Kristopher M. Kline, P.L.S., G.S.I. All Rights Reserved

Transcription

1 Kristopher M. Kline, P.L.S., G.S.I. All Rights Reserved Boundary lines never move after the moment of their creation; however, title to new lands can be acquired through other legal mechanisms including adverse possession and accretion. Driven by State Statute, this is a title doctrine which must be affirmed by the court in order to establish marketable title. As early as 1720 B.C. the Code of Hammurabi discussed adverse possession and the misuse of land, including provisions that punished land waste, rewarded long-term development, and allowed one who worked the land of another for three years to take and keep the land In England, the history of adverse possession can be traced back to the Norman Conquest in The common law doctrine of adverse possession was applied to resolve land disputes between colonists in Virginia as early as 1646, where it was used "in an effort to help resolve the proverbial conflicts between speculators and squatters. The first statutory recognition of adverse possession in the New World appeared in a 1715 statute of limitations in Ohio. 1

2 If a chieftain or a man leave his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it. Table VI, : Usucapio of movable things requires one year's possession for its completion; but usucapio of an estate and buildings two years. (note: usucapione remains the technical term for adverse possession in current Italian civil code. Statute of Westminster I, 3 Edward I, c. 39 (1275) Statute of 32 Henry VIII, c. 2-3 fixed a statutory period of limitations for the issuance of writs of right, [and] sixty years' possession was considered sufficient evidence of enjoyment from the time of Richard I to raise a presumption of a grant Statute 21 James I, c. 16 (1623). adopts the modern method of limiting the right of entry, and so the action of ejectment, to within twenty years next after the right of entry accrues. The right of entry does not accrue until someone initiates an adverse possession. 2

3 there is a difference between the transfer of title (adverse possession) or ownership of land vs. fixing the location of a boundary (acquiescence., estoppel, parol agreement and practical location), which, as you know, requires its own certain elements, and does not serve to transfer title otherwise if would be contrary to the statute of frauds. Don Wilson by May 21, 2010 Remember OCEANS Occupation, Continuous, Exclusive, Adverse (to the true owner) Notorious (open and), for the Statutory Period. Historically, there are several policy reasons used to justify adverse possession, such as: (1) the stabilization of uncertain boundaries through the passage of time; (2) a respect for the apparent ownership of the adverse possessor who transfers his interest; and (3) assurance of the long-term productivity of the land. 226 S.W.3d 366 (2007) Tennessee 3

4 Prescription doctrine rewards the long-time user of property and penalizes the property owner who sleeps on his or her rights. In its positive aspect, the rationale for prescription is that it rewards the person who has made productive use of the land, it fulfills expectations fostered by long use, and it conforms titles to actual use of the property. The doctrine protects the expectations of purchasers and creditors who act on the basis of the apparent ownerships suggested by the actual uses of the land. "[I]ts underlying philosophy is basically that land use has historically been favored over disuse, and that therefore he who uses land is preferred in the law to he who does not, even though the latter is the rightful owner." Hence, there have been some calls to abolish the doctrines of adverse possession and easement by prescription prescriptive easements "serve no legitimate independent function and should be abolished" because "awarding a permanent property right to a willful trespasser hardly preserves the peace, and the law of prescription actually breeds litigation by forcing the landowner to sue a trespasser before the statutory period runs. Elizabeth Thomas, the appellee here, who received what may be designated as the eastern tract, with the dwelling thereon, in which she had resided with her grandmother, continued to occupy this tract of 8 acres, and has occupied it down to the present time, although it is understood to be without fencing or inclosure of any kind. Also under the mistaken impression that about 3 acres, constituting the eastern part of the middle tract, which had been allotted by the will and the executor's deed to the heirs of George Butler, was part of her tract of 8 acres, she occupied this part also, has cultivated it, or part of it, from year to year in a fashion, and has continued to hold it in that way from the year 1862 to the present time. 4

5 The complainant is an ignorant colored woman, so ignorant, indeed, that she does not seem to appreciate even now that she has taken possession of any more property than she was entitled to do under the will of Elizabeth Butler. Under that will she was entitled to 8 acres; she is in possession or claims to be in possession of 11 acres; and yet she protests that she does not want more than she was entitled to have under the will, but she claims that she was entitled under the will to all the property which she claims now, notwithstanding repeated surveys to the contrary. But, as she specifically claims the property in controversy as her own, and as she has exercised unequivocal acts of ownership over it adverse to all the world for twenty years and upwards, her mistake cannot be held to operate against her acquisition of title by adverse possession. Our decisional law has created tension between N.J.S.A. 2A:14-6 and -7 on the one hand, and N.J.S.A. 2A:14-30 and -31 on the other hand. N.J.S.A. 2A:14-6 and -7 bar a landowner's right of entry or action for real estate if those actions are not brought within twenty years of the accrual of such right, title of entry, or cause of action. The plain language of N.J.S.A. 2A:14-6 and -7 only informs us that the landowner may no longer assert a right of entry or an action for real estate but does not address the status of the landowner's title In contrast, N.J.S.A. 2A:14-30 and -31 expressly state that an adverse possessor's title to land vests either after thirty years or sixty years, depending on the character of land at issue and the way in which the adverse possession began. The determination of which statute controls in this case is critical because, unless title vests in J & M after twenty years, its thirty-nine years of possession cannot satisfy the sixty-year statute of limitations applicable to the uncultivated land involved here. 5

6 Generally, the past trend in the cases has been to state that title vests after twenty years of adverse possession. Some cases have faithfully applied the thirty/sixty-year adverse possession statutes or at least indicated that title would not vest until the thirty/sixty-year time limit had been met. We now focus on the cases holding that the twenty-year statutes vest title. As noted, the cases do not uniformly agree on whether the twenty-year statutes vest title. The theory underlying those cases holding that title vests in the adverse possessor after twenty years is that "[t]he law does not recognize a title which it will not protect." New Jersey courts were likely influenced by the established rule in England, which was that "an adverse possession of twenty years is not only a negative bar to the plaintiff's recovery in ejectment, but takes away his right of possession, and gives a positive title to the opposite party." Whatever the reasons or motivations, the dichotomy between the twenty-year and thirty/sixty-year statutes has created confusion in the law. This confusion is exemplified by the fact that our courts often have allowed title to vest after twenty years of adverse possession. Based on the line of cases holding that title vests in the adverse possessor after twenty years, commentators have taken New Jersey's statute of limitations for adverse possession to be, un-controversially, twenty years. For example, in his treatise on Adverse Possession, Patton stated that New Jersey, among other states, uses the same approach as that employed in the English statute: simultaneously barring the title owner's action and granting the adverse possessor title to the property. 6

7 The critical distinction between New Jersey's statutes and others including the English approach is that New Jersey also has two independent adverse possession statutes requiring longer adverse possession in order for title to vest in the adverse possessor. "[T]o consider an adverse possessor the owner of land upon the expiration of the limitation period is a legal fiction because title should vest only after an adverse possessor has satisfied his or her "burden of establishing the elements of adverse possession, including the appropriate lapse of time" We reject J & M's contention that it is free to choose which statute should control. Similarly, we reject First Union's contention that the owner of record is permitted to choose which statute should apply. Which statute should control the outcome must be decided within the framework of the operative matrix of facts in each case and must include a description of the characteristics of the land in question. That said, we recognize that the decisional law in New Jersey has not been uniform in deciding which statute controls or in interpreting the meaning of N.J.S.A. 2A:14-6 and -7. The prevailing rule, as expressed in comment a to section 460 of the Restatement of Property (1944), is that "[t]he 'period of prescription' is fixed, in the absence of specific statutory provision, by analogy to the period derived from the local statutes of limitations for the acquisition of title to land by adverse possession,"... which in this case would be the sixty-year limitations period for "uncultivated tracts" provided by N.J.S.A. 2A:

8 Ordinarily, the overruling of a judicial decision should be given retrospective effect. However, there has been justifiable reliance on decisional law that applied the twenty-year statutes of limitations as the basis for the entry of a judgment for adverse possession. To avoid confusion or create a cloud on any title, we make our decision applicable to the present case and any case that has not been decided in the trial court. We do not make our decision retroactive because stability and predictability in real property law are extremely important. We emphasize that the present decision will have no effect on titles established by adverse possession in the trial court pursuant to either of our statutes prior to the date of this decision. Twenty years' adverse possession is a positive title to the defendants. It is not a bar to the action, or remedy of the plaintiff only, but takes away his right of possession. If Lloyd was not seised of the land claimed by the defendants at the time of suing out this writ of partition; or if the Jury should find that the defendants, and those under whom they claim, have held adverse possession of it for twenty years, the plaintiff cannot recover 8

9 It is a settled rule, that the doctrine of adverse possession is to be taken strictly; it is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner. A party claiming title by adverse possession always claims in derogation of the right of the real owner. He admits that the legal title is in another. He rests his claim not upon a title in himself, as the true owner, but upon holding adversely to the true owner for the period prescribed by the statute of limitations. Claiming a benefit from his own wrong, his acts are to be construed strictly. The land must have been in the constant and uninterrupted possession of the defendant and those under whom he claims the length of time prescribed by the statute of limitations. It must be a continued possession; an occasional exercise of dominion by broken and uninterrupted acts of ownership, either by the same person or by different persons, will not establish a right. The legal title always draws to it the constructive possession, and if the possession of the trespasser is interrupted the possession of the real owner is renewed, and that without actual entry. Neither actual residence on the soil nor actual cultivation or enclosure are necessary, but there must be something tantamount to one or the other of these. No matter how long the real owner is out of actual possession, his title and his constructive possession remain until an actual hostile possession is taken. He may never have made an actual entry or set his foot upon the soil, he is nevertheless, by virtue of his title, in constructive possession. A wrongdoer can derive no aid from title; he rests upon possession alone; the law gives him no constructive possession. Actual occupancy, the pedis positio, is his only warrant, and upon that he must rely. 9

10 Mr. Griffith, whose opinion upon this subject is entitled to the highest consideration, states the rule in clear and explicit terms. "Mere surveys on waste or outlands unenclosed and uncultivated, or deeds for such lands, or other claim of title, and occasionally cutting and carrying off the wood and timber, is not such a possession as displaces the right owner The mere payment of taxes cannot prove possession. It may be evidence of a claim of title; it may serve to explain the character of the possession, and to extend it beyond the limits of actual occupancy; but the payment of taxes by a party not having the actual possession of any part of the premises cannot prove possession. It would give the owner of the land no right of action against the party paying taxes as a trespasser; and no act can show possession in a party doing it which will not afford to the owner of the land a remedy by action. Whether or not the entry is caused by mistake or intent, the same result eventuates -- the true owner is ousted from possession. Accordingly, we discard the requirement that the entry and continued possession must be accompanied by a knowing intentional hostility and hold that any entry and possession for the required time which is exclusive, continuous, uninterrupted, visible and notorious, even though under mistaken claim of title, is sufficient to support a claim of title by adverse possession. 10

11 It must not be forgotten that the foundation of so-called "title by adverse possession" is the failure of the true owner to commence an action for the recovery of the land involved, within the period designated by the statute of limitations. it must be public and based on physical facts, Acts of dominion over the land must be so open and notorious as to put an ordinarily prudent person on notice that the land is in actual possession of another. Hence, title may never be acquired by mere possession, however long continued, which is surreptitious or secret or which is not such as will give unmistakable notice of the nature of the claim." Therefore, to permit a presumption of notice to arise in the case of minor border encroachments not exceeding several feet would fly in the face of reality and require the true owner to be on constant alert for possible small encroachments. The only method of certain determination would be by obtaining a survey each time the adjacent owner undertook any improvement at or near the boundary, and this would place an undue and inequitable burden upon the true owner. Accordingly we hereby hold that no presumption of knowledge arises from a minor encroachment along a common boundary. In such a case, only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious. Brumbaugh v. Gompers Gompers Locations of Buildings in

12 New Wall Built 1916 Brumbaugh v. Gompers Gompers New Wall Constructed in 1916 New Jersey Courts have held that the burden of proof rests on the party claiming title by adverse possession and that any adverse possession must be open, notorious, continuous, uninterrupted and exclusive for the prescriptive period with the acquiescence of the owner. After evidence is introduced on these jurisdictional elements, then a presumption arises that the use was adverse except when the land is vacant, unimproved, unenclosed and the use is casual rather than customary. The tacking principle is well established in this State. When ownership during the statutory period involves more than one adverse possessor, each owner who acquires title must satisfy all the elements of adverse possession. Tacking is generally permitted "unless it is shown that the claimant's predecessor in title did not intend to convey the disputed parcel." 12

13 What constitutes continuous possession depends on the nature of the land at issue. Some property is only used seasonally, for example. In general, however, "periodic or sporadic acts of ownership are not sufficient to constitute adverse possession." The claimant must have affirmatively and consistently acted as if he were the owner, taking into due account the reasonable uses for which the land in question was suitable. It thus suffices if land chiefly timbered is fenced and is cultivated in the areas suitable for cultivation; if land most suitable for seasonal or weekend and holiday use is used for these purposes, even though not during the winter; or if ravined range land is used for the purposes possible in view of its topography. When a third party, one who is neither the true owner nor the adverse possessor, interferes with possession, "it seldom constitutes an interruption of possession. This is particularly true "when the possessor acts with diligence to protect his possession against such an act." Most of the case law on interruption of possession addresses a situation where the "true owner" asserts dominion over the real property in question. The critical point seems to be, not that a third, unrelated party has or has not excluded the putative adverse possessor from the land 13

14 However, when the encroachment of an adjoining owner is of a small area and the fact of an intrusion is not clearly and self-evidently apparent to the naked eye but requires an on-site survey for certain disclosure... [the presumption of adverse use] is fallacious and unjustified. The precise location of the dividing line is then ordinarily unknown to either adjacent owner Therefore, to permit a presumption of notice to arise in the case of minor border encroachments not exceeding several feet would fly in the face of reality and require the true owner to be on constant alert for possible small encroachments. Case law nationwide shows there is a virtual per se rule that fences constitute open and notorious possession. Lilly v. Palmer, 495 So. 2d 522, 528 (Ala.1986) (fence which enclosed disputed strip is evidence of open and notorious possession); Potlatch Corp. v. Richardson, 278 Ark. 498, 647 S.W.2d 438, (Ark.1983) (fence not necessary for ad-verse possession, as long as there is visible and notorious act of ownership conveying knowledge, or presumed knowledge, to true owner); Williams v. Rogier, 611 N.E.2d 189, 195 (Ind. Ct.App.1992) (construction of fence due to mutual mistake on boundary location will not defeat adverse possession); The more widely accepted view is that an adverse claim, otherwise valid, is not defeated by an initial mistake as to where the claimant's property ends and the neighbor's property begins. Thus where a coterminous landowner holds actual possession believing that he is holding to the true line, the landowner acquires title even though the belief as to the correct location originated in a mistaken belief[.] New Jersey case law at one time accepted a harsher view: a mistake negated the viability of an adverse possession claim. However, with the rejection, in 1969, of "hostile" possession as an element of adverse possession, this can no longer be the case. 14

15 a wall of modest dimensions which was constructed in 1935 or even earlier and which stood in peace and tranquility until its location became the subject of litigation in A four-foot wide easement was created at the rear of Lots 40, 41 and 42, for the benefit of the owners of those lots and of Lot 43, which abuts the easement area at its southern terminus. As initially constructed, the easement took the physical form of a concrete walkway which is three feet wide, rather than four feet as reflected in the original plat. Tippett Dym Smith Smith v. Tippett Recorded Plat of Survey, 1898 The walkway is bounded on the west side by the eastern wall of a building which is located on property known as Lot 39. On the east side of Lot 40 (Ms. Tippett's property), the walkway is bounded by the brick wall which is the subject of this controversy, and which occupies about twelve inches of the easement area. The walkway continues across Lot 41, which is owned by Charles and Elaine Dym, and Lot 42, which is Mr. Smith's property. 15

16 where there were no visible property lines but an intrusion of a fence or wall or some other structure to a minor extent, i.e., "not exceeding several feet," (54 N.J. at 388) notice of actual possession was insufficient. Of course, a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required period of years. "[O]nly where the true owner has actual knowledge thereof [of a minor encroachment] may it be said that possession is open and notorious." Indeed, in light of the slope of the land, it is not clear that the Pruzanskys or their predecessors in title took note of what was growing at the foot of the wall beneath the slope on the easterly side of the wall. The trial judge viewed the retaining wall as a "party wall and apparently considered it to be a major intrusion. The judge's conclusion was erroneous because he disregarded the language in Mannillo which said thatwhere there were no visible property lines but an intrusion of a fence or wall or some other structure to a minor extent, i.e., "not exceeding several feet," The mere fact of growing flowers on disputed property does not establish an open and notorious claim, particularly if minimal as here. Cultivation has generally referred to more extensive farming, but it varies with the type, location and condition of the land. It need only be consistent with the nature of the property and its most reasonable use so as to indicate ownership. Various cases held that mere cultivation is insufficient because the property in question could have been used for more extensive use. See City of Tonawanda v. Ellicott Creek Homeowners Ass'n, 86 A.D.2d 118, 449 N.Y.S.2d 116, 120 (1982) 16

17 Fortunately, the days of ejection by force (vi et armis) are largely behind us It has been said that "adverse possession is the law of the landless, the have-nots and the doctrine provides means by which a persistent have-not may become a have. Appellant Lawrence S. Smith asks us to hold that this wall, like its once more formidable counterparts in Jericho and Berlin, must now come tumbling down, or must at least be removed from its present location. When used in the context of adverse possession, "hostile" is a term of art. It does not imply ill will. In order to establish adverse possession, the possession must be openly hostile. "Hostile" possession has been defined as possession that is opposed and antagonistic to all other claims, and which conveys the clear message that the possessor intends to possess the land as his own. It is not necessary that he intend to take away from the owner something which he knows to belong to another or even that he be indifferent concerning the legal title. "It is the intent to possess, and not the intent to take irrespective of his right, which governs. PEGG v. JONES - NO. COA Filed: 4 December 2007 (N.C.) Additionally, the trial court made a finding of fact that there was no adverse possession after the incident in which Cecil pointed a loaded shotgun at Carl Pegg in Specifically, the trial court stated that it did not infer that the act of pointing a gun and telling Carl Pegg to get out means that Cecil Jones considered that he owned any property in fee simple or that that message was communicated to Dr. Pegg. 17

18 The majority or Connecticut rule, see French v. Pearce, 8 Conn. 439 (1831), which recognizes adverse possession even where the occupancy began as a result of a mistaken trespass rather than an intentional one, rests on sound reasoning In any case in which title by adverse possession is claimed, the initial possession must have come about either by mistake or by deliberate intrusion. "To limit the doctrine of adverse possession to the latter type places a premium on intentional wrongdoing, contrary to fundamental justice and policy." The minority or Maine rule, based on Preble v. Maine Central Railroad Co., 85 Me. 260, 27 A. 149 (1893), has received extensive criticism because it is historically unsound, practically inexpedient, and results in better treatment for intentional wrongdoers. Courts in the District of Columbia have long subscribed to the majority rule described above, and have held that adverse possession has been established in cases in which the claimant's occupancy resulted from a mistake Title to property acquired by adverse possession matures into an absolute fee interest after the statutory prescriptive period has expired." The Supreme Court has held that the lapse of time provided by the statute of limitations not only bars the original owner's remedy, but also extinguishes his right, and vests a perfect title in the adverse holder. Title to land acquired by adverse possession is as perfect as title acquired by deed from the record owner. 18

19 At common law there was no fixed period of prescription. Rights were acquired by prescription only when the possession or enjoyment was "time whereof the memory of man ran not to the contrary." By 20 Hen. III., c. 8, the limitation in writs of right dated from the reign of Henry II. By 3 Ed. I., c. 39, the limitation was fixed from the reign of Richard I. By 21 Jac. I., c. 16, the time for bringing possessory actions was limited to twenty years after the right accrued. These statutes applied only to actions for the recovery of land; none of them embraced actions in which the right to an incorporeal hereditament was involved. But by judicial construction an adverse user of an easement for the period mentioned in the statutes, as they were passed from time to time, became evidence of a prescriptive right; and finally, the fiction was invented of a lost grant, presumed from such user to have once been in existence and to have become lost. The fiction of a lost grant seems to have been devised after the statute of James. At an early date, it was laid down that the doctrine of prescription is based upon an analogy to the statutes of limitation which are concerned with adverse possession of land, although originally stemming from a theory or legal fiction of lost grant, which latter theory is more or less in disrepute today, and is dependent upon the same principles as adverse possession. Cobb v. Davenport, 32 N.J.L. 369, 385, 387 (Sup. Ct. 1867). This is likewise the general view. 19

20 To state that the doctrine of adverse possession is firmly established in our law is a mere truism and, yet, when one attempts an orderly assessment of the doctrine through the cases, it is at best an arduous task. Somon v. Murphy Fabrication Co.: 160 W. Va. 84; 232 S.E.2d 524 (1977) But the color of title is 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, notorious possession 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 possession across that line, or lappage, as it is called. 20

21 Sears v. Catholic Archdiocese of Washington Baist Atlas Volume 2 Plate 10, 1967 alleging primarily that GWU had (1) trespassed on his property by building a ten-story residence hall that cantilevered -- or extended -- over a party wall that has supported Dr. Kreuzer's house since it was built in the 1800's This case focused primarily on Lot 7. The only other property in Square 43, besides Dr. Kreuzer's lots and a large property known as the Remington Condominium, is current Lot 26 owned by GWU; it includes the property formerly known as Lot 6 that abuts Dr. Kreuzer's Lot 7 on the north side. 21

22 The primary source of contention here (or at least a key one among Dr. Kreuzer's multiple grievances) is that, although the first three floors on the south wall of the dormitory are built straight up on GWU's Lot 6 about an inch from the north side of the party wall, when the south wall reaches the height of the party wall, the concrete floor slab cantilevers to the south over the top of the shared wall up to GWU's property line and ascends upward from there. (The residence hall does not rest on or touch the party wall; separating them is a two inch gap between the concrete floor slab and the top of the party wall.) the party wall is situated wholly on GWU's property. The respective rights of adjoining property owners concerning a wall that has this unusual feature -- lying entirely on one owner's property -- have not been spelled out by a court decision in this jurisdiction. Nevertheless, in Fowler v. Koehler, 43 App. D.C. 349 (1915), the Circuit Court long ago recognized that "the erection of a party wall by one of the two adjoining owners... amounts only to the establishment of a mutual easement or servitude and benefit" and "does not change the boundaries nor affect the title of the respective properties." 22

23 "rights of way [and] rights to use party walls are acquired by prescription" rather than "adverse possession," the key difference being that while "successful adverse possession results in acquisition of a possessory estate," "the owner of a servitude is only entitled to make the particular use authorized by the servitude. A party wall, as it is generally defined and understood, is a wall erected and standing on the line between two estates... owned by different persons for the use in common of both estates." Moore v. Shoemaker, 10 App. D.C. 6, 14 (1897) 2A: years; actions by state for real estate or rents No person or body politic or corporate shall be sued or impleaded by the state of New Jersey for any real estate, or for any rents, revenues, issues or profits thereof, except within 20 years next after the right or title thereto or cause of such action shall have accrued. Unless the statute provides to the contrary or unless the state is necessarily included by the nature of the mischiefs to be remedied, statutes of limitation do not apply to a state when suing in its sovereign capacity. "The state may, of course, make such regulations as to limitations as it sees fit. By statute, in some states, it is provided that limitation laws shall apply to the state the same as to individuals. A law making the statute run against the state has been held, however, not to apply to property held in trust by the state and the conclusion has been reached that in such cases the state's title cannot be lost by adverse possession." 23

24 The ancient maxim of the common law, "nullum tempus occurrit regi," which is applicable in principle to every sovereignty, rests for its support upon a variety of grounds. One is, that the law intends that the king is always busied for the public good, and therefore has not leisure to assert his rights within the time limited to his subjects. Another is, that the public interests should not suffer detriment by reason of the neglect or corruption of the public officers. The general rule as to alienability of municipally held property was clearly stated in Montgomery County v. Maryland-Washington Metropolitan District, 202 Md. 293, 96 A. 2d 353 (1953), where it was said at p. 303: "A distinction is frequently drawn between property held by a county in its proprietary [or business] capacity and that held by it in its governmental capacity. Property which is held in a governmental capacity or is impressed with a public trust, cannot be disposed of without special statutory authority." Where he (the adverse possessor) wants to acquire any part of the mineral, he must make his entry on, and maintain his position within, the limits of the mineral estate for the requisite of time in an open, notorious, and exclusive manner. As one of the essential elements to be shown where parties rely on their adversary possession of the premises they must show that their possession has been continuous during a period necessary to give title under the statute of limitation (10 years). A break in the possession restores the seizin of the true owner. 24

25 "The title of the plaintiff extends from the surface to the center, but actual possession is confined to the surface. Upon the surface he must be held to know all that the most careful observation by himself and his employees could reveal, unless his ignorance is induced by the fraudulent conduct of the wrongdoer. But in the coal veins deep down in the earth he cannot see. Neither in person nor by his servants nor employees can he explore their recesses in search for an intruder. If an adjoining owner goes beyond his own boundaries in the course of his mining operations the owner on whom he enters has no means of knowledge within his reach. Marengo Cave Co. v. Ross: 212 Ind. 624; 10 N.E.2d 917; 1937 Nothing short of an accurate survey of the interior of his neighbor's mines would enable him to ascertain the fact. This would require the services of a competent mining engineer and his assistants, inside the mines of another, which he would have no right to insist upon. To require an owner under such circumstances to take notice of a trespass upon his underlying coal at the time it takes place is to require an impossibility; and to hold that the statute begins to run at the date of the trespass is in most cases to take away the remedy of the injured party before he can know that an injury has been done him. A result so absurd and so unjust ought not to be possible Marengo Cave Co. v. Ross: 212 Ind. 624; 10 N.E.2d 917;

26 "If there is no severance an entry upon the surface will extend downward and draw to it a title to the underlying minerals; so that he who disseizes another and acquires title by the statute of limitation will succeed to the estate of him upon whose possession he has entered." Pres. & Mgrs. of the Delaware & Hudson Canal Company v. Hughes et al. (1897), 183 Pa. 66, 73, 38 A. 568, 63 Am. St. Rep Marengo Cave Co. v. Ross: 212 Ind. 624; 10 N.E.2d 917; 1937 Whether the making of a survey will interrupt the continuity of adverse possession sufficiently to toll the running of limitations must necessarily be decided in each case according to the circumstances. A survey, unaccompanied by any other act of user and occupation, is not such a distinct and notorious act of possession as will justify the reasonable presumption of an ouster or that the party went upon the land with a palpable intent to claim the possession as his own. However, the Supreme Court of Georgia has held that entering a tract of land and surveying it is not an "open, notorious nor a continued possession." The Court specifically determined, "Passing through a tract of land, or around it, and marking trees, is no such possession. It is no disseizin." (1) Accordingly, the 1973 surveying of the land and marking of drill rods and pins found thereon did not amount to an adverse possession. 26

27 A mere survey of land for the purpose of ascertaining its locality, is not a sufficient entry to interrupt the statute. There must be in addition something to show that the survey was made with a purpose of resuming possession, and the purpose must be unequivocally manifested. We are of the opinion, however, that the survey made by John Harris, and the appointment of Bushnell as his agent and the acts of Bushnell in pursuance of the agency, did not constitute such possession as the law requires. A mere survey of land is not sufficient to establish possession. "Adverse possession of unenclosed, uncultivated, unimproved, and unoccupied land is not shown by evidence, that one had it surveyed and its boundaries marked by monuments, paid taxes on it for a few years, and from time to time cut trees on it for use on other land." Defendants contend the 1977 survey and setting of markers shows their predecessors possessed the disputed tract. However, the survey plat indicates survey pins were placed only on the southwest and southeast corner of the disputed tract. described the survey pins as located "right at the top of the ground." Defendants cite no authority holding the placement by a surveyor of two survey pins at ground level alone shows possession by the true owner. We fail to see how two pins at ground level in a rural area is in itself indicative of possession. We further note that, in asserting a claim of adverse possession, the claimant's mere survey of land is insufficient to establish possession. 27

28 We agree the iron rebar markers were insufficient to constitute an enclosure within the meaning of SDCL An enclosure need not be absolutely secure to satisfy the "substantial enclosure" statutory requirement. While we have held a fence or natural barrier such as a tree line is sufficient, we have never held something as meager as two 5/8th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession. We are of the opinion that the statute was tolled at the time when the survey was conducted for the purpose of grading the property. We add that the plaintiffs were informed in 1970 by an agent of the defendants that the property in question in fact belonged to the defendants. These acts, we believe, are a sufficient demonstration of an intent by the owners of title to recover possession. See Rosencrantz v.. Shields, Inc. (1975), 28 Md. App. 379, 346 A. 2d 237. This entry upon the disputed land by the defendants, evokes a positive interruption of the statutory period and an unequivocal manifestation of intent to reclaim the property. In its final two contentions, appellant claims that certain provisions of the County Code effectively limit the doctrine of adverse possession with respect to property such as the Community Beach. On this basis, appellant claims that neither appellees nor anyone else can ever claim title to a portion of such land by adverse possession. Hillsmere cites no case law in support of its contentions. In Maryland, the original source of the adverse possession doctrine was the Limitation Act of 1623, 21 James I, c.16, an English statute 28

29 Our research has disclosed no Maryland cases, and only one decision of a foreign jurisdiction, Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (Neb. 1998), in which arguments similar to appellant'swere addressed. In Wanha, the Supreme Court of Nebraska considered whether "platted and subdivided land within a municipality cannot be adversely possessed," under a Nebraska statute which forbade certain owners of real estate "'to subdivide, plat, or lay out said real estate The Nebraska court rejected the argument, determining that the statute had "no application to the doctrine of adverse possession and is not in conflict with it." The court reasoned that the source of an adverse possessor's title is "'[h]is own possession,'" rather than "'a transfer or grant by operation of law from the former title holder,'" and thus that, once the statutory period has run, "there is nothing left for the adverse possessor to do to gain title, i.e., no application to... any... authority need be made...." Moreover, the court observed that, "[b]y its own language, [the state statute] applies only to the subdivision of property by its owner." In rejecting appellant's contention, the circuit court opined: "[A]dverse possession does not meet the definition of subdivision found in Article (60) of the Anne Arundel County Code because it does not divide land by deed as defined in Article (43)." We agree with the circuit court. Adverse possession of real property is achieved by occupying it for the statutory period, not by the recordation of a deed or plat in the County land records. 29

30 Accordingly, adverse possession is not "subdivision" within the meaning of the County Code. Moreover, subject to exceptions not applicable here, County Code provides: "The owner of contiguous properties may consolidate the properties by deed without initiating subdivision " Thus, we do not perceive the present County Code to affect appellees' ability to adversely possess the disputed properties. Even if the ordinances that appellant cites applied by their terms to an adverse possession claim, there would be a significant question whether a County ordinance could affect the operation of adverse possession. The holder of the older and better title has constructive possession of all his land; and the holder of the junior and inferior title that overlaps it must, if he is to acquire good title, enter upon and actually hold adversely and continuously for the requisite period the actual boundary claimed by the older and better title Where two grants conflict and occasion what is called an interlock, the elder grantee by the mere operation of his grant acquires at once constructive possession of all the land within his boundaries, although he has taken no actual possession of any part thereof. Where two grants conflict and occasion what is called an interlock, the junior grantee under his grant acquires a similar constructive possession of all the land embraced by his boundaries, except that portion within the interlock, the constructive possession of which had already vested in the elder grantee. 30

31 Where two grants conflict and occasion what is called an interlock, where the elder grantee is not in the actual possession of any portion of his land and the junior grantee enters and occupies a part of the interlock, claiming the whole within his boundary, he thereby ousts the elder grantee of his constructive possession and becomes actually possessed to the extent of his grant. If the elder grantee is in the actual possession of any part of the interlock at the time of the entry thereon by the junior grantee, then the latter can gain no adversary possession beyond the limits of his mere enclosure without an actual ouster of the elder grantee from the whole of the land in the interlock. 31

32 Possession of the joint estate by one tenant in common is presumed to be the possession of all. But, nevertheless, one tenant in common may acquire title to the joint estate in entirety by adverse possession. In the acquisition of title by adverse possession the distinction between strangers and tenants in common relates to the character of the evidence necessary to prove that the possession was adverse. The relations between the joint owners are presumed to be amicable rather than hostile, and the acts of one affecting the common property are presumed to be done for the common benefit. If the parties are strangers in title, possession and the exercise of rights of ownership are in themselves, in the absence of explanatory evidence, proof of an ouster of the true owner; whereas, in cases of privity of title such as subsists between tenants [**15] in common, the acts of possession of one tenant will, in the absence of satisfactory evidence to the contrary, be referred to the community of title, and there must be clearer and more decisive evidence of an ouster by one tenant in common 32

33 Easement by Prior Use Easement by Necessity Implied by Recorded Plat Easement by Prescription Easement by Estoppel When, therefore, possession and use are long continued, they create a presumption of lawful origin, that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. It may be, in point of fact, that permission to occupy and use was given orally, or upon a contract of sale, with promise of a future conveyance, which parties have subsequently neglected to obtain, or the conveyance executed may not have been acknowledged, so as to be recorded, or may have been mislaid or lost. Many circumstances may prevent the execution of a deed of conveyance, to which the occupant of land is entitled, or may lead to its loss after being executed. "the fiction of presuming a grant from twenty years' possession or use was invented by the English courts in the eighteenth century to avoid the absurdities of their rule of legal memory, and was derived by analogy from the limitation prescribed by the St. of 21 Jac. 1, c. 21, for actions of ejectment. It is not founded on a belief that the grant has actually been made in the particular case, but on the general presumption that a man will naturally enjoy what belongs to him, the difficulty of proof after lapse of time, and the policy of not disturbing long continued possessions." 33

34 It is necessary, therefore, in the cases mentioned, for the jury, in order to presume a conveyance, to believe that a conveyance was in point of fact executed. It is sufficient if the evidence leads to the conclusion that the conveyance might have been executed and that its existence would be a solution of the difficulties arising from its nonexecution. It is not indispensable, in order to lay a proper foundation for the legal presumption of a grant, to establish the probability of the fact that in reality a grant ever issued. It will be a sufficient ground for the presumption to show that, by legal possibility, a grant might have issued. How long a period must elapse after the date of the supposed conveyance before it may be presumed to have existed has not always been a matter of easy determination. "In general," said this court, speaking by Mr. Justice Story, "it is the policy of courts of law to limit the presumption of grants to periods analogous to those of the statute of limitations in cases where the statute does not apply. The sole issue before the Court is whether a governmental entity can acquire a prescriptive easement over private property without providing just compensation. At trial, which began on June 30, 2003, the judge, without objection, charged that the period necessary to establish an easement by prescription is twenty years. Appellate Division reversed and remanded for a new trial. In making its determination, the appellate panel assumed, without deciding, that based on the record before it, a thirty-year prescriptive period is applicable 34

35 HELD: A governmental entity can acquire a prescriptive easement over private property without providing just compensation. Without resolving its correctness, the Court vacates as premature that portion of the Appellate Division opinion that decided the inverse condemnation issue. In order to establish an easement by prescription, a litigant must prove elements similar to those associated with adverse possession. Thus, the proponent of an easement by prescription must prove an adverse use of land that is visible, open and notorious for at least thirty years. The proponent of the easement must establish the elements by the preponderance of the evidence. There is authority that the proponent of a prescriptive easement must prove each element by clear and convincing evidence. Meyers v. Pavalkis, 73 N.J. Super. 208, 214, 179 A.2d 534 (App.Div.1962 In light of Patton, it appears that Meyers has been overruled. The proponents of the prescriptive easement in this case, the Kassins, failed to satisfy either burden of proof. 35

36 when the facts revealed a "background of general use by the neighborhood" and user recognition of the right of the owners to restrict use of its property and a pattern of "reciprocal exchanges of favors," the hostility element is not established because the socalled adverse use was not under a claim of right. The evidence does not establish that the use of the driveways was hostile in the sense that either party considered use of the other's driveway under a claim of right with the intent to claim an interest in the other's property. In New Jersey, a limitations period of thirty years of actual possession is applied to adverse possession claims to real property, except for woodlands or uncultivated tracts, for which sixty years possession is required. N.J.S.A. 2A: However, in our view, the thirty-year period applicable to private takings of another's real property does not fit with the interests involved when government takes private real property. The government's ability to appropriate private property is tied to the requirement that it put the property to public use. In circumstances that involve the physical occupation of property by the government, the stark act of the governmental entry and seizure of the property "requires the landowner to submit to the physical occupation of his land," and thus provides reasonable assurance that the landowner will have adequate notice and opportunity within a six-year period to institute an inverse condemnation action for just compensation. 36

37 In sum, we hold, for the reasons discussed, that where a governmental entity takes property for public use and provides adequate notice through physical or regulatory action, application of N.J.S.A. 2A:14-1's sixyear statute of limitations is reasonable, promotes the goals of judicial efficiency and uniformity, and diminishes the uncertainty of property ownership and potential future litigation. Under either principle for accomplishing the taking--physical or regulatory-- following the governmental seizure of the property, the cause of action for inverse condemnation begins to accrue on "the date the landowner becomes aware In England, at common law, an easement for light and air could be acquired by adverse user. That doctrine has never been a part of the law of this State. Hayden v. Dutcher, 31 N.J.Eq. 217, (Ch. 1879). However, we recognize easements of light and air created by implication or necessity. Proof of that creation requires the following: 37

38 [F]irst, a separation of the title; second, that before the separation takes place, the use, which gives rise to the easement, shall have been so long continued and so obvious or manifest as to show that it was meant to be permanent; and third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained. "Where one has a right to put up a building on the spot where he erects it, and to continue it there, and the adjoining owner can do nothing to prevent its erection there, and can do nothing to prevent its remaining there, it is absurd to say that the latter can, by lapse of time, lose his right to build up to his line. A person, by making an erection on his own property, which he has a right to make and continue there, and which the adjoining owner has no means of preventing, can thereby acquire no right injurious to his neighbor." The same view, in a much more amplified form, will be found expressed in Parker v. Foote, 19 Wend. 309; Even had the complainant, by means of those windows, enjoyed the benefit of continuous, unobstructed passage of light and air across the open space on the adjoining lot for a period of more than twenty years, he would not be entitled to claim an easement therein by prescription or presumption of grant. The authorities in this country are practically unanimous in holding that no such easement can be thus acquired. 19 Am. & Eng. Enc. Law, p

39 Furthermore, "the concept of adverse use includes... the ingredient that the conduct is either inherently wrongful or wrongful at the election of such potential servient owner"-in this case, Stiglitz. As such, "American courts have refused to allow the acquisition by prescription of easements of light and air. a negative easement cannot be created by prescription. ("An easement in the unobstructed passage of light and air cannot be acquired by prescription."). ("American courts have wisely refused to allow the acquisition by prescription of easements of light and air..."). In fact, this "is the rule now established in all the American States, with a single exception, [Delaware]" [KK-???!!!] This rule flows from the basic principle that the "actual enjoyment of the air and light by the owner of the house is upon his own land only," and that "the owner of the adjoining lands has submitted to nothing which actually encroached upon his rights As a general principle, a property owner cannot hold an adverse interest against him or herself. ("No easement by prescription can commence or exist while the dominant and servient estates are held by one and the same person."); However, a use cannot be adverse where the user has full legal title to the underlying property, and consequently, the ability to use the land in whatever legal fashion he or she sees fit. To fall within the province of prescriptive easement law, the "dominant and servient tenements must, therefore, belong to different persons." 39

40 Ancient lights. The common law of England in regard to ancient lights is not in force in this state. HISTORY: Code 1868, c. 79, 13; Code 1923, c. 79,

41 We must disagree with the trial court concerning the status of the beaver dams in the applicable segment of Reedy Creek. The dams are not the handiwork of Wade, and he can enjoy no prescriptive right to their continued existence. O.C.G.A and 175. The case of Brown v. Tomlinson, 246 Ga. 513 (272 SE2d 258) (1980), is inapplicable to the circumstances of this case. There, the dam was erected through human agency and with common consent of riparian owners, including the complainant's predecessor in title. Dissenting Opinion: It is true the dam in Brown's case was constructed by human effort but I do not believe that should alter the rights of the parties in this case. Here the dams were a natural occurrence allowed by the parties to continue for over 20 years. The beavers were the agency. I would analogize this to a mountain stream being dammed by a landslide to form a lake. I suggest after sufficient time passes the riparian owners have a right in the continuing existence of the lake sufficient to prevent anyone from destroying it by removing the dam. The club has shown that it has used the bridle trail without permission since November 1, The daily riding of individuals and groups mounted on horseback is an open use. Plaintiffs admit knowledge of the activity. Mayfair is chargeable with knowledge of the activity because of the knowledge of the Horns. There is no evidence that plaintiffs or their predecessors in title attempted to interrupt the use of the bridle trail after November 1, 1945, until the filing of the complaint in this action. The court concludes that the club has established a prescriptive easement for the bridle trail. 41

42 The concept of neighborly accommodation is considered in Van Overbeek v. Batsleer: 191 N.Y.S. 49 (1921). This ruling notes that farmers who cooperate for their mutual convenience to access their neighboring lots do not create permanent easements by prescriptive use: Such a use granted as a matter of neighborly accommodation will not ripen into a permanent right. This court concludes that the necessary element of adverse use is absent in these situations. Generally, proof that use of a property was open, notorious continuous and undisputed will give rise to a presumption that the use was hostile and under a claim of right The burden is then shifted to the party denying the existence of an easement to establish that the use of the subject land was, indeed, permissive Exceptions to the rule that the presumption of hostility will arise exist (1) when the relationship between the parties is one of neighborly accommodation and cooperation and (2) when the subject area is used by the general public It then becomes incumbent on the user to come forward with affirmative facts to establish that the use was, indeed, adverse to the interests of the landowner 42

43 both parties agreed that a prescriptive easement requires open, notorious, exclusive, continuous, and adverse use for the statutory period of fifteen years. The trial court ruled that they had not. We disagree that the Martins failed to plead sufficient facts to support adversity, and we clarify that proof of exclusivity is not in fact needed in order to make out a claim for a prescriptive easement. Permissive use defeats a claim of adversity, but "[m]ere acquiescence is not permission. MARTIN v. BICKNELL (Last Minute Addition) 2011 Aerial Photo from Pictometry A review of our prescriptive easement cases reveals that courts in the District of Columbia have sometimes included exclusivity in the list of elements of a prescriptive easement, and sometimes not. And even when this court has included exclusivity in our list, it has never garnered separate attention, much less been the reason why a claim to a prescriptive easement failed. It seems exclusivity has been recited with the other elements of prescriptive easements that have been imported from adverse possession cases, but it is a layabout; it has never done any work. 43