Last month, we began a discussion on gathering evidence relating to adverse possession.

We noted that each state has specific statutory requirements for adverse possession and that these requirements can change over time by legislative act. We pointed out that adverse possession must be adverse to the true owner and that hostility is required. Here, we’ll look at some additional principles involved in collecting evidence for adverse possession litigation.

Adverse Possession by Mistake

Can an individual adversely possessing the lands of another be considered to have fulfilled all of the legal requirements of adverse possession when under the mistaken belief that the land being possessed is his or hers? Several instances have arisen where surveyors have been justifiably confused on this issue because the opinion from one authority may differ from that of another based purely on the personal experience of that individual. The general trend in the states where case law was studied was toward allowing adverse possession in such a situation. However, the discussion regarding precisely what constitutes a valid possession by mistake is very much state specific, and some states, including North Carolina and Tennessee, have adjusted their position with respect to this concept over time.

California case law seems clear in allowing adverse possession by mistake, as seen in Gilardi v. Hallam.

Although there is some conflict in cases from other jurisdictions, the rule is settled in California that the requisite hostile possession and claim of right may be established when the occupancy or use occurred through mistake. In Woodward v. Faris (1895) 109 Cal. 12, 17 [41 p. 781], the court pointed out that most cases of adverse possession commenced in mistake and that the possession must be by mistake or deliberately wrong. To limit the doctrine of adverse possession to the latter possession places a premium on intentional wrongdoing contrary to fundamental justice and policy. Numerous cases have since recognized that title by adverse possession may be acquired though the property was occupied by mistake.14

The Missouri courts make a similar statement in Watson v. Mense.

The element will be satisfied even if the possessor only mistakenly believes she owns the land and occupies the land in question. … The lack of a dispute between the Watsons and the Menses’ predecessors in title is irrelevant to the hostility requirement. The trial court found that the Watsons believed that they owned the land north of the fence line which is sufficient to meet this element. Under [the previous case of] Murphy, this finding is not disturbed.15

In the Virginia case of Hollander v. World Mission Church, the court stated that “the collateral question whether the possessor would have claimed title, claimed the land as his own, had he believed the land involved did not belong to him, but to another, that is, had he not been mistaken as to the true boundary line called for in his chain of title, is not the proximate but an antecedent question, which is irrelevant and serves only to confuse ideas.”16

The concept that the state of mind of the adverse possessor is immaterial was echoed in other states where case law was examined. 


The requirement for “exclusive” use generally restricts the claim to use by an individual or to a single family. As stated in the Illinois case Davidson v. Perry under adverse possession, “exclusivity means the claimant’s rights do not depend on the rights of others. … Exclusivity also demands the adverse possessor deprive the rightful owner of all possession.”17

An additional complication with this requirement occurs when two or more individuals own lands as tenants in common. Several cases (including Fender v. Smashum, which was discussed in part 1 of this column) deal with the failure of one tenant in common to show proof of ouster of the other tenants in common. The California case Johns v. Scobie stated that “it is a fundamental rule that each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others.”18

Open and Notorious

The open and notorious requirement precludes any possibility of possession that cannot be detected by any reasonable observation of the land in question. As seen in the California case of De Frieze v. Quint, “the occupancy thereof must be sufficiently open and notorious to notify an ordinarily prudent owner of its existence, and of its hostile character, unless he is otherwise actually notified of these facts; and to be available against persons dealing with the owner for the land, the occupancy must be of such a character, at least, as should put them upon inquiry as to the title of the occupant.”19This requirement was also defined as “not clandestine” in California case law. Elsewhere, an Ohio case stated that “the Vermont Supreme Court stated the same proposition more colorfully when it declared that to establish adversity, ‘[t]he tenant must unfurl his flag on the land, and keep it flying so that the owner may see, if he will, that an enemy has invaded his dominions and planted his standard of conquest.’”20


The requirement for continuous use can be extremely elastic in its definition and vary from relatively constant use (for example, in areas where residential or commercial use is typical) to once a year or even less (in cases of swampland or other marginal-use property accessed mainly for logging or hunting). In one Ohio case, the court held that a four-month hiatus was insufficient to interrupt an adverse-possession claim.

The Gahms argue that the four-month gap in time from when Lounds sold the property to Sherman and when Sherman actually began using the disputed tract as pasture destroys the Bullions’ continuous possession. In order for use to be continuous, there must not be substantial interruption, “with daily or weekly use generally not being required as long as the use is continuous enough to indicate prolonged and substantial use.”21


One of the related issues upon which the individual states vary greatly is that of tacking. The California courts provided an excellent definition in 1869.

It is a principle well established that when several persons enter on land in succession, the several possessions cannot be tacked so as to make a continuity of possession, unless there is a privity of estate, or the several titles are connected. Whenever one quits the possession, the seizin of the true owner is restored, and an entry, afterwards, by another wrongfully, constitutes a new disseizen.22

Tennessee also allows tacking in certain situations as described in Cumulus Broadcasting v. Shim. Here, the court, citing earlier case law, stated that “successive possessions, or tacking, may be utilized to establish the requisite period of years if there is no hiatus. … What is required for tacking is that ‘the adverse possessor intended to and actually did turn over possession of … [the] land.’”23By contrast, South Carolina common law is much more restrictive on this principle and only allows tacking between ancestor and heir, as seen in Jones v. Leagan.

A person claiming adverse possession must have personally held the property for ten years, and tacking is allowed only between ancestor and heir. … During the ten year period, tacking is not allowed between successive occupants. Id. If the claimant’s period of adverse possession is interrupted, constructive possession is restored to the owner.24 

Effect of Color of Title

The Tennessee courts defined color of title as “something in writing which at face value, professes to pass title but which does not do it, either for want of title in the person making it or from the defective mode of the conveyance that is used.”25General Statute 1-40 (North Carolina) requires 20 years of possession without color of title but only seven years with color of title. (Statutory time periods in Tennessee are similar in this case). On the other hand, South Carolina (Title 15 Chapter 67) states that the time requirement remains unaltered, but the statutory requirement that the land be substantially enclosed is less stringent when accompanied by color of title.

Two California cases also highlight the effect of this factor. In Allen v. McKay, the court stated that “Section 325 of the Code of Civil Procedure provides: ‘For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial inclosure; 2. Where it has been usually cultivated or improved.’”26

By contrast, an earlier California case states “It is clear that under these circumstances actual possession and occupancy of the entire tract was not necessary in order to give title by adverse possession. That the deed of November 29, 1897, and the subsequent decree of distribution in 1898, constitute color of title cannot be disputed.”27

Actual vs. Constructive Possession

As a general rule, most examples of adverse possession fall into the category of constructive possession, as described in Sepulveda v. Sepulveda.

A man cannot, with strict propriety, be said “actually” to possess any more land than he actually stands upon, or can reach with his arms or a weapon; nor can he be said “actually” to possess even this any longer than he actually stands upon it. All beyond this is mere “constructive” possession; i. e., possession implied by the law from certain facts. Possession, therefore, by a substantial fence, is as purely “constructive” as possession by the metes and bounds of a deed. So, a man’s possession of his house, while he is out of it, is purely “constructive.”28

In many instances, both parties may show evidence of different forms of constructive possession. Of specific interest to the surveyor is the effect on an adverse possession claim when the owner of title orders a survey in order to break up the continuity of the claim. Although it may be disappointing to the surveying community, the consensus in the states where relevant cases were studied indicates that the performance of a survey accompanied by the drafting of a plat and setting corner monuments by a licensed professional is not sufficient either to interrupt a claim or to provide convincing evidence of an adverse claim when unaccompanied by other clear and convincing evidence. The Illinois court stated, “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.”29

An Ohio case, quoting the American Law Reports, summarizes the issue.

In Rosencrantz, the Maryland Court of Special Appeals expressed doubts that entry upon disputed land by a true owner’s agents, merely to conduct a survey, would sufficiently disrupt the continuity of adverse possession as a matter of law … “owner’s surveying of land, without more, is not enough to interrupt the continuity of possession so as to toll the running of the statute of limitations for the purposes of adverse possession.” 76 A.L.R.3d 1202, Section 2.”30

I cannot overemphasize the fact that this article--despite the number of sources quoted, the number of states from which they originate and the span of time that they encompass--only scratches the surface of the unpredictable and complex body of information that is the entirety of adverse possession case law and statute law in this country. It is certainly gratifying when the surveyor is asked to mediate between parties or to settle an adverse possession claim, but the surveyor risks major repercussions with any error in judgment when acting in this capacity. Much more information is now available to us through various sources, and the surveyor should take advantage of any opportunity to expand his or her understanding of these issues while keeping clearly in mind that the practice of surveying and the practice of law are two different professions.


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., 2007.

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.         Id.

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.       Watson v. Mense, 2009.

13.       Eleanor S. Pegg v. Ervin Jones, No. COA07-147, Filed 4 December 2007, North Carolina.

14.       Gilardi, et. al. v. Hallam, et. al., 1981.

15.       Watson v. Mense, 2009.

16.       Carolyn Hollander v. World Mission Church of Washington, D.C., Record No. 970922, Record February 27, 1998 (Virginia).

17.       Suzanne Elliott Davidson, v. Thurl S. Perry and Tracy I. Perry, No. 4-18-0188, Appellate Court of Illinois.

18.       James T. Johns v. Lena A. Scobie, 12 Cal. 2d 618; 86 P.2d 820; 1939.

19.       De Frieze v. Quint, No. 14667, 94 Cal. 653; 30 P. 1; 1892.

20.       Grace v. Koch (1998), Ohio St.3d, No. 96-2620.

21.       Bullion v. Gahm, 164 Ohio App.3d 344, 2005-Ohio-5966.

22.       The City & County of San Francisco v. Martin Fulde, et. al., Supreme Court Of California 37 Cal. 349; 1869.

23.       Cumulus Broadcasting Inc. v. Jay W. Shim, et. al., 2007.

24.       W. Harold Jones v. Mandy Leagan,, Opinion No. 4551, April 22, 2000, South Carolina.

25.       Cumulus Broadcasting Inc. v. Jay W. Shim, et. al., 2007.

26.       Charles F. Allen v. McKay & Co., S. F. No. 415, Supreme Court of California, 120 Cal. 332; 52 P. 828; 1898.

27.       Marie M. Owsley v. Isaac Matson, S. F. No. 5123, Supreme Court of California, 156 Cal. 401; 104 P. 983; 1909.

28.       Eloisa Sepulveda v. Jose Dolores Sepulveda,, Case No. 2,166, 39 California 13; 1870.

29.       Davidson, et. al. v. Perry.

30.       Crown Credit Co. Ltd. v. Bushman, 170 Ohio App.3d 807, 2007-Ohio-1230.

*               References 1-13 were cited in part 1 of this article, which ran in Aug. 2010 POB.

Kris Kline is president of 2Point Inc. (, Alexander, N.C. He can be reached at kkline@

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.