Black-hearted Trespassers: The Sequel, 0618 RIBJ, RIBJ, 66 RI Bar J., No. 6, Pg. 11

Position:Vol. 66 6 Pg. 11

Black-hearted Trespassers: The Sequel

Vol. 66 No. 6 Pg. 11

Rhode Island Bar Journal

June, 2018

May, 2018


To the best of my recollection, I did not spend any part of my first year of law school scheming to steal someone else's property, but of course Jimmy Carter was president then. Perhaps today's law students have adapted to changing mores. (In fact, I recall having spent most of the first semester of property class parsing Pierson v. Post and learning, inter alia, how to acquire title to ferae naturae[1] but I digress.) I am moved to such recollection not merely by nostalgia, but in reaction to Professor Hashway's recent article on adverse possession,2 which begins by suggesting that larcenous musings regarding adverse possession are now well-nigh universal among first-year law students. While she acknowledges that the vast majority of adverse possession cases yield the victor "a few feet at the edge of his own property,"3 she spends the bulk of her article on a recent Superior Court decision in Carroll v. Rodriques,4 which she considers provides a protocol for such predatory ponderings, and which she predicts the Supreme Court will approve. She finally concludes that that result argues for the legislature repealing the statute authorizing adverse possession.5

Carroll features a protagonist with the unique hobby of poring over the Little Compton Assessors Map looking for parcels that were not being taxed. He then made some efforts, not described in the opinion, to identify the owners of these parcels. If those efforts yielded no results, then the fun began. He had an attorney draw a deed purporting to convey the property from himself to himself and his wife as tenants by the entirety. He then recorded the deed in the land evidence records, which would prompt the municipality to add the parcel to the tax map, and he would pay taxes on it. The drafting and recording of the deeds were evidently done before Carroll had done anything on or to the property that would support a claim of adverse possession, and nothing in the decision suggests any basis Carroll would have had for thinking he had any property interest that would entitle him to grant a deed to this property. Based on the factual recitation in the decision, it is hard to see how these filings are not problematic at best.6

Years went by, and he "acquired" an indeterminate number of such parcels by this means.7After he passed away, his widow continued to develop the property, getting the lots subdivided and otherwise improved. Evidently, in the course of time the true owners of the parcels learned what was being done with their property, but how this came about is not clear from the opinion. Mrs. Carroll then filed an action to quiet title and have herself declared the owner of the parcels for which the owners came forward, as a result of adverse possession. Following a jury-waived trial, the court issued a decision declaring her to be the owner. That decision is presently on appeal.

The lots in question were historically held as woodlots, which the Carroll court defined as "a privately maintained tract of land used as a source of fuel, posts, and lumber."8 There are many such lots in Little Compton, and they are clustered in the eastern, or inland, part of town. Many of them are in the area of the subject parcels, which are in Assessor's Plat 41. They are readily distinguishable by their long, narrow shape, and many of them do not have frontage on improved roads. Their sole function was as a place to grow trees. That function was jealously guarded, as witnessed by the provisions of R.I. Gen. Laws § 34-20-1 providing double and treble damages for cutting down someone else's trees or wood. Little Compton is also unique in the extent to which property stays in the same family for many generations.9 Thus, some of these woodlots could be in shared ownership of the tenth generation of heirs, so it is not surprising if some are forgotten.

In finding adverse possession, the court's analysis focused on two cases, the provisions of which are in conflict: Tavares v. Beck,10 and Cahill v.

Morrow.11 In Tavares, the plaintiff bought several parcels of property in Tiverton in 1991 and 1993, from James Amarantes, near the border with Little Compton. Amarantes had bought the property from the Almy family. The opinion does not state how large the entire property was, though it appears that some or all of it was undeveloped. It also appears that Almy had had record title to some, but not all, of the land in question.

Amarantes bought the property in 1977, and a year or so later had it surveyed. The survey revealed that he was not the record owner of the entire property, but he built a twelve-foot-high stone wall around it and otherwise altered the terrain...

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