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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


and ROBERT DOUGLASS,          )    Supreme Court No. S-10848
             Appellants,      )    Superior Court No.
                              )    2KB-00-00089 CI
     v.                       )
                              )    O P I N I O N
LOY, LONA STALLSWORTH,   )    [No. 5812 - June 11, 2004]
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.


          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.


     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


          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


          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.


          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


     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


          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


          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.


          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

     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

     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

     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

     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).