Enzor v. Minton

123 N.C. App. 268 | N.C. Ct. App. | 1996

EAGLES, Judge.

Respondents argue that the trial court erred as a matter of law in granting summary judgment in favor of petitioners and in failing to grant summary judgment for respondents. We disagree.

In Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985), our Supreme Court held that

when a landowner, acting under a mistake as to the true boundary between his property and that of another, takes possession of the land believing it to be his own and claims title thereto, his possession and claim of title is adverse. If such adverse possession meets all other requirements and continues for the requisite statutory period, the claimant acquires title by adverse possession even though the claim of title is founded on a mistake.

Walls, 315 N.C. at 249, 337 S.E.2d at 562. Knowing that adverse possession can be founded upon mistake, the question then becomes whether the land in question was adversely possessed for the twenty-year statutory period required by G.S. 1-40 to vest fee simple title in the adverse possessor.

Here, there is no dispute that petitioners adversely possessed the property in question for greater than the minimum statutory period. Moreover, under Walls, there is no dispute that the possession was adverse for the entire period. Respondents only remaining argument in light of Walls stems from the fact that petitioners’ possession was adverse due to mistake for nearly half the statutory period and intentionally adverse for the remainder of the statutory period.

Respondents argue that the statutory period should have been restarted once petitioners realized the mistake and then retained possession of the property with a conscious intention to ultimately claim title. Respondents’ argument would not allow this later period of adverse possession to be “tacked” with the period during which petitioners’ possession was adverse due to mistake. We are not persuaded. Tacking has long been accepted as a means of aggregating related periods of adverse possession into one for the purpose of satisfying the statutory minimum period necessary to ripen title in the adverse possessor. E.g., Beam v. Kerlee, 120 N.C. App. 203, 212, 461 S.E.2d 911, 918-19 (1995) (allowing a father’s period of adverse possession to be tacked with his son’s period of adverse possession in an attempt to satisfy the prescriptive period), disc. review denied, 342 N.C. 651, 467 S.E.2d 703 (1996); Dickinson v. Pake, 284 N.C. 576, 585, 201 S.E.2d 897, 903 (1974) (recognizing that “successive adverse users in privity with prior adverse users can tack successive adverse possessions of land so as to aggregate the prescriptive period of twenty years.”); International Paper Co. v. Jacobs, 258 N.C. 439, 444, 128 S.E.2d 818, 822 (1963) (tacking “the possession of an ancestor to that of the heir when there was no hiatus or interruption in the possession.”). Here, there was no interruption in petitioners’ adverse possession and, although not dispositive, the parties adversely possessing the land remained the same throughout the period in question.

We hold that where adverse possession originates in mistake but then, upon discovery of the mistake by the adverse possessor, is perpetuated by conscious intent, the uninterrupted periods of adverse possession may be tacked together and considered as one for the purpose of satisfying the prescriptive period set out in G.S. 1-40. See Beam, 120 N.C. App. at 212, 461 S.E.2d at 918-19; Walls, 315 N.C. at 249, 337 S.E.2d at 562. Accordingly, we affirm the order of the trial court granting summary judgment in favor of petitioners.

Affirmed.

Judges LEWIS and McGEE concur.