Nome 2000 v. Fagerstrom, No. s-3409, Supreme Court of Alaska, (1990) handout.

• Fagerstrom family used disputed parcel in summer for recreation and subsistence
• Use began around 1944.
• In 1963 they were married and in 1963 they brought building material to the north end in order to build a cabin.
• In 1970 they used for cornerposts to stake off a 12 acre area. The southeast stake disappeared at an unknown time.
• In 1970 they built a picnic area in the north end.
• In 1974 they placed a camper trailer on the north end. It was parked there seasonally.
• In 1974 also built an outhouse and a fish racked. Also planted some spruce trees.
• In 1977 they built a reindeer shelter. It was there until 1978.
• There were also various walking paths on the property.
• Neighbors were allowed to use the property for berry picking and fishing.
• In 1978 they built a cabin on the north end.
• Alaska statute provides adverse possession must be for ten consecutive years in order to acquire title.

On July 24, 1987 Nome 2000 filed suit to eject Charles And Peggy Fagerstrom from the disputed parcel. The Fagerstroms counterclaimed that through their use of the parcel they had acquired title by adverse possession.

1. Did the Fagerstrom’s use of the disputed property enough to give them title to the north end of the property under adverse possession laws?
2. Can they also claim the southern portion under adverse possession?

Adverse possession depends on the character of the land in question.

1. We hold that the jury could reasonably conclude that the Fagerstroms established by clear and convincing evidence, continuous, notorious and exclusive possession for ten years prior to the date Nome 2000 filed suit.
2. The Fagerstrom’s use of the trails and picking up of litter, although perhaps indicative of adverse use, would not provide the reasonably diligent owner with visible evidence of another’s exercise of dominion and control.

Quality and quantity of acts required for adverse possession depend on the character of the land in question. Conditions of continuity and exclusivity require only that the land be used for the statutory period as an average owner of similar property would use it. Where, as in the present case, the land is rural, a lesser exercise of dominion and control may be reasonable.

A diligent owner could see a hostile flag was being flown over his property. Therefore the notoriety requirement was met.

2. Only property actually possessed may be acquired be adverse possession.

In order to establish adverse possession the claimant must prove by clear and convincing evidence that for the statutory period his use of the land was continuous, open and notorious, exclusive and hostile to the true owner.