                                COURT OF CHANCERY
                                      OF THE
                                STATE OF DELAWARE
PATRICIA W. GRIFFIN                                                     CHANCERY COURTHOUSE
MASTER IN CHANCERY                                                           34 The Circle
                                                                     GEORGETOWN, DELAWARE 19947




                              Final Report: June 18, 2020
                             Date Submitted: June 5, 2020


Kristin C. Collison, Esquire                    Tasha M. Stevens, Esquire
Hudson Jones Jaywork & Fisher, LLC              Fuqua Willard Stevens & Schab, P.A.
225 South State Street                          26 The Circle
Dover, DE 19901                                 Georgetown, DE 19947

RE:      Estate of Queen Elizabeth Waples v. Ada Burton, et al.
         C.A. No. 2018-0518-PWG

Dear Counsel:

         Pending before me is a petition for declaratory judgment and to quiet title by

one co-tenant who claims title to two parcels of real property through adverse

possession and ouster of the other co-tenants. The remaining co-tenants filed a

motion for summary judgment arguing that they are entitled to judgment as a

matter of law because the requirements for adverse possession have not been met

and the facts do not show that the adverse possessor intended to deprive them of

their ownership interest. I find the evidence does not show an ouster, which is

required to dispossess co-tenants, even though the adverse possessor, along with

her husband, paid taxes and sewer charges for the properties, and I recommend the

Court grant co-tenants’ motion for summary judgment. This is a final report.
Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

           I.    Background

         The property at issue are two parcels of land in Sussex County – one

identified as tax parcel no. 334-13.20-40.00 (“Parcel 40”) and the other identified

as tax parcel no. 334-13.20-42.00 (“Parcel 42”), which were deeded to Irene White

(“White”) on May 29, 1947.1 Parcel 40 was deeded to Alvin and Ida Hudson on

September 17, 1947 and then to Hurley Waples, Sr. (“Hurley Sr.”) and Annie

Waples, as tenants by the entireties, on December 30, 1957.2 There is no record of

Parcel 42 being transferred from White. White died in 1948 and, under her Will,

she left her sister a life estate in her real property, and Hurley Sr. as her remainder

beneficiary.3 When White’s sister died in 1955, title to Parcel 42 vested in Hurley

Sr., who died in 1969, leaving his children, Respondents Ada Burton (“Ada”),

Hurley Waples Jr. (“Hurley Jr.”), Emma Harmon, Martha White, Irene Morris

(“Irene”), (together “Respondents”), and Augustus Waples, Sr. (“Augustus”), as

his heirs and co-tenants of the Properties.4




1
    Docket Item (“D.I.) 1, ¶¶ 3, 4, Ex. B.
2
 Id., Ex. B, Ex. C. I use first names in pursuit of clarity and intend no familiarity or
disrespect.
3
    Id., ¶ 8, Ex. D.
4
 D.I. 14, Resp’ts’ Opening Br. in Supp. of Mot. for Summ. J. [hereinafter “Resp’ts’
Opening Br.”], at 3; D.I. 17, Pet’r’s Answering Br. to Mot. for Summ. J. [hereinafter
“Pet’r’s Br.”], at 2.

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

         Petitioner Queen Elizabeth Waples (“Petitioner”) claims that she and her late

husband, Augustus, began caring for Parcel 40 and Parcel 42 (together, the

“Properties”) and treating them as their own beginning in the 1950s.            They

exercised their possession “in multiple open ways, including maintaining its

appearance by mowing it regular and cultivating a garden on it,” and by paying

property taxes and sewer bills associated with the Properties.5            Following

Augustus’ death on November 12, 2005, Petitioner asserts she continued to

maintain the Properties and treat them as her own.

         On July 18, 2018, Petitioner filed the petition for declaratory judgment and

to quiet title asking the Court to declare that title in the Properties is vested in

Petitioner through adverse possession. Respondents’ October 15, 2018 answer

denies that Petitioner has obtained title to the Properties through adverse

possession. On April 17, 2020, Respondents filed a motion for summary judgment

(“Motion”) claiming that they are entitled to judgment as a matter of law because

the undisputed facts do not show Petitioner’s intent to hold the Properties

exclusively for herself, or an ouster of the co-tenants. Petitioner responds in her

Motion that, if the facts are considered in a light more favorable to her, sufficient

facts exist to establish that Petitioner obtained title to the Properties by adverse



5
    D.I. 1, ¶¶ 11-13.

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

possession.6 Respondents’ June 5, 2020 reply brief asserts Petitioner’s sworn

factual account demonstrates mutual use of the Properties by the co-tenants, not

her exclusive possession.

         II.     Standard for Review

        Under Court of Chancery Rule 56, the court grants a motion for summary

judgment when “the moving party demonstrates the absence of issues of material

fact and that it is entitled to a judgment as a matter of law.”7 The moving party

bears the burden of demonstrating that no material issues of fact are in dispute and

that it is entitled to judgment as a matter of law.8 Once the moving party has

satisfied that burden, it falls on the non-moving party to show that there are factual

disputes. Evidence must be viewed “in the light most favorable to the non-moving




6
 Petitioner’s Counsel filed a suggestion of death and motion for substitution on May 22,
2020, stating that Queen Elizabeth Waples died on January 18, 2020, and seeking to
substitute her daughter, Demporis Jones, executrix of her estate, as Petitioner. D.I. 16.
The motion for substitution was granted on June 12, 2020. D.I. 19.
7
 Wagamon v. Dolan, 2012 WL 1388847, at *2 (Del. Ch. Apr. 20, 2012); see also Pine
River Master Fund Ltd. v. Amur Fin. Co., Inc., 2017 WL 4023099, at *6 (Del. Ch. Sept.
13, 2017) (citation omitted); Cincinnati Bell Cellular Sys. Co. v. Ameritech Mobile Phone
Serv. of Cincinnati, Inc., 1996 WL 506906, at *2 (Del. Ch. Sept. 3, 1996), aff’d, 692 A.2d
411 (Del. 1997).
8
  Cain v. Sussex Cty. Council, 2020 WL 2122775, at *6 (Del. Ch. May 4, 2020);
Dieckman v. Regency GP LP, 2019 WL 5576886, at *11 (Del. Ch. Oct. 29, 2019)
(citation omitted); Wagamon, 2012 WL 1388847, at *2.

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

party.”9 Summary judgment may not be granted when material issues of fact exist

or if the Court determines that it “seems desirable to inquire more thoroughly into

the facts in order to clarify the application of law to the circumstances.”10

         III.    Analysis

         To claim title to property, an adverse possessor must show, by a

preponderance of the evidence “(1) open and notorious, (2) hostile and adverse, (3)

exclusive, (4) actual possession, (5) that was continuous for twenty years.”11

“Open and notorious means that the possession must be public so that the owner

and others have notice of the possession.”12 “A use is adverse or hostile if it is

inconsistent with the rights of the owner.”13 “Exclusive possession means that the

adverse possessor must show exclusive dominion over the land and an



9
 Williams v. Geier, 671 A.2d 1368, 1389 (Del. 1996) (citing Merrill v. Crothall-
American, Inc., 606 A.2d 96, 99 (Del. 1992)); see also Pine River Master Fund Ltd.,
2017 WL 4023099, at *6 (citation omitted).
10
  Williams, 671 A.2d at 1388-89 (citing Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del.
1962)); In re Estate of Turner, 2004 WL 74473, at *4 (Del. Ch. Jan. 9, 2004) (citation
omitted).
11
     Tumulty v. Schreppler, 132 A.3d 4, 24 (Del. Ch. 2015).
12
  Id., at 27 (citing Walker v. Five N. Corp., 2007 WL 2473278, at *4 (Del. Super. Aug.
31, 2007).
13
  Bogia v. Kleiner, 2019 WL 3761647, at *10 (Del. Ch. Aug. 8, 2019), reargument
denied sub nom. Bogia v. O’Neal (Del. Ch. 2020) (citation omitted); see also Ayers v.
Pave It, LLC, 2006 WL 2052377, at *2 (Del. Ch. July 11, 2006) (“‘[o]pen and notorious’
mean[s] that the possession must be public so that the owner and others have notice of the
possession.”) (citations omitted).

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

appropriation of it to his or her own use or benefit.”14 The adverse possessor “must

intend to hold the land for himself, and that intention must be made manifest by his

acts.”15 Actual possession and open and notorious overlap and, “[a]s a general rule

it will be sufficient if the land is so used by the adverse claimant as to apprise the

community in its locality that it is in his exclusive use and enjoyment, and to put

the owner on inquiry as to the nature and extent of the invasion of his rights.”16

“The 20 year period may be established by tacking on the periods when the

property was held by successive adverse holders.”17

           “The party claiming adverse possession bears the burden of proving all the

elements of the adverse holding.”18 Once those elements have been shown, the

burden shifts to the record owner to rebut the adverse possession claim by

establishing that possession was permissive.19

           The consideration is different, however, when the adverse possessor is a co-

tenant seeking to dispossess other co-tenants of the property. Possession by one

co-tenant “is considered to be constructive possession by all other tenants in

14
     Walker v. Five N. Corp., 2007 WL 2473278, at *4.
15
     Marvel v. Barley Mill Rd. Homes, 104 A.2d 908, 911 (1954).
16
     Id., at 912.
17
  In re Campher, 1985 WL 21134, at *2 (Del. Ch. Mar. 20, 1985), aff’d, 498 A.2d 1090
(Del. 1985).
18
     Id.
19
     Id.

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

common.”20 So, for a co-tenant to acquire title to the entire property by adverse

possession, she must show an ouster of the co-tenants.                                “For a co-tenant in

possession to prevail upon a claim of adverse possession against a co-tenant out of

possession        it   is    necessary        for        a       petitioner   to   establish:   (1)   intent;

(2) adverse possession in fact; and (3) knowledge or notice of the adverse

holding.”21 “The proof of an ouster of a co-tenant must be stronger than would be

an ouster between strangers.”22 For possession of one co-tenant to amount to an

ouster of other co-tenants, “there must be something to show a denial or

repudiation of the other co-tenants’ rights, or possession will be deemed to be held

in subordination to the other cotenants’ rights.”23

         I address Petitioner’s claims to the Properties separately, relying, in large

part, on undisputed evidence provided through her deposition testimony. 24 Hurley,

Sr. and his wife obtained title to Parcel 40 in 1957. Petitioner claims that she and

20
  In re Campher, 498 A.2d at 1094; see also Subt v. Subt, 1990 WL 29755, at *3 (Del.
Ch. Feb. 16, 1990); In re 2.00 acres+ situated on the NW/S of Cty. Rd. #126, Kenton
Hundred, Kent Cty. [hereinafter In re 2.00 acres+], 1977 WL 23801, at *2 (Del. Ch. Oct.
21, 1977).
21
     In re Campher, 498 A.2d at 1094; In re 2.00 acres+, 1977 WL 23801, at *3.
22
  In re Campher, 1985 WL 21134, at *2; see also Collins v. Sussex Tr. Co., 1989 WL
48680, at *7 (Del. Super. May 5, 1989), on reargument, 1989 WL 70901 (Del. Super.
June 15, 1989).
23
  Huston v. Lambert, 281 A.2d 511, 512 (Del. Ch. 1971) (citation omitted); see also
Smith v. Lemp, 63 A.2d 169, 170 (1949).
24
  The transcript of Petitioner’s deposition, which was conducted on April 2, 2019, is
included as an appendix to the Motion. D.I. 14, App., A-8 - A-57.

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

Augustus began caring for Parcel 40 and treating it as their own in the 1950s.

Parcel 40 had a house on it that was not lived in and was torn down before Hurley

Sr.’s death in 1969.25 Petitioner maintained a garden and chicken yard on Parcel

40 for years and her son and grandson cut the grass on Parcel 40.26 She never put a

fence on Parcel 40.27 She testified that the co-tenants walk across Parcel 40 and

that Hurley, Jr., a co-tenant, used to sell birdhouses on Parcel 40, and also cut grass

on the Properties.28

         Hurley Sr., who inherited Parcel 42 in 1955, lived in a house on Parcel 42

until his passing in 1969, with his daughters Irene and Ada staying in the house at

times.29 The house burned down after his death,30 and Parcel 42 has remained

mainly an empty lot used for parking by Petitioner’s guests and by Hurley Jr., who

also built buildings extending out from his own property onto Parcel 42 (some built

more than 10 years ago), that he uses.31


25
     Id., A-21 - A-22.
26
     Id., A-21 - A-25.
27
     Id., A-23.
28
  Id., A-47 - A-50. Petitioner’ testimony was not clear whether Hurley, Jr. cut grass on
both properties or only one of the properties. She also testified that Hurley, Jr. had a
garden on the property and it appeared, from her remarks, that she was referring to Parcel
40, although the garden may have been located on Parcel 42. Id., A-47 - A-48.
29
     Id., A-17.
30
     Id., A-15 - A-17.
31
     Id., A-36 - A-38; A-34 - A-36.

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

         Petitioner’s testimony in support of her adverse possession claim focuses on

the fact that she and/or Augustus have paid taxes on the Properties, without

contribution from the other co-tenants, since the 1950s.32 She testified, however,

that they began doing so, not because they believed they owned the Properties, but

because Hurley, Sr.’s wife asked them to pay the taxes so the Properties wouldn’t

be taken.33 More recently, after the sewer system was installed, Petitioner paid all

of the sewer charges for the Properties, which remain in Hurley, Sr.’s name.34

Petitioner testified that she and Augustus, to her knowledge, never told the other

co-tenants that they could not come on to or use Parcel 40 or Parcel 42, or that she

and Augustus owned the Properties and the co-tenants did not own the Properties.35

She did not ask the Respondents to help pay the taxes or sewer charges, or to help

care for the Properties because she felt she “shouldn’t have to ask.”36 Further,

when Hurley, Jr. asked her about purchasing a piece of Parcel 42, she responded “I

can’t sell the lot . . . because it was the heirs’ property,” and, when asked who she




32
     Id., A-19, A-26, A-29 - A-30, A33, A-38.
33
     Id., A-19 - A-20, A-29.
34
     Id., A-26, A-29, A-37.
35
     Id., A-29, A-31, A-44 - A-45.
36
     Id., A-26 - A-27, A-28 - A-29.

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

was referring to as “heirs,” she stated the Respondents.37 She testified “all of the

property I own is heir property.”38

         Respondents argue that Petitioner is unable to prove the elements of

exclusivity and hostility required for an adverse possession, or to show she had

exclusive dominion over the land and appropriated it for her benefit, since her

deposition testimony demonstrated mutual use of the Properties by her and the

other co-tenants. They claim she has not shown an ouster of the co-tenants, and

“now wants to own the property because she paid the taxes for years without the

help of the Respondents.”39 And the “payment of taxes is not alone enough to

create a title in land.”40               Petitioner responds that Petitioner’s allowance of

Respondents’ occasional use of the Properties, without confrontation, and her

failure to expressly declare her intention to adversely possess the Properties, do not

mean the hostile and exclusive elements of adverse possession have not been

met.41

         For Petitioner’s adverse possession claim, I focus on activities related to the

Properties in the 20-year period between 1998 and 2018, when Petitioner filed the


37
     Id., A-32 - A-33.
38
     Id., A-45.
39
     Resp’ts’ Opening Br., at 9-10.
40
  Id., at 10 (citing Edwards v. Estate of Muller, 1993 WL 487787, at *1 (Del. Ch. Nov.
15, 1993)).

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

petition. From 1969 (at Hurley, Sr.’s death) until his death in 2005, Augustus was

a co-tenant of the Properties, along with his siblings.              At Augustus’ death,

Petitioner (his surviving spouse) inherited a life estate in his co-tenancy in the

Properties through intestacy, which began in 2005 and expired at her death in

January of 2020.42              Therefore, I analyze the adverse possession claim in

consideration of their positions as co-tenants of the Properties with Respondents.

          For their Motion to be granted, Respondents must show they are entitled to

judgment as a matter of law and there are no material facts in dispute, even when

the evidence is considered in a light most favorable to Petitioner. For Petitioner to

obtain adverse possession over co-tenants of the Properties she must show open

and notorious, hostile and adverse, exclusive, actual, and continuous possession of

the Properties for 20 years. And, she must show her intent to adversely possess the

Properties; her adverse possession in fact; and either notice to the other co-tenants,

or their knowledge of her repudiation of their rights to the Properties. In other




41
     Pet’r’s Br., at 7-9.
42
   See 12 Del. C. §502. I take judicial notice of Register of Wills filings for the estate of
Augustus Waples, Sr., which include an affidavit signed on April 23, 2018 by Petitioner,
as personal representative of the estate, stating that no Will executed by Augustus has
been found. See Arot v. Lardani, 2018 WL 5430297, at *1, n. 6 (Del. Ch. Oct. 29, 2018)
(“Because the Register of Wills is a Clerk of the Court of Chancery, filings with
the Register of Wills are subject to judicial notice.”)(citations omitted); State v.
Falkowski, 2001 WL 1448487, at *1, n. 1 (Del. Super. Oct. 2, 2001).

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

words, proof of her ouster of the other co-tenants of the Properties, which requires

stronger proof than is required against strangers.

        It is undisputed that Petitioner, and Augustus during his lifetime, paid taxes

on the Properties for decades (since the 1950s), and that Petitioner has paid sewer

charges on the Properties in recent years. Payment of taxes can give “rise to a

question of fact on who controlled the land,” and is “ordinarily considered an act of

ownership.”43 However, courts have held that other facts in the record “negate an

inference of exclusive possession.”44                    Here, Petitioner’s and Augustus’ act in

paying taxes on the Properties began not as a claim of ownership but as a generous,

voluntary act to assist Hurley Sr. and his wife to prevent them from losing the

Properties. It is undisputed that Respondents never offered to contribute – or

contributed – towards the Properties’ taxes. But, the evidence does not show any

act or communication by Petitioner or Augustus signaling to the other co-tenants

that the payment of taxes and sewer costs stopped being a voluntary contribution as

a co-tenant and switched to a demonstration that the Petitioner/Augustus intended

to hold the Properties exclusively for themselves. Neither Petitioner nor Augustus


43
   Edwards v. Estate of Muller, 1994 WL 728791, at *5 (Del. Ch. Dec. 13, 1994); Collins
v. Sussex Tr. Co., 1989 WL 48680, at *7 (Del. Super. May 5, 1989), on reargument, 1989
WL 70901 (Del. Super. June 15, 1989).
44
  Edwards, 1994 WL 728791, at *5; see also Collins, 1989 WL 48680, at *7, n. 4 (“The
Court is not saying that payment of taxes is enough for the plaintiffs to claim adverse
possession. There are numerous factors to proving such a claim”).

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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

told the other co-tenants that they could not use the Properties or that Petitioner

was claiming exclusive ownership of the Properties.              I recognize Petitioner’s

reluctance to cause the family dissension that may result from providing notice,

through words or actions, that she was ousting family members from the

Properties. But it is exactly that kind of interaction or overt action that shows an

ouster – proof that the co-tenants had notice, or should have known, that the

adverse possessor was repudiating their property interests and that, in response, the

co-tenants failed to act to protect their ownership interests.

        Further, Respondents’ use of the Properties was not occasional as Petitioner

argues.      Respondents used the Properties, which are vacant lots, in a similar

manner as did the Petitioner, by walking unrestricted on the Properties, and one of

the Respondents, Hurley, Jr., parked cars, cut grass on the Properties, and used the

Properties to sell his birdhouses. Unlike the Petitioner – who made no

improvements on the Properties over the years – Hurley, Jr. constructed buildings

that extended onto the Properties. Petitioner does not have to show absolute

exclusivity for adverse possession but she has to show some proof that she was

holding herself out as exclusive owner – that she intended to dispossess the co-

tenants, that she actually possessed the Properties, and evidence of notice to, or the

co-tenants’ knowledge of, her adverse possession. And, Petitioner’s claim that



                                                         13
Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

Hurley, Jr. was under the impression Petitioner owned the Properties when he

offered to help with the land, or to buy a piece of it, is unpersuasive. Offering to

help with the Properties does not necessarily mean he thought Petitioner had

exclusive possession of the Properties, since his offers were not inconsistent with a

co-tenant offering to help maintain jointly owned property or asking one co-tenant

about buying part of the Properties before talking with others.           Moreover,

Petitioner’s response – that she can’t sell the land because the land she owns is

“heir property” – evidences Petitioner’s understanding that her interests in the

Properties are not exclusive and calls into question her intent and actual possession

of the Properties.

        Even considering the evidence in a light most favorable for Petitioner,

Petitioner has not met her burden of proving the elements of adverse possession in

this instance, and the material facts are undisputed. There were no overt, hostile

and exclusive acts of possession that provided notice of Petitioner’s exclusive

ownership and denial or repudiation of the other co-tenants’ rights to the

Properties. Her and Augustus’ payment of taxes and sewer costs does not, without

additional evidence, support the inference of exclusive possession needed to show

an ouster of co-tenants, especially since the proof required is stronger than would

be required for a stranger claiming adverse possession. Therefore, Respondents



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Estate of Queen Elizabeth Waples v. Ada Burton, et al.
C.A. No. 2018-0518-PWG
June 18, 2020

are entitled to judgment as a matter of law and I recommend that the Court grant

their Motion.

        IV.      Conclusion

        Based upon the reasons set forth above, I find that, considering the evidence

in a light most favorable to Petitioner, Petitioner has not met her burden of proving

the elements of adverse possession to show an ouster of Respondents as co-tenants

of the Properties, Parcel 40 and Parcel 42. Therefore, I recommend that the Court

grant Respondents’ motion for summary judgment. This is a final report and

exceptions may be taken pursuant to Court of Chancery Rule 144.

                                                              Respectfully,

                                                              /s/ Patricia W. Griffin

                                                              Patricia W. Griffin
                                                              Master in Chancery




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