examining adverse possession in the united states
TRANSCRIPT
Examining Adverse Possession in the United
States
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August 19, 2013
Kristopher M. Kline PLS
The doctrine of adverse possession has a particular fascination for
me, but interest in this topic goes far beyond the surveying
profession. Attorneys, employees of government agencies and the
general public all become enthusiastic when squatters’ rights or
trespass are mentioned. Many surveyors and attorneys have a good working knowledge of the
basic principles involved, but beyond these building blocks exists a broad range of complex,
confusing, and sometimes contradictory precedent that is unique to every jurisdiction.
In researching common and statutory law for this book, I have tried where possible to emphasize
cases that either set or follow established precedent. However, some opinions that have been
superseded by statutory authority or overturned by later cases are included to illustrate
contentious issues. These contrary opinions are clearly indicated as such, and the chronological
presentation of opinions allows the reader to develop a feel for the strength of the current positions
on various elements of the doctrine in each state.
Chapter 1: Doctrine of Lost Grants (presumed grant)
This idea of the lost grant is presented by various courts in two different forms. One variation is a
conclusive presumption that may not be rebutted even in the face of contrary evidence. This
convenient legal fiction–often applied in the face of a complete lack of evidence–presumes the
existence of a written grant for the disputed property right even when the existence of the grant is a
practical impossibility.
This conclusive presumption has its roots in English common law. Since the English statute of
limitations applied only to situations involving the fee simple ownership, the English courts
developed the common law doctrine of presumptive grants to address situations where an
easement rather than the fee was at stake. This conclusive presumption may not be applied until
after the passage of sufficient time to fulfill the statute of limitations. This also accounts for the
disparity in time requirements for adverse possession and prescriptive easements in some
jurisdictions.
While the presumptive grant was originally intended to apply only to easements, this doctrine was
expanded in many U.S. jurisdictions to include situations involving fee simple ownership.
A separate perception of the presumed grant allows the claimant to “prove” the existence of a lost
document. This is a rebuttable presumption and must be supported by legitimate evidence
presented to the court. As opposed to the first premise described above, this presumption will not
hold where the existence of the grant is a legal impossibility and is not always bound by the span of
time mandated in the statute of limitations.
Connecticut
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One of the more entertaining cases from Connecticut is Price v. Lyon: 14 Conn. 279 (1841). This
dispute involves an adverse possession claim by an individual against the congregation of a church
for a fractional interest in a church pew.
The events that led up to this opinion also include charges of personal assault. It appears that
several members of the Lyon family were occupying the pew in question in anticipation of a
worship service. Mr. Price, armed with a chain and padlock, arrived at the church and threatened
to lock the Lyons inside the pew if they did not vacate it immediately, claiming he owned a
fractional interest in the pew.
When the Lyons refused to leave the pew, Price attempted to lock the family inside. This in turn led
to a tug-of-war between the parties with the Lyon family attempting to avoid being forced to climb
over the top of the pew in order to leave the church.
The dispute escalated with the arrival of Lyon Senior. His late arrival instigated another shoving
and pulling match. Ultimately, the combined efforts of the Lyon family were sufficient to take the
chain away from the claimant, injuring his hand in the process. This may well be considered proof
of “hostile” intent.
On a more practical note, this opinion describes the relationship that exists between tenants in
commonand the additional difficulties that arise when one tenant adversely claims against other
owners of a partial interest. As between tenants in common, the possession of one is the possession
of all. As each may rightfully possess the whole, liable to account, such possession is not a disseisin
of his cotenants. But when a stranger enters on the common property, claiming title adversely to
one of the tenants, and actually excludes him from the possession, and takes the profits, this is a
disseisin. Where claimant and defendant are tenants in common, actual ousterof the remaining co-
tenants is required in order to prove an adverse claim.
Georgia
Adverse possession opinions sometimes include entertaining examples of heated debates over land
ownership. Wright v. Wright: 270 Ga. 530; 512 S.E.2d 618 (1999) describes the “overbearing and
tyrannical ways” of the local patriarch (called “Aitchey” by the locals). The court also notes “ill will
between himself and his siblings over ownership of the farm.” The various co-tenants were afraid
to discuss their interest in the farm with Aitchey, and one witness concludes that Aitchey “probably
would have killed them” or “run them off” if they had asserted a claim of ownership. Ultimately,
other family members decided it would be more prudent to await the death of this firebrand before
attempting to settle title issues related to the family farm.
Meanwhile, Aitchey and his wife paid off the mortgage and also dealt with annual taxes on the
land. Aitchey claimed (falsely) that he had removed his father’s name from the deed and then
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conveyed a portion of the property in fee simple to Jackson County. He never consulted with the
other co-tenants or sought permission for these acts. Ultimately, Aitchey’s heirs were successful in
their claim of fee simple title to the remaining portion of the disputed farm.
On a more practical note, this ruling provides another example of claims between co-tenants.
Georgia statute currently supports the general premise that claims between tenants may not
succeed if the claimants have not actually ousted the remaining owners. In addition, the general
rule for proceedings of this type holds that any use by one tenant is presumed to be for the benefit
of all remaining co-tenants, even if the other tenants reside elsewhere.
Wright v. Wright demonstrates the difficulties inherent in a claim between co-tenants, but also
supplies a counterpoint to the general presumption. And while exclusive possession, payment of
taxes, and the making of improvements alone do not necessarily establish an ouster, a conclusion
of prescriptive title may be drawn where there have been unequivocal acts, such as selling or
leasing the premises, or a part of them. In addition, a cotenant in possession may satisfy the
“express notice” criterion by showing either: (1) that actual notice of the adverse party was
“brought home” to the nonpossessory cotenant; or (2) that there are unequivocal acts, openand
public, making the possession so visible, hostile, exclusive, and notoriousthat notice may fairly be
presumed. In addition, this opinion concludes that conveyance of the entire fee simple estate to a
third party stranger may well constitute ousterof remaining tenants.
North Carolina
Color of title has been described in many different ways, but a particularly entertaining and
enlightening explanation may be found in Johnston v. Case: 131 N.C. 491; 42 S.E. 957 (1902): But
the color of titleis not title. It is only a shadow, and not a substance; but for the purpose of quieting
titles and to prevent litigation about State claims, the law has provided that where one enters into
the open, notoriouspossession of land, under color of title – this shadow – and remains
continuously in said adverse possession for seven years, claiming it as his own, the law will protect
such possession; that such long possession under color of title, in the eyes of the law, ripens such
color into title. But that shadow, or color, only extends to the boundaries marked by the color – the
deed – and can extend no further; though they may be circumscribed, as they will not even cross
another line, unless there is actual possessionacross that line, or lappage, as it is called. And if
there is a general description, and also a particular description or boundary lines, they will control,
and the general designation will only be considered for the purpose of identifying the land. This is
so where the land is actually conveyed and the title passed under the deed.
Note that this description also considers the effect of color of titleon a claim that attempts to
extend beyond the limits described in the color document.
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Virginia
An extremely complex decision surfaces in 2011, raising again the possibility of adverse possession
of submerged lands. Scott. v. Burwell’s Bay Improvement Association: 281 Va. 704; 708 S.E.2d
858 (2011) revolves around an acre of riverfront property owned by Burwell’s Bay. In 1925, a pier
and several associated structures were constructed by predecessors in title of Scott under permit
from the state. Scott attempted to claim the submerged lands occupied by the piers on the
principle of adverse possession. An alternative claim was for a prescriptive easementover the same
area.
The justices began by emphasizing that title to submerged lands of navigable rivers remains vested
in the state beyond the mean low water mark. However, owners of properties adjacent to the river
have certain riparian rights, including the right to construct a pier or wharf out to the line of
navigability, subject to state regulation.
These riparian rights are apparently subject to adverse possession. This decision reflects opinions
from other states in which even where adverse possession against the state is prohibited, a
claimant may at times win a prescriptive right that is superior to all other title except that of the
state.
Prescriptive easements follow many of the same principles that are applied to adverse possession
claims, but this opinion emphasizes the 20-year requirement in Virginia for a prescriptive
easement as opposed to the 15-year statutory requirement for an adverse possession claim. In
addition, while tackingis generally allowed in prescriptive easement claims, the court denied a
request by the claimant that he be allowed to tack possession of previous owners on the grounds
that the manner in which the previous possessions occurred was not proved adverse.
The facts of the case include the observation that previous proprietors of the wharf allowed the
general public to use the wharf, thereby defeating the “exclusive” requirement. In addition, the
wharf was destroyed in 2003 by a hurricane, and the four-year period that followed was devoid of
any evidence of possession by the Scott family.
One key observation included in Scott v. Burwell’s Bay notes the difficulty of proving adverse
possession of submerged lands: Where the land is . . . under the water . . . the acts of [adverse]
ownership must indicate a change of condition, showing a notoriousclaim of title, accompanied by
the essential elements of adverse possession.
Likewise, a claim to riparian rights over navigable waters presents a unique condition of the
property that requires a special consideration of the “use to which the property may be adapted.”
The construction and maintenance of permanent structures in a river clearly “indicate a change of
condition, showing a notorious claim of title” to riparian rights. Accordingly, there is no question
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that the Bracey family’s ownership of the pavilion constituted both an “actual” and “hostile”
assertion of the right to occupy the riparian area. Note that the “Bracey family” referred to above
was a predecessor in title to Scott. Although the Bracey family had used the riparian area for 14
years, the court declined to award it the disputed area. Ultimately, Burwell’s Bay Association was
allowed to construct a new pier extending into the submerged lands formerly occupied by the
Bracey family.
Kentucky
Occupation that originates in a mistaken belief as to the location of the true boundary may still
result in a successful adverse claim as seen in Johnson v. Kirk: 648 S.W.2d 878 (1983). In an
interesting twist, the Kentucky courts have linked this stance (commonly referred to as the
“majority rule,” see Chapter 1) with the champerty statute KRS 372.070(1).
When the Kirks purchased their residential lot in 1975, they built a fence along a marked line that
they assumed was the boundary line with the adjoining tract. The Johnsons bought the adjoining
lot in 1978. A later survey introduced as evidence indicates that a portion of the fenceis on the
Johnsons’ land. While the duration of the adverse use is not clearly noted, it is clearly less than 15
years and could not be more than eight years.
In this instance, the claim of the disputed strip by Johnson was defeated due to the champertous
nature of the conveyance to him from the previous owner. The court ruled the conveyance void for
that portion of the adjoining lot adversely possessed by the Kirks.
It was considered significant that the Kirks initially believed the fence was on the boundary and
only later discovered their mistake. Even more fascinating is the observation that: Johnsons’
grantor might well have had a cause of action and recovered the land in dispute had he sued in
ejectment. But he did not do so, and the law is well-settled that one cannot sell a lawsuit.
Published by 2Point Inc., “Rooted in Stone: The Development of Adverse Possession in 20 Eastern
States and the District of Columbia,” includes discussion of more than 600 rulings from 21
jurisdictions. The 386-page hardbound book can be ordered by contacting Kline at
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Kris Kline, PLS L-3374, is president of 2Point Inc., Alexander,
N.C. Kline teaches several classes on boundary retracement
but remains a student of the discipline. He can be reached at
[email protected]. More information on Kline’s
available continuing education courses can be found at
www.2point.net. Kline’s books, “Rooted in Stone: The
Development of Adverse Possession in 20 Eastern States and
the District of Columbia,” and the newly-released “Riparian
Boundaries and Rights of Navigation,” are available from the
author.
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