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Marvel v. Barley Mill Road Homes, Inc.

Court of Chancery of Delaware, New Castle County

April 28, 1954

MARVEL et ux.
v.
BARLEY MILL ROAD HOMES, Inc.

Page 909

Action for declaratory judgment and to remove cloud on title to land adjoining land owned by plaintiffs. The Court of Chancery, Bramhall, Vice-Chancellor, held that use of disputed land by plaintiffs and their predecessors in title established open, notorious and hostile possession of land for more than twenty years sufficient to acquire title by adverse possession.

Plaintiffs adjudged legal owners of disputed land.

Page 910

[34 Del.Ch. 420] Action for declaratory judgment and to remove cloud on title.

Stephen E. Hamilton, Jr., Arthur G. Logan, and William Marvel, Wilmington, for plaintiffs.

Walter P. McEvilly and David Snellenburg II, of the firm of Killoran & Van Brunt, Wilmington, for defendant.

BRAMHALL, Vice-Chancellor.

Plaintiffs are the owners of a certain tract of land situate on Barley Mill Road, Christiana Hundred, New Castle County and State of Delaware. The defendant is the owner of a tract of land adjoining the lands of plaintiff on the west. Plaintiffs and their predecessors in title have asserted a claim of title to an area of stream and woodland consisting of .63 acres of land, adjoining the lands of plaintiffs and defendant, and which plaintiffs and their predecessors in title thought was a part of the land conveyed by the predecessors in title of defendant to the predecessors in title of plaintiffs on May 25, 1916. Although the land in dispute adjoined the land conveyed and other lands of predecessors of defendant, it was not contained in the description set forth in that deed.

It was understood between the grantors and grantee, as evidenced by letter dated September 29, 1915, from Charles G. Rupert, predecessor in title of defendant, to Josiah Marvel, Sr., and as testified to by plaintiff Josiah Marvel, Jr., that each party would be responsible for the erection and maintenance of a division fence along the line separating the land retained by the grantors and the land conveyed by grantors to grantee, the grantees to erect and maintain the fence on the northern half of the tract and the grantors the fence on the southern half. Plaintiff Josiah Marvel, Jr., testified that his father caused a fence to be erected on the northern half of the boundary and that grantors caused a fence to be erected on the southern half of the boundary, including the land in dispute. No fence was erected on the boundary line as called for in the deed to plaintiffs' predecessor in [34 Del.Ch. 421] title. Although there seems to have been some question in the minds of some of the witnesses as to whether or not the fence along the line of the disputed property was erected in 1916, or was there prior thereto, it is not disputed that after that time there was a fence of some sort separating the disputed property from the lands of grantors on the west and other lands on the south. Since evidence offered by plaintiffs to the effect that the fence along the line of the property in dispute was erected in 1916 as a part of the agreement between Charles G. Rupert and Josiah Marvel, Sr., is not disputed, I accept it as true.

At or about the time of the erection of the fence an organization known as the Brandywine Bridle Path Group, comprised of property owners in the neighborhood, was formed. The members of that group each agreed to provide for the group a bridle path through his or her land. In furtherance of this agreement, the predecessors in title of plaintiffs, at considerable difficulty and expense, provided a bridle path over a certain portion of their land, including the property in dispute. That bridle path was used by plaintiffs and adjoining landowners until the year 1924, and by Josiah Marvel, Sr., until his death in 1930. It is disputed as to whether or not the boundary fence ran entirely to the fence on the land of the adjoining landowner on the south, defendant contending that the fence stopped at a

Page 911

point about 12 or 14 feet north of the line of the property on the south and then turned to the west, providing a lane approximately 12 or 14 feet wide for some distance to the west. In any event, there was a post on the line separating the disputed property from the property of the owner of land to the south, in line with a post at the end of the line separating the disputed property from the property of defendant. Plaintiffs' testimony was to the effect that there was a bar-gate at that point. The lane at the point of the gate was obstructed by saplings and honeysuckle, indicating that the lane had been impassable for a great many years.

Plaintiffs and their predecessors in title from 1916 to the present time treated the property as their own, using it for walks, picnics, cutting of wood where trees had fallen down, posting it against hunting, and attempting to provide thereon a refuge for game. Defendant [34 Del.Ch. 422] asserts that plaintiffs' possession was not exclusive; that at different times the predecessors in title of defendant had entered the land in dispute for the purpose of obtaining water for stock; that the property in dispute was accessible from the lane above referred to which defendant contended adjoined the disputed property.

While there is some dispute as to many of the allegations of plaintiffs, there is no conflict as to many of the most important facts. Plaintiffs' predecessors in title purchased the land adjoining the property in dispute for the purpose of acquiring the stream on the disputed property and were under the impression that the property in dispute was included within the description of the property which they purchased. It was understood between the predecessors in title of both plaintiffs and defendant that a fence was to be erected on the property line. The testimony of Josiah Marvel, Jr., to the effect that a fence was erected on the line of the disputed property is not specifically denied. The bridle path was erected by the predecessors in title of plaintiffs under an agreement with other members of the bridle path group that each owner would ...


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