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
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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
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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.
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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
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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).
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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).
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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.
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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.
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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
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