>Daily Development for Thursday, February 24, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY; PERMISSION: Possession by remote grantee of party who was presumed to possess permissively is not adverse, even if continued for over 100 years!

Pioneer Mill Company, Limited v. Dow, 978 P.2d 727 (Hawaii 1999).

The subject property suffered from an apparent lack of chain of title. Pioneer, the possessor from the year 1924 until present, instituted a quiet title action based upon adverse possession. Pioneer, through various intermediate transfers, succeeded John White in possession. Mr. White had been appointed as one of the administrators of the original estate which owned the property in fee simple. On February 5, 1867, the probate court discharged Mr. White as administrator and accepted the original owner's will, in which White, a relative, ended up with a one-half interest in the property. On February 23, 1867, the court amended its decision and awarded the entire estate to the heirs of the original owner. Mr. White, apparently, remained in possession until 1880 when he conveyed the property to third parties. There were a number of successive transfers for forty five years, until Pioneer passed into succession of White's interest in 1925. Pioneer, the court stipulated met all other requirements for adverse possession other than hostility.

The question was whether, on summary judgment, Pioneer had established that there were no material issues of fact affecting its claim.

The court emphasized Hawaii's special aversion to adverse possession claims. There is a strong presumption in all cases against adverse possession.

The court first established that there were issues of fact affecting whether White held permissively. White was a relative, albeit a somewhat distant one. White had been a cotenant of the property some eighteen years prior to the death of its owner. And White, as stated, had been an administrator of the property and thereafter, for a time, declared to be a one half owner of the property. The court concluded that, all put together, these facts gave rise to an inference that White was on the property permissively. In fact, the court held that as a matter of law a party whose ownership claim is rebutted by an adverse judgment, and who remains on the property, is presumed to be there permissively.

The court appears to assume that if White, Pioneer's predecessor in interest indeed had been in permissive possession, all successors in interest would also be considered in permissive possession. Even through over 100 years of possession.

Comment 1: Apparently the issue came to light when Pioneer realized that it could not establish clear title into White, and had a need to clear title. It brought a quiet title action and the heirs of the original owner noted the newspaper announcement of the action and reacted with the claims now being litigated.

Comment 2: The question of whether permission extends beyond the first permittee is an interesting one, as to which there is not general agreement. In Miller v. Anderson, 955 P.2d 846 (Wash.App. 1, 1998), (the DIRT DD for October 12, 1988), a case which the court describes as an adverse possession case but may be an easement case, a Washington court held that permissiveness ends with the death of the permittor. The court, however, rejected Pennsylvania authority holding that permission is purely personal on both sides, and ends with the death of the permittee or permittor. In attempting to review the opinion in Miller for purposes of this note, the editor has discovered that Miller v. Anderson has been withdrawn from publication.

Examples of the Pennsylvania authority (based upon Westlaw search) standing for the principle described in the summary of Miller, supra, include Sterner v. Freed, 570 A.2d 1079 (Pa. Super. 1990) and Orth v. Werkeiser, 451 A.2d 1026 (Pa. Super. 1982). Both are easement cases, and Orth cites to New Jersey authority that suggests that a permissive easement ripens into a hostile, prescriptive claim following death or transfer because it is born of a license which is by its nature not transferrable. Thus, permission dies with transfer.

The Pennsylvania cases involve prescriptive easements, not ownership claims. Although the requisite character of use resulting in title by adverse possession is more extensive than use that can create a prescriptive easement, it must be admitted that when verbal permission is granted, even for this more extended use, it technically should be considered a mere "license" which, unless expressed otherwise, is merely personal and not transferrable. Comment 3: The editor assumed that he was just missing something in his basic training, and that this issue has been fully litigated and discussed. So off he went to look up the rule in the treatises. At least on a cursory examination, neither the American Law of Property, AmJur, Powell on Real Property or Thompson on Real Property (Thomas ed) specifically discuss this issue. They appear to assume that transfer of the permitted party's interest does not void the permission. But it is hard to know for certain, as there is no specific discussion of the issue.

Are there DIRTers who can give us some authority on the point? If not, then this may be a pretty good case for the casebooks.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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