Peters v. Staubitz

ROSALYN B. BELL, Judge. In this appeal, we decide whether the trial court, following a remand from the Court of Appeals, correctly applied ⁶⁴¹ the law in determining that the claimant acquired the disputed property by adverse possession. Elmer V. Staubitz (appellee/claimant) acquired title to lot 232 located at Whitehall Beach in Anne Arundel County in 1955. Richard L. Peters (appellant/record owner) is the present owner of lot 233 at Whitehall Beach. 1 Lot 233 is adjoined on the east by lot 232.

Both lots 232 and 233 are bound on the north by Red Cedar Road and on the south by the Whitehall River. In April 1980, the Costellos, Peters’ predecessors in interest, employed a surveyor to determine the exact eastern boundary of lot 233 and to stake the deeded property line. The survey indicated that an existing barbed wire fence, erected around 1940 by the prior owner of lot 233, was not located along its eastern boundary. Instead, it crossed the southeastern corner of lot 233 and the northwestern corner of lot 232 forming two triangles — one on lot 232, the other on lot 233.

The latter triangle, which constitutes the disputed property, is bound on the east by the staked property line, on the south by the Whitehall River and on the west by the barbed wire fence. This area is 270 feet deep and 14.53 feet wide at the Whitehall River. Staubitz brought suit against the Costellos in the Circuit Court for Anne Arundel County in September 1980 to quiet title, claiming that he had acquired the strip of land by adverse possession. Following a bench trial, the court issued a memorandum opinion in which it found that “[I]t is also uncontroverted that the fence upon which Mr. Staubitz bases his claim was originally erected as a boundary between lots 232 and 233.

The testimony at trial revealed that the fence was installed by [the record owners’ predecessors in interest] to keep their cows from going on to Mr. Staubitz’s father’s property. It also ⁶⁴² revealed that the fence was intended, and did serve as the boundary of the two lots.” Based upon these findings it concluded that Staubitz had acquired title to the disputed strip of land by adverse possession. The Costellos noted an appeal to this Court. In an unreported per curiam opinion, Costello v. Staubitz, No. 57, September Term, 1982, filed 16 November 1982, we affirmed the trial court’s decision.

Subsequently, the record owners petitioned the Court of Appeals for a writ of certiorari which was granted. The Court of Appeals, in Costello v. Staubitz, 300 Md. 60 , 475 A.2d 1185 (1984), reversed. It held that where, as in the present case, a record owner or previous record owner erects a fence for his own purposes, within his land, its existence “does not support an inference that the fence is a visible boundary delineating the extent of a claimant’s adverse possession.” Id. at 69 , 475 A.2d 1185 . The Court further explained that under these circumstances the fence “did not constitute evidence of adverse possession and was not an appropriate factor to be taken into account in determining the extent of the claimant’s adverse possession.” Id. at 74 , 475 A.2d 1185 .

It then directed the case be remanded to the trial court to determine “what, if any, land was actually occupied by the claimant for the statutorily prescribed twenty-year period.” Id. On remand, the court made detailed findings concerning Staubitz’s acts of dominion over the disputed property and their duration. Based on these findings, it ruled that Staubitz “has acquired title to the disputed strip of land between Lots 232 and 233 by adverse possession.” Peters then noted this appeal in which he raises the following questions: I. Did the court err, as a matter of law, in using the fence to delineate the extent of appellee’s actual occupancy since it was erected by one of appellant’s predecessors in title for his own purposes and within his own lands? ⁶⁴³ II. Was the court clearly erroneous in finding that all of the disputed property had been actually occupied — openly, exclusively, adversely and continuously, under claim of ownership for the statutorily prescribed period?

L EXISTENCE OF THE FENCE In Costello v. Staubitz, supra, the late Judge Davidson, writing for the Court of Appeals, set forth the principles applicable to a determination of whether a visible line of demarcation constitutes evidence of adverse possession: “The following general principles emerge from this Court’s previous decisions in adverse possession cases in which a visible line of demarcation was a factor: 1) The existence of a visible line of demarcation ordinarily does not constitute evidence of adverse possession when: a) it was created by a record owner, for the record owner’s own purposes, within the record owner’s land ... or b) it was created by a party claiming title by adverse possession for the purpose of claiming the visible line of demarcation as a boundary only if it is in fact coincident with the actual boundary ... 2) The existence of a visible line of demarcation ordinarily constitutes some evidence of adverse possession when: a) it was created by a party claiming title by adverse possession for the purpose of claiming the visible line of demarcation as a visible boundary delineating the extent of the claimed adverse possession ... or b) there is no evidence to show by whom and for what purpose the line of demarcation was created____” (citations omitted) Costello, 300 Md. at 72-73 , 475 A.2d 1185 . Appellant asserts that even though the court, on remand, acknowledged the rule of Costello , “[nevertheless, ... [it] once again improperly [relied] on the fence [and] proceeded to find ... that [the claimant] had acquired title, by adverse ⁶⁴⁴ possession, to the entire parcel.” In support of this argument he refers us to the following language in the court’s opinion: “[I]t does represent a visible border to the east of which the claimant, Mr. Staubitz, actually occupied the adverse property in a manner which comported with the ordinary management of similar lands by their owners.” It is appellant’s contention that this statement shows the court attempted “to make a distinction, not recognized by the Court of Appeals decision, between a ‘boundary’ and a ‘border’, in order to rely on the fence to delineate the extent of Appellee’s possession.” In Costello v. Staubitz, supra, the Court of Appeals stated that a claimant could not rely on the existence of a fence erected by the record owners or previous record owners to establish the extent of his claim of adverse possession. Id. Rather, he is required to demonstrate his acts of dominion over the disputed land for the required statutory period.

Id. If he does so, the court need not totally ignore the fact that there is a fence in existence because it is evidence of the outer limit of physical property over which he could reasonably have exercised dominion. Our review of the court’s ruling demonstrates that it was based upon the chancellor’s finding that appellee had satisfied the requirements of the doctrine of adverse possession through his acts of dominion over the disputed property. The chancellor merely referred to the fence for what it was — “a visible border.” II.

ADVERSE POSSESSION To acquire title by adverse possession, a claimant must demonstrate that his occupation of the land has been actual, hostile, notorious, exclusive, under claim of title and