Vezey v. Green

CARPENETI, Justice,

with whom BRYNER, Chief Justice, joins, dissenting.

Today's Opinion looks only to a portion of the evidence supporting the superior court's factual finding that Angela Green had adversely possessed the land in question, and then concludes that the evidence is insufficient. But if one looks at all of the evidence before Judge Savell, it is clear that there was sufficient evidence to support his conclusion. For that reason, I would affirm his decision. Accordingly, I dissent.

The Opinion begins by characterizing Judge Savell's decision as resting "primarily" on the fact that Green had cleared and improved a western trail leading to the property. While it is true that Judge Savell put some weight on this evidence, there was much more evidence on which he relied, including evidence that Green blocked the road at the point that "her property" began, that she cleared the western portion of the property, that she flagged the property along the line marking its western boundary, and that her neighbors considered the western portion of the land to be "her property." The evidence supporting the superior court's decision includes the following:

1. Green did substantial work along the trail, in effect turning it into a road, and she chained it off at the point that corresponded to what she claimed as her land-about 300 feet to the west of her cabin. Green testified, "it's a claim this is my property, keep out, so I put a sign up." Her testimony was eorroborated by her near neighbor William Ridder's description of where her driveway began. Even granting that by its previous use the trail had become public, and that one cannot adversely possess public land (and that at most she therefore shares in an easement over the road), her chaining off of the road is strong evidence of the extent of her claim to the land that the road crosses.

2. In addition to clearing around the cabin site and working on the road, Green did clearing "under the canopy." She testified that in 1983 "instead of just focusing on the road I started clearing out the-between the trees there, and so I wouldn't say it looks-would look park-like, but so that there wouldn't be a fire hazard from old, old trees that were lying around or whatever." As she testified, in addition to clearing for the cabin and doing work on the road, she did "clearing out the west end under the tree canopy, the smaller ones, and the other end, so...." (Emphasis added.) «When asked why the smaller ones were taken out, she responded: "Well, because I thought it looked better and it made it less of a fire hazard. I didn't want to just look from the house and, bam, there was the ugly woods, you know. I wanted it *1134to be pretty." This testimony about clearing out the west end under the tree canopy supports the trial judge's findings that "[ble-cause Green was using and clearing the trail and western portion ..., she necessarily occupied the western land [for the requisite period]." (Emphasis added.)

3. Responding to Vezey's attorney's question whether it was true that "nothing else" was being done to the property other than the house construction, Green said no, "Itlhere was always work going on in the woods, all, all around that property; there was always work." (Emphasis added.) It is true that this answer was to a question as to 1986, but Green constantly distinguished between work on "the road to the west" and "the area to the west" in describing the work.

4. The clearing work in the woods need not have been extensive. As we made clear in our earlier decision in this case, whether the claimant's physical acts are enough depends on the character of the land in question.1 For remote rural land, three weeks of sheep grazing during the entire year was deemed to be enough to establish adverse possession in Cooper v. Carter Oil Co., 2 a case we cited with approval in Nome 2000 v. Fagerstrom.3 Surely for the land in question in this case, about which a witness at the first trial testified, "it'd take a fool to live up there in the cold winter months," 4 it was enough to make major improvements to the access road, block off that road so as to make it-as a neighbor testified-a "driveway" on the property, flag the edge of the property, and do some clearing under the canopy of trees on the property.

5. We have relied on "community repute" to support a finding of adverse possession.5 In this regard, probably the strongest evidence in Judge Savell's estimation was provided by two witnesses called by Vezey: Janice Fairbanks and her husband, William Ridder. They were Green's near neighbors, and both testified to their understanding that Green's "property line" was the flagged line that they saw on the western boundary of the cabin. Fairbanks referred to the trail/ road as "Angela's driveway." In describing what she meant by "her [Green's] property," Fairbanks stated, "I know where her property started on the drive that went to her house. There was some kind of markings there on the trees." Fairbanks marked with a red X on a trial exhibit 6 the point where she believed Green's property began, which the court noted was to the west of the 300-foot line. She twice confirmed that was where she believed the Green property line to be. Ridder was asked about seeing flags on trees in the area. He answered: "[HJere I don't recollect seeing any-oh, there might have been some flags along here, maybe through here. It's hard for me, just...." When asked what he meant by ."maybe through there," Ridder responded: "Property line." At that point, the followmg exchange occurred:

Judge Savell (referring to the proposed property line 300 feet to the west of the cabin) asked if he was referring to an area to just west of "[that red line that goes up and down?"[7] Answer: "Correct."
The Court: "And you just called that the property line?"
Answer: "Right."

Shortly after that, Judge Savell interrupted the testimony and convened the parties and counsel for an in-chambers conference. Apparently addressing counsel for Vezey, he said: "These are your witnesses. It's devastating. Two of them have now put the property even farther west than we're fighting over today." (Emphasis added.) He urged *1135the parties to talk settlement: "You guys are knowingly going into this without any consideration of settlement.... This is turning into a blood bath." The court today dismisses this obviously very important testimony as follows: "Because Ridder indicated that he believed the property line to be west of the 300-foot boundary, his testimony is inconclusive and does not establish that Green flagged her western boundary." But the fact that Ridder's testimony would: have established an even (slightly) larger tract that was adversely possessed 8 is hardly a reason to cut back the property to substantially less than 300 feet.9 And, as we shall see, there is sufficient evidence to support the finding that Green flagged her property.

6. Judge Savell made the following findings:

Fairbanks considered that Green's property started on the drive that went to her house. She spoke of that trail as "Angela's driveway" and the property to the west of the Green house as "Angela's place." Assuming that Vezey's own calculations are correct, the "driveway" extends between 300 and 330 feet west of the house. In the trail west of the house, at the junction of the trail with the route north to the telephone line, there was also flagging tape, which Fairbanks saw long before Green built her house.

Judge Savell also found that Ridder saw flagging "at least a couple of years before construction began." These findings are abundantly supported by evidence. They are not clearly erroneous.

7. The court twice concludes that the testimony about flagging is "inconclusive," but this characterization ignores our limited role as an appellate court reviewing the factual findings of the trial court that heard the witnesses and saw the evidence.10 The court first finds "inconclusive" the testimony of William Ridder about the western boundary of the property. As I have noted above, the fact that the flagging seen by Ridder established a slightly larger area than Green sought at trial did not require the trial court to disregard his testimony. That is, in effect, what this court does. The court also concludes that Green's testimony as to the flagging is "inconclusive." But it is sufficient to support the trial court's findings. Green testified without contradiction: "I marked it. I flagged it. I walked with [the surveyor}" in response to Vezey's claim during the trial that Green flagged it only later, for purposes of the lawsuit. She testified that she hired Oswald Jensen, a surveyor, in 1984, who began but did not complete the survey process. After saying "I marked it. I flagged it. I walked [it] with Oswald," Green was asked, "[dlid you go out and say, 'Okay. Just for the purposes of this case, I'm going to kind of seope out the areas that people-you know, that I occupied by clearing and by brushing. .. .'" Green responded, "I did walk part of one line to look for the flags that had been put up on the Dora Robinson side, on the west side." (Emphasis added.) In sum, Green testified that she brought a surveyor on to the property in 1984, that she marked it at that time, and that "for purposes of this case" (which was filed in 1995) she walked part of the line "to look for the flags that had been put up ... on the west side." Judge Savell appears to have accepted the inference from this testimony that the flags seen on the west side of "Angela's property" by Fairbanks and Ridder were the flags that had been put there either by Green or at Green's behest,11 and that inference is a reasonable *1136one.12

In order to reverse the superior court's finding that Green had adversely possessed the property to the west out to 300 feet from the cabin, it would be necessary to take for ourselves the trial judge's role in determining the meaning of witnesses' testimony, to judge the credibility of witnesses, to draw our own inferences from the testimony (and decline to draw reasonable inferences), and in general to substitute our judgment on the facts for the trial judge's. We should not do that.13 For these reasons, I respectfully dissent.

ATTACHMENT A

*1137[[Image here]]

. Vezey v. Green, 35 P.3d 14, 21 (Alaska 2001) (Vezey I).

. 7 Utah 2d 9, 316 P.2d 320, 323 (1957).

. 799 P.2d 304, 309 (Alaska 1990).

. Vezey I, 35 P.3d at 21.

. Id. at 21 n. 13 (citing Alaska Nat'l Bank v. Linck, 559 P.2d 1049, 1054 (Alaska 1977)).

. This exhibit, a photograph, is attached to this dissent as Attachment A. The Attachment contains designations that I have added to aid understanding of the exhibit and to compensate for the lack of color in its reproduction.

7. The line that Judge Savell was referring to 'appears in Attachment A as the "Proposed West- ~- ern Boundary (vertical red line)."

. Judge Savell recognized that there was a plausible claim for land slightly farther than 300 feet from the cabin, based on Ridder's and Fairbanks's testimony, but he limited his adverse possession ruling to the land 300 feet from the cabin.

. This court's draconian reduction in the size of the western portion of Angela Green's land-from 300 feet out from the cabin down to forty feet-will have serious consequences for her. Among other things, the outhouse on the property, which the superior court found was 41.7 feet to the west of the cabin, now apparently extends beyond her land.

. Civil Rule 52(a) provides in relevant part: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."

. Judge Savell found: "In the trail west of the house, at the junction of the trail with the route north to the telephone line, there was also flag*1136ging tape, which Fairbanks saw long before Green built her house."

. As recently as last month, we upheld a trial court finding because it was "supported by the evidence and reasonable inferences permissibly drawn from the evidence."Diblik v. Marcy, 166 P.3d 23, 28 (Alaska 2007) (emphasis added).

. In addition to the admonition of Civil Rule 52(a) to give "due regard ... to the opportunity of the trial court to judge the credibility of the witnesses," we have long held that the appellate court is not free to overturn a trial court's view of the facts because of a mere difference in personal judgment:

That the trial court could have viewed the facts differently, or that we might perhaps have done so, if we had been the initial trier thereof, does not alone entitle us to reverse. Under
Rule 52(a) ..., there must exist a stronger basis for overthrowing a finding of fact than a mere difference in personal judgment. Such evidentiary weight and such convictional certainty must be present that the appellate court does not feel able to escape the view that the trial court. has failed to make a sound survey of or to accord the proper effect to all of the cogent facts, giving due regard, of course, to the trial court's appraisal of witness credibility where that factor is involved.

Isaacs v. Hickey, 391 P.2d 449, 451 (Alaska 1964) (quoting Nee v. Linwood Sec. Co., 174 F.2d 434, 437 (8th Cir.1949)). Thus, we should uphold a trial court finding that is supported by the evidence "and reasonable inferences permissibly drawn from the evidence." Diblik v. Marcy, 166 P.3d 23, 28-29 (Alaska 2007).