Lawrence S. Foley, Plaintiff
Joseph V. and Julie Ann Vari Defendants
Submitted: December 18, 2013.
Draft Report: March 26, 2014.
Kim E. Ayvazian Master in Chancery.
This case involves a dispute over the location of the common boundary between two properties near Odessa, Delaware. The lands of Petitioner Lawrence S. Foley, New Castle County tax parcel no. 14-003.00-005 (hereinafter "Parcel 005"), and the lands of Respondents Joseph V. and Julie Ann Vari, New Castle County tax parcel no. 14-003.00-008 (hereinafter "Parcel 008"), are located on River Road east of Odessa along the Appoquinimink Creek (hereinafter "the Creek"). The dispute first arose in 2006 after Foley built a duck blind on the edge of the marsh in close proximity to a duck blind on the Varis' property. Foley subsequently filed suit in this Court, seeking legal and equitable title to two disputed areas of marsh, which are shown on the diagram below as "Disputed Area 1" and "Disputed Area 2." A two-day trial took place in April 2013, after which the parties submitted written closing arguments. Having reviewed carefully the exhibits, the transcripts of witnesses' testimony, and the written closing arguments, I am now issuing a draft report in which I recommend that the Court deny Petitioner's legal and equitable claims to Disputed Area 2 but grant Petitioner title by adverse possession to Disputed Area 1.
I have attached a diagram below showing: (a) the two disputed areas of marsh; (b) a boundary line denominated "Bakhsh's Metes and Bounds line;" and (c) a plot of the 1955 conveyance of land from Irving Rawley to Claude Haman, Sr., the parties' predecessors in interest. The diagram below does not include compass directions, but if a line were drawn from the bottom left corner of the diagram to a point where a large ditch joins the Creek near the top right corner, this imaginary line would lie along the north/south axis. Disputed Area 1 lies to the east and Disputed Area 2 lies to the west of this imaginary line. Disputed Area 1 is bordered on the north by the Creek and on the west by the large ditch. Disputed Area 2 is bordered approximately on three sides by the upper portion of this ditch and on the fourth side by marsh and cripple land owned by the Varis. "Bakhsh's Metes & Bounds line" (hereinafter "the metes and bounds line") divides Disputed Area 1 from Foley's marsh and cripple land along its southern and eastern borders, and divides Disputed Area 2 from the Varis' marsh and cripple land along its eastern border.
II. Legal Title
A. Factual Background
The lands owned by the parties were once part of a single agricultural parcel that was foreclosed upon and divided into two farms in 1886. Between 1894 and 1902, both farms were owned by Edwin S. Armstrong. In 1902, Armstrong sold one farm containing approximately 252 acres to Richard L. Gray,  and the other farm containing approximately 141 acres to William C. McCoy. Gray's farm changed ownership many times before 1954, when it was purchased by Haman, Sr. In 1969, Haman, Sr. sold the farm to his son Claude Haman, Jr.,  who sold it to the Varis in 2006. Ownership of McCoy's farm changed twice before it was purchased by Rawley in 1918. During his lifetime, Rawley made two out-conveyances of property, which will be discussed more fully below. When Rawley died in 1965,  ownership of what remained of his farm descended through his daughter's family to his grandson Foley,  who inherited the property upon his father's death in 1996.
The legal description of the common boundary is the same in both chains of title going back to 1886, with one major difference. In the Varis' chain of title, the legal description of the common boundary line begins at a low water mark on the Creek, and then runs "[six courses and distances] to a stake at the head of a ditch; thence South 50.5 degrees East, [38.6 perches] to a stake in the river road leading from Odessa to Port Penn, dividing this land from the land late of John Atherly, deceased[.]" In Foley's chain of title, the legal description of the common boundary line begins at a stake in the River Road, and "thence by lands, late of Joshua B. Fennimore, now of Richard L. Gray, North 51.5 degrees West [38.6 perches] to a stake at the head of a ditch; thence with the center of said ditch the following [six] courses and distances ... to low water mark in the" Creek. Both chains of title contain calls to "the stake at the head of a ditch" and "the low water mark" on the Creek. In addition, between these two calls is a call to a series of six courses and distances that are nearly identical except for the compass directions. The major difference is that the Varis' chain of title does not contain the additional call "thence with the center of said ditch."
The deed from Armstrong to Gray was recorded on August 22, 1902,  approximately two weeks before the deed from Armstrong to McCoy was recorded on September 4, 1902. The Varis contend that because the 1902 deed to Gray was recorded first, their chain of title is senior to Foley's chain of title. Furthermore, since Foley's chain of title contains a call to the lands of Gray, the Varis contend that Foley's deed accepted the boundary of the Varis' property as a monument. They argue, therefore, that the seniority of their chain of title and the rule of preference render irrelevant the call to "the center of said ditch" in Foley's chain of title. According to the Varis, the call to the six courses and distances, which is shown on the above diagram as "Bakhsh's Metes and Bounds line, " establishes the common boundary between the two properties. Since the two disputed areas lie west of this metes and bounds line, the Varis claim legal title to both disputed areas of marsh.
Foley argues that the Varis are estopped from arguing that their chain of title takes precedence because in a deed dated September 30, 1955 (hereinafter "the 1955 Deed"),  Rawley and Haman, Sr. agreed that the center line of the ditch was their common boundary line. Foley also contends that the ditch called to in the 1955 Deed is the existing ditch that borders the two disputed areas of marsh. Since the ...