Stump v. Whibco

In 1948, Paul and Theania Cox bought property adjacent to Whibco (defendant). At the time, there was a mesh fence that seemed to run along the property line. The fence was old, overgrown, and only partially visible, if at all, in many places due to the vegetation covering the fence. Paul Cox, Jr. testified that it was hard to see that there was actually a fence, and that he could not tell where the fence began or ended. In the late 1960s, the Coxes replaced the mesh fence with a railroad-tie-and-cable fence. This new fence was well-maintained. Subsequently, Howard and Catherine Stump (plaintiffs) bought the property from the Coxes. The Stumps used the land up to the fence for boat storage. In 1981, the Stumps began making significant improvements to the land up to the fence, including a concrete walkway and a bulkhead. In 1990, a survey found that the fence was actually on Whibco’s property, protruding into the property by anywhere from one to 52.5 feet. In 1991, the Stumps brought suit seeking a declaration that they had obtained title to the portion of land enclosed by the fence by adverse possession. The trial court held that there was only a minor encroachment and any possession of land solely on account of placement of the fence did not constitute open and notorious possession. As a result, the court held that the Stumps’ adverse possession did not commence until they began the permanent improvements to the land and thus did not meet the 30-year statutory requirement for adverse possession. The Stumps appealed.