081014035; A144733

265 P3d 98

Henry TIEU, Plaintiff-Appellant, v. Carl D. MORGAN and Francine A. Morgan, Defendants-Respondents.

affirmed November 2, 2011

Argued and submitted July 26,

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.*

HADLOCK, J.

David R. Nepom argued the cause and filed the briefs for appellant.

Peter D. Mohr argued the cause for respondents. With him on the brief were Tonkon Torp LLP, and Barbee Lyon.

Multnomah County Circuit Court

*

Hadlock, J., vice Edmonds, S. J.

HADLOCK, J.

The parties dispute ownership of a strip of land that runs parallel to defendants’ driveway. Plaintiff, who owns residential property adjoining that strip of land, filed suit seeking (1) a declaration that he owns the disputed strip and (2) an injunction prohibiting defendants from trespassing on that property. Defendants counterclaimed, asserting that they acquired the disputed strip through adverse possession, and subsequently moved for summary judgment on that counterclaim. The trial court granted defendants’ motion and entered a judgment declaring that defendants had acquired the strip through adverse possession. Plaintiff appeals, and we affirm.

Most of the facts relevant to defendants’ summary judgment motion are undisputed. Where the parties disagree about the facts, we note that dispute and consider the evi­dence in the light most favorable to plaintiff, the nonmoving party. ORCP 47 C; Abell v. Shelton, 224 Or App 259, 263, 197 P3d 579 (2008).

The two parcels subject to this appeal are adjoining residential tax lots in a Portland subdivision. Tax lot 3100 is rectangular, with its north side fronting Southeast Boise Street. Tax lot 3200 is a flag lot that is situated largely south of lot 3100; its driveway (the “flagpole”) runs north from the main portion of the lot (the “flag”) to Southeast Boise Street, parallel to the eastern edge of lot 3100. The disputed three-­foot-wide strip lies between lot 3200’s driveway and lot 3100. Defendants own lot 3200. Plaintiff owns lot 3100 and also is the record owner of the disputed strip.1

A north-south stretch of fence on plaintiff's property runs along the western boundary of the disputed strip, par­allel to defendants’ driveway. The fence starts roughly half­way down the driveway from Southeast Boise Street, run­ning south, then turns 45 degrees to the southwest, cutting off the southeast corner of lot 3100, then makes another 45-degree turn before continuing west, roughly following the east-west boundary between lots 3100 and 3200. The diago­nal portion of the fence that cuts the corner of lot 3100 includes a gate wide enough to accommodate a boat trailer.2 As noted, the disputed three-foot-wide strip lies between defendants’ driveway and the north-south fence on lot 3100; its practical effect is to widen the “flagpole” portion of lot 3200.3

The fencing that separates the two properties has existed for decades. As of 1984, the two lots were owned by Robert Stevens, who installed most of the fencing that year, including about half of the north-south stretch located west of lot 3200’s driveway. In 1994, Robert Stevens sold lot 3200 to his son, James Stevens, believing that the deed he conveyed to James included all property on the east side of a north-­south line defined by that portion of the fence, i.e., the dis­puted strip. Although he never specifically discussed the issue with his father, James also believed that his purchase of the flag lot included the disputed strip along his driveway. James explained that he had “no reason to know—to think [that the fence] would be in the wrong location.”

During the four years that James owned the flag lot, he granted Robert permission to occasionally use James’s driveway and the disputed strip, so that Robert could drive a large vehicle and boat trailer through the diagonal gate into Robert’s back yard. In 1996, James installed a sewer line in the center of the disputed strip, running all the way from Southeast Boise Street to the house on lot 3200. When James later put lot 3200 on the market, he advertised it as having a “fully fenced yard,” based on his belief that his ownership included the disputed strip.

James sold lot 3200 to defendants in 1998. The lot was not surveyed in conjunction with that sale; nor did the parties to the sale discuss the lot’s recorded boundaries, review paperwork or maps, or perform any investigation spe­cifically related to that subject.

Defendants have made use of the disputed strip since they purchased lot 3200. Defendant Francine Morgan runs a daycare business from her home, and parents regu­larly use the disputed strip when dropping off and picking up their children. In 1999, defendants extended the fence par­alleling the strip north by roughly 40 feet, choosing not to extend the fence all the way to Southeast Boise Street after Robert suggested that they leave that area unfenced to accommodate maneuvering large vehicles in and out of their driveways. Defendants have laid gravel and bark dust on the disputed strip a number of times and have maintained the fence by replacing posts and fence boards. While Robert still owned lot 3100, he specifically asked defendants’ permission each time he wanted to use the disputed strip to access or move his boat, and defendants granted that permission.

Plaintiff bought lot 3100 from Robert in early 2006. Before purchasing the property, plaintiff had it surveyed and learned that the north-south fence was not located on the deeded boundary between lots 3100 and 3200. A survey pin marking the recorded boundary was placed at that time. Plaintiff claims that he told defendant Francine Morgan soon after the survey was completed that he planned to move the fence to the deeded property line within two years. According to plaintiff, Francine neither disputed plaintiff's right to move the fence nor claimed ownership of land between the survey marker and the fence. Defendants deny that such a conversation occurred.

In 2008, plaintiff attempted to remove the north-­south portion of the fence. After defendants protested, plain­tiff initiated this action, seeking a declaration that he owned the disputed strip. As noted, defendants asserted in a coun­terclaim that they had acquired the strip through adverse possession. The trial court ultimately granted summary judgment to defendants, ruling that the undisputed facts established that defendants had acquired the disputed strip through adverse possession.

On appeal, plaintiff first argues that the trial court erred in granting defendants’ summary judgment motion because the facts related to “many of the adverse possession elements” were in dispute. As explained below, we disagree. Considering the record in the light most favorable to plaintiff, we conclude that defendants were entitled to summary judg­ment because the record showed that there was no genuine issue as to any material fact and that defendants were enti­tled to prevail as a matter of law.

ORS 105.620 codifies the common-law elements of adverse possession, requiring a claimant to prove by clear and convincing evidence that the claimant or the claimant’s predecessors in interest maintained actual, open, notorious, exclusive, hostile, and continuous possession of the property for ten years.4 In addition to those common-law elements, the statute also requires the claimant to have had an honest belief of actual ownership when he or she entered into pos­session of the property.

Plaintiff makes arguments related to each of the statutory elements, first claiming that defendants did not establish actual, open, notorious, exclusive, or continuous possession of the entire disputed strip. We recently summa­rized what proof is required to satisfy those elements of an adverse-possession claim:

“The element of actual use is satisfied if a claimant established a use of the land that would be made by an owner of the same type of land, taking into account the uses for which the land is suited. To establish a use that is open and notorious, plaintiffs must prove that their possession is of such a character as to afford the owner the means of knowing it, and of the claim. The exclusivity of the use also depends on how a reasonable owner would or would not share the property with others in like circumstances. A use is continuous if it is constant and not intermittent. The required constancy of use, again, is determined by the kind of use that would be expected of such land.”

Stiles v. Godsey, 233 Or App 119, 126, 225 P3d 81 (2009) (internal quotations and citations omitted).

Here, the land in question is a three-foot-wide strip, covered mostly with gravel or bark dust, adjacent to a narrow driveway. Defendants and their predecessor have used the strip as an extension of that driveway since 1994, both to accommodate wide vehicles and to provide additional loading room for defendant Francine Morgan’s daycare clients. That use is consistent with ownership and with the land’s charac­ter. Moreover, that use was “open” and “notorious,” particu­larly when considered together with James’s act of locating his sewer line on the strip and, later, defendants’ mainte­nance of and improvements to the fence. Finally, defendants and their predecessor used the strip continuously from 1994 (when James bought the lot) to at least 2006 (when plaintiff bought lot 3100 from Robert), i.e., for longer than the statu­tory 10-year adverse-possession period. Thus, the undisputed facts establish defendants’ actual, open, notorious, exclusive, and continuous use of the property.

Plaintiffs contrary argument rests on the fact that the disputed strip is not completely separated from his resi­dential lot by a fence; he emphasizes that the fence at issue does not extend all the way to Southeast Boise Street, but starts partway down the driveway. Plaintiff is correct when he suggests that the existence of fencing can be important to an adverse-possession claim. See Norgard et al v. Busher et ux, 220 Or 297, 306, 349 P2d 490 (1960) (describing how a fence can help establish elements of claim). But a fence’s exis­tence can support an adverse-possession claim even if the fence does not completely separate disputed property from other land. Instead, what matters is whether the partial fenc­ing serves to visibly delineate the claimed area by indicating how it is set off from other property. Id. at 306-07; see also Lieberfreund v. Gregory, 206 Or App 484, 493, 136 P3d 1207 (2006) (existence of driveway on disputed strip of property supported the plaintiff's adverse-possession claim even though the driveway did not extend down the entire strip; the driveway’s location was consistent with the use that one would expect if the plaintiff's predecessors had held title to the strip). Here, even though the fence does not extend to the street, it adequately defines the entire disputed strip, indi­cating that it is separate from the land that abuts it to the west.

Plaintiff also contends that defendants’ use of the disputed strip was not “exclusive” because Robert sometimes used the property even after the fence was built. But adverse-­possession claimants are allowed “the freedom to allow oth­ers to occasionally use their property, in the manner that neighbors are wont to do, without thereby abandoning their claim * * *.” Harrell v. Tilley, 201 Or App 464, 477, 119 P3d 251 (2005). In this case, Robert asked permission of defen­dants and their predecessors each time that he used the dis­puted strip; that permissive use was consistent with defen­dants’ ownership of the land and does not defeat their claim to it.

We also reject plaintiff's argument that defendants’ use of the disputed strip was not “hostile” because, he claims, defendants had a conscious doubt regarding the property line. Under ORS 105.620(2)(a), a claimant “maintains ‘hostile possession’ of property if the possession is under claim of right or with color of title.” A “claim of right” may be estab­lished through proof of “an honest but mistaken belief of own­ership, resulting, for example, from a mistake as to the cor­rect location of a boundary.” Stiles, 233 Or App at 127; Hoffman v. Freeman Land and Timber, LLC., 329 Or 554, 561 n 4, 994 P2d 106 (1999). The mistaken belief must be a “pure” mistake, however, and not one based upon “conscious doubt” about the true boundary. Faulconer v. Williams, 327 Or 381, 390-91, 964 P2d 246 (1998). Furthermore, ORS 105.620(l)(b) requires that the claimants (or their predeces­sors) have had an “honest belief” of actual ownership that (1) continued through the vesting period, (2) had an objective basis, and (3) was reasonable under the circumstances.

In Mid-Valley Resources, Inc. v. Engelson, 170 Or App 255, 13 P3d 118 (2000), rev den, 332 Or 137 (2001), we concluded that the defendants had failed to establish pure mistake about the location of a boundary line because one of the defendants had a conscious doubt on that subject. That Mid-Valley defendant had testified that she had not known where the property line was when she was a child, and she still did not know at the time of trial whether a particular fence was located on that boundary. Id. at 261. That defen­dant’s uncertainty about the property line’s location defeated the defendants’ adverse-possession claim.

Here, by contrast, the undisputed evidence clearly establishes that defendants and their predecessor, James, always believed that the fence marked the north-south line between lots 3200 and 3100. James assumed when he bought lot 3200 in 1994 that the fence was on the property line, and he perpetuated that belief in defendants by telling them, when they bought the property, that it was “fully fenced.” Robert, then the record owner of the disputed strip, con­firmed those mistaken beliefs when he did not object to installation of the sewer line, to defendants’ use of the strip, or to defendants’ extension of the fence. No evidence in the record supports plaintiff's assertion that defendants had a “conscious doubt” about whether the fence was actually located on the line separating their property from plaintiff's. Defendants did suggest in their depositions that they had not given much thought to the property line’s location until the dispute arose with plaintiff. Read in context, however, those statements simply confirm defendants’ certainty that the property line was the same as the fence line; the statements do not indicate that defendants had any conscious doubt as to the boundary’s location.

Moreover, no evidence calls into question the reason­ableness of defendants’ belief that they owned the disputed strip. That strip of land is small in relation to the size of lots 3200 and 3100, it regularly has been used as an extension to the width of an existing driveway, it is well suited to that pur­pose, and it is partly fenced off from plaintiff's property. Under the circumstances, defendants’ belief that they owned the disputed strip was reasonable.5

In sum, the undisputed evidence establishes clearly and convincingly that defendants and their predecessor, James, had an “honest belief” that the disputed strip was part of lot 3200 and that they continuously maintained actual, open, notorious, exclusive, and hostile possession of that strip for well over 10 years, from 1994 at least until plaintiff bought lot 3100 in 2006.6 We conclude that defen­dants’ adverse-possession claim to the disputed strip vested in 2004, giving them title and extinguishing any claim that plaintiff might otherwise have had to that land. See Evans v. Hogue, 296 Or 745, 752, 681 P2d 1133 (1984) (“one who has adversely possessed land for the requisite number of years gains ownership rights to the land of a status equal to deeded title”); Pubols v. Jacobsen, 91 Or 256, 261, 177 P 629 (1919) (title secured by adverse possession is “perfect title”).

Plaintiff contends, nonetheless, that the doctrine of equitable estoppel should have precluded entry of summary judgment in defendants’ favor. He claims that, after he had the property surveyed in association with his 2006 purchase, he told defendant Francine Morgan that the fence was not on the property line and also told her that he planned to move the fence in two years. Plaintiff argues that because defen­dants did not expressly assert ownership of the disputed strip at that point, they are now estopped from claiming ownership of the property.

We reject plaintiff's contention that defendants’ silence during encounters that allegedly occurred after defen­dants acquired title to the disputed strip through adverse possession in 2004 could estop them from asserting that own­ership interest. Cf. Fitts v. Case, 243 Or App 543, 552, 267 P3d 160 (2011) (in an adverse-possession case, finding no need to address an argument that the record owner of prop­erty allegedly had granted the adverse-possession claimants permission to farm the disputed land “because, assuming that those meetings did take place, they occurred after [the claimant’s] title by adverse possession already had ripened”); Pfaendler v. Bruce, 195 Or App 561, 569, 98 P3d 1146 (2004) (noting that no Oregon appellate court has held directly that a real-property interest may be established through equita­ble estoppel). Property owners do not suddenly lose their property merely by remaining silent when another person disputes their ownership or makes a claim to the same land. Of course, a case could arise in which one party obtained title to property from its original owner through adverse posses­sion, and title subsequently transferred back to the original owner (or that party’s successor in interest) through opera­tion of adverse possession or another specific equitable doc­trine. But plaintiff made no claim that such a two-step prop­erty transfer occurred in this case, and the summary judgment record would not, in any event, support such a claim.

Affirmed.

1

A not-to-scale diagram of the properties is attached as an Appendix to this opinion; the diagram is a slightly modified version of an exhibit that was attached to the general judgment.

2

According to deeds in the record, the east-west portion of the fence does not exactly follow the east-west property line separating lot 3100 from the “flag” por­tion of lot 3200. That discrepancy is not at issue in this case. In addition, we note that the parties have settled their dispute with respect to the small triangle of property on the east side of the diagonal gate, so the boundaries associated with that triangle also are not at issue on appeal.

3

Lot 3200 also is fenced on its south and east borders, and on the west border of the “flag” portion of the lot. The locations of those fences are not relevant to this appeal. When we discuss “the fence” in this opinion, we generally are referring only to the north-south fence that parallels the west side of defendants’ driveway, sep­arating it and the disputed strip from plaintiff's property.

4

The statute was enacted in 1989 and applies to all adverse-possession claims, like this one, that vested after January 1, 1990. Or Laws 1991, ch 109, § 3; Lieberfreund v. Gregory, 206 Or App 484, 490, 136 P3d 1207 (2006).

5

We disagree with plaintiff's assertion that, because the angled gate “obvi­ous[ly]” did not match the plat map, defendants and James were on notice that the entire fence did not follow the true boundary. The small triangle of property bounded by the gate is not at issue here, and under the circumstances of this case, a dispute about one small piece of oddly shaped property has no implications for the reasonableness of defendants’ belief that they owned the rectangular strip adjacent to their driveway.

6

We reject plaintiff's argument that defendants cannot satisfy the 10-year adverse-possession period by tacking their possession to that of James. An adverse-­possession claimant may tack his possessory interests to those of a predecessor “if there is evidence that the predecessor intended to transfer whatever adverse pos­sessory rights he or she may have acquired.” Fitts v. Case, 243 Or App 543, 549, 267 P3d 160 (2011). Here, James clearly intended his transfer of lot 3200 to defen­dants to include the disputed strip, given his belief that the fence marked the boundary line and his advertisement of lot 3200 as “fully fenced.”

Supreme Court of Rhode Island.

No. 2008-34-Appeal.

Melanie B. CAHILL v. Margaret P. MORROW, Individually and in her capacity as Executrix of the Estate of George R. Morrow.

Jan. 20, 2011.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

James H. Reilly, Esq., for Plaintiff.

Lauren E. Jones, Esq., for Defendant.

OPINION

Justice INDEGLIA,

for the Court.

The defendant, Margaret P. Morrow (defendant or Morrow), appeals from a Washington County Superior Court judg­ment declaring that Melanie B. Cahill (plaintiff or Cahill) perfected title to the defendant’s property by adverse posses­sion. She challenges the trial justice’s de­cision on two grounds. First, that he failed to give sufficient weight to the plain­tiff’s offers to purchase the property, thus indicating that her claim never was ad­verse to the defendant’s ownership inter­est. Second, that the trial justice erred when he found that the plaintiff’s evidence met the standard of clear and convincing proof required for such claims. After careful review of the record and the briefs and hearing the parties’ oral arguments, this Court vacates the judgment of the Superior Court and remands the papers in this case for further proceedings consis­tent with this opinion.

I

Facts and Procedural History1

The property in dispute is located on Gooseberry Road in the Snug Harbor sec­tion of South Kingstown, Rhode Island. Identified as lot 19 on assessor’s plat 88-1, the land is sandwiched between lot 20, currently owned by Cahill, and lot 18, for­merly co-owned by members of the Mor­row family. Morrow is the record owner of the subject property, lot 19.

In 1969, Morrow’s husband, George Morrow, purchased lot 19,2 and the same year George and his brothers jointly pur­chased lot 18. At the time of lot 19’s purchase, it was largely undeveloped, marked only by a preexisting clothesline, grass, and trees. Since that time, the Morrows have not improved or maintained lot 19, but have paid all property taxes assessed to it. As such, instead of vaca­tioning on their lot 19, the Morrows annu­ally spent two weeks in the summer at the cottages on the adjacent lot 18. During these vacations, the Morrow children and their cousins played on lot 19’s grassy area. Around 1985, the Morrows ceased summering on Gooseberry Road,3 but con­tinued to return at least once a year to view the lot. Morrow stopped visiting lot 19 in October 2002, after her husband be­came ill, and she did not return again until July 2006.

In 1971, two years after George Morrow purchased lot 19, Cahill’s mother bought the land and house designated as lot 20 as a summer residence. Between 1971 and 1975, Cahill and her brother did some work on lot 19. They occasionally cut the grass, placed furniture, and planted trees and flowers on it.

Cahill’s mother passed away in 1975, and in 1977, after purchasing her siblings’ shares, Cahill became the sole record own­er of the lot 20 property. Once she be­came lot 20’s owner, Cahill began living in the house year-round. From that time through 1991, she and her boyfriend, James M. Cronin, testified that they con­tinued to mow lot 19’s grass on occasion. In addition, she hung clothing on the clothesline, attached flags to the clothes­line pole, used the picnic table,4 positioned a bird bath and feeder, and planted more flowers and trees. Cahill placed Adiron­dack chairs on lot 19 and eventually re­placed the clothesline and picnic table. In 1987, Cahill held the first annual “cousins’ party” allowing her relatives free rein with respect to her property and lot 19 for playing, sitting, and car parking. She also entertained friends and family on lot 19 during other summer days. Mary Frances McGinn, Cahill’s cousin, likewise recalled that lot 19 was occupied by Cahill kindred during various family functions throughout this time period. Cahill admitted that she never objected to neighborhood children using lot 19, however.

During the period of 1991 through 1997, Cahill testified that she planted more flow­ers and trees, in addition to cutting the grass occasionally. Cahill also stored her gas grill and yard furniture on the lot and had her brother stack lobster pots for decorative purposes. In 1991 or 1992, she began hosting the annual “Cane Berry Blossom Festival,” another outdoor event that used both her lot and lot 19 as the party venue. Like the other gatherings, the festival always took place on a day during a warm-weather month. In 1997 or 1998, she installed a wooden border around the flower beds.

On July 22, 1997, Cahill wrote to George Morrow expressing an interest in obtain­ing title to lot 19. In the 1997 letter, Cahill stated: “I am interested in learning if your narrow strip of property is avail­able for sale. If so, I would be interested in discussing purchasing it from you.” Cahill continued: “If there is a possibility that you would like to sell it, could you please either call me or send me a note?” Cahill did not receive a response.

In the “late 1990s,” though Cahill is unclear whether this occurred before or after the 1997 letter, a nearby marina sought permission to construct and elevate its property. Cahill attended the related zoning board hearings and expressed her concerns about increased flooding on lot 19 due to the marina elevation. She succeed­ed in having the marina developer grade part of lot 19 to alleviate flooding. Addi­tionally, Cahill instituted her own trench and culvert drainage measures to divert water off of lot 19 and then reseeded the graded area. By Cahill’s own admission, however, her trenching and reseeding work occurred in 1999 or 2000.

Subsequent to 2001, the new owners of lot 185 stored their boat on lot 19 and planted their own flowers and small trees on the property. In 2002, when the town (with approval from George Morrow) erected a stone wall and laid a sidewalk on the Gooseberry Road border of lot 19, Cahill loamed and planted grass on that portion of the lot. Also in 2002, Cahill asked Morrow’s two sisters on separate occasions whether George Morrow would be interested in selling lot 19. The Mor­rows gave no response to her 2002 inqui­ries. In 2003, George Morrow passed away.

After making her third inquiry concern­ing the purchase of lot 19 in 2002, Cahill testified, she continued using the property in a fashion similar to her prior practice until December 2005, when she noticed heavy-machinery tire marks and test pits on the land. Thereafter, she retained counsel and authorized her attorney to send a letter on January 10, 2006 to Mor­row indicating her adverse possession claim to a “20-foot strip of land on the northerly boundary” of lot 19.6 According to a survey of the disputed property, how­ever, the width of lot 19 from the northerly boundary (adjacent to Cahill’s property) to lot 18 is 49.97 feet and therefore, more than double what Cahill originally claimed in this letter. Nonetheless, on April 25, 2006, Cahill instituted a civil action re­questing a declaration that based on her “uninterrupted, quiet, peaceful and actual seisin and possession” “for a period great­er than 10 years,” she was the true owner of lot 19 in its entirety. On July 25, 2007, the trial justice agreed that Cahill had proved adverse possession under G.L.1956 § 34-7-1 and vested in her the fee simple title to lot 19.

Judgment was entered for Cahill on Au­gust 1, 2007. Morrow filed a timely notice of appeal on August 17, 2007, primarily contending that the trial justice did not weigh appropriately Cahill’s 1997 offer-to-­purchase letter and also that the evidence presented did not establish adverse pos­session by clear and convincing proof. On December 18, 2009, this Court, sitting as a bench of four justices, was evenly divided and thus affirmed the Superior Court’s judgment. Cahill v. Morrow, 985 A.2d 1016, 1017 (R.I.2009) (mem.). Morrow moved pursuant to Article I, Rule 25(a) of the Supreme Court Rules of Appellate Procedure to reargue her appeal once this Court was joined by a fifth member. Her request was granted on January 15, 2010 and on September 29, 2010, this Court again heard oral argument. As such, we now decide Morrow’s appeal upon its mer­its.

II

Standard of Review

“This Court gives great weight to the factual findings of a trial justice sitting without a jury in a civil matter, and we will not disturb such findings unless they are ‘clearly erroneous or unless the trial justice misconceived or overlooked material evidence or unless the decision fails to do substantial justice between the parties.’” Costa v. Silva, 996 A.2d 607, 611 (R.I.2010) (quoting Harris v. Town of Lin­coln, 668 A.2d 321, 326 (R.I.1995)). If the trial justice’s decision “reasonably indi­cates that [he] exercised [his] independent judgment in passing on the weight of the testimony and the credibility of the wit­nesses it will not be disturbed on appeal unless it is clearly wrong or otherwise incorrect as a matter of law.” Now Couri­er, LLC v. Better Carrier Corp., 965 A.2d 429, 434 (R.I.2009) (quoting Notarantonio v. Notarantonio, 941 A.2d 138, 144-45 (R.I.2008)). Furthermore, it is permissible for the trial justice to “draw inferences from the testimony of witnesses, and such inferences, if reasonable, are entitled on review to the same weight as other factual determinations.” DeSimone Electric, Inc. v. CMG, Inc., 901 A.2d 613, 621 (R.I.2006) (quoting Walton v. Baird, 433 A.2d 963, 964 (R.I.1981)). “However, ‘[i]n contrast to our deferential stance vis-[a]-vis factual findings made by a trial justice, we review in a de novo manner a trial justice’s rul­ings concerning questions of law.’” Costa, 996 A.2d at 611 (quoting Grady v. Narra­gansett Electric Co., 962 A.2d 34, 41 (R.I.­2009)).

Ill

Analysis

A

The History and Policy Rationale of Adverse Possession

Before we begin our analysis, a brief history of adverse possession may be of assistance. After first using an amalgam­ation of Roman and Germanic doctrine, our English predecessors in common law later settled upon statutes of limitation to effect adverse possession. See Axel Teis­en, Contributions of the Comparative Law Bureau, 3 A.B.A. J. 97, 126, 127, 134 (1917). In practice, the statutes eliminat­ed a rightful owner’s ability to regain pos­session after the passing of a certain num­ber of years, thereby vesting de facto title in the adverse possessor. See Restate­ment (Third) Property: Servitudes § 2.17, cmt. b at 263-64 (2000). For example, a 1623 statute of King James I restricted the right of entry to recover possession of land to a period of twenty years. 10 Thompson on Real Property § 87.01 at 74-75 (2d Thomas ed. 1998) (citing An Act for Limi­tation of Actions, and Avoiding of Suit in Law, 1623, 21 Jac. I., c. 16). Essentially, in England, the “[o]riginal policy support­ing the development of adverse possession reflected society’s unwillingness to take away a ‘right’ which an adverse possessor thought he had. Similarly, society felt the loss of an unknown right by the title owner was minimal.” William G. Ackerman & Shane T. Johnson, Comment, Outlaws of the Past: A Western Perspective on Pre­scription and Adverse Possession, 31 Land & Water L.Rev. 79, 83 (1996). As an overarching principle, however, the En­glish adhered to an irrefutable truth that “neither fraud nor might can make a title where there wanteth right.” J & M Land Co. v. First Union National Bank, 166 N.J. 493, 766 A.2d 1110, 1114 (2001) (quot­ing Altham’s Case, 8 Coke Rep. 150b, 153b, 77 Eng. Rep. 701, 707 (1610)).

In the United States, although the 1623 statute of King James I “came some years after the settling of Jamestown (the usual date fixed as the crystalizing of the com­mon law in America), its fiat is generally accepted as [our] common law. Hence ‘adverse possession’ for 20 years under the common law in this country passes title to the adverse possessor with certain stated qualifications.” 10 Thompson on Real Property § 87.01 at 75. Today, all fifty states have some statutory form of adverse possession, typically requiring proof that “possession was actual, hostile, open and notorious, exclusive, and continuous for the period of the statute of limitations. Color of title and payment of taxes can also be elements in some cases.” Jeffrey Evans Stake, The Uneasy Case for Adverse Pos­session, 89 Geo. L.J. 2419, 2423 (2001); see Ackerman, 31 Land & Water L.Rev. at 84 n. 42, 111 (collecting adverse possession statutes for the fifty states).

Given the doctrine’s widespread codifica­tion in this country, adverse possession is certainly “part of our adoptive conscious­ness.” Ackerman, 31 Land & Water L.Rev. at 84. Courts and commentators generally ascribe to “four traditional justifications or clusters of justifications which support transferring the entitlement to the [ad­verse possessor] after the statute of limita­tions runs: the problem of lost evidence, the desirability of quieting titles, the inter­est in discouraging sleeping owners, and the reliance interests of [adverse posses­sors] and interested third persons.” Thomas W. Merrill, Property Rules, Lia­bility Rules, and Adverse Possession, 79 Nw. U.L.Rev. 1122, 1133 (1984); see also Finley v. Yuba County Water District, 99 Cal.App.3d 691, 160 Cal.Rptr. 423, 427 (1979) (summarizing the rationales sup­porting adverse possession). Effectively, our society has made a policy determina­tion that “all things should be used accord­ing to their nature and purpose” and when an individual uses and preserves property “for a certain length of time, [he] has done a work beneficial to the community.” Teisen, 3 A.B.A. J. at 127. For his efforts, “his reward is the conferring upon him of the title to the thing used.” Id. Esteemed jurist Oliver Wendell Holmes, Jr. went a step further than Teisen, basing our soci­ety’s tolerance of adverse possession on the ideal that “[a] thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it.” O Centro Espirita Benefi­ciente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1016 (10th Cir.2004) (quoting Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L.Rev. 457, 477 (1897)).

Regardless of how deeply the doctrine is engrained in our history, however, courts have questioned “whether the concept of adverse possession is as viable as it once was, or whether the concept always squares with modern ideals in a sophisti­cated, congested, peaceful society.” Fin­ley, 160 Cal.Rptr. at 427. Commentators have also opined that, along with the artic­ulated benefits of adverse possession, nu­merous disadvantages exist including the “infringement of a landowner’s rights, a decrease in value of the servient estate, and the encouraged exploitation and devel­opment of land. In addition, they repre­sent the generation of animosity between neighbors, a source of damages to land or loss of land ownership, and the creation of uncertainty for the landowner.” Ackerman, 31 Land & Water L.Rev. at 92; see also Stake, 89 Geo. L.J. at 2432, 2433 (listing also “diminish[ing] utility by dis­couraging owners from letting others use them land,” wasting the rightful owner’s time and resources to monitor his land, and “creat[ing] an opportunity to steal land” as other costs associated with ad­verse possession). In reality, “[a]dverse possession ‘[i]s nothing more than a person taking someone else’s private property for his own private use.’ It is hard to imagine a notion more in contravention of the ide­als set forth in the U.S. Constitution pro­tecting life, liberty and property.” Ackerman, 31 Land & Water L.Rev. at 94-95 (quoting 2 C.J.S. Adverse Possession § 2 (1972)).

Although this Court duly recognizes its role as the judicial arm of government tasked with applying the law, rather than making law, it is not without an eyebrow raised at the ancient roots and arcane rationale of adverse possession that we apply the doctrine to this modern property dispute.

B

The Trial Justice’s Application of Rhode Island’s Adverse-­Possession Precedent

In Rhode Island, obtaining title by adverse possession requires actual, open, notorious, hostile, continuous, and exclusive use of property under a claim of right for at least a period of ten years. Corrigan v. Nanian, 950 A.2d 1179, 1179 (R.I.2008) (mem.); see also § 34-7-1. “The party who asserts that adverse pos­session has occurred must establish the required elements by strict proof, that is, proof by clear and convincing evidence.”7 Corrigan, 950 A.2d at 1179 (citing Tavares v. Beck, 814 A.2d 346, 350 (R.I.2003)); see also Camevale v. Dupee, 853 A.2d 1197, 1199 (R.I.2004).

Here, the trial justice recited the proper standard of proof for adverse possession and then found that Cahill had

“met her burden of establishing all of the elements of an adverse possession claim to lot 19 by her and her mother’s continuous and uninterrupted use of the parcel for well in excess of ten years. She maintained the property, planted and improved the property with shrubs, trees, and other plantings, sought drain­age control measures, and used the property as if it were her own since 1971. She established that use not only by her own testimony, but as corrobo­rated by other witnesses, photographs, and expert testimony relative to the in­terpretation of aerial photographs.”

At trial, as here on appeal, Morrow ar­gued that Cahill’s offers to purchase the property invalidated her claim of right and the element of hostile possession. To dis­pose of that issue, the trial justice deter­mined that “even assuming that [Cahill’s] inquiry is circumstantial evidence of her knowledge that George Morrow, and sub­sequently Margaret [Morrow], were the legal title holders of [lot] 19, that does not destroy the viability of this adverse posses­sion claim.” The trial justice relied upon our opinion in Tavares, 814 A.2d at 350, to support his conclusion. Recalling that this Court stated in Tavares that “even when the claimants know they are nothing more than black-hearted trespassers, they can still adversely possess the property in question under a claim [of] right to do so if they use it openly, notoriously, and in a manner that is adverse to the true owner’s rights for the requisite ten-year period,” the trial justice found that Cahill’s outward acknowledgement of Morrow’s record title did not alone “negate her claim of right.” He further found that “even if somehow the expression of interest in purchasing lot 19, made initially in 1997, stopped the run­ning of the ten[-]year period under * * * § 34-7-1, the evidence was overwhelming that [Cahill] and her predecessor in title had commenced the requisite ten-year pe­riod beginning in 1971.”

C

Issues on Appeal

On appeal, Morrow challenges the trial justice’s legal conclusion that Cahill’s of­fers to purchase lot 19 did not extinguish her claim of right, hostile possession, and ultimately, the vesting of her title by ad­verse possession. Morrow also contends that the trial justice erred in finding that Cahill’s testimonial and demonstrative evi­dence was sufficient to prove adverse pos­session under the clear and convincing burden of proof standard. We agree that as a matter of law the trial justice failed to consider the impact of Cahill’s offers to purchase on the prior twenty-six years of her lot 19 use. As a result, we hold that this failure also affects his factual determi­nations.

l

1997 Offer-to-Purchase Letter

In Tavares, this Court explained that “requir[ing] adverse possession under a claim of right is the same as requiring hostility, in that both terms simply indicate that the claimant is holding the property with an intent that is adverse to the inter­ests of the true owner.” Tavares, 814 A.2d at 351 (quoting 16 Powell on Real Property, § 91.05[1] at 91-28 (2000)). “Thus, [we said] a claim of right may be proven through evidence of open, visible acts or declarations, accompanied by use of the property in an objectively observable manner that is inconsistent with the rights of the record owner.” Id. (citing Picerne v. Sylvestre, 122 R.I. 85, 91-92, 404 A.2d 476, 479-80 (1979)). Here, the first issue on appeal is how an offer to purchase has an impact on these elements.

To assert her position that Cahill’s 1997 offer to purchase lot 19 negates Cahill’s claim of right by failing to deny the own­er’s title, Morrow argues that this Court should adhere to our precedent in Picerne and decline to credit the “dicta” in Tavares that the trial justice relied upon. Oppor­tunely, however, the instant case permits this Court to affirm both precedents while clarifying a salient point of law regarding the effect offers to purchase have on the adverse possession elements of hostility and claim of right.

In Picerne, 122 R.I. at 91-92, 404 A.2d at 479-80, we focused on the narrow issue of whether a taxpayer who lost a home in a tax sale could prove hostile use for pur­poses of adverse possession. This Court considered whether the taxpayer’s affirma­tive and open acts, such as painting the exterior, installing a new door and win­dows, and replacing the front stairs put the tax-sale purchaser on sufficient notice that there was a “hostile air.” Id. at 92, 404 A.2d at 480. We explained that the “[h]ostility of possession necessary to es­tablish adverse possession implies the de­nial of the owner’s title; and possession, however open and long it may be, is not adverse without the denial of the owner’s title.” Id. This Court held that the indi­viduals in possession of the house failed to deny the tax-sale owner’s title for at least three years of the ten-year period because their possession was permissive. Id. We likewise ruled that the claim had failed because the taxpayer’s adverse actions did not meet the requisite ten-year period. Id. Without the requisite ten years of de­nying the owner’s title and ten years of possessing adversely to the owner’s title, the Picerne claimants could not establish adverse possession.

Analogously here, Cahill did not deny Morrow’s title when she sent her 1997 letter to George Morrow. Rather, she was outwardly declaring to the rightful owner himself the viability of his title and fully acknowledging her subservient interest to that owner’s title. This manifestation from Cahill interrupted the accrual of her claim. See Heggen v. Marentette, 144 N.W.2d 218, 242 (N.D.1966) (“[T]he recog­nition of the owner’s title by an adverse claimant interrupts the adverse posses­sion.”); Smith v. Vermont Marble Co., 99 Vt. 384, 133 A. 355, 358 (1926) (“Nothing can more effectively interrupt the running of the [adverse possession] statute than an express acknowledgment of the true own­er’s title. * * * This recognition of anoth­er’s title may be by acts, as well as words. So when one who was wrongfully [using another’s land] * * * yields to the latter’s demands * * * and offer[s] to buy the right, his adverse use is interrupted, and his claim of prescriptive right fails.”); see also Bowen v. Serksnas, 121 Conn.App. 503, 997 A.2d 573, 579 (2010) (“[T]he pos­session of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other. * * * Such an acknowledgment of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew.”) (quot­ing Allen v. Johnson, 79 Conn.App. 740, 831 A.2d 282, 286 (2003)); 3 Am.Jur.2d Adverse Possession § 104 at 171-72 (2002) (“Although efforts to obtain deeds from other claimants to the property do not disprove the hostile character of a posses­sion, efforts to buy the property from the record owner constitute an acknowledg­ment of the record owner’s superior title, and thus disprove the adverse holding, be­cause there has been no claim of right.”). Accordingly, applying Picerne to the in­stant facts, we hold that Cahill failed to deny George Morrow’s title by her 1997 letter, thereby halting her adverse-posses­sion claim at that time. See Picerne, 122 R.I. at 92, 404 A.2d at 480.

Likewise, in Tavares, 814 A.2d at 351, with regard to “establishing hostility and possession under a claim of right,” we explained that “the pertinent inquiry cen­ters on the claimants’ objective manifesta­tions of adverse use rather than on the claimants’ knowledge that they lacked colorable legal title.” (Emphases added.) Essentially, Tavares turned on the differ­ence between the adverse possession claimant’s “knowledge” regarding the own­er’s title and his “objective manifestations” thereof. In that case, the adverse-posses­sion claimant surveyed his land and discov­ered “that he did not hold title to the parcels in question.” Id. at 350. After such enlightenment, however, the claimant objectively manifested his claim of owner­ship to the parcels by “posting no-trespass signs, constructing stone walls, improving drainage, and wood cutting.” Id. at 352. This Court explained that simply having knowledge that he was not the title owner of the parcels was not enough to destroy his claim of right given his objective, ad­verse manifestations otherwise. Id. at 351-52. In fact, we went so far as to state that “even when claimants know that they are nothing more than black-hearted tres­passers, they can still adversely possess the property in question under a claim of right to do so if they use it openly, notori­ously, and in a manner that is adverse to the true owner’s rights for the requisite ten-year period.” Tavares, 814 A.2d at 351. This statement is legally correct con­sidering that adverse possession does not require the claimant to make “a good faith mistake that he or she had legal title to the land.” 16 Powell on Real Property § 91.05[2] at 91-23; see 5 Restatement of the Law Property: Servitudes § 458, cmt. d at 2927 (1944) (“[I]t is not necessary in order that a use be adverse that it be made either in the belief or under a claim that it is legally justified.”). However, to the extent that Tavares's reference to “black-hearted trespassers” suggests that this Court endorses an invade-and-conquer mentality in modern property law, we duti­fully excise that sentiment from our juris­prudence.

In the case before this Court, Cahill went beyond mere knowledge that she was not the record owner by sending the offer-­to-purchase letter. As distinguished from the Tavares claimant who did not commu­nicate his survey findings with anyone, Cahill’s letter objectively declared the su­periority of George Morrow’s title to the record owner himself. See Tavares, 814 A.2d at 352; see also Eddy v. Clayton, 44 So.2d 395, 397 (Miss.1950) (“Moreover, the request of appellant to purchase the land, which was later repeated, is a pointed an­swer to any contention of an adverse claim, since it was an acknowledgment of a supe­rior title and claim of [the record own­er].”); Chambers v. Bessent, 17 N.M. 487, 134 P. 237, 240 (1913) (“It may safely be assumed as a general proposition that, if a defendant in possession of disputed terri­tory concede[s] that the true title is in another, and offer to purchase from him, then the continuity of adverse possession is broken.”) (quoting Headerick v. Fritts, 93 Tenn. 270, 24 S.W. 11, 12 (1893)); Shanks v. Collins, 782 P.2d 1352, 1355 (Okla.1989) (“A recognition by an adverse possessor that legal title lies in another serves to break the essential element of continuity of possession.”).

In the face of this precedent, Cahill con­tends that the trial justice accurately ap­plied the law by finding that an offer to purchase does not automatically negate a claim of right in the property. While we agree that this proposition is correct with respect to offers made in an effort to make peace in an ongoing dispute, we disagree that this proposition applies in situations, as here, where no preexisting ownership dispute is evident. For example, the trial justice and Cahill both cited Richterberg v. Wittich Memorial Church, 222 F.Supp. 324, 328 (W.D.Okla.1963), to support their view that an offer to purchase should not defeat an otherwise valid claim of adverse possession. However, Richterberg dealt with an already disputed claim and offer to compromise. Id. (concluding that “[a]n of­fer of settlement or compromise made with reference to a pending suit is not admissi­ble in evidence” and that “[b]argaining for an outstanding claim or title does not con­stitute a recognition of the superiority of such claim or title”). Here, there was no dispute ongoing when Cahill sent the 1997 letter. Her offer was not an olive branch meant to put an end to pending litigation with the Morrows. Rather, it was a clear declaration that Cahill “wanted title to the property” from the record owner. By do­ing so, she necessarily acknowledged that her interest in lot 19 was subservient to George Morrow’s. Likewise, the trial jus­tice’s and Cahill’s citations to Manning v. Gregoire, 97 Or. 394, 191 P. 657, 658 (1920), are equally inapposite because again, unlike Cahill’s letter, the adverse possessor’s offer-to-purchase letter in Manning was an attempt “to buy his peace.” See also Sanderson v. McManus, 252 S.W.2d 351, 356 (Mo.1952) (“The fact that defendants attempted to purchase a strip 3 feet wide from plaintiffs * * * might have been persuasive evidence against the claim of adverse possession in some circumstances, but is not conclusive here * * *. If this were an effort to settle and adjust the controversy * * * an issue of fact was presented.”). Cahill also incor­rectly proffers the holding of Branch v. Hinson, 183 So.2d 655, 659-60 (La.Ct.App.­1966), as supporting her position. In Branch, after a survey was conducted on the property, “a dispute arose between the adjoining owners as to precisely where the [property] line lay.” Id. at 659. Although “on several occasions [the claimant] at­tempted to purchase the strip in contro­versy as a means of settling all doubt as to where the correct dividing line lay[,]” the court held that these “offers to purchase did not constitute recognition of [the rec­ord owner’s] title * * *, but were merely attempts to compromise a disagreement without acknowledging or recognizing [the record owner’s] title to the land in dis­pute.” Id. at 660. Again, Cahill’s situa­tion is distinguishable from the parties’ plight in Branch because there was no preexisting, ongoing dispute between Cahill and Morrow when Cahill sent the let­ter. Based on this caselaw, Cahill’s 1997 offer for purchase does, in fact, recognize the superior title of the record owner and arrests the accrual of her claim.8

The only case Cahill cites that marginal­ly supports her stance on offers to pur­chase is a pre-1900, Nebraska decision, Oldig v. Fisk, 53 Neb. 156, 73 N.W. 661 (1897). During the statutory period for adverse possession, the predecessor of the Oldig claimant “obtained a tax deed to the land” and then attempted to augment his tax-sale interest by purchasing the true, patent deed from the previous owner. Id. at 662. Faced with “the question whether an attempt by one in the adverse posses­sion of land, and before the statutory peri­od has expired, to purchase from the true owner, operates to devest [sic ] his posses­sion of its adverse character[,]” the Oldig Court answered that such an offer did not affect the adverse nature of the claim even though there was no ongoing dispute. Id. The court held that there was “no room to distinguish in this behalf between litigation threatened by word of mouth and litigation threatened by the fact that the title is outstanding,—a constant menace from the very fact of its existence.” Id. at 663. Although we acknowledge that this deci­sion is viable law, we disagree with its holding and note that it was decided more than 100 years ago in a state where land was expansive and recording deeds lacked efficiency. Further supporting our opinion is Oldig’s dissent, which concluded that based on the tax purchaser’s “conduct in attempting to purchase the real estate from [the patent deed holder] that from that time forth he did not claim title to the real estate as against [the patent deed holder], nor hold possession nor occupy the same adversely to him.” Id. at 664 (Ragan, J., dissenting).

As such, Cahill’s cited authorities do not convince this Court that an offer to pur­chase does not destroy the elements of hostility and claim of right when there is no ongoing dispute or outstanding claim. Here, the 1997 letter was not an attempt to make peace with her neighbors as a way to avoid litigation. Rather, Cahill was openly and objectively manifesting direct evidence that George Morrow was the true owner of lot 19 and her interest in the property was subservient to his. This communication negates the requisite claim of right that the doctrine of adverse pos­session requires and interrupts the accrual of Cahill’s claim. See Heggen, 144 N.W.2d at 242 (“[T]he recognition of the owner’s title by an adverse claimant interrupts the adverse possession.”); see also Bowen, 997 A.2d at 579 (“‘Such an acknowledgment of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew.’”). This Court holds as a matter of law that Cahill’s 1997 letter to George Morrow was an unequivocal offer to purchase that halt­ed her claim of adverse possession at that point.

Accordingly, the trial justice erred by considering any incidents of ownership ex­hibited by Cahill after the 1997 letter to George Morrow interrupted her claim. Because the “drainage control measures” were instituted in 1999 or 2000 (by Cahill’s own admission), the trial justice should not have cited these acts as supporting Cahill’s adverse-possession case. Likewise, if the trial justice’s reference to Cahill’s “maint[enance of] the property” or “im­prove[ment of] the property with * * * other plantings” implicitly considered her reloaming and reseeding after the town installed the retaining wall and sidewalk in 2002 or her reseeding after the drainage improvements in 1999 or 2000, this reli­ance also was in error.

2

The Impact of Cahill’s Offer to Purchase on her Pre-1997 Adverse-Possession Claim

Furthermore, we also conclude that the trial justice should not have as­sumed that even if Cahill’s “inquiry is cir­cumstantial evidence of her knowledge that George Morrow, and subsequently [Morrow], were the legal title holders of [lot] 19, that does not destroy the viability of this adverse possession claim.” We agree that an offer to purchase does not automatically invalidate a claim already vested by statute, but we nonetheless hold that the objective manifestations that an­other has superior title, made after the statutory period and not made to settle an ongoing dispute, are poignantly relevant to the ultimate determination of claim of right and hostile possession during the statutory period. See Harp v. Christian, 215 Ark. 833, 223 S.W.2d 778, 779 (1949) (“It is true that an offer to purchase will not divest a title that has already become vested in the adverse claimant, but such testimony may be considered in determin­ing the character of the possession during the statutory period.”); Okuna v. Nakahu­na, 60 Haw. 650, 594 P.2d 128, 132 n. 5 (1979) (“[A]ppellant’s conduct subsequent to the expiration of the statutory period of limitations, while not enough to defeat title already acquired by adverse possession, is evidence to be considered in determining whether the prior possession of appellant was in fact hostile.”); see also First Na­tional Bank of Marshall v. Beavers, 602 S.W.2d 327, 330 (Tex.Civ.App.1980) (“[W]here a possessor acknowledges an­other’s superior title * * * after the limi­tation period has been completed, such acknowledgment does not automatically destroy the title thus obtained, but it is admissible in evidence as tending to show that possession was not in fact adverse.”).

Cahill’s 1997 offer-to-purchase letter and the two 2002 purchase inquiries (though occurring after a time period statutorily sufficient to convey title by adverse pos­session) still are relevant as to whether the twenty-six years of possession prior to 1997 were made under a claim of right. How the offer and inquiries affect the na­ture and character of Cahill’s pre-1997 possession necessarily are questions for the fact-finder to evaluate and are not resolvable by this Court. See Lowe v. Cox, 210 Ark. 169, 194 S.W.2d 892, 896 (1946) (holding that “the weight to be given to such recognition [in an offer to purchase] would be a question for the jury, and the court could not declare as a matter of law that the mere fact that defendant had rec­ognized the title of the [plaintiff] entitled plaintiff to a judgment for possession”) (quoting Shirey v. Whitlow, 80 Ark. 444, 97 S.W. 444, 445 (1906)); Gonthier v. Horne, 576 A.2d 745, 748 (Me.1990) (stating that deed requests made after the statutory period “rationally could be considered in­dicative of the nature of [the claimant’s] prior holding during the 20-year [statuto­ry] period [that] * * * [t]he Superior Court acting as the trier of fact was free to determine, as clearly it did, that this evi­dence indicated that [the claimant] did not possess the parcel under a claim of right during the crucial 20-year period”).

3

Questions of Fact Remain

Despite the significant deference afforded to the trial justice’s findings of fact, such findings are not unassailable. Here, we find clear error in the trial jus­tice’s conclusion that “even if somehow the expression of interest in purchasing [lot] 19, made initially in 1997, stopped the run­ning of the ten[-]year period * * * the evidence was overwhelming that [Cahill] and her predecessor in title had com­menced the requisite ten-year period be­ginning in 1971.” Given our opinion that some of Cahill’s lot 19 activities cannot be considered because of the time frame of their occurrence, we disagree that the trial record can be classified as presenting “overwhelming” evidence of adverse pos­session.

Specifically, this Court holds that the drainage improvements and lawn reseedings that occurred after the 1997 offer-to-­purchase letter cannot be used as evidence of Cahill’s adverse possession. Whether the evidence remaining in the record is sufficient to constitute clear and convinc­ing proof that Cahill perfected her claim prior to 1997 remains a question of fact. On remand, the trial justice is directed to limit his consideration to pre-1997 events and make specific determinations whether Cahill’s intermittent flower and tree plant­ing, flag flying, clothesline replacing, lawn chair and beach-paraphernalia storing, and annual party hosting are adequate. Fur­thermore, given our ruling today, the trial court must evaluate the nature of Cahill’s and her predecessor’s twenty-six-year acts of possession in the harsh light of the fact that Cahill openly manifested the existence of George Morrow’s superior title on three occasions. Lastly, this Court instructs the trial court to determine the impact of Cahill’s initial demand, made in the letter of January 10, 2006, from her counsel to Mor­row, on the claim of right and hostility elements. Cahill’s 2006 letter staked a claim only to “a 20-foot strip,” less than half the area of lot 19, while the later-filed 2006 complaint declared Cahill’s right to the entire parcel. How Cahill’s change of heart colors the adverse nature of her possession is a question that must be ad­dressed by the finder of fact.

IV

Conclusion

For the foregoing reasons, we vacate the judgment and remand this case to the Superior Court with instructions to reeval­uate the record prior to the 1997 offer-to-­purchase letter. On remand, the Superior Court shall permit the parties to supple­ment the existing record by offering any additional testimony or other evidence that may assist the fact-finder in resolving the issues presented. The Superior Court then shall issue an amended decision and judgment that is not inconsistent with this opinion.

1

This matter was heard as a bench trial in the Washington County Superior Court on February 23, 26, 27, 2007 and May 31, 2007.

2

Morrow became the successor in interest and legal title holder of lot 19 after George passed away in 2003.

3

In 1991, George Morrow and his joint-own­er brothers sold lot 18.

4

The record was unclear as to who first placed a picnic table on lot 19, but Cahill testified that there was a table on the lot from at least 1981.

5

In approximately 2001, new owners pur­chased lot 18 from the Morrow brothers’ suc­cessor.

6

Before resting her case, Morrow sought to introduce portions of Cahill’s September 14, 2006 deposition to rebut Cahill’s trial testimo­ny. Cahill objected to the piecemeal intro­duction of evidence to Morrow's case-in-chief and instead requested that the trial justice admit the entire deposition based on Rule 32(a)(4) of the Superior Court Rules of Civil Procedure. The trial justice agreed with Cahill, and the entire deposition was entered as plaintiff’s full exhibit. Although the letter of January 10, 2006 from Cahill’s attorney to Morrow was not presented at trial, Cahill did testify at her deposition to the existence and content of this letter.

7

"Clear and convincing evidence is defined in a variety of ways; for example, to estab­lish a fact or an element by clear and con­vincing evidence a party must persuade the jury that the proposition is highly probable, or must produce in the mind of the factfinder a firm belief or conviction that the allegations in question are true. The clear and convincing evidence standard does not require that the evidence negate all reason­able doubt or that the evidence must be uncontroverted.” 29 Am.Jur.2d Evidence § 173 at 188-89 (2008).

8

Without specific explanation as to the appli­cability to the facts of this case, Cahill also cites several cases from the late 1800s and early 1900s for support. Again, we are of the opinion that each case is distinguishable from the instant matter because, unlike here, there was a dispute ongoing when the claimants inquired about purchasing the land in ques­tion. See Montgomery & Mullen Lumber Co. v. Quimby, 164 Cal. 250, 128 P. 402, 404 (1912) ("[T]he plaintiff merely offered to buy in the defendant's claim in order to clear its title, and that this was after its possession had continued for more than five years.”); Warren v. Bowdran, 156 Mass. 280, 31 N.E. 300, 301-­02 (1892) ("[That] he was willing to pay something for the land to avoid litigation * * * and he made an offer for the land, that fact would not conclusively show that he had not [obtained] a title upon which he could stand in this action * * *."); Greene v. Couse, 127 N.Y. 386, 28 N.E. 15, 16 (1891) (Because the rightful owner brought an ejectment ac­tion against the claimant’s predecessor who was "at liberty to fortify his title or purchase peace at any price and of whomsoever he chose” the claimant did not forfeit his ad­verse-possession claim though the prior con­tract for purchase was attempted.); Clithero v. Fenner, 122 Wis. 356, 99 N.W. 1027, 1029 (1904) ("Negotiations to purchase the strip from [the record owner], to settle the dispute, do not in themselves absolutely establish a relinquishment of the claim of the rights ac­quired by adverse possession.”).

Justice FLAHERTY,

dissenting.

I respectfully dissent from the holding of the majority in this case. Before set­ting forth my reasons for doing so, howev­er, I take this opportunity to express my approval of the Court’s scholarly opinion with respect to the origin and philosophy underpinning the doctrine of adverse pos­session. In summary, I agree with the majority’s observations about the efficacy of adverse possession in a modern world. The doctrine is a legal anachronism remi­niscent of a time when landowners lived on or near their land and thus could observe encroachments on their property. Also, it is certainly worth noting that during the period when the adverse-possession doc­trine developed, our society believed that it was in the public interest that land be used productively rather than being allowed to lie fallow. Neither of those situations is the case at present in our more mobile society. However, adverse possession re­mains the law in this state until the Legis­lature sees fit to change it.

A

The 1997 Letter

Simply put, I do not agree that the correspondence between plaintiff and de­fendant in which plaintiff offers to pur­chase defendant’s interest in lot 19 is the smoking gun the majority perceives it to be. As is clear from a fair reading of plaintiff's testimony, she believed that she owned the property as a result of her longtime use of and dominion over it. But her testimony also demonstrates that she drew a crisp distinction between whatever ownership rights she may have acquired and record title, which she recognized con­tinued to reside in the Morrows. In my opinion, the trial justice correctly found that the “fact that the plaintiff beginning in 1997 inquired as to the Morrow’s will­ingness to consider a sale of the lot to her may certainly show that she was aware of the Morrow’s record title. That alone, however, does not negate her claim of right.” In Tavares v. Beck, 814 A.2d 346, 351 (R.I.2003), we held that the trial jus­tice improperly factored a party’s subjec­tive knowledge into a claim-of-right analy­sis. In that case, we clarified that “a claim of right to own or use property does not arise from the claimants’ mistaken belief that they hold title to the land, but rather from their objective acts of ownership evi­dencing an intent to use and possess the premises in a manner adverse to the own­er of record.” Id. at 351-52. Further, we held that “[t]his remains true even in a situation in which the claimants know that they do not hold record title to the proper­ty in question * * *.” Id. at 352. Such is the case here. Therefore, the 1997 letter was not a “silver bullet,” but simply anoth­er piece of evidence that should have been, and properly was, considered by the trial justice.

Even if that letter were as significant as the majority contends, there is no doubt that it was sent after the statutory period had run. It is beyond dispute that plain­tiff's correspondence could not serve to divest her of title if she had already ac­quired it by adverse possession. Rather, as this Court has discussed about the ele­ments of exclusivity and claim of right, “in order for a defendant to successfully de­fend against an adverse possession claim of disputed land, ‘there would have to be evidence indicating that the defendants or others had made improvements to the land or, at the very least, had used the land in a more significant fashion than merely walk­ing across it.’” Anthony v. Searle, 681 A.2d 892, 898 (R.I.1996) (quoting Gam­mons v. Caswell, 447 A.2d 361, 368 (R.I.­1982)). There certainly was credible evi­dence for the trial justice to find that plaintiff had used the property as her own for well over twenty years before she cor­responded with Mr. Morrow in 1997. Fur­ther, there was a stark absence of evidence that the Morrows “used the land in a more significant fashion than merely walking across it.” Id. There is, in my opinion, ample support for this finding in the rec­ord, and the trial justice’s finding is not clearly wrong.

B

The Factual Findings

Likewise, it is my view that there is sufficient evidence in the record that plain­tiff's use of the property satisfied the stat­utory requirements of actual, open, notori­ous and hostile use for a period of at least ten years. As we have said in numerous cases, to establish the requisite hostility, the adverse possessor “need only establish a use ‘inconsistent with the right of the owner without permission asked or given, * * * such as would entitle the owner to a cause of action against the intruder [for trespass].’” Tavares, 814 A.2d at 351 (quoting 16 Powell on Real Property, § 91.05[1] at 91-23 (2000)). Similarly, to satisfy the requirement of open and notori­ous use, a claimant must demonstrate that “the use to which the land is put must be similar to that which would ordinarily be made by owners of similarly situated real estate.” Id. at 352 (citing Sherman v. Goloskie, 95 R.I. 457, 466, 188 A.2d 79, 84 (1963)). Furthermore, it is appropriate for the trial court to “tak[e] properly into ac­count the geophysical nature of [the] land.” Carnevale v. Dupee, 853 A.2d 1197, 1201 (R.I.2004) (quoting Anthony, 681 A.2d at 898).

The majority makes much of the fact that the plaintiff's use of the land was somewhat sporadic and seasonal in nature. However, this is consistent with how own­ers of a vacant lot adjoining a home in a beach area of the state would use this type of property. To this point our Court has said, “[y]ear-round occupation is not re­quired to prove actual and continuous pos­session.” Lee v. Raymond, 456 A.2d 1179, 1183 (R.I.1983). And, this Court also has held “that in determining whether there has been actual possession of property, there must be considered its character and locality, and the uses and purposes for which it is naturally adapted * * *.” Sherman, 95 R.I. at 466, 188 A.2d at 84 (quoting Goen v. Sansbury, 219 Md. 289, 149 A.2d 17, 21-22 (1959)). There was uncontradicted testimony that the plaintiff cut the grass, planted flowers, improved the flower beds, and entertained on the property. This is entirely compatible with the type of use that would be expected of the owner of unimproved land. Moreover, this Court repeatedly has made the state­ment that “[c]ultivating land, planting trees, and making other improvements in such a manner as is usual for comparable land have been successfully relied on as proof of the required possession.” Acam­pora v. Pearson, 899 A.2d 459, 467 (R.I.­2006) (quoting Anthony, 681 A.2d at 898).

I realize that because he discounted the legal effect of the 1997 letter from the plaintiff to the defendant inquiring about a possible sale of the property, the trial jus­tice referred to some improvements that were made after the letter was sent. But, even discounting that consideration, the trial justice found “overwhelming evi­dence” that the plaintiff had exercised do­minion over lot 19 as an owner would for well in excess of ten years.9 Viewing this case through the prism of our deferential standard of review, I am unable to con­clude that the trial justice was clearly wrong when he found that the plaintiff's use of that land for a period exceeding two decades met the legal requirements to es­tablish that she had acquired lot 19 by adverse possession. I therefore would af­firm the judgment of the Superior Court.

9

It is true that the trial justice did not make use of the terms “strict proof” or “clear and convincing evidence” in his decision, but to me, evidence that is found to be “overwhelm­ing” easily surpasses that criteria.

Supreme Judicial Court of Maine.

2006 ME 24

Marion J. DOMBKOWSKI v. Edgar R. FERLAND.

Decided: March 13, 2006.

Submitted On Briefs: Dec. 13, 2005.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

William L. Dawson Jr., Esq., Belfast, for plaintiff.

James A. Mitchell, Esq., Butler, Whitti­er, LaLiberty & Mitchell, L.A., Waterville, for defendant.

DANA, J.

Edgar R. Ferland appeals from a judgment entered in the Superior Court (Waldo County, Hjelm, J.) granting Mar­ion J. Dombkowski title by adverse posses­sion to a disputed parcel of land to which Ferland holds record title, and enjoining Ferland from interfering with Dombkowski’s use, possession, and enjoyment of the land. Ferland contends that: (1) the court erred in applying and interpreting 14 M.R.S. § 810-A (2005); (2) the court abused its discretion in admitting in evi­dence the entire transcript from the hear­ing for a preliminary injunction; and (3) there was insufficient evidence for the court to find actual possession and use of the entire disputed parcel for the twenty-­year period required for an adverse pos­session claim. We disagree and affirm the judgment.

I. BACKGROUND

Ferland and Dombkowski own abutting parcels of real estate in Burnham. Ferland claims title to his property by virtue of a deed from the Estate of Doris Rood in 2001. Dombkowski acquired his property from his brother, Anthony, in 1994. Anthony purchased the property in 1967, at which time the Roods lived in the house next door.

Dombkowski and Anthony resided in Connecticut, where they ran a pig farm. Anthony spent his winters in Connecticut, but lived at the Burnham property much of the time during the other seasons from 1967 until his death in 1994. Dombkowski visited the Burnham property regularly to attend auctions with Anthony and buy pigs, which Dombkowski would transport back to Connecticut. Just before his death, Anthony transferred his Burnham property to Dombkowski. Dombkowski has continued to visit the property from 1994 through to the present.

In 1967, the disputed area was overgrown with brush and trees. Over the course of several years, Anthony cleared this area and made it into a lawn. Antho­ny, or others on his behalf, maintained the lawn and kept it mowed. A gravel drive­way entered onto the disputed area from the road. Since 1967, whenever Dombkowski visited the property, he would use the driveway to drive trucks onto the dis­puted area, where he would park them.

In the early 1970s, either Anthony or the Roods erected a wire fence along the line that Dombkowski now claims sepa­rates the area of adverse possession from the portion of Ferland’s property that is free from this action. In the 1980s, fir trees were planted along Dombkowski’s side of the fence. There is no evidence in the record as to who planted the trees. There is no evidence in the record that the Roods or anyone other than the Dombkowskis used the disputed property in any way.

In 2001, Dombkowski had a well drilled in the middle of the disputed area. Some time after that, the fence that stood along the disputed area was moved closer to Dombkowski’s house, closer to where the recorded property line was.1 When the fence was moved, it blocked the drive­way, preventing Dombkowski from using the driveway.

Dombkowski testified that he thought he was the record titleholder, and had he known that he did not own the property, he would have ceased using it if asked by the true owner to do so. It is unknown what belief Anthony had about the disputed property when he cleared and maintained it over the years. In 2002, Ferland had the land surveyed, and Domb­kowski realized for the first time that the disputed property was not included in his deed.

On August 29, 2002, Dombkowski filed a complaint pursuant to the Maine Declaratory Judgments Act,2 asking the court to issue a declaratory judgment re­garding ownership of the disputed proper­ty. He also alleged that Ferland threat­ened to remove the well and he asked the court to issue preliminary and permanent injunctions prohibiting this. The court is­sued a preliminary injunction in April 2003, enjoining Ferland from removing or impairing Dombkowski’s well.

Following a jury-waived trial, the court declared Dombkowski the owner of the disputed property through adverse possession and enjoined Ferland from in­terfering with his use, possession, and en­joyment of the property. The court relied on 14 M.R.S. § 810-A in making its deci­sion and concluded that although Dombkowski could not prove a claim of adverse possession under Maine’s common law, he succeeded under a statutory claim of ad­verse possession.

II. ADVERSE POSSESSION

Under the common law, a party claiming title by adverse possession need­ed to establish by a preponderance of the evidence that his possession and use of the property for a twenty-year period was ac­tual, open, visible, notorious, hostile, under a claim of right, continuous, and exclusive. See Striefel v. Charles-Keyt-Leaman P’ship, 1999 ME 111, ¶6, 733 A.2d 984, 989 (outlining the elements and defining their meaning in detail). Only the hostility and claim of right elements are contested here.

A. Hostile and Claim of Right

Although “[s]ome courts and commentators fail to distinguish between the elements of hostility and claim of right, or simply consider hostility to be a subset of the claim of right requirements[, s]ee, e.g., Johnson v. Stanley, 96 N.C.App. 72, 384 S.E.2d 577, 579 (1989)[,] ... [u]n­der Maine law, the two elements are dis­tinct.” Striefel, 1999 ME 111, ¶ 13 n. 7, 733 A.2d at 991.

“‘Hostile’ simply means that the possessor does not have the true owner’s permission to be on the land, and has nothing to do with demonstrating a heated controversy or a manifestation of ill will, or that the claimant was in any sense an enemy of the owner of the servient estate.” Id. ¶ 13, 733 A.2d at 991 (quota­tion marks and citation omitted). “Per­mission negates the element of hostility, and precludes the acquisition of title by adverse possession.” Id. “‘Under a claim of right’ means that the claimant is in possession as owner, with intent to claim the land as [its] own, and not in recogni­tion of or subordination to [the] record title owner.” Id. ¶ 14, 733 A.2d at 991 (quotation marks omitted).

Under Maine’s common law, as part of the claim of right element, we have historically examined the subjective inten­tions of the person claiming adverse pos­session. See Preble v. Me. Cent. R.R. Co., 85 Me. 260, 264, 27 A. 149, 150 (1893); accord Emerson v. Me. Rural Missions Ass’n, Inc., 560 A.2d 1, 3 (Me.1989); McMullen v. Dowley, 483 A.2d 698, 700 (Me.1984). Under this approach, which is considered the minority rule in the coun­try, “one who by mistake occupies ... land not covered by his deed with no intention to claim title beyond his actual boundary wherever that may be, does not thereby acquire title by adverse possession to land beyond the true line.” Preble, 85 Me. at 264, 27 A. at 150; see also McMullen, 483 A.2d at 700 (“[If] the occupier intend[s] to hold the property only if he were in fact legally entitled to it[, the] occupation [is] ‘conditional’ and [cannot] form the basis of an adverse possession claim.”).3 The ma­jority rule in the country is based on French v. Pearce, 8 Conn. 439 (1831), and recognizes that the possessor’s mistaken belief does not defeat a claim of adverse possession. See 16 RICHARD R. POW­ELL, POWELL ON REAL PROPERTY § 91.05[2] (Michael Allan Wolf ed., 2005).

In 1993, the Legislature enacted 14 M.R.S. § 810-A, which provides:

§ 810-A. Mistake of boundary line estab­lishes hostility

If a person takes possession of land by mistake as to the location of the true boundary line and possession of the land in dispute is open and notorious, under claim of right, and continuous for the statutory period, the hostile nature of the claim is established and no further evidence of the knowledge or intention of the person in possession is required.

(Emphasis added.)

In Striefel, we noted that the Leg­islature inartfully used the terms “hostile” and “claim of right” in this provision be­cause a claimant’s mistake as to the loca­tion of the true boundary pertains to the claim of right element, not to the hostile element. 1999 ME 111, ¶ 15 n. 9, 733 A.2d at 992. However, that case did not pres­ent us with the opportunity to definitively interpret section 810-A.

Here, the court interpreted sec­tion 810-A as eliminating the common law inquiry into the subjective intent of the adverse possession claimant. Thus, al­though the court found that Dombkowski’s occupation of the disputed area was “con­ditional” because he mistakenly believed it was his, the court determined that because section 810-A does not require inquiry into the subjective intent of the claimant, Dombkowski established adverse posses­sion by satisfying the other elements of his claim.

B. One Claim or Two?

Ferland argues that the court should not have relied on 14 M.R.S. § 810-A because Dombkowski failed to make a statutory claim of adverse posses­sion because there are no references in his complaint to the statute. Thus, he con­tends that the court erred in applying the statute. He argues that this is a common law claim only and that section 810-A does not apply to common law claims for ad­verse possession.

Ferland relies on language in dic­tum from Striefel to support his argument that section 810-A does not apply to a common law claim. In a footnote in that case, we stated, “[s]ince we apply the com­mon law doctrine of adverse possession in the present case, we need not apply the statutory provisions or further address ... section 810-A.” 1999 ME 111, ¶ 15 n. 9, 733 A.2d at 993. Ferland misapprehends this statement as meaning that there are two distinct claims for adverse possession. In fact, we did not need to apply section 810-­A in Striefel because there was no indica­tion in the record that the adverse claim­ants possessed and used the parcel under a mistaken assumption of ownership. Thus, the statute was not necessary to the decision.

Although we recognize that state­ments in our opinions may have allowed the inference that there are two separate claims for adverse possession, see id. ¶ 5, 733 A.2d at 989 (stating that title in real property by adverse possession may be established either under the common law or pursuant to statutory provisions), there is only one claim—the common law claim as amended by the Legislature. The Leg­islature expressed its intent to change only one part of the common law with this provision. See L.D. 1076, Statement of Fact (116th Legis.1993). Therefore, sec­tion 810-A amends the common law claim for adverse possession, and the court did not err in applying it here.

C. Interpreting 14 M.R.S. § 810-A

Ferland also argues that the court erred in interpreting section 810-A to eliminate the common law element of claim of right. He contends that, in Striefel, we concluded that the wording of sec­tion 810-A was ambiguous and did not accomplish the result the Legislature in­tended.4

Ferland again misapprehends our discussion in Striefel. Although we recog­nized that an ambiguity exists due to the inartful wording of section 810-A, we did not reach a conclusion as to how section 810-A should be interpreted because there was no issue of mistaken possession in that case.5

We review questions of statutory interpretation as legal issues subject to de novo review. Ashe v. Enter. Rent-A-Car, 2003 ME 147, ¶ 7, 838 A.2d 1157, 1159. “In interpreting [a] statute, we ‘seek to effectuate the intent of the Legislature, which is ordinarily gleaned from the plain language of the statute.’” Irving Pulp & Paper, Ltd. v. State Tax Assessor, 2005 ME 96, ¶ 8, 879 A.2d 15, 18 (quoting Foster v. State Tax Assessor, 1998 ME 205, ¶7, 716 A.2d 1012, 1014). “We must consider[] the language in the context of the whole statutory scheme and construe the statute to avoid absurd, illogi­cal, or inconsistent results.” Id. (quotation marks and citation omitted) (alteration in original). “Only if the language of a stat­ute is ambiguous will we look beyond it to the legislative history or other external indicia of legislative intent.” Id.

We acknowledged, in Striefel, that section 810-A contains an ambiguity and, although we did not resolve the ambiguity, we discussed the legislative intent of sec­tion 810-A at length:

The Legislature in drafting section 810-­A apparently attempted by legislative fiat to depart from the Maine rule, at least with respect to the statutory provi­sions. According to the statement of fact accompanying the bill that resulted in the enactment of section 810-A:

This bill adopts the position now held by a majority of jurisdictions that, if the occupancy of land beyond a true boundary line is actual, open, notori­ous and continuous, it is hostile and adverse even though the original occu­pancy took place due to ignorance, inadvertence or mistake, without the intention to claim lands of another. It thus overrules the positions adopted by the Maine courts in [Preble v. Maine Cent. R.R. Co., 85 Me. 260, 27 A. 149 (Me.1893),] and [Landry v. Gi­guere, 127 Me. 264, 143 A. 1 (1928),] that “intention to hold only to [the] true boundary wherever that bound­ary might be defeats [a] claim of one seeking title by adverse possession to land beyond the true boundary.” [McMullen v. Dowley, 483 A.2d 698, 700 (Me.1984) (citing Landry).]

L.D. 1076, Statement of Fact (116th Legis.1993) (emphasis added). No legis­lative debate or committee report ac­companied the bill. The only written statement in support of the enactment was from the Central Maine Title Com­pany on behalf of the Maine Association of Realtors, which briefly stated that the provision would “help clarify the law” and align Maine with the majority of states.

“Hostile” and “claim of right” are terms of art. The Legislature, in its purported attempt to “overrule” the Maine rule, inartfully provided that a mistake as to the location of the true boundary line does not preclude a find­ing of hostility if the adverse claimant takes possession of the land, inter alia, under a claim of right. See 14 M.R.S. 14 § 810-A. The so-called Maine rule, however, primarily pertains to the claim of right requirement, rather than the requirement of hostility.

Striefel, 1999 ME 111, ¶ 15 n. 9, 733 A.2d at 992 (alteration in original).6

Although the Legislature confused the terms “hostile” and “claim of right” in drafting section 810-A, the statement of fact accompanying the bill explicitly states that the Legislature intended to eliminate the intent requirement for adverse posses­sion claims. See L.D. 1076, Statement of Fact (116th Legis.1993). Because we seek to effectuate the intent of the Legislature, we hold that the intent requirement for adverse possession claims is eliminated. To the extent that our earlier cases adopted the position that “intention to hold only to [the] true boundary wherever that boundary might be defeats [a] claim of one seeking title by adverse possession to land beyond the true boundary[,]” McMullen, 483 A.2d at 700, they are overruled.

III. ADMISSION OF TRANSCRIPT FROM PRELIMINARY INJUNCTION

Ferland argues that the court erred in admitting in evidence, at trial, the entire transcript from the hearing for the preliminary injunction. He argues that M.R. Civ. P. 65(b)(2) limits, at trial, the admission of evidence received at the pre­liminary hearing to evidence that would be admissible upon the trial of the merits, and he contends that the court made no effort to distinguish the admissible from the inadmissible evidence contained in the transcript. Further, he argues that the rule restricts the use of such evidence only for the purpose of determining whether or not a permanent injunction should issue and not for the purpose of determining whether Dombkowski satisfied all of the elements of adverse possession. He con­tends that the trial court should have dis­tinguished the purpose for its admission. Finally, he argues that Dombkowski intro­duced repetitive testimony at trial by testi­fying in addition to offering the transcript.

M.R. Civ. P. 65(b)(2) provides, in pertinent part:

Before or after the commencement of the hearing of an application for a pre­liminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the mer­its becomes part of the record on the trial and need not be repeated upon the trial.7

Although the rule limits the evidence to that which would be admis­sible at a trial on the merits, Ferland did not challenge the admissibility of any par­ticular portion of the transcript at the trial, nor does he direct us to any inadmissible portion of the transcript. Further, noth­ing in the rule limits admission of the evidence to the motion for a permanent injunction as opposed to a trial on the merits. Finally, although M.R. Civ. P. 65(b)(2) states that testimony from an ear­lier hearing need not be repeated, nothing in the rule prevents the repetition of such testimony when allowed by the court and important to the presentation of the case.

IV. SUFFICIENCY OF THE EVIDENCE

“Adverse possession presents a mixed question of law and fact.” Striefel, 1999 ME 111, ¶ 7, 733 A.2d at 989. “[W]hether the necessary facts exist is for the trier of fact, but whether those facts constitute adverse possession is an issue of law for the court to decide.” Id. (quota­tion marks omitted). We will uphold the court’s determination of the facts underly­ing an adverse possession claim if the find­ings are supported by credible evidence in the record. Id. “‘It is primarily for the factfinder to judge the credibility of wit­nesses and to consider the weight and significance of any other evidence. As such, [we] must give due regard to the trier of fact’s determinations on credibility, weighty and significance of evidence.’” Cates v. Smith, 636 A.2d 986, 988 (Me. 1994) (quoting Tonge v. Waterville Realty Corp., 448 A.2d 902, 905 (Me.1982)).

In order to establish a claim for adverse possession, “[a] claimant must prove that [his] possession and use satis­fied each of the [elements of adverse pos­session] simultaneously for a period of at least twenty years.” Striefel, 1999 ME 111, ¶ 18, 738 A.2d at 993 (quotation marks omitted); see also 14 M.R.S. § 801 (2005).

Ferland argues that the evidence was insufficient for the court to find the twenty-year prescriptive period satisfied for the entire parcel because the clearing process was incremental over many years, and there was no evidence specifying ex­actly when the adverse possession began for each incremental clearing.

Credible evidence in the record supports the court’s determination that the twenty-year prescriptive period for the en­tire parcel was satisfied. Beginning in the late sixties to early seventies, Anthony cleared the disputed land, maintained the lawn, and used part of it as a driveway. The area was fenced in from around 1970 until sometime during or after 2001.

The entry is:

Judgment affirmed.

1

The record does not provide evidence as to who moved the fence.

2

We have stated that Maine’s Declaratory Judgments Act, 14 M.R.S. §§ 5951-5963 (2005), provides an appropriate form of ac­tion for determining rights in real property. See Hodgdon v. Campbell, 411 A.2d 667, 669-­70 (Me.1980).

3

Compare the intent that was conditional in Preble v. Me. Cent. R.R. Co., 85 Me. 260, 266-­67, 27 A. 149, 151 (1893), with the intent that was not conditional in Emerson v. Me. Rural Missions Ass’n, Inc., 560 A.2d 1, 3 (Me.1989).

4

Ferland also argues that because the court did not find that the language was ambigu­ous, it should not have looked to the legisla­tive intent. Although the court did not ex­pressly find section 810-A ambiguous on its face before it looked to the legislative intent, it referenced our discussion of section 810-A in Striefel and noted that the bare language of the statute confused the terms "hostile” and "claim of right.”

5

"[W]e need not apply the statutory provi­sions or further address the ambiguities of section 810-A.” Striefel v. Charles-Keyt-Lea­man P'ship, 1999 ME 111, ¶ 15 n. 9, 733 A.2d 984, 993.

6

We have cited to 14 M.R.S. § 810-A (2005) in three cases. In each of these cases, al­though we did not apply section 810-A, we noted that with the enactment of section 810-­A, the Legislature removed the requirement that an adverse possession claimant have the specific intent to claim the land of another. See Baptist Youth Camp v. Robinson, 1998 ME 175, ¶ 13, 714 A.2d 809, 814; Crosby v. Baiz­ley, 642 A.2d 150, 153 n. 2 (Me.1994); Cates v. Smith, 636 A.2d 986, 988 n. 4 (Me.1994). In Baptist Youth Camp, we did not have to examine the intentions of the claimants be­cause they failed to establish other elements of adverse possession. 1998 ME 175, ¶ 13, 714 A.2d at 814. In Cates and Crosby, we did not apply section 810-A because both actions were filed prior to the effective date of the legislation. Crosby, 642 A.2d at 153 n. 2; Cates, 636 A.2d at 988 n. 4. Thus, the claim­ants in those cases were required to establish intent based on an unconditional claim of right.

7

See also Clark v. Goodridge, 632 A.2d 125, 127 (Me.1993) (holding that, at a trial on the merits for illegal eviction and unlawful entry, the trial court acted within its discretion in (1) declining to rehear evidence presented at an earlier hearing on a motion to dissolve a temporary restraining order, "and (2) relying on that evidence to formulate its decision”).