Tumulty v. Schreppler ( 2015 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
PATRICIA A. TUMULTY, MICHELE )
B. LYNCH, DANNI A. LYONS, )
STEPHEN J. TUMULTY, CHRISTINE )
SARLI and BERNICE TUMULTY, ) C.A. No. 5948-VCP
)
Plaintiffs, )
)
v. )
)
JAMES RICHARD SCHREPPLER, )
)
Defendant. )
OPINION
Date Submitted: December 18, 2014
Date Decided: March 30, 2015
John A. Sergovic, Jr., Esq., SERGOVIC, CARMEAN & WEIDMAN, Georgetown,
Delaware; Attorneys for Plaintiffs.
John H. Newcomer, Jr., Esq., MORRIS JAMES LLP, Wilmington, Delaware; Attorneys
for Defendant.
PARSONS, Vice Chancellor.
In this adverse possession case, the defendant boldly attempts to claim ownership
of nearly fifteen acres of woodland property previously listed as having unknown
ownership, which he discovered while boating. Although this case rests on the outermost
fringes of satisfying the adverse possession standard, for the reasons that follow, I
conclude that the defendant has made out his claim. This is the Court‟s post-trial
Opinion.
I. BACKGROUND
Plaintiffs, Patricia Tumulty and her five children—Michele B. Lynch, Danni A.
Lyons, Stephen J. Tumulty, Christine Sarli, and Bernice Tumulty—filed this action
against Defendant, James Richard Schreppler, alleging that he interfered with the quiet
enjoyment of their property and slandered their title. Plaintiffs also requested declaratory
relief that they are the legal and rightful owners of the land in dispute and asked this
Court to remove a cloud over their title.1 Initially, William B. and Susan M. Wilgus also
were named as defendants in this action, but they were dismissed pursuant to a stipulation
reached during trial. Defendant Schreppler counterclaimed and requested a declaratory
judgment that he had acquired the lands in dispute by adverse possession.
1
There is some dispute as to which of the Plaintiffs actually has an interest in the
land, because the children purportedly conveyed their interest in the relevant land
to their mother, Patricia Tumulty. Because all of the Tumultys filed suit as co-
plaintiffs, however, any dispute on this point is one among Plaintiffs, which they
have not asked the Court to resolve, and is not the focus of this Opinion.
1
A. Facts
This is the tale of a landlocked, wooded, and partially submerged parcel of land in
Sussex County, Delaware. The roots of this dispute can be traced to an errant survey that
resulted in the land being listed in certain public records as having the status of “owner
unknown.” The present case, however, resulted from a disagreement between Defendant
and a third party over a stormwater-outfall pipe.
1. The disputed property
It is helpful, first, to describe the land in dispute. On or about June 1, 1971, James
Tumulty, husband of Patricia,2 acquired land in Dagsboro Hundred in Sussex County.
The deed that conveyed that land (the “Workman II Deed”) contains no metes and
bounds descriptions, but purports to convey “thirty (30) acres of land, more or less.”3
Title can be traced back to an 1844 Orphans‟ Court proceeding. 4 James passed away on
January 16, 1985.5 The land passed to Plaintiffs under Delaware‟s intestacy laws.6
In a letter dated February 22, 1990, Melvin L. Joseph wrote to Patricia in an
attempt to enforce a fifteen-year old development agreement between him and James
2
Throughout this Opinion, first names occasionally are used to avoid confusion.
No disrespect or familiarity is implied.
3
JX 10.
4
JX 50.
5
Joint Stipulation 2(g).
6
Tr. 66 (Schab). Citations to the trial transcript will be cited as “Tr. # (X),” with
the witness “X” identified if not apparent from the text.
2
regarding the thirty acres.7 William Schab, Patricia‟s attorney at the time, testified at trial
regarding the subsequent series of events. Although Schab believed the development
agreement to be unenforceable, Joseph threatened legal action. The Tumultys wished to
avoid the expense and hassle of a lawsuit.8 As a result, they agreed to sell the land to
Joseph. Negotiations dragged on for about two years.9 One sticking point was the size of
the property. Although the Workman II Deed stated 30 acres, more or less, a survey
commissioned by Joseph (the “1990 Land Tech Survey”) found the land to be only 21
acres.10 Eventually, the parties reached an agreement that involved selling the land for
$60,000. The Tumulty children conveyed their interests in the land to Patricia on January
29, 1992,11 and on April 1, 1992, she conveyed the land to Lakeview Estates, Inc., the
corporate entity established by Joseph to develop the property.12 I will refer to the
property conveyed by Patricia as the “Former Tumulty Lands.”
As it turned out, the 1990 Land Tech Survey mistakenly excluded a portion of the
land that James owned. In 2008, a survey commissioned for Patricia, but, as described
infra, apparently not ordered or paid for by her, indicated that the lost piece of land
7
JX 24.
8
Tr. 67-69.
9
Id. at 69.
10
JX 12.
11
JX 13.
12
JX 14.
3
contained some 14.74 acres (the “2008 Tumulty Survey”),13 which is the land in dispute
in this case (the “Property”).14 For ease of understanding, this Opinion includes a
diagram of the Property at the end, entitled Annex I, which schematically depicts the
Property and adjoining land. Aside from possible waterway access, the Property is
landlocked in that there is no connecting road or point of access over land except through
13
JX 19.
14
As the following pages will show, Schreppler originally claimed possession of
more of the land than is shown on the 2008 Tumulty Survey. In a previous case
involving Schreppler‟s claims, ABC Woodlands, L.L.C. v. Schreppler, 2012 WL
3711085 (Del. Ch. Aug. 15, 2012), I adjudicated the boundaries of certain land
held by ABC Woodlands, L.L.C. (“ABC Woodlands”) a neighboring landowner.
Plaintiffs maintain that the holding of that case creates an impermissible gap
between the Tumultys‟ lands and ABC Woodlands‟s property. That gap,
represented as a patterned rectangle in Annex I and referred to henceforth as the
“Adjacent Parcel,” is a piece of land consisting of roughly three-quarters of an
acre. Plaintiffs ask the Court essentially to reform their boundaries vis-à-vis ABC
Woodlands to the west and Collins Acres, LLC, to the north pursuant to a
boundary-line agreement entered into by those parties. JX 22. Schreppler,
however, counterclaimed against the Tumultys‟ efforts to eject him from their
property. Neither the Collinses, their business entity, nor ABC Woodlands is a
party to these proceedings. As this case is only adjudicating Schreppler‟s adverse
possession claims against the Tumultys, the dispute over the purported gap is not
properly before the Court. Accordingly, I decline the parties‟ respective
invitations to adjudicate the Tumultys‟ right to that parcel, or Schreppler‟s adverse
possession claims as to it, or both. While this may appear inefficient—and the
Court does not relish a third case about Schreppler‟s claims, i.e., Collins Acres
G.P. v. Schreppler, Civ. A. No. 6916-VCP—the relevant title owners are
necessary parties to such disputes.
4
neighboring property.15 In terms of topography, the Property is heavily wooded, with
some deer paths.16
2. Schreppler stakes a claim
Schreppler testified at trial about the activities that he has engaged in over the
years on the Property. I found his testimony, like that of most of the other witnesses,
credible. Some of Schreppler‟s testimony is corroborated by other witnesses. Moreover,
with the possible exception of the “No Trespassing” signs, discussed infra, the material
facts relevant to this dispute are largely uncontroverted.
a. 1985-1992
In May or June of 1985, Schreppler discovered land near the Property while
boating on Martin Mill Pond.17 Initially, Schreppler explored the lands south of the
pond.18 He returned about two weeks after his initial visit to explore the southern lands
further.19 Interested in hunting the property, Schreppler went to the local tax office in
late June or early July to identify the owner. The tax records for Parcel 38, which
15
Tr. 585 (Schreppler).
16
Id. at 596.
17
Tr. 581-82.
18
Schreppler‟s claims to the land south of the pond were disposed of in the ABC
Woodlands case when he dismissed his adverse possession claims by stipulation.
Thus, the land south of Martin Mill Pond is not at issue in this case.
19
Id. at 582.
5
included the land in question, listed it as either “unknown owner” or “owner unknown.”20
It was at this time that Schreppler realized that Parcel 38 extended north, above the pond,
and encompassed the Property at issue in this case. He returned to the area again in July
1985 and explored both the southern and northern portions, including the Property.21
Around this time, Schreppler determined to claim the Property, and other lands not
at issue here, as his own. Although unfamiliar with the legal concept of adverse
possession, he had heard of “squatter‟s rights,” which he understood to be the ability of
someone to claim abandoned land as their own.22 Schreppler considered the boundaries
to his claimed land to be consistent with the lines of Parcel 38 on the tax map. The
western boundary was readily identifiable because the ABC Woodlands property, which
was “under timber management,” had neatly lined rows of trees replacing previously
harvested trees. The northern boundary abutted a farm field, and the southern boundary
corresponded to the pond. Schreppler stated that he could not demarcate the eastern
boundary initially.23
In this early period, Schreppler‟s use of the Property steadily increased both
qualitatively and quantitatively. In 1985, he visited the Property twelve times. During
these visits, Schreppler fished or “patrolled” the land, which presumably means he hiked
20
JX 33. This exhibit apparently is not the same tax map that Schreppler viewed,
but he confirmed that the parcels were identical. Tr. 583-85.
21
Tr. 585-86.
22
Id. at 586.
23
Id. at 587-88.
6
it.24 In 1986, Schreppler established the first of two camps on the Property. The first
camp was built on the Adjacent Parcel. Two years later, Schreppler built a second
campsite in the middle of the Property, on what the parties have referred to as “the
peninsula.”25 The campsites consisted of four-sided aluminum tents, fire pits, square
folding tables, and folding chairs. Additionally, Schreppler kept wooden pallets on the
Property on which he would keep a trunk or two to store his equipment, such as cooking
gear. Tarps were placed under the tents or over the trunks, depending on the weather.
Additionally, he used a lot of mothballs to keep insects and snakes away. 26
Starting around the time he installed the 1986 campsite, Schreppler testified that
he began visiting the Property weekly.27 He described the Property as his “weekend
getaway,” and would stay for as long as two nights at a time.28 These visits involved
camping, squirrel or deer hunting in the fall, and fishing. The deer hunting required the
addition of ladder stands to the Property. Schreppler‟s duck hunting included installation
of at least one “burlap and sticks” duck blind near the peninsula camp, as well as some
duck boxes.29 Sometimes the duck blind would be left standing; otherwise, Schreppler
24
Id.
25
Id. at 597. Annex I shows the approximate location of these campsites.
26
Tr. 600-01.
27
Id. at 597.
28
Id. at 601.
29
Id. at 598-600, 604.
7
would take it with him when he departed or store it in one of his trunks on the Property.30
Additionally, Schreppler widened the main deer path that ran from the Tumultys‟ land to
the Property and created a few smaller side trails that went to the water and other areas on
the Property.31
These activities continued at this rate of roughly once a week until 1992.
Schreppler listed five friends that visited the Property with him at various points during
the pre-1992 time period. One of those individuals, Joseph Phillips, testified that he
visited the Property to camp and fish with Schreppler on twenty to thirty occasions in the
1986 to 1988 or 1989 timeframe.32 Phillips apparently camped exclusively on the
Adjacent Parcel.33 This camping occurred in lengths of time from overnight up to, on
one occasion, a week. Phillips described the Property as difficult to access.34
Schreppler also testified to his limited posting of “No Trespassing” signs, or other
signage of similar language. He posted such signs on the Property around 1986: (1)
along the main deer trail from the Former Tumulty Lands “[w]here the wood starts to get
thick again as you walk west and the trail starts”;35 (2) in the pond area;36 (3) toward the
30
Id. at 600.
31
Id. at 605.
32
Id. at 562-63.
33
Id. at 568-70.
34
Id. at 565-66, 574.
35
Id. at 608-09.
8
western boundary adjoining ABC Woodlands;37 and (4) by the camp.38 Phillips testified
to a sign at the pond that would be visible if arriving by canoe, but the exact location of
that sign is unclear.39 In general, there is little evidence corroborating Schreppler‟s
posting of signage. I find that Schreppler probably did post such signs, but the record
does not indicate their specific locations on the Property, or how long the signs stayed on
the trees.
In addition to these physical acts of possession, Schreppler took some legal steps
to shore up his claims in the fall of 1990. On November 3, 1990, he had a quiclaim deed
prepared by William Wilgus by which Susan Wilgus “conveyed” the land identified on
the tax map as parcel number 1-33-19.00-38.00 to Schreppler for one dollar (the “Wilgus
Deed”).40 That deed was recorded on November 5, 1990.41 The parties have stipulated
that the Wilgus Deed conveyed no legal or equitable interest to Schreppler,42 nor could it
have. Susan Wilgus did not claim to have any interest in the Property and the Wilgus
Deed was only a “straw deed.” The purpose of a straw deed, as explained by Richard E.
36
Id. at 609.
37
Id. at 610.
38
Id. at 611.
39
Id. at 574.
40
Id. at 589.
41
JX 17.
42
Joint Stipulation 2(d).
9
Johnson, a cadastral mapping specialist employed by Sussex County, is to show an
“intent to create a chain of title for property.”43 On November 7, 1990, in connection
with recording the Wilgus Deed, Schreppler also assumed property tax responsibility for
the Property and paid back taxes back to 1977.44
This relatively early portion of the relevant time period also includes some of the
only evidence regarding the Tumulty children‟s contact with their father‟s property. In
general, none of the children knew the boundaries of James‟s property, nor did most of
them provide helpful explanations of exactly what they did or where they went when they
visited. Most of these visits reference a “shack” or “cabin” that James had on the Former
Tumulty Lands. County Road 412 intersects that land at its northeastern corner. Like the
Property, the Former Tumulty Lands were bounded by Martin Mill Pond on the south.
The northeastern corner of James‟s land was 966.93 feet from the western boundary of
the Former Tumulty Lands, which is the eastern boundary of the Property.45 Although
not entirely clear from the record, the testimony generally indicates that the cabin is close
to County Road 412.46 All four of the Tumulty children who testified stated consistently
43
Tr. 29. The term “cadastre” is defined, in relevant part, as: “A survey and
valuation of real estate in a county or region compiled for tax purposes.” BLACK‟S
LAW DICTIONARY 230 (9th ed. 2009). Presumably, then, a “cadastral mapping
specialist” is a person specializing in mapping real property, particularly for the
purpose of making tax maps.
44
Tr. 590-92; JX 61.
45
JX 12. Annex I attempts to portray this situation.
46
Tr. 106 (Bernice Tumulty: shack about “50 to a hundred feet from the roadway”).
10
that none of them saw any signs of human activity, such as duck blinds or deer stands,
and none of them observed any “No Trespassing” or similar signage on the land they
traversed. I find this testimony credible. The problem, however, is that this testimony is
of quite limited relevance because none of the Tumulty children actually appears to have
set foot on the Property. Rather, they were near it and may have been able to see some of
it.
Bernice Tumulty, the youngest Tumulty child, visited the Former Tumulty Lands
in 1990 with her husband. According to Bernice, the two of them “drove around . . . the
area. We got out. We walked around into . . . the land.” 47 Stephen Tumulty, the second
oldest Tumulty child, visited the Former Tumulty Lands once or twice during the 1980s,
though it is unclear when, and then in June 1990 with his wife.48 He has hunted for thirty
years and, during the 1990 visit, followed a deer path to “the swampy areas where the
lake was.”49 Stephen did not see any deer stands or man-made trails during his visit of
roughly one hour.50 On cross-examination, Stephen testified that he went a couple of
hundred yards into the woods, perhaps as far as a thousand feet.51 If his hike into the
47
Id. at 95.
48
Id. at 119. Stephen described the 1990 visit at trial, but did not provide any details
for the visit (or visits) in the 1980s.
49
Id. at 113.
50
Id. at 114.
51
Id. at 121-22.
11
woods were as the crow flies, Stephen may have entered the Property by about thirty feet,
assuming he were walking west, not south, which is not established in the record.
Danni Lyons, the second youngest Tumulty child, visited the property in 1987.
She testified that her visit lasted about an hour and estimated that she walked one or two
football fields. But, she later stated that she was not sure how far she went and may have
walked a thousand feet.52 Michele Lynch, the oldest Tumulty child, testified last. She
visited the property in the summer of 1990 along with her husband, their children, and
Bernice.53 At trial, she testified that their group walked “all over” the property.54 By her
estimate, they walked about ten acres of the property.55 This response, however, is
inconsistent with her deposition testimony, where she testified that they “couldn‟t go
back too far because there was a lot of brush. It was thick and swampy.” 56 At the
deposition, she also stated that she had no idea how far back she went.57 Even aside from
52
Id. at 129. I take judicial notice of the fact that a football field is approximately
300 to 360 feet long, depending on whether one includes the two end zones.
53
Id. at 148.
54
Id. at 150.
55
Id.
56
Id. at 168.
57
Id. at 169. Plaintiffs clearly anticipated this impeachment, because their counsel
asked both on direct and redirect whether Michele had reconsidered her trip to the
Former Tumulty Lands since her deposition. Id. at 149, 170.
12
the credibility issues arising from the impeachment, I find that Michele‟s testimony was
too ambiguous to be reliable.58
The foregoing represented the only evidence Plaintiffs presented as to any contact
they had with the Property before the mid-2000s. Based on that evidence, I find that
Plaintiffs have failed to show that any of them visited or walked over a material portion
of the Property during that time period. At best, the record suggests Stephen may have
stepped onto a very small segment of Property around its eastern boundary by roughly ten
yards. Overall, I did not find the testimony of the Tumulty children useful in resolving
Schreppler‟s adverse possession claims.
b. 1992-1994
Schreppler‟s usage of the Property shifted beginning in 1992. “By 1992, there
was an insect problem out there [on the Property], as far as parasites went, that made it
undesirable in the summer months to camp.”59 Accordingly, Schreppler removed his
58
Michele arrived at her trial testimony regarding “distance” by comparing it to the
distance up the street her own half-acre lot is. An acre, however, is a unit of
measurement for area, not distance. Thus, even assuming her testimony was
entirely accurate, it still would not be clear how far into the woods she traveled,
much less in what direction. For example, there are 43,560 square feet in an acre,
and a half-acre would be 21,780 square feet. Assuming a perfectly square lot, the
length of each side would be the square root of the area. For this hypothetical
square lot, each side would be about 147.6 feet. If Michele‟s half-acre lot were a
square lot, and she walked an estimated twenty such lots, then she would have
traveled 2,952 feet. The record, however, contains no evidence as to the shape of
Michele‟s lot. If it were a 50‟ by 436‟ rectangle, she would have walked either a
thousand feet, consistent with what Stephen did, or about 8720 feet, nearly a mile
and two-thirds.
59
Tr. at 602 (Schreppler).
13
long-term camp sites, but would still day-camp on occasion, as well as engage in fishing
and some hunting.60 His visits fell by more than half and he would use the Property
perhaps twenty times a year, as opposed to on nearly a weekly basis. This rate of usage
continued throughout the 1990s.61 There was, however, a brief effort in 1994 to re-
establish a camp on the Property. That undertaking lasted about six months and it is
unclear whether Schreppler visited the Property more frequently during those months.62
During the early and mid-1990s, the usage of the land surrounding the Property
began to change. The northern boundary continued to border a farm field, but the Former
Tumulty Lands were now under development. The Record Plat of Lakewood Estates II
was recorded on November 18, 1992. That document listed the western adjoining lands,
i.e., the Property, as being owned by Schreppler.63 As time progressed, the Former
Tumulty Lands were cleared of forest and prepared for development as a residential
neighborhood. At least some of that construction was completed by 1994. That
facilitated Schreppler‟s brief attempt to reestablish his overnight camp, because he could
drive on the now-paved road to about twenty feet from the eastern boundary of the
Property.64
60
Id. at 603.
61
Id. at 606.
62
Id.
63
JX 57.
64
Tr. 605.
14
c. 1995-2005
After 1994, Schreppler no longer had any campsites and he removed or otherwise
let deteriorate his duck blinds and deer stands,65 but he continued visiting the property to
hunt, fish, day-camp, and hike about twenty times annually.66 Sometime during the mid-
1990s, as the development of Lakewood Estates continued, Schreppler posted more “No
Trespassing” signs somewhere along the eastern boundary of the Property.67 These signs
were nailed to trees and remained until they wore out from the weather. 68 Moreover, the
signs were not directly on the boundary line, but some distance into the woods.
According to Schreppler, he did not post immediately along the eastern boundary line so
as not to offend his new neighbors.69 The record contains virtually no corroboration of
the existence of these signs. In addition, their specific locations are unclear, and the
length of time they remained posted is uncertain.
The Collinses, either individually or through a business entity, own land north of
the Property. They farmed that land from 1983 until 2004, when they began developing
some of that property into Deere Country, a new residential area. 70 Steven Short lives
65
Id. at 646. Two duck boxes may have remained on the Property. Id. at 647.
66
Id. at 606.
67
Id. at 611.
68
Id. at 639-40.
69
Id. at 666.
70
Id. at 176 (Collins, Jr.), 258 (Collins, Sr.).
15
northeast of the Property and across from both what is now Deere Country and Lakewood
Estates. He purchased that land from the Collinses and moved there in 1996.71 In 1997,
he requested permission from the Collinses to hunt on what is now Deere Country land,
which they granted.72 Short hunted in or around that area two times. On at least one of
those occasions, he went about twenty yards onto the Property entering from the north,
and he installed a deer stand there. Sometime later, he returned to find the stand removed
and a “No Trespassing” sign posted instead.73 A conflict exists in the trial testimony as
to what happened next. It is undisputed that Short did not return to hunt on the Property,
because he did not want to trespass,74 but according to Short he took the sign with him.75
Schreppler testified that the sign remained posted.76 I find it more likely that Short took
the sign, but this dispute is immaterial.77 Short further noted that, before seeing the sign
posted beneath his deer stand, he had not seen any “No Trespassing” signs along the
Deere Country border.78 He did not venture further into the woods, however.79 Leaving
71
Id. at 50-51, 57.
72
Id. at 57.
73
Id. at 54, 58.
74
Id. at 59.
75
Id. at 55.
76
Id. at 638.
77
Id. at 177 (Collins, Jr.: stating that Short showed him the sign).
78
Id. at 60.
16
aside the events relating to the outfall pipe on the Adjacent Parcel, discussed infra, there
is no evidence in the record of any other acts of trespassing by third parties on the
Property.
As time passed, Schreppler‟s usage continued as previously described, including
the ongoing payment of taxes. Third parties continued to recognize Schreppler as the
owner of the Property. On July 1, 1999, the Delaware Soil and Water Conservation
Office requested permission in writing to perform a topographical survey,80 which
Schreppler granted on July 6.81 On October 4, 1999, the Bell Flower Hunt Club
requested permission in writing to hunt on the Property.82 Schreppler granted that request
on October 9, subject to certain conditions.83 A second Record Plat of Lakewood Estates
II was recorded on August 8, 2001, again listing Schreppler as owner of the Property.84
And, the Collinses recorded a Preliminary Plan of Deere Country on January 7, 2003,
which listed the land to the south as owned by Schreppler.85
79
Id. at 61.
80
JX 66.
81
JX 67.
82
JX 62.
83
JX 63.
84
JX 58.
85
JX 59.
17
During the development of Lakewood Estates, Doug Simpson, a timber buyer, was
working for the developer, Melvin Joseph, near the eastern border of the Property. He
testified that he did not see any human activity on the Property or any “No Trespassing”
signs.86 It is doubtful whether Simpson entered the Property on the eastern side.87 If he
did, he probably did not go much more than twenty yards beyond the Lakewood Estates
boundary.88 On April 29, 2005, Shawn Rogers moved into a house on a lot in Lakewood
Estates adjacent to the Property.89 He similarly testified that he did not see any “No
Trespassing” signs along the border of the Property adjacent to him until 2011, when
several were added.90 Although Rogers has never set foot on the Property,91 he has seen
Schreppler on it hundreds of times.92
Tim Pulice requested permission in writing to hunt on the Property on November
10, 2005.93 Schreppler granted this request as well.94 At trial, Pulice confirmed that fact
and testified that he had visited the Property with Schreppler approximately twenty
86
Tr. 331-32.
87
Id. at 376-77.
88
Id. at 383-85.
89
Tr. 33.
90
Id. at 33-34.
91
Id. at 45.
92
Id. at 44.
93
JX 64.
94
JX 65.
18
times.95 His recollection regarding any “No Trespassing” signs, which he believed
probably were on the Deere Country boundary around 2006 or 2007, was hazy and of
limited utility.96
3. The outfall pipe incident
A dispute in 2005 between Schreppler and the Collinses set in motion a chain of
occurrences that resulted, eventually, in the filing of this lawsuit by Plaintiffs. As part of
the development of Deere Country, the Collinses needed to install an outfall pipe for
stormwater runoff. In July 2002, the Collinses (Sr. and Jr.) visited Schreppler at his
office and requested an easement across the Property for a drainage pipe. Schreppler
offered to grant the easement if they would provide him a right-of-way to access the
Property. At this meeting, the Collinses also inquired about purchasing the Property, but
Schreppler was not interested in selling.97
The Collinses also approached other nearby landowners about securing an
easement. One of those individuals cautioned the Collinses against working with
Schreppler because he did not have clear title to the land and was attempting to claim it
95
Id. at 478-79.
96
Id. at 481-82, 484-85.
97
Id. at 618-19 (Schreppler), 180-81 (Collins, Jr.), 258-59 (Collins, Sr.).
19
as a squatter.98 By this point in time in 2002, that fact apparently was widely known
among nearby landowners.99
Relations between Schreppler and the Collinses soured over the following years.100
On May 13, 2003, Schreppler‟s lawyer wrote to the Collinses to request right-of-way
access to the Property.101 The record does not indicate whether the Collinses ever
responded to this letter, but the right-of-way was not granted. According to the minutes,
at a meeting of the Sussex County Planning and Zoning Commission on May 22, 2003,
Schreppler objected to the Collinses‟ proposed development of Deere Country unless he
received a right-of-way to access the Property.102
Instead of dealing with Schreppler, the Collinses struck a deal with ABC
Woodlands that resulted in a recorded easement between Collins Acres General
Partnership (“Collins Acres”) and ABC Woodlands dated June 28, 2004.103 Schreppler
responded by having his own survey prepared on June 1, 2005.104 Based on this survey,
98
Id. at 259 (Collins, Sr.).
99
Id.
100
The final Record Plan of Deere Country, which was approved on November 5,
2004, actually omitted any reference to Schreppler‟s ownership claim, JX 83,
despite the fact that the preliminary plan filed on January 7, 2003, listed him as the
owner, JX 59.
101
JX 54.
102
JX 38.
103
Tr. 182-83 (Collins, Jr.); JX 26.
104
JX 15.
20
he took the position that the drainage easement in fact would be on his claimed lands and
not solely on ABC Woodlands‟s property.105 On August 16, 2005, Schreppler‟s counsel
sent a letter to the Collinses informing them of his position and his intent to take action
regarding the drainage pipe, which by then appeared to have been installed on his
property.106 Notwithstanding this threat, the Collinses opted not to remove the pipe.107
Sometime in December 2005, heavy rains caused flooding in Deere Country. The
Collinses inspected the area to determine why the outfall pipe was not removing the rain
water. Once they arrived on the Adjacent Parcel, they discovered that the outfall pipe
had been dug up out of the ground.108 The Collinses were advised by the Conservation
District to fix the problem as quickly as possible.109 They then promptly had the pipe
reinstalled.110 Schreppler‟s counsel noted this fact in another letter to the Collinses dated
December 14, 2005.111 Additionally, the Collinses filed a police report complaining
about the destruction of the outfall pipe.112
105
In the terminology employed throughout this Opinion and as reflected in Annex I,
the outfall pipe was placed on the Adjacent Parcel, rather than on the Property.
106
JX 45.
107
Tr. 187 (Collins, Jr.).
108
Id. at 198-99 (Collins, Jr.); JX 39 (photographs of the damage).
109
Tr. 251 (Collins, Sr.).
110
Id. at 200 (Collins, Jr.).
111
JX 49.
112
JX 43.
21
By this time, the Collinses and Schreppler clearly did not get along. On one
occasion the two sides had a confrontation of sorts on the Adjacent Parcel during which
Schreppler, who allegedly was squirrel hunting, was present with a shotgun and the
Collinses informed him to stop trespassing on what they believed to be their easement. 113
The Collinses also posted “No Trespassing” signs around the area, which were
removed.114 Additionally, the Collinses‟ attorney sent a letter to Schreppler on December
13, 2005, telling him to stop trespassing on the easement. 115 Although Schreppler did not
admit to removing the drainage pipe or the “No Trespassing” signs, the evidence strongly
suggests that he did. The record shows, for example, that: (1) no one else had a motive to
do so; (2) Schreppler‟s letter to the Collinses threatened to remove the pipe; and (3)
Shawn Rogers saw Schreppler entering the Property with a tractor, equipment that would
be necessary to dig up the drainage pipe.116
4. The Collinses strike back
After the stormwater pipe incident, Donald Collins, Jr. “went up to the county
courthouse and start[ed] looking at the surrounding property owners and trying to
research some of the deeds.”117 Simpson, the timber buyer, assisted with the effort.118
Simpson did substantial work for ABC Woodlands and he also had worked with the
113
Tr. at 202-04 (Collins, Jr.); id. at 246 (Collins, Sr.).
114
Id. at 255-56 (Collins, Sr.).
115
JX 48.
116
Tr. 37-38 (Rogers).
22
Melvin Joseph estate.119 Simpson dedicated some 80-100 hours of time, all unpaid,
toward helping research the various chains of title, including those of ABC Woodlands
and the Tumultys.120 At trial, Simpson testified at length about how he believes the 1990
Land Tech Survey error occurred.121 As a result of this research, the Collinses
determined that the Tumultys owned the Property.122
This information was provided to the Joseph estate so that they could purchase the
Property from the Tumultys, if they so desired, in order to complete the Lakewood
Estates project.123 James E. Moore, an attorney for the Joseph estate, contacted Patricia
Tumulty by letter dated February 16, 2006, and made an offer for the Property.124
Sometime before sending the February 2006 letter, Moore made a field visit to the
Property. He provided no details whatsoever regarding this visit—including whether he
actually entered the Property or just viewed it from afar—but testified that Schreppler‟s
117
Id. at 207.
118
Id. (Collins, Jr.).
119
Id. at 331 (Simpson). Melvin Joseph passed away in late 2004 or early 2005. Id.
at 307 (Moore).
120
Id. at 332, 360.
121
Id. at 325-28, 334-36, 342-44.
122
Id. at 208 (Collins, Jr.).
123
Id.; id. at 282-84 (Moore).
124
Id. at 290-92; JX 18.
23
usage was not open or notorious,125 by which he seems to have meant that there were no
fences or houses on the Property.126 In April 2006, Bernice Tumulty drove down to see
the Property.127 Although she testified that she saw no evidence of human activity, her
testimony is too vague to be useful.128 While negotiations between the parties continued,
Moore ordered a survey of the Property on August 10, 2006.129 The negotiations with the
Tumultys lasted approximately two years, but the two sides could not agree on a price
and no deal was reached.130 When it became apparent that the Joseph estate was not
going to purchase the Property, the Collinses entered into discussions with the Tumultys
about purchasing it.131 The Collinses‟ interest eventually diminished, however, and the
negotiations terminated.132
125
Tr. 312.
126
Id. at 304.
127
Id. at 97-98 (Bernice).
128
It is unclear from Bernice‟s direct testimony whether she did anything more than
drive to the adjacent cul-de-sac, near Rogers‟s home in Lakewood Estates, and
look at the Property. Id. at 97-100. Her cross-examination also left doubts as to
whether she was at the correct location. Id. at 107-08. Even assuming she was,
however, Bernice provided no insight into whether she actually walked into the
woods on the Property and, if so, how far.
129
JX 29.
130
Tr. 71-72 (Schab).
131
Id. at 209 (Collins, Jr.).
132
Id. at 210.
24
5. Plaintiffs belatedly return
Patricia Tumulty retained counsel to deal with the Property on September 1, 2006,
after negotiations with the Joseph estate had commenced.133 The record is curiously
obscure as to what happened between September 1, 2006, and November 3, 2010, when
Plaintiffs filed the initial complaint in this case. A number of events relating to Plaintiffs‟
claim to title to the Property did occur, but Plaintiffs themselves had minimal
involvement in them. For example, the only event of note in 2007 was a confirmatory
deed filed by Schreppler.134 Plaintiffs apparently were continuing to negotiate regarding
sale of the Property in 2007, when that deed was filed.135
Several events occurred in 2008. ABC Woodlands filed suit against Schreppler on
February 27, 2008, over the lands south of the pond and the western boundary of the
Property.136 A survey of the Property dated November 3, 2008, states that it was
prepared for Patricia Tumulty.137 The Tumultys, however, did not order that survey.138
Instead, the 2008 Tumulty Survey, which was performed by Donald Miller, appears to
133
Id. at 83 (Schab); JX 52.
134
JX 20.
135
JX 81 and 82.
136
ABC Woodlands, L.L.C. v. Schreppler, 2012 WL 3711085, at *1-2 (Del. Ch. Aug.
15, 2012).
137
JX 19.
138
Tr. 141 (Lyons).
25
have been commissioned and paid for by ABC Woodlands.139 Relying on that survey, as
well as the title research from Simpson, Donald Collins, Jr. went to the Sussex County
tax office, along with Miller, to have the taxes for the Property reassessed from
Schreppler to Patricia Tumulty.140 Richard Johnson of the tax office testified that, based
on the information they presented, the taxes were reassessed to the Tumultys on
November 19, 2008 (the “2008 Reassessment”).141 No one informed Johnson of the
ongoing dispute over the Property or contacted Schreppler.142 Johnson reached out to
Patricia Tumulty by telephone so that she would not be surprised when the tax bill
arrived.143 Schreppler learned of the 2008 Reassessment in 2010 and attempted to have
the taxes assessed back to him, but his request was not granted.144
On April 8, 2009, the Tumultys, the Collinses, ABC Woodlands, and various
others entered into a boundary line agreement (the “Boundary Line Agreement”).145 The
2008 Tumulty Survey in fact constitutes a small piece of the larger ABC Woodlands
surveying work that became the Boundary Line Agreement, but the boundaries of those
139
Id. at 452-53 (Miller); id. at 209-10 (Collins, Jr.).
140
Id. at 209.
141
Id. at 7-9.
142
Id. at 19, 24.
143
Id. at 13.
144
Id. at 635.
145
JX 22.
26
surveys are consistent.146 Again, the Tumultys did not take a proactive role in securing
the Boundary Line Agreement; instead, it was presented to them by the Collinses.147
Aside from presumably paying the now-reassessed taxes, the Tumultys took no other
action regarding the Property in 2009. Similarly, they appear not to have taken any such
action in 2010 until the filing of this lawsuit, with the exception of a conversation
between Stephen Tumulty and Schreppler in late October 2010.148 Schreppler, however,
continued to visit the Property about twenty times annually, as he has done since 1994,149
and to use the Property in the manner previously described.
B. Procedural History
Plaintiffs filed their initial complaint against Schreppler and the Wilguses on
November 3, 2010, two days before the twentieth anniversary of Schreppler‟s recording
of the Wilgus Deed. Schreppler answered on March 11, 2011, and asserted a
counterclaim for adverse possession of the Property. Plaintiffs amended and filed the
operative complaint on October 25, 2013 (the “Complaint”). Schreppler again answered
and counterclaimed for adverse possession (the “Answer and Counterclaims”).
The Court presided over a three-day trial in this matter from March 11-13, 2014.
Eighteen witnesses testified in person and the parties introduced approximately 85
146
Tr. 452-53 (Miller); id. at 235-36 (Collins, Jr.).
147
Id. at 156-57 (Lynch); id. at 210 (Collins, Jr.).
148
Id. at 118-19 (Stephen); JX 41.
149
Id. at 630 (Schreppler).
27
exhibits. During trial, the parties agreed to dismiss the Wilguses as defendants. I entered
a formal stipulation of dismissal in that regard on June 20, 2014. After extensive post-
trial briefing, the Court heard final argument on December 18, 2014.
C. Parties’ Contentions
The Complaint asserts four counts against Schreppler, not including an initial
request for injunctive relief, for: (1) interference with control, use, and quiet enjoyment of
property; (2) slander of title; (3) a declaratory judgment as to Plaintiffs‟ ownership of the
property; and (4) removal of a cloud on Plaintiffs‟ title. The Answer and Counterclaims
denied the primary allegations of the Complaint and asserted a counterclaim for
declaratory judgment that Schreppler has acquired title to the Property by adverse
possession. The Answer and Counterclaim also included a counterclaim asserting slander
of title against Plaintiffs. Schreppler did not address his slander of title counterclaim in
his post-trial briefing. I therefore deem it abandoned and waived.150
The key question requiring resolution is whether Schreppler has satisfied the
elements of adverse possession. Plaintiffs contest each of the elements. Plaintiffs also
contend that Schreppler is collaterally estopped from asserting adverse possession
because of the ABC Woodlands case. Schreppler counters that Plaintiffs lack standing to
pursue their claims.
150
See Emerald P’rs v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr. 28, 2003)
(“It is settled Delaware law that a party waives an argument by not including it in
its brief.”).
28
II. THE THRESHOLD ISSUES
A. Plaintiffs Have Standing
Schreppler argues that the deeds by the Tumulty children to Patricia Tumulty and
then from Patricia to Lakeview Estates conveyed all of the land owned by James
Tumulty—i.e., the Former Tumulty Lands and the Property. As such, Schreppler asserts
that Plaintiffs lack standing to bring these claims. Presumably, under this theory,
Lakeview Estates legally would own the Property and should have sued Schreppler.
Schreppler focuses on the identical language in the relevant deeds stating: “Being
the same property conveyed to James N. Tumulty by [the Workman II Deed].”151
Relying on these “Being” clauses, Schreppler points to language in a previous Court of
Chancery decision, Forwood v. Delmarva Power & Light Co.,152 which reads: “Modern
principles of deed construction also hold that a deed will be construed as conveying the
entire estate or interest which the grantor owns unless a limitation is clearly
expressed.”153 In addition, Schreppler cites to the testimony of the Tumulty children that
they intended in 1992 to convey all of the land they owned.154
The Forwood case is distinguishable, however. That case primarily involved
construing a series of conveyances to determine what interest a railroad acquired by
151
JX 13, JX 14.
152
1998 WL 136572 (Del. Ch. Mar. 16, 1998).
153
Id. at *6.
154
E.g., Tr. 123 (Stephen); id. at 139 (Lyons).
29
condemnation during the Rutherford B. Hayes administration, what interest a subsequent
title holder conveyed near the beginning of Theodore Roosevelt‟s presidency, and then
whether Delmarva later acquired a prescriptive easement. The relevant deed language in
that case specifically included a reference to the railroad right-of-way.155 Here, by
contrast, although the 1992 Tumulty deeds purport to convey all of the lands owned by
James Tumulty, those deeds are internally contradictory, because they include metes and
bounds descriptions in accordance with the 1990 Land Tech Survey.156 Thus, while the
Tumultys may have intended to convey all the lands they owned, the deeds indicate that
they thought they owned only the roughly 21.77 acres identified in the errant 1990 Land
Tech Survey, which does not include the Property.
Ambiguities in grants are resolved in favor of the grantees, unless such a
construction would be contrary to the intention of the parties.157 The most reasonable
interpretation of these deeds is that all of the parties were operating under the assumption
that the land being conveyed was that land identified specifically by the metes and
bounds recited in the deeds, which comported with the 1990 Land Tech Survey. Put
simply, both sides mistakenly believed that the lands identified by the metes and bounds
were the entirety of James‟s land. For example, upon being informed by the Collinses
that the Tumultys had title to the Property, Lakeview Estates did not take the position that
155
Forwood, 1998 WL 136572, at *6-7.
156
JX 13, JX 14.
157
Forwood, 1998 WL 136572, at *5.
30
it, in fact, owned the land, but instead concluded that the Tumultys had not conveyed that
land to it in 1992. This fact is evidenced by the subsequent effort of the Joseph estate to
purchase the Property from the Tumultys.
There is no ambiguity such that the deed should be construed in favor of the
grantee Lakeview Estates. Rather, the deed contains an internal contradiction. The
actions of Lakeview Estates, via the Joseph estate, and the Tumultys confirm that their
intention in 1992 was to convey the lands identified by the metes and bounds
descriptions, in line with the flawed 1990 Land Tech Survey and notwithstanding the
general “Being” clause in the deeds. Thus, legal title to the Property arguably remained
with the Tumultys following the sale to Lakeview Estates. Any dispute about which of
the Tumultys is the proper party in interest, however, need not be resolved, because all of
them are named Plaintiffs in this action.158 The Tumultys‟ interest in this case, therefore,
suffices to afford them standing to pursue their claims against Schreppler.
B. Collateral Estoppel Does Not Apply
Plaintiffs rather confusingly contend that the outcome of the ABC Woodlands
proceedings should bar Schreppler‟s adverse possession claims here. In ABC Woodlands,
Schreppler entered into a stipulation to dismiss with prejudice his adverse possession
claims against ABC Woodlands as to the lands south of Martin Mill Pond. 159 I am not
158
See supra note 1.
159
ABC Woodlands, L.L.C., 2012 WL 3711085, at *2. Annex I includes a notation to
this effect.
31
persuaded that Schreppler‟s stipulation in ABC Woodlands precludes him from pursuing
his claims in this action.
“Collateral estoppel, also known as issue preclusion, prevents a party who litigated
an issue in one forum from later relitigating that issue in another forum.”160 The elements
of collateral estoppel in Delaware are well established: “Collateral estoppel applies if: (1)
the same issue is presented in both actions; (2) the issue was litigated and decided in the
first action; and (3) the determination was essential to the prior judgment.”161
None of the elements of collateral estoppel are met here. Admittedly, both this
case and ABC Woodlands involved an adverse possession counterclaim, but the
counterclaims pertain to different pieces of land. Thus, the same issue is not present in
both cases. Furthermore, Schreppler stipulated to the dismissal; the issue was not
litigated and the Court made no determination as to the validity of Schreppler‟s adverse
possession claims. And, finally, aside from the fact that there was no “determination,”
the stipulation of dismissal was not essential to the prior judgment; to the contrary, it had
no effect on that judgment.
160
Yucaipa Am. Alliance Fund I, LP v. SBDRE LLC, 2014 WL 5509787, at *11 (Del.
Ch. Oct. 31, 2014).
161
Zutrau v. Jansing, 2014 WL 3772859, at *41 (Del. Ch. July 31, 2014).
32
Indeed, Plaintiffs themselves note in their brief that “the Court in the ABC
Woodlands proceeding did not adjudicate Defendant Schreppler‟s adverse possession
claim.”162 This concession alone defeats Plaintiffs‟ collateral estoppel argument.
III. ADVERSE POSSESSION
I previously referenced the temporal gap between Plaintiffs receiving notice in
2006 that they arguably still owned the Property and the filing of this lawsuit over four-
and-a-half years later. As the following analysis shows, that delay may have been
outcome-determinative. At a minimum, it contributed significantly to the present
Opinion being adverse to Plaintiffs. Because I conclude that Schreppler has satisfied the
standard for adverse possession, title to the Property is his and the other counts in
Plaintiffs‟ Complaint are moot.
A. Standard of Review
“The elements of a valid claim to title through adverse possession are well
established. Plaintiffs must show that they have had open, notorious, hostile, exclusive,
adverse possession of land continuously for the prescribed period.”163 The open and
notorious elements are considered together, as each term essentially is duplicative of the
other.164 Similarly, the hostile and adverse requirements are analyzed in tandem. 165 In
162
Pls.‟ Post-Trial Br. 54.
163
Taraila v. Stevens, 1989 WL 110545, at *1 (Del. Ch. Sept. 18, 1989).
164
See, e.g., Walker v. Five N. Corp., 2007 WL 2473278, at *4 (Del. Ch. Aug. 31,
2007) (analyzing the element of “open and notorious”).
33
Delaware, the prescribed period is twenty years.166 Importantly—and somewhat
surprisingly—the burden of proof for adverse possession is only a preponderance of the
evidence, rather than clear and convincing evidence.167 To establish title by adverse
possession therefore, Schreppler must show, by a preponderance of the evidence: (1)
open and notorious, (2) hostile and adverse, (3) exclusive, (4) actual possession, (5) that
was continuous for twenty years. The evidence required to prove the five requirements
overlaps significantly. Nevertheless, I address each of them, though somewhat out of
turn in order to better frame the dispute.
B. Continuous
I begin with the element of continuous possession. I start here because the twenty-
year requirement is a bright-line inquiry.168 In terms of the continuousness requirement,
165
See Ayers v. Pave It, LLC, 2006 WL 2052377, at *3 (Del. Ch. July 11, 2006)
(examining the presence of “adverse or hostile” possession).
166
10 Del. C. § 7901. Section 7901 essentially codifies the common law of adverse
possession, although a reader unfamiliar with that body of law might not surmise
as much based on the language of the statute. Acierno v. Goldstein, 2005 WL
3111993, at *2 n.23 (Del. Ch. Nov. 16, 2005).
167
Ayers, 2006 WL 2052377, at *2 (citing, inter alia, Dickerson v. Simpson, 792
A.2d 188 (Del. 2002) and Philips v. State ex. Rel. Dep’t of Natural Res., 449 A.2d
250, 255 (Del. 1982)). A preponderance of the evidence standard is used even
though acquiring an easement by prescription requires proof by clear and
convincing evidence. Dewey Beach Lions Club, Inc. v. Longanecker, 905 A.2
128, 134 n.27 (Del. Ch. 2006) (noting this “remarkabl[e]” discrepancy); Ayers,
2006 WL 2052377, at *2 (commenting on same and noting that a majority of
states require proof by clear and convincing evidence for an adverse possession
claimant to prevail).
168
See Del-Chapel Assocs. v. Conectiv, Inc., 2008 WL 1934503, at *7 (Del. Ch. May
5, 2008) (rejecting adverse possession argument because possession period ran
34
the two key disputes are: (1) whether Schreppler‟s possession was interrupted sometime
before the filing of this lawsuit on November 3, 2010; and (2) when Schreppler‟s
possession began.
1. What is the relevant end date for analyzing Schreppler’s claims?
Schreppler‟s claims stopped accruing when Plaintiffs filed this lawsuit on
November 3, 2010. Plaintiffs point to numerous other incidents that allegedly tolled or
interrupted his claims. None of these arguments is persuasive.
First, Plaintiffs argue that Schreppler‟s change of usage in 1992 constituted an
abandonment and interrupted the adverse possession period. None of the evidence,
however, suggests that Schreppler abandoned the Property. Indeed, he continued using it
roughly twenty times a year from 1992 until the filing of this lawsuit. The Delaware
Supreme Court previously has held that the “uninterrupted and continuous enjoyment of
land to constitute adverse possession does not require the constant use thereof.”169 Even
assuming that Schreppler had taken a short break from using the land at times during the
1992 to 1994 period—which is not borne out by the record—“[t]emporary breaks in
cultivation, if such were the case, would not necessarily destroy the requisite
from October 1982, until filing of the lawsuit in March 2002, a period of less than
twenty years).
169
Lewes Trust Co. v. Grindle, 170 A.2d 280, 282 (Del. 1961).
35
continuity.”170 Indeed, there “must be an intention to relinquish the claim of
ownership.”171 No such evidence exists here.
Second, Plaintiffs argue that the placement of the outfall pipe in or around 2005
constituted an ouster of Schreppler or interrupted his claims. This argument fails for at
least the following two reasons. First, the outfall pipe was placed on the Adjacent Parcel,
which is not at issue in this case.172 And second, even if the Adjacent Parcel were in
dispute here, the Collinses placed the outfall pipe. That action had nothing to do with the
Tumultys. “Generally speaking, in order to interrupt the adverse possession period, the
true owner must oust the adverse possessor, either by obtaining a judgment against the
possessor or by entering the disputed property in a way that excludes him.” 173 Thus, the
placement of the outfall pipe did not interrupt Schreppler‟s claims.
Third, I reject any argument that the 2008 Tumulty Survey (which was not done
by, or at the behest of, the Tumultys), the 2008 Reassessment (which was not done by, or
at the behest of, the Tumultys), or the 2009 Boundary Line Agreement (which was
coordinated by ABC Woodlands and the Collinses) affect Schreppler‟s claims. Attempts
to shore up one‟s own title do not effect an ouster of an adverse possessor, nor do such
actions suffice to toll the running of the statute of limitations. “An action that merely
170
Id.171
Id.172
See supra note 14.
173
Acierno v. Goldstein, 2004 WL 1488673, at *6 n.41 (Del. Ch. June 29, 2004)
(emphasis added).
36
alerts the adverse possessor of a superior title, and does not attempt to oust him, has been
found insufficient to toll an adverse possession statute.”174 Instead, the first action taken
by the Tumultys that affected Schreppler‟s claims was the filing of this lawsuit on
November 3, 2010.
2. When did Schreppler begin asserting possession?
Schreppler recorded his quitclaim deed on November 5, 1990.175 He began paying
the taxes on the Property two days later.176 If the November 5 recording date began the
running of the twenty-year period, Schreppler would lose by two days. The evidence,
however, shows that Schreppler‟s claims began sometime earlier than that, even if an
exact date cannot be pinpointed. The critical question, however, is whether it began more
than twenty years before November 3, 2010.
“The payment of taxes may be a weighty fact in support of adverse possession,
especially when combined with other overt acts of ownership such as securing a
mortgage on the property and the recordation of a deed.”177 But, there is no suggestion in
Delaware case law that either the recording of a deed or the payment of taxes is necessary
to make out a successful adverse possession claim. The facts of this case show years of
usage by Schreppler before the November 5, 1990 recording of the Wilgus Deed. As
174
Id.175
JX 17.
176
JX 61.
177
Walker, 2007 WL 2473278, at *4.
37
detailed in Section I.A.2.a supra, Schreppler discovered the Property in the summer of
1985 and established his first continuous campsite in 1986. That campsite, however, was
on the Adjacent Parcel. In 1988, he established his second campsite and that was on the
Property.
I conclude that the establishment of the second campsite triggered the running of
the twenty-year period for Schreppler‟s adverse possession claims. Because 1988 is
more than twenty years before 2010, I need not reach the more difficult question of
whether Schreppler‟s activities in the years of 1986 and 1987 would have sufficed.
Instead, I note that I found credible Schreppler‟s testimony that he visited the property
about fifty times annually during the 1986 to 1992 period. Depending on when in 1988
he established the second campsite, Schreppler used the Property between two and almost
three years before the recording of the Wilgus Deed. This would amount to between
approximately 100 and 140 visits, in addition to the permanent campsite and the other
items Schreppler erected on the Property, such as the duck blind and the deer stands.
This level of activity, as explained in greater detail in Section III.F infra, sufficed to
begin the adverse possession period.
C. Exclusive
The exclusivity element does not require absolute exclusivity. “Exclusive
possession means that the adverse possessor must show exclusive dominion over the land
and an appropriation of it to his or her benefit.”178 Overall, the record shows that
178
Id.
38
Schreppler used the Property to his own benefit as a normal land owner. He used the
land as a weekend getaway and, when he was so inclined, invited others to join him, such
as Tim Pulice or Joseph Phillips. He allowed others, such as the Bell Flower Hunting
Club to use it, with his permission. Three potential issues are noted: (1) the outfall pipe;
(2) the 1997 hunting incident with Steven Short; and (3) Plaintiffs‟ visits. None of these
incidents affect the exclusivity of Schreppler‟s possession.
The outfall pipe did not affect Schreppler‟s exclusive usage, largely for the
reasons discussed in the preceding Section. Furthermore, the evidence supports a
reasonable inference that Schreppler removed the outfall pipe. Although the Adjacent
Parcel is not part of this litigation, such an action supports Schreppler‟s position that he
claimed the land exclusively as his own and was willing to fend off a perceived intrusion.
The same can be said of Short‟s hunting on the Property. Short‟s testimony
indicated that he believed he was on the Collinses‟ land. In any event, not long after
Short hunted on the Property, his deer stand was removed and a “No Trespassing” sign
was posted at that location. Short observed those changes and never returned to the
Property. These facts also are consistent with exclusive possession. An ordinary
landowner may experience trespasses on her land; promptly excluding such individuals
upon discovery reinforces a claim of exclusive ownership.
The evidence as to Plaintiffs‟ visits to the Property or its environs is vague and
ambiguous. Ultimately, Plaintiffs failed to prove that any of them have set foot on the
Property in a material way since Schreppler first began using it in 1985. At best, Stephen
may have ventured twenty yards onto the Property. Such a temporary incursion,
39
assuming it actually happened and keeping in mind that Plaintiffs themselves did not
know the boundaries, does not destroy exclusivity.179
In Edwards v. Estate of Muller,180 an adverse possession case which found the
exclusivity element lacking, the Court discussed various claims to marshland property.
Based on the evidence presented in that case, the Court concluded that because “all
plaintiffs used the land for hunting or walked over it and that many others have used it or
live on it as well . . . the exclusivity element of each plaintiff‟s adverse possession claim
has not been met.”181 Here, by contrast, there is no evidence of regular, or even irregular,
use by others.
D. Hostile and Adverse
“A hostile claim goes „against the claim of ownership of all others, including the
record owner.‟”182 “[I]t is not necessary that one entering a property must expressly
declare his intention to take and hold the property as his own. The actual entry upon and
the use of the premises as if it were his own, to the exclusion of all others, is
sufficient . . . .”183 Schreppler satisfies this requirement.
179
The same is true of any possible incursion by Simpson. The record leaves similar
doubts as to whether he actually set foot on the Property.
180
1993 WL 489381 (Del. Ch. Nov. 15, 1993).
181
Id. at *15.
182
Ayers, 2006 WL 2052377, at *2 (quoting Mitchell v. Dorman, 2004 WL 117580,
at *2 (Del. Ch. Jan. 16, 2004)).
183
Lewes Trust Co., 170 A.2d at 282.
40
Schreppler testified that he decided to claim the land as his own as a squatter after
discovering from the tax office‟s records that the property purportedly had no owner. He
established two campsites during the 1986 to 1992 period, at least one of which was on
the Property. By November of 1990, he had recorded a deed to the Property and was
paying taxes on it, both of which are strong indicia of a claim of ownership.184
Schreppler also responded to each incident of perceived trespass—i.e., Short‟s hunting
and the Collinses‟ outfall pipe. Plaintiffs‟ contrary argument, that Schreppler‟s usage
was not hostile, is difficult to understand in light of these facts and the relevant case law.
Their main argument appears to be that “recreational” use is not hostile use. I address,
and reject, this position in Section III.F.1 infra. Otherwise, Plaintiffs‟ arguments, such as
those relating to the lack of “No Trespassing” signs or the 2008 Reassessment, go to the
other elements of the adverse possession standard and do not bear on whether
Schreppler‟s use of the Property was hostile.
E. Open and Notorious
“Open and notorious means that the possession must be public so that the owner
and others have notice of the possession. If possession was taken furtively or secretly, it
would not be adverse and no title possession could be acquired.”185 As this Court held in
184
Walker, 2007 WL 2473278, at *4.
185
Walker, 2007 WL 2473278, at *4 (footnote omitted).
41
the seminal case of Marvel v. Barley Mill Road Homes,186 open and notorious possession,
like the other adverse possession elements, depends upon the particular land in question:
No particular act or series of acts is necessary to demonstrate
an intention to claim ownership. Such a purpose is
sufficiently shown where one goes upon the land and uses it
openly and notoriously, as owners of similar lands use their
property, to the exclusion of the true owner. The owner is, of
course, chargeable with knowledge of what is openly done on
his land and therefore calculated to attract attention. . . . In
determining what will amount to actual possession of land,
considerable importance must be attached to its nature and to
the uses to which it can be applied, or to which the claimant
may choose to apply it.187
Schreppler made no secret of his use of the Property. The difficulty is that the
Property itself is secluded. The Property is a wooded, marshy, landlocked parcel of land
that was bounded on the south by a body of water and on the west by a forestry business,
adjoined on the north by farmland until the early 2000s, and abutting the Former Tumulty
Lands on the east, which were wooded and unoccupied until construction of a housing
development from the early to mid-1990s onward. How one openly and notoriously
possesses such remote property is, it seems, an unanswered question in Delaware.
Similar to the discussion of continuous use, the focus here is on the pre-November 7,
1990 timeframe, before Schreppler recorded the Wilgus deed and began paying taxes.
As just discussed, what constitutes open and notorious use of land depends on the
properties and characteristics of the land in question. In challenging Schreppler‟s claim
186
104 A.2d 908 (Del. Ch. 1954).
187
Id. at 911 (emphases added).
42
as to this element, Plaintiffs emphasize variously that: the Property was not enclosed by a
fence; Schreppler never timbered the Property; no permanent structures were added; and
the boundaries were not posted by no trespassing signs. Some of these uses simply are
not feasible. The Property has no access point, except via a limited waterway, which
likely would make any construction requiring heavy machinery infeasible and timbering
cost-prohibitive.188 While a fence surely would have shored up Schreppler‟s claims,
fences are not required for a successful adverse possession claim and, as noted,
construction on this landlocked parcel would have been difficult.
This leaves Plaintiffs‟ arguments regarding the lack of “No Trespassing” signs.
Such signs place outsiders on notice that land is owned by another and to stay out.
Nevertheless, I do not find the dearth of such signs fatal to Schreppler‟s claims. In this
case, the testimony, though seemingly in conflict on this issue, is essentially consistent, at
least with respect to the important 1986 to 1990 timeframe. In the late 1980s, Schreppler
had posted signage: (1) along the main deer trail from the Former Tumulty Lands;189 (2)
188
Schreppler, in fact, did briefly consider timbering the Property after speaking with
Simpson, but decided against it. Tr. 606-07. Plaintiffs somewhat surprisingly
argue that “What Schreppler fails to acknowledge is that the property could be
timbered by way of the navigable waters adjoining it.” Pls.‟ Post-Trial Reply 18.
But, there is little, if any, evidence regarding the feasibility of that option. There
also is no requirement, however, that one seeking to establish title by adverse
possession make maximum economic utilization of the land in question. Rather,
the requirement is that the adverse possessor must openly and notoriously possess
the land so as to put the owner(s) on notice.
189
Id. at 608-09.
43
near the pond area;190 (3) on the western boundary adjoining ABC Woodlands;191 and (4)
around the camps.192 Although none of Plaintiffs‟ witnesses saw any of these signs, I
find it unlikely that any of them or, indeed, anyone except Schreppler or those invited by
him, set foot on the Property before Short in 1997.193 Given the nature of the land in
question, posting a sign on a trail makes sense, because entrants presumably are most
likely to venture onto the Property by way of a trail rather than through thick brush, and
posting around the pond area was consistent with the waterway providing the only non-
trespassory method of accessing the Property.194
That said, the evidence regarding the signage still shows that Schreppler made
only minimal effort in this regard, and it is unlikely that the signage alone would be
sufficient to support the openness and notoriety of Schreppler‟s claims. In general,
Plaintiffs lean too heavily on this argument. An examination of the evidence also reveals
the almost total lack of contact that Plaintiffs—and nearly everyone besides Schreppler—
190
Id. at 609.
191
Id. at 610.
192
Id. at 611.
193
As already noted, Stephen Tumulty and Simpson may have ventured, at best,
perhaps twenty yards or so onto the Property.
194
Additionally, the evidence supports the proposition that the posting of signage was
not common in the area in this time period. E.g., Tr. 220, 234 (Collins, Jr.). On
the other hand, Short‟s testimony, as well as the exhibits cited in Section I.A.2.c,
all suggest that it was common to request written permission to hunt on land and
that hunters seemingly looked to either common knowledge in the area as to
ownership or the deed or tax records to determine the owner.
44
have had with the Property in the twenty-five years preceding the filing of this lawsuit.
The signage in combination with Schreppler‟s other activities, however, does satisfy the
open and notorious standard. That standard requires consideration of the Property‟s
qualities.195 Evidence of similar use by nearby landowners is therefore instructive in
determining what sort of usage is expected of an adverse possessor.196
The Collinses testified that, during the years that they farmed the now-Deere
Country land, they would visit that property perhaps 12-24 times annually.197 The
Former Tumulty Lands were visited only by trespassers and by Plaintiffs in the limited
manner to which they testified. Schreppler testified to making weekly visits to the
Property, on average, during the 1988 to 1990 period. Thus, Schreppler‟s frequency of
use of the Property actually exceeded the rate of nearby landowners with respect to their
own lands. As to other activities, Schreppler hunted the land, made trails, fished, and
camped. Given the nature of the Property as a wild, secluded piece of land, it is difficult
to imagine more suitable—and feasible—usages. Thus, I find that Schreppler‟s usage
was open and notorious within the meaning of prior case law.
In Stellar v. David,198 for example, the Superior Court found that the defendants
used the marshland in question “for hunting, muskratting, and cutting salt hay” for a
195
Marvel, 104 A.2d at 911.
196
Id. at 912.
197
Tr. 219 (Collins, Jr.).
198
257 A.2d 391 (Del. Super. 1969), rev’d, 269 A.2d 203 (Del. 1970).
45
period of three or four months a years.199 The court denied the defendants‟ adverse
possession claim, because the defendants had not shown sufficient hostility to overcome
a prior landlord-tenant relationship.200 The Supreme Court reversed, however, with
directions to enter judgment for the defendants on their adverse possession claim.201
Similarly, the Court of Chancery once found adverse possession as to a twenty
acre tract of undeveloped land on usage similar to this case. There, the plaintiffs had:
cut trails . . . for recreational use and maintained those trails;
used the tract very frequently—several times a week—for
such purposes; given permissions to neighbors to use the tract
for camping, hunting or other recreational uses; cut fallen
timber on the land for firewood and gave permission to
neighbors to do likewise from time to time; posted the land
against trespassing on one or two occasions; and ejected
others who were on the land without permission.202
These two cases are illustrative of a consistent line of decisions recognizing that
appropriate usage of the land is determined by reference to the type of land in question.203
199
Id. at 393.
200
Id. at 398.
201
269 A.2d at 204.
202
Taraila v. Stevens, 1989 WL 110545, at *1 (Del. Ch. Sept. 18, 1989).
203
See Dickerson v. Simpson, 2001 WL 884152, at *1 (Del. Super. July 10, 2001)
(noting, in case where a canal and access road had been built, that waterfowl
hunting was the “best use” of the land), aff’d, 792 A.2d 188, 2002 WL 371866(Del. 2002); Doe v. Roe, 80 A. 352, 355 (Del. Super. 1911) (“The nature or kind
of possession from which the law presumes legal title to real estate, depends in a
great degree upon the nature and character of the property. Where the property is
uninclosed [sic], cutting wood or cultivating the land, and other similar acts are to
be regarded as acts proving possession.”); see also Stellar, 257 A.2d at 395 (“If
the chief value of the acreage is trapping muskrats in season, such evidence for the
46
Schreppler‟s activities on the land, consisting of hunting, fishing, camping, cutting
trails, inviting his friends along, allowing others to use the land with his permission for
similar activities, the occasional posting of “No Trespassing” signs, and efforts to exclude
trespassers such as Short, all comport with prior case law on open and notorious use of
land. Schreppler had engaged in such endeavors on the Property for nearly twenty-five
years by the time this action was filed. Based on the peculiar qualities of the Property,
Plaintiffs‟ arguments that the Court should require that Schreppler have done more to
establish his claim—such as build a house or timber the land—are unavailing.
F. Actual Possession
The requirement of actual possession overlaps to a large extent with open and
notorious possession. In this Section, I address two specific issues advanced by
Plaintiffs. First, Plaintiffs argue that, as a matter of law, Schreppler‟s usage cannot
support an adverse possession claim. And second, they contend that the undefined
boundaries to the Property destroy Schreppler‟s claims.
Before addressing these questions, I note the following guidance from the Marvel
opinion that is instructive as to the appropriate inquiry:
As a general rule it will be sufficient if the land is so used by
the adverse claimant as to apprise the community in its
locality that it is in his exclusive use and enjoyment, and to
put the owner on the inquiry as to the nature and extent of the
invasion of his rights and this is especially true where the
property is so situated as not to admit of permanent
required statutory time may under proper circumstances be sufficient possession to
establish ownership adversely.”).
47
improvement. In such cases, if the possession comports with
the usual management of similar lands by their owners, it will
be sufficient. Neither actual occupation, cultivation, nor
residence is necessary where neither the situation of the
property nor the use to which it is adapted or applied admits
of, or requires, such evidences of ownership.204
1. Is Schreppler’s usage legally insufficient to support a claim for adverse
possession?
Plaintiffs ask this Court to find that recreational use, like Schreppler‟s activities on
the Property, cannot support a claim for adverse possession. For support, Plaintiffs rely
chiefly on the Kentucky case of Moore v. Stills.205 Based on that case, it appears to be the
law of Kentucky that wild, uncultivated lands cannot be taken by adverse possession
while the land remains in a state of nature.206 The Kentucky Supreme Court, over
dissent, specifically held that “the mere recreational use of property has as its aim the
enjoyment of the land as it naturally is, and thus by its nature, recreational use will be
sporadic and insubstantial. Under our law, such use has never sufficed to establish an
adverse possession.”207 Thus, recreational use, in Kentucky, “does not amount to „actual‟
possession for adverse possession purposes.”208
204
Marvel, 104 A.2d at 912 (emphasis added).
205
307 A.3d 71 (Ky. 2010).
206
Id. at 79.
207
Id.
208
Id. at 80.
48
The Moore case is inapposite here. First, Kentucky applies a clear and convincing
evidence standard of proof, which is higher than the standard in Delaware.209 Second,
and more importantly, the Moore case conflicts with Delaware law. Foreign cases may
provide persuasive guidance, but when they are contrary to the established law of this
forum, such cases have no precedential value. As detailed in the preceding Section,
Delaware law consistently has recognized that “recreational”210 usage can support an
adverse possession claim. Both Stellar v. David and Taraila v. Stevens directly stand for
that proposition. Other cases recognize it as well.211
Plaintiffs attempt to salvage their argument under Delaware law by relying on
Futcher v. Dodd.212 That case dealt not with adverse possession, but with the subject
209
Id. at 77-78.
210
I use this term with some hesitation, because Plaintiffs appear to contrast it with
“productive” or “economic” usage, such as timbering. I disagree with that
characterization. The large American arms market, for example, provides
evidence of the substantial sums of money that enthusiasts will invest in hunting
and shooting. Similarly, the aisles of sporting goods stores are stocked with a
bewildering array of fishing equipment, lure, line, and bait. Moreover, there
appears to be an active market for camping apart from the tent, sleeping bag, and
insect repellant industries. The Delaware state parks, for example, offer a variety
of campsite rentals with a range of price points from economical “primitive”
camping, to the medium-priced and exotic-sounding “yurt,” to the beachfront
cottage for the affluent “camper.” Accordingly, I use the term “recreational” only
as referring to Schreppler‟s activities, without any intended implication that such
endeavors are not worthwhile, productive, or economic.
211
Edwards, 1993 WL 489381, at *13 & n.18; Marvel, 104 A.2d at 911-12.
212
1978 WL 22442 (Del. Ch. June 21, 1978).
49
matter jurisdiction of the Court of Chancery.213 The court there admittedly made
comments in dicta as to the strength of the adverse possession claims—over which it held
that it had no jurisdiction—that seemingly align with Plaintiffs‟ position. Aside from
being dicta, those remarks were not in accordance with Delaware law.214 As such, I do
not consider Futcher v. Dodd to be persuasive. Instead, consistent with existing
precedent, I conclude that recreational use can support an adverse possession claim.
2. The problem of the boundaries of the Property
Finally, there is the matter of the eastern boundary of the Property. Schreppler
determined the boundaries to the Property by reference to the tax map parcel later
described in the Wilgus Deed. Three sides of the Property were bounded by distinct
changes in topography: a farm on the north; water on the south; and re-planted forestry
land in rows on the west. Schreppler could not physically locate the eastern boundary
until development of Lakewood Estates began in 1992.215 The question is whether this is
fatal to his claim. I conclude that it is not.
The issue of boundaries receives scant attention in the adverse possession case
law. Prior precedent confirms only that adversely possessed property must be “of fixed
213
Id. at *1, *3.
214
Tellingly, the court‟s discussion quotes extensively from general treatises, such as
American Jurisprudence, 2d and Corpus Juris Secundum, but includes a
“compare” citation to distinguish Marvel, which is one of the most cited cases on
Delaware adverse possession law and, at least in part, states the requirements
differently than the treatises.
215
Tr. 588.
50
and definite boundaries, although it need not be enclosed by fences.” 216 Schreppler relied
on the tax map to determine the boundaries of the Property. Testimony adduced at trial
indicated that such maps are more likely to contain inaccuracies than property surveys.217
With the Wilgus Deed, Schreppler established record notice of his claim to the tax parcel,
but that deed contained no metes and bounds descriptions. In fact, the 1990 Land Tech
Survey is the first item in the record that purports to establish an eastern boundary to the
Property—i.e., the western boundary of Lakewood Estates—based on metes and bounds.
In prior cases, however, the lack of definitive metes and bounds has not been
found to destroy an otherwise valid adverse possession claim.218 Claims based on tax
maps also have succeeded in the past.219 The definite boundary “requirement” thus
216
Justice v. McGinn, 2001 WL 1088760, at *4 (Del. Ch. Aug. 29, 2001). See also
Del. Land & Dev. Co. v. First & Cent. Presbyterian Church of Wilm., Del., 147 A.
165, 179 (Del. 1929) (reciting the adverse possession standard as including land
“held by fixed and definite boundaries, though not necessarily marked by fences”).
217
Tr. 5 (Johnson: describing tax maps as sometimes accurate); id. at 289 (Moore);
id. at 350 (Simpson). It is somewhat ironic that Plaintiffs emphasize the
inaccuracy of tax maps considering that it was a significant survey error that led to
this situation.
218
See Justice, 2001 WL 1088760, at *5 (granting adverse possession to part of a
claimed parcel depicted roughly by aerial photos followed by a section addressing
the question “precisely what land do the [plaintiffs] own by virtue of adverse
possession?”); id. at *5 n.15 (noting that a survey could be ordered to establish a
metes and bounds description); Dukes v. Williams, 2000 WL 364190, at *4 (Del.
Ch. Mar. 6, 2000) (finding for adverse possessor in pro se action with no surveys
presented and stating that “the [plaintiffs] and [defendants], absent such a new
deed, will be the only persons who know where the boundaries actually lie”).
219
Dickerson, 2001 WL 884153, at *1 (finding that the tax map accurately
represented the housing lots in question and holding: “I am persuaded by a
51
appears to be a subset of the other elements of an adverse possession claim. That is, the
inability to locate a boundary may reflect a failure to satisfy the other requirements of a
valid adverse possession claim. As discussed in the preceding Sections of this Opinion,
however, Schreppler has satisfied those requirements.
Thus, as demonstrated by the cited cases, a definite boundary line need not be
established by a professional survey. Here, there is no evidence that the boundaries of
the Property, except the Adjacent Parcel, were ever in dispute with the neighboring
landowners, which is the type of situation where precise boundaries would matter most.
Indeed, the boundaries of the neighboring properties were seen as the boundaries of the
adjoining properties.220 The lack of definitive metes and bounds or a landmark boundary
does not destroy Schreppler‟s otherwise valid adverse possession claim. The tax map
boundaries appear to match the nearby landowners‟ boundaries fairly accurately.221
Schreppler construed the boundaries based on the tax map. It is possible that Schreppler
originally may have laid claim to more lands than he currently does and Lakewood
Estates may have excluded him from some small portion of that land when it began
development. To the extent that Lakewood Estates overtook any lands Schreppler may
preponderance of the evidence that there has been adverse possession of the lots as
shown on the tax map for more than 20 years”).
220
E.g., JX 29 (Lakewood Estates survey showing the boundaries as well of ABC
Woodlands, Deere Country, and Schreppler); JX 15 (Schreppler‟s survey showing
same).
221
See Dickerson, 2001 WL 884153, at *1.
52
have been claiming originally, it effectively terminated his claims as to that piece of land,
but did not otherwise affect his claims to the Property.222
Overall, I conclude that Schreppler‟s initial inability to point to the eastern
boundary with the specificity of a surveyor does not overtake the fact that he otherwise
openly and notoriously adversely possessed the Property for the required statutory period.
IV. PLAINTIFFS’ OTHER CLAIMS
Four of the Counts in the Complaint are at issue in this Opinion: (I) interference
with control, use, and quiet enjoyment of property; (II) slander of title; (III) a declaratory
judgment as to Plaintiffs‟ ownership of the Property; and (V) removal of a cloud on
Plaintiffs‟ title.223 Counts I, III, and V are mooted or otherwise resolved by the fact that
Schreppler has prevailed on his adverse possession claim. Similarly, it would seem that a
successful adverse possession claim would moot a slander of title claim as well, but the
law on this issue is not well developed.
Even if Schreppler‟s success on his adverse possession counterclaim did not moot
Plaintiffs‟ slander of title claim, that claim still would be legally insufficient. “The
elements of a slander of title claim are: „(1) the malicious (2) publication of (3) false
222
Walker, 2007 WL 2473278, at *4; Acierno, 2004 WL 1488673, at *6 n.41; see
also supra Section III.B.1 (describing requirements to oust an adverse possessor or
toll the running of the statute of limitations).
223
Count IV requested injunctive relief. That request effectively was resolved by an
earlier stipulation of the parties and is now moot as well.
53
matter concerning the state of title of property which (4) causes special damages.‟”224
This claim fails on at least the malice element.225 Plaintiffs cite to a Rhode Island case
suggesting that “malice” in the slander of title context equates to an intent to deceive or
injure.226 Even if that standard governs in Delaware, Plaintiffs have not met it.
Plaintiffs argue that Schreppler‟s malice is evident from the filing of the Wilgus
deed because he knew at the time that Susan Wilgus had no interest in the property. I
disagree with this interpretation. Schreppler had the Wilgus Deed recorded after
discovering that the Property was listed as “owner unknown” on the county tax maps.
Plaintiffs have not shown how the filing of a deed to seemingly unowned property
indicates intent to injure or deceive anyone. Indeed, real estate professionals, as
evidenced by Johnson‟s testimony, likely would recognize that Schreppler had filed a
224
Rudnitsky v. Rudnitsky, 2000 WL 1724234, at *12 (Del. Ch. Nov. 14, 2000)
(quoting In re Application of Motivational Ctr. Inc., 1987 WL 14626, at *2 (Del.
Ch. Nov. 3, 1987)). I note that slander of title is an unusual cause of action with a
shallow pool of supporting authorities in Delaware. A Westlaw search reveals
only eight cases even using the term “slander of title.” Of those eight, only three
address the issue and the analysis in each is quite minimal.
225
It also is questionable whether Plaintiffs have shown special damages. Deutsche
Bank Nat’l Trust Co. v. Goldfeder, 2014 WL 7692441, at *4 (Del. Super. Dec. 9,
2014) (“[I]t is the case virtually everywhere that in order to recover damages for
an injurious falsehood regarding title to land, the claimant must be able to show
„special damages‟ in the form of pecuniary loss and not general damages.”).
226
Arnold Road Realty Assocs., LLC v. Tiogue Fire Dist., 873 A.2d 119, 126 (R.I.
2005).
54
straw deed and was attempting to create a chain of title where none appeared to exist.227
The slander of title claim, therefore, if not mooted by my holding regarding Schreppler‟s
adverse possession counterclaim, will be dismissed because Plaintiffs have not proven
malice by Schreppler.
V. CONCLUSION
For the foregoing reasons, I hold that Schreppler has established title to the
Property, as shown in the 2008 Tumulty Survey, 228 by adverse possession. In addition,
all of Plaintiffs‟ claims are dismissed with prejudice. Schreppler‟s slander of title claim
also is dismissed with prejudice. Counsel for Schreppler shall submit, on notice, an
implementing final judgment and order within ten days of the date of this Opinion.
227
Plaintiffs also fault Schreppler for not undertaking a title search. This argument
does not further their position. At trial, the Court heard lengthy and competing
testimony by the parties‟ experts as to how title to the Property should be traced
back in time. Given the complexity of that testimony, I find it implausible that a
person who is not expert in title research, such as Schreppler, would have
discovered the error in the 1990 Land Tech Survey and properly reconstructed the
Property‟s chain of title.
228
At this time, I adjudicate only Schreppler‟s adverse possession claim as against the
property owners seeking to eject him: the Tumultys. See supra note 14. The 2008
Tumulty Survey represents the lands to which Plaintiffs claim title. Accordingly,
the metes and bounds of that survey establish the boundaries of the land to which
Schreppler has proven title by adverse possession.
55
Annex I: The Property
NOTE: This diagram is neither to scale, nor does it accurately reflect shapes, angles, or
boundaries. It is provided merely as an approximate depiction so that the reader may
better understand the general geography.
County Road
412
Deere Country [Collins Acres, LLC]
(Previously farmland)
Woodlands
ABC
The
Property
Lakewood Estates
(Former Tumulty
Lands)
Martin Mill Pond N
W E
South side of pond
(Schreppler‟s adverse possession S
claims to this land were
dismissed by stipulation in the
ABC Woodlands case)
Legend
= Outfall Pipe = Campsite
= Adjacent Parcel
56