James R. Herrin v. Ellen O’Hern (Division 1, May 14, 2012), is an adverse possession case, which is fine, but I think it’s more interesting as a summary judgment case. In short, the law placed a burden on the Herrins to establish a relevant fact and the Court concluded that they had done enough to create an issue of fact on the question. I’m not so sure about that. But first… the facts!
Back in the day, the Rothenbuhlers owned a large piece of land that a farmhouse, a field, a barn, and some acreage. In 1993, by deed of gift, the Rothenbuhlers transferred the southwest parcel (which is the farmhouse parcel) to James Herrin (who used to be married to one of their daughters. Then in 2003, the northeast parcel (barn, field, &c.) was transferred to Ellen O’Hern (another of the Rosthenbuhlers’ daughters) from her father’s estate following his death.
Well, it turns out that near the border between the parcels, there is a garage, some land, and a little fenced-in area. That land is technically on O’Hern’s property, but the record is clear that it “has always been used by the owners of the farmhouse property,” which are now the Herrins.
[Note: The Court of Appeals repeatedly referred to plaintiffs Herrin and Herrin as the Herrins, but then renders the possessive as the Herrins’s. Yikes. Perhaps we could call that an adverse possessive? Ha! Jokes!]
This little problem was discovered after a 2008-ish survey; before the survey, nobody was aware of the encroachment. But once discovered, of course, everyone sued everyone else, with the Herrins claiming title to the land by adverse possession. O’Hern then moved for summary judgment, assuming that the Herrins could establish actual, open, continuous, and exclusive use. But she argued that the Herrins’ use was permissive, not hostile, and therefore could not support adverse possession. Continue reading