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02/07/90 LAWRENCE S. SMITH v. JEAN TIPPETT

February 7, 1990

LAWRENCE S. SMITH, APPELLANT
v.
JEAN TIPPETT, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. George Herbert Goodrich, Trial Judge.

Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: "Something there is that doesn't love a wall." *fn1 In this case we are called upon to resolve a controversy between neighbors about a wall of modest dimensions which was constructed in 1935 or even earlier and which stood in peace and tranquility until its location became the subject of litigation in 1986. Appellant Lawrence S. Smith contends that the structure intrudes into a right of way or easement in which he has an interest. He asks us to hold that this wall, like its once more formidable counterparts in Jericho and Berlin, must now come tumbling down, or must at least be removed from its present location. Appellee Jean Tippett defends on the ground that her predecessors in interest acquired title over the portion of the right of way on which the wall is located under the doctrine of adverse possession and passed good title on to her. Arguing that the wall had been standing for more than half a century without inconveniencing anyone or generating any dissension until Mr. Smith demanded its removal shortly before he instituted this action, Ms. Tippett asks that the structure be permitted to remain in place. The trial Judge ruled in Ms. Tippett's favor. We affirm.

I

THE FACTS

In 1898, one John H. Ward created a subdivision of certain real property located near the intersection of Decatur Place and 22nd Street in northwest Washington, D.C. The subdivision included four lots, numbered 40, 41, 42 and 43. *fn2 A four-foot wide easement was created at the rear of Lots 40, 41 and 42, for the benefit of the owners of those lots and of Lot 43, which abuts the easement area at its southern terminus. The easement area crosses Lots 42, 41 and 40, and its northernmost section opens on to Decatur Place.

As initially constructed, the easement took the physical form of a concrete walkway which is three feet wide, rather than four feet as reflected in the original plat. The walkway is bounded on the west side by the eastern wall of a building which is located on property known as Lot 39. On the east side of Lot 40 (Ms. Tippett's property), the walkway is bounded by the brick wall which is the subject of this controversy, and which occupies about twelve inches of the easement area. The walkway continues across Lot 41, which is owned by Charles and Elaine Dym, *fn3 and Lot 42, which is Mr. Smith's property.

The brick wall is fifteen inches high at its northern end. The ground slopes to the south, and the wall is therefore considerably higher (forty-nine inches) at its southern terminus. The structure encloses a courtyard and serves as a retaining wall for Ms. Tippett's property.

Appellant Smith is, as we have noted, the record owner of Lot 42. He and his wife hold the property as tenants by the entirety, having received it by a deed dated May 2, 1950 from Douglas Smith and Katherine Smith. Mr. Smith's deed provides that his property is subject to a right-of-way "for alley purposes" over the rear four feet of the lot.

Ms. Tippett acquired Lot 40 on November 17, 1976 by deed from Samuel Phillip Caper and his wife, Jane. The Capers had become the owners of the property by deed dated November 21, 1973 from Ruth Blaine Piggot. Ms. Piggot had owned the lot for forty-two years, having acquired it by deed dated July 31, 1929 from Charles S. Piggot. All of the deeds in Ms. Tippett's chain of title also refer, directly or indirectly, *fn4 to a four-foot right of way. At trial, the parties stipulated to the testimony of the son of Ruth Blaine Piggot, who related that the wall which is the subject of this controversy had stood on the premises at least since 1935.

On November 26, 1986, Mr. Smith, who had commissioned a survey of the property and discovered that the wall intruded into the original easement, filed this suit against Ms. Tippett. He requested the Superior Court to order Ms Tippett to remove the encroaching wall from the twelve inches of the easement area which it occupied. *fn5 Following a bench trial, the trial Judge, Honorable George H. Goodrich, held that the easement in the area occupied by the wall had been extinguished by adverse possession at least as early as 1950, the wall having been in existence by that time for the fifteen-year statutory period. See D.C. Code § 12-301 (1) (1989). The court further held that the conveyance of the property to Ms. Tippett in 1976 by a deed which ostensibly recognized the original four-foot easement did not have the effect of renewing or creating an extension of the easement into the area occupied by the wall. This appeal followed.

II

ADVERSE POSSESSION

A. General Considerations

To sustain her position that what concededly used to be a four-foot easement is now only a three-foot easement, and that the wall over which the parties have crossed swords is therefore located on her property, Ms. Tippett relies exclusively on the defense of adverse possession. In doing so, she invokes a doctrine of ancient vintage and somewhat amorphous scope.

In medieval days, an owner of land who had been dispossessed of his property (the disseisee) had the legal right to oust the dispossessor (the disseisor) by force. If he failed to do so in timely fashion, his right to this remedy the only one available to him--lapsed. See 5 G.W. THOMPSON, COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY, § 2540 at 573-74 (1979) (hereinafter THOMPSON). To use the phraseology of the age, the disseisin effected a change in the seisin, and hence the legal title, from the disseisee to the disseisor. Id. at 574.

Fortunately, the days of ejection by force (vi et armis) are largely behind us, cf. Mendes v. Johnson, 389 A.2d 781 (D.C. 1978) (en banc), but the basic principle remains the same. In order to counteract the intrusion of the modern-day counterpart of the disseisor, the record owner (today's disseisee), like his feudal predecessor, must act with reasonable dispatch. Rather than taking the axe to the intruder before the latter gains title, however, the record owner must file suit to recover possession within the statutory limitation period. If he fails to do so before the statute runs, then a wrongdoer who has adversely occupied the record owner's property, whether intentionally or by mistake, may become its rightful owner.

It has been said that "adverse possession is the law of the landless, the have-nots," 5 THOMPSON, supra, ยง 2540 at 573, and the doctrine provides means by which a persistent have-not may become a have. The present case, however, illustrates the reality that the defense of adverse ...


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