SYLVIE DOUGLIS, BYLINE: This is PLANET MONEY from NPR.
(SOUNDBITE OF COIN SPINNING)
KEITH ROMER, HOST:
If it were not for a small herd of goats, Burt Banks never would have landed in the middle of a totally mind-bending legal conflict. The story starts a couple of years ago, when Burt decided it was time to finally deal with some family land he inherited.
BURT BANKS: It's about three miles from the ocean. It was very rural, a great place to grow up.
ROMER: The land was around the corner from his childhood home in Delaware.
BANKS: We lived next to my grandparents, and they had a chicken farm and some property in that area.
ALEXI HOROWITZ-GHAZI, HOST:
His grandparents' bucolic land - or a piece of it - that is the land at the center of this story. Burt lives in Atlanta now, works as a financial adviser, but he still makes visits back home. In the 16 years since he inherited the land, he and his husband go by occasionally, even toy with the idea of building a summer house there. In the end, though, they decided it just made more sense to sell it.
ROMER: So Burt got together with his brother Ralph, packaged five little lots together, and they found a buyer pretty quickly - a local real estate developer. Burt doesn't remember the exact figure, but he says the price was somewhere in the 300 to $400,000 range. Everything was going great. The prospective buyer was going through all the steps, has the land surveyed. And then Burt got a call from his realtor.
BANKS: She contacted us and said, uh-oh, you've got a problem. You've got an encroachment, and the purchaser does not want to move forward until the encroachment is removed.
ROMER: And what is an encroachment? Like, what was it?
BANKS: She had a goat fence.
ROMER: A goat fence. The goats in question here belonged to one of Burt's neighbors. The surveyor had found that about half of their pen crossed over onto one of Burt's undeveloped lots. Burt's brother, Ralph, went to talk to the goats' owner. He explained what the land surveyor had found and asked could she please move her fence back onto her own property? But nothing happened. So after about a week, Burt followed up with a certified letter - still nothing. At this point it was down to the wire. Burt was worried this was going to wreck his plans to sell, so he got a lawyer. Burt says he had the lawyer reach out to offer the neighbor $1,500 to move her goat pen - once again, nothing. And the proposed land deal ended up falling apart.
You were on the cusp of selling this property for $400,000. And so the developer was like, I want no part of this because of the goat fence.
BANKS: Yeah. He kind of sensed that there was a feud going on, so he just withdrew his offer.
ROMER: And while there was not a full-on feud going on yet, Burt was pretty frustrated. All he wanted to do was sell this land that he very clearly owned. But because his neighbor wouldn't move her fence, he couldn't.
HOROWITZ-GHAZI: Burt says his lawyer tells him, If you want this person off your land, you are going to have to sue. And that is how Burt wound up taking his neighbor to court to get a judge to tell her to move her goat fence.
ROMER: That choice Burt made to sue his neighbor - it does not go at all the way Burt expects. It sets off this chain reaction, and ultimately, Burt finds himself fighting over something much bigger than whether his neighbor should move for goat fence off his land. Instead, he ends up fighting for the right to own his land at all.
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ROMER: Hello, and welcome to PLANET MONEY. I'm Keith Romer.
HOROWITZ-GHAZI: And I'm Alexi Horowitz-Ghazi. When you own something - a car or some shares of Apple stock or a plot of land - it is easy to assume that you can kind of do whatever you want with that thing. You own it, and if you don't want it anymore, you can just sell it to someone who does.
ROMER: And it is an equally reasonable assumption that by and large, the courts are going to have your back on this. Guaranteeing property rights is one of the fundamental things that the American legal system does.
HOROWITZ-GHAZI: But sometimes the law can get pretty squirrely about whether somebody really does own a thing.
ROMER: Today on the show, the wild, goat-filled, kind of absurd story of Burt Banks fight to own the land that he already owned.
HOROWITZ-GHAZI: It's Law & Order: Barnyard Unit.
(SOUNDBITE OF GOAT VOCALIZING)
ROMER: As any connoisseur of neighborhood spats will tell you, the truth can look very different depending on which side of the goat fence you happen to be standing on. So last week I drove down to Delaware to get the other side of the story.
HOROWITZ-GHAZI: The land that Burt inherited from his dad is in this very quiet, kind of rural-feeling area. The road is unpaved. There are all these trees, lots of space between the houses. One of those houses belongs to the neighbor with the goats.
MELISSA SCHROCK: My name is Melissa Schrock, and I do web development and marketing and also have a myriad of farm animals. That's how I identify myself - aspiring farmer.
ROMER: Around back of Melissa's place, there's a shed, broken-down gazebo, an old lawnmower, and the goats at the center of this fight.
SCHROCK: This is Gabby (ph). That's Acollie (ph). That's Cinnamon.
ROMER: What's the smallest goat's name?
SCHROCK: That's Evelynn.
ROMER: You're in a lawsuit. Any comment?
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ROMER: The goats live in this big fenced-in pen, roughly the size of a basketball court. They've got a little house, an old kids play structure they can climb on.
HOROWITZ-GHAZI: Melissa says the whole business with the goat fence was more complicated than Burt made it sound. Her family has been on this land for years, ever since she was a teenager. That's when her parents bought the lot, put in a double-wide and moved in. After they decided to retire, Melissa bought the home and the lot from them. So to her, what she and Burt were fighting over was not just a piece of property that you would try to get a good price for. It was her home, where she lived.
SCHROCK: You can see - if you see all those brambles and all that brush, all that kind of green stuff, those are those really thorny, like, vines that will, like, poke you. And so that is what this area used to look like.
HOROWITZ-GHAZI: If parts of the land are clear now, she says, it's because she and her family and the goats in question were the ones to clear it.
ROMER: Between her house and the next one over, there are some woods. When she was in high school, Melissa and her friends would go out there to hang out. It turns out those woods were squarely on Burt's land. But Melissa insists she always thought that was just part of her family's extended backyard.
SCHROCK: I always - like, my family had always thought that we kind of shared - like, half of these woods was ours, and then half kind of belonged to that house.
HOROWITZ-GHAZI: Which was why she was so surprised when Burt's brother Ralph showed up at her front door one day in October of 2021.
SCHROCK: The guy came up to the house and was like, hey, so I just want you to know that we're trying to sell these lots, and your fence is over the line.
ROMER: Melissa had met Ralph before but says she had never even heard of Burt, let alone that he owned what she thought was her backyard. But still, she figured they could sort out where she needed to move her fence to.
SCHROCK: At that point, I was like, I thought maybe he meant, like, by a couple of feet. But I was like, OK, you know, we'll take care of it. Tell him to call me.
HOROWITZ-GHAZI: You know, handle it, neighbor to neighbor. She says before she moved the fence, she just wanted to know where the survey they had done said she had to move her fence to.
SCHROCK: So a couple of weeks went by. I didn't hear from him. I ended up calling my own survey company, and I was like, I need to have a survey done. And they're like, well, you know, we're scheduling out a month. We can come in, like, December. So I was like, well, I guess December it is. So at that point I forgot about it. I figured he'd end up calling me, but I never heard from anyone again until probably about a month later.
ROMER: Melissa says she never got the certified letter that Burt sent her, and that offer of $1,500 that Burt says his lawyer made - when I asked Melissa about it, she said it was news to her. According to Melissa, the next person she heard from was someone delivering a lawsuit.
SCHROCK: Like, the guy with a gun in the sheriff's office emblem on his car comes up to your house and knocks on the door like, are you Melissa Schrock? And I'm like, yeah. And he's like, here, and, like, gives you the papers real quick before you can, like, slam the door and turn them away. And then he can sign the paper saying, I physically gave this lawsuit to the person that's named in the lawsuit.
HOROWITZ-GHAZI: At first, Melissa didn't even entirely understand what was happening.
SCHROCK: I was like, what is this? You know, like, you're not FedEx. But then I looked at it and realized, oh, he is suing me. Wow. Gee, go figure.
HOROWITZ-GHAZI: Tucked in with the paperwork was the survey Melissa had been waiting to get from Burt. It showed that about half of her goat pen was on his property. It did not take long for her feelings to change from confusion to something else.
SCHROCK: I really started thinking, you know, man, like, this is messed up. Like, I got mad. I was like, why didn't this guy call me? I told his brother to have him call me.
ROMER: Melissa is the kind of person that you do not want to back into a corner. She decided if Burt didn't want to handle this neighbor to neighbor, if he wanted to fight this out in court, property owner to property owner, well, then she would figure out how to fight him in court.
SCHROCK: The court document specifically says you need to come to court and give us a reason why you shouldn't have to vacate the premises. So I was like, well, there has to be a reason.
ROMER: There has to be some legal argument for not moving her goats. So she starts Googling around, educating herself about the basics of property law. And, you know, on the surface, owning property is this very cut-and-dried sort of thing. I have the deed to a chunk of land, this piece of paper that says this land belongs to Keith. End of story.
HOROWITZ-GHAZI: But as Melissa keeps reading, she starts discovering all this nuance hidden beneath that simplified version of things. Like, she learns about the small but significant difference between the ideas of ownership and possession.
ROMER: Right. If I own a cowboy hat and I lend it to you for the weekend, Alexi...
HOROWITZ-GHAZI: Yeehaw.
ROMER: ...I still own the hat, even if you possess it for the two days that you are out, you know, riding the range.
HOROWITZ-GHAZI: That distinction between ownership and possession can matter a lot when it comes to disagreements over land. In some cases, just possessing the land for long enough, living there or farming there, can give you the right to take it over. Even if you don't legally own it, a judge can make you the owner, can take the title from the first owner and just give it to you.
ROMER: The fancy term for when someone takes over someone else's land like this is adverse possession, as in possession that is adverse to the original owner's ownership.
HOROWITZ-GHAZI: You may have heard of squatter's rights. Squatter's rights are like a subgenre of adverse possession, but it's the same idea.
ROMER: When I first started reading up on this, there was a part of me that was like, this cannot be right. Like, I could go buy land somewhere, get the title to it, and then, like, five or 10 years later, someone else could just come along and take it from me.
HOROWITZ-GHAZI: Yeah. What happened to life, liberty and property? In all these other cases, the state is so clearly on the side of property owners. If somebody steals your car, then the government, you know, the police and the courts, they are going to punish that person. Or for things like trademarks - if someone rips off a company's brand, the government's probably going to have something to say about that.
ROMER: But land turns out to work a little differently. And there are a couple of reasons for this. For one thing, there's only so much land to go around. So historically, governments have used laws around adverse possession to shift ownership of land from absentee landowners doing nothing with it to people who are actually living there or farming there. The state's like, if you're just going to let your land sit there, maybe we're going to give it to somebody who will actually use it.
HOROWITZ-GHAZI: The other reason land works differently comes down to just, like, record-keeping - how hard it is for governments to keep track of who owns what. In the U.S. there is no central land registry where there's, like, a giant map of the country with all the borders between people's property clearly marked out. Instead, people just hold deeds that say, in 1956 I bought this chunk of land from Keith.
ROMER: But a fair amount of the time those pieces of paper disagree with each other about where exactly somebody's land begins and ends, or who even owns a piece of land in the first place. Courts need a way to decide between those claims, and one easy way to do that is just to figure out who's actually been using the property.
HOROWITZ-GHAZI: So Melissa is taking all this in, drinking from the firehose of property law scholarship, and the more she reads up on adverse possession, the more convinced she gets that this is the argument she should use in court.
SCHROCK: So at that point it was just looking up, OK, adverse possession, Delaware. What do you need to - what's the criteria for that? How do I go about doing that?
HOROWITZ-GHAZI: Maybe there was some way that her possessing Burt's land with her goats could trump the fact that according to all the paperwork, Burt very much owned that land. Melissa finds out that to make that argument, she's going to have to sue Burt back, to countersue, which she says she feels a little weird about, but she goes ahead and files the paperwork.
ROMER: Back in Atlanta, Burt and his husband get a call from their lawyer.
BANKS: We were totally blindsided. We had never considered the possibility that somebody hostilely would try to take your land away.
ROMER: Burt is really upset. He's already had the land sale fall through, and he's like, there's no question this land belongs to me. My family has owned this land for generations. And now someone moves in next door and is like, actually, I'm going to go ahead and take that. It makes no sense to him.
BANKS: I think this is just so counter to what our country stands for, that your property interests could be taken away by a neighbor that wants to squat on a portion of your land.
HOROWITZ-GHAZI: But - but - it is not like these laws just throw out property rights altogether. Because the bar you have to clear before you get to take somebody's land away from them - that bar is set very, very high.
ROMER: After the break, a courtroom throwdown for control of the goat pen.
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ROMER: Burt and Melissa's preparation for their big trial over the goat pen took very, very different forms. While Burt spent time gathering evidence and answering questions from his lawyer, Melissa had decided she was going to represent herself, so she was basically teaching herself the laws that governed adverse possession from scratch.
SCHROCK: Like, I read every single - like, the judge's opinion and all the information I could find about every single adverse possession case that's been heard going back to, like, 18-something in the state of Delaware.
HOROWITZ-GHAZI: She figured if she could identify what had worked in previous cases, maybe she could just copy the arguments those lawyers had made.
ROMER: The laws around this stuff are different state to state, but they usually require adverse possessors to meet the same five basic criteria.
SCHROCK: And you have to meet all five, no questions asked. If you don't - if you're missing one, then you don't win the case.
HOROWITZ-GHAZI: The criteria can be a little redundant - kind of overlap in places. So we're going to boil down a little everything Melissa was learning. For Melissa to win, she would have to prove that she and her family had essentially been acting like they were the exclusive owners of Burt's land for 20 years and that Burt hadn't done anything in that time to either kick them off or to give them permission to keep using the land.
ROMER: For Burt to win, all he had to do was convinced, the judge that that wasn't how things had gone down, that in one way or another, Melissa had not met all five of those criteria.
HOROWITZ-GHAZI: Last December, the day of the trial finally arrived. More than a year after all this got started, Melissa and Burt laid eyes on each other for the very first time in Delaware Superior Court. The mood was very official, a touch adversarial.
BANKS: So we sat on the left-hand side and I was there with my husband, David, and our attorney.
SCHROCK: It was pretty much just them and their lawyer and me in the courtroom.
BANKS: Each side made their opening statement.
SCHROCK: You know, this is the timeline. This is everything I've ever done, and this is how I meet the criteria of adverse possession.
ROMER: With the judge sitting up front in his robes and the stenographer typing away, Burt and Melissa each made their case as to why they were the ones who deserved the land beneath Melissa's goat pen.
BANKS: She opted to start calling her own witnesses first. So she called a friend of hers, and she called up her brother.
SCHROCK: I got on the stands, and then, of course, they got on the stands, and their witnesses, and my witnesses. But because I didn't have a lawyer, I got to be the one questioning everyone.
HOROWITZ-GHAZI: Melissa went first. She and her brother and her friend talked about how they used to hang out in the woods, how before the goats, her family had kept dogs and chickens in the backyard, how Melissa's dad had used some of Burt's lot as a kind of storage area for his tools and lawn mower and wheelbarrow.
ROMER: And to prove that her family had been possessing the land for the full 20 years the law required, Melissa produced a series of photos taken the first year she and her family had moved in. She pulled them out to show me when I was down visiting her.
SCHROCK: This is Thanksgiving 2001. This is my mom sitting at the table with the calendar in the back that says 2001. So that's - I forget what the technical word is, but it's proving that it happened in 2001.
HOROWITZ-GHAZI: Partly, Melissa liked these photos because that calendar, it's proof they've been there for 20 years. But she liked the pictures even more because of what you could just barely see in the background behind her family.
SCHROCK: And so that's my dad. And you can see out this window - you can see the shed back there.
ROMER: Through a window behind Melissa's dad, you can just make out the shape of a building, maybe a pile of lumber.
SCHROCK: It's kind of hard to tell. We actually argued back and forth in court, me and the other guy's lawyer, about what that item is. And can you tell me what that item is? And do you remember what that is, and what do you think that is?
HOROWITZ-GHAZI: Melissa's trying to show through all the photos, OK, there's the property line. The shed is on my family's side. But all the other stuff in the pictures - the lumber and the pool liner and her dad's table saw - that stuff would have been across the line on Burt's land.
ROMER: And the whole time she's making these arguments, she's also privately kind of freaking out about having to keep up her lawyer impression.
SCHROCK: I kept trying to remind myself, like, lawyers do this every day. Like, if you were a lawyer, this would be Tuesday to you. Like, this would be no big deal. Like, just because you have no clue what you're doing, you know, doesn't mean you should feel some kind of way. It's fine.
ROMER: She says when Burt's attorney tried to introduce a photo that he had failed to disclose in the discovery process, she even got to fulfill the fantasy of every would-be lawyer.
SCHROCK: Because I literally - I was like, objection. That, you know, was not in discovery. And I thought that was so weird but cool.
ROMER: After Melissa had her say, it was Burt's turn.
What was it like for you testifying? What do you remember about being on the stand yourself?
BANKS: Nervous, but very, very focused on, you know, telling my story, telling what I perceived to be the truth, correcting what I thought were untruths that were stated.
ROMER: To counter Melissa's claim, Burt just has to show that she fails to meet one of the five legal criteria for adverse possession. Burt and his lawyer put a lot of their focus on the idea of exclusivity.
HOROWITZ-GHAZI: They argue that even if her family had used Burt's lot some, it wasn't like they had completely taken it over. Burt testified that his father had been using the land right up to his death in 2004.
BANKS: My dad, once he retired, he had a portable sawmill on the lot and so he would get my uncle to pull up logs, and then he would use his sawmill to trim them up and make planks
HOROWITZ-GHAZI: As evidence, Burt introduced his own photograph, a picture of him and his husband, David, with Burt's dad at the sawmill. Burt says that photo was taken towards the beginning of that 20-year period that he and Melissa were arguing over.
BANKS: And so what we tried to show with Dad having the sawmill on that lot behind her house - that it was not exclusive, that he also used the lot as well. So that's why it was kind of key.
ROMER: After hours and hours of this, you might think the judge had heard enough. But then - and this is maybe my favorite part of the story - he's like, actually, what I'd like us all to do is tomorrow let's all meet up at Melissa's house, and we can all walk around on Burt's lot together.
BANKS: So we all met out there. I want to say, like, at 9:00 in the morning. It was all very, very cordial.
SCHROCK: We all just walked around in the big party. I'm like, here's my goat pen. Here's my fort. Here's my trail. Like, here it is. You want to check yourself for ticks when you're done.
ROMER: I mean, is he wearing his robes at this point, or he's back to business casual?
BANKS: I would say he was in fairly sturdy clothing. His clerk that went with him had a beautiful, cashmere, long coat on, which was totally covered with briars. So I don't think he was a fan of the site visit.
ROMER: There wasn't much conversation. No one was allowed to make any arguments or try to sneak in any last pieces of evidence. Melissa and Burt and Burt's husband and their lawyer and the clerk just kind of tailed along behind the judge as he made his way between the trees and the brambles. And then, that was it.
You all walk the land together, and then, everybody, like, gets in their cars and, like, (imitating car doors closing) the door.
SCHROCK: Yep. That is...
ROMER: You know, they all leave.
SCHROCK: That's how it happened.
ROMER: Like, and then, like, what did you think was going to happen?
SCHROCK: Honestly - and this is what I told everyone who asked me. I was like, I honestly feel like it could go either way. I felt like it was 50-50.
HOROWITZ-GHAZI: Burt was a little more confident.
BANKS: I had no doubt they were going to rule in our favor simply because she had to prevail on all five of those tenants. And I knew, for myself, that she did not meet that requirement.
HOROWITZ-GHAZI: The judge asked both sides to submit their closing arguments in writing. And then, they waited.
SCHROCK: Oh, it took forever. And I was just, like, watching my mailbox like a hawk the whole time.
ROMER: After six weeks, the decision came.
BANKS: Our attorney called us, and he emailed us the ruling.
SCHROCK: It's just an envelope from the court, and it's, you know, real thick.
BANKS: I was in my office, and David was in his office. And we all collectively freaked out and had a teleconference.
SCHROCK: I open it up, and I'm like, all right. It's the moment of truth, so we'll see what happens.
ROMER: Do you have a copy of the decision?
BANKS: Yes, I do.
ROMER: Can I just have you read that paragraph that starts, this is my decision after trial?
BANKS: Let's give it a shot.
(Reading) This is my decision after trial. Because by a preponderance of the evidence...
SCHROCK: I think I skipped to the end. I was like, he's probably going to say it at the end.
BANKS: ...(Reading) I find open and notorious, hostile and adverse and exclusive use of the property by defendant and actual and continuous possession of the property by defendant for the 20-year statutory adverse possession period...
SCHROCK: ...And for this reason I find the title quieted to defendant or whatever.
BANKS: (Reading) I also deny plaintiff's complaint for ejectment. My reasoning is explained below.
SCHROCK: And that's the point I was like, oh, wow. That actually means I won. Like, that's me. I'm the defendant.
ROMER: Melissa won. And the judge went a lot farther than either she or Burt had expected. He decided that just giving Melissa the strip of land where her goatpen crossed over onto Burt's lot didn't really make sense, that the chunk that would be left to Burt would be too small to really be usable. So he gave Melissa Burt's entire lot - not all the land that he and his brother had been trying to sell. But the full two-thirds of an acre lot that bordered Melissa's land, she would now legally own that whole thing.
And how did you feel about that?
BANKS: Oh, I thought it was insane, just absolutely crazy, unfair. He didn't believe anything that we had presented during the trial.
ROMER: Burt showed me a tentative agreement with a buyer that put the price of that lot at $50,000. And a judge had just decided to take that away from Burt and give it to Melissa.
HOROWITZ-GHAZI: The whole experience, the trial and losing the land - it's left Burt feeling kind of bitter, kind of sad.
ROMER: Have you been back to this land since the ruling?
BANKS: No, we have not. And it's funny 'cause it makes us less likely to go back. We're going back this summer 'cause we want to see family. But let's just say we have fallen out of love with Delaware.
ROMER: Melissa and Burt both told me they had only ever spoken to each other one time in their lives, a brief good morning the day they tromped around the lot with the judge and the clerk and Burt's lawyer. So I asked Burt if he had anything he wanted to say to Melissa.
Do you have any questions that you think I should ask her?
BANKS: Let's see. Why did she do this?
ROMER: When I asked Melissa, she countered with a question of her own. Burt, why did you sue me? To her, the moral of the story was simple.
SCHROCK: You know, be neighborly. You know, if you have a neighbor and - you know, know who they are, and maybe try talking to them before you jump to litigation. I don't know.
ROMER: I could have been the messenger going back and forth between Melissa and Burt forever. They are not going to agree on who did the bad thing first and who was more at fault. But in the end, here is how I see it. I think when Burt first faced the problem of the goat fence and Melissa didn't immediately move it, Burt had a kind of choice to make - to try to solve things using what he assumed would be the black-and-white system of the law or to try to keep working things out according to the messier system of neighborly negotiation. And because he was far away in Atlanta and he was worried his deal was going to fall apart, he chose the law. But property ownership is not nearly as black and white as Burt believed it was. The law here, it can be really messy, too.
(SOUNDBITE OF RAINMAN'S "PURPLE SUN")
HOROWITZ-GHAZI: This episode was produced by Willa Rubin and Dylan Sloan. It was edited by Molly Messick, fact-checked by Sierra Juarez, and engineered by Katherine Silva.
ROMER: A big, special thanks today to John Lovett of Loyola University New Orleans College of Law, Hamish Brown and Lars Lonnroth. I'm Keith Romer.
HOROWITZ-GHAZI: I'm Alexi Horowitz-Ghazi. This is NPR. Thanks for listening.
(SOUNDBITE OF RAINMAN'S "PURPLE SUN")
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