Recovable Trust Agreement of Nancy E. Cook dated October 2, 2006 v. John R. Stanch

• Court: Court of Chancery of Delaware
• Decided: January 27, 2022
• Docket: CA2021-0972-SG
• Status: Published

Opinion

COURT OF CHANCERY OF THE SAM GLASSCOCK III VICE CHANCELLOR STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE 34 THE CIRCLE GEORGETOWN, DELAWARE 19947

Date Submitted: January 26, 2022 Date Decided: January 27, 2022

Scott G. Wilcox, Esquire John A. Sergovic, Jr., Esquire Moore and Rutt, P.A. Sergovic Carmean Weidman 1007 N. Orange Street McCartney & Owens, P.A. Suite 446 25 Chestnut Street Wilmington, DE 19801 Georgetown, DE 19947

Armand J. Della Porta, Jr., Esquire Marshall Dennehey Warner Coleman & Goggin 1007 N. Orange Street Suite 600 Wilmington, DE 19801

Re: Revocable Trust Agreement of Nancy E. Cook dated October 2, 2006 v. John R. Stanch, et al. C.A. No. 2021-0972-SG

Dear Counsel:

Before me is the Petitioner’s action to quiet title to a portion of lots 29 and 30

of the Keen-Wik Subdivision, on the northern end of Assawoman Bay in rural

Selbyville.1 The original deed out to those lots (which I will refer to collectively as

“Lot 30”) was from Charles and Pearl Adkins to Joseph and Lenore Frazier in 1965

1 A graphic representation of the area in dispute is included herein as Exhibit A. (the “Lot 30 Deed”). The Lot 30 Deed provided that Lot 30 ran from the easterly

side of Bay Berry Road, extending to the east “such a distance as will reach [Roy]

Creek” as surveyed and plotted by George B. Cropper. That survey of the plot plan

to Keen-Wik (the “Cropper Survey”) shows the southern boundary of Lot 30

extending from Bay Berry Road to the Roy Creek on a bearing of 86 degrees 49

minutes 55 seconds.

South of Lot 30, the adjoining lot was Lot 31. The original deed out to Lot 31

was from the Adkins to Dale and Helena Mumford (the “Lot 31 Deed,” and, together

with the Lot 30 Deed, the “Deeds Out”). It is consonant with the Lot 30 Deed, in

providing that Lot 31 runs from Bay Berry Road to Roy Creek as set out in the

Cropper Survey of 1959. Again, the Cropper Survey shows the northern boundary

of Lot 31 running from a point on Bay Berry Road on a line bearing 86 degrees 49

minutes 55 seconds to Roy Creek.

In dispute in this litigation is a narrow strip of land along the boundary of

Lot 30 and the parcel to the south now denominated as Lot 31A. The parties agree

that the line demarcating these lots starts at a common point on the east side of Bay

Berry Road marked by an iron pipe. Of this there is no dispute. The Petitioners

allege that the boundary between the properties is called for in the original Deeds

Out, running from the iron pipe to the Roy Creek on a bearing of 86 degrees 49

minutes 55 seconds (the “Bearing”). The property line running from the common

2 iron pipe (the “Common Point”) on the Bearing to the Roy Creek I shall refer to as

the “Division Line.”

The Respondents contend that the Division Line is not the true property line.

Instead, they claim a narrow triangle of land (the “Sliver”) with one side running

from the Common Point to a point on the bulkhead bordering Roy Creek, some 14

inches north of the easterly termination of the Division Line. I shall refer to this

proposed boundary line as the “Axios Line.”

This matter was submitted for an expedited trial on January 21, 2022 and

January 25, 2022, with further submissions on January 26, 2022. What follows is

my resolution of this boundary line dispute, in favor of the Petitioners.

First, I note, several issues were resolved on the record on the first day of trial.

The Petitioners had moved for adverse possession of the Sliver. The evidence

presented in their case in chief, I found, was inadequate to this purpose. Similarly,

the Respondents sought dismissal based on laches and lack of subject matter

jurisdiction. I denied those motions orally. The reasons for all the decisions

described above are adequately stated on the record and I will not revisit them here.

The dispute in this matter was sincere and the litigation hard-fought;

nonetheless, it is rather easily resolved. It arose via a mistake in the deed that created

the newly denominated Lot 31A, which the Respondents own. The evidence at trial

indicated that a prior owner of Lots 31 and 32, via deeds, recombined the lots and

3 then resubdivided them, presumably to adjust the interior boundary line between

Lots 31 and 32 to make them more valuable. The results were reconstituted Lots

31A and 32A. The Respondents rely on this origin deed for their lot as creating their

interest in the Sliver. That deed, from Robert and Helen Shepard to Roger and Ilene

Hammond, conveyed Lot 31A “being a resubdivision of Lot Number 31.” The

description in the deed of the line between Lot 30 and Lot 31A is consistent with the

Division Line. The northerly boundary of Lot 31A runs from the Common Point

“thence along and with the line of Lot Number 30, North 86 degrees 49 minutes 55

seconds East 100 feet, more or less, to the line of a wood bulkhead.” That is, the

deed explicitly adopts the Bearing and makes the Division Line the northern most

property line of 31A. The accompanying survey, done by John B. Gary, Inc. (the

“Gary Survey”), also adopts the Bearing as defining the northern property line.

Subsequent deeds in the Respondents’ chain of title also adopt the Bearing, including

the latest deed of October 21, 2019, between a Delaware LLC and the Respondents,

the Stanchs. The Respondents rest their argument to the Sliver on two anomalies in

the Gary Survey. First, the Gary Survey contains an illustration of Lot 31A showing

the northern property line running from the Common Point to an angle in the “wood

bulkhead” (the “Angle”). The Division Line actually runs to a point several inches

south of the Angle. Based on the Gary Survey, the Respondents argue that the Angle

must therefore coincide with the property line, but neither of the source deeds

4 reference the bulkhead, let alone call the run of the property line to an angle in the

bulkhead. Second, the Gary Survey calls for a run along the bulkhead of 49 feet to

the south. At that point, the survey calls for a southerly property line to Lot 31A

running back along a certain bearing to the point of origin on Bay Berry Road. The

western property line runs along Bay Berry Road for 50 feet back to the Common

Point. There is an error in this survey, as demonstrated by the fact that it does not

close using the distances and bearings given. The Respondents argue that the

distance called out along the bulkhead must control, and achieve that by running

their property north 14” along the bulkhead, incorporating the terminus of the Axios

Line.2

The Respondents had a survey done of the property by E. Scott Wallis of

Axios (the “Wallis Survey”), which agrees in large part with the Respondents

position, but for a different reason. The Wallis Survey begins in reliance on the Gary

Survey. As with all pertinent surveys, the Wallis Survey relies on the iron pipe at

the Common Point. Wallis notes that the Gary Survey depicts a found concrete

monument on the Division Line near the bulkhead. Wallis found what he contends

was the monument, broken but not materially disturbed in location. This monument

was not on the Division Line running on the Bearing to the bulkhead, however.

Instead, it was a few inches north of the Division Line. Wallis used this to create a

2 This creates a new bearing for the property line between Lots 30 and 31A, obviously. 5 new property line, the Axios Line, by extending the bearing from the iron pipe, over

the center of the broken monument, to the bulkhead. The resulting Sliver is the

property in dispute. The Axios Line terminates nearer the bulkhead angle than the

Division Line. It uses a different bearing for the northern and southern boundaries

to Lot 31A than called in the Deeds Out. Unlike the Gary Survey, it does close to a

point, however.

As to the Respondents’ theories, as stated above, the bulkhead Angle is not

itself a monument, and at the time of the Deeds Out in the 1960s, there is no evidence

that any bulkhead was in place. The Gary Survey’s depiction of a 49’ run along the

bulkhead may be relevant to the boundary between Lot 31A and 32A, but cannot

shift the boundary to the north from the original Division Line separating Lot 30 and

Lot 31.

The only remaining indication that the Axios Line is correct is the location of

the broken concrete monument. The Wallis Survey ignores the Bearing and relies

on the monument to set the boundary, based, according to his expert report, on the

established rule of deed and survey interpretation that man-made monuments trump

bearings in defining property transferred. There are two reasons this observation is

true but not dispositive.

The first is that the origin deeds do not contain a call to a concrete monument.

When the lots were created and deeded out in the 1960s, there was an origin point

6 along Bay Berry Road that the parties agree is now marked by the iron pipe at the

Common Point. The Division Line is described as running from that point, down a

bearing, 100 feet more or less, to “the Creek.” Roy Creek is a natural monument,

and thus takes precedence over the distance. Absent, however, is any mention of a

monument set on the line. The monument relied on by Wallis must, I conclude, have

been set by some subsequent surveyor. It does not control the boundary of the two

lots (Lot 30 and Lot 31(A)) because it is not a part of the Deeds Out.

The second reason I disregard the monument is the testimony of witnesses

including the surveyor for a survey 3 done before Wallis, who found the monument

on the Division Line, not on the Axios Line as found by Wallis. Moreover, the

monument as found by this survey was intact, rather than broken as found by Wallis.

Mr. Greg Hook, of Simpler Surveying & Associates, Inc., testified that he saw the

monument intact on the Division Line sometime after the completion of the Simpler

Survey in August 2020, and that he later saw the broken monument several inches

away on the Axios Line, in March of 2021, shortly after the Wallis Survey was

complete. I find both Hook and Wallis credible. I conclude, therefore, that the

monument was shifted between the times of these surveys. 4 I need not determine

3 The Petitions commissioned two surveys, by Simpler Surveying & Associates, Inc. (the “Simpler Survey”), done on August 18, 2020; and Adams-Kemp Associates, Inc., done on October 1, 2020. They, and all of the numerous other surveys of record apart from Wallis, adopt the Division Line as the boundary. 4 Wallis testified that a layman shifting a marker is a practical impossibility, and that his examination of the soil around the broken monument indicated that it had not been moved. Hook, 7 here who moved the monument or under what conditions. It is sufficient to my

analysis to find, by a preponderance of the evidence, that it was moved, and therefore

cannot trump the Bearing.

It is the blackest of black-letter law that a grantor cannot convey more than

she owns.5 The grantors of Lots 31A and 32A, Robert and Helen Sheppard, made

those grants from the combined original Lots 31 and 32. The northern boundary to

those lots is set by the original Deeds Out, which adopted the plan for Keen-Wik,

and which set the boundary as running from the Common Point, out to the Bearing,

to Roy Creek. This boundary line is the Division Line, not the Axios Line. Since

the grantors did not own the Sliver on the north side of the Division Line, they could

not convey it to the Respondents’ predecessor in title. The Sliver, therefore, is part

of Lot 30, and belongs to the Petitioner.

The Respondents make a final argument. They note that the bulkhead in front

of their property continues to the Angle, as already described, a few inches north of

however, testified that the soil condition was consistent with the monument having been dug out and reinterred. 5 See, e.g., State v. Sweetwater Point, LLC, 2017 WL 2257377, at *8 (Del. Ch. May 23, 2017) (“[O]ne may convey only what she owns.”); ABC Woodlands, L.L.C. v. Schreppler, 2012 WL 3711085, at *4 (Del. Ch. Aug. 15, 2012) (“[I]t is well established that a grantor can convey title only to land that he or she actually owns.”); Scureman v. Judge, 626 A.2d 5, 16 (Del. Ch. 1992) (same), aff’d sub nom. Wilmington Tr. Co. v. Judge, 628 A.2d 85 (Del. 1993); Matter of Tax Parcel Nos. WD-00-063-00-01-01.00-00001 & WD-00-063-00-01-34.00-000, 2020 WL 1527079, at *3 (Del. Ch. Mar. 31, 2020) (same) (citation omitted), report and recommendation adopted sub nom. In re Tax Parcel Nos. WD-00-063-00-001-01-00-00001 and WD-00-063-00-01-34.00-000, 2020 WL 1875460 (Del.Ch. Apr. 14, 2020). 8 the Division Line. They put evidence in the record showing that details of

construction—the size of the pilings, and the shape of the washers—are different on

the two sections of bulkhead that meet at the Angle, and that the bulkhead has been

in place, based on surveys, for more than 20 years, and probably much longer. This

is surely true; much of Keen-Wik appears to be filled land, and the bulkheads almost

certainly date back to the time of the creation of the lots, in 1959 or thereafter.

The Respondents argue as follows. One of their predecessors in title must

have built the bulkhead, and that builder ran this bulkhead across the property line

to a spot a few inches onto the Petitioners’ property, to about the point where the

Axios Line intersects the bulkhead. This, per Respondents, was an open, notorious

and hostile act that has persisted for over twenty years, and the Respondents have

thus obtained the Sliver by adverse possession.

This argument, to my mind, borders on the frivolous. Open, notorious and

hostile use over the prescriptive period, where demonstrated by a preponderance of

the evidence, can defeat record title. 6 Such a divestiture of record title is disfavored,

thus the necessity of strict proof of the proposition. Here, the proof is entirely

lacking. Assuming that the differences in the nominal dimension of the pilings, and

the different shape of the washers, on the two sections of bulkhead prove anything,

it is that the sections of seawall were built at different times. But what is utterly

6 Tumulty v. Schreppler, 2015 WL 1478191, at *12 (Del. Ch. Mar. 30, 2015). 9 lacking is any evidence of who built the bulkheads, and whether they were built

before or after the Deeds Out in the 1960s. Just as likely as the Respondents’ theory,

is that the bulkheads were built in sections following the Roy Creek bank by the

developer as the lots were filled with material dredged to create the Keen-Wik lots

and canals. Assuming the Respondents are correct that a predecessor in title, and

not the developer, built the bulkhead, there is no evidence that the slight trespass

onto Lot 30 was hostile, rather than permissive, to allow a completion of the

retaining wall beneficial to both lots. A further problem with Respondents’ theory

is that the trespass they theorize, if it did amount to prescriptive use, could not pass

title to the Sliver, which originates at the Common Point almost 100’ from the

bulkhead.7 Adverse possession cannot divest the Petitioners’ title to the Sliver.

I do note, however, that the Petitioners’ quiet title action was expedited to

accommodate a property closing in January, and that it was unclear whether the

Counterclaim was to be tried in the expedited portion of this matter. The Petitioners

evidently did not think so; they never filed an answer to the Counterclaim, nor was

it mentioned in the parties’ pretrial stipulation. Respondent’s Counsel at the close

of the second day of trial asked to amend the Counterclaim to conform to the

evidence, to seek an easement over a small portion of Lot 30 to maintain and repair

7 In fact, the bulkhead that extends from the Respondents’ property to the Angle is not, strictly speaking, on Lot 30; instead, it is on the boundary between Lot 30 and a navigable waterway, Roy Creek. 10 the bulkhead. The evidence at trial showed that there is a hole in the seawall some

of which is fronting Lot 30, through which erosion damage to Lot 31A is occurring.

The Respondents also submitted convincing evidence that repairing the bulkhead

will require rods tying the seawall to sleepers or deadmen buried parallel to the wall.

Repair of the bulkhead, accordingly, will require minor entry onto Lot 30.

Because the Counterclaim was not clearly part of the expedited portion of this

action, and because an answer has not yet been filed, I see no prejudice in allowing

an amendment of the Counterclaim seeking to establish an easement over a small

portion of Lot 30 to maintain and repair the bulkhead. Such repair, I note, is in the

interest of the integrity of both Lot 31A and Lot 30. I also note that if lack of

maintenance of the bulkhead on one of these lots causes damage to the adjoining lot,

liability therefore may result. Accordingly, I find it in the interest of justice to permit

the amendment; the Counterclaim, amended to seek an easement, remains for further

litigation. 8

In conclusion, the parties should provide a form of order consistent with this

Letter Opinion, quieting title to the Sliver in the Petitioners. The order should refer

to the Simpler Survey, already recorded in the chain of title to Lot 30. The

8 I attempted to secure an agreement to reciprocal maintenance easements in way of the bulkheads, but the parties were unable to agree. If Lot 30, as anticipated, goes to closing, perhaps neighborly reasonableness between the lot owners can yet prevail. 11 Counterclaim for a maintenance easement remains for further litigation. The parties

should submit a form of order no later than the close of business today.

Sincerely,

/s/Sam Glasscock III

Vice Chancellor

SGIII/lkpr

Exhibit A