Conveyance of the Servient Parcel Terminates Prior Permission: Foley Reaffirmed and Distinguished from Hilley/Barrow in Adverse-Possession Hostility

1. Introduction

Raymond Desrochers et al. v. Luigi Micheli III is a Rhode Island adverse possession dispute between abutting landowners in Johnston. Plaintiffs Raymond and Debra Desrochers own 38 Pine Hill Avenue; defendant Luigi Micheli III owns 36 Pine Hill Avenue. After Micheli obtained a 2013 survey indicating encroachments, the parties’ conflict escalated into a 2016 quiet-title action grounded in adverse possession under G.L. 1956 § 34-7-1.

The central appellate issue was the element of hostility: whether plaintiffs’ long-standing use was adverse, or instead permissive due to an alleged 1985 conversation with defendant’s predecessor, George Cioe, near a line of hemlock trees thought to mark the boundary. The case also raised a recurring proof problem in adverse possession: whether the claimant has established, by clear and convincing evidence, the location of the land allegedly possessed.

2. Summary of the Opinion

The Supreme Court of Rhode Island affirmed in part, vacated in part, and remanded. It held that the trial justice erred as a matter of law in treating Barrow v. D & B Valley Associates, LLC as foreclosing hostility merely because a parcel changed hands, “irrespective of which parcel is sold.” The Court clarified that:

• Foley v. Lyons remains controlling where a servient parcel is conveyed: such conveyance terminates prior permission (a revocable personal license), allowing subsequent use to become hostile if the remaining elements are proven.
• Hilley v. Lawrence and Barrow v. D & B Valley Associates, LLC are distinguishable because they address conveyance of the dominant parcel while permission from the servient owner continues.

Because the trial justice’s hostility findings were shaped by an erroneous legal premise and because the “beyond the tree line” hostility determination lacked sufficient factual underpinnings, the Court remanded for further fact-finding on hostility for both portions of the disputed area. On the “location” issue, the Court rejected the notion that a metes-and-bounds description is always required, but required additional findings as to the location of the portion beyond the hemlock line.

3. Analysis

3.1. Precedents Cited

Hostility, permission, and the effect of later conveyances

• Foley v. Lyons: The Court treated Foley as the decisive Rhode Island rule for a key factual posture: when a use begins permissively by oral license and the servient parcel is later conveyed, the conveyance revokes the license. The Opinion quotes Foley directly for the proposition that “this oral license was revoked by Ferland’s conveyance of lot 13,” after which use “could mature into an easement” (and by analogy, hostility can accrue for adverse possession) if the elements are proven. This case supplies the doctrinal “switch” from permissive to potentially adverse use upon transfer of the servient estate.
• Hilley v. Lawrence: Hilley provided the general rule that “[w]hen permission is granted for a particular use, a later use of the same kind cannot be characterized as adverse,” and that permissive use becomes hostile only when permission is withdrawn or events show it “no longer obtained.” The Court emphasized that Hilley addressed conveyance of the dominant parcel—permission from the servient owner remained operative. Thus Hilley was not overruled; it was confined to its factual setting.
• Barrow v. D & B Valley Associates, LLC: The trial justice relied on Barrow for the proposition that alienation of either parcel does not constitute a new hostile act. The Supreme Court rejected that broad reading and re-situated Barrow as a dominant-parcel conveyance case applying Hilley: the permissive character of the use persists absent withdrawal of permission or a new hostile act. The Opinion also notes Barrow’s treatment of Waltimyer v. Smith, which had reasoned that predecessors’ permission is “merely a revocable personal license”; Rhode Island in Barrow declined to adopt that reasoning for dominant-parcel transfers, but the Court here relied on the “personal license” concept to explain why servient-parcel transfers are different.
• Tefft v. Reynolds: Used to anchor the presumption that entry under permission or license is subordinate to the true owner absent acts amounting to disseizin, reinforcing why permission defeats hostility and why the legal status of “permission” matters so much.
• Butterfly Realty v. James Romanella & Sons, Inc. and Butterfly Realty v. James Romanella & Sons, Inc., 93 A.3d 1022 (R.I. 2014) (Butterfly Realty II): Cited for appellate deference in adverse-possession fact-finding (the “zenith” of deference) and, critically, for the remedial approach of remand where further findings are necessary. The Court cited Butterfly Realty v. James Romanella & Sons, Inc., 45 A.3d 584 (R.I. 2012) (Butterfly Realty I) as authority to remand for additional findings when the trial court applied an incorrect legal framework.

Adverse possession elements, burden of proof, and “claim of right”

• Union Cemetery Burial Society of North Smithfield v. Foisy: Cited for the statutory framing of adverse possession and the elements (actual, open, notorious, hostile, continuous, exclusive under claim of right). Also cited in the “location” discussion, reinforcing the role of stipulated proof and evidentiary support for defining the area claimed.
• Clark v. Buttonwoods Beach Association: Cited for the standard of review and for defining hostility/claim of right: the claimant’s intent is adverse to the true owner; use is hostile if inconsistent with the owner’s rights and without permission. Also cited for the “vesting” principle that title vests immediately after the statutory period if elements are satisfied.
• DiPippo v. Sperling: Cited for the clear-and-convincing burden and the formulation that hostility is use inconsistent with owner rights, without permission, sufficient to support a trespass action.
• Tavares v. Beck: Cited for the objective test: focus on objective manifestations of adverse use rather than subjective knowledge of title defect; “open, visible acts” inconsistent with record-owner rights can establish claim of right/hostility.
• Carnevale v. Dupee and Carnevale v. Dupee, 853 A.2d 1197 (R.I. 2004): The earlier Carnevale citation supports vesting and general adverse-possession doctrine; the 2004 decision is used as remand authority where a trial justice fails to fully analyze statutory requirements.
• Koziol Firearms, Inc. v. Marchand: Cited for remanding when necessary trial-level fact-finding did not occur—supporting remand here on hostility and boundary/location issues.

Defining the land claimed

• Coscina v. DiPetrillo: Invoked by defendant to argue that plaintiffs failed to prove the precise dimensions of the disputed area. The Court clarified Coscina’s procedural posture (summary judgment) and reaffirmed its principle: an “accurate description” is essential, and the area adversely possessed must be proven by clear and convincing evidence. However, the Court refused to convert Coscina into a strict metes-and-bounds mandate at trial where other clear evidence (e.g., tree line, photos, testimony, and a stipulated survey showing encroachments) can establish location.

3.2. Legal Reasoning

1. Correcting the “conveyance” rule for permission and hostility: The Opinion’s core doctrinal move is to disentangle two categories of conveyance:
   • Servient-parcel conveyance (this case; Foley): permission is a personal license held by the servient owner; when the servient land is conveyed—particularly to a successor with no knowledge of the license—the permission does not logically persist. The license is revoked by conveyance, and the use thereafter may become hostile.
   • Dominant-parcel conveyance (Hilley, Barrow): the servient owner’s permission remains; the dominant owner’s change does not itself terminate the permission. Therefore, permissive use does not become hostile absent withdrawal or a new hostile act.
   The Court held the trial justice’s “irrespective of which parcel is sold” formulation to be legal error because it collapses these distinct doctrinal tracks.
2. Why remand instead of deciding hostility outright: Even after correcting the governing law, the Court refused to resolve hostility as a matter of appellate fact-finding. The trial justice had found the Cioe–Desrochers conversation “murky,” and the analysis of hostility was intertwined with the trial justice’s incorrect legal premise. Under Rhode Island’s highly deferential standard in adverse possession, the proper response was a remand for additional findings.
3. Boundary/location proof: flexible evidentiary sufficiency, but still “clear and convincing”: The Court accepted that a natural or historic demarcation (the hemlock line), corroborated by testimony and exhibits, can define the claimed area with sufficient particularity. The Court also treated the parties’ stipulation that the 2013 survey accurately depicted deed boundaries and encroachments as powerful evidence. However, as to the portion beyond the hemlock line, the Court found the record and findings insufficient: the trial justice’s description (“from the western footings of the playset east into the woods”) did not match the trial evidence (which referred to the southeast corner of the playset and staging running up to the tree line), necessitating further findings.

3.3. Impact

• Clarified Rhode Island rule on permission after conveyance: The Opinion restores and reinforces a concrete, practice-relevant distinction: transfer of the servient estate terminates prior permission (under Foley), while transfer of the dominant estate does not (under Hilley/Barrow absent changed circumstances). This matters for adverse possession defenses grounded in “permission” because the identity and continuity of the servient owner becomes a dispositive timeline marker.
• Litigation strategy and proof: Parties will likely focus discovery and trial proof on (a) whether the alleged permission was known to, reaffirmed by, or withdrawn by subsequent servient owners, and (b) whether post-conveyance conduct objectively signals that “permission no longer obtained.” Stipulations concerning surveys and encroachments—like those used here—may become even more central to satisfying location proof.
• Boundary-definition approach: The Court signaled that Rhode Island trial courts may accept non-metes-and-bounds boundary proof when it is clear and convincing (testimony, photographs, remnants like stumps, and agreed surveys), while also signaling that unclear judicial “carve-outs” not grounded in record evidence will not survive appellate review.

4. Complex Concepts Simplified

Adverse possession

A method of acquiring title by using another’s land in a way that is actual, obvious, continuous, exclusive, and hostile for the statutory period (Rhode Island’s statute is codified at § 34-7-1 and the cases articulate the elements). The claimant must prove these elements by clear and convincing evidence.

Hostility / claim of right

“Hostile” does not mean angry; it means the claimant uses the land as an owner would, in a manner inconsistent with the record owner’s rights, and without permission. Rhode Island focuses on objective manifestations (what the claimant did, visibly), not purely on the claimant’s subjective beliefs.

Permission / license

Permission is a license—a personal, typically revocable allowance to use another’s property in a way that would otherwise be trespass. If use is permissive, it is not hostile; it generally cannot ripen into adverse possession unless permission is withdrawn or no longer applies.

Servient vs. dominant parcel

In permission/easement vocabulary, the servient parcel is the land being used; the dominant parcel is the land benefiting from the use. This Opinion’s key doctrinal point is that transfer of the servient parcel can terminate permission, while transfer of the dominant parcel typically does not.

Metes and bounds

A highly specific boundary description using measurements and directional calls. The Court held such precision is not invariably required if the claimed area is otherwise proven clearly and convincingly—but unclear descriptions still risk remand.

5. Conclusion

The Opinion’s lasting contribution is its clarified rule harmonizing three cornerstone Rhode Island decisions: Foley v. Lyons governs servient-parcel conveyances and treats conveyance as terminating prior permission; Hilley v. Lawrence and Barrow v. D & B Valley Associates, LLC govern dominant-parcel conveyances and preserve the permissive character of the use absent withdrawal or changed circumstances.

Applying those principles, the Court affirmed that the disputed area along the old hemlock line was sufficiently established in the evidence (despite the absence of strict metes-and-bounds), but it vacated and remanded because the hostility findings were legally and factually incomplete and because the “beyond the tree line” area required clearer location findings grounded in the record.