Unmistakable Marks: Making Adverse Claims Against The State
The first problem is to determine precisely what constitutes “the state.” Land may belong to the U.S. Government, to any of the various states, to a municipality or county, or to an agency created by any of the above political subdivisions. As public or quasi-public entities, railroads are often considered as a unique category. Several states such as Ohio generally protect not only tracts belonging to the state government, but also lands owned by municipal corporations. However, not all jurisdictions follow this convention.
In a series of interesting Virginia rulings, the court considers the protection afforded to a wide range of public and quasi-public entities. Burns v. Board of Supervisors1 includes a discussion of the existing statute of limitations embodied in § 8.01-231. This statute specifically exempts “the Commonwealth” from the effects of the statute of limitations but fails to define the extent to which this protection is extended to other agencies.
The effect of Burns is to remove many government agencies from the aegis of protection afforded to the commonwealth by § 8.01-231. County governments are not included, nor any agency created by the county. The right expressed in the maxim “nullum tempus occurit regi” is an attribute of sovereignty and cannot be invoked by counties or other subdivisions of the State. As to such subdivisions of the state the statute runs in the same manner and to the same extent as against natural persons. It should be noted that § 8.01-231 has been modified since this 1984 decision. A previous Virginia ruling2 had already concluded that school boards in this state are subject to the effects of the statute of limitations.
Of particular interest is yet another Virginia decision considering the status of the Richmond Redevelopment and Housing Authority. Although this was considered a legitimate political subdivision of the state, the court noted that this agency acts in a proprietary rather than in a governmental capacity and therefore did not enjoy sovereign immunity to the statute of limitations.3
This leads to a broader consideration of the “governmental/proprietary” dichotomy applied in several states. Some tracts are actually dedicated to public use and these generally enjoy greater protection against prescriptive claims. Examples could include town squares, courthouses, public office buildings and public roads. Other tracts may be held by the state or local government in much the same manner as any individual or corporation owns land, with no implied long-term commitment of the land to public use. Foreclosed land held for public auction or tracts voluntarily deeded to a state agency but never used may fall into the latter category.
Several eastern states, including Connecticut,4 Delaware5, Maryland6 and New York7 consider the mode in which the government possesses the land to be a controlling factor in the success or failure of an adverse claim. The decision-making process associated with the mode of ownership may be further complicated when combined with the varying protections afforded to municipal governments as opposed to the state itself.
These complications are not the exclusive province of the eastern states. California Civil Code § 1007 has created major headaches for the Court system, due in part to several re-writes of the statute. Prior to 1935, it appears that this state recognized the “governmental/proprietary” distinction at common law. In 1935, the language of the law was modified to protect all lands “dedicated to or owned by” any public agency. Despite this language, the California court continued to recognize claims against public land not dedicated to public use.8 It is possible that the language of the 1941 ruling takes into account the stricture against retroactive statutes that divest property owners of legitimate rights obtained under prior laws.
In 1966, Los Angeles v. Coffey9 clarified the significance of the statute and recognized that adverse claims by private individuals will not be upheld against the state. This ruling leaves the door open for claims perfected before the 1935 version of the statute was enacted. It should be noted that, subsequent to Los Angeles v. Coffey, the statute was re-worded once again. The current version of Civil Code § 1007 protects lands: “dedicated to a public use by a public utility, or dedicated to or owned by the state or any public entity.”
Washington State courts provide a succinct summary of the contrast between the two modes of state property ownership: “Adverse possession does not run against a governmental body holding land for public purposes…However, if land is held by a governmental body in its proprietary, as opposed to governmental capacity, the land is subject to being acquired by adverse possession the same as if owned by a private individual… where land owned by a county is “never devoted to any use, public or otherwise . . . [the land] was held in a proprietary capacity and subject to adverse possession the same as if owned by a private individual.”10 Other jurisdictions that have recognized certain adverse claims against the state include Louisiana,11 Oklahoma12 and Alabama13.
On the other hand, the Minnesota decision Fisher v. City of Sauk Rapids14 does not recognize the governmental/proprietary distinction and concludes that the state statutes protect “most” state lands. However, this ruling also notes that where the state has clearly abandoned a given tract, the concept of estoppel may be applied to create a limited exception to state immunity from the statute of limitations.
A quick reading of the Wisconsin ruling Klinkert v. City of Racine15 appears to place this state squarely in the category of jurisdictions with comprehensive protection of all municipal lands. Judge Crownhart discusses the link between adverse possession and the doctrine of the presumed grant with this statement: “Adverse possession will not run against the city. Adverse possession ripens into a property right because of the presumption of a grant after the lapse of the statutory time. The city has no right to grant the streets and alleys for private use, and what the city has no right to grant cannot be obtained indirectly by any presumption of a grant.” However, this ruling is concerned predominantly with public easements and careful consideration notes that the distinction between proprietary and governmental ownership might be a consideration. As was the case in the Minnesota ruling discussed above, lands that have been abandoned by the municipality may become subject to adverse possession where estoppel makes any other solution unreasonable. It should also be noted that several states consider the doctrine of the presumed grant to be a separate common law variation of adverse possession.
In a few jurisdictions, the state itself has relinquished its sovereign protections against adverse claims. In West Virginia, Code § 55-2-19 emphasizes that: “Every statute of limitation, unless otherwise expressly provided, shall apply to the State.” North Carolina allows adverse claims against the state as stated in G.S. § 1-35, subject to restrictions protecting various lands dedicated to public use as described in G.S. § 1-44 and § 1-45.
In Tennessee, Code § 28-2-105 allows adverse claims against the state where seven years of actual possession is accompanied by “assurance of title recorded for thirty years or more.”16
Florida common law provides one of the few cases where adverse possession has been perfected against the U.S. Government. It should be emphasized that the circumstances described in Daniell v. Sherrill17 are extremely complex and are unlikely to be duplicated. For example, this court notes that the suit was not originally brought against the state, but by the state. As a result, the government exposed itself to liability that might not have applied in other circumstances: “If we say with Mr. Justice Holmes, ‘men must turn square corners when they deal with the Government,’ it is hard to see why the Government should not be held to a like standard of rectangular rectitude when dealing with its citizens.” …“But the great weight of authority, the stronger reasons and the settled rule upon this subject in the courts of the United States, is that, while mere delay does not, either by limitation or laches, of itself constitute a bar to suits and claims of a state or of the United States, yet, when a sovereignty submits itself to the jurisdiction of a court of equity and prays its aid, its claims and rights are judicable by every other principle and rule of equity applicable to the claims and rights of private parties under similar circumstances.”17 One of the many unusual factors in this case is that Sherrill possessed an apparently legitimate chain of title from the state of Florida, but title to the disputed tract was actually vested in the United States government. As previous examples in this article already demonstrate, estoppel can operate against the state in limited circumstances. The court in Daniell v. Sherrill concluded that these circumstances were exceptional.
Adverse claims to submerged lands present a particularly tricky situation for the courts. Lands under waters deemed navigable by the state are subject to special public trust doctrine protections. However, a recent Virginia ruling notes that while the rights of the states over public trust lands may not be lost by prescription, certain rights incidental to the adjoining riparian tracts may be gained or lost by the operation of the statute of limitations.18
While the examples above do not constitute an exhaustive analysis of all 50 states, they should serve to demonstrate the complexity of the situation that is often masked by the common but misleading phrase “private landowners can’t win adverse claims against the state.”
- Burns v. Board of Supervisors: 227 Va. 354, 315 S.E.2d 856 (1984)
- County School Bd. v. Whitlow: 223 Va. 157, 286 S.E.2d 230 (1982)
- Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp.: 195 Va. 827, 80 S.E.2d 574 (1954)
- Goldman v. Quadrato: 142 Conn. 398; 114 A.2d 687 (1955)
- Kempner v. Aetna Hose Hook and Ladder Co.: 394 A.2d 238 (1978)
- Messersmith v. Riverdale: 223 Md. 323; 164 A.2d 523 (1960)
- City of Tonawanda v. Ellicott Creek Homeowners Association: 86 A.D.2d 118; 449 N.Y.S.2d 116 (1982)
- Henry Cowell Lime & Cement Co. v. State: 18 Cal. 2d 169; 114 P.2d 331 (1941).
- Los Angeles v. Coffey: 243 Cal App 2d 121, 52 Cal Rptr 218 (1966)
- Kesinger v. Logan: 51 Wn. App. 914; 756 P.2d 752 (1988)
- Louisiana Highway Commission v. Raxdale: 12 So. 2d 631 (1943)
- Oklahoma City v. Pratt: 185 Okla. 637; 95 P.2d 596 (1939)
- Montgomery County v. City of Montgomery: 195 Ala. 197; 70 So. 642 (1916)
- Fisher v. City of Sauk Rapids: 325 N.W.2d 816; 1982
- Klinkert v. City of Racine: 177 Wis. 200; 188 N.W. 72; 1922
- White v. Pulaski Electric: No. M2007-01835-COA-R3-CV (2008)
- Daniell v. Sherrill: 48 So. 2d 736; 1950 Fla.(1950)
- Scott. v. Burwell’s Bay Improvement Association: 281 Va. 704; 708 S.E.2d 858 (2011)
Kris Kline is president of 2Point Inc., Alexander, N.C. Kline teaches several classes on boundary retracement but remains a student of the discipline. He can be reached at email@example.com. More information on Kline's available continuing education courses can be found at www.2point.net. Kline’s first book, “Rooted in Stone: the Development of Adverse Possession in 20 Eastern States and the District of Columbia,” is available from the author.