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DAVID MYERS v. ROBERT CANTON AND MARIA CANTON (05/11/70)

decided: May 11, 1970.

DAVID MYERS, APPELLANT,
v.
ROBERT CANTON AND MARIA CANTON, THEIR HEIRS AND NEXT OF KIN, ADINA KEAN AND OSMOND KEAN, THE WEST INDIAN COMPANY, LTD., AND ALL OTHER PERSONS CLAIMING AN INTEREST IN REAL PROPERTY NO. 11 NORDSIDEVEJ, QUEEN'S QUARTER, ST. THOMAS, VIRGIN ISLANDS



Hastie, Chief Judge, and Ganey and Stahl,*fn* Circuit Judges.

Author: Hastie

Opinion OF THE COURT

HASTIE, Chief Judge.

This appeal has been taken from a judgment of the District Court of the Virgin Islands which denied the appellant's claim that he had acquired title to Lot No. 11 and Lot No. 11A, Nordsidevej, in St. Thomas, by adverse possession.

After an evidentiary hearing without a jury, the trial court made the following findings of fact:

"1. That in 1933, the plaintiff entered into possession of a small wooden house purchased from one Abraham Fince for the sum of $225.00.

"2. That while it was at first thought that the wooden house was located on Lot No. 11 Nordsidevej, a field inspection by the Office of the Tax Assessor in 1966 located it in fact on Lot No. 11A Nordsidevej, Charlotte Amalie, St. Thomas.

"3. That Lot No. 11 Nordsidevej has existed as a separate lot since survey of 1870 and Lot No. 11A Nordsidevej has been a separate lot since 1872, each with a separate chain of title.

"4. The amount paid yearly for taxes by plaintiff on Lot No. 11 throughout the years and until 1960 was $2.50, including the tax bill sent by the Tax Assessor for the year 1958, which bill recites payment of $2.50 for a superficiary house located on Lot. No. 11, whereas, in fact there was no structure at that time on No. 11.

"5. That such taxes as were paid by plaintiff on Lot No. 11A were for a superficiary house, including the 1966 bill for $14.35 for improvements, such bill showing no assessment for taxes on real property.

"6. That since January 1946, the defendants, Adina Kean and Osmond Kean, the owners of record of Lot No. 11A, have been paying the real property taxes thereon.

"7. Plaintiff and his family were absent from St. Thomas between 1933 and 1952 while he served in the Merchant Marine and his family resided in New York City until his return to St. Thomas in 1961."

In the Virgin Islands, "The uninterrupted, exclusive, actual, physical, adverse, continuous, notorious possession of real property under claim or color of title for 15 years" will divest the owner's title by adverse possession. 28 V.I.C. ยง 11 (1962). Despite the district court's finding "7", the evidence is clear and unchallenged that the appellant or his family did occupy the house in question and the surrounding land continuously for more than 15 years after he entered into possession in 1933.

In greater detail, land records and undisputed evidence in this case established the following facts. Lots 11 and 11A, the properties in dispute, together constitute an approximately rectangular area about 150 feet long and 75 feet wide. At one time the entire rectangle was Lot 11. However, within and at one end of the original perimeter there had been carved out and recorded in 1872 a smaller rectangular lot about ...


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