HOLLANDER v. WORLD
MISSION CHURCH OF WASHINGTON, D.C.
February 27, 1998
Record No. 970922
WORLD MISSION CHURCH OF WASHINGTON, D.C.
OPINION BY SENIOR JUSTICE HENRY H. WHITING
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
PRESENT: Carrico, C.J., Compton, Lacy, Hassell, Koontz, and
Kinser, JJ., and Whiting, Senior Justice
This adverse possession case involves the effect of a mistake
as to the location of an actual boundary line upon the intent to
hold disputed land adversely.
The World Mission Church of Washington, D.C., (the church)
filed a motion for judgment seeking to recover possession of a
strip of its land in Fairfax County. The church claimed
that Carolyn Hollander, an adjoining property owner,
"unlawfully with[held]" the land. Hollander
responded by claiming title by adverse possession.
At a trial before the court, the evidence indicated that the
church had record title to the land in dispute. The dispute arose
because Hollander and her predecessors in title (the claimants)
had used the disputed land mistakenly believing that their
property ran to a line of trees at the edge of woods on the
After hearing both parties’ evidence, the court concluded that
all the elements necessary to establish title by adverse
possession had been clearly established except for the
requirement of an adverse or hostile possession. Because the
claimants’ possession of the land was based on a mistake
as to the ownership of the land, the trial court
determined that the possession was not adverse since "there
was no intent of the claimant in this case to oust
the true owner of the title of the property." Hence,
the court entered final judgment for the church. Hollander
Hollander’s evidence disclosed that the claimants had
mowed, gardened, and otherwise maintained the strip of land up to
the tree line as a part of their residential property for
more than 15 years, believing that it was the common
boundary between their property and the church’s property. The
evidence also indicated that the claimants intended to claim
title to the land extending to that line as a part of the
property they thought was conveyed to them.
Hollander contends that this evidence is sufficient to show
that the claimants did not base their claim solely on their deed
descriptions; rather, it shows their intention to claim title to
a definite line on the ground. Hence, Hollander maintains that
this case is controlled by our decision in Christian v.
Bulbeck, 120 Va. 74, 90 S.E. 661 (1916). On the other hand,
the church, relying primarily on our ruling in Chaney v.
Haynes, 250 Va. 155, 159, 458 S.E.2d 451, 453 (1995),
contends that the claimants’ mistake precludes a finding that
their possession was with the necessary adverse or hostile
The following principles govern our decision in this case.
"To establish title to real property by adverse
possession, a claimant must prove actual, hostile, exclusive,
visible, and continuous possession, under a claim of right, for
the statutory period of 15 years." Grappo v. Blanks,
241 Va. 58, 61, 400 S.E.2d 168, 170-71 (1991). See Code ?
8.01-236. The burden is upon the claimant to prove all of the
foregoing elements by clear and convincing evidence. Grappo,
241 Va. at 62, 400 S.E.2d at 171; Matthews v. W.T. Freeman Co.,
191 Va. 385, 395, 60 S.E.2d 909, 914 (1950).
Calhoun v. Woods, 246 Va. 41, 43, 431 S.E.2d 285,
286-87 (1993).One who possesses the adjoining land of another
under a mistake as to his own boundaries with no intention to
claim land that does not belong to him, but only intending to
claim to the true line, wherever it may be, does not
adversely hold the land in question. Christian, 120 Va. at
102-03, 90 S.E. at 670; Clinchfield Coal Co. v. Viers, 111
Va. 261, 264, 68 S.E. 976, 977 (1910); Schaubuch v. Dillemuth,
108 Va. 86, 89, 60 S.E. 745, 746 (1908).
However, as we held in Christian:
[T]he rule in Virginia may be taken to be that,
where the proof is that the location of the line in question
was caused in the first instance by a mistake as to the true
boundary, the other facts and circumstances in the case must
negative by a preponderance of evidence the inference which
will otherwise arise that there was no definite and fixed
intention on the part of the possessor to occupy, use and
claim as his own the land up to a particular and definite
line on the ground. That is to say, on the whole proof a case
must be presented in which the preponderance of evidence as
to the character of the possession, how held, how evidenced
on the ground, how regarded by the adjoining land
owner, etc., etc., supplies the proof that the definite and
positive intention on the part of the possessor to occupy,
use and claim as his own the land up to a particular and
definite line on the ground existed, coupled with the
requisite possession, for the statutory period, in order to
ripen title under the statute. Whether the positive and
definite intention to claim as one’s own the land up
to a particular and definite line on the ground
existed, is the practical test in such cases.
The collateral question whether the possessor would have
claimed title, claimed the land as his own, had he believed the
land involved did not belong to him, but to another, that is, had
he not been mistaken as to the true boundary line called for in
his chain of title, is not the proximate but an antecedent
question, which is irrelevant and serves only to confuse ideas.
120 Va. at 110-11, 90 S.E. at 672; see also, Schaubuch,
108 Va. at 91-92, 60 S.E. at 747; 2 Frederick D.G. Ribble, Minor
on Real Property ? 966, at 1234-37 (2d. ed. 1928).
Although in Chaney we said that "[u]se of property,
under the mistaken belief of a recorded right, cannot be adverse
as long as such mistake continues," we noted that
"[t]he present record shows that the [claimants] based their
use of Chaney’s land solely on their mistaken belief that
it was the land described in their express easement." 250
Va. at 159, 458 S.E.2d at 454 (emphasis added). As we have
stated, the claimants in this case based their claim not
only on the deed descriptions, but also on their belief that
their property line ran to the line of woods. Accordingly,
we hold that the claimants’ possession was accompanied by the
requisite adverse or hostile intent.
Nevertheless, the church argues that the evidence fails to
show the claimants held the land adversely for the requisite
period of 15 years. This argument is based on the contention that
when the alleged 15-year period of adverse possession began while
a nonresident corporation owned the Hollander property, there was
no evidence of its intention to adversely possess the land up to
the line of woods.
We disagree. A witness who cultivated a garden in the disputed
strip of property from 1972 to 1975 testified without objection
that he did so with the permission of the corporation’s
predecessor in title, who told him that his property ran to the
line of the woods. This witness also testified that, since he
gave up the garden, he has passed through the area every two or
three weeks and the disputed area has consistently been
maintained as a lawn. Additionally, one of the claimants
testified that, when he looked at the property in July of 1981,
representatives of the nonresident corporation told him its land
extended to the line of woods.
We think the evidence sufficiently supported the trial court’s
implicit ruling that the period of possession had been for more
than 15 years. Hence, we find no merit in the church’s contention
on this ground.
Accordingly, we will reverse the judgment of the trial court
and remand the case for further appropriate proceedings to locate
and adjudicate the true boundary line between the properties. See
Brunswick Land Corp. v. Perkinson, 146 Va. 695, 704, 714,
132 S.E. 853, 855, 859 (1926).
Reversed and remanded.
As we have previously noted, the degree of proof required in
adverse possession cases is clear and convincing. See Calhoun,
246 Va. at 43, 431 S.E.2d at 287.