PRESENT: Carrico, C.J., Compton, Lacy, Hassell, Koontz, and
Kinser, JJ., and Whiting, Senior Justice
CAROLYN HOLLANDER
OPINION BY
v. Record No. 970922 SENIOR JUSTICE HENRY H. WHITING
February 27, 1998
WORLD MISSION CHURCH OF WASHINGTON, D.C.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
This adverse possession case involves the effect of a
mistake as to the location of an actual boundary line upon the
intent to hold disputed land adversely.
The World Mission Church of Washington, D.C., (the church)
filed a motion for judgment seeking to recover possession of a
strip of its land in Fairfax County. The church claimed that
Carolyn Hollander, an adjoining property owner, "unlawfully
with[held]" the land. Hollander responded by claiming title by
adverse possession.
At a trial before the court, the evidence indicated that
the church had record title to the land in dispute. The dispute
arose because Hollander and her predecessors in title (the
claimants) had used the disputed land mistakenly believing that
their property ran to a line of trees at the edge of woods on
the church's property.
After hearing both parties’ evidence, the court concluded
that all the elements necessary to establish title by adverse
possession had been clearly established except for the
requirement of an adverse or hostile possession. Because the
claimants' possession of the land was based on a mistake as to
the ownership of the land, the trial court determined that the
possession was not adverse since "there was no intent of the
claimant in this case to oust the true owner of the title of the
property." Hence, the court entered final judgment for the
church. Hollander appeals.
Hollander's evidence disclosed that the claimants had
mowed, gardened, and otherwise maintained the strip of land up
to the tree line as a part of their residential property for
more than 15 years, believing that it was the common boundary
between their property and the church’s property. The evidence
also indicated that the claimants intended to claim title to the
land extending to that line as a part of the property they
thought was conveyed to them.
Hollander contends that this evidence is sufficient to show
that the claimants did not base their claim solely on their deed
descriptions; rather, it shows their intention to claim title to
a definite line on the ground. Hence, Hollander maintains that
this case is controlled by our decision in Christian v. Bulbeck,
120 Va. 74, 90 S.E. 661 (1916). On the other hand, the church,
relying primarily on our ruling in Chaney v. Haynes, 250 Va.
155, 159, 458 S.E.2d 451, 453 (1995), contends that the
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claimants’ mistake precludes a finding that their possession was
with the necessary adverse or hostile intent.
The following principles govern our decision in this case.
"To establish title to real property by adverse
possession, a claimant must prove actual, hostile,
exclusive, visible, and continuous possession, under a
claim of right, for the statutory period of 15 years."
Grappo v. Blanks, 241 Va. 58, 61, 400 S.E.2d 168, 170-
71 (1991). See Code § 8.01-236. The burden is upon
the claimant to prove all of the foregoing elements by
clear and convincing evidence. Grappo, 241 Va. at 62,
400 S.E.2d at 171; Matthews v. W.T. Freeman Co., 191
Va. 385, 395, 60 S.E.2d 909, 914 (1950).
Calhoun v. Woods, 246 Va. 41, 43, 431 S.E.2d 285, 286-87
(1993).One who possesses the adjoining land of another under a
mistake as to his own boundaries with no intention to claim land
that does not belong to him, but only intending to claim to the
true line, wherever it may be, does not adversely hold the land
in question. Christian, 120 Va. at 102-03, 90 S.E. at 670;
Clinchfield Coal Co. v. Viers, 111 Va. 261, 264, 68 S.E. 976,
977 (1910); Schaubuch v. Dillemuth, 108 Va. 86, 89, 60 S.E. 745,
746 (1908).
However, as we held in Christian:
[T]he rule in Virginia[] may be taken to be that,
where the proof is that the location of the line in
question was caused in the first instance by a mistake
as to the true boundary, the other facts and
circumstances in the case must negative by a
preponderance of evidence the inference which will
otherwise arise that there was no definite and fixed
intention on the part of the possessor to occupy, use
and claim as his own the land up to a particular and
definite line on the ground. That is to say, on the
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whole proof a case must be presented in which the
preponderance of evidence as to the character of the
possession, how held, how evidenced on the ground, how
regarded by the adjoining land owner, etc., etc.,
supplies the proof that the definite and positive
intention on the part of the possessor to occupy, use
and claim as his own the land up to a particular and
definite line on the ground existed, coupled with the
requisite possession, for the statutory period, in
order to ripen title under the statute. Whether the
positive and definite intention to claim as one’s own
the land up to a particular and definite line on the
ground existed, is the practical test in such cases.
The collateral question whether the possessor
would have claimed title, claimed the land as his own,
had he believed the land involved did not belong to
him, but to another, that is, had he not been mistaken
as to the true boundary line called for in his chain
of title, is not the proximate but an antecedent
question, which is irrelevant and serves only to
confuse ideas.
120 Va. at 110-11, 90 S.E. at 672; see also, Schaubuch, 108 Va.
at 91-92, 60 S.E. at 747; 2 Frederick D.G. Ribble, Minor on Real
Property § 966, at 1234-37 (2d. ed. 1928). 1
Although in Chaney we said that “[u]se of property, under
the mistaken belief of a recorded right, cannot be adverse as
long as such mistake continues,” we noted that “[t]he present
record shows that the [claimants] based their use of Chaney’s
land solely on their mistaken belief that it was the land
described in their express easement.” 250 Va. at 159, 458
S.E.2d at 454 (emphasis added). As we have stated, the
1
As we have previously noted, the degree of proof required in
adverse possession cases is clear and convincing. See Calhoun,
246 Va. at 43, 431 S.E.2d at 287.
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claimants in this case based their claim not only on the deed
descriptions, but also on their belief that their property line
ran to the line of woods. Accordingly, we hold that the
claimants’ possession was accompanied by the requisite adverse
or hostile intent.
Nevertheless, the church argues that the evidence fails to
show the claimants held the land adversely for the requisite
period of 15 years. This argument is based on the contention
that when the alleged 15-year period of adverse possession began
while a nonresident corporation owned the Hollander property,
there was no evidence of its intention to adversely possess the
land up to the line of woods.
We disagree. A witness who cultivated a garden in the
disputed strip of property from 1972 to 1975 testified without
objection that he did so with the permission of the
corporation's predecessor in title, who told him that his
property ran to the line of the woods. This witness also
testified that, since he gave up the garden, he has passed
through the area every two or three weeks and the disputed area
has consistently been maintained as a lawn. Additionally, one
of the claimants testified that, when he looked at the property
in July of 1981, representatives of the nonresident corporation
told him its land extended to the line of woods.
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We think the evidence sufficiently supported the trial
court’s implicit ruling that the period of possession had been
for more than 15 years. Hence, we find no merit in the church's
contention on this ground.
Accordingly, we will reverse the judgment of the trial
court and remand the case for further appropriate proceedings to
locate and adjudicate the true boundary line between the
properties. See Brunswick Land Corp. v. Perkinson, 146 Va. 695,
704, 714, 132 S.E. 853, 855, 859 (1926).
Reversed and remanded.
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