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Glover v. Glover (06/11/2004) sp-5812
Glover v. Glover (06/11/2004) sp-5812
Notice: This opinion is subject to correction before
publication in the pacific reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CLARA DOROTHY GLOVER )
and ROBERT DOUGLASS, ) Supreme Court No. S-10848
)
Appellants, ) Superior Court No.
) 2KB-00-00089 CI
v. )
) O P I N I O N
WILLIAM BRUCE GLOVER, LUCY )
LOY, LONA STALLSWORTH, ) [No. 5812 - June 11, 2004]
ELEANOR BUCHANON, LILLY )
BECKETT, EVA McCOY, GEORGE )
McCOY, JR., and CARL SNYDER, )
SR., )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Second Judicial District,
Kotzebue, Ben J. Esch, Judge.
Appearances: Steven S. Tervooren, Hughes
Thorsness Powell Huddleston & Bauman LLC,
Anchorage, for Appellants. Russell LaVigne,
Jr., Alaska Legal Services Corporation,
Kotzebue, for Appellee Carl Snyder, Sr.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
In this quiet title action, the superior court found
that Carl Snyder, Sr. held unrecorded title to a piece of
property in Kotzebue that he and his family had lived on for
close to fifty years. At trial Clara Glover and Robert Douglass
claimed that Snyder held the property only as a lessee. Snyder
maintained that his father and predecessor in interest, Dan
Snyder, Sr., had gained title by adverse possession. Relying on
a theory that neither party presented, the court found that the
elder Snyder had gained title by adverse possession because the
property changed hands, apparently inadvertently, for ten years.
During this period, the court reasoned, Snyder met the
requirements for adverse possession and took unrecorded title.
We remand the case to the superior court so that it may conduct
further factfinding and apply the proper test for determining
whether and when a partys occupation of land meets the adverse
possession requirements.
II. FACTS AND PROCEEDINGS
A. Factual History
Charting the course of this adverse possession
controversy requires tracing the complex chain of title of two
parcels of land in Kotzebue. They began as a single lot (Lot 9,
Block 7, Tract A, Townsite of Kotzebue, U.S. Survey # 2863 A & B)
that was owned by Mary Johnson in the early 1950s.
We attach as an appendix for ease of understanding an
as-built survey of Lot 9 showing its partition into two lots and
the structures that existed on it as of 1977. Lot 9 ran about 126
feet north to south and approximately 160 feet east to west.1
Lot 9 fronted on two streets, Shore Avenue on the west and
Kotzebue Way on the east, with 126 feet of frontage on each
street. Eventually Lot 9 was divided into two parcels. The
southerly parcel, having forty-six feet of frontage on each
street, is the parcel with which we are primarily concerned. We
refer to it in this opinion as the parties did below as the
subject lot.
Lot 9 was conveyed to Eva Glover, Mary Johnsons
daughter, in 1956. In 1965 Eva Glovers successor in interest,
Billy Glover, sold a portion of Lot 9 to Rotman Stores, Inc.
According to the 1965 deed from Billy Glover to Rotman Stores,
the parcel conveyed was the southerly eighty feet of Lot 9.
Rotman Stores, in turn, sold the same parcel to Lawrence and
Barbara Maxson on March 5, 1969. On May 19, 1975, the Maxsons by
quitclaim deed transferred the subject lot the southerly forty-
six feet of Lot 9 back to Billy Glover. The quitclaim deed
relates that this transaction was for and in consideration of the
exchange of a quitclaim deed for the northerly 80 feet of Lot 9.
The record reflects that Billy Glover executed and delivered a
deed to the northerly eighty feet of Lot 9 to the Maxsons on the
same date that similarly recites that it is in exchange for the
deed to the southerly forty-six feet. With the exchange of the
quitclaim deeds in May of 1975, Billy Glover owned the subject
lot, which had assumed its present shape as shown in the
appendix.
The appellants assert that what Billy Glover intended
when he first sold part of Lot 9 to Rotman Stores was to sell the
northerly portion and that the reference to the southerly portion
in the 1965 deed was a mistake. The exchange of the quitclaim
deeds and the placement of several buildings on the property may
support this claim.2
On August 4, 1975, Billy Glover leased his interest in
Lot 9 to NANA Housing Authority for twenty-five years subject to
an automatic renewal of twenty-five years to aid in the
construction of a HUD home. A HUD home was built in 1977 on the
subject lot. It is marked new home on the as-built survey. When
the HUD home was completed Billy Glover and his family moved from
the structure marked B on the as-built survey into the new home.3
In 1953 or 1954, when Mary Johnson still owned Lot 9,
Dan Snyder, Sr., built a house on it. The house is marked A on
the as-built survey. In exchange for permission to live there,
Dan Snyder, Sr. agreed to supply Johnson with game and other
food. The superior court declined to find whether the
arrangement was a lease or a sale. This gap in the findings is
not challenged by either party. Dan Snyder, Sr. died in 1991 and
his son, Carl Snyder, Sr. (Snyder) succeeded to his interest in
the property. At various times, the Snyder family built a shed
and an addition onto the house and for a period kept dogs on the
property.
In 1994 appellant Clara Glover, Billys daughter,
prepared a written lease to formalize Snyders occupancy; it was
signed but Snyder denies its validity, claiming that his daughter
signed it without his authorization. The superior court resolved
the factual conflict by crediting Snyders testimony, and the
appellants do not contest the finding on appeal.
B. Procedural History
Clara Glover and Robert Douglass brought this quiet
title action to clear the way for Glover to sell the subject lot
to Douglass. Most of the original defendants were members of
Glovers family who had a claim on the property through an
administrators deed, making them tenants in common following
Billy Glovers death. Douglass and Glover settled with the
relatives, leaving only the claim of Carl Snyder. Snyder
answered the quiet title complaint by asserting as an affirmative
defense that he held title to the land under his house and the
shed his family built through adverse possession. Glover and
Douglass moved for summary judgment. In response, Snyder
asserted that his father had purchased the land from Mary
Johnson, but did not rest his opposition to summary judgment on
his claim of ownership. Instead, he argued that his father
acquired title through adverse possession, independent of the
agreement between his father and Mary Johnson. After the summary
judgment motion was denied, a bench trial was held in June 2002.
The superior court first found that the agreement
between Dan Snyder, Sr. and Mary Johnson rendered the Snyders
occupancy of the land permissive. Snyder therefore could not
establish that his father gained title through adverse possession
against Johnson or her successors. Although neither party argued
the theory, the trial court went on to find that because Dan
Snyder, Sr. had no similar agreement with Rotman Stores or the
Maxsons, the permissive nature of the occupancy disappeared once
Billy Glover sold the half of the parcel containing the Snyder
house. Snyders occupancy became hostile, fulfilling the key
requirement for establishing a claim of adverse possession. Ten
years, the period required to obtain title by adverse possession
under AS 09.10.030, passed between the transfer to Rotman Stores
and the Maxsons quitclaim deed returning the parcel to Billy
Glover. The superior court therefore held that before the
Glovers re-took record ownership of the parcel, Dan Snyder, Sr.
had obtained unrecorded title to the portion that he occupied.
Carl Snyder succeeded to this title on Dans death. Glover and
Douglass moved for amendment of findings and judgment or for a
new trial, but the motion was denied. This appeal followed.
III. STANDARD OF REVIEW
The trial courts findings of fact are reviewed for
clear error and are rejected only if we are left with the
definite and firm conviction on the entire record that a mistake
has been committed.4 This court reviews the trial courts
conclusions of law using its independent judgment and adopts the
rule of law that is most persuasive in light of precedent,
reason, and policy.5
Although they directly challenge the superior courts
finding that Rotman Stores and the Maxsons owned the parcel under
Snyders house, the essence of Glover and Douglasss appeal is that
the court erred in its conclusion that Dan Snyder, Sr.s
possession was hostile rather than permissive. We review the
factual findings supporting this conclusion for clear error; the
question of whether the facts as found by the superior court add
up to hostility is a question of law to be reviewed with
independent judgment.6
The superior courts decision to admit evidence is
reviewed for abuse of discretion; reversal is warranted only when
the reviewing court is left with a definite and firm conviction,
after reviewing the whole record, that the trial court erred in
its ruling.7
IV. DISCUSSION
A. The Superior Courts Findings Are Insufficient To
Determine Whether Snyder or His Predecessor Acquired
Title Through Adverse Possession.
Snyder claims that his father gained title through
adverse possession under the previous version of AS 09.10.030,
which was in effect at the pertinent times. It stated:
A person may not bring an action for the
recovery of real property, or for the
recovery of the possession of it unless the
action is commenced within 10 years. An
action may not be maintained for the recovery
unless it appears that the plaintiff, an
ancestor, a predecessor, or the grantor of
the plaintiff was seized or possessed of the
premises in question within 10 years before
the commencement of the action.[8]
In order to acquire title by adverse possession,
[Snyder] must prove, by clear and convincing evidence, . . . that
for the statutory period his [fathers] use of the land was
continuous, open and notorious, exclusive and hostile to the true
owner.9 Glover and Douglass primarily argue that Dan Snyder,
Sr.s possession of the parcel was not hostile to Glovers
interest. They do not directly contest the other requirements.
Hostile possession does not imply that the adverse
possessor bore ill will or aggression toward the true owner; it
only means that the adverse possessor held the land in such a way
that his interest in the property was incompatible with the
record owners interest.10 If the adverse possessor holds the land
as a tenant or otherwise with the record owners permission, his
claim is subordinate to the title of the true owner and is
therefore not hostile.11 If the adverse possessor, without the
true owners permission, acted toward the land as if he owned it,
then his claim is hostile.12 When one assumes possession of
anothers property, there is a presumption that he does so with
the rightful owners permission and in subordination to his title.13
The adverse claimant thus bears the burden of proving that his
claim is hostile.
The superior court found that Dan Snyder, Sr. took
possession of the land with Mary Johnsons permission. The court
specifically declined to find whether the permissive arrangement
was a sale or a lease. Snyder does not claim on appeal that he
acquired title to the property by purchasing it from Mary
Johnson, nor does he rely on the possibility that the transaction
was a sale to bolster his adverse possession claim. For the
purposes of this decision, we therefore interpret the arrangement
as a lease, with the food he delivered serving as rent. The
superior court went on to hold that the transfer of the property
to Rotman Stores eliminated the permissive nature of his
occupation because the new owner was not a party to the agreement
that created it in the first place. But when possession begins
with the true owners permission, it cannot become hostile unless
the presumption of permission is rebutted by proof of a distinct
and positive assertion of a right hostile to the owner of the
property. 14 And a transfer does not alter the burden on the
claimant15 or the standard he must meet.16 To show that his
permissive occupation turned hostile, Snyder must prove that he
made a distinct and positive assertion of his claim, regardless
of whether the transfer to Rotman Stores was legitimate or was,
as Glover and Douglass argue, a mistake that should be
disregarded.17
Similarly, the fact that no rent was paid after 1982,
at the latest, cannot defeat the permissive nature of the Snyder
familys possession. Nonpayment of rent does not establish
hostility.18 The passive failure to make payments is not a
distinct and positive assertion of ownership. If nonpayment
terminated the lease, it only turned Snyders interest in the land
into a tenancy at sufferance. An estate at sufferance is an
interest in land which exists when a person who had a possessory
interest in land by virtue of an effective conveyance, wrongfully
continues in the possession of the land after the termination of
such interest, but without asserting a claim to a superior title.19
A tenancy at sufferance is a permissive interest and cannot be
the basis for adverse possession.20 Furthermore, we decline to
establish a rule that gives tenants an incentive to stop paying
rent in the hope of establishing an adverse possession claim.21
To become an adverse possessor, any tenant, including a
tenant at sufferance, must openly and explicitly disclaim and
disavow any and all holding under his former landlord; and,
furthermore, he must unreservedly and steadily assert that he
himself is the owner of the true title.22 This repudiation a
form of the distinct and positive assertion required to turn any
permissive occupancy into a hostile one must provide at least
constructive notice to the landlord and true owner that the
tenant has repudiated his leasehold interest and claims the land
as his own.23
Some courts require only that the adverse claimant meet
the usual requirements for adverse possession as long as the
claimant occupies the land openly and notoriously and acts as if
he owns it, repudiation of the owners superior claim may be
inferred.24 Other courts, generally reasoning in the analogous
context of a tenant in common making an adverse claim against his
co-tenant, have held that a tenant . . . does not, merely by
exclusive possession, gain title by adverse possession.25
Instead, stronger evidence is required to prove such adverse
possession than in similar claims by strangers to the title.26 We
adopt this view. Our case law makes clear that when a claimant
started out occupying land permissively, it is essential that his
new, hostile interest in the property be made clear to the true
owner.27 The behavior of a tenant and an owner will often be
indistinguishable; if a tenant merely acts as he always did, the
owner will not be on notice of his new, hostile claim. In almost
every case, only a distinct and positive assertion of the new
claim or a repudiation of the owners interest will provide
proper notice.
An adverse claimant who entered land as a tenant must
usually show some distinct act, like an open announcement of his
claim or a change in his use of the land, sufficient to serve as
a distinct and positive assertion of his claim to own the
property.28 This is more than is required of other adverse
possessors, who may establish a claim simply by acting toward the
land as if they owned it, without a particular assertion. Some
cases, however, may require an exception to this heightened
requirement. While [n]ot every undisturbed occupancy by a
[former tenant] will result in a finding of ownership by adverse
possession[,] . . . when the acts of ownership are overt and
unambiguous29 and the exclusive possession is long held, a
factfinder may infer that the tenant has repudiated his landlords
claim of ownership and asserted his own.30 The long occupation,
with its unambiguous hallmarks of ownership, serves as the
distinct and positive assertion of the claimants interest and the
repudiation of the true owners interest.
For example, in Adams v. Johnson,31 the Supreme Court of
Minnesota faced a claim by a joint tenant that he had gained full
title to a piece of property, divesting his co-tenant of any
interest. In general, establishing an adverse possession claim
against a co-tenant requires the ouster of the co-tenant by the
same sort of act required for the repudiation of a landlords
interest.32 The claimant and his predecessor in interest had
occupied the land for almost 50 years as sole owners, paying all
taxes and insurance and retaining all profits.33 They had also
made many improvements to the property, putting up farm buildings
and a house, and repairing fences.34 Each of these acts was
within their rights as tenants in common and could not on its own
oust the co-tenant. But taken together, over the course of a
half-century occupation whose character was fully understood by
the co-tenant, they added up to an ouster.35 It is important to
note that such cases are rare and extreme.36 But the Minnesota
case shows that this exception is important, as it preserves the
possibility that those claimants who look the most like adverse
possessors may acquire title. When former tenants who have spent
undisturbed years acting as if they owned their land or home face
a sudden, surprising challenge to their rights, equity demands
that courts closely consider whether they have gained title
through adverse possession, even without the overt act usually
required.
The superior courts findings suggest that Snyder or his
father may have made a distinct and positive assertion of their
claim to the land, and a repudiation of the interest of Mary
Johnson and her successors. The superior court found that Snyder
built an addition onto the house, that his father kept dogs on
the property, and that a fence was built [a]t some time. If the
fence, addition, or dog yard were beyond what Dan Snyder, Sr.s
agreement with Mary Johnson allowed, one or all of them may have
demonstrated the familys repudiation of her successors ownership
of the land.
Snyder may have made a repudiation by words or conduct
aimed directly at the true owner. The question of the legitimacy
of the transfer to Rotman Stores would then become important
because this type of repudiation could only be effective if it
were made to the true owner. Alternatively, the repudiation may
have been communicated to the community at large, as with an
overt change in the use of the land. In this case, the identity
of the true owner would not matter, because any record owner
would be deemed to be on notice of it.37 A third possibility is
that the Snyders occupation may have been long enough and their
acts of ownership overt and unambiguous enough that the court
could infer from their exclusive possession over the years that
the family was repudiating the true owners interest. In this
scenario, the identity of the true owner would be similarly
immaterial. We therefore remand the case to the superior court
for the necessary findings. That court, at its discretion, may
choose to review the existing record in light of these
principles, or it may decide to take new evidence before making
its determination.
B. The Superior Court Properly Admitted the Testimony of
Art Fields.
On remand, the superior court may again be faced with
the question of whether to consider the testimony of Art Fields.
Fields testified to the conversation between Mary Johnson and Dan
Snyder in which they agreed that Snyder would live on Johnsons
land and in exchange he would supply her with food. Glover and
Douglass argue that the testimony should have been excluded both
under Alaska Evidence Rule 602, which requires a lay witness to
ha[ve] personal knowledge of the matter testified to,38 and as
inadmissible hearsay under Rules 801 and 802.
Fields testified that he was present for the
conversation between Johnson and Dan Snyder:
THE COURT: Was Dan with you when . . .
you talked with Mary and you said Ill give
you 110 [dollars] for half of the lot?
A: Yeah, and and she said Im going to give
my other half to him for Native grub and
stuff as long as he keep[s] supporting
me . . . .
Q: And do you believe that was exactly what
she said?
A: Yeah.
Rule 602 requires only minimal evidence of a witnesss
personal knowledge.39 Given the wide discretion accorded trial
courts in their admissibility decisions,40 we hold that the
superior court did not abuse its discretion in holding that this
testimony was sufficient to establish Fieldss personal knowledge
under Rule 602.
Fields recounted the conversation that he had with Dan
Snyder, Sr. and Mary Johnson at several other points in his
testimony. In addition to the passage reproduced above, the key
testimony is:
[T]his old lady, Mary Johnson . . . came over
and I and Dan and I were there, Dan Snyder,
and she said if you get me Native grub and
take care of me for like caribou meat,
reindeer meat, rabbits, anything, seal meat,
Ill give you half of that property, and she
sold half of it to me and gave the other to
Dan Snyder.
Glover and Douglass assert, without much elaboration,
that this is hearsay and inadmissible. Under Alaska Rules of
Evidence 801 and 802, evidence is inadmissible hearsay if it is a
statement made out of court and introduced to prove the truth of
the matter asserted.41 Fieldss recounting of the conversation
between Mary Johnson and Dan Snyder, Sr. is not excluded by the
hearsay rule because it is not offered to prove the truth of the
matter. The testimony is not relevant to prove that Johnson or
Dan Snyder, Sr. actually intended to follow through on their
promises, nor whether they performed them. It is relevant to
prove that they said they would perform and therefore entered an
agreement.42 Evidence of an oral agreement is not offered to
prove the truth of the matter stated. Rather, such evidence is
offered simply to show that the statement was made.43 If the
significance of an offered statement lies solely in the fact that
it was made, no issue is raised as to the truth of anything
asserted, and the statement is not hearsay.44 Fieldss testimony
was not hearsay and therefore properly admitted.
V. CONCLUSION
Snyder may hold unrecorded title to the property in
Kotzebue. If he or his predecessor repudiated the true owners
interest in the property through a distinct and positive
assertion of their own claim of ownership or through a long and
unambiguous occupation of the property, then the initially
permissive possession became hostile. If he did so in time to
fulfill the other requirements of adverse possession, then he has
gained title through adverse possession. We REMAND the case to
the superior court to review the record, including the testimony
of Art Fields, and conduct further factfinding, if necessary, in
order to determine whether such a repudiation occurred.
_______________________________
1 The lot lines are not perfectly aligned with the points
of the compass. The lines identified here as north-south
actually run northeast-southwest. For clarity in the complicated
history of the lot, we will refer to boundaries as if they
matched the cardinal directions.
2 The evidence of mistake is not well developed. This
may be because the trial court adopted a theory not argued at
trial that was based on the validity of the 1965 transaction.
See infra pages 5-6.
3 The Housing Authority lease was terminated in July 1987
when the Housing Authority quitclaimed its interest to Clara
Glover.
4 Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001)
(quotation marks and citations omitted).
5 Id. at 20 (quotation marks and citations omitted).
6 Cf. J.S. v. State, 50 P.3d 388, 391 (Alaska 2002)
(Whether the factual findings are sufficient to satisfy the
[CINA] rules is a question of law that we will review de novo.).
7 Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994)
(quotation marks and citation omitted).
8 Alaskas other adverse possession statute, AS 09.45.052,
applies only to possession under color and claim of title, a
claim Snyder does not press.
9 Nome 2000 v. Fagerstrom, 799 P.2d 304, 309 (Alaska
1990) (quoting Smith v. Krebs, 768 P.2d 124, 125 (Alaska 1989));
see also Vezey, 35 P.3d at 20.
10 See Peters v. Juneau-Douglas Girl Scout Council, 519
P.2d 826, 832 (Alaska 1974); Chaplin v. Sanders, 676 P.2d 431,
434 (Wash. 1984) (Hostility . . . does not import enmity or ill-
will, but rather imports that the claimant is in possession as
owner, in contradistinction to holding in recognition of or
subordination to the true owner.) (quotation marks omitted).
11 See City of Anchorage v. Nesbett, 530 P.2d 1324, 1328
(Alaska 1975).
12 Smith, 768 P.2d at 126.
13 Ayers v. Day & Night Fuel Co., 451 P.2d 579, 581
(Alaska 1969).
14 Nesbett, 530 P.2d at 1328-29 (quoting Ayers v. Day &
Night Fuel Co., 451 P.2d 579, 581 (Alaska 1969)); see also
Hamerly v. Denton, 359 P.2d 121, 126 (Alaska 1961); Jackson v.
Eichenberger, 205 N.W.2d 349, 351 (Neb. 1973); 10 Thompson on
Real Property 87.10, at 137 (David E. Thomas, ed., 2d ed.1998)
(If possession is permissive in the beginning, it can be changed
to one of hostility only by the most unequivocal conduct on the
part of the adverse claimant.); see also id. at n.331 (listing
cases).
15 Nesbett, 530 P.2d at 1330 ([T]he question of whether
the use after conveyance was permissive or adverse is a question
of fact on which [the adverse claimant] had the burden of
proof.).
16 Id. (after conveyance, claimant must show a distinct
and positive assertion of a right hostile to the owner) (quoting
Scheller v. Pierce County, 104 P. 277 (Wash. 1909)).
17 Although Glover and Douglass are not technically
seeking reformation of the Rotman Stores deed, their argument is
closely analogous. Reformation corrects the language [of a deed]
so that it reads as it should have read all along. 14 Richard A.
Powell, Powell on Real Property 81A.07[3][a] (Michael Allan Wolf
ed., 1999). By arguing that Rotman Stores and the Maxsons never
owned the subject lot, Glover and Douglass ask the court to act
as if Billy Glover sold Rotman Stores the northerly lot in the
first place, rather than making the sale that the deed reflects.
In other words, they want the deed from Glover to Rotman Stores
to read as it should have read all along. A party seeking to
reform a deed must prove the basis for reformation by clear and
convincing evidence. Voss v. Brooks, 907 P.2d 465, 468 (Alaska
1995). In the present situation, however, where the parties to
the original transaction and their successors do not object to a
change based on a mutual mistake and there is no evidence that
any third party relied on the original deed, the heightened
standard of proof is unnecessary.
18 Jackson, 205 N.W.2d at 351; Worthen v. Rushing, 307
S.W.2d 890, 892 (Ark. 1957); Jones v. Skannal, 368 So. 2d 774,
777 (La. App. 1979); accord Stepp v. Stepp, 25 S.E.2d 8 (Ga.
1943); Ehrman v. Mayer, 57 Md. 612, 1882 WL 4476, at *6 (Mar. 1,
1882) ([W]hen the relation of landlord and tenant has been
created, the possession of the tenant is consistent with the
title of the landlord, and the mere non-demand and non-payment of
rent, are not sufficient to bar the landlords title . . . .);
Camp v. Camp, 5 Conn. 291, 1824 WL 67, at *9 (Conn. 1824) (The
person once a tenant, so long as he remains in the occupation of
the land demised, must be deemed to continue in that
character . . . .).
19 Interior Energy Corp. v. Alaska Statebank, 771 P.2d
1352, 1357 (Alaska 1989) (citing Restatement of the Law of
Property 22, at 53 (1936)).
20 In fact, [a]t common law a tenancy at sufferance was .
. . a device to prevent the creation and running of adverse
possession by the tenant holding over. Kilbourne v. Forester,
464 S.W.2d 770, 776 (Mo. App. 1970).
21 Accord Camp, 1824 WL 67, at 9 (The rule is founded in
sound policy, because it tends to encourage honesty and good
faith between landlord and tenant; and is intended to give the
former a security, which, otherwise, would be infinitely
endangered.) (citation omitted).
22 Nessley v. Ladd, 45 P. 904, 908 (Or. 1896).
23 See Estate of Wells v. Estate of Smith, 576 A.2d 707,
710 (D.C. 1990); Woodrow v. Henderson, 783 S.W.2d 281, 285 (Tex.
App. 1989) (Acts which are inconsistent with ownership by the
record owner of the property may be sufficient to put the record
owner on notice that the tenancy has been repudiated.); McCall v.
Hyde, 592 P.2d 1064, 1066 (Or. App. 1979). But see Shepherd v.
Lyle, 395 P.2d 641, 644 (Okla.1964) ([N]othing short of an
explicit disclaimer of such a relation and a notorious assertion
of right in himself will be sufficient to change the character of
his [formerly permissive] possession.).
24 E.g., Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 899 (Tex.
1976) (It is held that repudiation of the claim of a co-tenant
and notice thereof may be shown by circumstances and that a jury
may infer such facts from long continued possession of the land
under claim of ownership and non-assertion of claim by the
owners.) (citation omitted); Reid v. Wilkerson, 149 S.E.2d 700,
704 (Ga. 1966). Others are more stringent in the other
direction, holding that only a tenant who abandons the property
and re-enters has asserted a claim hostile to the true owners.
E.g., Arndt v. Ball, 56 N.W.2d 394, 396 (Mich. 1953).
25 Johns v. Scobie, 86 P.2d 820, 823 (Cal. 1939); see also
Ransom v. Bebernitz, 782 A.2d 1155, 1162 (Vt. 2001).
26 City of Providence v. Devine, 192 A. 212, 214 (R.I.
1937); see also Hunter v. Schultz, 49 Cal. Rptr. 315, 318 (Cal.
App. 1966).
27 Nesbett, 530 P.2d at 1330.
28 See, e.g., Johns, 86 P.2d at 823 (noting that tenant in
commons construction of a house on disputed property may have
been sufficient to oust co-tenants).
29 Adams v. Johnson, 136 N.W.2d 78, 82 (Minn. 1965).
30 See, e.g., id.; Watson v. Little, 79 S.E.2d 384, 387
(S.C. 1953); Camp, 1824 WL 67 at 9-10 (citing Fishar v. Prosser,
Cowp. 217, 98 Eng. Rep. 1052 (K.B. 1774) (Mansfield, L.)).
31 136 N.W.2d 78 (Minn. 1965).
32 Id. at 81.
33 Id.
34 Id. at 80.
35 Id. at 81-82.
36 Watson, 79 S.E.2d at 387.
37 [W]hat a duly alert owner would have known the owner is
charged with knowing. Alaska Natl Bank v. Linck, 559 P.2d 1049,
1053 (Alaska 1977) (quotation marks omitted).
38 Alaska R. Evid. 602.
39 L.C.H. v. T.S., 28 P.3d 915, 921 (Alaska 2001); see
also Commentary to Alaska R. Evid. 602 (As long as there is some
evidence that the witness has personal knowledge, the court must
let the [factfinder] decide whether or not the witness is really
knowledgeable.).
40 Buster, 866 P.2d at 841 n.9.
41 Alaska R. Evid. 801(c).
42 Cf. Shimer v. Foley, Hoag & Eliot LLP, 795 N.E.2d 599,
603-06 (Mass. App. 2003).
43 West Coast Truck Lines, Inc. v. Arcata Community
Recycling Center, Inc., 846 F.2d 1239, 1246 n.5 (9th Cir. 1988);
see also United States Fidelity & Guar. Co. v. Davis, 413 P.2d
590, 592 (Ariz. 1966); Shimer, 795 N.E.2d at 603-06; Island
Directory Co., Inc. v. Ivas Kinimaka Enters., Inc., 859 P.2d 935,
939-40 (Haw. App. 1993); 6 John Henry Wigmore, Evidence in Trials
at Common Law 1770, at 259 (James H. Chadbourne rev., 4th ed.
1976) (Where the utterance of specific words is itself a part of
the details of the issue under the substantive law and pleadings,
their utterances may be proved without violation of the hearsay
rule . . . .).
44 Commentary to Alaska R. Evid 801(c).
