State of Delaware v. Sweetwater Point, LLC ( 2017 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Petitioner, )
)
v. ) C.A. No. 5009-VCG
)
SWEETWATER POINT, LLC and )
LEHMAN BROTHERS HOLDINGS, )
INC., )
)
Respondents. )
MEMORANDUM OPINION
Date Submitted: February 9, 2017
Date Decided: May 23, 2017
Gerald I. Street and John I. Ellis, of STREET & ELLIS P.A., Dover, Delaware,
Attorneys for Petitioner.
Richard P. Beck, of RICHARD BECK LLC, Wilmington, Delaware; John H.
Newcomer, Jr. and Thomas P. Carney, of MORRIS JAMES LLP, Wilmington,
Delaware; Craig A. Karsnitz, of YOUNG CONAWAY STARGATT & TAYLOR
LLP, Georgetown, Delaware, Attorneys for Respondents.
GLASSCOCK, Vice Chancellor
Real property is a unique asset. It cannot be consumed, although its fruits
may. In can be conceptually possessed, but not physically deployed or moved.
Ownership of realty is simply the right to exclude others from the use and fruits of
the land. Nonetheless, ownership of real property is basic to, and perhaps the basis
of, our economic system. Because land cannot be “possessed” in the way that
personal property can, peaceful and efficient use and alienation require community
acceptance of the identity of the landowner. In common law jurisdictions, the
systematic registries of deeds to realty provide one of the most long-running and
elaborate sets of historical documents available. Land grants in the area in context
here—Sussex County—can be traced back to grants and patents from the European
sovereigns who asserted ownership—by fiat and by force of arms—starting in the
17th century. A diligent and motivated researcher can carry title to a Lincoln farm
field or a suburban Ocean View acre back to colonial times.
Even careful registration, as with any work of humankind, is imperfect.
Claims of title reaching back hundreds of years are inevitably dogged by
imperfections; calls to boundaries that fail to close, or to monuments lost;
bureaucratic transfer documents with incomplete property descriptions, and the like.
Inevitably, therefore, disputes as to ownership arise. If every such dispute required
a tracing of title over the entire history of the land back to the founding grant,
1
litigation over title would be an expensive, exhausting, and frustrating pursuit. It
would, in other words, resemble the case before me here.
To avoid such problems inherent in title, the common law developed the
doctrine of adverse possession. In Delaware law, exclusive use of a parcel of
property—in a way that makes it clear that the claimant is asserting his rights over a
prescriptive period of twenty years1—trumps record title. The utility of the doctrine
should be obvious, but I admit it is more obvious to this judge now than at the time
this title action was filed many years ago. Where multiple claimants assert different
chains of title to a single parcel, the claimant who, with her predecessors, has openly
asserted “possession” of the property for the prescriptive period trumps all others,
and no wearisome title examination is required. Toward he who refers to the
Delaware concepts of adverse possession and title by prescription as a quaint and
senescent doctrine, my attitude echoes Mr. Scrooge: may he “be boiled with his own
pudding, and buried with a stake of [Milton] holly through his heart.”2
If the doctrine of adverse possession applied here, this would be an easy case;
the property involved has been used exclusively by the predecessors of one of the
two claimants here, Sweetwater Point, LLC (“Sweetwater”), for a period exceeding
1
See, e.g, Tumulty v. Schreppler, 132 A. 3d 4, 23–25 (Del. Ch. 2015) (discussing requisites to a
finding of adverse possession); 10 Del. C. § 7901 (prohibiting entry unless before twenty years
after title accrues).
2
Charles Dickens, A Christmas Carol (1843).
2
twenty years. The other party seemingly forgot that it had taken a deed to the
property in the 1930’s, and made effectively no use of the parcel. The latter party is
the State of Delaware, however, which as sovereign is exempt from loss of title by
adverse possession, absent consent by statute.3 This case, therefore, became a long
slog through title documents and supporting evidence, back to a late colonial-era
patent of a tract known as “Dry Boots,” at the headwaters of the Indian River above
Millsboro. The parties have been indefatigable in pursuing this title claim. 4 As will
be described below, this Memorandum Opinion addresses only the issue of title
between the two claimants; a damages trial and determination awaits further
litigation.
Before I turn to the facts, it is appropriate to set the stage for what follows.
Sussex is a long-settled land, and the ghosts and bones of the past poke through its
(relatively) modern façade on every hand. The neighborhood of Dry Boots was, in
times past, busy and commercial. Before the age of steam and fossil fuel, in a flat
country like southern Delaware, elevation was power. Every odd fathom of drop in
elevation along a creek represented potential energy, which was assiduously tapped.
3
State v. Phillips, 400 A.2d 299, 302–03 (1979). The last such statute was repealed in 1953. Id.See infra note 10.
4
The discovery here has produced a fascinating portrait of 19th century life in the vicinity of Dry
Boots. The parties should be congratulated on their diligence; it is also incumbent on me to point
out that the long pretrial litigation and the trial itself, although fraught with vexing issues, were
conducted by counsel here in an exemplary manner of civility and courtesy notwithstanding the
pursuit of zealous advocacy, in the finest tradition of the Delaware Bar.
3
This is graphically represented in the maps bound as Beers Atlas.5 A reader of that
19th century work will note millponds strung along Sussex creeks and branches like
pearls on a necklace; each turning the stored energy of water behind a mill-dam into
power to run industry: grist mills, saw mills, wool-carding machinery and the like.
Millsboro is named for its many water-driven mills, all now gone or abandoned.
Today, Indian River, the major waterway in eastern Sussex, terminates at the
Millsboro Mill Pond dam. Before the dam, Indian River proper was formed by the
confluence of its Mirey and Cow (or Doe) Bridge branches, at Dry Boots. The
construction of Millsboro Mill Pond dam drowned the mouth of Cow Bridge Branch,
but upstream, several more mill ponds and mills existed. One pond on the branch,
Morris Mill Pond, near Zoar, remains; the others are gone, but remnants of the mills
and dams—and the ghostly outlines of what once were mill ponds—persist.
Of these latter, one is of particular importance here: the Doe Bridge Mill and
its pond. There have likely been more than one mill at the site; the remains of a mill
and race can be seen on the east side of the branch. The bridge that carried the Doe
Bridge Road, once a prominent thoroughfare, over Cow Bridge Branch is gone. The
road itself still exists, as a dirt lane in a forested area that is as quiet and pristine as
any in the state. Only the borrow pits and the earthen portion of the dam, and the
5
D.G. Beers, Atlas of the State of Delaware (Pomeroy & Beers 1868).
4
roadbed sunken into the earth by long passage of heavy loads, imply that here was a
site of industry. Because the chains of title involved are difficult to follow, this
Memorandum Opinion must trace that old roadbed, as a boundary line; comment on
the ownership of the old pond bottom, and how it implicates the intent to transfer
title to, and the location of, the disputed parcel; and opine on the location of
homesteads once on a busy high road, now to be located only by the persistence of
the still-blooming daffodils that once brightened their yards. After waterpower
became obsolete, the area reverted to forest, and was eventually occupied by
Sweetwater’s predecessor in title, a peach basket manufacturer, which used the
property as a wood-lot. The state owns the land to the north, an unused part of an
asylum known originally as the “Delaware Colony,” now the Stockley Center. As
Sussex has become attractive as a place to live, the area—once industrially valuable,
then largely unused for more than a century, is again valuable; to Sweetwater as
beautiful, wooded home sites on high ground (“dry boots”) overlooking Millsboro
Mill Pond, which by Delaware standards is a large and attractive lake. The State
envisions the land as a nature preserve, or as the site of a proposed Millsboro bypass
highway.
My decision on title follows. For the reasons below, I find, as between these
litigants, title to the disputed property is with the State.
5
I. STAGE OF THE PROCEEDINGS
This is my post-trial decision on title. Based on the complexity and volume
of the record before me in this matter, and in order to decrease the likelihood of what
seemed an inevitable motion for reargument, I took an unusual step: I issued a draft
opinion on record title to the parties, asking them to submit informal memoranda
pointing out, in their view, any omissions or errors contained therein. I have closely
considered the parties’ submissions, the bulk of which, perhaps inevitably, consisted
of recapitulation of argument already made. I have made minor adjustments from
the draft form of the record title portion of this Memorandum Opinion to reflect the
parties’ memoranda. To the extent I have not referenced arguments therein, I have
considered and rejected them.
II. BACKGROUND FACTS6
The parties, via pre-trial stipulation, explained that the title dispute before me
“focuses primarily on the force and effect of certain deeds made in 1867, 1879, 1891
and 1931, as well as the consequences of various actions and inactions between 1836
and 2009.”7 The record produced at trial is as daunting as is implied by that ominous
stipulation. The following are the facts as I find them after a ten-day trial, review of
6
The following abbreviations are used to cite to the record: Court Trial Exhibits, “CX”; Joint Trial
Exhibits, “JX”; Stipulated Facts from the Pre-Trial Stipulation, “Stip”; Joint Exhibits regarding
the Private Act of 1829, the “Supplemental Joint Exhibit” or “S-JX”; and Trial Transcript, “Trial
Tr.”
7
Stip 7.
6
a record spanning thousands of pages (and hundreds of years), nearly three hundred
pages of post-trial briefing, and a reopening of the record for newly discovered
evidence, all of which was prepared over a seven-year period by the parties.
At dispute in this case is a sixty-three acre parcel of high ground located in
Sussex County, Dagsboro Hundred, identified as 1-33-11.00-46.00 on the County
tax parcel map (hereinafter “Parcel 46”). The land is currently undeveloped and
heavily wooded but shows signs of a lively past, including a home in the vicinity,
traces of which are evident by long-ago planted daffodils and persimmons that still
grow, now incongruous in the seemingly-untouched woodlands. Parcel 46 is
bounded by the old Doe Bridge Road to the north, the Mirey Branch and Millsboro
Mill Pond to the south, and the Cow Bridge Branch and Millsboro Mill Pond to the
east. To the west it shares a border with a 27-acre piece of land identified as tax
parcel 1-33-11.00-44.00 (“Parcel 44”). Doe Bridge Road, accessible from County
Road 318 (also known as Patriot’s Way) and leading to the site of the former Doe
Bridge and Mill, is centuries old and shows signs of heavy use in its past.8 The
County tax map depiction of these parcels is shown on Exhibit A to this
8
Id. at 6–8.
7
Memorandum Opinion.9 A satellite image with the tax map boundaries overlain is
shown on Exhibit B.
The parties with competing claims to Parcel 46 are the State of Delaware and
a developer, Sweetwater. This is an unusual case for many reasons, the first of which
is that the parties both have colorable claims of title to Parcel 46, though neither has
established title absolutely. The parties seek only an in personam determination of
superior title, which, as will be discussed below, carries a burden of proof by a
preponderance of the evidence.
By way of the most recent source deeds, the State points to a 1931 deed from
Wingate Matthews (the “1931 Matthews Deed”), while Sweetwater has a 2005 deed
from Winnie White Kee (the “2005 Deed”). Each deed can be traced to separate,
minimally descriptive sheriff’s deeds from the latter half of the 19th century. Each
chain of title is more or less problematic.
As the facts below will set forth, it is clear to me that from the middle of the
20th century to the very recent past, the State was unaware of its interest in Parcel
46, while Sweetwater’s 20th century predecessors-in-title clearly believed they
owned Parcel 46 and exerted ownership of it, including through payment of tax
assessments. In fact, were the Petitioner any party other than the State, which has
9
The appellations “Millsboro Mill Pond, “Cow Bridge Branch,” “Mirey Branch,” and “Dow
Bridge Road” have been added to the tax map to provide clarity to the reader.
8
legislatively shielded itself from claims of adverse possession,10 this would be a very
simple case and I would find that, if by no other basis, Sweetwater held title to Parcel
46 by way of adverse possession by its predecessors-in-title. With this context, I
turn to the recent history of this dispute.
In or around 1974, Sussex County undertook a reassessment program, under
which it created tax parcel maps.11 Parcel 46, assessed at approximately sixty-three
acres, was taxed to Houston-White Company (“Houston-White”).12 Throughout the
latter half of the 20th century, Houston-White paid taxes on the land and timbered
the land for its basket-making operations, as shown on a 1977 aerial photograph.13
The State failed to prevent this trespass, if trespass it was, nor did they exclude others
in recent decades.14
In 1989, the State began planning a 250-acre nature preserve (the “Nature
Preserve”) on an unused portion of lands attached to what is now known as the
10
From 1776 to 1843, one could not obtain title to land by adverse possession against the State.
In 1843, a statute was enacted that allowed adverse possession against the State, with exceptions
for certain types of land. That statute was repealed in 1953 by 49 Del.L. ch. 386. Under the current
state of the law, one cannot obtain title to land by adverse possession against the State; any claim
for adverse possession against the State, therefore, would have to have begun by 1933 and ripened
by 1953. Phillips v. State, ex. Rel. Dept. of Natural Res. & Envtl. Control, 449 A.2d 250, 255
(Del. 1982).
11
Stip 35.
12
Id.13
CX 1; Sweetwater Tr. Ex. 9; Stip 10.
14
Interestingly, two of the witnesses whose testimony focused primarily on other matters, Ron
Vickers and Chuck Adams, testified that they were acquainted with this property long before this
dispute arose. Vickers testified that as a boy scout, he camped on the land, while Adams visited
the site on horseback in the 1960s. Trial Tr. 177:7–23 (Vickers); id. at 262:7–16 (Adams).
9
Stockley Center.15 In the process of designating the Nature Preserve, the State sent
a letter to Houston-White as the owner of an adjoining parcel, but Houston-White
did not respond.16 In recording the Articles of Dedication for the Nature Preserve,
which was identified as lying on Parcel 8, the State included a surveyor’s drawing
(the “Nature Preserve Drawing”) which showed a part of Parcel 46 as within the
Nature Preserve.17 These documents were recorded in 1991.18 The Nature Preserve
Drawing is attached as Exhibit C to this Memorandum Opinion.19
In 1997, Houston-White—the basket-making concern previously referred
to—executed a deed purporting to convey Parcel 46 to J. Reese White, Jr., Virginia
T. Frazier, and Mary W. McMahon.20 Following the death of J. Reese White that
same year, Winnie White Kee, as co-executrix for Mr. White’s estate, together with
the estate’s attorney, Harold Purnell, Esquire, contacted the State to discuss the
possibility of donating or selling Parcel 46.21 Thereafter, Kee physically met with
Charles Ronald Vickers, Manager of the Land Preservation Office for the Delaware
15
Stip 35. The Stockley Center was first known as the Delaware Colony for the Feeble Minded.
Id. at 23.
16
Id. at 35–36; JX 125.
17
JX 117.
18
Id.
19
Exhibit C is a reproduction of a trial exhibit and shows the Nature Preserve Drawing with
overlays showing tax parcel outlines and the plot of a 1776 deed, which will be discussed below.
CX 1, Sweetwater Trial Ex. 10.
20
Stip 36.
21
Id. at 36–37; Trial Tr. 194–201 (Vickers).
10
Department of Natural Resources and Environmental Control (“DNREC”),22 on
Parcel 46, at which time Vickers expressed interest in the parcel on behalf of the
State23 and discussed the need for an appraisal.24 The record is unclear as to whether
an appraisal was ever sought, but, in any event, the proposed donation or sale to the
State did not occur.25
Kee testified that Vickers did not mention either that the State already owned
part or all of the property, or that it was part of the Nature Preserve.26 Vickers
testified that he was aware, at that time, that the 1931 Matthews Deed existed, but
that he relied on the Nature Preserve Drawing as accurately depicting the applicable
boundary lines;27 the Nature Preserve Drawing did not include all of Parcel 46, and
because the parties “spent most of [their] time walking,” and looking at the
22
Trial Tr. 196–97 (Vickers). The Nature Preserve Drawing shows a line cutting across the Boot
of Parcel 46. As discussed below, the State’s representative, Charles Vickers, thought the land
below that hand-drawn line was all that Kee was attempting to donate or sell at various times. See
Trial Tr. 203:1–14 (Vickers); infra notes 27–29 and accompanying text.
23
Id. at 197:1–18 (Vickers); id. at 1416:4–13 (Kee).
24
Id. at 197 (Vickers).
25
Id. at 1417:4–16 (Kee); see also id. at 198:15–19 (Vickers).
26
Id. at 1416:18–1417:4 (Kee).
27
Id. at 198:3–14 (Vickers).
11
southeastern peninsula (the “Boot”28), Vickers was unaware that the Nature Preserve
Drawing conflicted with Kee’s understanding of her property lines.29
Other than Doe Bridge Road, which has not been improved or maintained for
many decades, Parcel 46 is land-locked. At some point after meeting with Vickers,
Kee purchased Parcel 44, understanding that it would make Parcel 46 more
marketable to provide a means of ingress and egress.30 She also cut a lane on Parcel
46, connecting to Doe Bridge Road, which involved extensive felling of trees; posted
signs against trespassing; and installed a gate across Doe Bridge Road on Parcel 44,
all without objection by the State.31 She later listed Parcels 44 and 46 for sale, and
the realtor—Bill Lingo—again contacted the State about purchasing these two
parcels.32 Lingo testified that the State, through Vickers, expressed an interest in the
property again, but that such interest was not pursued;33 the State again failed to
assert that it already owned Parcel 46 or that that parcel was otherwise included in
28
The reader should be wary of confusion between the name of the original land patent (Dry Boots)
and casual reference in the record to “the Boot.” I assume that Dry Boots was so-called because
in contrast to the low adjoining properties (and much of Sussex)—note the record reference to
adjoining areas of “cripple” and the “Mirey Branch”—it is a veritable Alps of well-drained upland,
reaching tens of feet above sea level. Parcel 46, which roughly corresponds to Dry Boots, has on
its southeastern side a peninsula jutting into Millsboro Mill Pond that is boot-shaped: the Boot.
Thus the Boot is a sub-area of Parcel 46, also known as Dry Boots.
29
Id. at 203:1–14 (Vickers).
30
See id. at 1419–23 (Kee).
31
See Stip 37; Trial Tr. 1425, 1427–28, 1453 (Kee).
32
See Stip 37; Trial Tr. 200–01 (Vickers).
33
Id. at 1468:18–1469:14 (Lingo). But see id. at 201:17–18 (Vickers) (“We [the State] indicated
we did not have an interest in purchasing [the] properties” due to a lack of funds.).
12
the Nature Preserve.34 Again, Vickers testified, he relied on the Nature Preserve
Drawing, which did not include the entirety of Parcel 46, and he apparently still did
not realize at this time that there was a dispute as to ownership.35
Ultimately, in April 2005, Kee, as executrix of the estate of Margaret White,
Virginia T. Frazier, and Mary W. McMahon entered into a contract for sale of Parcel
46 to Oriskany, Inc. (“Oriskany”).36 Kee concurrently entered into a contract to sell
Parcel 44 to Oriskany.37 Oriskany thereafter undertook efforts to develop a
community of forty-nine homes called “Sweetwater Point,” including retaining legal
counsel, land surveyors, engineers, and land planners, as well as preparing
construction plans and seeking County and State approval for subdivisions, roads,
and utilities.38 At some point, Oriskany assigned its contract rights to Sweetwater,
which then arranged for mortgage financing from Lehman Brothers Holding Inc.
(“Lehman”).39
Throughout the initial planning stages leading up to closing, Sweetwater
sought approval from various State agencies for its proposed development, including
DNREC and the Delaware Department of Transportation (“DelDOT”).
34
Id. at 1470:11–19 (Lingo).
35
Id. at 202:2–9 (Vickers).
36
Stip 38.
37
Id. at 39.
38
Id.
39
Id. R.I.P.
13
On August 1, 2005, the State sent a letter from Robert Line, of DNREC’s
Office of Nature Preserves (the “2005 Line Letter”) to an environmental engineering
firm doing work for Sweetwater’s land planner.40 This letter indicated that the
“exact boundary” between the Nature Preserve and the proposed development “has
been in dispute (Ron Vickers, per. comm.),” which dispute “must be resolved before
you can proceed further.”41 The parties stipulate that this was the first time the State
asserted a claim to Parcel 46,42 though it is not clear from the letter whether the State
was asserting a claim to the entirety of Parcel 46 or only a portion of it.
On September 16, 2005, Peter O’Rourke, President of Oriskany, and Ken
Christenbury, a licensed Delaware engineer retained by O’Rourke, met with Connie
Holland of the State Planning Office to discuss environmental planning for the
development.43 Holland presented a map showing State-owned properties in the
vicinity, which appeared to affect a portion of Sweetwater’s development plan; she
suggested the developer meet with Vickers.44 O’Rourke met with Vickers thereafter,
at which point, per O’Rourke, “Vickers suggested that the State had interest in that
area and that they might own something out there,” but that “there was no survey”
or deed, or anything else, “that would substantiate a claim that the State, indeed, had
40
JX 123.
41
Id.
42
Stip 39. The State did not notify Sussex County that it claimed title to Parcel 46 until 2006.
43
Trial Tr. 1099–1100 (Christenbury); id. at 1297–98, 1329 (O’Rourke).
44
Id. at 1299–300 (O’Rourke).
14
an outright claim on the property.”45 Ultimately, O’Rourke testified, after repeated
attempts to “understand what exactly the State’s claim was,” Vickers produced a
map showing that the State was claiming a portion of Parcel 46, in the northeastern
part of the parcel—which was less than was shown on the Nature Preserve
Drawing—that would have affected Sweetwater’s development plan minimally. 46
O’Rourke testified that this sketch, reproduced as Exhibit D to this Memorandum
Opinion, was the only document provided by the State at that time showing the
nature of the boundary dispute.47
Meanwhile, Sweetwater’s surveyor, Chuck Adams, had repeatedly attempted
to confirm with the State the extent of its claims, if any, to the area in question.48 In
response, Adams eventually received a file of materials from the State in September
or October of 2005, in which he found a copy of the Articles of Dedication for the
Nature Preserve, including the Nature Preserve Drawing, and the 1931 Matthews
Deed.49 Adams verified that a sealed copy of the Nature Preserve Drawing was in
45
Id. at 1301:1–12 (O’Rourke).
46
See id. at 1303:16–1304:16 (O’Rourke); id. at 1339:9–24 (O’Rourke); JX 118; see also Trial Tr.
1102:7–1104:6 (Christenbury) (identifying the map contained within JX 118 as “the only
document I ever saw that was described to me by Mr. O’Rourke as the contested lands according
to the State”).
47
Trial Tr. 1304:21–1305:12 (O’Rourke).
48
Id. at 310–11 (Adams). Kee hired Adams of Adams-Kemp Surveyors, a licensed Delaware
surveyor, to complete survey work and create a legal description of Parcels 44 and 46; see id. at
259, 310–311.
49
Id. at 295–98 (Adams); see also id. at 1332:19–1333:15 (O’Rourke).
15
fact recorded with the Sussex County Recorder of Deeds.50 When James Fuqua,
Sweetwater’s attorney, received this information from Adams, he concluded that,
the Nature Preserve Drawing notwithstanding, the Nature Preserve covered only
Parcel 8, to the north of Parcel 46.51
Sweetwater closed on Parcels 44 and 46 on November 4, 2005.52 Title
insurance was issued without exception for the State’s claims; the parties stipulate
that the issuing agent for the title insurer did not know about the 1931 Matthews
Deed, the Nature Preserve, or the 2005 Line Letter when he issued the policies on
Parcel 46.53 Both the State and the County accepted payments, totaling over
$80,000, in transfer taxes associated with the sale.54
Following closing, Sweetwater continued its process of obtaining necessary
permits for the planned development. By October 2006, Sweetwater had received
all necessary approvals except for a DelDOT permit to construct an entrance on
Parcel 44.55 On October 12, 2006, Sweetwater’s development proposal was
presented at a public hearing of Sussex County’s Planning and Zoning division
50
Id. at 298:10–16 (Adams).
51
See id. at 1177:2–1180:7 (Fuqua); Stip 39.
52
Stip 40.
53
See id. at 40–41. Kee also testified that she purchased Parcel 44 because Parcel 46 was otherwise
inaccessible, and that she would not have purchased Parcel 44 had she known about the Nature
Preserve or any other basis for the State’s claim to Parcel 46. See Trial Tr. 1422:19–1423:23
(Kee); id. at 1458:6–10 (Kee).
54
Stip 41.
55
See Trial Tr. 1122–25 (Christenbury).
16
(“Planning and Zoning”), at which no objectors appeared.56 That same day,
however, Eileen Butler of DNREC’s Division of Parks and Recreation sent a letter
to Lawrence Lank, of Planning and Zoning, indicating that DNREC “formally
recognize[d] that there is a significant boundary dispute between the developer of
Sweetwater Point and the State of Delaware.”57
Meanwhile, to prepare to market lots in Sweetwater Point, O’Rourke began
clearing Parcel 46 of fallen trees.58 This activity prompted the State to threaten to
seek injunctive relief unless the clearing was halted, and Sweetwater agreed to
suspend the clearing while the parties’ counsel conferred.59 O’Rourke, Fuqua, and
others met with John Hughes, a representative of DelDOT, to discuss the delay in
obtaining approval to construct an entrance at Parcel 44.60 DelDOT advised
O’Rourke and Fuqua of the State’s tentative plans to construct a highway bypass of
downtown Millsboro over land including Parcel 46.61 The parties reconvened with
DelDOT on several other occasions. On April 4, 2007, Christenbury received an
email from Butler “on behalf of Ron Vickers,” requesting a meeting “to discuss
56
See id. at 1119–20 (Christenbury); I take judicial notice of the publicly available minutes of the
Sussex County Planning and Zoning Commission for October 12, 2006, available at https://www.
sussexcountyde.gov/sites/default/files/minutes/pz10122006.pdf. See also Trial Tr. 1119:12–
1120:21 (Christenbury).
57
JX 124.
58
Trial Tr. 1315 (O’Rourke).
59
Id. at 1318–19 (O’Rourke).
60
Id. at 1319–20 (O’Rourke).
61
Id.
17
boundary issues associated with Sweetwater Point.”62 Other contacts among the
parties, logically, must have followed but do not clearly appear in the record.
Ultimately, in 2009, the State filed this action to quiet its claim of title to
Parcel 46 and a portion of Parcel 44 against Sweetwater.63 Sweetwater and Lehman
counterclaimed, seeking confirmation of their title and damages. The State
subsequently amended its petition to remove any claim to Parcel 44. I held a ten-
day trial in September and November 2014, following which the parties completed
post-trial briefing. The record was thereafter reopened for additional evidence,
newly discovered. I then held oral argument on that new evidence and supplemental
briefing by the parties was completed on June 17, 2016. On September 30, 2016, in
the interest of efficiency, I released a draft of the portion of this Memorandum
Opinion dealing with record title, inviting the parties to point out any mistakes of
law or fact that may have arisen from my review of the extensive record. The parties
submitted further supplemental informal memoranda on this issue and submitted this
matter for final decision on February 9, 2017. This is my post-trial Memorandum
Opinion.64
62
Id. at 1128–29 (Christenbury).
63
Though initially styled as a quiet title action, both parties concede that this case has been
prosecuted and defended as a determination of superior title, without the universal application of
an in rem quiet title action.
64
The parties agreed to bifurcate the proceedings in this matter; accordingly, this Memorandum
Opinion only addresses who, as between the parties, holds superior title to Parcel 46. The parties
have reserved for a later phase of litigation a determination of any remedies.
18
III. RECORD TITLE
A. Evidentiary Standard
In this action to determine which of the two competing parties has a superior
claim—that is, which should prevail in this in personam action between the State
and Sweetwater—the parties agree that the applicable evidentiary standard is proof
by a preponderance of the evidence.65 A true in rem quiet title action, by contrast,
would require proof by clear and convincing evidence.
Each party must establish the strength of its own title first, rather than relying
solely on flaws in the competing chain of title.66 Sweetwater’s argument is heavily
focused on calling into question nearly every facet of the State’s chain of title, while
doing less in the way of advancing its own, which is understandable in light of the
“floating” nature of its source deed. I have no doubt that Sweetwater’s late-20th
century predecessors-in-title held deeds clearly intended to convey title to Parcel 46,
but of course one may convey only what she owns,67 and Sweetwater’s relative
inability to establish the strength of its earlier predecessors’ title, taken together with
65
See, e.g., Post-Trial Oral Arg. Tr. 5:4–6:4; 10:10–13; see also 74 C.J.S. Quieting Title § 79.
66
See Respts’ Opening Post-Trial Br. 6 (“The State cannot rely upon any alleged weakness in
Sweetwater’s title, but must prevail on the strength of its own alleged title.”) (citing Marvel v.
Barley Mill Road Homes, Inc., 104 A.2d 908, 911 (Del. Ch. 1954)); see also Smith v. Smith, 622
A.2d 642, 646 (Del. 1993); 65 Am. Jur. 2d Quieting Title § 74.”); Petr’s Opening Post-Trial Br. 1
(“In any Quiet Title action, the Petitioner has the initial burden to prove its superior title to the
land before challenging the respondent’s title claims.”).
67
See, e.g., Scureman v. Judge, 626 A.2d 5, 16 (Del. Ch. 1992) (“A grantor can convey only such
title and interest in land that he actually owns.”) (citation omitted).
19
the plausibility of the State’s title, convinces me that, by a preponderance of the
evidence as between these parties, the State holds record title to Parcel 46.68
B. General Principles
In considering the parties’ competing chains of title, both of which are
colorable, but neither of which is manifest, I am guided by a number of generally
applicable principles governing interpretation of deeds. As a general matter, the
guiding principle in interpreting the language used in a conveyance is to determine,
as closely as possible, the grantor’s intent.69
In interpreting deed language, there is a general order of priority by which I
am to consider various identifying factors: calls to natural monuments take the first
priority, then to artificial monuments, then to courses of distances, then to acreage.70
Calls to adjoiners are akin to calls to artificial monuments.71 Of course, this priority
is not absolute; rather, it is a tool used to arrive at the grantor’s intent—the
controlling consideration in any determination of conveyances.72
68
The parties expressed at post-trial oral argument their desire for me to settle this dispute as
between these two parties. That is the narrow scope of my decision, and, as a result, I am tasked
with deciding which chain of title more plausibly includes Parcel 46, solely as between the State
and Sweetwater.
69
Smith, 622 A.2d at 646 (“The fundamental rule in construing a deed is to ascertain and give
effect to the intent of the parties as reflected in the language they selected.”) (citation omitted);
Maciey v. Woods, 154 A.2d 901, 904 (Del. 1959) (“[T]he fundamental function of rules of
construction is to determine the intention of the parties.”).
70
See, e.g., 4 Tiffany Real Prop. § 993 (3d ed.).
71
Id.
72
Id.
20
The primary difficulty here is that the chains of title proposed diverged long
ago, with respect to property that has for much of history been undisturbed
woodland. Many of the relevant deeds in this case are old and, on their face, not
clear; I am thus aided by extensive extrinsic evidence.73 As Tiffany Real Property
notes, excepting only
the broad principle that a conveyance will not be declared void for
insufficiency in its description of the property which it purports to
convey, if it is possible by any reasonable rule of construction, aided by
extrinsic evidence, to identify the property intended, it is impossible to
give any general rules by which to determine whether, in the case of
any particular conveyance, the description is sufficiently definite to
render the instrument operative.74
With these general principles in mind, I turn to the State’s chain of title.
C. The State’s Chain of Title75
The record makes it clear that the State was unaware of its interest in Parcel
46 until late in the day. As discussed in the Background Facts, in 1991, the Articles
of Dedication for the State’s Nature Preserve identified only Parcel 8, despite the
accompanying plot showing that the Preserve includes part of Parcel 46. In fact, the
State twice considered a purchase of Parcel 46 from Sweetwater’s predecessors-in-
interest. Since the latter part of the 20th century, it has allowed others to post the
73
The vigor exhibited by counsel to develop the record, involving tracing titles and land use of the
area north of Millsboro Mill Pond back to colonial times, has been extraordinary.
74
4 Tiffany Real Prop § 997 (3d ed.) (emphasis added).
75
In reviewing this discussion of the parties’ chains of title, the reader will be aided by reference
to Figures 1 and 2, attached as Exhibit E.
21
property against trespassers, and has taken no action itself against trespassers on
Parcel 46, despite its careful patrolling of adjacent Parcel 8, on the Stockley Center
grounds, to prevent trespass. It allowed the timber on Parcel 46 to be cut and
removed, without protest. Were two private parties involved in this contest, as I
have explained above, this would be a likely case for the application of adverse
possession, and this Memorandum Opinion would be far shorter. As discussed
above, however, and as referred to below in my discussion of equitable defenses
raised by Sweetwater, for periods relevant here the State has exempted itself from
the salutary rigors of the application of adverse possession; thus, my resolution of
the issue requires weary examination of the competing chains of title. Upon that
review, as laid out below, I find by a preponderance of the evidence that, as between
these claimants, the State holds record title to Parcel 46.
1. The State’s Source Deed: The 1931 Matthews Deed
I begin with the State’s purported source deed, a 1931 deed transferring
property from Wingate E. Matthews and Lizzie A. Matthews to the State (the “1931
Matthews Deed”).76 This deed is poorly drafted and requires much interpretation
and application of extrinsic evidence, and the parties have heavily litigated its
meaning, including whether it purports to transfer title to Parcel 46. If it does not,
76
JX 1.
22
the State’s claim must fail; the intent to transfer title to Parcel 46 by the Matthews
Deed to the State is a necessary but not sufficient predicate for a finding of title. For
the reasons below, I find that the 1931 Matthews Deed evinces an intent to convey
title to Parcel 46 to the State.
The calls in the deed are as follow:
Beginning at a cedar stake, corner for the lands of the State of Delaware,
known as Delaware Colony, lands of Able Ableman, and these lands,
thence, south thirty-five degrees west twenty-two and six tenths perches
to a cedar post in the center of Mirey Branch; thence, with the run of
the said branch and meanderings thereof to the Doe Bridge Mill
property; thence, with said Doe Bridge Mill property north thirty-three
and one-quarter degrees west twelve perches to Doe Bridge pond;
thence, with said pond, and meanderings thereof, to the lands of the
State of Delaware known as Delaware Colony; thence with three lines
of same south seven degrees west seventy-six perches to a large White
Oak; thence, eighteen and three-fourths degrees east fifty and three
tenths perches to a cedar post, thence, south thirty five degrees west
nine and one-tenth perches to the place of beginning, containing one
hundred acres, more or less . . . .77
The State acknowledges that the metes and bounds description just recited is
problematic, but argues that the 1931 Matthews Deed nonetheless evinces an intent
to convey Parcel 46, despite its flaws. Sweetwater contends that the State’s 1931
Matthews Deed is “unclear and ambiguous”78 and can only include Parcel 46 in its
entirety if “the Court accepts the State’s invitation to rewrite the legal description on
77
Id.
78
Respts’ Pre-Trial Memorandum 4.
23
which the State relies.”79 The 1931 Matthews Deed covers approximately 100 acres,
but the parties dispute the location of those 100 acres; it is undisputed that some
portion of the 100 acres of land conveyed by the 1931 Matthews Deed is north of
the Doe Bridge Road, and Sweetwater contends that it must be entirely north of the
Road, and thus does not include Parcel 46, for which the road is the northern
boundary. That contention, in part, is based on the adjacent, now mostly drained,
pond bottom (the “Pond Bottom”) of the old Doe Bridge Mill ponds; Sweetwater
relies on an assumption that the 1931 Matthews Deed conveyed the Pond Bottom,
which together with the acreage north of the Road, comprises the entire property
transferred. If the 1931 Matthews Deed included the acreage of the Pond Bottom,
Sweetwater’s contention—that the deed references only lands north of the Road, and
not Parcel 46—is plausible.
Sweetwater argues that the following reformations are necessary before the
1931 Matthews Deed can be read to include the land identified as Parcel 46:
(i) an extension of the grossly short measurement recited as the distance
between the erroneously defined beginning point in the State’s Deed
and a cedar stake (which cannot be found) in the Mirey Branch; (ii) an
extension of unspecified distance running from a non-existent cedar
stake in the Mirey Branch to the unmentioned mouth or terminus of the
Mirey Branch, where it discharges into Millsboro Pond; (iii) a “missing
call” to Millsboro Pond, running from the unspecified mouth or
terminus of the Mirey Branch along the waters of Millsboro Pond,
which border the peninsula of Parcel 46, until it meets the Cow Bridge
79
Id.
24
Branch; and (iv) a “missing call” running from the mouth of the Cow
Bridge Branch, where it meets Millsboro Pond, to the undefined Doe
Bridge Mill Property.80
The State, by contrast, characterizes any errors in the 1931 Matthews Deed as “de
minimis” and not affecting an interpretation of the parties’ intent.81 In reviewing the
deed, I do not find it to be as defective as Sweetwater suggests. I address each call
in turn.
a. First Call
The first call, which provides the western border of the property, reads:
“[b]eginning at a cedar stake, corner for the lands of the State of Delaware, known
as Delaware Colony, lands of Able Ableman, and these lands, thence, south thirty-
five degrees west twenty-two and six tenths perches to a cedar post in the center of
Mirey Branch.”82 Sweetwater argues that I must extend a grossly short distance call
in order to reach the center of the Mirey Branch to a cedar post no longer in existence.
However, it is well settled that natural monuments take priority over distances, and
I apply that priority here.
80
Id.
81
See Petr’s Pre-Trial Memorandum 3.
82
JX 1.
25
b. Second Call
The second call, starting in the Mirey Branch, reads: “thence, with the run of
the said branch and meanderings thereof to the Doe Bridge Mill Property.”83 A
glance at the map in Exhibit A shows the problem: the Mirey never reaches, via
meander or otherwise, the Doe Bridge Mill Property, which is located not on the
Mirey Branch but on the Cow Bridge Branch (aka Doe Bridge Branch) at or near its
discharge into Millsboro Pond. The denomination of these streams as “branches” is
explained by the fact that Millsboro Pond is itself a millpond, an artificial, although
ancient, impoundment of Indian River; and that the Doe Bridge Branch and the
Mirey Branch together formed Indian River, at their confluence, in its natural state.
Thus, with reference to the call “with [the Mirey] . . . to the Doe Bridge Mill
Property,” Sweetwater argues that the deed is missing calls to the Millsboro Pond
and/or Cow Bridge Branch to the southeast and east of Parcel 46.84 I note that
following the meanderings of the waterway tracing around the Boot does lead to the
83
Id.
84
In an apparent attempt to plot this call, the creator of the Nature Preserve Drawing showed a line
cutting across the Boot of Parcel 46. However, I find the more logical approach to be to follow
along the edge of the land, from the call to the Mirey, to the Doe Bridge Mill Property, which I
find to mean the remains of the earthen dam. Site visits made clear to me that the dam was, at
least on the western portion adjacent to Parcel 46, a dirt structure made by digging from the high
ground on Parcel 46—the borrow pits resulting from such digging are still clearly visible in
person—and extending from Parcel 46 in an easterly direction across the Cow Bridge Branch
toward the Indian River Hundred side. The topography of the dam is noticeably different from the
natural portions of the land—the dam remains are a narrow, level piece of ground attached to
upland on the west side of the Cow Bridge Branch. This portion of the “land” is not Parcel 46;
rather, it is the Doe Bridge Mill Dam.
26
Doe Bridge Mill Property. I recognize, of course, that the Mirey itself does not
extend around the Boot, but the Mirey also does not have a defined terminus into
the Millsboro Pond,85 which itself is not clearly distinguishable from the Cow Bridge
Branch. I find that the most reasonable interpretation of this call—in light of my
understanding as to the nature of the dam remnants as adjacent to the natural portion
of Parcel 46, together with the use of the term “meanderings”—is that it is meant to
trace the waterway along the edge of the Boot. A property line following the bank
leads to the Doe Bridge Mill Property. This approach best effectuates the intent set
forth in the 1931 Matthews Deed, and is consistent with the deeds in to Matthews
and with adjoining properties, as will be discussed below.
c. Third and Fourth Calls
The third and fourth calls, forming the eastern and part of the northern
boundary, read: “thence, with said Doe Bridge Mill Property north thirty-three and
one-quarter degrees west twelve perches to Doe Bridge pond; thence, with said pond,
and meanderings thereof, to the lands of the State of Delaware known as Delaware
Colony.”86 The State argues that the call to travel with the “pond” refers to the
western edge of the pond; in other words, the State contends that the property
conveyed by the 1931 Matthews Deed does not include the Pond Bottom.
85
Sweetwater’s surveyor expert, Adams, testified at trial that the Mirey extends along the entire
southern portion of Parcels 44 and 46. See Trial Tr. 266:10–12 (Adams).
86
JX 1.
27
Sweetwater argues the opposite, that “with the pond” either indicates the east side
of the pond (where the Doe Bridge Mill itself appears to have been located), or
means the centerline or the meanderings of the drowned branch, in either case
including some or all of the Pond Bottom.87
Resolution of this dispute—whether the 1931 Matthews Deed was intended
to convey the Pond Bottom—is an important component to my finding that the Deed
included Parcel 46. Again, Sweetwater contends that, if the 1931 Matthews Deed
includes title to a significant portion of the Pond Bottom, the 100 acres called for in
that deed would have to be located north of the Road, thus not including Parcel 46.
If, however, the Pond Bottom acreage is excluded, then the portion of the deeded
property above the Road would total only some forty-five acres, leaving
approximately fifty-five acres that must fall south of the Road, which the State
contends would be Parcel 46.88 I find, as discussed below, that the 1931 Matthews
Deed did not include the Pond Bottom, as the evidence persuades me that Matthews
did not own the Pond Bottom. In light of this finding, I find by a preponderance of
the evidence that the 1931 Matthews Deed conveyed Parcel 46 to the State.
Explaining this finding requires examination of the ownership of the Doe Bridge
87
Sweetwater initially argued that the call to the Doe Bridge Mill Property necessarily located the
line on the east side of the Branch, as the Mill itself was east of the run of the Branch. Evidence
in the record indicates that portions of the Doe Bridge Mill Property, including portions of the dam
itself and a “mill lot,” were west of the Cow Bridge Branch. This evidence is addressed, infra.
88
I note that Parcel 46 is, in fact, sixty-three acres.
28
Mill Property and the associated flooded lands which were covered by the Doe
Bridge ponds.89
2. Conveyance of the Doe Bridge Mill Property
The State owns the Doe Bridge Mill Property adjacent to the lands in question
here. At trial, the State traced ownership of the Doe Bridge Mill Property, which it
purchased in 1933, to a source deed issued in 1864. Following trial, I asked the
parties to supplement the record with a copy of an 1829 private legislative act (the
“1829 Act”), which authorized a miller, Robert Frame, to construct (or reconstruct)
the Doe Bridge Mill Dam. Through this and additional evidence provided by the
parties, the State is now able to trace ownership of the Doe Bridge Mill Property
from a legislative act of 1829 up to its prior source deed of 1864. Sweetwater
contends that these new chains of title upon which the State relies only conveyed
riparian rights, and not rights to the Doe Bridge Mill ponds in fee simple. As
Sweetwater points out, ownership of a mill and dam is presumed to include riparian
rights to the dammed water, but not the fee to the land so submerged.90 That
presumption, of course, is rebuttable.91 Here, all of the evidence, viewed as a whole,
89
I note, but do not rely on, field visits that indicate that the Doe Bridge Mill Dam, due to local
topography, appears to have flooded two relatively distinct areas above the dam—that is, ponds
rather than a single pond—connected by a relatively narrow channel of the drowned Cow Bridge
Branch.
90
Elwood Workman & Sons v. Smith, 2002 WL 31458239, at *2 (Del. Ch. Oct. 15, 2002).
91
Id.29
convinces me that it is more likely than not that the 1829 Act and deed did convey
the Pond Bottom; that, therefore, the Matthews Deed did not include the same; and
that the Matthews Deed therefore meant to convey Parcel 46. I note that I need not
find here whether in fact the Act conveyed the fee, in order to determine title to
Parcel 46 as a matter of law; the likely effect of the 1829 Act is merely evidence that
Matthews did not intend to convey the pond bottom to the State.
In 1933, Andrew and Catherine Lynch conveyed the Doe Bridge Mill
Property to the State of Delaware (the “1933 DBM Deed”). The conveyance reads
as follows:
All that certain tract, piece and parcel of land, situate, lying and being
in Dagsboro and Indian River Hundred, Sussex County, Delaware . . .
all the land which lies to the southward of a straight line drawn from a
line started at the forks of the public road leading from Millsboro to the
Henry Frame Farm, and a road leading from the aforesaid public road
down to the old site of “Doe Bridge Mill” in a northwesternly direction
across a road to a poplar, and thence following the high water mark
around the Old Doe Bridge Mill Pond so as to include the site of the
old mill known as “Doe Bridge,” together with the mill stream, mill
dam, mill-pond and all streams and pond privileges and all rights
pertaining to the said Doe Bridge Mill, containing seven (7) acres be
the same more or less.92
I read the 1933 DBM Deed as intending to convey the Pond Bottom together with
the uplands containing the Mill. It is hardly likely that the Lynches would have
92
JX 59 (emphasis added).
30
retained the Pond Bottom while selling the Mill. Again, the question is whether the
Lynches owned the property they attempted to convey.
A series of deeds dating back to 1864 constitute the chain of title for the Doe
Bridge Mill Property.93 Sweetwater contends that these deeds describing the Doe
Bridge Mill Property “included only water rights—not fee title,”94 while the State
contends that these deeds conveyed the Pond Bottom in fee simple, such that the
Matthews Deed must have excluded this land and, therefore, included Parcel 46.
The 1864 deed in to Benjamin B. Jones from Robert Morris of L. and William
L. Morris and his wife, describe the conveyance of
all of that certain Grist Mill and Carding Machine Situated laying and
being in Dagsboro Hundred and Indian River Hundreds in Sussex
County and State of Delaware Together with the Mill Stream or pond,
Mill dam[,] Mill lot of land and dwelling House thereon Containing in
the whole under water and out of water Ten acres to be the same more
or less [indecipherable] called and known by the name of Doe Bridge
Mill.95
The executor for the estate of Benjamin B. Jones described the next conveyance as
“[a]ll that certain Grist Mill, Mill Stream, Mill Dam, Mill lot and dwelling thereon,
situate in Dagsboro and Indian River Hundreds on [indecipherable] Branch, called
and known by the name of [D]oe Bridge Mills, containing in the whole under water
93
See JX 68; JX 67; JX 66; JX 65; JX 64; JX 63; JX 62.
94
Respts’ Opening Post-Trial Br. 34 n.22.
95
JX 68.
31
and out, 10 acres, more or less.”96 The Estate of Benjamin B. Jones also conveyed
another five-acre parcel of land “adjoining the Doe Bridge Mill Lot and Henry C.
Frame.”97 These two parcels can be traced through deeds of record to the 1933 DBM
Deed from Andrew Lynch and Catherine Lynch to the State of Delaware.98
The State contends, and I agree, that the conveyance of land “following the
high water mark around the Old Doe Bridge Mill Pond so as to include the site of
the old mill” in the 1933 DBM Deed is intended to convey the land underlying the
pond as well, consistent with the depiction shown on a 1957 survey by Albert
Korves, which references the 1933 DBM Deed. The State notes that this conveyance
and the deeds preceding it all cite to land in both Indian River Hundred and Dagsboro
Hundred99 and argues that the only land on the Dagsboro Hundred side would be
“possibly a small portion of land constituting the westerly side of the dam,” if the
Pond Bottoms are excluded.100 I note, however, that the dam and mill lot on the
Dagsboro side of the branch would probably explain the reference to both Hundreds,
whether or not the Pond Bottom was included. Nonetheless, as stated above, I reach
96
JX 67.
97
Id.98
JX 59. As noted above, the 1933 DBM Deed recites seven acres; the predecessor deeds recite
ten. Quantity, however, is “the least certain of all the elements of description that are usually found
in a deed.” 26A C.J.S. Deeds § 254.
99
Local readers will know, but others may not, that the term “Hundreds” refers to a subdivision of
a county. It was once used in England, Wales and portions of the United States, but apparently
persists only in Delaware.
100
Petr’s Post-Trial Answering Br. 14.
32
the same conclusion as did, apparently, the drafter of the Korves Survey; that based
on the language of the deeds each grantor in the chain to the Doe Bridge Mill
Property intended to include the land underlying the water.101
On the other hand, the “seven or ten” acres referenced is woefully short of the
extent of the conveyance if the Pond Bottom is included. A reading of the deed
language to indicate that what is conveyed is “the whole under water”—that is,
including the Pond Bottom—“and out, ten (or seven) acres”—meaning ten (or
seven) acres of upland, exclusive of the Pond Bottom, is speculative and, frankly,
strained. However, my finding that the Pond Bottom was owned by the owner of
the Mill, and thus did not form a portion of the lands described in the 1931 Matthews
Deed, is, to my mind, strongly bolstered by review of the parties’ supplemental
submissions regarding the 1829 Act.
The 1829 Act authorized Robert Frame to construct the Doe Bridge Mill
Dam.102 The Act stated that it “shall forever vest in and convey to the said Robert
Frame, his heirs and assigns, a good and indefeasible title and estate in fee simple to
and in the aforesaid lot of lands and all and every uplands, low ground and cripple
in said plot . . . .”103 Significantly, the 1829 Act allowed Robert Frame to rebuild his
101
At least, in light of the unusual posture of this case, I find this to be more likely the conclusion
than the alternative.
102
S-JX-3A, Tab. 3A.
103
S-JX-3A, Tab. 3A at 4.
33
ancestor’s “ancient mill” and milldam, and required a damages proceeding, in which
five freeholders were charged with assessing the owners of the lands to be flooded
and the “value” and “damages” of the land so condemned. Also of note, the Act
included a writ under which the Court of Common Pleas was charged with
determining Frame’s existing rights, arising with respect to the operation of the
“ancient mill” through condemnation or otherwise, which would allow him to avoid
paying some or all of the damages. Upon the return of such writ, the Act provided
that the survey of the freeholders was to be “filed of record . . . and shall forever vest
in and convey to the said Robert Frame, his heirs and assigns . . . title . . . in fee
simple” to the mill lot and “all and every the uplands, low ground and cripple”
described therein, conditioned upon payment of the condemnation damages
awarded. The survey104 shows the lands to be flooded, which correspond to the area
which on a site visit appears to be formerly-flooded bottom today.105
As per the 1829 Act, the Court of Common Pleas conducted a damages
proceeding which identified three individuals whose land would be “overflowed and
drowned” by the construction of the dam.106 Following the completion of
104
JX 159. The enrolled bill comprising the 1829 Act is in the record.
105
Sweetwater points out that the record is silent as to whether the damages were ever paid, and
thus argues I should assume they were not, and secondarily assume that the fee was never
transferred. I do not find such an assumption compelling, in light of all the facts here.
106
See JX 69.
34
proceedings in the Court of Common Pleas as commanded by the 1829 Act, 107 title
to the property referenced (the “Frame Property”) was conveyed to Robert Frame.108
That proceeding was followed by a conveyance of the Frame Property to William
D. Waples, Robert Morris of L., and Derick Barnard.109 These individuals were
parties to a deed (the “Frame Deed”) conveying to them “all and every benefit and
advantage of an Act of the General Assembly,” that is, the 1829 Act.110 They took
the Frame Property as tenants in common.111 Their interests in the Frame Property
in turn passed through several transactions, described below, to Benjamin B. Jones
whose deed can be directly traced forward to the 1933 conveyance of the Doe Bridge
Mill Property to the State.112
William Waples’s one-third interest in the Frame Property passed to William
Waples’s widow, Rachael Waples, upon his death and was assessed to her in the
1844 assessment. 113 That one-third interest was conveyed to Theodore Marvel by
two deeds, one from William Waples’s Estate in 1853 and one from Rachael Waples
107
S-JX-3A, Tab. 3A.
108
See Petr’s Mem. 1829 Act 10–11.
109
S-JX 19A; The names of the individuals receiving the property were identified by tax
assessments to the three individuals as well as through the Frame Deed property description.
William Waples was assessed 1/3 of a grist mill at Doe Bridge in 1836 (S-JX 9) and Derrick
Barnard’s heirs were assessed 1/3 of Doe Bridge Mill in 1844 (S-JX 13).
110
S-JX 19A.
111
Id. at 19A, Tab. 8A.
112
See JX 59–JX 68.
113
S-JX 11.
35
in 1854.114 Rachael Waples’s deed out included specifically “all . . . the ways,
waters, water course, rights, liberties, privileges, hereditaments and appurtenances
whatsoever thereunto belonging or in anywise appertaining and . . . rents issues . . .
thereof and all the estate right title interest property claim . . . .”115 Marvel, less than
one month later, conveyed his interests in the mill “[t]ogether with all . . . waters,
watercourses, right, liberties, and privileges . . . appurtenances whatsoever thereunto
belonging or in any wise appertaining” to Robert Morris of L. 116 By this time, as
discussed above, Robert Morris of L. already owned another one-third interest in
the mill as acquired in the Frame Deed of 1829.
Derick Barnard’s one-third interest passed to his heirs who were assessed as
owners of “1/3 Doe bridge Mill” in 1844.117 The interest was sold by the
administrator of Barnard’s Estate on July 18, 1853.118 The deed stated the
conveyance of Barnard’s “one undivided third of the Mills lands and premises
known as Doe Bridge Mills . . . and appurtenances situate in Dagsboro & Indian
River Hundreds” to George Barnard and Thomas A. Fithian.119 This interest was
then conveyed to William Morris of Robert (“William Morris”) by deed. 120 That
114
S-JX 24A–25A.
115
S-JX 24A.
116
S-JX 27A.
117
S-JX 13.
118
S-JX 23A.
119
Id.
120
S-JX 26A.
36
deed described the interest as “the undivided third part of a certain grist mill and
carding machine situate, lying and being in Dagsboro and Indian River Hundred . . .
together with the same share of the Mill dam mill pond lot of land and dwelling
house containing in the whole under Water and out of water 10 acres more or less
on Cow [Bridge] branch called Doe Bridge Mills also.”121 In 1864, William Morris
conveyed his interest in the mill “[t]ogether with the mill stream or pond, mill dam,
mill lot of land and dwelling house thereon” “[c]ontaining in the whole under water
and out of water ten acres” to Benjamin Jones.122
Robert Morris of L., as explained above, acquired an original one-third
interest through the Frame Deed.123 He additionally obtained, in 1853, the one-third
interest originally given to William Waples thus owning a two-thirds interest in the
Frame Property. In 1864, the entire Doe Bridge Mill Property was conveyed by deed
to Benjamin B. Jones from Robert Morris of L. and William L. Morris and his wife
as
all of that certain Grist Mill and Carding Machine Situated and laying
and being in Dagsboro Hundred and Indian River Hundreds in Sussex
County and State of Delaware Together with the Mill Stream or pond,
Mill dam[,] Mill lot of land and dwelling House thereon Containing in
the whole under water and out of water Ten acres to be the same more
or less [indecipherable] called and known by the name of Doe Bridge
Mill.124
121
S-JX 26A.
122
JX 68.
123
S-JX 19A.
124
JX 68.
37
The executor for the Estate of Benjamin B. Jones later described the property
as “[a]ll that certain Grist Mill, Mill Stream, Mill Dam, Mill lot and dwelling
thereon, situate in Dagsboro and Indian River Hundreds on [indecipherable] Branch,
called and known by the name of [D]oe Bridge Mills, containing in the whole under
water and out, 10 acres, more or less.”125 The Estate of Benjamin B. Jones also
conveyed another five-acre parcel of land “adjoining the Doe Bridge Mill Lot and
Henry C. Frame.”126 These two parcels can be traced to a 1893 deed,127 a 1904
deed,128 a February 1917 deed,129 a July 1917 deed,130 an October 1917 deed,131 a
1919 deed,132 a 1930 deed,133 and, finally, the 1933 deed from Andrew Lynch and
Catherine Lynch to the State of Delaware.134
As a consequence, I find that the Doe Bridge Mill Property, now owned by
the State, likely included the fee to the Pond Bottom, as conveyed to Frame by the
1829 Act, the resulting Court of Common Pleas action and the deeds referenced
above. It is unlikely, therefore, that the parties to the 1931 Matthews Deed intended
125
JX 67.
126
Id.
127
JX 66.
128
JX 65.
129
JX 64.
130
JX 63.
131
JX 62.
132
JX 61.
133
JX 60.
134
JX 59. As to the quantum of land cited, see supra note 100 and accompanying text.
38
the 100 acres conveyed therein to include the Pond Bottom. I find, consequently,
that the intent of the parties in the 1931 Matthews Deed was to convey, inter alia,
all of Parcel 46 as part of the 100 Acres conveyed.135
Having determined, through an examination of the metes and bounds
description, and examination of extrinsic evidence, that the State has demonstrated
that the 1931 Matthews Deed purports to convey title to the lands in dispute, I turn
to the State’s evidence that Matthews in fact had title to what is now Parcel 46, at
the time of the deed.
3. 1931 Matthews Deed—Chain of Title, “Dry Boots”
In 1776, property between the branches of Indian River, referred to as “Dry
Boots” (presumably because it was higher than most adjoining property) was
conveyed to Smith Frame by a Property Warrant.136 The parties agree that this
property included Parcel 46.137 This property was then left by will to Nathan Frame
in 1786.138 Nathan Frame then sold Dry Boots to Lacey Morris in 1802.139
135
While Wingate Matthews also owned property above the Road, this property was not sufficient
to have conveyed one-hundred acres to the State; the sixty-three acres contained in Parcel 46 are
necessary to provide for the proper acreage.
136
JX 17; JX 18.
137
See Petr’s Post-Trial Opening Br. 28; Respts’ Post-Trial Reply Br. 8.
138
JX 16.
139
JX 15. At the time he sold Dry Boots to Lacey Morris, Nathan Frame also conveyed “part of
Nath Wapels Reserve of 1796,” which together comprised 236 acres including 180 acres of arable
land. While Sweetwater claims the unexplained discrepancy between these 236 acres and the 100
acres purchased by T.S. Johnson indicates that T.S. Johnson may well not have purchased all of
Parcel 46 (See Respts’ Post-Trial Opening Br. 30–31), I find that my later analysis of the chain of
39
Lacey Morris transferred twenty acres140 of his property to Simon Kollock,
who in turn left those twenty acres to his grandson, Smith Wilson.141 The remainder
of Lacey Morris’s land, including land “bought of Nathan Frame,” passed to his
grandchildren, Burton Morris and Hetty Prettyman, upon Lacey’s death in 1820.142
In 1825, Burton Morris purchased his sister Hetty’s interest in the land
inherited from their grandfather.143 In 1829, Burton Morris acquired the twenty acres
that had passed to Simon Wilson (the “1829 Wilson Deed”) with the effect that
Burton Morris then held title to all of the land that his grandfather Lacey had
acquired in 1802.144 The parties agree that the 1829 Wilson Deed in its courses and
distances is “sufficiently close” to describe the sixty-three acres in Parcel 46. In
other words, the parties agree, and I find, that Burton Morris held title to what is now
Parcel 46 in 1829.145
Burton Morris died in 1835 and left his land to his widow Patience, who
remarried Benjamin Dorey in 1836.146 At his death, Burton Morris was assessed on
title from Burton Morris, who the parties agree held title to all of Parcel 46, to T.S. Johnson
establishes the necessary chain by a preponderance of the evidence.
140
I note that the parties’ briefing is inconsistent as to whether this property comprised twenty or
forty-five acres. Ultimately, it does not matter to my decision.
141
Stip 31–32.
142
JX 14.
143
JX 13.
144
JX 12.
145
Stip 27.
146
Id. at 32.
40
145 acres.147 Following the conveyance by will to Patience, the State contends that
the property passed by law to Patience and her new husband, Benjamin. The record
does not contain a deed demonstrating ownership by Patience and Benjamin Dorey
of the property containing Parcel 46.148 However, Patience and Benjamin did
execute a mortgage to Robert Morris of L., Burton Morris’s executor and uncle, the
language of which indicates a claim of ownership over Burton Morris’s lands which
the parties agree includes Parcel 46.149 The indenture described the land to be
mortgaged as follows:
one tract or parcel of Land called Dry Boots, which land is situated and
lying in Dagsboro Hundred, and [Sussex County] and adjoining lands
of Robert Morris of L.[,] Simon K. Wilsons [sic], late the property of
Burton Morris of [illegible] a part of which he had willed to him by
Lacey Morris a part also which he purchased of his sister Hetty
Prettyman and a part of Dr. Simon K. Wilson all which has now become
to be in tenancy and possession of the aforesaid Benjamin H. Dory and
Patience his wife.150
Following this claim of ownership, there is again a lack of a deed, will, or other
document evidencing the passing of Patience and Benjamin’s property. While there
147
JX 69.
148
See JX 108 at 14.
149
JX 11; see JX 108 at 14.
150
JX 11. The terms of the indenture provided that if Benjamin and Patience did not repay the two
hundred dollars loaned to them by 1837, the deed would “remain in full force and virtue both in
law and equity,” but that if they repaid the sum with interest, the deed would be “utterly null and
void.” Id. The record does not reflect whether this loan was repaid and the deed nullified, but
circumstantial evidence regarding John and Mary Dorey’s interests in land suggests that title
remained vested in Benjamin Dorey.
41
are discrepancies in the acreage of land assessed to Benjamin Dorey prior to his
passing, in 1860 and 1864 he was assessed on one hundred acres 151 and the 1864
assessment shows a notation of “hs” following Benjamin Dorey’s name, which
presumably designates that the land noted was held by his heirs; additionally, a
notation below the 1864 one hundred acre assessment reads, “deduct 60 to T.S.
Johnson.”152 That notation is significant, for the reasons below. The record does
not reflect when Benjamin Dorey died or the identity of his heirs. However, Patience
and Benjamin had two children together, John H. Dorey and Mary Dorey.153 While
there is no conveyance or transfer evidenced to their children, the 1868 assessment
does not have an entry for Benjamin Dorey, but does assess Mary Dorey at fifty
acres; John Dorey is not assessed on any land, and his name is stricken with the word
“Dead” over it.154
Based on the relationship between Patience and Benjamin Dorey and John
and Mary Dorey as well as the assessment records and conveyances in years
151
JX 128.
152
Id. The State’s title expert testified that it was his opinion that the “hs” notation and the notation
regarding T.S. Johnson was added after the assessment was made, indicating that, at some time
after 1864, Benjamin died and part of his land was transferred to T.S. Johnson.
153
The 1850 census records show Benjamin and Patience Dorey lived with two males, Benjamin
and John, and two females, one named Mary. JX 155; Trial Tr. 798:9–803:15 (Marshall). I find
that it is more likely than not that John and Mary were the sole heirs of the lands of Benjamin
Dorey (the elder), who got the land from his wife Patience, who in turn had inherited it from her
late husband Burton Morris. That is to say, John and Mary Dorey received the lands that had once
belonged to Burton Morris.
154
JX 128; Trial Tr. 796:1–12 (Marshall). I note that the spelling in the assessments varies between
“Dorey” and “Dory,” but no one has argued that these are not the same people.
42
following Patience and Benjamin’s death, I find it more likely than not that John and
Mary Dorey inherited the land of their parents and, thus, the land formerly of Burton
Morris which included Parcel 46. The State contends strongly that the doctrine of
presumed grant—which exists to prevent failure of otherwise-established title upon
a lacuna in the chain—mandates such a finding. While the applicability of the
doctrine of presumed grant in this proceeding is not altogether clear, since I have
already found it more likely than not that John and Mary Dorey inherited the
property, I rely on the doctrine only to provide additional strength to that finding.
Contrary to adverse possession, under the doctrine of presumed grant the occupancy
of the land is presumed rightful, rather than adverse.155 As this Court explained in a
1979 decision,
[t]he net result of these policies is that it is not necessary to believe a
conveyance was in fact made in order for the trier of fact to presume a
conveyance. If the evidence leads to the conclusion that the
conveyance might have been executed, and that its existence would be
a solution to the difficulties arising from its non-execution, then this is
sufficient to presume a grant.156
Based upon the evidence as bolstered by this doctrine, I find that each child of
Patience and Benjamin Dorey possessed an undivided one-half interest in their
parents’ property, as that presumption best explains the record here.
155
See Phillips, 449 A.2d at 256 (citing 4 Tiffany Real Prop. § 1136 (3d ed.)).
156
State v. Phillips, 400 A.2d 299, 305 (Del. Ch. 1979) (citations omitted).
43
After the passing of Patience and Benjamin Dorey’s property to their heirs
John and Mary, the evidence shows that John Dorey left debts upon his death
necessitating a sheriff’s sale of his property interest, which took place in 1867.157
John Dorey’s property interest was purchased by T.S. Johnson in April 1867 as
evidenced by a sheriff’s deed (the “1867 Sheriff’s Deed”) describing property of
approximately one hundred acres.158 However, as stated above, based on the passing
of the property from Benjamin Dorey to both children equally, John Dorey only
owned an undivided one-half interest in the property which he inherited with his
sister. Thus, T.S. Johnson could only purchase that one-half interest in the 1867
Sheriff’s Deed. The record indicates that, rather than partitioning their interests, T.S.
Johnson and Mary Dorey transacted to separate their interests. This transaction was
done through two deeds (the “Exchange Deeds”) by which T.S. Johnson and his wife
acquired Mary Dorey’s interest in sixty acres and Mary Dorey in exchange received
an interest in forty-nine acres improved with a single-story dwelling, purportedly
located north of the Road. In other words, before the execution of the Exchange
Deeds, Mary Dorey, and Johnson (via John Dorey), owned undivided half-interests
in one hundred acres more or less of the old Dry Boots patent, both north and south
of the Road. Thereafter, Mary owned an undivided interest in the lands north of the
157
See Stip 14.
158
JX 9.
44
Road, and Johnson the lands to the south, including Parcel 46. Mary Dorey’s
interest, conveyed in the exchange to T.S. Johnson, names Isaac Burton as an
adjoiner to the property.159 At this juncture the parties again agree, and I find, that
the deed from Mary Dorey to T.S. Johnson is “sufficiently close” in its description
“to describe land that includes all 63 acres in Parcel 46 on the south side of the
Road.”160 Thus, through the Exchange Deeds, T.S. Johnson acquired Parcel 46. This
finding is further supported by the 1868 assessment showing the “deduct[ion]” of
sixty acres of the land held by Benjamin Dorey’s heirs to T.S. Johnson, as well as
the assessment of fifty acres to Mary Dorey.
In 1871, Mary Dorey’s forty-nine acres were transferred to T.S. Johnson (the
“1871 Sheriff’s Deed”). The parties agree that these forty-nine acres were situated
above the Doe Bridge Mill Road, directly across from Parcel 46.161 Like the
Exchange Deed from Mary Dorey to T.S. Johnson, conveying sixty acres, this deed
also called for Isaac Burton as an adjoiner to the land transferred. Sweetwater argues
that this demonstrates that Isaac Burton (and not T.S. Johnson) by this point must
have owned Parcel 46. If true, this would put Parcel 46 in Sweetwater’s chain. For
reasons detailed below I find this unlikely. I find it more plausible that this reference
159
JX 7–JX 8.
160
Stip 27.
161
Id. at 30.
45
to Isaac Burton as an adjoiner was a mistake, probably a scrivener’s error
perpetuating the reference to Burton as an artifact of the 1867 Exchange Deeds.
Accordingly, I find that as of 1867, and through his death, the owner of what is now
Parcel 46 was T.S. Johnson.
4. T.S. Johnson’s Estate
Sweetwater points out that the description of the property in T.S. Johnson’s
Estate as found in a report of the Orphan’s Court (the “Orphan’s Court Report”),162
refers only to the Doe Bridge Mill Property and lands of Isaac Burton as adjoiners,
thus not providing the fuller description of T.S. Johnson’s property as provided in
the 1867 Exchange Deeds, which the parties agree included Parcel 46. However,
the parties have pointed to no deed out, and I presume Johnson owned the property
at the time of his death. This presumption is bolstered by references in later deeds
out163 and specified deed book references.164 Nonetheless, Sweetwater argues that
162
The Orphan’s Court Report was filed by T.S. Johnson’s executors in a proceeding commenced
by his Estate for the sale of his lands to pay his debts. Respts’ Post-Trial Opening Br. 54.
163
See, e.g., JX 6 (1871 Sheriff’s Deed referencing “the lands of said Mary B. Dorey,” said to
include “all that certain tract or parcel” described in the deed by improvements to the land, and
adjoiners, as well as nearly identical acreage to the 1867 Exchange Deeds (emphasis added)).
164
See JX 4 (1919 deed from Custis Burton to Joseph Iliffe and William E. Matthews describing
the land conveyed by reference to deed recorded in volume 168, page 566, which is the Orphan’s
Court Report describing the lands held by T.S. Johnson at his death (JX 5)); JX 3 (1924 Sheriff’s
Deed to Wingate E. Matthews in execution of a judgment against Joseph Iliffe and Wingate E.
Matthews (likely intended to be William E. Matthews), also referencing the deed at volume 168,
page 566); see also 4 Tiffany Real Prop. § 992 (3d ed.) (“[A] general description in a deed will
usually yield to a specific description in another instrument incorporated in the deed by
reference.”).
46
the Orphan’s Court Report regarding T.S. Johnson’s estate fails to contain a
description of his property compatible with Johnson having owned lands south of
the Road at the time of his death. I note that the Report (which refers to the property
near Doe Bridge Mill as T.S. Johnson’s “Tract # 7”) is, together with its associate
deeds, the only document created after the 1867 Exchange Deeds in the State’s chain
that does not include some sort of reference by which I can presume, from its face,
that the document conveyed land traceable to the specific descriptions in the 1867
Exchange Deeds, including property south of the Road. I find, in any event, that this
Report most likely intended to describe the land covered by both of the 1867
Exchange Deeds, which land T.S. Johnson owned following the 1871 Sheriff’s Deed
from Mary Dorey.
As Sweetwater points out, the descriptions of Tract # 7 in T.S. Johnson’s
estate and deeds therefrom refer only to the Doe Bridge Mill Property and lands of
Isaac Burton as adjoiners, which Sweetwater contends reflects the fact that the land
conveyed lay entirely north of the Road, on the assumptions that (1) Isaac Burton
owned Parcel 46 and (2) the descriptions would otherwise identify additional
adjoiners. However, it is just as plausible that T.S. Johnson owned Parcel 46
(together with land north of the Road adjacent to it) with Isaac Burton as an adjoiner
on what is now Parcel 44 and the Doe Bridge Mill Property to the east. I discuss
this possibility in reference to Sweetwater’s title claim, below. The remaining
47
adjoiner—i.e., to the north of Tract # 7—very well could have been another of T.S.
Johnson’s tracts identified in the Orphan’s Court Report—specifically, “tract no. 5,
containing 300 acres more or less . . . said tract known as the Benjamin Morris
property.”165 T.S. Johnson purchased Benjamin Morris’s land, which land is now
included in the Stockley Property, at an 1871 sheriff’s sale.166 I find that the
Orphan’s Court Report is insufficient to evidence an abandonment of the
descriptions of Johnson’s ownership recited in the Exchange Deeds; in other words,
it is not necessarily incompatible with evidence indicating that Johnson owned
Parcel 46 at his death.
In 1891, the Estate of T.S. Johnson conveyed property to Custis Burton
described as land in Dagsboro Hundred, “adjoining the Doe Bridge Mill property,
lands of Isaac Burton and others, containing one hundred (100) acres more or
less.”167 I have found that the 1867 Sheriff’s Deed conveyed an interest in Parcel 46
to T.S. Johnson,168 and that the Orphan’s Court Report, adding the reference to the
165
JX 20.
166
See Respts’ Post-Trial Reply Br. 14 n.8; Trial Tr. 1857:14–23 (Hooper).
167
JX 5. The description in the 1867 Sheriff’s Deed transferring John Dorey’s interest to T.S.
Johnson does not contain this reference to the Doe Bridge Mill Property or Isaac Burton as
adjoiner; this description seems to have been added by the Orphan’s Court Report.
168
I find that the 1867 Sheriff’s Deed is not void for its lack of description. It is not the case that
the “identity is wholly uncertain,” or that the 1867 Sheriff’s Deed “does not contain a description
sufficient to identify the land intended to be conveyed with reasonable certainty and to locate and
distinguish it from other lands of the same kind” rendering it void. 23 Am. Jur. 2d Deeds § 40
(emphasis added). Given the facts recited above, I find with “reasonable certainty” that the 1867
Sheriff’s Deed intended to convey Parcel 46. See 4 Tiffany Real Prop. § 997 (3d ed.) (providing
“the broad principle that a conveyance will not be declared void for insufficiency in its description
48
Doe Bridge Mill Property and Isaac Burton as adjoiner, did not abandon the prior
description of the properties so as to not include Parcel 46. Therefore, I find it likely
that Johnson died in possession of Parcel 46. In 1891, Custis Burton purchased
property from T.S. Johnson’s Estate which included Parcel 46.169 Custis Burton
conveyed the property to Joseph Illiffe and William Matthews in 1919. 170 In 1924
the property was passed by sheriff’s deed to Wingate Matthews, Fred Lawson, and
Phillip Johnson.171 The property was conveyed by deed in 1927 to Wingate
Matthews, who in turn conveyed it to the State in the 1931 Matthews Deed.172
I now turn to the title claims advanced by Sweetwater.
D. Sweetwater’s Alternative Chain of Title
Sweetwater traces its chain of title back to 1879 to a sale of lands from the
Sheriff of Sussex County to Elizabeth Burton (the “1879 Burton Deed”) which was
not recorded until 1890.173 The 1879 Burton Deed describes the land as a parcel “in
Dagsboro Hundred, Sussex County containing forty acres, more or less, adjoining
lands of the heirs of George W. Hearn, Deceased, Benjamin Morris, Tilghman S.
of the property which it purports to convey, if it is possible by any reasonable rule of construction,
aided by extrinsic evidence, to identify the property intended, [and noting that] it is impossible to
give any general rules by which to determine whether, in the case of any particular conveyance,
the description is sufficiently definite to render the instrument operative.”).
169
JX 1; see JX 5.
170
JX 4.
171
JX 3.
172
See JX 1–JX 2.
173
JX 140, JX 147.
49
Johnson and heirs of James Donohoe,174 Deceased, and others, with a single story
dwelling house, smoke house[,] [illegible] house and stables thereon.”175 It does not
include a metes and bounds description, or calls to any monuments, other than these
adjoiners.176 Sweetwater relies solely on the adjoiners described to locate this
property, as discussed below.177 The lands which were transferred to Elizabeth
Burton by the Sheriff were formerly held by Isaac Burton.178 However, the record
does not establish how Isaac Burton derived his title; in other words, Sweetwater
cannot trace title from Burton Morris—who it concedes held title to what is now
Parcel 46 as of 1829—in to Isaac Burton in 1879; a period of fifty years.179 I examine
174
The spelling of Donohoe, like Dorey, suffers from an added or dropped “e” in various places.
The parties do not contend that the spelling differences are attributable to identity differences.
Thus, my opinion will refer to “Donoho” relying on the parties’ representations.
175
JX 140; JX 147. While Sweetwater presented interesting archaeological evidence suggesting
a dwelling on Parcel 46, this does not conclusively indicate that this is the “dwelling house”
referred to in the deed in to Isaac Burton; while the 1879 Burton Deed mentioned a dwelling, so
did the 1867 Sheriff’s Deed to T.S. Johnson, a deed which called to Isaac Burton as an adjoiner.
That is to say, from these two sheriffs’ deeds, we should assume that Isaac Burton and T.S. Johnson
were neighbors, and each had land with a house on it. We cannot identify the remains of a dwelling
to either definitively.
176
Sweetwater contended that I should find the 1867 Sheriff’s Deed in the State’s chain of title
void for failure of adequate description of the property transferred; I demurred, but I note that had
I agreed I would be likely to make the same conclusion about this 1879 sheriff’s deed (the 1879
Burton Deed).
177
Calls to adjoiners are considered akin to monuments when determining the intent of a
conveyance. See 4 Tiffany Real Property § 993 (3d ed.).
178
JX 140; JX 147.
179
See Stip 30 (“No evidence has been found of any conveyance or other transfer to Isaac Burton
of title to any land south of the Road, either of Parcel 44 or Parcel 46; however, it is not disputed
that in 1867 Isaac Burton owned land on the South side of the Road; only the location of such land
is in dispute.”). In its memoranda following review of the draft version of my decision on record
title, Sweetwater recapitulated its evidence regarding its own strength of title. I have reviewed this
50
the location of lands conveyed by the 1879 Burton Deed, by reference to the therein-
called adjoiners, below.
1. Adjoiner: Benjamin Morris
The parties agree that Benjamin Morris at one time owned land north of the
Doe Bridge Road, comprising what is now known as the Stockley Center and at the
time of the 1931 Matthews Deed was called the Delaware Colony. 180 I note,
however, that Morris’s interest had been sold at a sheriff’s sale, eight years before
the 1879 Burton Deed, to T.S. Johnson.181 In light of that sale, it is not clear to what
property the call to lands of Benjamin Morris, as an adjoiner, referred. But, at any
rate, even assuming the call was an outdated reference to lands north of the Road
that had once belonged to Benjamin Morris, that land would “adjoin” Parcel 46 only
at a single point.182 As Sweetwater concedes, by way of argument on another topic,
the usage “adjoiner” rarely is used to describe properties that are adjacent only at a
single point, rather than sharing a boundary line. In fact, Sweetwater maintains that
argument in light of the record; nonetheless, I remain convinced that the State’s title is superior,
for all the reasons in this Memorandum Opinion.
180
The State recorded the Articles of Dedication as part of its plan to create a Nature Preserve
which would occupy all of what was known as the Stockley Center, which was also known as the
Delaware Colony for the Feeble Minded. Respts’ Post-Trial Opening Br. 26; Stip 23, 35.
181
Respts’ Post-Trial Reply Br. 14 n.8; Trial Tr. 1857:14–23 (Hooper).
182
Petr’s Post-Trial Opening Br. 37.
51
“[p]roperties that touch at a point, rather than share a common boundary line, are not
regarded as contiguous ‘adjoiners.’”183
Sweetwater focuses its efforts to explain the 1879 Burton Deed on the other
calls to adjoiners—particularly the heirs of Hearn and heirs of Donoho, which I
briefly discuss below. Taking all evidence together, including the apparently
erroneous call to Benjamin Morris—which, even if meant to call to his former lands,
would place him as a “single point” adjoiner—I find it unlikely that Isaac Burton’s
lands, conveyed by the 1879 Burton Deed, included Parcel 46.
2. Adjoiner: Heirs of Hearn
An 1880 Orphan’s Court order regarding the Estate of George W.C. Hearn
included a plat showing his land located adjacent, to the south, to both Parcel 44 and
Parcel 46, and occupying what is now Parcel 45.184 Since the lands of the Hearn
heirs adjoin both parcels, this reference is insufficient to support Sweetwater’s title
claim.
3. Adjoiner: Heirs of Donoho
Sweetwater traces title to Parcel 44—which, as reference to the maps attached
as exhibits demonstrate, adjoins Parcel 46 to the west—to a 1905 deed from the heirs
183
Respts’ Post-Trial Opening Br. 49 (citing 1 Am. Jur. 2d Adjoining Landowners § 1; Olmstead
v. Schrembs, 165 N.E. 51, 52 (Ohio Dist. Ct. 1928)).
184
JX 57.
52
of James Donoho.185 James Donoho purchased a parcel with a house in 1851, with
the deed describing the land as adjoining lands of Robert Morris of L., the heirs of
Simon K. Wilson, and others, and containing seven acres.186 Plats recorded with the
Orphan’s Court relating to third-party land ownership, notably relating to Simon K.
Wilson, suggest that this Donoho land was situated within what is now Parcel 44
along its southern boundary, where the land adjoins Mirey Branch,187 but the record
casts doubt on the reliability of those plats to show the entirety of an adjoiner’s lands.
Robert Morris of L., called as an adjoiner in Donoho’s 1851 deed, was Lacey
Morris’s son.188 Evidence shows Lacey Morris had purchased seventy-five acres
from the Estate of Isaiah Morris, adjacent to the seven acres that Captain John and
Nancy Morris purchased from that same sale of Isaiah Morris’s land.189 (By way of
reminder, Lacey Morris also owned Whaples Preserve and Dry Boots, which the
parties stipulate included Parcel 46, among other lands).
185
JX 38.
186
JX 110 at 17; id. Ex. 40. Donoho purchased the land from Wingate and Lovey Morris, who in
turn had purchased it from John West. John West obtained the property from Captain John and
Nancy Morris, who had obtained it from the Estate of Isaiah Morris. Id.187
JX 110 at 17; id. Ex. 45.
188
Respts’ Post-Trial Reply 7–8 (citing JX 110 Ex. 45)
189
JX 110 at 20. Isaiah Morris inherited property from his father Joshua Morris in 1808. Id. at
23. Upon his passing, the property was split and seventy-five acres were sold to Lacey Morris,
with ten acres (including the dwelling located on the property) remaining with Isaiah Morris’s
widow. Id. at 21. Solely based on tax assessments, Sweetwater’s genealogist Debbie Hooper
(“Hooper”) then assumes that those remaining ten acres were purchased by Capt. John Morris. Id.
at 22. The amount of land in fact owned by Capt. John Morris and later transferred through several
owners to Donoho lies between seven and ten acres with inconsistencies in the records. See id. at
20.
53
The deeds in to Lacey Morris and Captain and Mrs. Morris identified those
lands conveyed as a portion of Barnards Bloomery.190 Barnards Bloomery is called
to as an adjoiner in the 1829 Wilson Deed, by which Simon Wilson conveyed forty-
five acres to Burton Morris, which the parties agree comprised most of Parcel 46.191
This boundary line in the 1829 Wilson Deed, Sweetwater notes, closely
approximates the boundary between Parcels 44 and 46, suggesting that Barnards
Bloomery was located on Parcel 44,192 which, by extension, might place James
Donoho’s seven acres on Parcel 44, depending, of course, on the size of Barnards
Bloomery. The research of Sweetwater’s genealogist Debbie Hooper (“Hooper”)
showed that Barnards Bloomery was 158 acres when first patented in 1762;193 but it
is not clear how I am to determine where on the 158 acres of Barnards Bloomery
these parcels were carved out and conveyed.194
190
A bloomery, I learned in this litigation, is a primitive iron smelter.
191
JX 12.
192
Respts’ Post-Trial Reply Br. 8.
193
JX 110 at 22–23 (opining on the history of Barnards Bloomery, and noting that, at a later time,
but prior to 1808, one John Morris apparently sold a portion of Barnards Bloomery to William
Morris; the latter “expanded his portion of Barnards Bloomery to contain approximately 451
acres.”) (emphasis added); see id. Ex. 64; Trial Tr. 1835:15–21 (Hooper).
194
See, e.g., 4 Tiffany Real Prop. § 997 (3d ed.) (“Generally, also, a description in a deed is
sufficient if it provides a key by which the land conveyed may be identified. A case of insufficiency
of description would ordinarily arise whenever the conveyance is in terms merely of a tract, or of
a tract of a certain size lying in a certain region or neighborhood, without anything to indicate its
exact location. And a case of insufficiency of description quite frequently arises by reason of a
conveyance in terms of a part of a tract, without any indication of its position in such tract.”). I
note that Hooper’s report references “[a] copy of a plat showing Barnards Bloomery in relation to
today’s Tax Parcel 44,” but no such exhibit is included. JX 110 at 23.
54
Even if I assume that the Donoho parcel of seven acres lay within Parcel 44,
Sweetwater is unable to show by a preponderance of the evidence the source of the
additional twenty-three acres contained in Parcel 44, which, in Sweetwater’s view,
was at some point in time combined with the seven Donoho acres to comprise the
entirety of Parcel 44. Sweetwater suggests that those twenty-three acres were passed
from heirs who received Lacey Morris’s seventy-five acres (which he had purchased
from the Estate of Isaiah Morris), in the vicinity of Parcel 44, which heirs included
Robert Morris of L. and his children; thereafter, “after their families intermarried,
title to all of Parcel 44 was consolidated in their combined descendants.”195 Under
195
Respts’ Post-Trial Reply Br. 10. Sweetwater presented expert testimony from a genealogist
that set forth this conceptualization in greater detail:
Robert Morris of L., father of Mary Morris Spicer and Benjamin Morris, and others, left
his land to his children Mary and Benjamin. Benjamin Morris owned land on the north side of the
Road, in the southern area of what is now Parcel 8. See Trial Tr. 1769:22–1771:14 (Hooper).
Mary Morris Spicer was taxed on seventy-five acres from Robert Morris of L. in 1860; her father
had died in 1857. JX 110 Ex. 37. Hooper suggested that Mary and her brother each came to own
land south and north of the Road, respectively, by way of amicable partition. See Trial Tr. 1776:6–
9 (Hooper). In the 1872 tax records, Mary was assessed on ninety acres. JX 110 Ex. 38.
Mary died intestate in 1887, and her land apparently passed in equal shares to her four
children. In the absence of evidence of a partition action, Hooper suggested the children had
divided the land amicably, and equally, with each receiving approximately twenty-two and one-
half acres, and that it “makes sense for William [E. Spicer] to have chosen the portion of land
closest to the land holdings of his wife, Elizabeth (Donohoe) Spicer, daughter of James Donohoe.”
JX 110 at 16. This twenty-two and one-half acres, she suggests, was combined with Elizabeth
Donohoe Spicer’s seven acres inherited from her father. She points to a deed conveyed by William
E. Spicer, Elizabeth Donohoe Spicer, and Maranda Donohoe Morris Otwell, described as
containing thirty acres as bolstering this theory. She noted that no other deed out from William E.
Morris of the twenty-two and one-half acres he may have received from his mother’s estate was
found. Id.
Hooper ruled out the possibility that William E. Spicer’s land conveyed to the heirs of
Donoho was the land formerly owned by his father, also William Spicer. When the elder William
Spicer died, he owned 145 acres; his widow, Mary Morris Spicer, waived her dower right to one
55
this theory, Sweetwater purports to demonstrate that Donoho’s heirs acquired all of
Parcel 44. Sweetwater further points to the general warranty deed the Donoho heirs
executed to a successor-in-interest, in which they promised to forever defend title
against third-party claims, as evidence of the strength of the Donohos’ claim to
Parcel 44, not Parcel 46.196 No further evidence supports Sweetwater’s claim that
the Donoho heirs owned all of Parcel 44.197 In a case necessarily full of speculation
from both parties, I find this assertion to be perhaps the least supported by the record.
For its part, the State suggests that the seven acres belonging to the heirs of
Donoho was actually a parcel of land situated on both sides of what is now Route
318—only partially on Parcel 44, with the remainder to the west.198 Under this
theory, Isaac Burton could adjoin the heirs of Donoho while himself owning land in
third of the land, so the land was instead passed to their five children in equal one-fifth shares. JX
110 at 15. William E. Spicer purchased two of his siblings’ shares in the land on October 8, 1877,
leaving him with eighty-seven acres. See JX 110 at 15; JX 110 Ex. 39, Ex. 40. He conveyed that
eighty-seven acres, which Ms. Hooper opined was all or much of Parcel 45, to the south of Mirey
Branch, to Henry Ingram in 1881. See JX 110 Ex. 41. Accordingly, she found it more plausible
that it was land William E. Spicer inherited from his mother that was combined with his wife’s
land to create what is now Parcel 44.
196
JX 91; see Respts’ Post-Trial Reply at 12. However, there is no indication that the general
warranty deed in fact referred to defending the title of Parcel 44, only to defending the Donoho
lands wherever located. In its supplement post-draft opening memorandum, Sweetwater contends
that I misapprehend its argument here; if so, it is out of insufficiency of intelligence, not will.
197
Sweetwater counters the State’s attack on the strength of the evidence provided by Hooper by
providing that Hooper’s analysis of the passing of title to the remaining twenty-three acres in
Parcel 44 is “not critical to [its] defense” explaining that it is the State’s burden “to prove Donoho’s
heirs did not own the 30 acres they conveyed to Frank Lawson in 1905.” Respts’ Post-Trial Reply
Br. 14.
198
See Petr’s Post-Trial Opening Br. 45.
56
Parcel 44, rather than Parcel 46.199 The State explains that without evidence of
Donoho owning more than seven acres, Isaac Burton could own his thirty acres
within Parcel 44 without conflicting with Donoho’s ownership.200 The State further
attacks Sweetwater’s claim by noting that Sweetwater’s contention that the 1879
Burton Deed that conveyed Parcel 46 would necessitate Benjamin Morris being
called an “adjoiner” despite his lands having only a single point of contact with the
granted parcel, which both parties agree not to be common usage.201 However, if
Donoho in fact owned seven acres straddling the road now known as Route 318,
Morris would be a true adjoiner to Isaac Burton, assuming Burton—not Donoho—
owned the majority of Parcel 44. In other words, under this theory, the location of
Donoho’s seven acres would have been to the west of—and remote from—Parcel
46. In that case, the Donoho lands would adjoin those of Isaac Burton only if Burton
owned land in Parcel 44, and not Parcel 46, as Sweetwater contends.
In further support of the State’s theory that Isaac Burton owned land in Parcel
44, it points to Burton’s purchase of additional land in 1864 (via the “sliver deed”),
the location of which (according to the State) makes it more likely that he owned
Parcel 44, rather than 46.202 The State’s theory is that the sliver deed transferred a
199
See id. at 37–40.
200
See id. at 45, 50.
201
Id. at 37.
202
Petr’s Post-Trial Opening Br. 39; JX 100.
57
peculiarly-shaped parcel unlikely to be of value to anyone other than the owner of
Parcel 44 to which it appends, suggesting that the owner of that property was Isaac
Burton.203
I need not accept the arguments of the State to find that Sweetwater’s claim
to record title is not strong. As I trust the discussion above demonstrates, I have
considered the title evidence, both incorporated in deeds and extensive extrinsic
evidence, carefully, and I find that the State’s record title evidence, while not
unimpeachable, is stronger than that of Sweetwater. I find by a preponderance of
the evidence that the State has established record title to Parcel 46 for purposes of
this action.204
IV. EQUITABLE DEFENSES
Despite the fact that title lies in the State, Sweetwater contends that “equitable
defenses” should prevent me from confirming that title. I have grave doubts that
equitable defenses are applicable, generally, to record title. The concepts raised by
Sweetwater are equitably compelling, and will no doubt attach in the next phase of
203
Petr’s Post-Trial Opening Br. 39. The sliver deed I speculate, but need not decide, was a transfer
made desirable by a slight deviation in the route of the Doe Bridge Road.
204
Sweetwater has persuaded me that Isaac Burton likely owned either Parcel 44 or Parcel 46. I
do not find a preponderance of the evidence to support a finding that he owned Parcel 46 rather
than 44, however. And a finding that Burton owned Parcel 44 better harmonizes with the entirety
of the evidence.
58
this litigation, which will involve relief owed Sweetwater. Nonetheless, in the
interests of efficiency, I consider them briefly below.
Unclean hands. Unclean hands is a doctrine by which equity guards its
reputation by refusing to extend equitable relief to one who himself has acted
inequitably in the matter.205 It cannot apply, in my understanding, to defeat record
title to real property, which itself is a legal, not equitable, estate.
Sweetwater argues that application of the doctrine is mandated here,
nonetheless. “Unclean hands should be no less abhorrent to Equity when brought
into Court on the outstretched arms of the State.”206 This is true, and most
felicitously stated. However, what the State has done here has been to fail to assert
its rights until Sweetwater had invested substantial money and effort into developing
Parcel 46. If actionable at law or equity, a remedy for such behavior awaits in the
next phase of this litigation. The conduct of the State, while careless of its rights
and others, is not so inequitable here as to cause me to apply unclean hands to the
issue of title, particularly in light of the fact that the relief granted here is legal, not
equitable.
205
See Nakahara v. NS 1991 Am. Trust, 718 A.2d 518, 522 (Del. Ch. 1998) (“The unclean hands
doctrine is aimed at providing courts of equity with a shield from the potentially entangling
misdeeds of the litigants in any given case. The Court invokes the doctrine when faced with a
litigant whose acts threaten to tarnish the Court's good name. In effect, the Court refuses to
consider requests for equitable relief in circumstances where the litigant's own acts offend the very
sense of equity to which he appeals.”).
206
Respts’ Post-Trial Reply Br. 36.
59
Laches. Stated simply, Sweetwater alleges that the State failed—in a
spectacular fashion—to assert its ownership interest over a period of years, in
reliance on which Sweetwater purchased Parcel 46 and invested in its development.
Laches is an equitable doctrine declining to reward she who sleeps upon her rights;
it operates like an equitable statute of limitations.207 The analogous limitation period
for asserting title is twenty years.208 The State, however, exempted itself from even
that generous stricture, in 1953.209 If laches were available to defeat record title held
by the State, the sovereign’s prerogative here would be meaningless. Any relief for
the delay of the State must be found in the next phase of litigation.
Acquiescence and estoppel. Finally, Sweetwater raises acquiescence and
equitable estoppel as fatal to the State’s assertion of legal title. Those doctrines are
similar but not identical: equitable estoppel focuses on the reasonable reliance of the
207
See Whittington v. Dragon Grp., L.L.C., 991 A.2d 1, 8 (Del. 2009) (“Laches bars an action in
equity if: [t]he plaintiff waited an unreasonable length of time before bringing the suit and . . . the
delay unfairly prejudices the defendant. Therefore, laches generally requires proof of three
elements: first, knowledge by the claimant; second, unreasonable delay in bringing the claim; and
third, resulting prejudice to the defendant. This doctrine is rooted in the maxim that equity aids
the vigilant, not those who slumber on their rights.”) (internal quotations omitted).
208
See supra note 1.
209
See supra note 3.
60
plaintiff,210 acquiescence on the actions of the defendant.211 I will not repeat the
description, provided in the facts section of this Memorandum Opinion, of the
State’s actions and failures to act while aware of the investments by Sweetwater and
its predecessors in title. In light of those acts, Sweetwater’s assertions of
acquiescence and estoppel are by no means trivial; the State acted as if it did not
have title, and Sweetwater’s reliance thereon was reasonable, at least until late in the
process (how late remaining an issue for further litigation). Moreover, the State was
not only aware that Sweetwater was expending resources in development of Parcel
46; the State itself participated in the process. Legal and equitable relief remain to
be determined in the next phase of this action. I have stated above that I doubt either
of these defenses can defeat record title here, but in light of the fact that the scope of
relief awaits the next phase of litigation, I reserve decision on the applicability of
acquiescence and estoppel.
210
See Burge v. Fid. Bond & Mortg. Co., 648 A.2d 414, 420 (Del. 1994) (“The doctrine of
equitable estoppel applies when a party intentionally, or unintentionally, induces another to
detrimentally rely on the party's conduct. For an estoppel claim to prevail, it must be shown that
the party claiming estoppel lacked knowledge or the means of obtaining knowledge of the truth of
the facts in question, relied on the party against whom estoppel is claimed, and suffered a
prejudicial change in position as a result of that reliance.”) (internal citations omitted).
211
See Fotta v. Morgan, 2016 WL 775032, at *8 (Del. Ch. Feb. 29, 2016) (“The Delaware Supreme
Court has established a clear test which states that the doctrine of acquiescence applies where a
claimant has full knowledge of his rights and the material facts and (1) remains inactive for a
considerable time; or (2) freely does what amounts to recognition of the complained of act; or (3)
acts in a manner inconsistent with the subsequent repudiation, which leads the other party to
believe the act has been approved. . . . [A]cquiescence centers on the [d]efendant and its
understanding that complained-of acts were acquiesced in.”) (emphasis in original) (citations
omitted) (internal quotations omitted).
61
V. CONCLUSION
For the foregoing reasons, I find that the State holds record title to Parcel 46.
The Parties should confer and inform me how they intend to proceed in light of this
Memorandum Opinion.
62
Exhibit A
Doe Bridge Road
Mirey Branch
Cow Bridge Branch
Millsboro Mill Pond
62
Exhibit B
Exhibit C
Exhibit D
Exhibit E “Dry Boots”
By Proprietors Warranti
April 10, 1776
Smith Frame
Figure 1. By Will
The State’s Chain of Title 1786
Nathan Frame
By Deedii
April 20, 1802
Lacey Morris
By Will
Simon Kollock Hetty Prettyman ( ½ interest) Burton Morris (½ interest)
By Will By Deediv
April 1, 1824
Simon Wilson Burton Morris
By Wilson Deediii
April 18, 1829
Burton Morris
By Willv
1835
Patience Morris (+ Benjamin H. Dorey)
(½ interest each)
Mary B. Dorey John H. Dorey
By Southern Exchange Deed By 1867 Sheriff’s Deedvi
July 20, 1867 April 24, 1867
T.S. Johnson
By Deedvii
1891
Custis Burton
By Deedviii
1919
Joseph Illiffe, William Matthews
Wingate Matthews, Fred Lawson, Phillip Johnson
By Deedix
1927
Wingate Matthews
By 1931 Matthews Deedx
November 20, 1931
State
By 1879 Burton Deedxi
May 12, 1879
Figure 2. Elizabeth Burton
Sweetwater’s Chain of Title By Deedxii
June 22, 1891
John J. Burton
By Deedxiii
March 28, 1910
John Wesley Harmon
By Deedxiv
February 26, 1917
Abel Ableman
Meyer Ableman
By Deedxv
May 19, 1953
Houston-White, Co.
By Deedxvi
January 10, 1997
J. Reese White, Jr., Virginia T. Frazier, Mary W. McMahon
Estate of Margaret White
By Deedxvii
2005
Sweetwater
i
JX 17, JX 18.
ii
JX 15.
iii
JX 12
iv
JX 13
v
JX 10.
vi
JX 9.
vii
JX 5, JX 20.
viii
JX 4.
ix
JX 2.
x
JX 1.
xi
JX 140.
xii
JX 141.
xiii
JX 142.
xiv
JX 143.
xv
JX 144.
xvi
JX 145.
xvii
JX 146.