Nome 2000 v. Fagerstrom

Supreme Court of Alaska · 1990 · Property

Propertyadverse possessionopen and notoriousAlaska Nativeseasonal useadverse possessionrural landseasonal use

Facts

Nome 2000 held record title to mineral survey 1161, which included a disputed seven-and-one-half-acre parcel in rural Osborn, an area used mainly during warmer seasons for homesites, subsistence, and recreation. From at least 1977 to 1978, the Fagerstroms maintained on the north end of the parcel an outhouse, fish rack, large reindeer pen, picnic area, building materials, non-indigenous trees, and for about thirteen weeks each summer a camper trailer on blocks, while repeatedly using the land for fishing, berry picking, cleaning, and recreation. From 1978 onward they placed a cabin on the north end, and Nome 2000 conceded adverse possession as to that northern portion from 1978 to 1987. On the southern portion, however, the Fagerstroms' activities during the critical first year consisted mainly of using pre-existing trails, picking up litter, and relying on cornerposts previously placed for a Native Allotment application.

Issue

Whether the Fagerstroms' seasonal and relatively modest use of this rural parcel was sufficient to establish adverse possession for the ten-year statutory period ending when Nome 2000 filed suit, and if so, whether that possession extended to the entire parcel or only the northern portion actually occupied. The court also considered whether hostility required proof that the Fagerstroms subjectively intended to own the land.

Rule

To acquire title by adverse possession, a claimant must prove by clear and convincing evidence that for the statutory period the use of the land was continuous, open and notorious, exclusive, and hostile to the true owner. These physical requirements are judged according to the character of the land: the land need only be used as an average owner of similar property would use it, exclusivity need not be absolute, and notoriety exists when the use gives visible evidence of possession sufficient to put a reasonably diligent owner on notice, with community repute relevant once physical visibility is shown. Hostility is determined objectively by whether the possessor acted toward the land as if he owned it, without permission; the possessor's subjective belief or intent is irrelevant. Absent color of title, only the property actually possessed may be acquired.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a remote area outside Fairbanks, Lena Ortiz used a five-acre riverfront lot each summer for 10 years. She kept a small trailer on blocks from June through August, maintained a smoke rack, fire ring, and tool shed, and stored fishing gear there year-round, but rarely visited in winter because the area was inaccessible and generally unused then.

If the record owner sues to eject Lena after the 10 years, which argument best supports Lena’s claim that her possession was continuous?

Explanation. The majority opinion evaluates continuity in light of the character of the land. For rural land suited mainly to warm-season homesite, subsistence, or recreation, seasonal use may satisfy continuity if it is the sort of use an average owner of similar property would make. The court rejected fixed requirements such as substantial structures, constant activity, or year-round occupation.