What are the effects of the passage of time on title? Kristopher M. Kline, P.L.S., G.S.I All Rights Reserved

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1 Kristopher M. Kline, P.L.S., G.S.I All Rights Reserved } 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 North Carolina } 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. What are the effects of the passage of time on title? } Lapse of time, coupled with non-possession or inaction, may alter a man's legal position vis-a-vis his property, both corporeal and incorporeal, in several different ways. } The law may (1) bar the owner from asserting his rights by a droitural action and thus leave these rights suspended in a state of unenforceability; } (2) extinguish his legal right as well as his remedy; } (3) transfer his rights to another who has exercised them by long-continued possession or use; and } (4) impose a presumption that long-continued possession or use by another had its beginning in a lawful devolution of right. 1

2 } Statute of Merton, 1235, 20 Hen. 3, c.8, the limitation was fixed at the accession of Henry H in } 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 (1540) } 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. } The approach described in the fourth example, that of imposing a presumption, differs somewhat from an acquisitive prescription, though its effect is also investitive. } A presumption does not afford a mode of acquiring new rights but rather provides a means of protecting a presumably lawful acquisition of presently existing rights, whose origin is lost in antiquity. } It is a legal substitute for title supplied through an evidentiary device. Its employment is found both in the common and Roman law systems. } The English law since the time of Bracton ( ), if not since a century earlier, has allowed easements to be acquired through immemorial user termed "prescription". } This was the only form of acquisitive prescription known to the common law. Its application has been firmly restricted to easements and profits. } II. And be it further enacted, That no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way (d) or other easement, or to any watercourse, (e) or the use of any water, to be enjoyed or derived upon } shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years } and were such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, } the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. Doctrine of Presumed Grant (Lost Grant Theory) 2

3 } For the law will never construe a possession tortious unless from necessity. } On the other hand, it will consider every possession lawful, the commencement and continuance of which, is not proved to be wrongful. And this upon the plain principle, that every man shall be presumed to act in obedience to his duty, until the contrary appears. } When, therefore, a naked possession is in proof, unaccompanied by evidence, as to its origin, it will be deemed lawful } The doctrine, as to presumptions of grants, has been gone into largely, on the argument, and the general correctness of the reasoning is not denied. } There is no difference in the doctrine, whether the grant relate to corporeal or incorporeal hereditaments. } A grant of land may as well be presumed, as a grant of a fishery, or of common, or of a way. } Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. } 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 } Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law } that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law." } In order for the doctrine of a lost grant to be applicable, the possession must be under a claim of right, actual, open and exclusive. } A chain of conveyances is important. So is the payment of taxes. } A claim for government lands stands upon no different principle in theory so long as authority exists in government officials to execute the patent, grant or conveyance. } As a practical matter it requires a higher degree of proof because of the difficulty for a state to protect its lands from use by those without right. } 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. 3

4 } 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. } BOOTH, Chief Justice, charged the jury--that as a general principle, acts of limitation will not run against the State; } nor can there be an adverse possession, strictly speaking, against the State such as can be against an individual; } yet there are cases where from length of possession-- rightful possession--a presumption will arise against the king, or against the State, to quiet the title. } The most solemn papers have been presumed after a great lapse of time: grants; charters; even acts of parliament, have been presumed. So in this country grants and patents from the State are presumed after a great lapse of time in conformity with lawful possession. } A shorter, more succinct statement of the rule appears in U. S. v. Fullard-Leo, 331 U.S. at 271, 67 S. Ct. at 1294: } (B)y the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for 20 years, } and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law. } The net result of these policies is that it is not necessary to believe a conveyance was in fact made in order for the trier of fact to presume a conveyance. } If the evidence leads to the conclusion that the conveyance might have been executed, and } that its existence would be a solution to the difficulties arising from its non-execution, then this is sufficient to presume a grant. } Delaware has recognized the doctrine of presumed or lost grant for at least 130 years. } In Walls' Lessee v. M'Gee, 4 Harr. 110 (1844) }...yet there are cases where from length of possession rightful possession a presumption will arise against the king, or against the State, to quiet the title. The most solemn papers have been presumed after a great lapse of time: grants; charters; even acts of parliament, have been presumed. So in this country grants and patents from the State are presumed after a great lapse of time in conformity with lawful possession. 4

5 } Furthermore, the defendants have set forth a sufficient basis for believing that they may have a valid claim of title by adverse possession because it appears that the land in dispute may have long been in the possession of the defendants and their predecessors } The State's Motion For Summary Judgment is therefore denied. So ordered. } Hopefully, this matter is at long last now ready for trial. } In South Carolina, adverse possession may be established under a 10-year statute of limitation } In addition to the 10-year statute of limitation for adverse possession, South Carolina common law recognizes the 20-year presumption of a grant. } there are several methods for acquiring property through the passage of time, and the acquisition of land under the common law period is more accurately labeled the 20- year presumption of a grant). Under the presumption of a grant, the time of possession may be tacked not only by ancestors and heirs, but also between parties in privity in order to establish the 20-year period. } To constitute adverse possession, which results in obtaining title to the disputed property, the possession must be continuous, hostile, open, actual, notorious, and exclusive for the requisite period. } The claimant's possession must be hostile to not only the true owner, but also to the rest of the world so as to indicate his exclusive ownership of the property. Id. } These elements must also be present in the presumption of a grant. Adverse Possession } 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. } 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. 5

6 } 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. } Further, New Jersey has not adopted the position of some majority jurisdictions that adverse possession "should be disfavored." } Rather, our Supreme Court has recognized that "adverse possession promotes certainty of title, and protects the possessor's reasonable expectations. } allowing adverse possession promotes active and efficient use of land, and 'tends to serve the public interest by stimulating the expeditious assertion of... claims'" before they become stale. } Adverse possession "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. } In any event, the position taken by other States is irrelevant given our high court's rulings. } Goldenberg contends it should not be faulted for failing to assert its rights as the title holder. However, "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." } "'The moral justification of the policy'" is "'that one who has reason to know that land belonging to him is in the possession of another, and neglects, for a considerable period of time, to assert his right thereto, may properly be penalized by his preclusion from thereafter asserting such right.'" } 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. 6

7 Statutory Requirements } 2A 14-6&7 20-year statute of limitations } 2A14-8 Adverse claims against the state } 2A Claims concerning void wills } 2A Tolling of the statute of limitations } 2A Adverse possession for 30 years cultivated, 60 years woodlands, and uncultivated tracts } 2A Adverse possession 30 years with color of title } 2A Minors and those under disabilities } 2A Prescriptive rights for wires and cables } 2A Prescriptive easement for utility lines } 2A:62-1 By persons in peaceable 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. } 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. 7

8 } 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. } 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: } 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. 8

9 } Remember OCEANS Breakdown of Common Law Requirements } Occupation, } Continuous, } Exclusive, } Adverse (to the true owner) } Notorious (open and), } for the Statutory Period. } 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. } Goldenberg principally claims the trial court erred by applying the "preponderance of the evidence" standard to this adverse possession claim. Goldenberg cites older Appellate Division decisions stating: } "It is familiar law that one who claims title by adverse possession has the burden of proving [the requisite possession] by clear and convincing evidence[.]" } However, that proposition of law has never been adopted by our Supreme Court or its predecessor, the Court of Errors and Appeals. } Before those Appellate Division decisions, our State's highest court had adopted the preponderance standard for adverse possession, and for the similar concept of prescriptive easement. } ("The burden of proof remains upon the plaintiff to establish the prescription by the preponderance of the evidence."); } (ruling adverse possession "must be made out 'clearly and positively, by a preponderance of evidence'"); } ( claiming adverse possession "is bound to make out this defence by a preponderance of evidence"). } 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 } 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. How to Define Hostile } 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. } It is elementary that a possession that will work an ouster of the owner must be open, notorious, hostile and continuous. } If stealthy, hidden, permissive or intermittent it will not avail. } The tenant must unfurl his flag on his land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his dominions and planted the standard of conquest. } Goldenberg similarly argues plaintiffs' positions cannot be "hostile" due to the railway access easements. However, our Supreme Court in Mannillo "discard[ed] the requirement that the entry and continued possession must be accompanied by a knowing intentional hostility." } The Court "h[e]ld 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." } Our opinions have differed on whether our "Supreme Court did away with hostility as an essential element of adverse possession," } The better view is that the Court in Mannillo redefined the element of "hostility" by deciding that "an entry and continuance of possession under the mistaken belief that the possessor has title to the lands involved, exhibits the requisite hostile possession to sustain the obtaining of title by adverse possession." 10

11 } Under the modern definition, "'the term "hostile" does not mean that there has to be ill will or malevolence, but the term means only that one in possession of land claims the exclusive right thereto.'" } Thus, "if a person uses the property of another under a claim of right," whether based on a mistaken belief the person owns the property or on an intent to claim property the person knows belongs to another, the person shows the requisite hostility. Open Notorious Exclusive } there is a caveat concerning the presumption and the necessary standard of open and notorious possession } The foundation of so-called title by adverse possession is the failure of the true owner to commence an action for the recovery of land within the period designated by the statute. } However, no presumption of knowledge arises from a minor encroachment. } That is, the true owner is not charged with knowledge of an encroachment unless or until it takes on characteristics of acts of dominion over the land. } That failure [to take action] is relevant only if the owner has had notice, actual or constructive, that another considers himself to be, or is using the property as, the owner. } Therefore, one criterion of adverse possession is that the use must be so open and notorious that an ordinarily prudent person would be put on notice that the land is in actual possession of another. } Goldenberg argues the lot owners allowed each other to use their respective portions of the alley so their possession was not exclusive. } However, "[t]he requirement of exclusivity means only that the user have acted independently of the rights claimed by others, such as the general public." } This is not a situation where the lot owners were using the alley "as a member of the public, in common with all others." } Rather, each lot owner claimed possession of its portion of the alley "as an adjunct of a private commercial enterprise." } Indeed, by fencing and locking the entrances to the alley, the lot owners excluded members of the public. } The lot owners could permit each other to make transitory use of their respective portion of the alley without sacrificing their claim to possession. 11

12 } Goldenberg contends the possession by the predecessors of Narula and PPG was not continuous because portions of their subdivided buildings were occasionally vacant for several months. } However, these short-term vacancies never left an entire building vacant. } Moreover, "periods of vacancy occasioned by changes of ownership or substitution of tenants and uses which are consistent with the character of the property do not destroy the continuity of use." } 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); Continuous vs. Intermittent: Sporadic, Mowing Grass } 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. } Defendants next contend that the cutting of hay out of the hayfield was "occasional use," insufficient to support a finding of adverse possession. In this regard, the court found that, "[t]he farming activity on the field went on every year and the fact that hay had been cut therefrom was evident for several months of each year. } In cases involving adverse possession, the question is not whether possession of the land was occasional, but rather whether the claimant has satisfied all of the elements of adverse possession. 12

13 } The law is well established that merely mowing grass, regardless of the intent of the claimant, is insufficient as a matter of law to amount to the required possession, and is therefore insufficient to commence the running of the statute of limitations upon which adverse possession can be founded. Mistaken Belief } The tenant manifested her intent to maintain possession of the locus, even if she did it under a mistaken description. } Proesentia corporis tollit errorem nominis, identification by the senses overrides description, as in many other cases in the law. } We interpret the finding and ruling as meaning that the tenant in actual fact occupied the premises adversely during the whole twenty years, } 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 } 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. 13

14 } 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." } 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. Tacking Adverse Use } 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." } To establish adverse possession for the required thirty years prior to suit, Narula and Halladay must rely on the possession of their lots by their predecessors. } Our courts "permit tacking, the accumulation of consecutive periods of possession by parties in privity with each other. } "Privity is simply mutual or successive relationship to the same rights of property." } "[I]n adverse possession claims," the issue is "privity of possession," that is, "[p]rivity between parties in successive possession of real property. } The privity "requirement is satisfied if the later user succeeded to the interest of the earlier user by voluntary or involuntary transfer or by succession at death. 14

15 } Goldenberg's argument that only transfer by voluntary conveyance can tack is also contrary to the language of N.J.S.A. 2A: } That statute provides that possession "continued by occupancy, descent, conveyance or otherwise, shall, in whatever way or manner such possession might have commenced or have been continued," constitute adverse possession if continued over the statutory period. N.J.S.A. 2A:14-30 } Goldenberg claims an intent to transfer is required, citing our statement that "[t]acking is generally permitted 'unless it is shown that the claimant's predecessor in title did not intend to convey the disputed parcel } However, Stump did not address or preclude tacking where the property was conveyed by foreclosure. Indeed, in Stump we cited with approval } "adverse possessor sold property..., then later foreclosed on buyer for failure to pay," and the court held "this privity of possession permitted tacking." When does Title Pass To Adverse Claimant? } Again, as to land the distinction amounts to nothing, because to deny all remedy, direct or indirect, within the State is practically to deny the right. } The lapse of time limited by such statutes not only bars the remedy, but it extinguishes the right, and vests a perfect title in the adverse holder. } Property is protected because such protection answers a demand of human nature, and therefore takes the place of a fight } But that demand is not founded more certainly by creation or discovery than it is by the lapse of time, } which gradually shapes the mind to expect and demand the continuance of what it actually and long has enjoyed, even if without right, } and dissociates it from a like demand of even a right which long has been denied. } Constitutions are intended to preserve practical and substantial rights, not to maintain theories. } It is pretty safe to assume that when the law may deprive a man of all the benefits of what once was his, it may deprive him of technical title as well. } That it may do so is shown sufficiently by the cases which we have cited and many others. 15

16 } Based on the testimony and the photographic evidence, this court finds that the Driveway Area was in place as early as } Sometime in 2004, following a survey of their property, the Mendoncas learned that the Driveway Area encroached on their land. } The Pilkons' paved driveway existed in the same location until the 2006 excavation by the Mendoncas. } While the Pilkons' driveway, including the Driveway Area, has been resurfaced several times since 1969, the location and dimensions of it did not change until the Mendoncas' 2006 excavation. } Since this court has found that Plaintiff established title to the Driveway Area, it follows that } Defendants trespassed on the Pilkons property when they excavated the Driveway Area, removed the wall, and erected a fence in 2006 without permission or right. } "When one without right attempts to appropriate the property of another...a court of equity will compel the trespasser to undo as far as possible what he has wrongfully done." } Tacking is the legal principle whereby successive adverse users in privity with prior adverse users can tack successive adverse possessions of land so as to aggregate the prescriptive period of twenty years. } that Sophia Lupton, mother of these plaintiffs, used Lupton Drive without interruption, openly, notoriously and adversely, under claim of right, from 1938 until her death in 1967, a period of approximately twenty-nine years. } In this situation, her adverse use of the road for more than twenty years ripened into an easement by prescription, and the applicable legal principle is not tacking but succession. } Third, defendant requested the trial judge to charge the jury that the proper period for consideration for a prescriptive right was twenty years next preceding the claim. } The trial judge refused to so charge, and defendant excepted. He cites no authority for his position, and we have found none. } A careful reading of the guidelines in Dickinson v. Pake, supra, and other related cases, finds no such requirement. } We believe that title vests in the claimant upon twenty years of continuous and uninterrupted possession, all other requirements having been met, } and the bringing of suit at any time thereafter simply gives record title to the property or interest in property acquired. How to Interrupt an Adverse Possession Claim 16

17 } In order that an adverse possession of lands shall ripen into title, it must be continued for the full period of twenty years. If, before that period has elapsed, the possession has been abandoned, or the owner has entered and regained possession, the continuity of the adverse possession will have been broken. } If it be renewed thereafter, it will begin to count only from such renewal, and the period previous to the abandonment or interruption cannot be counted as part of the twenty years. } The entry of the owner to interrupt the continuity of adverse possession resembles the entry which, at common law, was necessary to transform a seisin and freehold at law (obtained by the devolution of a freehold estate by act of law, as by descent) into a seisin and freehold at deed, in that it must be an actual entry on the lands by the person having a right of entry, or by some one thereto authorized by him (which authority may be conferred by parol), and the entry must be with intent, and accompanied by some act evincive of such intent. } The important question in all cases is as to the intent and purpose of the entry. That the intent is indicated only by trivial acts, or that the possession acquired was retained only for a short time, does not necessarily deprive an entry of the effect of interrupting adverse possession. } What acts will indicate such an intent must vary widely, in accordance with various sorts of property. } It is not the length of the interruption, but its quality, which is to be considered in determining whether the continuity of the adverse possession has been broken. } "Once adverse possession has begun, the record title owner cannot stop the running of the period merely by granting permission." } Judge Southwick distinguished possession beginning without permission from the title owner and possession beginning with permission from the title owner. } In the current case, it is undisputed that Hudson began his possession without permission from Conliff, the title owner. Further, the Mississippi Supreme Court has held that an offer to pay for land after an adverse-possession title has ripened is not a disclaimer of title. } 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 } It would seem to be clear from the facts stated that no actual entry was made at any time upon the land in question by Willie Wickes of a character to operate to restore to her the possession thereof. } All the authorities agree that an entry to have such effect must be an actual entry upon some part of the land within the period of limitations, and must evince that it is made with the clear and unequivocal intent } to invade and challenge the right of the holder of the adverse possession and to retake possession. 17

18 } However, the reentry and consequent interruption of the possession must rise in dignity and character to that required to initiate an adverse possession. It is not every entry, however, by the owner that will destroy the adverse possession, but to effect this, he must assert his claim to the land by acts of ownership. * * * } An entry on land by a person disseised, merely for the purpose of seeing if there is any evidence of an adverse occupation, is not, as a matter of law, conclusive evidence of an interruption of the disseisor's possession." } However, "[t]he true owner of land may interrupt an adverse possession by reentry under circumstances showing an intention to assert dominion against the adverse user." } In order to interrupt the non-title holder's adverse possession, the true owner must take some action manifesting an intention to assert dominion against the adverse possessor. } "The burden to establish a reentry is upon the person seeking to defeat the claim of adverse possession." } Not every assertion of ownership by the record owner suffices to stop the running of the statute. } The running of the statute is interrupted by the owner's entry on the land, if, and only if, this is made openly and under claim of right, with a clearly indicated purpose of taking possession. } The usual elements of possession must be established, as in the case of the entry by the adverse possessor, except that it need not be exclusive. Payment of Taxes Narrow Strip rule } 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. } "[P]ayment of taxes alone is insufficient to give rise to adverse possession." } Nonetheless, "[p]aying taxes on the property" and fencing it are "'the two most significant activities'" by which an adverse claimant can "prove that he or she 'has acted towards the land in question as would an average owner.'" 18

19 Co-Tenants & Family } 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 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 } However, the relationship of the parties must be taken into account in adverse possession cases } Generally, family members are more likely to allow one another to make such use of each other's property that they might not otherwise allow of non-family members. When a family relationship exists, the inference arises that such use is by permission Claims against the State } 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. 19

20 } 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." } 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 Supreme Court reversed, observing, "It is settled that the State's title in tidelands cannot be lost by adverse possession or prescription" based upon the State's "delay or inaction." } ("In the absence of any showing that a State officer conscious of the State's interest stood by while the private owner acted in reliance thereon, the State's failure to claim tidally-flowed, interior meadowlands until the passage of Title 13 does not support an estoppel.") } 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." Color of Title } "Color of title" is something less than actual title. "Color" is defined in 15 C.J.S., p. 235, as follows: } "* * * In a derived sense, 'color,' in legal parlance means 'appearance' as distinguished from 'reality'; guise; appearance; pretense; not the thing itself, or the right to the thing, but only an appearance thereof; semblance; show; implying in the language of the law that the thing to which it is applied has not the real character imputed to it. 20