Citation. 196 W. Va. 559,474 S.E.2d 489, 1996 W. Va.
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Brief Fact Summary.
A piece of land enclosed into one person’s property actually belonged to someone else. When the true owner attempted to build on that property, a claim of adverse possession was made.
Synopsis of Rule of Law.
Tacking is the adding together of periods of adverse possession, and is allowed when the transferor and transferee have privity with each other.
The Gobble family purchased a piece of property and were informed by their real estate agent that their property ran up to and included the fence. They used this property consistent with ownership rights. When the Browns purchased their property, a survey they had done showed that a fenced-in two feet wide tract of land that the Gobbles believed was theirs actually belonged to the Browns. At the time, the Browns did nothing to show ownership of that land. Five years later, the Browns decided to build a road on that land, but the Gobbles asserted ownership of the land. The trial court held the Gobbles failed to show ownership by adverse possession.
Can adverse possession be established by landowners by tacking on the time period of their predecessors in title?
Yes. Judgment reversed and remanded.
Tacking permits adding together the time period that successive adverse possessors claim property, and if the time period added together is more than ten years, adverse possession may be allowed.
The original landowners began their ownership in 1937, and they believed the two feet wide tract of land was theirs, and they exercised dominion and control over the tract that was consistent with ownership rights. The original owners then sold it to another couple, who also believed the parcel in question was theirs. The Gobbles purchased it from them in 1985, and they also believed it belonged to them.
To establish the hostile element of possession by tacking, the Gobbles provided evidence that the fence existed in 1937, and continued to exist until the present case.
To establish the actual element of possession by tacking, the Gobbles provided evidence that the fence had undergone repairs since 1937, and that a garden and shed had been built on the tract.
To establish the open and notorious element of possession by tacking, the Gobbles presented evidence that the community believed the parcel belonged to the original landowners.
To establish the exclusive element of possession by tacking, the Gobbles presented evidence that since 1937, no one had ever questioned the ownership of the property.
To establish the continuous element of possession by tacking, the Gobbles presented evidence that the original owners enclosed, maintained, cultivated and claimed ownership of the parcel, and so did the subsequent owners.
When two parties have a direct relationship with each other, such as being parties to a deed, they are in privity. When privity exists, periods of adverse possession can be added together so the statutory time requirements can be met, which is called tacking.