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Appeals court hears dispute over adverse possession, neighbors argue permission vs. cumulative improvements
Summary
At oral argument in 24P479, Johnson v. Holbrook, the appeals panel heard competing accounts of whether the Holbrooks' use of two contiguous areas—a driveway turnaround and a parcel behind it—amounted to adverse possession or instead was permitted use by agreement.
At oral argument in 24P479, Johnson v. Holbrook, the appeals panel heard competing accounts of whether the Holbrooks' use of two contiguous areas—a driveway turnaround and a parcel behind it—amounted to adverse possession or instead was permitted use by agreement.
David Uidi, counsel for appellant Michael Johnson, told the panel the trial record shows Johnson gave the Holbrooks permission to "use" the turnaround area and to park there, and that the trial judge offered no factual basis for limiting that permission. Uidi argued testimony showed the owner repeatedly observed parking, including commercial vehicles, and did not object for years.
Maureen Carroll, counsel for appellees the Holbrooks, said the record shows many separate, continuous physical improvements—"the pet cemetery, the fish pond, the kennel," movable basketball hoops, stacked cords of wood, and periodic vehicle repair and oil drips—that, taken together over decades, support the trial court's finding of adverse possession. Carroll described the evidence as a "serratus paradox" in which "grains of sand add up" to title-affecting use.
The panel questioned witnesses' visibility of the back parcel from the Johnsons' occupied portion of the property, the legal standard for "open and notorious" use, the effect of a preexisting vegetation boundary, and whether invitation onto the property or occasional visibility satisfied the requirement that the use be "known to some who might reasonably be expected to communicate their knowledge to the owner." Counsel debated whether permissive uses such as a movable basketball hoop or temporary storage of wood could, alone or cumulatively, support adverse possession.
Both sides pointed to photographs, a survey conducted after a driveway expansion, testimony about decades of use, and the judge's in-person view of the property. Counsel for Johnson asked the panel to treat the turnaround and the rear parcel separately; counsel for the Holbrooks said the trial judge considered the totality of use and did not err.
After extended argument, the panel thanked counsel and said it would take the matter under advisement. No decision was announced from the bench.
