Differences
of Opinion
Adverse possession statutes and common law principles vary significantly from
state to state; however, certain characteristics are common to most states. In
the case of Cumulus v. Shim, the Tennessee courts make a good general statement
of these requirements.
Generally, acquisition by adverse possession for the requisite period of time,
whether statutory or under common law, must be (a) actual and exclusive; (b)
open, visible, and notorious; (c) continuous and peaceable; and (d) hostile and
adverse. Id.
The adverse possession of real estate is not only inconsistent with the right
of the title holder but may, when all elements of the doctrine are present,
create an actual ownership interest…”[3]
Likewise, the Missouri Supreme Court stated that “to acquire title by adverse
possession or prescription, possession must be: (1) hostile, that is, under a
claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5)
continuous for the necessary period of years prior to the commencement of
action.”[4]
While relatively simple in concept, this is a very difficult principle to apply
in practice, and some court cases based on evidence that seems completely
beyond dispute have fallen apart on various technicalities. For example, in
Fender v. Smashum, the lower court held that Fender had fulfilled the adverse
possession requirements and “found the ten-year statutory period began with the
November 14, 1988 deed to Fender and Parker, and ended in November 1998. In
finding adverse possession, the court relied on: 1) the receipt by Fender of a
warranty deed dated November 14, 1988; 2) the paying of property taxes for the
statutory period of ten years; 3) the assertion of title by the giving and
receiving of fractional interests through successive conveyances by warranty
deeds during the statutory period; and 4) the erection of no trespassing signs
on the property during the statutory period.”
However, the South Carolina Appeals court reversed the decision with the
following statement: “We find the actions cited by the circuit court do not as
a matter of law establish ouster and consequently do not show Fender obtained
title to the property by adverse possession.”[5]
Given these differences of opinion, to what degree is the surveyor responsible
for adjudicating disputes relating to adverse possession?
Gathering the Evidence
Justice Thomas Cooley’s opinions on the quasijudicial function of the surveyor
have been debated for many years, and opinion will no doubt remain divided.
Cooley is quick to point out that the surveyor “should hesitate long before
doing anything to the disturbance of settled possessions.” He goes on to refer
to “the mischiefs of overlooking the facts of possession.”6 However, he also
makes the point that current possession lines are (at times) the best evidence
of the location of the original stakes: “Occupation, especially if long
continued, often affords very satisfactory evidence of the original boundary
when no other is attainable.”[6]
His comments on possible acquiescence present yet another complicating factor
for the surveyor to consider. At a minimum, the surveyor should use extreme
caution when forming a professional opinion regarding ownership of land claimed
by adverse possession. “In any case of disputed lines, unless the parties
concerned settle the controversy by agreement, the determination of it is
necessarily a judicial act, and it must proceed upon evidence and give full
opportunity for a hearing.”[7]
It is also interesting that at no point in his famous essay does Cooley
specifically refer to the legal mechanism of “adverse possession,” although
this term was already well established in the American legal system at that
time as cited in an 1844 Virginia case.[8]
The surveyor is in a far more defensible position when he or she is retained to
collect information for adverse possession litigation. The skill and experience
of the surveyor may well affect the outcome of an adverse possession claim, and
a comprehensive knowledge of the principles involved will aid the surveyor in
collecting appropriate evidence.
The Statutory Requirements
Each state has specific statutory requirements for adverse possession, and
these requirements can change over time by legislative act. The Virginia State
Legislature has considered two bills to modify adverse possession statutes
since 1997 (House Bill No. 2374, offered January 20, 1997; and Senate Bill No.
67, offered January 13, 2010). The South
Carolina legislature considered but failed to pass a
bill extending the statutory requirement to 15 years (H-2354, 1981). The
statutory time requirement varies widely between states, with California leading the field with one of the
shortest statutory periods. “Section 325 of that code requires that to obtain
title by adverse possession the land must be occupied and claimed for five
years continuously and that claimants or their predecessors must have paid all
taxes levied and assessed against the land.”[9]
Some states, including North Carolina and Tennessee, have varying time frames
depending on whether the adverse possession occurs under color of title (more
on this later). To further complicate the issue, it is possible to adversely
possess against the state of North Carolina (in certain limited cases), but the
time requirement increases to 30 years without color of title and 21 years with
color of title. (G.S. 1-35).
Adverse to the True Owner…
It is a generally accepted principle that permissive use cannot mature into
adverse possession. It is also common for unexplained possession to be presumed
to be permissive, as was evident from numerous cases studied. The only possible
exceptions to this principle seemed to have existed in the past, as in North Carolina.
In the case of Brown vs. Spivey, 109 N. C. R., page 57, and Alexander vs.
Gibbon, 118 N. C. R., page 797, the court held that “the law presumes
possession unexplained to be an adverse possession.” The above decisions appear
to be overruled or at least rendered inoperative by reason of the provisions of
Section 386, First Vol. of Pell’s Revisal of 1908, as held by a later decision
of our Supreme Court in the case of Bland et .11 vs. Beasley et al, reported
145 N. C. R., pages 168, etc. The Court held in the latter case as follows:
“There is no presumption that the possession of real estate is
adverse.”[10]
…and Hostility Required
An excellent explanation of this prerequisite is found in the Virginia record. It is well-established that
a claimant’s possession is “hostile” if it is under “a claim of right and
adverse to the right of the true owner.” The phrase “claim of right,” when used
in the context of adverse possession, refers to the intent of a claimant to use
land as the claimant’s own to the exclusion of all others. The existence of a
claim of right does not depend on the claimant having any actual title or right
to the property. However, “where the original entry on another’s land was by
agreement or permission, possession regardless of its duration presumptively
continues as it began, in the absence of an explicit disclaimer.”[11]
This requirement is sometimes misinterpreted to mean that the two parties must
have been battling over possession of the land in question for the entire statutory
period. The Missouri
court system clarifies this requirement with the statement: “There need not be
a dispute between two adjoining landowners over the location of borderline to
satisfy the hostile requirement.”[12] In a rather extreme case of contrast, open
violence is not necessarily interpreted as adverse possession, as shown in a
North Carolina case.
[The court 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.” While the
incident with the shotgun is some evidence as to hostility, the evidence
discussed above is competent to support the trial court’s finding of fact that
defendant’s parents were not holding the property adversely against plaintiff
in 1965.13
Next month, we’ll look at the remaining principles involved in collecting
evidence for adverse possession litigation.
Neither the author nor POB intend
this column to be a source of legal advice for surveyors or their clients. The
law can change over time and differs in important respects for different
jurisdictions. If you have a specific legal problem, the best source of advice
is an attorney admitted to the bar in your jurisdiction.
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