The discovery of evidence of apparent possession of lands not included in the written legal description of the possessor is a familiar occurrence for most surveyors. This situation can create convoluted and costly legal issues for landowners, surveyors and attorneys. This principle is well established in our legal system as observed by the Tennessee Supreme Court.

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. Title by either possession or prescription is an old subject in the English Law, according to one treatise, with counterparts in the Roman law. (Boyer, Survey of the Law of Property).”[1]

Although original boundary lines as described in the original conveyance never move after the moment of their creation, title to additional lands can be gained or lost through the process of adverse possession. This separate title is actually considered to be of the highest character at the moment of its creation, as seen in Cannon v. Stockmon.

And such a title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it, and the appropriate mode of conveying it is by deed…The lapse of time limited by such statute not only bars the remedy, but it extinguishes the right, and vests a perfect title in the adverse holder.[2]

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.


References

1. Cumulus Broadcasting, Inc. v. Jay W. Shim, et.al. Tennessee Supreme Court, case no.  M2003-02593-SC-R11-CV - Filed on April 27, 2007.
2. R. B. Cannon v. D. M. Stockmon Supreme Court of California 36 Cal. 535; 1869 Cal.
3. Cumulus Broadcasting, Inc. v. Jay W. Shim, et.al.
4. Charles Robert Watson & Carolyn Watson, v. Robert K. Mense & Carolyn K. Mense, (Case No. SC89936) Missouri Supreme Court. 2009
5. Sherwood N. Fender, v. Heirs at Law of Roger Smashum, Opinion No. 3639 Heard March 11, 2003 – Filed May 5, 2003 The State Of South Carolina In The Court of Appeals.
6. Cooley, Thomas M. - The Judicial Function of Surveyors
7. Ibid.
8. Taylor v. Burnsides, 42 Va. 165, 190 (1844).
9. Richard L. Gilardi et al., v. Gary L. Hallam et al., 30 Cal. 3d 317; 636 P.2d 588; 178 California. Rptr. 624; 1981.
10. Smathers, George H., “History of Land Titles in Western North Carolina”; 1938.
11. Young Kee Kim v. Douval Corporation - Record No. 991092 April 21, 2000 - Virginia.
12. Ibid. at 4.
13. Eleanor S. Pegg v. Ervin Jones No. COA07-147 Filed: 4 December 2007 North Carolina.