Notice: This opinion is subject to formal r evision before publication in the Atlantic and Maryland Reporters. Users are reques ted to notify the Clerk of the Court of any formal errors so that corrections ma y be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-CV-22

O RON and R EBECCAH G AN , A PPELLANTS ,

v. V AN B UREN S TREET M ETHODIST C HURCH , A PPELLEE

. 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 T HOMPSON and M C L EESE , Associate Judges , and R UIZ , Senior Judge

. Opinion for the court by Associate Judge M C L EESE

. Separate statement by Associate Judge T HOMPSON at page 20. Dissenting opinion by Senior Judge R UIZ at page 21.

M C L EESE , 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. The2 Gans challenge the trial court’ s grant of summary judgment to t he Church. We vacate and remand for further proceedings.

I.

The following facts are undisputed except as indicated. The Ga ns 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, approximatel y ten feet wide, running from the back of the Church’s property to Eastern Avenu e, parallel to the Gans’ property line.

The Gans purchased 6638 Eastern Avenue from Ms. Bernice Harlest on in 2008. The deed conveyed “all that/those certain piece(s) or pa rcel(s) of land, together with the improvements, rights, privileges and appurten ances to the same belonging . . . as described in Exhibit A attached hereto and m ade 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 record s.” Liber 8973 at folio 581 recorded an easement over the driveway.3

It is uncontested that according to the pertinent deeds the Chu rch is the title owner of the driveway. The Gans argue, however, that they are the rightful owners of the driveway under the doctr ine of adverse possession. “To establish title by adverse possession, appellants mu st demonstrate possession of t he land that is actual, open and notorious, exclusive, continuous, and hostile, through out a period of fifteen years.” Sears v. Catholic Archdiocese , 5 A.3d 653, 658 (D.C. 2010) (internal quotation marks omitted). Accordi ng to the Gans, by no later t han 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 e xistence thereafter, although at some point the origina l fence was replaced by a woo den fence. In support of their adverse-possess ion claim, the Gans submitted a n affidavit executed by Ms. Harleston in 2016. In the affidavit, Ms. Harleston atte sted that her purchase deed had referred to “an easement area on the property (the ‘Ea sement’)”; that in 2000 she put a fence across the Ea sement to prevent access to t he property; that she

maintained that fence until she so ld the property; that she had believed that she owned the Easement; and that she had intended to convey ownersh ip 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 lan d 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 f ence since 2000 preventing its use of the driveway. That factual dispute, if m aterial, would have to be decided at a trial. For current purposes, we assume the tru th of the Gans’ contention that Ms. Harleston and the Gans have adversely posse ssed 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 t o 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 g round that tacking was precluded because the deed from Ms. Harleston to th e Gans on its face5 did not convey title to, or an i nchoate adverse-possession inte rest in, the driveway, instead conveying only the right t o an easement over the drivew ay.

II.

We review de novo a trial court’s grant of summary judgment, vi ewing 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 judg ment 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 p reserve in the trial court the arguments they present in this court. To the contrary, we conclude that the Gans’ opp osition to the Church’s motion for summary judgment adequa tely preserved the issues tha t we decide in this opinion.

The central issue in this appeal is whether the Gans are forecl osed as a matter of law from tacking Ms. Harleston’s period of adverse possessio n onto their own. We conclude that, under controlli ng precedent, the Gans may tac k Ms. Harleston’s period of adverse possession onto their own if they can prove a t trial by clear and convincing evidence that Ms. Harleston intended to grant them p ossession of the disputed driveway.6

A.

Almost one hundred years ago, the Court of Appeals for the Dist rict 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 t itle to the strip

of land. Id. The plaintiff had bought an a djacent 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 peri od 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 disput ed strip of land back

to at least 1883. Id. In response to the suggestion that the two periods of possess ion 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 th e meaning of the law. This contention may be put out of view by a citation of the fol lowing 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 lan d

described in the deed . . . does not include the strip in contr oversy, still [appellee’s]7 grantor . . . thought it did, and at the time of the conveyance transferred to her the possession of it in fact . . . . T his was sufficient even if i t be conceded there was no conveyance of it in writing, and constituted such privity as en titled [appellee] to avail of his or their adverse possessi on and to tack her possession t o 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 o ccupants; rejecting view that tacking is permitted only if deed or other writing transfers adverse-possession inte rest, and approving principle that “[a]ll the law requires is continuity of possess ion, 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 p ossession where there is privity between successive occupants, but required pri vity is “merely [that of] physical possession, and is not dependent on any clai m, or attempted transfer, of any other interest o r title in the land”).

In Brumbaugh , tacking was held proper where (1) there was continuous adverse possession of the disput ed property by two successive o ccupants who owned an adjacent property, and (2) the first occupant sold the adjac ent 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 Michael8 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[] adve rse 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 we ight of authority, and the more desirable rule, find privity in these circumstance s, and so permit tacking.”); 3 Am. Jur. 2d Adverse Possession § 73 (2013) (“Thus, if one adverse claimant, by agreement, surrende rs possession to another, and t he acts of the parties are such that the two possessions actually connect, leaving no interval for the constructive possession of the tru e owner to intervene, the two possessions are blended into one, and the runn ing of the limitation period on t he 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 g rantor, but not covered by the deed, there is p rivity, and the grantee is entit led to tack the period of the grantor’s occupancy to the grantee’s own in establishing ti tle 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 tran sfer rather than on a deed to establish privity of possessions, the failure of the de ed to pass the disputed land will not destroy the priv ity. Successive adverse possessi ons of property omitted from a deed description, especia lly contiguous property, may be tacked if it appears9 that the adverse possessor intended to and actually turned over possession of the undescribed part with the portion of the land included in the d eed. Where land that is adversely held, adjoins land described in a deed, but is not described in the deed,

and continues to an obvious bou ndary, such as a fence, the gran tor’s intent to convey the entire enclosed area is imp lied 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 re lationship which will prevent a break in the adverse possessions and refer the s everal 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 appar ently adhered to in a few jurisdictions, the cases, esp ecially the later ones, run ge nerally to the effect that in order to permit the tacking of successive adverse possession s of vendor and purchaser of an area not within the premises as described in th e deed or contract but contiguous thereto, the composite fact to be established is the intended and actual transfer or delivery of possessi on 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 tack ing purposes may be shown to have taken place by im plication and without express wo rds or any10 ceremony of transfer.”); 2 C.J. Adverse Possession § 97 (1915) (“[S]uccessive grantors may transfer their possession of a strip of land succe ssively and continuously occupied as part of the granted premises, but not included in the description in any of the deeds, and . . . by such continuity o f possession for the prescriptive period title by lim itations 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 Un ited States Court of Appeals for the District of Columbia Circuit (a nd its predecessors) prior to February 1, 1971, are part of the case law of this cou rt.”; citing inter alia 1896 decision of the Court of Appeals for the District of Colum bia); M.A.P. v. Ryan , 285 A.2d 310, 312 (D.C. 1971) (“[N]o division of this court wil l overrule a prior

decision of this court or refuse to follow a decision of the Un ited States Court of Appeals rendered prior to February 1, 1971, and . . . such resu lt can only be accomplished by this court en b anc.”) (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 co nveying property from Ms. Harleston to the Gans on its face conveyed an adverse-posse ssion interest in the driveway. In deciding that contention, we are bound to follow Brumbaugh even11 though no party brought Brumbaugh to the attention of the t rial 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) (“Wh ile 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 fa iled to cite them to us.”). (A t the court’s request, the parties did file suppl emental 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 adve rse 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 t ransfers 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 ta cking.”) (brackets and internal quotation marks omitted), with id. (“Generally, for the purpose of effecting title by adverse possession, where the traditional requisites a re present, tacking of12 periods of possession by successive possessors is permitted aga inst an owner seeking to defeat such title, unless it is shown that the claimant’s pr edecessor in title did not intend to convey the disputed parcel.”) (internal quotation mar ks omitted). We need not attempt to further parse our decision in Sears on this issue, however, because

even if Sears were properly understood to hav e held that an express conveyan ce 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 cont rolling authority, we are requir ed to follow the earlier decision rather than the later one.”).

In sum, we hold that the trial court erred in concluding that t acking was precluded in this case unless the deed on its face conveyed an adverse-possession

interest from Ms. Harl eston to the Gans.

B.

The holding that express conveya nce is not a prerequisite to ta cking does not fully resolve this appeal. A number of courts following the ge neral rule permitting tacking in the absence of expre ss conveyance carve out an excep tion to that general rule where (a) the deed at issue expressly excludes the dispute d parcel or (b) the13 seller did not intend to turn over possession of the disputed p arcel 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 t o the court. 269

F. at 472-74. Sears , however, did address a simila r argument, and concluded that a s to two of the lots at issue the prior owner “expressly disavowe d” 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 disput ed property was not being conveyed; and as to the other lot the seller orally advis ed 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. Mor e generally, we accept the prin ciple that a period of adverse possession by a prior owner may not be tacked if (1) th e prior owner expressly disavows transfer of an interest in the disputed prop erty to the subsequent owner, or (2) the party claimi ng adverse possession fails to sh ow by clear and convincing evidence that the pri or 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 possessio n has the burden of doing so by clear and convincing evidence.”) (internal quotatio n marks omitted).14

The dissent, however, argues for a different exception to the m ajority approach we adopted in Brumbaugh

. Infra at 25-36. That exception apparently is as follows: tacking is genera lly impermissible if the deed at issue in any way mentions, but does not conve y, 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 disa vowed” an intent to transfer t he disputed property.

5 A.3d at 663. Nor do the other c ited authorities support the formulation advocated by the dissent. Some do state that actual transfer of possessi on is ordinarily sufficient to permit tacking when the dee d 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 aut horities do not state the converse proposition apparently advanced by the dissent: that tacking is precluded any time th e deed at issue makes any mention of the disputed prope rty. Moreover, a number of th e authorities at various points use formulations t hat contradict the theory of t he dissent. See, e.g. , Viking Refrig. , 114 P. at 240-41 (“All the law requires is continuity of poss ession,

where it is actual



### . ”) (internal quotation marks omitted); Tiffany, The Law of Real Property § 1146, at 776 (tacking may be b ased “upon any connecting rela tionship which will prevent a break in the adverse possessions and refer the several possessions to the original entry, and for this purpose no writ ten transfer or15 agreement is necessary”). Finally, the dissent’s theory would seemingly lead to unjustified results. For example, imagine a case involving a d eed 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 d issent, tacking would be preclu ded in such a case, even if (1) the deed did not expressly disavow conveyance of th e alley; (2) the parties to the deed established that the mutual intent was to convey th e alley and that the property description in the dee d was inadvertently erroneous; a nd (3) the seller had previously possessed the alley openly and notoriously; (4) cont emporaneously with the sale, the seller relinquished actual possession of the alle y to the buyer; (5) thereafter, the buyer possessed th e alley openly and notoriousl y; and (6) taken together, the two periods of open and notorious possession exce eded fifteen years. Such a conclusion would be inconsistent with the logic of the m ajority 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. Th e dissent, however, takes the view that the trial court’s summary-judgment ruling c an be upheld on the16 alternative grounds that (1) the deed between Ms. Harleston and the Gans expressly

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

Ms. Harleston’s affidavit was in sufficient to support a finding that Ms. Harleston intended to transfer an ownership interest in the driveway to t he Gans, infra at 35 n.10, 37-38. We disagree.

First, the deed between Ms. Harleston and the Gans did not cont ain any express disavowal as to the driveway. It is true that the driv eway did not fall within the bounds of the property transferred in fee simple by the dee d. It is also true that the deed explicitly conveyed an eas ement over the driveway. Bu t that only shows that the deed did not affirmatively transfer any ownership inte rest to the driveway. Our holding in Brumbaugh establishes that the mere abse nce 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, f or 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 vie w that the plain meaning of Ms . Harleston’s

affidavit is that Ms. Harleston understood herself to be convey ing only an easement interest in the driveway, not an ownership interest. Infra at 35 n.10. We note at the17 outset that the dissent’s interpretation of Ms. Harleston’s aff idavit is contrary to the interpretation given to the affi davit by both parties and by th e 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 interpretati on 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 prec lude use of the Easement by others. The affida vit concludes by averring that M s. Harleston believed that she owned the Easement and the she intended to convey the Easement to the

Gans. We conclude that this a ffidavit can reasonably be unders tood to reflect an intent to convey ownership of the driveway. Most importantly, if Ms. Harleston believed that she only had an eas ement over the dr iveway, rathe r 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 affi davit can reasonably

be understood to use the word “E asement” to define an area that Ms. Harleston believed she owned, not a descr iption 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 tha t summary judgment is appropriate. First, the trial court noted that Ms. Harlesto n’s affidavit was executed in 2016 and thus was not contemporaneous with the sale of the p roperty. 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 o f intent to support tacking based on trial testimony of parties about in tent 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 trans action 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 addr essed the question whether, despite its unambiguous language, the deed could be in terpreted to convey title to the disputed property. That holding in Sears did not address the different question whether, considering all of the circumstances, the sel ler intended to grant an interest in the disputed property sufficient to permit tacki ng of adverse-possession periods. Id.

Second, the trial court interprete d Ms. Harleston’s affidavit a s reflecting Ms.

Harleston’s erroneous belief that she owned the driveway at the time of the sale. In19 fact, Ms. Harleston at that time did not own the driveway, inst ead 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 under mine the relevance of her affidavit to the critical poi nt: whether Ms. Harleston int ended 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 q uotation marks omitted).

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

deed between Ms. Harleston and th e Gans did not convey any owne rship or adversepossession interest in the driveway; (2) tacking would have bee n precluded if the

deed between Ms. Harleston and th e Gans expressly disclaimed an y transfer of an ownership or adverse-possession interest in the driveway, but t here was no such disclaimer in this case; (3) tacking is permissible in this cas e only if the Gans can show by clear and convincing evidence that Ms. Harleston intend ed 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 tr ial court erred in granting su mmary judgment on the ground that tacking was precluded as a matter of law. I n light of our disposition, we need not and do not address the Gans’ claim tha t the trial court erred by granting summary judgment when there was an outstanding disc overy request.

We also do not address the alte rnative grounds for summary affi rmance raised by

the Church for the first time on post-argument supplemental bri efing.

For the foregoing reasons, we vacate the judgment of the Superi or Court and remand for further proceedings.

So ordered

.

Separate statement of T HOMPSON , Associate Judge : I agree with Judge Ruiz that our holding in this case is “problematic from a policy per spective” and that “[t]he rules we adopt to recognize transfer of right to ownersh ip by adverse possession should be in harmony with and not undermine the impo rtant purposes underlying the requirement of recordation of deeds: notice, st ability, 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

R

UIZ , 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 fu rther consideration of extraneous evidence of the g rantor’s intent to convey inchoa te adverse possession rights in the driveway to appella nts. 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 appellant s of whatever inchoate rights the grantor might have had to the driveway, there is no need to remand to conside r parol evidence. Summary judgment to the title owner was therefore the correct r esolution of this

case.

The law of adverse possession can b e arcane, at times inconsist ent, and many times has to be extracted from old cases that do not fully expl ain their reasoning. This is even more so when it comes to the rules that apply to t acking of inchoate rights to adverse possession. Bu t there are certain guideposts . “‘Tacking’ has been defined as ‘successive, uninterr upted possessions by persons be tween whom privity exists. If such tacked possessions constitute one continuous a dverse 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 that22 permit tacking of successive per iods of adverse possession to s atisfy the statutory limitations period are designed to favor the title owner. Thes e rules include 1) the heightened burden of proof imposed on the adverse-possession cl aimant who must prove his or her claim by clear and convincing evidence 1 ; 2) the requirement of privity between those who seek t o cumulate periods of adverse p ossession; and 3) the strict requirement of uninterrupted actual adverse possessi on between parties with privity. If any of these requirements is not proved by th e requisite clear and convincing evidence, tacking is not permitted “because the mome nt the first occupant quits possession, the constructive possession of the o wner 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)). Wh ether there has been actual continuous adverse possession for the requis ite 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 whe ther there is the requisite pr ivity between appellants and their gran tor to permit tacking.

1 “Because ‘courts presume that one who occupies the land of an other 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 rel ationship betwee n 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 (10 th 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 possessi on of the grantor over land not included in the conveyanc e of other land, to the grant ee’s own subsequent possession unless such omission was included in a correction de ed or unless the

claimant relies on an actual tran sfer rather than on the deed t o establish privity.” 2

C.J.S. Adverse Possession § 172 (2019). Tacking is “generally [not permitted] where the disputed land was not mentioned, included, or contemp lated in a deed or conveyance . . . .” Id. “One who has acquired property by deed and seeks to tack the prior adverse possession of h is or her grantor onto his or her own possession, to establish continuity of possession for purposes of adverse poss ession, ordinarily must show an express reference to or description of the dispute d property in the grantor’s deed. Possession gene rally cannot be tacked to make out title by adverse possession where the deed by which the last occupant claims tit le 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 t ime of his possession that of a previous holder, where the land is not included in th e boundaries in the deed24 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 inclu de 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 claim s 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 defend ant’s] predecessor in title used [the disputed land] a s he used it. But [the defenda nt’s] deed did not convey or purport to convey [the disputed land] or the triangular trac t upon which [the disputed land] is located. The description contained in defend ant'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 a dverse possessor may convey the title asserted by adverse possession is to describe in the instrument of conveyan ce by means minimally acceptable for conveyancing of realty that which is i ntended 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 arisi ng from his possession25 of a disputed piece or strip of land the possession of his gran tor 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 ge neral rule, however, as when t he disputed parcel was inadvertently omitted from the deed and there is a s ubsequent deed correcting the oversight. 2 C.J.S. Adverse Possession § 172. Some cases allow tacking where the disputed parcel is “omitted from a deed descr iption, especially contiguous property” and there is proof that the grantor “inten ded 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 l egal 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 l ands, there are circumstances showing an intent to transfer to the grantee the possession of other adjacent lan d 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 la nd not conveyed.”) (emphasis add ed); 2 C.J.S. Adverse Possession § 172 (referring to tacking of adverse possession periods with respect to adjacent property “om itted from a deed description,” the “undescribed part,” and land that “adjoins land described in a deed, but is not described in the26 v. Gompers , 269 F.472 (D.C. Cir. 1920), where the deed did not mention th e 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 cas e. All the court says is that “a suggestion” was made that tacking should not be permitt ed and that it was rejected. We do not know what that suggestion was or why the c ourt 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 loca ted — is that the deed did not convey or mention the disputed parcel as to which adver se possession claims

were made. 3

deed.”). As discussed in the text, this is not a case where th e deed is silent with respect to the disputed parcel as the driveway is expressly ref erred 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 cour t brought it to their attention and reques ted supplemental briefing. Cou nsel’s failure to identify it as possibl y relevant precedent in two appeals befor e this court is telling.27 Faced with such a cryptic opinion, we can try to discern what t he court had in

mind from the cases it cites. Th ey 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 rig hts 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, exclu sive and continued possession of the premises by [the claimant] and those under whom he claims, for the full per iod of twenty years, as would make a good defensible title as against the party havi ng 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 w as unregistered and held by a bona fide purchaser, qualified for confirmation under a Tennessee limitations act “i ntended to protect and confirm void deeds purporting to convey an estate in fee simple , where seven years’ adverse possession had been hel d under them.” 62 U.S. at 505. The court held that it did and dismissed the action for ejectment. There was no qu estion 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 severa l transfers of actual possession , mostly between family members, where there was no writing at all documenting t he 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 colleagu es assert that Brumbaugh adopted what they describe as the “majority rule” that general ly allows tacking of inchoate adverse-posse ssion 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 tha t 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 thi s case because the facts are distinctly different.

6 Because there was no wr iting or deed that set out t he 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 allowe d 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 r esult 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 factu al 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 a n “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 expan sive 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 ap plied to and passed upon the precise ques tion.” Accordingly, for purpos es of binding precedent, a holding is a narrow concept, a statement o f the outcome accompanied by one or more legal steps or conclusions a long the way that — as this court and other have repeatedly held — a re “necessary” to explain the outcome ; other observations are dict a. 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 r eference 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 conv eyance of the disputed parcel in the deed does not preclude tacking where there is con tinuous adverse possession and sale from the first adverse occupant to the seco nd. 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 dee d says. And Brumbaugh most definitely does not addre ss, much less decide, the conseq uence, for tacking, of the type of refe rence to the disputed parcel co ntained 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 prope rty and continuous possession of the disputed parcel

— the conditions in Brumbaugh

— tacking was precluded because the grantees could not establish the requisit e privity with their grantors. See Sears , 5 A.3d at 663. Privity could not be shown because the deeds at31 issue did not mention the disputed parcel as part of the convey ance and, “in addition,” the grantors had alerted the grantees (one orally, a nd the other in a note to a plat attached to the deed) th at the disputed parcel did not c onvey. 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 requisi te privity with the grantor with respect to the disp uted 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 de ed expressly mentions the driveway, excludes it from the conveyancing paragraph and s pecifically and accurately refers to it as a “right of way,” further identifyin g it by reference to the liber and folio recordation of an easement granted over that pa rcel 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 cer tain piece(s) or parcel(s) of land, together with the improvements, r ights, privileges and appurten ances 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 t hus the required privity does no t exist.

There is no need for a remand because there is no reason to thi nk that there was any ambiguity or mistake 9 in the deed that warrants looking outside its four corners to ascertain the intent of the parties at the time of t he 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 des cribed 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 Margar et C. Newsom dated May 23, 1998, recorded June 5, 1998 among the reco rds of the Recorder of Deeds for the District of Columbia as Instru ment 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 de scribed in Liber 8973 at [F]olio 581, of said land records .” (emphasis added). The right of way described in E xhibit A is the driveway appella nts now claim to own.

9 The majority refers to a situation with “unjustified results, ” where the description of the property conve yed in the deed was “inadverte ntly 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 i s no assertion that descriptions in the deed were erroneous. To the contrary, the references to the driveway wer e 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. Harle ston, had any inchoate adverse- possession rights to the driveway; appellants’ disput ed contention is that adverse p ossession began with Ms. Harleston’s acquisition of t he property and erection of a f ence across the driveway sometime between 1998 (w hen 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 a dditionally fixing the ownersh ip rights being conveyed with reference to thos e existing in 1998, and by its e xpress and accurate description of the grantor’s int erest in the driveway as a righ t of way, the deed in this

case could not be more clear. T ransfer of inchoate adverse-pos session rights in the driveway was simply not contemplated by the parties as coming w ithin the privity created by their sale transaction.

The rule the majority adopts is not only not mandated by Brumbaugh , but also contravenes fundamental principle s of contract law we have long followed. Where parties enter into a transaction that is documented in a writin g, it is that writing that contains the intent of the parties with respect to their agreem ent 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 pa rcel, it is necessary to

look at the deed in the first instance as Sears did. This is reasonable because any34 adverse possessory rights to an adjacent parcel will have arise n in connection with use appurtenant to the titled prope rty being conveyed in the de ed 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 bes t evidence of the parties’ intentions in estab lishing 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 r eview of extraneous evidence of the granto r’s subjective intent as the majority pro poses. The majority’s approach is inconsistent with well-established law on the inter pretation 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 a n agreement will govern the ri ghts 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 gi ves license to set aside35

a written recorded instrument th at addresses the disputed parce l in favor of a search for parol evidence, including evidence of previously unexpresse d subjective intent. 10

The majority’s holding is deeply problematic from a policy pers pective. The doctrine of adverse possession — which recognizes ownership onl y under specific, narrow conditions — is an exception to the general rule of prop erty 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 l ook 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 driv eway and that she intended to “convey ownership of the easement.” Ms. Harlest on, who is a lawyer, and who sign ed an affidavit to be presented in court, should be presumed to have used the legal t erm “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 affid avit, and its attempt to interpret surrounding circumstances to support an atextual i nterpretation, ante at 17-18, simply cannot be squared with what the affidavit actuall y says. The plain language of Ms. Harleston’s affidavit does not say that she cla imed ownership of the driveway or intended to convey inchoate adverse-possession righ ts 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 erect ed a fence that, appellants cl aim, prevented appellee from using the driveway may support her adverse posses sion, but it is hardly evidence of her intent to transfer to appellants whateve r 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 appe llants 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 impor tant purposes underlying the re quirement of recordation of deeds: notice, s tability, clarity, and certaint y. See, e.g. , Smart v.

Nevins , 298 A.2d 217, 219 (D.C. 1972) (“ It is fundamental that the pu rpose of recordation is to protect the rights of bona fide purchasers, c reditors, 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 recordatio n 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 ac knowledged copy of the deed or other document, including the lot and square number of the r eal property transferred or encumbered, with t he Recorder of Deeds of the Di strict of Columbia.”). 11

11 As the Supreme Court of Pennsylvania has persuasively observe d, “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 transferre d in detail, with a metes and bounds description, reference to square and lot number, and liber and folio recorda tion. That detailed description did not include the d isputed driveway. The deed al so 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 numb ers, without any indication that there was any cha nge and that the grantor had a claim to ownership by adverse possession. The majority’s holding undermines the p urpose of recordation generally, and flies in the face of the documents a ctually 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 t he state the title of any parcel of land. If t acking were to be permitted b ecause of vague, undefined “circumstances,” there could be and most likel y would be no way for one not a p arty to the conveyance to know t his. But the law mandates that a person asserting a claim of adverse possession make this assertion op enly and notoriously to all th e world. There must be no secret that the adverse possessor is asserting a claim to the land in question. If th e adverse possessor’s claim is t o be passed onto a successor in title, therefore, there must be some object ive indicia of record by which it can be discerned with some degree of cert ainty that a claim of title by adverse possession is being made and t hat the duration of this claim has been passed on to a successor in tit le.

Baylor , 658 A.2d at 745-46 (inter nal citation omitted).38 unexpressed intent to convey adve rse possession rights against the record owner of

title. Ante at 19-20.

Finally, I would point out that even under the rule announced b y the majority, two necessary elements are not m et in appellants’ case. The ma jority asserts that to show the privity required to per mit tacking, a claimant must pr ove, 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 eleme nt is factually disputed. It is the third and fourth elements that cannot be m et in this case as a matter

of law.

The deed in this case expressl y 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 Law39 Dictionary (10th ed. 2014) (empha sis 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 tr ansferred to the grantor in 19 98, 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 acqui red after 1998. 13 Thus, by its terms the deed did expressly disavow transfer of i nchoate adversepossession rights in the driveway. It is difficult to conceive — and the majority does not say — what more would be re quired to constitute an “express disavowal” of the transfer of adverse possession rights.

Nor does the evidence outside the deed suffice to remand in sea rch for support that appellants’ grantor, Ms. Harleston, intended to transfer a dverse possession

12 Sears , 5 A.3d at 655 (“As to lot 816, M s. Downey warned Sears when h e bought it in 1996, that ‘we always enjoyed the use of this prop erty, that we held it but we didn’t have a deed to it, and that he could legally purs ue 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 alw ays had it too.’”) (emphasis in original).

13 Appellants allege that their grantor erected a fence across t he driveway sometime between the time when she purchased the property in 19 98 and 2000. Ante at 3.40 rights to the driveway. While s ummary 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 mu st bear. The deed is the foremost expression of the intent of the parties to the transaction. Both in the deed contemporaneous with t he sale of land in 2008 and e ven in Ms. Harleston’s subsequent affidavit prepared for the purpose of th is litigation in 2016,

it is clear from the face of both documents that there was a di savowal of ownership of the driveway, which always and correctly described the grant or’s rights in the driveway as a right of way and an easement. In the face of the se two written documents, appellants cannot, as a matter of law, succeed in es tablishing with the requisite convincing clarity that the deed did not expressly di savow ownership in the driveway or that the grantor int ended to convey inchoate advers e possessory rights to the driveway. 14 Thus, even applying the elements the majority would require t o permit tacking, the record in th is case does not warrant a rema nd.

14 The sufficiency of evidence to meet the clear and convincing standard of proof in light of the unequivocal language of the deed and plai n meaning of the affidavit is a question of law we decide de novo.41 As tacking by appellants was not permissible, I dissent from th e majority’s decision to reverse and remand for further proceedings. I woul d affirm the trial court’s grant of summary judgmen t to appellee, the title owner of record.