 2000. Ante at 3. 40

rights to the driveway. While summary judgment is inappropriate where there are

genuine disputes of material fact, there is no genuine dispute here in light of the

exacting burden — clear and convincing evidence — appellants must bear. The

deed is the foremost expression of the intent of the parties to the transaction. Both

in the deed contemporaneous with the sale of land in 2008 and even in Ms.

Harleston’s subsequent affidavit prepared for the purpose of this litigation in 2016,

it is clear from the face of both documents that there was a disavowal of ownership

of the driveway, which always and correctly described the grantor’s rights in the

driveway as a right of way and an easement. In the face of these two written

documents, appellants cannot, as a matter of law, succeed in establishing with the

requisite convincing clarity that the deed did not expressly disavow ownership in the

driveway or that the grantor intended to convey inchoate adverse possessory rights

to the driveway.14 Thus, even applying the elements the majority would require to

permit tacking, the record in this case does not warrant a remand.

14 The sufficiency of evidence to meet the clear and convincing standard of proof in light of the unequivocal language of the deed and plain meaning of the affidavit is a question of law we decide de novo. 41

As tacking by appellants was not permissible, I dissent from the majority’s

decision to reverse and remand for further proceedings. I would affirm the trial

court’s grant of summary judgment to appellee, the title owner of record.