I abhor the practice of pleading in the alternative because it turns a trial into a “try-all.” That stated, Anderson v. Hudak is a case which gives me pause to consider the validity of “complimentary pleading.”

The background facts of this case are fairly simple. In 1960, Aline Anderson had her parcel of 270′ X 60′ subdivided. In doing so, she granted the eastern 120′ X 60′ to her son Forrest and daughter-in-law Delores Anderson. They in turn built a house together on the property.

This couple then planted a line of trees 15′ East of the steep embankment the higher ground upon which Aline retained a 150′ X 60′ parcel for herself.

Critically, the opinion states that the Andersons planted these trees along what they … “thought was their western property line.”

In 1977, Aline sold out completely by two more conveyances. The first was to a developer who eventually built a house upon the western 135′ X 60′ parcel to the Hudaks. The second was a conveyance to then divorced Delores of a 15′ X 60′ strip of land in the middle.

All seems to have been going fine for 14 years until Hudak’s not long after their 1990 purchase hired a surveyor who opined that the Hudak’s “owned” – read instead “were the holders of record title” – apparently from their western line all the way to the treeline – not their eastern embankment ledge.

The trial court decided for Anderson, but the appellate court reversed.

The higher court offers the rule: “[P]lanting of a row of trees, without some use that is open and hostile, does not satisfy the elements of adverse possession … .

It then indicated that Delores Anderson had not testified as to any use. Here, I will add that failure to testify as to use by extension ought to mean that there wasn’t any testimony which would satisfy the element of exclusivity.

So, beyond testifying as to use – assuming there were facts to illustrate this – to make this a viable case of adverse possession, what “complimentary pleading” would have been appropriate?

I think this is a case which could have been a rare case in which Grantor’s Intent would have carried Delores to victory.

Here’s the storyline which I see emerging …

Delores is the dutiful daughter-in-law who stuck by her ex-husband’s mother – Forrest is notably completely out of the picture.

To reward Delores for her faithfulness, Aline “intended” to grant her the additional real property between the treeline and the embankment of 15′ by 60′.

Both comically and tragically, the legal description for this 15′ X 60′ strip instead of lying west of the treeline actually runs to the east.

As a result, though since Chaplin v. Sanders adverse possession disallows an inquiry as to the claimant of adverse possession’s “subjective intent” – i.e. did the claimant of adverse possession mean to possess or not – this case would have allowed an inquiry as to the Grantor’s Intent of Aline!

In that the lower court had found Delores the more credible litigant, I highly suspect if she had made this pleading the appellate court would not have reversed. What a shame!

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