Nome 2000 v. Fagerstrom
799 P.2d 304 · Alaska Supreme Court · 1990
Facts
Nome 2000 holds record title to a 7.5-acre tract of land overlooking the Nome River, known as the disputed parcel. Charles Fagerstrom's family began using an abandoned boy scout cabin on the parcel as a subsistence base camp around 1944-45, continuing seasonal use for subsistence and recreation. In 1966, Charles and Peggy Fagerstrom brought building materials to the north end, intending to build a cabin. Around 1970, they built a picnic area and in 1974, they began placing a camper trailer on the north end from early June through September annually until 1978, also building an outhouse and fish rack. In 1975-76, they planted spruce trees, and in summer 1977, they built a reindeer shelter and pen. From 1974-1978, they visited the property frequently, using it for subsistence and recreation, cleaning it, and occasionally excluding others. In summer 1978, they placed a cabin on the north end, and Nome 2000 admits adverse possession of this portion from then until the lawsuit was filed on July 24, 1987.
Procedural history
Nome 2000 filed suit to eject the Fagerstroms, who counterclaimed for adverse possession. After a jury trial, where Nome 2000's motion for a directed verdict was denied, the jury found that the Fagerstroms had adversely possessed the entire parcel, and the trial court entered judgment in their favor. Nome 2000 appealed the trial court's denial of its motion for a directed verdict, the sufficiency of the evidence, evidentiary rulings, and the award of attorney's fees.
Issue
Did the Fagerstroms establish title to the entire disputed parcel by adverse possession, specifically meeting the requirements of continuous, open and notorious, exclusive, and hostile possession for the statutory period, and if so, to what extent of the land?
Holding
The court affirmed that the Fagerstroms established adverse possession of the northerly portion of the disputed parcel but reversed the finding of adverse possession for the southerly portion. The case was remanded to determine the exact boundaries of the Fagerstroms' acquired property and to reassess attorney's fees.
Rule
To acquire title by adverse possession, a claimant must prove by clear and convincing evidence that their use of the land was continuous, open and notorious, exclusive, and hostile to the true owner for the statutory period. The quality and quantity of acts required depend on the character of the land, with rural land requiring a lesser exercise of dominion and control, consistent with how an average owner of similar property would use it. Notoriety requires visible evidence of possession sufficient to put a reasonably diligent owner on notice, and community repute can be relevant. Hostility is determined by an objective test, asking whether the possessor acted toward the land as if they owned it without permission, making the possessor's beliefs or intent irrelevant. Absent color of title, only property actually possessed may be acquired by adverse possession.
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