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to press. 

DISTRICT OF COLUMBIA COURT OF APPEALS 

No. 17-CV-22 

ORON and REBECCAH GAN, APPELLANTS, 

v. 

VAN BUREN STREET METHODIST CHURCH, APPELLEE. 

Appeal from the Superior Court 

of the District of Columbia 

(CAB-8393-15) 

(Hon. Thomas J. Motley, Trial Judge) 

(Argued March 27, 2018 Decided) 

Aaron Sokolow, with whom Morris R. Battino and Vivianette Velázquez were 

on the brief, for appellant. 

Robert Maxwell for appellee. 

Before THOMPSON and MCLEESE, Associate Judges, and RUIZ, Senior Judge. 

Opinion for the court by Associate Judge MCLEESE. 

Separate statement by Associate Judge THOMPSON at page 20. 

Dissenting opinion by Senior Judge RUIZ at page 21. 

MCLEESE, Associate Judge: Appellants Oron and Rebeccah Gan and appellee 

Van Buren Street Methodist Church own adjacent properties, and they dispute 

ownership of a driveway that touches the border between the two properties. The 
2 

Gans challenge the trial court’s grant of summary judgment to the Church. We 

vacate and remand for further proceedings.

I.

The following facts are undisputed except as indicated. The Gans own a 

property located at 6638 Eastern Avenue NW. The Church owns an adjacent 

property located at 35 Van Buren Street NW. The Church’s deed includes the 

property at issue in this case: a paved driveway, approximately ten feet wide, 

running from the back of the Church’s property to Eastern Avenue, parallel to the 

Gans’ property line. 

The Gans purchased 6638 Eastern Avenue from Ms. Bernice Harleston in 

2008. The deed conveyed “all that/those certain piece(s) or parcel(s) of land, 

together with the improvements, rights, privileges and appurtenances to the same 

belonging . . . as described in Exhibit A attached hereto and made a part hereof.” 

Exhibit A, attached to the deed, describes the bounds of the Gans’ property (which 

do not include the driveway), and also describes “a right of way more particularly 

described in Liber 8973 at folio 581, of [the D.C.] land records.” Liber 8973 at folio 

581 recorded an easement over the driveway. 
3 

It is uncontested that according to the pertinent deeds the Church is the title 

owner of the driveway. The Gans argue, however, that they are the rightful owners 

of the driveway under the doctrine of adverse possession. “To establish title by 

adverse possession, appellants must demonstrate possession of the land that is actual, 

open and notorious, exclusive, continuous, and hostile, throughout a period of fifteen 

years.” Sears v. Catholic Archdiocese, 5 A.3d 653, 658 (D.C. 2010) (internal 

quotation marks omitted). According to the Gans, by no later than 2000 Ms. 

Harleston put up a fence that prevented the Church from gaining access to the 

driveway. The Gans further allege that the fence remained in existence thereafter, 

although at some point the original fence was replaced by a wooden fence. In 

support of their adverse-possession claim, the Gans submitted an affidavit executed 

by Ms. Harleston in 2016. In the affidavit, Ms. Harleston attested that her purchase 

deed had referred to “an easement area on the property (the ‘Easement’)”; that in 

2000 she put a fence across the Easement to prevent access to the property; that she 

maintained that fence until she sold the property; that she had believed that she 

owned the Easement; and that she had intended to convey ownership of the Easement 

to the Gans. 
4 

The Gans claim that they are entitled to “tack” Ms. Harleston’s period of 

adverse possession onto their own, thereby meeting the fifteen-year threshold. See 

generally, e.g., Tacking, Black’s Law Dictionary (10th ed. 2014) (“The joining of 

consecutive periods of possession by different persons to treat the periods as one 

consecutive period; esp., the adding of one’s own period of land possession to that 

of a prior possessor to establish continuous adverse possession for the statutory 

period.”). 

The Church disputes as a matter of fact that there has been a fence since 2000 

preventing its use of the driveway. That factual dispute, if material, would have to 

be decided at a trial. For current purposes, we assume the truth of the Gans’ 

contention that Ms. Harleston and the Gans have adversely possessed the driveway 

since 2000. The Church also argues, however, that as a matter of law the Gans are 

not entitled to base their adverse-possession claim in part on the time before they 

purchased their property, because the deed from Ms. Harleston to the Gans did not 

by its terms convey either title to the driveway or an inchoate adverse-possession 

interest in the driveway. 

The trial court granted summary judgment to the Church on the ground that 

tacking was precluded because the deed from Ms. Harleston to the Gans on its face 
5 

did not convey title to, or an inchoate adverse-possession interest in, the driveway, 

instead conveying only the right to an easement over the driveway. 

II. 

We review de novo a trial court’s grant of summary judgment, viewing the 

evidence in the light most favorable to the non-moving party. Sears, 5 A.3d at 657. 

“If there are no disputed issues of material fact, summary judgment is appropriate if 

the movant is entitled to judgment as a matter of law.” Id. The Church suggests in 

passing that the Gans failed to preserve in the trial court the arguments they present 

in this court. To the contrary, we conclude that the Gans’ opposition to the Church’s 

motion for summary judgment adequately preserved the issues that we decide in this 

opinion. 

The central issue in this appeal is whether the Gans are foreclosed as a matter 

of law from tacking Ms. Harleston’s period of adverse possession onto their own. 

We conclude that, under controlling precedent, the Gans may tack Ms. Harleston’s 

period of adverse possession onto their own if they can prove at trial by clear and 

convincing evidence that Ms. Harleston intended to grant them possession of the 

disputed driveway. 
6 

A. 

Almost one hundred years ago, the Court of Appeals for the District of 

Columbia approved the tacking of periods of adverse possession in circumstances 

very similar to those of the present case. Brumbaugh v. Gompers, 269 F. 472 (1920). 

Brumbaugh involved a dispute that arose in 1915 about the ownership of a strip of 

land. Id. at 473. Under the applicable deeds, the defendants held fee title to the strip 

of land. Id. The plaintiff had bought an adjacent property in 1906 and was in actual 

possession of the disputed strip thereafter. Id. That period of possession, however, 

was not sufficient to meet the then-applicable thirty-year period required to establish 

adverse possession. Id. The prior owners who sold the adjacent property to the 

plaintiff, however, had been in actual possession of the disputed strip of land back 

to at least 1883. Id. In response to the suggestion that the two periods of possession 

could not be tacked, the court explicitly held to the contrary. Id. (“Some suggestion 

is made that there has been no tacking of possession, within the meaning of the law. 

This contention may be put out of view by a citation of the following 

authorities . . . .”). The cited authorities included St. Louis Southwestern Railway 

Co. v. Mulkey, 139 S.W. 643, 644 (Ark. 1911) (“While it is true that the land 

described in the deed . . . does not include the strip in controversy, still [appellee’s] 
7 

grantor . . . thought it did, and at the time of the conveyance transferred to her the 

possession of it in fact . . . . This was sufficient even if it be conceded there was no 

conveyance of it in writing, and constituted such privity as entitled [appellee] to avail 

of his or their adverse possession and to tack her possession to theirs if necessary to 

complete her title and claim of ownership.”); Viking Refrigerator & Manufacturing 

Co. v. Crawford, 114 P. 240, 240-41 (Kan. 1911) (approving tacking of periods of 

adverse possession by successive occupants; rejecting view that tacking is permitted 

only if deed or other writing transfers adverse-possession interest, and approving 

principle that “[a]ll the law requires is continuity of possession, where it is actual”) 

(internal quotation marks omitted); and Illinois Steel Co. v. Paczocha, 119 N.W. 

550, 552 (Wis. 1909) (approving tacking of periods of adverse possession where 

there is privity between successive occupants, but required privity is “merely [that 

of] physical possession, and is not dependent on any claim, or attempted transfer, of 

any other interest or title in the land”). 

In Brumbaugh, tacking was held proper where (1) there was continuous 

adverse possession of the disputed property by two successive occupants who owned 

an adjacent property, and (2) the first occupant sold the adjacent property to the 

second occupant. 269 F. at 472-74. Brumbaugh thus adopted what was then and 

continues to be the majority approach to the issue of tacking. See, e.g., 16 Michael 
8 

Allan Wolf, Powell on Real Property § 91.10[2], at 91-76 (2009) (“When, however, 

A conveys Blackacre to B, and B then seeks to claim[] adverse possession of adjacent 

land not covered by the deed, and wishes to tack the possession to prior possession 

by A, the cases are not unanimous. It is believed that both the weight of authority, 

and the more desirable rule, find privity in these circumstances, and so permit 

tacking.”); 3 Am. Jur. 2d Adverse Possession § 73 (2013) (“Thus, if one adverse 

claimant, by agreement, surrenders possession to another, and the acts of the parties 

are such that the two possessions actually connect, leaving no interval for the 

constructive possession of the true owner to intervene, the two possessions are 

blended into one, and the running of the limitation period on the right of the true 

owner to reclaim the land is continued.”); id. at § 76 (“If, in connection with a 

conveyance of lands, there are circumstances showing an intent to transfer to the 

grantee the possession of other adjacent land occupied by the grantor, but not 

covered by the deed, there is privity, and the grantee is entitled to tack the period of 

the grantor’s occupancy to the grantee’s own in establishing title by adverse 

possession to the land not conveyed.”); 2 C.J.S. Adverse Possession § 172 (2013) 

(“Most particularly where the claimant relies on an actual transfer rather than on a 

deed to establish privity of possessions, the failure of the deed to pass the disputed 

land will not destroy the privity. Successive adverse possessions of property omitted 

from a deed description, especially contiguous property, may be tacked if it appears 
9 

that the adverse possessor intended to and actually turned over possession of the 

undescribed part with the portion of the land included in the deed. Where land that 

is adversely held, adjoins land described in a deed, but is not described in the deed, 

and continues to an obvious boundary, such as a fence, the grantor’s intent to convey 

the entire enclosed area is implied from the circumstances.”) (footnotes omitted); 4 

Herbert Thorndike Tiffany, The Law of Real Property § 1146, at 776 (1975) (privity 

required to permit tacking may be based “upon any connecting relationship which 

will prevent a break in the adverse possessions and refer the several possessions to 

the original entry, and for this purpose no written transfer or agreement is 

necessary”); W.W. Allen, Annotation, Tacking Adverse Possession of Area not 

within Description of Deed or Contract, 17 A.L.R.2d 1128, 1131-32 (1951) (“At the 

present time, making allowance for contrary rulings still apparently adhered to in a 

few jurisdictions, the cases, especially the later ones, run generally to the effect that 

in order to permit the tacking of successive adverse possessions of vendor and 

purchaser of an area not within the premises as described in the deed or contract but 

contiguous thereto, the composite fact to be established is the intended and actual 

transfer or delivery of possession of such area to the grantee or vendee as successor 

in ownership or claim.”) (footnotes omitted); id. at 1135 (“In most jurisdictions a 

transfer of possession of the disputed area sufficient for tacking purposes may be 

shown to have taken place by implication and without express words or any 
10 

ceremony of transfer.”); 2 C.J. Adverse Possession § 97 (1915) (“[S]uccessive 

grantors may transfer their possession of a strip of land successively and 

continuously occupied as part of the granted premises, but not included in the 

description in any of the deeds, and . . . by such continuity of possession for the 

prescriptive period title by limitations may be acquired.”). 

Brumbaugh’s holding is binding on divisions of this court. Davidson v. 

United States, 137 A.3d 973, 974 n.2 (D.C. 2016) (“[C]ases decided by the United 

States Court of Appeals for the District of Columbia Circuit (and its predecessors) 

prior to February 1, 1971, are part of the case law of this court.”; citing inter alia 

1896 decision of the Court of Appeals for the District of Columbia); M.A.P. v. Ryan, 

285 A.2d 310, 312 (D.C. 1971) (“[N]o division of this court will overrule a prior 

decision of this court or refuse to follow a decision of the United States Court of 

Appeals rendered prior to February 1, 1971, and . . . such result can only be 

accomplished by this court en banc.”) (footnote omitted). 

The Gans contend that the trial court erred in concluding that the periods of 

adverse possession at issue could be tacked only if the deed conveying property from 

Ms. Harleston to the Gans on its face conveyed an adverse-possession interest in the 

driveway. In deciding that contention, we are bound to follow Brumbaugh even 
11 

though no party brought Brumbaugh to the attention of the trial court and the initial 

briefs of the parties in this court did not cite Brumbaugh. See, e.g., Martin v. 

Bicknell, 99 A.3d 705, 709 (D.C. 2014) (“While both parties have failed to cite to 

them, we have identified a number of decisions on this subject, which, while old, are 

still binding precedent.”); Mims v. Mims, 635 A.2d 320, 323 (D.C. 1993) (“Our 

obligation under M.A.P. v. Ryan to follow otherwise binding precedents does not 

evaporate because a party has failed to cite them to us.”). (At the court’s request, 

the parties did file supplemental briefs addressing Brumbaugh.) 

Rather than addressing Brumbaugh, the trial court focused on Sears, our most 

recent decision addressing the issue of tacking for purposes of adverse possession. 

Sears did not mention Brumbaugh, instead inaccurately stating that this court had 

“not had the occasion to discuss tacking in the context of adverse possession to claim 

ownership in land.” 5 A.3d at 662. Sears also said seemingly contradictory things 

about whether tacking is permissible where no deed explicitly transfers an adversepossession interest in the property at issue. Compare 5 A.3d at 662 (“[W]here title 

by adverse possession is inchoate, a deed by [a] grantor which fails to convey such 

inchoate right is ineffective to create privity which allows tacking.”) (brackets and 

internal quotation marks omitted), with id. (“Generally, for the purpose of effecting 

title by adverse possession, where the traditional requisites are present, tacking of 
12 

periods of possession by successive possessors is permitted against an owner seeking 

to defeat such title, unless it is shown that the claimant’s predecessor in title did not 

intend to convey the disputed parcel.”) (internal quotation marks omitted). We need 

not attempt to further parse our decision in Sears on this issue, however, because 

even if Sears were properly understood to have held that an express conveyance is 

required, we are bound to follow Brumbaugh rather than Sears. See, e.g., Thomas 

v. United States, 731 A.2d 415, 420 n.6 (D.C. 1999) (“Where a division of this court 

fails to adhere to earlier controlling authority, we are required to follow the earlier 

decision rather than the later one.”). 

In sum, we hold that the trial court erred in concluding that tacking was 

precluded in this case unless the deed on its face conveyed an adverse-possession 

interest from Ms. Harleston to the Gans. 

 

B. 

The holding that express conveyance is not a prerequisite to tacking does not 

fully resolve this appeal. A number of courts following the general rule permitting 

tacking in the absence of express conveyance carve out an exception to that general 

rule where (a) the deed at issue expressly excludes the disputed parcel or (b) the 
13 

seller did not intend to turn over possession of the disputed parcel to the buyer. E.g., 

2 Am. Jur. 2d Adverse Possession § 77; 2 C.J.S. Adverse Possession § 172. This 

court in Brumbaugh did not address the question whether such exceptions should be

recognized, presumably because no such argument was presented to the court. 269 

F. at 472-74. Sears, however, did address a similar argument, and concluded that as 

to two of the lots at issue the prior owner “expressly disavowed” conveyance of 

rights to the disputed property. 5 A.3d at 663. Specifically, as to one of those lots, 

the deed had an attached plat expressly stating that the disputed property was not 

being conveyed; and as to the other lot the seller orally advised the purchaser that 

the disputed property at issue did not convey. Id. Sears held that these disavowals 

were an additional reason to preclude tacking. Id. Sears’s recognition that express 

disavowal will preclude tacking is not contrary to our holding in Brumbaugh, and it 

is therefore binding on us. More generally, we accept the principle that a period of 

adverse possession by a prior owner may not be tacked if (1) the prior owner 

expressly disavows transfer of an interest in the disputed property to the subsequent 

owner, or (2) the party claiming adverse possession fails to show by clear and 

convincing evidence that the prior owner intended to turn over to the subsequent 

owner possession of the property in dispute. See generally Sears, 5 A.3d at 658 

(“[T]he party seeking to establish a claim by adverse possession has the burden of 

doing so by clear and convincing evidence.”) (internal quotation marks omitted). 
14 

The dissent, however, argues for a different exception to the majority 

approach we adopted in Brumbaugh. Infra at 25-36. That exception apparently is 

as follows: tacking is generally impermissible if the deed at issue in any way 

mentions, but does not convey, the disputed property. Id. at 33-35. That is not the 

exception we applied in Sears, in which we emphasized that the sellers of the 

property at issue “expressly disavowed” an intent to transfer the disputed property. 

5 A.3d at 663. Nor do the other cited authorities support the formulation advocated 

by the dissent. Some do state that actual transfer of possession is ordinarily sufficient 

to permit tacking when the deed at issue omits reference to the disputed property. 

E.g., 2 C.J.S. Adverse Possession § 172 (referring to property omitted from deed 

description). But those authorities do not state the converse proposition apparently 

advanced by the dissent: that tacking is precluded any time the deed at issue makes 

any mention of the disputed property. Moreover, a number of the authorities at 

various points use formulations that contradict the theory of the dissent. See, e.g., 

Viking Refrig., 114 P. at 240-41 (“All the law requires is continuity of possession, 

where it is actual.”) (internal quotation marks omitted); Tiffany, The Law of Real 

Property § 1146, at 776 (tacking may be based “upon any connecting relationship 

which will prevent a break in the adverse possessions and refer the several 

possessions to the original entry, and for this purpose no written transfer or 
15 

agreement is necessary”). Finally, the dissent’s theory would seemingly lead to 

unjustified results. For example, imagine a case involving a deed that referred 

generally at some point to an adjacent alley but did not by its terms convey the alley. 

According to the theory of the dissent, tacking would be precluded in such a case, 

even if (1) the deed did not expressly disavow conveyance of the alley; (2) the parties 

to the deed established that the mutual intent was to convey the alley and that the 

property description in the deed was inadvertently erroneous; and (3) the seller had 

previously possessed the alley openly and notoriously; (4) contemporaneously with 

the sale, the seller relinquished actual possession of the alley to the buyer; (5) 

thereafter, the buyer possessed the alley openly and notoriously; and (6) taken 

together, the two periods of open and notorious possession exceeded fifteen years. 

Such a conclusion would be inconsistent with the logic of the majority approach to 

tacking that we adopted in Brumbaugh. 

1. 

In granting summary judgment to the Church, the trial court did not rely on 

exceptions to the general rule we adopted in Brumbaugh. It also is not entirely clear 

whether the Church relies on such exceptions in this court. The dissent, however, 

takes the view that the trial court’s summary-judgment ruling can be upheld on the 
16 

alternative grounds that (1) the deed between Ms. Harleston and the Gans expressly 

disavowed transfer of an ownership interest in the driveway, infra at 37-38; and (2) 

Ms. Harleston’s affidavit was insufficient to support a finding that Ms. Harleston 

intended to transfer an ownership interest in the driveway to the Gans, infra at 35 

n.10, 37-38. We disagree. 

First, the deed between Ms. Harleston and the Gans did not contain any 

express disavowal as to the driveway. It is true that the driveway did not fall within 

the bounds of the property transferred in fee simple by the deed. It is also true that 

the deed explicitly conveyed an easement over the driveway. But that only shows 

that the deed did not affirmatively transfer any ownership interest to the driveway. 

Our holding in Brumbaugh establishes that the mere absence of such an affirmative 

grant of title is not fatal to tacking. What was present in Sears but is missing in the 

present case is express language of disavowal. Specifically, for example, one of the 

deeds at issue in Sears explicitly stated that the disputed property was not being 

conveyed. 5 A.3d at 663. 

Second, the dissent takes the view that the plain meaning of Ms. Harleston’s 

affidavit is that Ms. Harleston understood herself to be conveying only an easement 

interest in the driveway, not an ownership interest. Infra at 35 n.10. We note at the 
17 

outset that the dissent’s interpretation of Ms. Harleston’s affidavit is contrary to the 

interpretation given to the affidavit by both parties and by the trial court, all of whom 

have read the affidavit as reflecting the understanding that Ms. Harleston had and 

conveyed an ownership interest in the driveway. In any event, we conclude that the 

dissent’s proposed interpretation of Ms. Harleston’s affidavit is not at all plain. Ms. 

Harleston’s affidavit notes that her purchase deed referred to an “easement area,” an 

area that the affidavit then defines as “the ‘Easement.’” The affidavit goes on to 

aver that Ms. Harleston put a fence across the Easement to preclude use of the 

Easement by others. The affidavit concludes by averring that Ms. Harleston believed 

that she owned the Easement and the she intended to convey the Easement to the 

Gans. We conclude that this affidavit can reasonably be understood to reflect an 

intent to convey ownership of the driveway. Most importantly, if Ms. Harleston 

believed that she only had an easement over the driveway, rather than an ownership 

interest, she would have had no legal basis to take the step of erecting a barrier to 

prevent all others from using the driveway. Moreover, the affidavit can reasonably 

be understood to use the word “Easement” to define an area that Ms. Harleston 

believed she owned, not a description of Ms. Harleston’s legal interest in that area. 

2. 
18 

 We finally address two comments the trial court made about Ms. Harleston’s 

affidavit, to explain why those comments do not persuade us that summary judgment 

is appropriate. First, the trial court noted that Ms. Harleston’s affidavit was executed 

in 2016 and thus was not contemporaneous with the sale of the property. That, 

however, does not make the affidavit irrelevant to the issue of Ms. Harleston’s intent. 

See Penn v. Ivey, 615 P.2d 1, 2, 4 (Alaska 1980) (finding sufficient evidence of intent 

to support tacking based on trial testimony of parties about intent as to transactions 

that occurred in 1966 and 1973); Kennedy v. Findley, 552 S.W.2d 352, 355 (Mo. Ct. 

App. 1977) (same as to trial testimony about intent as to transaction that occurred in 

1957). Our decision in Sears is not to the contrary. In Sears, we held that a noncontemporaneous affidavit was not sufficient to contradict the unambiguous 

language of a deed. 5 A.3d at 661 n.15. But that holding addressed the question 

whether, despite its unambiguous language, the deed could be interpreted to convey 

title to the disputed property. That holding in Sears did not address the different 

question whether, considering all of the circumstances, the seller intended to grant 

an interest in the disputed property sufficient to permit tacking of adverse-possession 

periods. Id. 

Second, the trial court interpreted Ms. Harleston’s affidavit as reflecting Ms. 

Harleston’s erroneous belief that she owned the driveway at the time of the sale. In 
19 

fact, Ms. Harleston at that time did not own the driveway, instead having at most an 

inchoate adverse-possession interest. Ms. Harleston’s mistake as to the precise legal 

nature of her interest in the driveway, however, does not undermine the relevance of 

her affidavit to the critical point: whether Ms. Harleston intended to grant to the 

Gans such interests as she may have had in the driveway. See generally Smith, 569 

A.2d at 1192 (“[O]ur jurisdiction recognizes the doctrine that a claim of adverse 

possession may be rooted in ignorance or mistake.”) (internal quotation marks 

omitted). 

To summarize, we hold that (1) tacking is permissible in this case even if the 

deed between Ms. Harleston and the Gans did not convey any ownership or adversepossession interest in the driveway; (2) tacking would have been precluded if the 

deed between Ms. Harleston and the Gans expressly disclaimed any transfer of an 

ownership or adverse-possession interest in the driveway, but there was no such 

disclaimer in this case; (3) tacking is permissible in this case only if the Gans can 

show by clear and convincing evidence that Ms. Harleston intended to surrender 

possession of the driveway to the Gans; and (4) Ms. Harleston’s affidavit creates a 

dispute of material fact on the issue of her intent. 
20 

We therefore conclude that the trial court erred in granting summary judgment 

on the ground that tacking was precluded as a matter of law. In light of our 

disposition, we need not and do not address the Gans’ claim that the trial court erred 

by granting summary judgment when there was an outstanding discovery request. 

We also do not address the alternative grounds for summary affirmance raised by 

the Church for the first time on post-argument supplemental briefing. 

For the foregoing reasons, we vacate the judgment of the Superior Court and 

remand for further proceedings. 

 So ordered. 

Separate statement of THOMPSON, Associate Judge: I agree with Judge Ruiz 

that our holding in this case is “problematic from a policy perspective” and that 

“[t]he rules we adopt to recognize transfer of right to ownership by adverse 

possession should be in harmony with and not undermine the important purposes 

underlying the requirement of recordation of deeds: notice, stability, clarity, and 

certainty.” However, I join Judge McLeese’s opinion because I agree with him that 

we are bound by the holding of Brumbaugh to reach the result it reaches. 
21 

RUIZ, Senior Judge, dissenting: I cannot agree with the majority that the trial 

court’s grant of summary judgment to appellee, the title owner of the disputed 

driveway, should be reversed and the case remanded to permit further consideration 

of extraneous evidence of the grantor’s intent to convey inchoate adverse possession 

rights in the driveway to appellants. Appellants memorialized their transaction with 

respect to the disputed parcel in a written deed. As the deed is clear on its face that 

there was no transfer to appellants of whatever inchoate rights the grantor might 

have had to the driveway, there is no need to remand to consider parol evidence. 

Summary judgment to the title owner was therefore the correct resolution of this 

case. 

The law of adverse possession can be arcane, at times inconsistent, and many 

times has to be extracted from old cases that do not fully explain their reasoning. 

This is even more so when it comes to the rules that apply to tacking of inchoate 

rights to adverse possession. But there are certain guideposts. “‘Tacking’ has been 

defined as ‘successive, uninterrupted possessions by persons between whom privity 

exists. If such tacked possessions constitute one continuous adverse possession for 

the statutory period it will be sufficient.’” Sears v. Catholic Archdiocese of 

Washington, 5 A.3d 653, 662 (D.C. 2010) (quoting Bonds v. Smith, 143 F.2d 369, 

371 (D.C. Cir. 1944). The rules that govern claims of adverse possession and that 
22 

permit tacking of successive periods of adverse possession to satisfy the statutory 

limitations period are designed to favor the title owner. These rules include 1) the 

heightened burden of proof imposed on the adverse-possession claimant who must 

prove his or her claim by clear and convincing evidence1; 2) the requirement of 

privity between those who seek to cumulate periods of adverse possession; and 3) 

the strict requirement of uninterrupted actual adverse possession between parties 

with privity. If any of these requirements is not proved by the requisite clear and 

convincing evidence, tacking is not permitted “because the moment the first 

occupant quits possession, the constructive possession of the owner is restored, and 

the entry of the next occupant constitutes him a new disseisor.” Id. (quoting Gore 

v. Hall, 112 A.2d 675, 678 (Md. 1955)). Whether there has been actual continuous 

adverse possession for the requisite time even if tacking were allowed in this case is 

a disputed issue. The question of law that is presented, and on which the trial court 

granted summary judgement, is whether there is the requisite privity between 

appellants and their grantor to permit tacking. 

 1

 “Because ‘courts presume that one who occupies the land of another does 

so with the latter’s consent,’ the party seeking to establish a claim by adverse 

possession has the burden of doing so by ‘clear and convincing evidence.’” Sears, 

5 A.3d at 658 (quoting Smith v Tippett, 569 A.2d 1186, 1190 (D.C. 1990)). 
23 

“Privity” is a “connection or relationship between two parties, each having a 

legally recognized interest in the same subject matter (such as a transaction, 

proceeding, or piece of property).” Black’s Law Dictionary (10th ed. 2014). Privity 

can be established in different ways, for example, by descent, devise, purchase or 

grant. “Generally, a grantee may not tack the adverse possession of the grantor over 

land not included in the conveyance of other land, to the grantee’s own subsequent 

possession unless such omission was included in a correction deed or unless the 

claimant relies on an actual transfer rather than on the deed to establish privity.” 2 

C.J.S. Adverse Possession § 172 (2019). Tacking is “generally [not permitted] 

where the disputed land was not mentioned, included, or contemplated in a deed or 

conveyance . . . .” Id. “One who has acquired property by deed and seeks to tack 

the prior adverse possession of his or her grantor onto his or her own possession, to 

establish continuity of possession for purposes of adverse possession, ordinarily 

must show an express reference to or description of the disputed property in the 

grantor’s deed. Possession generally cannot be tacked to make out title by adverse 

possession where the deed by which the last occupant claims title does not include 

the land in dispute.” 3 Am. Jur. 2d Adverse Possession § 76 (2019); see Sears, 5 

A.3d at 658, 663; Messer v. Hibernia Sav. & Loan Soc., 84 P. 835, 837 (Cal. 1906) 

(“A claimant of land by adverse possession cannot tack to the time of his possession 

that of a previous holder, where the land is not included in the boundaries in the deed 
24 

from such holder.”); Senez v. Collins, 957 A.2d 1057, 1075 (Md. 2008) (“[G]enerally 

the rule is that possession cannot be tacked to make out title by prescription where 

the deed by which the last occupant claims title does not include the land in 

dispute.”); Sheldon v. Michigan Cent. R. Co., 126 N.W. 1056, 1059 (Mich. 1910) 

(“The general rule is that possession cannot be tacked to make out title by 

prescription where the deed under which the last occupant claims title does not 

include the land in dispute.”); Ramsey v. Ramsey, 49 S.E.2d 476, 477 (N.C. 1948) 

(“It is true there is evidence tending to show that [the defendant’s] predecessor in 

title used [the disputed land] as he used it. But [the defendant’s] deed did not convey 

or purport to convey [the disputed land] or the triangular tract upon which [the 

disputed land] is located. The description contained in defendant's deed does not 

embrace it. . . . Therefore, he is not permitted to tack their possession, even if adverse 

within the meaning of the law, to his possession so as to show adverse possession 

for the requisite statutory period.”); Baylor v. Soska, 658 A.2d 743, 746 (Pa. 1995) 

(“The only method by which an adverse possessor may convey the title asserted by 

adverse possession is to describe in the instrument of conveyance by means 

minimally acceptable for conveyancing of realty that which is intended to be 

conveyed.”) (cited in Sears, 5 A.3d at 660); Tissino v. Mavrakis, 228 P.2d 106, 116 

(Wyo. 1951) (quoting 2 C.J.S., Adverse Possession, § 131 d, which states “[a]s a 

general proposition, a claimant may not tack to his claim arising from his possession 
25 

of a disputed piece or strip of land the possession of his grantor where the disputed 

land was not mentioned, included, or contemplated in a deed or conveyance to him 

of other land.”). 

There can be exceptions to the general rule, however, as when the disputed 

parcel was inadvertently omitted from the deed and there is a subsequent deed 

correcting the oversight. 2 C.J.S. Adverse Possession § 172. Some cases allow 

tacking where the disputed parcel is “omitted from a deed description, especially 

contiguous property” and there is proof that the grantor “intended to and actually 

turned over possession.” Id.2

 This appears to have been the situation in Brumbaugh 

 2

 The treatises cited in the majority’s opinion, see ante at 8-10, also emphasize 

that tacking might be permitted in situations where the deed is silent with respect to 

the disputed parcel. See 16 Michael Allan Wolf, Powell on Real Property § 91.10[2] 

(2009) (referring to “conveying instrument [that] contains no legal description of the 

property” and property “omitted from a deed description,” at 91-73; “adjacent land 

not covered by the deed,” at 91-76; 3 Am. Jur. 2d Adverse Possession § 76 (“If, in 

connection with a conveyance of lands, there are circumstances showing an intent 

to transfer to the grantee the possession of other adjacent land occupied by the 

grantor, but not covered by the deed, there is privity, and the grantee is entitled to 

tack the period of the grantor’s occupancy to the grantee’s own in establishing title 

by adverse possession to the land not conveyed.”) (emphasis added); 2 C.J.S. 

Adverse Possession § 172 (referring to tacking of adverse possession periods with

respect to adjacent property “omitted from a deed description,” the “undescribed 

part,” and land that “adjoins land described in a deed, but is not described in the 
26 

v. Gompers, 269 F.472 (D.C. Cir. 1920), where the deed did not mention the disputed 

parcel. See ante at 6-7. I cautiously say “appears” because the Brumbaugh opinion 

does not explain its rationale for allowing tacking in that case. All the court says is 

that “a suggestion” was made that tacking should not be permitted and that it was 

rejected. We do not know what that suggestion was or why the court decided against 

it. We do not know whether the court was even focused on the contents of the deed 

with respect to the disputed parcel. What we do know, because we have obtained 

the record in that case — although the briefs could not be located — is that the deed 

did not convey or mention the disputed parcel as to which adverse possession claims 

were made.3

 

 

deed.”). As discussed in the text, this is not a case where the deed is silent with 

respect to the disputed parcel as the driveway is expressly referred to in the deed, as 

a right of way. 

 3

 The 100-year-old Brumbaugh opinion was not presented to this court when 

it decided Sears, nor was it cited by the parties in this appeal until the court brought 

it to their attention and requested supplemental briefing. Counsel’s failure to 

identify it as possibly relevant precedent in two appeals before this court is telling. 
27 

Faced with such a cryptic opinion, we can try to discern what the court had in 

mind from the cases it cites. They are not much help, however, to the majority’s 

interpretation. Of the five cases cited in Brumbaugh, two relied on deeds that 

conveyed the disputed property, Reid v. Anderson, 13 App. D.C. 30, 34 (App. D.C. 

1898),4

 and Lea v. Polk County Copper Co., 62 U.S. 493 (1858).5 Two cases cited 

in Brumbaugh allowed tacking where there was a deed that did not convey (or

mention) the disputed parcel as to which adverse possession rights were claimed. 

See St. Louis Sw. Ry. Co. v. Mulkey, 139 S.W. 643, 644 (Ark. 1911), and Viking 

Refrigerator & Mfg. Co. v. Crawford, 114 P. 240, 241 (Kan. 1911). The fifth case 

 

 4 The court in Reid rejected the claim of adverse possession because “there 

was no such open, actual, exclusive and continued possession of the premises by 

[the claimant] and those under whom he claims, for the full period of twenty years, 

as would make a good defensible title as against the party having a clear and 

paramount title by deed.” Id. at 36. 

 5

 In Lea two persons claimed to own property pursuant to two different deeds 

which purported to convey the same property. The question for the court in Lea was 

whether one of the deeds, which was unregistered and held by a bona fide purchaser, 

qualified for confirmation under a Tennessee limitations act “intended to protect and 

confirm void deeds purporting to convey an estate in fee simple, where seven years’ 

adverse possession had been held under them.” 62 U.S. at 505. The court held that 

it did and dismissed the action for ejectment. There was no question that the two 

successive adverse possessors that made up the seven years had conveyed the 

property by deed between them. See id. at 498. 
28 

allowed tacking based on several transfers of actual possession, mostly between 

family members, where there was no writing at all documenting the transfers. See 

Illinois Steel Co. v. Paczocha, 119 N.W. 550, 552 (Wis. 1909).6

 

 Notwithstanding Brumbaugh’s obscure text and the wide variety of 

circumstances involved in the authorities it cites, my colleagues assert that 

Brumbaugh adopted what they describe as the “majority rule” that generally allows 

tacking of inchoate adverse-possession rights whenever there is continuous adverse 

possession by two successive occupants of adjacent property and the first occupant 

sold the adjacent property to the second occupant. See ante at 8. That broad 

interpretation is unwarranted, however, as it reads into Brumbaugh a holding that 

goes well beyond the facts presented and authority cited in that case. The question 

is: what did Brumbaugh hold and does it govern this case? The answer is that 

Brumbaugh’s holding, to the extent we can divine it, does not govern this case 

because the facts are distinctly different. 

 

 6 Because there was no writing or deed that set out the parties’ understanding, 

the court allowed parol evidence about the circumstances of the successive transfers. 

See 119 N.W. at 553. 
29 

 In Brumbaugh, tacking of the grantor’s adverse-possession rights was allowed 

where the grantee of the property continued to use adversely an adjacent disputed 

parcel of land not mentioned in the deed. The Brumbaugh opinion did not say, one 

way or another, whether the same result would have obtained if the parcel had been 

referred to in the deed. It did not need to because it was not a fact in evidence. A 

court’s opinion is to be understood in the context of its factual setting. See District 

of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C. 1996); see also Levy v. District 

of Columbia Rental Hous. Comm'n, 126 A.3d 684, 690 (D.C. 2015). Moreover, the 

scope of a court’s holding is measured by whether a factor is an “integrated 

component” that is “essential to the outcome.” Parker v. K & L Gates, LLP, 76 A.3d 

859, 874 (D.C. 2013) (Ferren, S.J., concurring for the court).7

 Particular care should 

be taken not to overread a court’s opinion as adopting an expansive holding. See id.

 

7

 As we explained in Parker, 

This court has “equated binding precedent under M.A.P. with the rule 

of stare decisis,” which “is never properly invoked unless in the 

decision put forward as precedent the judicial mind has been applied to 

and passed upon the precise question.” Accordingly, for purposes of 

binding precedent, a holding is a narrow concept, a statement of the 

outcome accompanied by one or more legal steps or conclusions along 

the way that — as this court and other have repeatedly held — are 

“necessary” to explain the outcome; other observations are dicta. 

76 A.3d at 873 (quoting United States v. Debruhl, 38 A.3d 293, 298 (D.C. 2012). 
30 

at 876 (“The prior decision should not be construed more broadly by reference to 

nonessential, often ambiguous, sentences that can trigger hours of discussion as to 

whether the earlier decision was a binding holding or dictum.”); see also Albertie v. 

Louis & Alexander Corp., 646 A.2d 1001, 1005 (D.C. 1994). This caution is 

particularly prudent where (as in Brumbaugh) the court does not identify the precise 

issue it is deciding or explain its rationale. Applying these principles, Brumbaugh

should be interpreted as holding that the fact there is no conveyance of the disputed 

parcel in the deed does not preclude tacking where there is continuous adverse 

possession and sale from the first adverse occupant to the second. It does not stand 

for the much broader proposition asserted by the majority that tacking is permissible 

so long as those conditions are met, regardless of what the deed says. And 

Brumbaugh most definitely does not address, much less decide, the consequence, 

for tacking, of the type of reference to the disputed parcel contained in the deed in 

this case. 

 

That issue was addressed head on by this court in Sears, where 

notwithstanding transfer from seller to buyer of adjacent property and continuous 

possession of the disputed parcel — the conditions in Brumbaugh — tacking was 

precluded because the grantees could not establish the requisite privity with their 

grantors. See Sears, 5 A.3d at 663. Privity could not be shown because the deeds at 
31 

issue did not mention the disputed parcel as part of the conveyance and, “in 

addition,” the grantors had alerted the grantees (one orally, and the other in a note to 

a plat attached to the deed) that the disputed parcel did not convey. Id. Brumbaugh

was not an impediment to Sears’s holding because Sears addressed a different 

question, not presented or contemplated in Brumbaugh, where the grantees could not 

show by clear and convincing evidence that they had the requisite privity with the 

grantor with respect to the disputed parcel. This case, like Sears, is also one in which 

tacking is not permissible because the grantees cannot make the requisite showing 

of privity. Here, unlike in Brumbaugh, the deed between the parties is not silent 

with respect to the disputed driveway. To the contrary, the deed expressly mentions 

the driveway, excludes it from the conveyancing paragraph and specifically and 

accurately refers to it as a “right of way,” further identifying it by reference to the 

liber and folio recordation of an easement granted over that parcel that has been 

recorded in the land records of the District of Columbia since 1949.8

 In this case, 

 8

 The 2008 deed to appellants: 

Convey[s] . . . all that/those certain piece(s) or parcel(s) of land, 

together with the improvements, rights, privileges and appurtenances to 

the same belonging, situate in the District of Columbia, and as 

described in Exhibit A attached hereto and made a part hereof. 
32 

the deed is even clearer than in Sears that no transfer of adverse-possession rights to 

the driveway was intended and thus the required privity does not exist. 

There is no need for a remand because there is no reason to think that there 

was any ambiguity or mistake9

 in the deed that warrants looking outside its four 

corners to ascertain the intent of the parties at the time of the conveyance. In addition 

to describing the property being conveyed by metes and bounds, lot and square 

number, the deed adds that it conveys “the same property as described in Deed from 

Margaret C. Newsom dated May 23, 1998.” Supra note 8, at 31. There is no 

 

Being all of the same property as described in Deed from Margaret C. 

Newsom dated May 23, 1998, recorded June 5, 1998 among the records 

of the Recorder of Deeds for the District of Columbia as Instrument No. 

43251 . . . . 

Exhibit A, entitled “Legal Description,” refers to “Lot 50 in Square 

3366 . . . recorded in Liber No. 75 at Folio 163 . . . TOGETHER WITH 

a right of way more particularly described in Liber 8973 at [F]olio 581, 

of said land records.” (emphasis added). 

The right of way described in Exhibit A is the driveway appellants now claim 

to own. 

9

 The majority refers to a situation with “unjustified results,” where the 

description of the property conveyed in the deed was “inadvertently erroneous.” 

Ante at 15. But as mentioned, supra note 2, at 25, in such cases a corrected deed can 

be filed. In any event, there is no assertion that descriptions in the deed were 

erroneous. To the contrary, the references to the driveway were specific and 

accurately described it as a right of way. 
33 

contention made or evidence presented that in 1998 Ms. Newsom, the predecessor 

to appellants’ grantor Ms. Harleston, had any inchoate adverse-possession rights to 

the driveway; appellants’ disputed contention is that adverse possession began with 

Ms. Harleston’s acquisition of the property and erection of a fence across the 

driveway sometime between 1998 (when she acquired the property from Margaret 

Newsome) and 2000. See ante at 3. Therefore, by its precise legal description of 

the property being conveyed, by additionally fixing the ownership rights being 

conveyed with reference to those existing in 1998, and by its express and accurate 

description of the grantor’s interest in the driveway as a right of way, the deed in this 

case could not be more clear. Transfer of inchoate adverse-possession rights in the 

driveway was simply not contemplated by the parties as coming within the privity 

created by their sale transaction. 

The rule the majority adopts is not only not mandated by Brumbaugh, but also 

contravenes fundamental principles of contract law we have long followed. Where 

parties enter into a transaction that is documented in a writing, it is that writing that 

contains the intent of the parties with respect to their agreement on the subject matter. 

Consistent with this principle, in determining whether there is the necessary privity 

to allow tacking of adverse-possession rights to an adjacent parcel, it is necessary to 

look at the deed in the first instance as Sears did. This is reasonable because any 
34 

adverse possessory rights to an adjacent parcel will have arisen in connection with 

use appurtenant to the titled property being conveyed in the deed and the parties can 

be expected to have been aware of both parcels, as was the case in Sears, and in this 

case. The deed (which appellants call “immaterial”) is the best evidence of the 

parties’ intentions in establishing their relationship. 

In cases where, as here, there is a conveyance by deed and the deed refers to 

the disputed parcel, the deed is the touchstone with respect to that parcel and we 

should resist going beyond the deed to permit a broad-ranging review of extraneous 

evidence of the grantor’s subjective intent as the majority proposes. The majority’s 

approach is inconsistent with well-established law on the interpretation of deeds and 

the policy in favor of public recordation of land titles. “We interpret deeds as we do 

contracts, i.e., under the ‘objective law of contracts.’ This means that ‘the written 

language embodying the terms of an agreement will govern the rights and liabilities 

of the parties [regardless] of the intent of the parties at the time they entered into the 

contract . . . .’” Joyner v. Estate of Johnson, 36 A.3d 851, 855 (D.C. 2012) (internal 

citations omitted and alteration in original). The majority gives license to set aside 
35 

a written recorded instrument that addresses the disputed parcel in favor of a search 

for parol evidence, including evidence of previously unexpressed subjective intent.10 

The majority’s holding is deeply problematic from a policy perspective. The 

doctrine of adverse possession — which recognizes ownership only under specific, 

narrow conditions — is an exception to the general rule of property ownership 

through acquisition of title by means of instruments (e.g., deeds, wills) that are 

readily verifiable and generally available in public records. The rules we adopt to 

 

10 Even if we were to look beyond the deed to divine the grantor’s intent, 

the affidavit of Ms. Harleston presented by appellants plainly states that she believed 

she had an “easement” in the driveway and that she intended to “convey ownership 

of the easement.” Ms. Harleston, who is a lawyer, and who signed an affidavit to be 

presented in court, should be presumed to have used the legal term “easement” 

according to its plain and longstanding meaning. See Easement, Black’s Law 

Dictionary (10th ed. 2014) (“an interest in land owned by another person, consisting 

in the right to use or control the land . . . for a specific or limited purpose. . . .”) 

(emphasis added). The majority’s strained reading of the affidavit, and its attempt 

to interpret surrounding circumstances to support an atextual interpretation, ante at 

17-18, simply cannot be squared with what the affidavit actually says. The plain 

language of Ms. Harleston’s affidavit does not say that she claimed ownership of the 

driveway or intended to convey inchoate adverse-possession rights to it. The 

affidavit plainly states the opposite, that she had an easement to use a driveway 

owned by someone else. 

Evidence that Ms. Harleston erected a fence that, appellants claim, prevented 

appellee from using the driveway may support her adverse possession, but it is 

hardly evidence of her intent to transfer to appellants whatever inchoate rights her 

adverse possession might have created. See ante at 17. As discussed above, both 

the deed she executed at the time she sold her property to appellants and the affidavit 

she signed for them in this litigation say she was conveying a right of way in the 

driveway. 
36 

recognize transfer of right to ownership by adverse possession should be in harmony 

with and not undermine the important purposes underlying the requirement of 

recordation of deeds: notice, stability, clarity, and certainty. See, e.g., Smart v. 

Nevins, 298 A.2d 217, 219 (D.C. 1972) (“It is fundamental that the purpose of 

recordation is to protect the rights of bona fide purchasers, creditors, assignees, and 

others relying upon the indicia of record ownership.”); Young v. Howard, 120 F.2d 

712, 713 (D.C. Cir. 1941) (“A primary purpose of the recordation of an instrument 

is to give notice of its existence to those about to deal with the property involved. 

Such persons are protected by, and charged with, notice of the recorded 

instrument.”); see also D.C. Code § 47-1431 (a) (2015 Repl.) (“Within 30 days after 

the execution of a deed or other document by which legal title to real property . . . is 

transferred . . . all transferees . . . shall record a fully acknowledged copy of the deed 

or other document, including the lot and square number of the real property 

transferred or encumbered, with the Recorder of Deeds of the District of 

Columbia.”).11

 

11 As the Supreme Court of Pennsylvania has persuasively observed, “the 

entire concept of ‘circumstances’ in the context of tacking is misplaced”: 
37 

These important purposes were fully met in this case by a deed that clearly 

described the property transferred in detail, with a metes and bounds description, 

reference to square and lot number, and liber and folio recordation. That detailed 

description did not include the disputed driveway. The deed also expressly referred 

to the driveway as a right-of-way that has been recorded in the District of Columbia 

since 1949, with specific reference to its liber and folio numbers, without any 

indication that there was any change and that the grantor had a claim to ownership 

by adverse possession. The majority’s holding undermines the purpose of 

recordation generally, and flies in the face of the documents actually recorded in this 

case by allowing consideration of the grantor’s subjective and heretofore 

 

Interested parties have a right to discern from the record of the state the 

title of any parcel of land. If tacking were to be permitted because of 

vague, undefined “circumstances,” there could be and most likely 

would be no way for one not a party to the conveyance to know this. 

But the law mandates that a person asserting a claim of adverse

possession make this assertion openly and notoriously to all the world. 

There must be no secret that the adverse possessor is asserting a claim 

to the land in question. If the adverse possessor’s claim is to be passed 

onto a successor in title, therefore, there must be some objective indicia 

of record by which it can be discerned with some degree of certainty 

that a claim of title by adverse possession is being made and that the 

duration of this claim has been passed on to a successor in title. 

Baylor, 658 A.2d at 745-46 (internal citation omitted). 
38 

unexpressed intent to convey adverse possession rights against the record owner of 

title. Ante at 19-20. 

 

Finally, I would point out that even under the rule announced by the majority, 

two necessary elements are not met in appellants’ case. The majority asserts that to 

show the privity required to permit tacking, a claimant must prove, by clear and 

convincing evidence, that (1) the claimant acquired an adjacent property, (2) the 

claimant’s grantor and the claimant were in continuous adverse possession of the 

property at issue; (3) the deed between the claimant’s grantor and the claimant did 

not expressly disavow transfer of an ownership interest in the property at issue; and 

(4) the claimant’s grantor intended to surrender possession of the property at issue. 

Ante at 7-8, 19-20. The first element is met, but the second element is factually 

disputed. It is the third and fourth elements that cannot be met in this case as a matter 

of law. 

The deed in this case expressly disavowed any inchoate adverse possessory 

interest in the driveway by specifically referring to a “right of way” in that parcel. 

As with “easement,” the term “right of way” is well understood to mean a right to 

“pass through property owned by another person.” Right-of-Way, Black’s Law 
39 

Dictionary (10th ed. 2014) (emphasis added). This is the type of disavowal of an 

ownership interest, similar to one made in Sears,

12 that the majority recognizes as 

precluding tacking. Ante at 19-20. The deed also disavows transfer of any 

ownership interest in the driveway by stating that the property being conveyed is “all 

of the same property” that was transferred to the grantor in 1998, before any of the 

alleged adverse possessions began. See supra note 8, at 31. The deed therefore does 

not convey any rights that appellants’ grantor might have acquired after 1998.13 

Thus, by its terms the deed did expressly disavow transfer of inchoate adversepossession rights in the driveway. It is difficult to conceive — and the majority does 

not say — what more would be required to constitute an “express disavowal” of the 

transfer of adverse possession rights. 

Nor does the evidence outside the deed suffice to remand in search for support 

that appellants’ grantor, Ms. Harleston, intended to transfer adverse possession 

 12 Sears, 5 A.3d at 655 (“As to lot 816, Ms. Downey warned Sears when he 

bought it in 1996, that ‘we always enjoyed the use of this property, that we held it 

but we didn’t have a deed to it, and that he could legally pursue this if he wanted to 

. . . . I said that all of the land did not convey. Whatever was on the deed was on the 

deed, but they had the full use of the yard and that we had always had it too.’”) 

(emphasis in original). 

13 Appellants allege that their grantor erected a fence across the driveway 

sometime between the time when she purchased the property in 1998 and 2000. Ante

at 3. 
40 

rights to the driveway. While summary judgment is inappropriate where there are 

genuine disputes of material fact, there is no genuine dispute here in light of the 

exacting burden — clear and convincing evidence — appellants must bear. The 

deed is the foremost expression of the intent of the parties to the transaction. Both 

in the deed contemporaneous with the sale of land in 2008 and even in Ms. 

Harleston’s subsequent affidavit prepared for the purpose of this litigation in 2016, 

it is clear from the face of both documents that there was a disavowal of ownership 

of the driveway, which always and correctly described the grantor’s rights in the 

driveway as a right of way and an easement. In the face of these two written 

documents, appellants cannot, as a matter of law, succeed in establishing with the 

requisite convincing clarity that the deed did not expressly disavow ownership in the 

driveway or that the grantor intended to convey inchoate adverse possessory rights 

to the driveway.14 Thus, even applying the elements the majority would require to 

permit tacking, the record in this case does not warrant a remand. 

 14 The sufficiency of evidence to meet the clear and convincing standard of 

proof in light of the unequivocal language of the deed and plain meaning of the 

affidavit is a question of law we decide de novo. 
41 

As tacking by appellants was not permissible, I dissent from the majority’s 

decision to reverse and remand for further proceedings. I would affirm the trial 

court’s grant of summary judgment to appellee, the title owner of record.