Arguments involving retroactive legislation are common in modern courtroom disputes; they also often appear in news reports from the various media outlets. Parties involved in these cases often invoke ex post facto laws or the Takings Clause of the Fifth Amendment of the U.S. Constitution. While some of these disputes may be of limited interest to land use professionals, arguments over local land use ordinances, zoning, or additional restrictions mandated by state or federal laws may be of more immediate concern to the surveyor. Legislative acts and regulatory changes relating to riparian rights, railroads, public utilities and adverse possession may be further complicated by the courts’ imperative to protect existing property rights, whether public or private.
Court distaste for “retroactive legislation” is drawn from several sources and should not be equated exclusively with prohibitions against ex post facto laws found in the U.S. Constitution. Laws that purport to operate retroactively may be challenged on many fronts, depending on the subject matter of the law.
An early discussion of ex post facto laws is found in Dash v. Van Kleeck: 7 Johns. 477 (1811). Quoting Lord Blackstone, the New York court concludes: “An ex post facto law is when, after an action (indifferent in itself) is committed, the Legislature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it.” This term is generally linked to criminal cases, while “retroactive legislation” is a broader term that often appears in civil court disputes over real property.
Ancient and International Precedent
United States v. Schooner Peggy: 5 U.S. 103; 2 L. Ed. 49 (1801) is a benchmark U.S. Supreme Court decision that considers the pitfalls of retroactive laws. While this decision deals primarily with seizure of ships during hostilities with other nations, it also condemns uncompensated takings in private disputes: It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties… This case also clearly recognizes limits of this principle in cases of national security, where the rights of individuals must be balanced with the welfare of the nation.
The United States is not alone in its general distaste for retroactive laws. In Eastern Enterprises v. APFEL: 524 U.S. 498 (1998), the U.S. Supreme Court again considered adverse effects of retroactive laws in the United States and in other nations. In addition to recognizing the repercussions of the ex post facto and Takings Clause violations, this ruling cites numerous sources – modern and ancient – for its reluctance to apply legislation retroactively.
Retroactivity is generally disfavored in the law…in accordance with “fundamental notions of justice” that have been recognized throughout history … “It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect…” Justice O’Connor observes that similar strictures against retroactive laws are found in the legal systems of Canada, France and Finland.
This case also reinforces the durability of the Takings Clause in the United States. The Takings Clause of the Fifth Amendment provides: “Nor shall private property be taken for public use, without just compensation.” The aim of the Clause is to prevent the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Justice O’Connor recognizes the frequency with which the Takings Clause is applied to real property interests. Common disputes pertain to actual physical intrusion by the government onto private land, but others arise from regulations that seem to redistribute benefits and burdens between citizens for some public purpose. The tightrope walked by the courts is the balance between the government police powers and right to regulate, set against the rights of private parties to enjoy the benefits of their land. No specific formula can be applied equally to all disputes, lending additional complexity to any decision involving the Takings Clause.
Mineral Rights and School Lands
Retroactive laws may intrude in disputes over severed mineral rights and associated easements or rights of entry. The Florida decision, Trustees of Tufts College v. Triple R. Ranch: 275 So. 2d 521 (1973), includes detailed discussion of a 1970 statute – Section 704.05 – that purported to extinguish record easements associated with mineral rights after 20 years of non-use.
In this instance, the court concluded that 704.05 should not be applied retroactively to mineral estates severed from the surface prior to enactment of the statute. Statutes are generally presumed to operate proactively unless the law clearly states otherwise; 704.05 did not include any language indicating a contrary intent. Citing sources including Lord Coke and prior Florida precedent, Judge Roberts observes: “A statute is not to be given a retrospective effect unless its terms show clearly that such an effect was intended.” … “The rule that statutes are not to be construed retrospectively unless such construction was plainly intended by the Legislature applies with peculiar force to those statutes the retrospective operation of which would impair or destroy vested rights.”
Recognizing mineral rights as a valuable interest in real property, the court concluded that the easement created for the express purpose of accessing the subterranean estate also has significant value. The Declaration of Rights in the Florida Constitution states that: …private property [may not] be taken without just compensation. Prior rulings from that state confirm that easements are also protected by this provision. The court ruled that 704.05 could operate only on easements created after the law was in place.
The Iowa courts faced a similar problem (but with a very different outcome) in Independent School District of Des Moines v. Smith: 190 Iowa 929 (1921). The dispute was over three tracts purchased in fee simple for a public school circa 1867. Statutes enacted by the state in 1873 made land purchases for school purposes subject to a “reversion clause” that would cause the title to revert to the original tract from which it came if the subject tract was unused for school purposes for a two-year period. However, the statute also required repayment of the purchase price plus the price of improvements to the school system.
Rather than an uncompensated taking, this statute made provision for payment to the school for the land and improvements that were transferred. The court concluded that the retrospective operation of this statute was legitimate.
Retroactive Application of Changed Limitations
One of the most common and consistent criticisms of retroactive legislation is found in adverse possession rulings where individuals fulfill all then-current requirements for a prescriptive claim only to see the legislature change the statutory requirements. Courts nationwide consistently take a dim view of retroactive legislative changes to statutes of limitations for real property. Any other interpretation (in effect) would take away property titles that had already been perfected under the legitimate pre-existing system. Arguments against retroactive legislation for adverse possession claims may be found in rulings from Arizona, Colorado, Delaware, Georgia, New Jersey, New York and Maine.
Two separate bills were introduced – and failed – in Maine (2013) and Vermont (2017) that would have severely curtailed or abolished adverse possession claims in those jurisdictions. Neither bill made any provision for prescriptive claims perfected before the enactment of the new laws. Had the bills passed, the courts would have likely treated them as prospective laws, opening a new Pandora’s Box of claims that either commenced or were perfected prior to the effective date of the legislation.
In Rice v. Huff: 22 S.W.3d 774 (2000), the Missouri court considered a prescriptive claim against a city street that was purportedly abandoned by a city resolution recorded Feb. 3, 1975. Three days later, the local newspaper described the vote and noted that two blocks of Twelfth Street would be deeded back to adjoining owners. However, the mere vote by the board was insufficient to formally vacate the road and no additional action was taken until 1988, when a landowner called attention to the uncertain status of Twelfth Street. That year, the Board of Aldermen passed a legitimate ordinance that formally abandoned the road. (See Unmistakable Marks in POB September and October 2018 for further discussion of extinguishing easements.)
Although the Board of Aldermen expressed an intent to abandon the road in 1975, the intent was not fulfilled by a legitimate legal process until 1988. As a result, the 13 years of apparent adverse possession between 1975 and 1988 was actually invalid due to the continued status of Twelfth Street as a public way. The court explained why the 1988 ordinance could not cure the insufficiency of the 1975 vote: Retroactively vacating the street would give legal effect to a past transaction that otherwise would have no such legal effect. The motion by the Board of Aldermen in 1975 did not result in a vacation of 12th Street. A retroactive application of the ordinance would change the legal effect of the transaction, giving legal effect to Clara Knutter’s possession of the disputed tract for the ten-year statutory period, which otherwise could not have been adverse to the city.
Several recent federal cases have also pointed out the inappropriateness of retroactively redefining riparian property rights associated with the public trust doctrine. In State of North Carolina v. ALCOA: 989 F. Supp. 2d 479 (2013), Judge Boyle echoed language from previous Supreme Court decisions to rebuke the state for its attempt to claim the Yadkin River bed by reliance on statutes written subsequent to the private land grants: As to the State’s reliance on an 1885 state statute regarding its ownership of the Yadkin River bed, states “may [not] adopt a retroactive rule for determining navigability which would [serve] to enlarge what actually passed to the State… The state relied on a statute declaring the river navigable, but failed to recognize the significance or limitations of the statute.
Remember that not all retroactive laws are unconstitutional. The examples above represent only a limited sample of the many ways that the Takings Clause and retroactive legislation can affect private property rights. However, they do serve to demonstrate the care that must be taken when reading and applying statutes that purport to alter vested property rights.
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 is an attorney admitted to the bar in your jurisdiction.