Adverse Possession 3 Am Jur 2d

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3 Am. JUL 2d Adverse Possession Summary
American Jurisprudence, Second Edition

Database updated November 20 I 0
Adverse Possess ron

Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Correlation Table
Summary'
AMJUR ACTION GUIDEThis article discusses the adverse possession of property, with discussion of the
nature, elements, and requisites of adverse possession, persons who may acquire title by, as well as persons
against whom title may be acquired by, adverse possession, particular types of property and estates affected by
principles of adverse possession, the operation and effect of such principles, and matters of practice and proced-
ure related to the subject.
Seop.:
This article discusses the adverse possession of property, with discussion of the nature, elements, and re-
quisites of adverse possession, persons who may acquire title by, as well as persons against whom title may be
acquired by, adverse possession, particular types of property and estates affected by principles of adverse pos-
session, the operation and effect of such priqciples, and matters of practice and procedure related to the subject.
Treated Elsewhere:
Abandoned property, generally, see I Am. JUL 2d, Abandoned, Lost and Unclaimed Property
Adjoining landowners, prescriptive rights of, as to support of buildings or structures, water, snow or ice pre-
cipitating onto adjoining premises, and encroachments, see I Am. JUL 2d, Adjoining Landowners §§ 46, 121
Advancements of land by parol gift, title necessary to complete, so as to render gift irrevocable, as acquir-
able through donee's adverse possession for statutory period, see 3 Am. JUL 2d, Advancements § 17
Boundaries, establishment by acts of parties, generally, see 12 Am. JUL 2d, Boundaries §§ 83 to 92
Canals, acquisition of or perfection of title to land for, by adverse possession, see 13 Am. JUL 2d, Canals § 7
Champerty, conveyances of land held adversely as involving, see 14 Am. JUL 2d, Champerty, Maintenance,
and Barratry §§ l2to 15
Color of Title Act, issuance by Secretary of the Interior of patent upon payment for certain public lands held
in adverse possession under, see 63C Am. Jur. 2d, Public Lands § 43
Community or separate property, property acquired by adverse possession or prescription as, see 15A Am.
JUL 2d, Community Property § 26
Conversion action as maintainable against person claiming title to land based on adverse possession, see 18
Am. Jur. 2d, Conversion § 62
Cotenants, inurement of title or interest adversely acquired, to, see 20 Am. Jur. 2d, Cotenancy and Joint
Ownership §§ 77, 78
Covenants and restrictions, effect of adverse possession on, see 20 Am. Jur. 2d, Covenants, Conditions, and
Restrictions §§ 62, 95
Dedication by acquiescence in public use as distinguished from acquisition of rights by prescription, see 23
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3 Am. Jur. 2d Adverse Possession Summary
Am. Jur. 2d, Dedication § 34

Devisability of property held in adverse possession by third person, generally, see 79 Am. Jur. 2d, Wills § 179
Easements: by prescription, generally, see 25 Am. Jur. 2d, Easements and Licenses §§ 45 to 73; termination
of easements by adverse possession, see 25 Am. Jur. 2d, Easements and Licenses § 119
Ejectment action as affected by holding of property adverse possession, and adverse possession as defense
to suc action, see 25 Am. Jur. 2d, Ejectment §§ II, 39
Marketability of title to property held by adverse possession, generally, see 47 Am. Jur. 2d, Judicial Sales §
262; 71 Am. Jur. 2d, Specific Performance § 124; 77 Am. Jur. 2d, Vendor and Purchaser §§ 164, 180, 181
Nations' acquisition of territory, application of law of prescription to, generally, see 45 Am. Jur. 2d, Interna-
tional Law § 34
Nuisance, prescription as defense to action for, see 58 Am. Jur. 2d, Nuisances §§ 458 et seq.
Partition as remedy where property is held adversely, generally, see 59A Am. Jur. 2d, Partition § 90
Pollution, prescriptive rights as to, see 61C Am. Jur. 2d, Pollution Control § 2076
Prescriptive rights as to particular types of property, easements, or rights of way, see 12 Am. Jur. 2d, Boats
and Boating § 30; 35A Am. Jur. 2d, Ferries § 12; 39 Am. Jur. 2d, Highways, Streets, and Bridges §§ 24 to 32, 63
to 65; 45 Am. Jur. 2d, Irrigation §§ 3,4; 50 Am. Jur. 2d, Levees and Flood Control § 15; 65 Am. Jur. 2d, Rail-
roads §§ 44, 50, 70; 59A Am. Jur. 2d, Party Walls §§ 18 to 20; 74 Am. Jur. 2d, Telecommunications § 10; 78
Am. Jur. 2d, Waters §§ 367 to 379; 79 Am. Jur. 2d, Wharves § 7
Questions of law or fact, adverse possession issues as, see 75A Am. Jur. 2d, Trial §§ 771, 785
Quiet title suit based on title arising from adverse possession, see 65 Am. Jur. 2d, Quieting Title and De-
termination of Adverse Claims § 36
Replevin as available against person holding by adverse possession as result of severance of property from
land, see 66 Am. Jur. 2d, Replevin § 16
State boundaries, detennination by prescription and acquiescence, see 72 Am. JUT. 2d, States, Territories,
and Dependencies § 29
Statute of frauds, possession attributable to purchaser's intention to hold land adversely to vendor's claim of
possession as insufficient to establish part performance for purposes of doctrine of part performance of oral
agreements within, see 73 Am. Jur. 2d, Statute of Frauds § 414
Taxes: payment by person seeking to acquire title by adverse possession to support claim of title, see 72
Am. Jur. 2d, State and Local Taxation § 1092; acquisition of jurisdiction by municipal corporation over territory
for taxing purposes by prescription, see 72 Am. Jur. 2d, State and Local Taxation § 650; valid tax title as de-
feated by adverse possession for statutory period where purchaser fails to take possession when entitled to do so,
see 72 Am. Jur. 2d, State and Local Taxation § 952; inability of person in adverse possession of land, assessed
for taxes thereon, to attack title of tax sale purchaser, see 72 Am. Jur. 2d, State and Local Taxation § 1032
Trespass, right or one in adverse possession ofland to maintain action for, see 75 Am. Jur. 2d, Trespass § 41
Water or water rights, acquisition by adverse possession or prescription, see 78 Am. Jur. 2d, Waters §§ 367
to 379
Research References:
West's Key Number Digest
West's Key Number Digest, Adverse Possession

West's Key Number Digest, Husband and Wife ~16
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3 Am. Jur. 2d Adverse Possession Summary
West's Key Number Digest, Joint Tenancy ~9, 13

West's Key Number Digest, Judicial Sales ~32, 61
West's Key Number Digest, Landlord and Tenant ~14, 16
West's Key Number Digest, Life Estates ~8
West's Key Number Digest, Mortgages ~213, 214
West's Key Number Digest, Parent and Child ~8
West's Key Number Digest, Trusts ~138, 139.1
A.L.R. Library
A.L.R. Digest: Adverse Possession
A.L.R. Index: Adverse Possession
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261
Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703
Mistaken Occupant's Right to Recovery for Improvements, 2 Am. Jur. Proof of Facts 2d 467
Forms
1A Am. Jur. Legal Forms 2d, Adverse Possession
18 Am. Jur. Pleading and Practice Forms, Adverse Possession
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rights reserved.
AMJUR ADVERSE SUM
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AMJUR ADVERSE I REF Page I
3 Am. Jur. 2d Adverse Possession I Refs.

Database updated November 20 10
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
I. In General
Topic Summary Correlation Table
Research References
West's Key Number Digest, Adverse Possession €;= I to 3, 13
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ I, 54
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 51, 52
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rights reserved.
AMJUR ADVERSE I REF
END OF DOCUMENT
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AMJUR ADVERSE § I Page I
3 Am. Jur. 2d Adverse Possession § I

Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, lD., and Eric Surette, J.D.
I. In General
Topic Summary Correlation Table References
§ 1. Generally
West's Key Number Digest, Adverse Possession €=I
Forms
Instruction to jury-Effect of adverse possession for statutory period. I BAm. Jur. Pleading and Practice
Forms, Adverse Possession § 51.
Instruction to jury-Effect of failure to assert rights for statutory term. I BAm. Jur. Pleading and Practice
Fonns, Adverse Possession § 52.
Adverse possession is recognized as a mode of acquiring title to property,[I] but it is not a favored one.[2]
The doctrine of adverse possession involves more than the mere barring of a remedy to the holder of title;[3]
it generally creates an absolute title to real property in fee simple, which is as good as title by patent from the
state or title by deed from the record owner,[4] although it does not amount to record title unless and until it is
made so by a judicial proceeding.[5] Thus, an adverse possession statute is not just a statute of limitations; it can
also be used as a method for establishing new title.[6]
Because an interest in real property generally cannot be abandoned, a fee owner can be divested of title only
through adverse possession.[7]
[FNl] Hart v. Sternberg, 205 Ark. 929, 171 S.W.2d 475 (1943); Cosgrove v. Young, 230 Kan. 705, 642
P.2d 75 (1982); Belotti v. Bickhardt, 228 N.Y. 296,127 N.E. 239 (1920).
[FN2] Cockrell v. Kelley, 428 So. 2d 622 (Ala. 1983); Striefel v. Charles-Keyt-Leaman Partnership,
1999 ME Ill, 733 A.2d 984 (Me. 1999); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920);
Francis v. Rogers, 2001 OK 111,2001 WL 1531592 (Okla. 2001); A.B. Cattle Co. v. Forgey Ranches,
Inc., 943 P.2d 1184 (Wyo. 1997).
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3 Am. JUL 2d Adverse Possession § I
[FN3) McDonald v. Burke, 288 S.W.2d 363 (Ky. 1955).
[FN4) § 248.
[FN5) § 255.
[FN6) Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996).
[FN7)In re Petition of Doering, 165 VI. 603, 686 A.2d 101 (1996).
As to abandoned property, generally, see I Am. JUL 2d, Abandoned, Lost and Unclaimed Property §§
et seq.
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rights reserved.
AMJUR ADVERSE § I
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3 Am. Jur. 2d Adverse Possession § 2

Adverse Possession
I. In General
§ 2. Definitions and nature
West's Key Number Digest, Adverse Possession €=I, 13
The doctrine of adverse possession allows the ripening of hostile possession, under proper circumstances,[l]
into title by lapse oftime.[2]
Definitions:
In some jurisdictions, the tenn used for adverse possession is "virgin title."[3]
Adverse possession has been defined as an actual and visible appropriation of property commenced and con-
tinued under a claim of right inconsistent with and hostile to the claim of another.[4] It has also been defined as
the open and notorious possession and occupation of real property under an evident claim or color of right, or, in
other words, a possession in opposition to the true title and record owner-a possession commenced in wrong
and maintained in right. [5]
Caution:
The "adverse" character of the possession is just one of the elements of adverse possession,[6] and is often re-
ferred to as "hostile" possession. [7]
[FNI] §§ 10etseq.
[FN2] Wallace v. Ayres, 228 Ark. 1007,311 S.W.2d 758 (1958); Hart v. Sternberg, 205 Ark. 929, 171
S. W.2d 475 (1943).
As to the operation and effect of adverse possession, generally, see §§ 242 et seq.
[FN3] Blankinship v. Payton, 605 So. 2d 817 (Miss. 1992).
[FN4] Fritts v. Ericson, 87 Ariz. 227, 349 P.2d 1107 (1960); Peters v. Gillund, 186 S.W.2d 1019 (Tex.
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Civ. App. Galveston 1945), writ refused w.o.m., (June 13, 1945); Olwell v. Clark, 658 P.2d 585 (Utah
1982).
As to the elements of adverse possession, generally, see §§ 10 et seq.
[FN5] Martin v. Winston, 209 Ark. 464,190 S.W.2d 962 (1945).
[FN6] §§ 10 et seq.
[FN7] §§ 41 et seq.
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Adverse Possession
I. In General
§ 3. Statutes, generally
West's Key Number Digest, Adverse Possession C=3
In some states, adverse possession may be established either under the common law or pursuant to statutory
provisions.[I] Under the common law, the prescriptive period is generally 20 years.[2] Under some statutes, the
period is shorter,[3] but there are generally additional requirements, such as a claim under color of title[4] and
payment of property taxes on the land claimed.[5]
Statutes providing for the length of time during which an adverse possession must be maintained to ripen in-
to title are not objectionable on the theory that they deprive the owner of property without due process of law.[ 6]
Observation:
There are at least two types of adverse possession statutes: the typical adverse possession statute, which focuses
on the steps an adverse possessor must take to quiet title against the true owner; and the "lapse statute" or "limita-
tions statute," which emphasizes what the true owner has done or failed to do so as to preclude him or her from
asserting or retaining title. [7]
[FNI] Doss v. Duggan, 555 So. 2d 116 (Ala. 1989); Striefel v. Charles-Keyt-Leaman Partnership, 1999
ME 111, 733 A.2d 984 (Me. 1999).
[FN2] § 13.
[FN3] § 13.
[FN4] § 123.
[FN5] § 148.
[FN6] Linton v. Heye, 69 Neb. 450, 95 N.W. 1040 (1903), atfd, 194 U.S. 628, 24 S. Ct. 856, 48 L. Ed.
1157 (1904).
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As to the validity and constitutionality of statutes of limitation, generally, see 51 Am. Jur. 2d, Limita-
tion of Actions §§ 35 et seq.
[FN7] Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir. 1989) (applying Georgia law).
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Adverse Possession
I. In General
§ 4. Construction and interpretation
West's Key Number Digest, Adverse Possession C=I, 13
Because it may deprive true and legal owners of their property,[I] the doctrine of adverse possession is to
be taken strictly, and the acts of one claiming title by adverse possession are to be strictly construed.[2] In other
words, public policy and the stability of society require strict compliance with the appropriate statutes by those
seeking ownership through adverse possession.[3]
Observation:
The concept of adverse possession stemmed from a time when the full use of land was encouraged, but there are
now new priorities in the application of this doctrine because we are faced with the problems of overdevelop-
ment, depletion of natural resources, and pollution of the environment.[4]
[FN I] Peters v. Smuggler-Durant Min. Corp., 930 P.2d 575 (Colo. 1997).
[FN2] Peters v. Smuggler-Durant Min. Corp., 930 P.2d 575 (Colo. 1997); Clark v. Drska, I Conn. App.
481, 473 A.2d 325 (1984); Keng v. Franklin, 267 Ga. 472, 480 S.E.2d 25 (1997); Carpenter v. Ruperta,
315 N.W.2d 782 (Iowa 1982); Hassell v. Texaco, Inc., 1962 OK 136,372 P.2d 233 (Okla. 1962).
[FN3] Meyer v. Law, 287 So. 2d 37 (Fla. 1973).
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Adverse Possession
l. In General
§ 5. Rationale-Statutes of limitation
West's Key Number Digest, Adverse Possession €==> I
It has been held that adverse possession is based on the fact of running of the statute of limitations applic-
able to actions for the recovery of property, so it is primarily an application of the defense of limitations of ac-
tions.[I) However, the mere expiration of the time limited does not amount to a defense to an action to recover
the property; it is also essential that the party be in possession of the real estate for the statutory terro under cer-
tain conditions and requisites.[2)
Caution:
An adverse-possession statute creates a period of limitations on an action to quiet title that runs only against the
record owner of the land; the adverse possessor is under no duty to quiet title by judicial action, nor to vigor-
ously assert his or her right at every opportunity.[3)
Modem statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the re-
covery of property that has been in the adverse possession of another for a specified time, but also to vest the
possessor with title.[4) The intention of such statutes is not to punish one who neglects to assert rights, but to
protect those who have maintained the possession of property for the time specified by the statute under claim of
right or color oftitle.[5)
Observation:
Adverse possession statutes, like other statutes of limitation, rest on a public policy that regards litigation with
disfavor and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough
to indicate their acquiescence.[6)
The purpose of adverse possession statutes is to quiet title to property, and neither the power of the legis-
lature to do so, nor the wisdom of so doing, is open to question.[7)
Observation:
The guiding principle behind the elements of adverse possession is not to ascertain the intent or state of mind of
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the adverse claimant, but rather, to provide notice to the true owner, allowing for the legal vindication of prop-
erty rights.[8]
[FN I] Sparks v. Byrd, 562 So. 2d 211 (Ala. 1990); Carnevale v. Dupee, 783 A.2d 404 (R.l. 2001).
As to the view that adverse possession is based on a presumption of abandonment, see § 6.
As to the view that adverse possession is based on a presumption of conveyance or grant, see § 7.
[FN2] §§ 10 et seq.
[FN3] Carnevale v. Dupee, 783 A.2d 404 (R.l. 2001).
[FN4] §§ 246 et seq.
[FN5] Osceola Fertilizer Co. v. Beville, 86 Fla. 479, 98 So. 354 (1923); Stolfa v. Gaines, 1929 OK 487,
140 Okla. 292, 283 P. 563 (1929).
[FN6] Snow v. Boykin, 432 So. 2d 1210 (Ala. 1983); Stolfa v. Gaines, 1929 OK 487, 140 Okla. 292,
283 P. 563 (1929); Ashton-Jenkins Co. v. Bramel, 56 Utah 587, 192 P. 375, 11 A.L.R. 752 (1920);
Hamilton v. Witner, 50 Wash. 689, 97 P. 1084 (1908).
An owner of land who, having notice of the fact that it was occupied by another who was claiming
dominion over it, nevertheless stood by during the entire statutory period and made no effort to eject the
claimant or otherwise protect his title, would not be permitted, for reasons of public policy, to maintain
an action for the recovery of his land. Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937).
[FN7] Alice State Bank v. Houston Pasture Co., 247 U.S. 240, 38 S. Ct. 496, 62 L. Ed. 1096 (1918);
Finn v. Alexander, 102 Kan. 607, 171 P. 602 (1918); Campbell v. Sigmon, 170 N.C. 348, 87 S.E. 116
(1915); Central Pac. Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554, 1 A.L.R. 1319 (1917); Chaplin v.
Sanders, 100 Wash. 2d 853, 676 P.2d 431 (1984); Calvert v. Murphy, 73 W. Va. 731, 81 S.E. 403 (1914).
[FN8] Totman v. Malloy, 431 Mass. 143,725 N.E.2d 1045 (2000).
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Adverse Possession
I. In General
§ 6. Rationale-Presumption of abandonment or acquiescence
West's Key Number Digest, Adverse Possession €=>I
The establishment of title by adverse possession has been held to be based on the theory or presumption that
the owner has abandoned the property to the adverse possessor[ I] or on the acquiescence of the owner to the
hostile acts and claims of the person in possession.[2]
[FN I] Downing v. Bird, 100 So. 2d 57 (Fla. 1958).
As to the view that adverse possession is based on a statute of limitations, see § 5.
As to the view that adverse possession is based on a presumption of conveyance or grant, see § 7.
[FN2] Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569
(1957); Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm, 39
Wyo. 494, 273 P. 908, 97 A.L.R. I (1929).
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Adverse Possession
I. In General
§ 7. Rationale-Presumption of grant or conveyance
West's Key Number Digest, Adverse Possession <£=>1
A.L,R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 § 37 (possession without acknowledgment of coten-

ancy as ground for presumption or inference of grant).
Title by adverse possession has been held to rest on a presumed grant or conveyance,[I) or on the presump-
tion of a lost grant.[2) In other words, if it is shown that one has held an uninterrupted possession of property for
a long period of time while exercising proprietary rights, the law raises a presumption of an ancient or lost grant
oftitle.[3)
This presumption is one of policy[4) as well as convenience, and is necessary for the peace and security of
society; it is founded on the consideration that the facts are such as could not, according to the ordinary course
of human affairs, occur unless there was a transmutation of title to, or an admission of an existing title in, the
party in possession.[5) The presumption of a lost grant to property recognizes that lapse of time may cure the
failure to secure the proper muniments of title, even though the lost grant may not have been in fact executed.[6)
At the end of the appropriate statutory limitations period, the presumption that there was a grant crystallizes
into a rule of law and becomes irrebuttable.[7) Thus, if property is maintained in adverse possession for the stat-
utory term, the law presumes a conveyance,[8) and this includes a presumption of the occurrence of all matters
essential to give the conveyance effect.[9)
[FN I) Phillips v. State, ex reI. Dept. of Natural Resources and Environmental Control, 449 A.2d 250
(Del. 1982); Sterling v. Sterling, 211 Md. 493, 128 A.2d 277 (1957).
As to the view that adverse possession is based on a statute oflimitations, see § 5.
As to the view that adverse possession is based on a presumption of abandonment, see § 6.
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[FN2] People v. System Properties, Inc., 2 N.Y.2d 330, 160 N.Y.S.2d 859, 141 N.E.2d 429 (1957).
[FN3] Cahill v. Cahill, 75 Conn. 522, 54 A. 732 (1903); Townsend v. Boyd, 217 Pa. 386, 66 A. 1099
(1907); Bordages v. Stanolind Oil & Gas Co., 129 S.W.2d 786 (Tex. Civ. App. Galveston 1938), writ
dismissed, judgment correct; Bull Run Development Corp. v. Jackson, 201 Va. 95, \09 S.E.2d 400
(1959); Logan's Heirs v. Ward, 58 W. Va. 366, 52 S.E. 398 (1905).
[FN4] Stolfa v. Gaines, 1929 OK 487, 140 Okla. 292, 283 P. 563 (1929).
[FN5] U.S. v. Fullard-Leo, 331 U.S. 256, 67 S. Ct. 1287,91 L. Ed. 1474 (1947).
[FN6] U.S. v. Fullard-Leo, 331 U.S. 256, 67 S. Ct. 1287,91 L. Ed. 1474 (1947); Bordages v. Stanolind
Oil & Gas Co., 129 S.W.2d 786 (Tex. Civ. App. Galveston 1938), writ dismissed, judgment correct.
[FN7] Trustees of Schools of Tp. NO.8 v. Lilly, 373 III. 431, 26 N.E.2d 489 (1940); Lincoln Parish
School Bd. v. Ruston College, 162 So. 2d 419 (La. Ct. App. 2d Cir. 1964).
[FN8] Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Cadwalader v. Price, III Md. 3\0,
73 A. 273 (1909); Scottish Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911); StoIfa v. Gaines,
1929 OK 487,140 Okla. 292, 283 P. 563 (1929).
[FN9] Stolfa v. Gaines, 1929 OK 487,140 Okla. 292, 283 P. 563 (1929).
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Adverse Possession
I. In General
§ 8. Distinguishing adverse possession and prescription
West's Key Number Digest, Adverse Possession C= I, 13
The term "adverse possession" should be distinguished from the term 1teasement by prescription."[l] It is the
nature of the right acquired that marks the principal difference between title by adverse possession and a pre-
scriptive right:[2] adverse possession results in full and complete title to property,[3] but prescription relates to
incorporeal hereditaments, or rights, such as easements.[ 4] Also, in adverse possession, the claimant occupies or
"possesses" the land of the fee owner, while in prescription, the claimant makes some easement-like use of it.[5]
In some jurisdictions, however, the acquisition of title to property by adverse possession is called IIprescrip- tion. "[6]
To the extent that an analogy exists between adverse possession and prescription, the statutory rules for one
should be applied to both.[7] However, if the question involved is the kind of physical conduct requisite to gain-
ing an easement by prescription, the conduct ordinarily required for acquiring the title to real property by ad-
verse possession affords no analogy, because one does not possess or occupy an easement or any other incorpor-
eal right.[8]
While prescription is measured by use rather than by possession, the adverse use necessary to acquire a pre-
scriptive right generally must commence in the same way and be of the same general character as the adverse
possession required to give title to real estate.[9] In either prescription or adverse possession, the right is ac-
quired only by actual, continuous, uninterrupted use or possession by the claimant of the property of another, for
a prescribed tenn.[ lO] Also, in both situations, the use or possession must be inconsistent with the owner's use
and enjoyment of the property and must not be a permissive use.[II]
In some states, the period of time within which the right to property by adverse possession and the right to
an easement by prescription ripen is the same;[I2] but in other states, the period of time is different.[I3]
[FN I] Thompson v. Dypvik, 174 Cal. App. 3d 329, 220 Cal. Rptr. 46 (6th Dis!. 1985).
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[FN2] Downing v. Bird, 100 So. 2d 57 (Fla. 1958).
[FN3] § 248.
[FN4]25 Am. Jur. 2d, Easements and Licenses §§ 45 to 73.
[FN5] Newell Rod and Gun Club, Inc. v. Bauer, 409 Pa. Super. 75, 597 A.2d 667 (1991).
[FN6] Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959) (applying Georgia law); Sessum v. Hemperley,
233 La. 444, 96 So. 2d 832 (1957); Agurs v. Holt, 232 La. 1026,95 So. 2d 644 (1957).
[FN7] Di Leo v. Pecksto Holding Corporation, 304 N.Y. 505, 109 N.E.2d 600 (1952).
[FN8] Di Leo v. Pecksto Holding Corporation, 304 N.Y. 505, 109 N.E.2d 600 (1952).
[FN9] Scallon v. Manhattan Ry. Co., 185 N.Y. 359, 78 N.E. 284 (1906).
[FN 10] Downing v. Bird, 100 So. 2d 57 (Fla. 1958).
[FN II] Downing v. Bird, 100 So. 2d 57 (Fla. 1958).
As to pennissive possession, see §§ 47 et seq.
[FNI2] Taylor v. State, 302 N.Y. 177, 96 N.E.2d 765 (1951); Pennsylvania R. Co. v. Donovan, III
Ohio St. 341, 2 Ohio L. Abs. 739, 145 N.E. 479 (1924).
[FNI3] Walker v. Coley, 264 Ala. 492, 88 So. 2d 868 (1956).
As to the duration of adverse possession, see §§ 13 et seq.
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rights reserved.
AMJUR ADVERSE § 8
END OF DOCUMENT
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Westlaw,

Adverse Possession
I. In General
§ 9, What law governs; conflict of laws
West's Key Number Digest, Adverse Possession €=2
In an action based on adverse possession, the law as it exists at the time the adverse possession is perfected
and title passes controls, rather than the law as it exists at the beginning of the adverse occupation.[I]
Even if the law permits the acquisition of title by adverse possession of certain property from the inception
of the possession, title to the property cannot be so acquired if a statute is enacted before the expiration of the re-
quired period of adverse possession prohibiting adverse acquisition of title in that kind ofproperty.[2]
The law of the state in which real estate is located determines whether title has been acquired by adverse
possession,[3] and the acquisition of title to personalty by adverse possession is governed by the law of the state
in which the property was situated at the time the transfer took place.[4]
[FNI] Preston v. Smith, 41 Tenn. App. 222, 293 S.W.2d 51 (1955).
[FN2] Application of Stein, 256 Minn. 485, 99 N.W.2d 204 (1959) (public way).
[FN3] Gehman v. Lair, 35 N.M. 17,288 P. 604 (1930).
Restatement Second, Conflict of Laws § 227.
[FN4] Restatement Second, Conflict of Laws § 246.
rights reserved.
AMJUR ADVERSE § 9
END OF DOCUMENT
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Westlaw
AMJUR ADVERSE II A REF Page I
3 Am. Jur. 2d Adverse Possession II A Refs.

Adverse Possession
II. Elements and Requisites

A. In General
Research References
West's Key Number Digest, Adverse Possession €;= 13
A,L.R. Library
A.L.R. Digest: Adverse Possession §§ 17,48
Trial Strategy
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession § 68
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rights reserved.
AMJUR ADVERSE II A REF
END OF DOCUMENT
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Page 21 of 665
weitiaw

Adverse Possession
n. Elements and Requisites

A. In General
§ 10. Generally
West's Key Number Digest, Adverse Possession ~13
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 7 et seq.
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261.
Forms
Instruction to jury~Elements of adverse possession. IB Am. Jur. Pleading and Practice Forms, Adverse
Possession § 68.
As a rule, there must be a remedy available to the owner of an interest in property before adverse possession
begins to run.[I] To bar the record owner of property ITom recovering it from an occupant in adverse possession
and claiming ownership througb operation of the statute of limitations, the possession must have been for the
whole tenn prescribed by the statute, actual, open, visible, notorious, continuous, and hostile.[2] It is also gener-
ally necessary that the possession have been held under a claim of right or title.[3] Under some statutes, color of
title[4] or payment oftaxes[5] is also necessary.
When these elements coincide, title by adverse possession is acquired.[6]
Reminder:
If anyone of the elements necessary to constitute adverse possession is absent, title by adverse possession can-
not be gained. [7] The existence of each element must be simultaneous and continuous for the required period.[8]
CUMULATIVE SUPPLEMENT
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Cases:
Coupled with actual and visible possession and use, the adverse claim and possession satisfy the statutory
requirements for adverse possession and cannot be defeated by the claimant's lack of knowledge of the defi-
ciency of his record title or by the absence of a realization that there could be other claimants for the land. My-
ers v. Wright, 224 S.W.3d 466 (Tex. App. Dallas 2007).
lEND OF SUPPLEMENTI
[FNI) § 15.
[FN2) Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. Cl. 545 (1997), judgment
affd, 230 F.3d 1375 (Fed. Cir. 1999), amended, (Mar. 27, 2000) and reh'g and reh'g en banc denied,
(Apr. 6, 2000) and cert. denied, 531 U.S. 957, 121 S. CI. 380, 148 L. Ed. 2d 293 (2000) (applying
Maryland law); Stump v. Whibco, 314 N.J. Super. 560, 715 A.2d 1006 (App. Div. 1998); Ramsey v.
O'Neal, 2001 WL 996051 (Ala. 2001); Salazar v. Terry, 911 P.2d 1086 (Colo. 1996); Smith v. Tippett,
569 A.2d 1186 (D.C. 1990); DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999);
Marksbury v. State, 322 N. W.2d 281 (Iowa 1982); Appalachian Regional Healthcare, Inc. v. Royal
Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky. 1992); Eaton v. Town of Wells, 2000 ME 176, 760
A.2d 232 (Me. 2000); Tottnan v. Malloy, 431 Mass. 143, 725 N.E.2d 1045 (2000); Blankinship v.
Payton, 605 So. 2d 817 (Miss. 1992); Tester v. Tester, 300 Monl. 5, 3 P.3d 109 (2000); Wanha v. Long,
255 Neb. 849, 587 N.W.2d 531 (1998); Riverwood Commercial Properties, Inc. v. Cole, 138 N.H. 333,
639 A.2d 714 (1994); Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154,643 N.Y.S.2d 939, 666
N.E.2d 532 (1996); Grace v. Koch, 81 Ohio SI. 3d 577, 692 N.E.2d 1009 (1998); Francis v. Rogers,
2001 OK 111,2001 WL 1531592 (Okla. 2001); Hollinan v. Freeman Land and Timber, LLC., 329 Or.
554,994 P.2d 106 (1999); Myers v. Beam, 551 Pa. 670, 713 A.2d 61 (1998); DelSesto v. Lewis, 754
A.2d 91 (R.l. 2000); Horry County v. Laychur, 315 S.C. 364, 434 S.E.2d 259 (1993); Lewis v. Aslesen,
2001 SD 131,635 N.W.2d 744 (S.D. 2001); Ransom v. Bebernitz, 782 A.2d 1155 (VI. 2001); Young
Kee Kim v. Douval Corp., 259 Va. 752, 529 S.E.2d 92 (2000); State v. Lee, 128 Wash. 2d 151, 904
P.2d 1143 (1995); Miller v. Lambert, 196 W. Va. 24, 467 S.E.2d 165 (1995); Kimball v. Turner, 993
P.2d 303 (Wyo. 1999).
As to details relating to each of these elements, see §§ 16 et seq.
[FN3) § 116.
[FN4) § 123.
[FN5)§151.
[FN6) Meyers v. Canutt, 242 Iowa 692, 46 N.W.2d 72, 24 A.L.R.2d I (1951); Marion Inv. Co. v. Vir-
ginia Lincoln Furniture Corp., 171 Va, 170, 198 S.E. 508,118 A.L.R. 939 (1938).
[FN7) Castle Associates v. Schwartz, 63 A.D.2d 481, 407 N.Y.S.2d 717 (2d Dep't 1978); Elliott v.
West, 665 S.W.2d 683 (Mo. Ct. App. S.D. 1984).
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AMJURADVERSE § 10 Page 3
[FN8] Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
rights reserved.
AMJUR ADVERSE § 10
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Westlaw,

Adverse Possession
11. Elements and Requisites

A. In General
§ II. Necessity of title
West's Key Num ber Digest
West's Key Number Digest, Adverse Possession €;:::;;;>13
One claiming title by adverse possession always claims in derogation of the right of the true owner, admit·
ting that the legal title is in another.[l] Thus, as a general rule, one who seeks to set up an adverse possession
need not have a good title, or in fact any title, except a possession adverse and hostile to that of the true owner
under a pretense or claim of title.[2] The adverse claimant rests the claim, not on title, but on holding adversely
to the true owner for the term prescribed by the statute of limitations.[3]
Reminder:
Adverse possession also may exist with color of title; and under some statutes, color of title is essential to the
acquisition of title by adverse possession.[4]
[FN I] Mercer v. Wayman, 9 Ill. 2d 44 I, 137 N.E.2d 815 (1956).
[FN2] Casner v. Common School Dis!. No.7, Sumner County, 175 Kan. 551, 265 P.2d 1027 (1954).
As to a claim of right, see § § I 16 et seq.
[FN3] Mercer v. Wayman, 9 III. 2d 441,137 N.E.2d 815 (1956).
As to duration of adverse possession, see §§ 13 et seq.
[FN4] § 123.
rights reserved.
AMJUR ADVERSE § 11
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AMJUR ADVERSE § II Page 2

3 Am. Jur. 2d Adverse Possession § II
END OF DOCUMENT
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Westlaw,
3 Am. JUT. 2d Adverse Possession § 12

Adverse Possession
ll. Elements and Requisites

A. In General
§ 12. Personal property
West's Key Number Digest, Adverse Possession €;=13
While a discussion of adverse possession ordinarily centers on real property, the same principle has been ap-
plied to the acquisition of title to personal property.[l] Thus, if a person has the peaceable, undisturbed, open
possession of personal property, with an assertion of ownership, for the term that would bar an action for its re-
covery by the true owner, the claimant has acquired title superior to that of the true owner, whose neglect to as-
sett legal rights results in a loss oftitle.[2]
For a person to acquire title to personal property by adverse possession, the possession must be under a
claim of right and involve open, public, and notorious llse,[3] and must be actual, hostile, continuous, and ex-
clusive for the applicable limitation term.[4]
Some statutes provide that a person who possesses a movable thing in good faith and by a just title as owner
during a cettain period without interruption shall thereby acquire the ownership of it unless the thing had been
stolen or IOSI.[5]
Cases:
To acquire title by adverse possession, the party claiming title under the common-law doctrine must show
exclusive possession and open, notorious, continuous, and adverse use for a period of 21 years. Evanich v.
Bridge, 170 Ohio App. 3d 653, 2007-0hio-1349, 868 N.E.2d 747 (9th Dist. Lorain County 2007), appeal al-
lowed, 114 Ohio St. 3d 1507, 2007-0hio-4285, 872 N.E.2d 950 (2007).
lEND OF SUPPLEMENTI
[FNl] Henderson v. First Nat. Bank of Dewitt, 254 Ark. 427, 494 S.W.2d 452 (1973) (stock certific-
Page 27 of 665

ates); Isham v. Cudlip. 33 Ill. App. 2d 254.179 N.E.2d 25 (2d Dis!. 1962).
[FN2) State ex reI. Brooks v. Overland Beverage Co., 69 Idaho 126, 203 P.2d 1009 (1949) (shares of
stock); Lightfoot v. Davis, 198 N.Y. 261, 91 N.E. 582 (1910); Priester v. Milleman, 161 Pa. Super. 507,
55 A.2d 540 (1947).
[FN3) Isham v. Cudlip, 33 Ill. App. 2d 254,179 N.E.2d 25 (2d Dis!. 1962).
[FN4) Bufano v. City and County of San Francisco, 233 Cal. App. 2d 61, 43 Cal. Rptr. 223 (1st Dis!.
1965) (city claiming art objects by adverse possession must establish hostile holding against artist);
Isham v. Cud1ip, 33 Ill. App. 2d 254, 179 N.E.2d 25 (2d Dis!. 1962).
[FN5) Succession of Quaglino, 232 La. 870,95 So. 2d 481 (1957) (three years).
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rights reserved.
AMJUR ADVERSE § 12
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Westlaw
AMJUR ADVERSE II B REF Page I
3 Am. Jur. 2d Adverse Possession II B Refs.

Adverse Possession
II. Elements and Reqalsites

B. Duration of Possession
Research References
West's Key Number Digest, Adverse Possession C=40, 42, 44
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 39 to 42
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 43, 47, 48
rights reserved.
AMJUR ADVERSE II B REF
END OF DOCUMENT
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Westlaw.

Adverse Possession

§ 13. Generally
West's Key Number Digest, Adverse Possession C=40, 44
Forms
Complaint, petition, or declaration-Allegation-Possession for statutory period. IB Am. Jur. Pleading and
Practice Forms, Adverse Possession § 43.
Instruction to jury-Compliance with statute of limitations. IB Am. Jur. Pleading and Practice Forms, Ad-
verse Possession § 47.
Instruction to jury-Period of adverse possession. I BAm. Jur. Pleading and Practice Forms, Adverse Pos-
session § 48.
Under the common law, the period for adverse possession was twenty years,[I] and some states still use this
as the period for adverse possession.[2] However, the length of time during which an adverse possession must
be maintained not only varies in the different jurisdictions, but is frequently changed in the same jurisdiction, so
that it is necessary to examine the local1aws in all adverse possession cases.[3]
In some states, the period of possession required to establish title by adverse possession varies according to
specified circumstances and requirements.[4] For example, the duration of possession required to establish title
by adverse possession is less in some jurisdictions if the possession is under color of title than if it is without
color oftitle.[5]
Whatever the period required in the particular jurisdiction and under the particular circumstances, title by
adverse possession cannot be acquired unless it is shown that the adverse possession continued for that period.[6 ]
A period of constructive possession under one statute of limitations cannot be tacked to a period of actual
possession under another statute of limitations to make out the required time of possession to establish title by
adverse possession.[7]
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Cases:
Adverse possession claim by heirs of alleged owner of real property by adverse possession, who did not
produce an instrument of title and relied upon claim of right by prescriptive title, was governed by statute with
20 year prescription period, rather than by statute which allowed for a prescription period of seven years when
color of title was shown. Walker v. Sapelo Island Heritage Authority, 285 Ga. 194,674 S.E.2d 925 (2009).
lEND OF SUPPLEMENTI
[FN I] Sparks v. Byrd, 562 So. 2d 211 (Ala. 1990).
[FN2] Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. Cl. 545 (1997), judgment
(Apr. 6, 2000) and cert. denied, 531 U.S. 957, 121 S. Ct. 380, 148 L. Ed. 2d 293 (2000) (applying
Maryland law); McGeechan v. Sherwood, 2000 ME 188, 760 A.2d 1068 (Me. 2000); City of Deadwood
v. Summit, Inc., 2000 SO 29,607 N.W.2d 22 (S.D. 2000).
[FN3] B. Fernandez & Bros. v. Ayllon, 266 U.S. 144, 45 S. Ct. 52, 69 L. Ed. 209 (1924); J & M Land
Co. v. First Union Nat. Bank, 166 N.J. 493, 766 A.2d 1110 (2001) (thirty or sixty years for woodland or
uncultivated tracts); Fairbanks North Star Borough v. Lakeview Enterprises, Inc., 897 P.2d 47 (Alaska
1995) (ten years); Gordon v. Simmons, 136 Ky. 273, 124 S.W. 306 (1910); Moore v. Hoffman, 327 Mo.
852,39 S.W.2d 339, 75 A.L.R. 135 (1931); DelSesto v. Lewis, 754 A.2d 91 (R.!. 2000) (ten years);
Chittenden v. Waterbury Center Community Church, Inc., 168 Vt. 478, 726 A.2d 20 (1998) (fifteen
years); ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 774 P.2d 6 (1989) (ten years); Hovendick v.
Ruby, 10 P.3d 1119 (Wyo. 2000) (ten years).
[FN4] Braue v. Fleck, 23 N.J. 1, 127 A.2d 1 (1956); Sashinger v. Wynn, 571 So. 2d 1065 (Ala. 1990)
(10 years with payment of taxes and color of title; 20 without those factors); National Property Owners
Ass'n v. Hogue, 229 Ark. 743, 318 S.W.2d 151 (1958); Tilbury v. Osmundson, 143 Colo. 12,352 P.2d
102 (1960); Baudin v. Charrier, 137 So. 2d 440 (La. Ct. App. 3d Cir. 1962); Johnson v. McLamb, 247
N.C. 534, 101 S.E.2d 311 (1958); Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92 (1962)
; Greenway Parks Home Owners Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235 (1958); Marky
Inv., Inc. v. Arnezeder, 15 Wis.2d 74, 112N.W.2d211 (1961).
[FN5] § 124.
[FN6] Lawse v. Glaha, 253 Iowa 1040, 114 NW.2d 900 (1962); Berglund v. Sisler, 210 Neb. 258, 313
N.W.2d 679 (1981); In re Harlem River Drive, City of New York, 307 N.Y. 447, 121 N.E.2d 414
(1954); Collins v. Smith, 1962 OK 128,372 P.2d 878 (Okla. 1962).
[FN7] Vider v. Zavislan, 146 Colo. 519,362 P.2d 163 (1961).
As to constructive possession, generally, see § 27.
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© 2010 Thomson Reuters. 33-34B © 20 I 0 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
AMJUR ADVERSE § 13
END OF DOCUMENT
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Westlaw,

Adverse Possession

§ 14, Personal property
West's Key Number Digest, Adverse Possession <C=40, 44
Ordinarily, the period of adverse holding required for obtaining title to personal property by adverse posses-
sion is the same as the statutory period that bars an action for the recovery of personal property by the real own-
er.[ I] However, some statutes specifically prescribe a certain time of adverse holding to acquire personal prop-
erty by adverse possession.[2]
[FNI] Lightfoot v. Davis, 198 N.Y. 261, 91 N.E. 582 (1910) (six-year period).
[FN2] Henderson v. First Nat. Bank of Dewitt, 254 Ark. 427, 494 S.W.2d 452 (1973) (three years for
stock certificates); Succession of Quaglino, 232 La. 870, 95 So. 2d 481 (1957).
rights reserved.
AMJUR ADVERSE § 14
END OF DOCUMENT
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Westlaw

Adverse Possession

§ 15. When the statute begins to run
West's Key Number Digest, Adverse Possession oC=42
The remedies of trespass or ejectment must be available to the owner of an interest before adverse posses-
sion begins to run.[l] Thus, if the adverse possessor's use of the property is perroissive at first, a statute provid-
ing the length of time during which an adverse possession must be maintained to ripen into title begins to run at
the time the possession of the claimant becomes hostile to that of the owner.[2]
Caution:
A statute providing that a statute of limitations is tolled if the defendant is out of the state for more than one year
when or after the cause of action arises does not apply to an adverse possession claim.[3]
If there is an adverse possession of land under a mistaken entry, the statutory period for acquiring title by
adverse possession runs from the date of the entry, and not from the discovery of the mistake.[4] The statute of
limitations for the recovery of real property begins to run when the cause of action accrues, and the cause of ac-
tion accrues when the owner is deprived of possession; the fact that the owner is deprived of possession under a
mistaken entry does not alter this rule.[5]
Cases:
Prescriptive period applicable to deed grantee's adverse possession claim began to run before landowners
discovered the alleged fraud in deed; grantee had no notice of the alleged fraud concerning the deed, and the al-
leged fraud did not prevent or deter the landowners from acting. Goodrum v. Goodrum, 283 Ga. 163, 657 S.E.2d
192 (2008).
lEND OF SUPPLEMENTI
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[FNI] Gunther & Shirley Co. v. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958); McDon-
ald v. Burke, 288 S.W.2d 363 (Ky. 1955); Tennis Coal Co. v. Sackett, 172 Ky. 729, 190 S.W. 130
(1916); Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956); Zivic v. Place, 122 N.H. 808,451
A.2d 960 (1982); Brand v. Prince, 35 N.Y.2d 634, 364 N.Y.S.2d 826, 324 N.E.2d 314 (1974); Olwell v.
Clark, 658 P.2d 585 (Utab 1982).
As to trespass, generally, see 75 Am. Jur. 2d, Trespass.
As to ejecttnent, generally, see 25 Am. Jur. 2d, Ejecttnent.
As to when a statute of limitation begins to run, generally, see 51 Am. JUT. 2d, Limitation of Actions §§
147 et seq.
[FN2] § 50.
[FN3] Catawba Indian Tribe of South Carolina v. State of S.C., 978 F.2d 1334 (4th Cir. 1992) (applying
South Carolina law).
[FN4] Sorensen v. Costa, 32 Cal. 2d 453,196 P.2d 900 (1948).
[FN5] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948).
rights reserved.
AMJUR ADVERSE § 15
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Westlaw
AMJUR ADVERSE II C REF Page I
3 Am. Jur. 2d Adverse Possession II C Refs.

Adverse Possession

C. Actual Possession
Research References
West's Key Number Digest, Adverse Possession €;:= 14, 15
A.L.R. Library
Trial Strategy
Acquisition of Title by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261
Forms
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 12, 24, 69, 71, 72, 93 to 95, 99 to 101,
104 to 106
rights reserved.
AMJUR ADVERSE II C REF
END OF DOCUMENT
Page 36 of 665
Westlaw.

Adverse Possession

I. In General
§ 16. Generally
West's Key Number Digest, Adverse Possession oC=40, 44
A. L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 § 8.
Actual possession is an indispensable element in adverse possession.[l] However, possession alone is not a
sufficient basis for claim of title by adverse possession,[2] and the statutory requirements for adverse possession
of property are not satisfied by the assertion of the right to possession.[3]
Observation:
One purpose of the actual possession requirement is to give the true owner notice of the extent of the trespass,
because adverse possession generally does not extend beyond the land that the claimant actually occupies.[4]
[FNI] Harkins v. Fuller, 652 A.2d 90 (Me. 1995); Anderson Y. Boyd, 229 Miss. 596, 91 So. 2d 537
(1956); Bilby Y. Wire, 77 N.W.2d 882 (N.D. 1956).
As to the other elements of adverse possession, see §§ 256 et seq.
[FN2] Bettack v. Conachen, 235 Wis. 559, 294 N.W. 57 (1940).
[FN3] Rucker Y. Jackson, 180 Ala. 109,60 So. 139 (1912); Bilby Y. Wire, 77 N.W.2d 882 (N.D. 1956);
Westbrook v. Rhodes, 92 Okla. 149,218 P. 873 (1923).
[FN4] Striefel Y. Charles-Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999).
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Page 37 of665

rights reserved.
AMJUR ADVERSE § 16
END OF DOCUMENT
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Westlaw

Adverse Possession

1. In General
§ )7, Necessity
West's Key Number Digest, Adverse Possession <C=14
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § 7[(a)].
Actual possession or occupancy is always involved in any claim to real property by adverse possession;[I]
there must be an actual possession of at least some portions of the property to create a title by adverse posses-
sion.[2] Thus, one claiming real property adversely must be in actual possession of the property for the claim be
effective against the owner.[3] Without such occupancy, the law assumes the possession of property to be in the
owner of the legal title. [4]
[FN I] Chaney v. State Mineral Bd., 444 So. 2d 105 (La. 1983); Wanha v. Long, 255 Neb. 849, 587
N.W.2d 531 (1998).
[FN2] Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (1906); Mullis v. Winchester, 237 S.C. 487, 118
S.E.2d 61 (1961); Connaghan v. Eighty-Eight Oil Co., 750 P.2d 1321 (Wyo. 1988).
[FN3] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Seaboard Air Line
Ry. Co. v. Board of Bond Trustees of Special Road and Bridge Dist. No. I of Alachua County, 91 Fla.
612, 108 So. 689, 46 A.L.R. 870 (1926); Walter v. Jones, 15 Ill. 2d 220, 154 N.E.2d 250 (1958); Mar-
engo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Meyers v. Canutt, 242 Iowa 692, 46
N.W.2d 72, 24 A.L.R.2d I (1951); Ramey v. Ramey, 353 S.W.2d 191 (Ky. 1962); White v. Hardisty,
220 Md. 152, 151 A.2d 764 (1959); Ables v. Webb, 186 Mo. 233, 85 S.W. 383 (1905); Meyer v. Chess-
man, 132 Mont. 187,315 P.2d 512 (1957); Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 134 A.L.R.
458 (1940); Reid v. City of New York, 274 N.Y. 178, 8 N.E.2d 326 (1937); Bilby v. Wire, 77 N.W.2d
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882 (N.D. 1956); Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (1906); Baxter v. Girard Trust Co., 288
Pa. 256, 135 A. 620, 49 A.L.R. 1011 (1927); Harrelson v. Reaves, 219 S.C. 394, 65 S.E.2d 478, 43
A.L.R.2d 1 (1951); Gibbs v. Lester, 41 S. W.2d 28, 80 A.L.R. 431 (Tex. Comm'n App. 1931); Slater v.
Murphy, 55 Wash. 2d 892, 339 P.2d 457 (1959).
An intestate's grandson, who was never in actual physical possession of land and who only infonned
one other heir of his claim to the property, did not have title to the surface rights under adverse posses-
sion. Lewis v. Johnson, 507 So. 2d 918 (Ala. 1987).
[FN4] § 27.
rights reserved.
AMJUR ADVERSE § 17
END OF DOCUMENT
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West law

Adverse Possession

2. What Constitutes Actual Possession
a. In General
§ 18. Generally
West's Key Number Digest, Adverse Possession >8:=14, 26
Forms
Instruction to jury-Character of possession-Necessity for actual possession-Remedies of owner in ab-

sence of required possession. IB Am. JUT. Pleading and Practice Fonns, Adverse Possession § 71.
Instruction to jury~What constitutes possession. IB Am. Jur. Pleading and Practice Forms, Adverse Pos-
session §§ 99, 100.
Actual possession has been defined as use and occupation of the property,[I) or as possession in fact, ef-
fected by actual entry on, and actual occupancy of, the premises.[2) It has also been defined as effective control
over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.[3)
There is no fixed rule by which the actual possession of real property by an adverse claimant may be de-
termined in all cases,[ 4) because the determination of what constitutes possession of property for purposes of ad-
verse possession depends on the facts in each case,[5) and to a large extent on the character of the premises.[6)
There may be actual possession of real property without residence,[?) cultivation of lands,[8) enclosure of
lands,[9) optimal use of the land,[IO) personal and physical occupation of the property,[II) or erection of build-
ings.[12) However, the evidence of a claimant's actual possession must be sufficient to alert a reasonably dili-
gent owner to the adverse possessor's exercise of dominion and control.[13] Thus, an occasional or periodical
entry on property does not constitute actual possession.[14)
Observation:
The possession supporting an adverse claim must be sufficient to enable a person on the ground of a possessory
title to maintain trespass or ejecttnent against a stranger. [15)
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[FN 1] Calhoun v. Woods, 246 Va. 41,431 S.E.2d 285 (1993).
[FN2] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME Ill, 733 A.2d 984 (Me. 1999); Thomas
v. Flynn, 169 Neb. 458,100 N.W.2d 37 (1959).
[FN3] Blankinship v. Payton, 605 So. 2d 817 (Miss. 1992).
[FN4] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); People's Say. Bank
v. Bufford, 90 Wash. 204,155 P. 1068 (1916).
[FN5] Bums v. Foster, 348 Mich. 8, 81 N.W.2d 386 (1957); Feinstein v. McGuire, 297 S.W.2d 513
(Mo. 1957); Cox v. Kelley, 1956 OK 72, 295 P.2d 1061 (Okla. 1956).
[FN6] § 21.
[FN7] § 31.
[FN8] § 32.
[FN9] § 40.
[FN10] N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780 (1999), cert. denied, 528 U.S.
1079,120 S. Ct. 798, 145 L. Ed. 2d 672 (2000).
[FNll] Shilts v. Young, 567 P.2d 769 (Alaska 1977); Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d
55 (1951); Arney v. Hall, 123 vt. 62, 181 A.2d 69 (1962).
[FNI2] Manville v. Gronniger, 182 Kan. 572, 322 P.2d 789 (1958); Monroe v. Rawlings, 331 Mich. 49,
49 N. W.2d 55 (1951); Feinstein v. McGuire, 297 S. W.2d 513 (Mo. 1957).
[FN 13] Vezey v. Green, 35 P.3d 14 (Alaska 2001).
[FNI4] Cockrell v. Kelley, 428 So. 2d 622 (Ala. 1983); McCarty v. Sheets, 423 N.E.2d 297 (Ind. 1981);
Carpenter v. Ruperta, 315 N.W.2d 782 (Iowa 1982); Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114
(1956); Norman v. Smedley, 1961 OK 143, 363 P.2d 839 (Okla. 1961); Westover Volunteer Fire Dept.
v. Barker, 142 W. Va. 404, 95 S.E.2d 807 (1956).
[FNI5] § 15.
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslR1A. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
AMJUR ADVERSE § 18
END OF DOCUMENT
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Westlaw.
AMJURADVERSE § 19 Page I

Adverse Possession

a. In General
§ 19. Intent; domination and control
West's Key Number Digest, Adverse Possession €:=II, 14
Actual possession requires a present ability to control the thing possessed and an intent to exclude others
!Tom such control.[ I] The intent on the part of the claimant must be to hold the property on behalf of the
claimant,[2] and that intention must be made manifest by acts,[3] which must be done for the purpose of devel-
oping and maintaining the property claimed and not for some other purpose.[4]
Actual possession of real property by an adverse claimant consists of exercising acts of dominion over it,
making the ordinary use of it, and taking the ordinary profits it is capable of producing in its present state.[5] To
establish adverse possession or to set in operation the statute of limitations, however, the claimant need not
stand guard at all times on the border of property to oppose the entry of trespassers or hostile claimants; it is
enough if the person pleading the statute takes and maintains such possession and exercises such open dominion
as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of a similar
nature and condition.[6]
Cases:
The intent to take the property of another is not necessary for a claim of adverse possession; the intent to oc-
cupy and treat property as one's own is all that is required. Evanich v. Bridge, 119 Ohio SI. 3d 260,
2008-0hio-3820, 893 N.E.2d 481 (2008).
For purposes of adverse possession, a "claim of right" means that the entry of the claimant must be with the
intent to claim the land as his own, to hold it for himself and such must continue to be the nature of his posses-
sion. Myers v. Wright, 224 S. W.3d 466 (Tex. App. Dallas 2007).
lEND OF SUPPLEMENT I
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[FN1] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME Ill, 733 A.2d 984 (Me. 1999); Hamburg
Realty Co. v. Walker, 327 S.W.2d 155 (Mo. 1959).
[FN2] Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687, 55 A.L.R.2d 549 (1955); Tennis Coal Co.
v. Sackett, 172 Ky. 729, 190 S.W. 130 (1916); Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983)
; Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932).
[FN3] Striefe1 v. Charles-Keyt-Leaman Partnership, 1999 ME 111, 733 A.2d 984 (Me. 1999); Robin v.
Brown, 308 Pa. 123, 162 A. 161 (1932).
In a boundary dispute, title through adverse possession was not established, although a predecessor in
title to the claimants had platted the property and taxes on the property were paid according to the plat-
ted lot numbers, because neither the claimants nor their predecessors had performed any overt physical
acts of possession over the disputed strip of property. Cox v. Game, 373 So. 2d 364 (Fla. Dis!. C!. App.
2d Dis!. 1979).
[FN4] Greenway Parks Home Owners Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235 (1958).
[FN5] Stark v. Akard, 1957 OK 181, 313 P.2d 790 (Okla. 1957).
[FN6] Clear Lake Amusement Corp. v. Lewis, 236 Iowa 132, 18 N.W.2d 192 (1945); Hibbard v. Robert
G. Fromkin Woolen Corp., 156 Me. 433, 165 A.2d 49 (1960); Bilby v. Wire, 77 N.W.2d 882 (N.D.
1956); Lynch v. Lynch, 236 S.c. 612,115 S.E.2d 301 (1960).
rights reserved.
AMJUR ADVERSE § 19
END OF DOCUMENT
© 201 1 Thomson Reuters. No Claim to Orig. US Gov. Works.
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weStiaw.

Adverse Possession

a. In General
§ 20. Exclusion of others
West's Key Number Digest, Adverse Possession €=>16(1)
An adverse claimant's acts of possession must be such as to indicate exclusive ownership of the property. [ 1]
Actual possession means a general holding and occupancy, with dominion over the property to the exclusion of
others.[2]
[FNI] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Walter v. Jones, 15
111. 2d 220, 154 N.E.2d 250 (1958); Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733
A.2d 984 (Me. 1999); Lynch v. Lynch, 236 S.c. 612, 115 S.E.2d 301 (1960); Hardy v. Bumpstead, 41
S.W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
As to exclusiveness of possession, generally, see §§ 67 et seq.
[FN2] Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960); Hightower v. Pendergrass, 662
S. W.2d 932 (Tenn. 1983).
In a quiet title action, although the plaintiffs possessed and used the land for limited purposes such as
parking or as access to a lake and as their "front yard," their possession and use of the land for the pur-
poses for which it was suitable alone were not sufficient to acquire title by adverse possession as
against other property owners in the addition, because the other residents of addition had unhindered
use of the lot during the 12-year period for various purposes, including parking and access to the lake.
Young v. Lacy, 221 Neb. 511, 378 N.W.2d 192 (1985).
rights reserved.
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AMJUR ADVERSE § 20
END OF DOCUMENT
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Adverse Possession

a. In General
§ 21. Effect of the nature, character, and location of property
West's Key Number Digest, Adverse Possession C=16(3), 17
In detennining what amounts to actual possession of real property, considerable importance must be at-
tached to the nature, character, potential uses, and location of the property.[I] In other words, the rule requiring
actual possession should be applied reasonably in view of the location and character of the land claimed,[2] be-
cause adverse possession claims depend in part on the nature of the land in question.[3] For example, possessory
acts of an outlying and uncultivated piece of land may be proved by acts of ownership somewhat different from
those required with regard to land under enclosure and actual cUltivation.[4] Also, what is adverse possession is
one thing in a populous area, another thing in a sparsely settled one, and still a different thing in a city or vil-
lage.[5] The acts of dominion necessary for adverse possession of a vacant lot need not be the same as with re-
spect to a lot that is improved.[6] However, something more than mere occasional use of the land is needed to
establish adverse possession, even if the disputed land is wild, undeveloped forest;[7] wild and uncultivated land
cannot be made subject of adverse possession while it remains completely in a state ofnature.[8]
[FNI] Soper v. Lawrence Bros. Co., 201 U.S. 359, 26 S. Ct. 473, 50 L. Ed. 788 (1906); Marvel v. Bar-
ley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Walter v. Jones, 15 Ill. 2d 220, 154
N.E.2d 250 (1958); Manville v. Gronniger, 182 Kan. 572, 322 P.2d 789 (1958); Dowley v. Morency,
1999 ME 137,737 A.2d 1061 (Me. 1999); Goen v. Sansbury, 219 Md. 289,149 A.2d 17 (1959); Bums
v. Foster, 348 Mich. 8, 81 N.W.2d 386 (1957); Feinstein v. McGuire, 297 S.W.2d 513 (Mo. 1957);
Thornburg v. Haecker, 243 Neb. 693, 502 N.W.2d 434 (1993); Jackson v. Gallegos, 38 N.M. 211, 30
P.2d 719 (1934); Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666
N.E.2d 532 (1996); Anderson v. Richards, 100 Or. 641, 198 P. 570 (1921); Mullis v. Winchester, 237
S.C. 487, 118 S.E.2d 61 (1961); Mandelbaum v. Looney Mercantile Co., 293 S.W. 203 (Tex. Civ. App.
Austin 1927); N.A.S. Holdings, Inc. v. Pafundi, 169 VI. 437, 736 A.2d 780 (1999), cert. denied, 528
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U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672 (2000); Leake v. Richardson, 199 Va. 967, 103 S.E.2d
227 (1958).
[FN2] Wood v. McCoy, 228 Ark. 880, 311 S.W.2d 755 (1958); Roche v. Town of Fairfield, 186 Conn.
490,442 A.2d 911 (1982).
[FN3] Porter v. Schaffer, 126 Md. App. 237, 728 A.2d 755 (1999); Jarvis v. Gillespie, 155 VI. 633, 587
A.2d 981 (1991).
[FN4] Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (1959); Ray v. Beacon Hudson Mountain Corp., 88
N.Y.2d 154,643 N.Y.S.2d 939,666 N.E.2d 532 (1996).
[FN5] Cooper v. Cook, 220 Ark. 344, 247 S.W.2d 957 (1952); Smith v. Brown, 126 Ind. App. 545, 134
N.E.2d 823 (1956); Feinstein v. McGuire, 297 S.W.2d 513 (Mo. 1957); Price v. Humble Oil & Refining
Co., 152 S.W.2d 804 (Tex. Civ. App. Dallas 1941), writ refused w.o.m., (Oct. 22,1941).
[FN6] Hand v. Stanard, 392 So. 2d 1157 (Ala. 1980).
[FN7] Porter v. Schaffer, 126 Md. App. 237, 728 A.2d 755 (1999).
[FN8] Calhoun v. Woods, 246 Va. 41, 431 S.E.2d 285 (1993).
rights reserved.
AMJUR ADVERSE § 21
END OF DOCUMENT
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Westlaw

Adverse Possession

a. In General
§ 22. Effect of potential uses of the property
West's Key Number Digest, Adverse Possession €:= 17,24
In determining what amounts to an actual possession of real property, considerable importance must be at-
tached to the use to which it can be applied, or to which the claimant may choose to apply it.[1] To establish ad-
verse possession, the claimant must use the real property for some purpose to which it is adapted,[2] and it is
sufficient that possession be shown by the continued use of the land for purposes for which it is susceptible.[3]
The standard to be applied to any particular tract of land is whether the possession comports with the ordinary
management of similar lands by their owners; if it does, satisfactory evidence of adverse possession is fur-
nished.[4]
Cases:
A mere entry, unaccompanied by an actual occupancy, is no possession at all, for purposes of adverse pos-
session. MEA Family Investments, LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008).
[END OF SUPPLEMENTI
[FNI] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Walter v. Jones, 15
Ill. 2d 220, 154 N.E.2d 250 (1958); Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010 (1949); Jack-
son v. Gallegos, 38 N.M. 211, 30 P.2d 719 (1934); Anderson v. Richards, 100 Or. 641, 198 P. 570
(1921); Mandelbaum v. Looney Mercantile Co., 293 S.W. 203 (Tex. Civ. App. Austin 1927); Leake v.
Richardson, 199 Va. 967,103 S.E.2d 227 (1958).
A defendant proved ownership by virtue of 30 years acquisitive prescription by showing that the de-
Page 49 of 665

fendant used the property for farming, pasture, and timber operations beginning in 1938, which was in
accordance with the nature of the land and constituted possession of the property. Pipes v. Pipes, 343
So. 2d 329 (La. C!. App. 2d Cir. 1977), writ denied, 345 So. 2d 904 (La. 1977).
[FN2] Wemmer v. Young, 167 Neb. 495, 93 N.W.2d 837 (1958); Doyle v. Ellis, 549 S.W.2d 62 (Tex.
Civ. App. Waco 1977).
[FN3] Howe v. Natale, 451 A.2d I 198 (Me. 1982); Feinstein v. McGuire, 297 S.w.2d 513 (Mo. 1957).
[FN4] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Smith v. Brown, 126
Ind. App. 545, 134 N.E.2d 823 (1956); Baptist Youth Camp v. Robinson, 1998 ME 175,714 A.2d 809
(Me. 1998); Mauck v. Bailey, 247 Md. 434, 231 A.2d 685 (1967); Fulton v. Rapp, 45 Ohio Op. 494, 59
Ohio L. Abs. 105,98 N.E.2d 430 (Ct. App. 2d Dist. Madison County 1950); Hoffman v. Freeman Land
and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999); Anthony v. Searle, 681 A.2d 892 (R.l. 1996);
ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 774 P.2d 6 (1989); Clithero v. Fenner, 122 Wis. 356, 99
N.W. 1027 (1904).
rights reserved.
AMJUR ADVERSE § 22
END OF DOCUMENT
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Westlaw.

Adverse Possession

b. Possession through Another
§ 23. Generally
A.L.R. Library
Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse
possession, 76 A.L.R. 3d 1202.
What one may do personally in the matter of taking and holding possession of real estate for adverse posses-
sion purposes may be done by or through another.[I] Thus, the requirement of actual possession of real property
necessary to acquire title by adverse possession need not be met by acts of the adverse claimant,[2] but may be
met through acts of another, who actually possesses and occupies the land for, and in subordination to, the ad-
verse claimant.[3] Accordingly, the requirement of actual possession may be met or kept fresh through posses-
sion on behalf of the adverse claimant by an agent,[4] licensee, relative,[5] or tenant.[6] The fact that a permittee
of an adverse c1aimant in possession of real estate pays no rent to the latter does not as a matter of law destroy
the efficacy of such possession for the benefit of the claimant.[7]
[FNI] Satterfield v. Peterson, 173 Neb. 618, 114 N.W.2d 376 (1962) (contract purchaser); Mahunda v.
Thomas, 55 Tenn. App. 470, 402 S.W.2d 485 (1965); Faubion v. Elder, 49 Wash. 2d 300, 301 P.2d 153
(1956) (overruled on other grounds by, Chaplin v. Sanders, 100 Wash. 2d 853, 676 P.2d 431 (1984)).
[FN2] Hanna v. Ferrier, 265 Ala. 450, 91 So. 2d 700 (1956); Combs v. Ezell, 232 Ky. 602, 24 S.W.2d
301 (1930); Jackson v. Gallegos, 38 N.M. 211, 30 P.2d 719 (1934); Cox v. Kelley, 1956 OK 72, 295
P.2d 1061 (Okla. 1956); Foote v. Kearney, 157 Wash. 681, 290 P. 226 (1930).
[FN3] Hanna v. Ferrier, 265 Ala. 450, 91 So. 2d 700 (1956); Hunsley v. Valter, 12 Ill. 2d 608, 147
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N.E.2d 356 (1958); Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301 (1930); Jackson v. Gallegos, 38 N.M.
211, 30 P.2d 719 (1934); Foote v. Kearney, 157 Wash. 681,290 P. 226 (1930).
[FN4] Foote v. Kearney, 157 Wash. 681, 290 P. 226 (1930).
[FN5] Hanna v. Ferrier, 265 Ala. 450, 91 So. 2d 700 (1956); Hightower v. Pendergrass, 662 S.W.2d
932 (Tenn. 1983).
[FN6] § 24.
[FN7] Jackson v. Gallegos, 38 N.M. 21 I, 30 P.2d 719 (1934).
rights reserved.
AMJUR ADVERSE § 23
END OF DOCUMENT
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Adverse Possession

c. Actual Possession
b. Possession through Another
§ 24. Tenant
Forms
Judgment or decree-Quieting title in adverse possession~Possession through tenant of adverse possessor.

I BAm. Jur. Pleading and Practice Forms, Adverse Possession § 12.
The requirement of actual possession may be met or kept fTesh through possession, on behalf of the adverse
claimant, by a tenant of the claimant.[ I] In other words, the possession by a tenant of the claimant is in law the
possession of the claimant, who may claim the benefits.[2] However, the claimant is bound by nature of his or
her lessee's possession.[3]
It has been held that the rule that adverse possession of a third person's land by a tenant inures to the benefit
of the landlord generally does not apply if the land is not, either expressly or impliedly, within the terms of the
lease.[4] Thus, a landlord cannot base a claim of title by adverse possession to another's land on the possession
of a tenant if the land was not included in the lease.[5] However, it has also been held that a tenant's adverse
possession of a third person's land, not within the description in the lease, may inure to the landlord's benefit if
the circumstances in connection with such possession justified the implication that it was by virtue of the lease.[ 6]
[FNI] Family Land & Inv. Co. v. Williams, 273 Ala. 273, 138 So. 2d 696 (1961) (lessee); Hunsley v.
Valter, 12 Ill. 2d 608, 147 N.E.2d 356 (1958); Shoer v. Daffe, 337 Mass. 420, 149 N.E.2d 625 (1958);
Satterfield v. Peterson, 173 Neb. 618, 114 N.W.2d 376 (1962); Hightower v. Pendergrass, 662 S.W.2d
932 (Tenn. 1983); Turner v. Floyd C. Reno & Sons, Inc., 769 P.2d 364 (Wyo. 1989).
Page 53 of 665

The words nactual occupation,t' in a statute providing that three years' actual occupation under a tax title
bars suit, did not require the tax sale purchaser to personally live on or use the premises; he could oc-
cupy the land through a tenant. Cox v. Richerson, 186 Miss. 576, 191 So. 99, 124 A.L.R. 1138 (1939).
[FN2] Crowden v. Grantland, 510 So. 2d 238 (Ala. 1987); Whittington v. Cameron, 385 Ill. 99, 52
N.E.2d 134, 150 A.L.R. 551 (1943); Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301 (1930); Moore v.
Hoffman, 327 Mo. 852, 39 S. W.2d 339, 75 A.L.R. 135 (193 I); Weiss v. Meyer, 208 Neb. 429, 303
N.W.2d 765 (1981); Dawson v. Tumlinson, 150 Tex. 451, 242 SW.2d 191 (1951); Foote v. Kearney,
157 Wash. 681, 290 P. 226 (1930).
For the purposes of establishing adverse possession of a disputed parcel of property, the claimant
demonstrated possession of property under a written claim of title through the written leases by which
the claimant leased the disputed property to various lessees over a 30-year period. DeChambeau v. Es-
tate of Smith, 132 Idaho 568, 976 P.2d 922 (1999).
[FN3] Turner v. Floyd C. Reno & Sons, Inc., 769 P.2d 364 (Wyo. 1989).
[FN4] Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183 (1936); El-
well v. Barbrick, 279 Mass. 272, 181 N.E. 184 (1932); Schofield v. Harrison Land & Mining Co., 187
S.W. 61 (Mo. 1916).
As to tenant's adverse possession ofa third person's property, see § 132.
[FN5] Elwell v. Barbrick, 279 Mass. 272, 18 I N.E. 184 (1932); Capps v. Merrifield, 227 Mich. 194,
198 N.W. 918 (1924).
[FN6] Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183 (1936);
Capps v. Merrifield, 227 Mich. 194, 198 N.W. 918 (1924).
rights reserved.
AMJUR ADVERSE § 24
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Westlaw.

Adverse Possession
Theresa Leming. J. D., Bill Lindsley, J.D., and Eric Surette, J.D.

c. Possession under Color of Title; Constructive Possession
§ 25. Generally
West's Key Number Digest, Adverse Possession ~14, 26
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § 7.
Forms
Instruction to jury-Character of possession-Without color of title-Actual possession of part---Claim to

whole tract ineffective. I BAm. Jur. Pleading and Practice Fonns, Adverse Possession § 72.
To establish title by adverse possession, actual possession of a tract of land claimed adversely under color
of title is generally just as necessary as actual possession without color of title.[I] However, if the adverse pos-
session is under a color of title, it is ordinarily sufficient if only part of the premises described in the color of
title are actually occupied; in such case, the adverse possessor is deemed to be in constructive possession of the
entire premises for purposes of acquiring title by adverse possession.[2]
[FNI] National Property Owners Ass'n v. Hogue, 229 Ark. 743, 318 S.W.2d lSI (1958); Diederich v.
Ware, 288 S.W.2d 643 (Ky. 1956); La Due v. Currell, 201 Va. 200,110 S.E.2d 217 (1959).
[FN2] § 124.
© 2010 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. u.S. Gov!. Works. All
rights reserved.
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AMJUR ADVERSE § 25
END OF DOCUMENT
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Adverse Possession
Il. Elements and Requisites

§ 26. Tax deed or title
A tax deed or title, even though invalid, generally constitutes color of title on which adverse possession un-
der color of title may be based.[I] However, for a person to acquire title to land through adverse possession,
even when relying on an invalid tax deed or title as color of title, that person must have made an actual entry on
the land and taken actual possession of at least a part of it. [2]
Possession under an invalid tax deed need not be by the grantee personally to ripen into title by adverse pos-
session, but may be through an agent, licensee, or relative acting for the grantee.[3]
[FNI] §§ 138, 139.
[FN2] Veitch v. Hard, 200 Ala. 77, 75 So. 405 (1917); Kirker v. Daniels, 73 Ark. 263, 83 S.W. 912
(1904); Scott v. Ramseir, 61 Colo. 250, 156 P. 1094 (1916); Hempel v. Consolidated Land Co., 69 Fla.
277, 67 So. 915 (1915); Gilmore v. Frost-Johnson Lumber Co., 139 La. 354, 71 So. 536 (1916); John
Widdicomb Co. v. Card, 218 Mich. 72,187 N.W. 308,22 A.L.R. 545 (1922).
[FN3] Hanna v. Ferrier, 265 Ala. 450, 91 So. 2d 700 (1956).
As to possession through agent, licensee, or relative, generally, see §§ 23, 24.
rights reserved.
AMJUR ADVERSE § 26
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Adverse Possession

§ 27. Constructive possession
West's Key Number Digest, Adverse Possession €:=14, 25
The constructive possession of real property is presumed to be in the holder of the record title[l] until there
is an actual ouster and expulsion of the record owner,[2] or actual hostile possession by another under a claim of
title.[3] A true owner who is in actual possession of a part of the land, claiming title to the whole, has the con-
structive possession of all of the land that is not in the actual possession of an intruder.[4]
Under the rule that the constructive possession of property is in the holder of the record title, a grantee of
property is in constructive possession, although the grantor remains in actual possession, in the absence of evid-
ence of any hostile claim by the grantor against the grantee.[5]
Constructive adverse possession of land ordinarily only occurs if actual possession of at least part of a tract
has been taken under color of title.[6] For an instrument to serve as color of title for adverse possession pur-
poses, it must adequately describe the property.[7] In the absence of adverse occupancy under color of title,[8]
there can be no constructive adverse possession of property on the part of an adverse claimant; under a claim of
right, the law requires actual possession of all of the property c1aimed.[9]
[FNI] Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956).
[FN2] Salvis v. Lawyer, 73 Idaho 469, 253 P.2d 589 (1953); Luloff v. Blackburn, 274 Mont. 64, 906
P.2d 189 (1995); Wiechers v. McCormick, 122 A.D. 860, 107 N.Y.S. 835 (2d Dep't 1907).
[FN3] John T. Clark Realty Co. v. Harris, 253 A.D. 325, 253 A.D. 908, 2 N.Y.S.2d 137 (2d Dep't 1938)
; Laird Properties New England Land Syndicate v. Mad River Corp., 131 Vt. 268, 305 A.2d 562 (1973).
[FN4] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Bettack v. Con-
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achen, 235 Wis. 559, 294 N.W. 57 (1940).
A person who owned several tracts adjoining each other, all of which he held under deeds, patents, or
other writings, and who claimed to the extent of his boundaries, was in possession of the adjoining
tracts as well as the one on which he lived, if there was no actual adverse possession of any tract. Vider
v. Zavislan, 146 Colo. 519, 362 P.2d 163 (1961).
[FN5] Miller v. Hewell, 271 Ala. 286, 123 So. 2d 126 (1960).
[FN6] Long v. Ladd, 273 Ala. 410, 142 So. 2d 660 (1962); Smith v. Pittston Co., 203 Va. 408, 124
S.E.2d 1 (1962).
[FN7] § 127.
[FN8] §§ 123, 124.
[FN9] Griffin v. 1sgrig, 227 Ark. 931, 302 S.W.2d 777 (1957).
rights reserved.
AMJUR ADVERSE § 27
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3 Am, JUL 2d Adverse Possession § 28

Adverse Possession
Theresa Leming, 1, D., Bill Lindsley, 1,0., and Eric Surette, J.D.

3. Particular Acts of Dominion
a. In General
§ 28. Generally
West's Key Number Digest, Adverse Possession €:= 16(2), 17
Trial Strategy
Proof of acquisition of title to agricultural land by adverse possession. Acquisition of Title to Property by
Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261 §§ 18 et seq.
Generally, the particular acts of dominion or control by which title by adverse possession may be acquired
depend largely on the circumstances of each case.[I] Thus, there is no general rule for determining the particular
acts of dominion that will constitute adverse possession.[2] However, particular acts required to acquire title by
adverse possession are sometimes specified by statute.[3]
All acts of a possessory nature by an adverse claimant are to be considered collectively, rather than inde-
pendently, in determining the sufficiency ofpossession.[4]
In detennining whether particular acts of dominion indicate an adverse possession, the usual and ordinary
use of similar properties by their owners should be taken into consideration.[5] The rule requiring actual posses-
sion of property to acquire title by adverse possession is ordinarily complied with if the particular acts of domin-
ion by the adverse claimant are of such nature as the claimant would exercise over his or her own property and
would not exercise over another's, and the acts amount to such dominion over the property as it is reasonably ad-
apted to.[6]
A mere temporary use of the property by a trespasser at intervals, whether such intervals are remote or fre-
quent, is not enough to show actual possession.[7] Thus, trespassers who go upon property for a special purpose,
such as hunting, fishing, camping, surveying, etc., do not thereby acquire possession.[8]
Cases:

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Adjacent landowners who acted in a way consistent with true ownership of record owners' property by in-
stalling landscaping that included railroad ties, stone blocks, fencing, bushes, flowers, and at least one tree on
the property possessed the necessary intent to possess the land as required to satisfy the adversity requirement of
adverse possession, even if they did not possess the subjective intent to deprive the record owners of their title.
Evanich v. Bridge, 119 Ohio S!. 3d 260, 2008-0hio-3820, 893 N.E.2d 481 (2008).
lEND OF SUPPLEMENTI
[FNI] Isham v. Cud lip, 33 III. App. 2d 254, 179 N.E.2d 25 (2d Dist. 1962); Thomas v. Flynn, 169 Neb.
458,100 N.W.2d 37 (1959); Cox v. Kelley, 1956 OK 72, 295 P.2d 1061 (Okla. 1956).
[FN2] Ben-Jay [nv. Co. v. Stillman, 114 Fla. 703,154 So. 829 (1934).
[FN3] Di Leo v. Pecksto Holding Corporation, 304 N.Y. 505, 109 N.E.2d 600 (1952); Central Pac. Ry.
Co. v. Tarpey, 51 Utah 107,168 P. 554,1 A.L.R. 1319 (1917).
[FN4] Long v. Ladd, 273 Ala. 410, 142 So. 2d 660 (1962).
[FN5] Preston v. Preston, 1949 OK 59, 201 Okla. 555, 207 P.2d 313 (1949); Norgard v. Busher, 220
Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960); La Due v. Currell, 20 I Va. 200, 110 S.E.2d 217
(1959); Clithero v. Fenner, 122 Wis. 356, 99 N.W. 1027 (1904).
An adverse claimant's engineers' acts in going upon grazing land and making a topographical map, and
marking points with red flags, did not constitute a taking of possession, because such acts would not
substantially, if at all, interfere with the owner's use of the property as grazing land. Concord Corp. v.
Huff, 144 Colo. 72, 355 P.2d 73 (1960).
As to the effect of the potential uses of property, generally, see § 22.
[FN6] Wood v. McCoy, 228 Ark. 880, 3[ I S.W.2d 755 (1958); Monroe v. Rawlings, 331 Mich. 49, 49
N.W.2d 55 (1951).
[FN7] Rucker v. Jackson, 180 Ala. 109, 60 So. 139 (1912); Poole v. City of Lake Forest, 238 Ill. 305,
87 N.E. 320 (1909); Dartmouth College v. Rose, 172 Neb. 764, 112 N.W.2d 256 (1961); Price v. Tom-
rich Corp., 275 N.C. 385,167 S.E.2d 766 (1969); La Due v. Currell, 201 Va. 200, 1[0 S.E.2d 217 (1959).
Occasional acts of trespass by wheels of cars and trucks ordinarily adjacent to a driveway were not suf-
ficient to support a claim of adverse possession. Elsasser v. Szymanski, 163 Neb. 65, 77 N.W.2d 815 (1956).
[FN8] Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960).
As to seasonal use, generally, see § 75.
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rights reserved.
AMJUR ADVERSE § 28
END OF DOCUMENT
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Westlaw,

Adverse Possession

a. In General
§ 29. Character of acts if dominion
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § 14.
Actual possession, for the purposes of an adverse possession claim, may be indicated by the claimant's re-
ceipt of the rents, issues, and profits of the property;[I] conveyance the property;[2] leasing of the property;[3]
encumberance of the property;[4] quarrying of the property;[5] or improvement of the property.[6]
To demonstrate actual occupancy when the boundaries of an adversely possessed parcel are not fixed by
fences or barriers or established by color of title, the adverse claimant need not make improvements on every
square foot ofthe land.[7]
Practice Guide:
Visible evidence of use, such as occupation, fencing, and construction of pennanent improvements, provides
particularly compelling evidence of actual possession by an adverse claimant.[8]
[FNI] Warner v. Wickizer, 1930 OK 419,146 Okla. 232, 294 P. 130 (1930).
[FN2] Stiff v. Cobb, 126 Ala. 381, 28 So. 402 (1900); Warner v. Wickizer, 1930 OK 419, 146 Okla.
232,294 P. 130 (1930).
[FN3] Family Land & [nv. Co. v. Williams, 273 Ala. 273, [38 So. 2d 696 (1961); Warner v. Wickizer,
1930 OK419, 146 Okla. 232, 294 P. 130 (1930).
Page 64 of 665

232,294 P. 130 (1930).
[FN5] N.A.S. Holdings, Inc. v. Pafundi, 169 VI. 437, 736 A.2d 780 (1999), cerl. denied, 528 U.S. 1079,
120 S. Ct. 798, 145 L. Ed. 2d 672 (2000).
[FN6] Norman v. Smedley, 1961 OK 143,363 P.2d 839 (Okla. 1961); Pioneer Investment & Trust Co.
v. Board of Education of Salt Lake City, 35 Utah 1,99 P. 150 (1909); Illinois Steel Co. v. Bilot, 109
Wis. 418, 84 N.W. 855 (1901).
[FN7] Smith v. Hayden, 772 P.2d 47 (Colo. 1989).
[FN8] Vezey v. Green, 35 P.3d 14 (Alaska 2001).
rights reserved.
AMJUR ADVERSE § 29
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Westlaw,

Adverse Possession

a. In General
§ 30. Combination of acts showing dominion
West's Key Number Digest, Adverse Possession €:=I6(l)
A.L.R. Library
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 §§ 21 to 29.
Adverse possession may be evidenced by a combination of various acts, such as using the land for grazing
and the removal of timber;[I] grazing and gathering a natural crop;[2] grazing and cultivation;[3] grazing, cul-
tivation, and removal of timber;[4] grazing, gathering a natural crop, and cultivation;[5] grazing, gathering a nat-
ural crop, and removal of timber;[6] gathering a natural crop and cultivation;[7] gathering natural crop, cultiva-
tion, and removal oftimber;[8] parking and other purposes;[9] or cultivation and removal of timber. [I 0]
Cases:
Alleged owner of disputed tract of land adjacent to railway failed to establish adverse possession under
claim of right or prescription under color of title in railroad's quiet-title action; evidence indicated that survey on
which alleged owner relied lacked surveyor's signature on seal, tract showed no signs of having been disturbed
by hunting, gardening, and storage that alleged owner's mother had purportedly permitted, and railroad paid
taxes on tract. Thompson v. Central of Georgia R. R., 282 Ga. 264, 646 S.E.2d 669 (2007).
Neighbors satisfied actual or hostile possession element of claim for adverse possession; record owner's
father never gave permission for use of disputed parcel, and neighbors and their predecessor in interest engaged
in possessory acts of building fence, planting crops, and continually harvesting timber on parcel. Apperson v.
White, 950 So. 2d 1113 (Miss. Ct. App. 2007).
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[FNI] Kayser v. Dixon, 309 So. 2d 526 (Miss. 1975); Breuer v. Covert, 47 Or. App. 225,614 P.2d 1169
( 1980).
An adverse claimant proved title by clear and convincing proof of adverse possession because, during
the 15-year period, the disputed tract was continuously used for pasture land and all timber and brush
was cleared from the area by the claimant, even though the record owner continued to pay taxes. Coun-
cil Bluffs Say. Bank v. Simmons, 243 N.W.2d 634 (Iowa 1976).
But see Knowles v. Golden Stream Fishing Club, Inc., 331 So. 2d 253 (Ala. 1976), holding that evid-
ence that the claimant had cut and sold timber from the disputed parcel on at least two occasions during
the past 30 years and that the claimant grazed cattle on the land from time to time was insufficient to es-
tablish title by adverse possession because the record title holder had paid taxes and his agent, an engin-
eer, had placed markers on the boundary line.
[FN2] McKelvy v. Cooper, 165 Colo. 102,437 P.2d 346 (1968).
[FN3] Suire v. Primeaux, 363 So. 2d 963 (La. Ct. App. 3d Cir. 1978), writ denied, 365 So. 2d 243 (La.
1978); Johnson v. Bell, 666 P.2d 308 (Utah 1983).
Evidence that the defendant and her predecessors in title for more than 10 years farmed a tract, pastured
cattle and horses on it, raised chickens and hogs, mowed the grass, and maintained and used the drive-
way was sufficient to establish adverse possession to the strip of land. Allen v. Rooker, 619 S. W.2d 363
(Mo. Ct. App. S.D. 1981).
[FN4] Dierks Lumber & Coal Co. v. Vaughn, 131 F. Supp. 219 (ED. Ark. 1954), judgment affd, 221
F.2d 695 (8th Cir. 1955); Hoppe v. Sauter, 416 S.W.2d 912 (Tex. Civ. App. Texarkana 1967), writ re-
fused n.r.e., (Oct. 4, 1967).
[FN5]llIinois Ry. Museum, Inc. v. Siegel, 132111. App. 2d 77, 266 N.E.2d 724 (2d Dist. 1971).
A claimant's use of land for pasturing, cropping, soil conservation, and growing hay for more than 20
years was sufficient to establish title by adverse possession. 1llinois Ry. Museum, Inc. v. Siegel, 132 Ill.
App. 2d 77, 266 N.E.2d 724 (2d Dist. 1971).
[FN6] Wheeler v. Gorman, 80 Minn. 462, 83 N.W. 442 (1900); Clithero v. Fenner, 122 Wis. 356, 99
N.W. 1027 (1904).
[FN7] Ely v. Fuson, 297 Ky. 325,180 S.W.2d 90 (1944).
[FN8] May v. Sorrell, 153 Ga. 47, III S.E. 810 (1922).
[FNIO] G.S. Baxter & Co. v. Wetherington, 128 Ga. 801,58 S.E. 467 (1907).
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Adverse Possession

a. In General
§ 3 I. Residence
West's Key Number Digest, Adverse Possession €o=I8
Generally, actually residing on the property claimed is not a necessary element of adverse possession,[I] be-
cause a person may be in possession of real estate without residing on it.[2] However, statutory provisions may
have an effect on whether residence on the property is required.[3]
[FNI] Crowden v. Grantland, 510 So. 2d 238 (Ala. 1987); Whittington v. Cameron, 385 Ill. 99, 52
N.E.2d 134, 150 A.L.R. 551 (1943); Clear Lake Amusement Corp. v. Lewis, 236 Iowa 132, 18 N.W.2d
192 (1945); Manville v. Gronniger, 182 Kan. 572, 322 P.2d 789 (1958); Morris v. Thomas Forman Co.,
206 Ky. 191, 266 S.W. 873 (1924); Hibbard v. Robert G. Fromkin Woolen Corp., 156 Me. 433, 165
A.2d 49 (1960); Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d 55 (1951); Fredericksen v. Henke, 167
Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Bilby v. Wire, 77 N.W.2d 882 (N.D. 1956); Herron v.
Swarts, 1960 OK 53, 350 P.2d 314 (Okla. 1960); Lynch v. Lynch, 236 S.C. 612, liS S.E.2d 301 (1960);
Hardy v. Bumpstead, 41 S. W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
Residence by an adverse claimant on the land claimed is not necessary where neither the situation of the
property nor the use to which it is adapted or applied admits of, or requires, such evidence of owner-
ship. Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954).
[FN2] Herron v. Swarts, 1960 OK 53, 350 P.2d 314 (Okla. 1960).
[FN3] Manternach v. Studt, 230 Ill. 356, 82 N.E. 829 (1907).
rights reserved.
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Adverse Possession

b. Cultivation or Timber Cutting
§ 32. Generally
West's Key Number Digest, Adverse Possession <£=>21
A.L.R. Library
A.L.R. 3d 818 §§ 16 to 19.
Cultivation of land may be sufficient in itself to constitute the possession necessary for acquiring it by ad-
verse possession, depending on the nature of the land and the uses to which it may be adapted.[I] Thus, the actu-
al possession of land may be evidenced by clearing and cultivation,[2] such as setting out an orchard and caring
for the trees.[3] However. it has been held that plowing, grating, seeding, mowing, fertilizing, and planting are
not enough to establish adverse possession of strip ofland adjacent to claimants' property.[4]
Cutting grass or hay may establish the requisite dominion over property.[ 5]
Landscaping constitutes an improvement to land for adverse possession purposes. [6]
Cases:
In cases involving a claim of adverse possession to wild or woodlands, the claimant generally must establish
that the land has been enclosed or reduced to cultivation. Sea Pines Condominium III Ass'n v. Steffens, 61 Mass.
App. Ct. 838, 814 N.E.2d 752 (2004), review denied, 442 Mass. 1112, 816 N.E.2d 1223 (2004).
[END OF SUPPLEMENTI
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[FNI] Hayes v. Cotter, 439 So. 2d 102 (Ala. 1983); Cheek v. Wainwright, 246 Ga. 171,269 S.E.2d 443
(1980); Hunsley v. Valter, 12 Ill. 2d 608, 147 N.E.2d 356 (1958); Mack v. Luebben, 215 Neb. 832, 341
N.W.2d 335 (1983); Gross v. Robinson, 36 Wyo. 392, 256 P. 80, 57 A.L.R. 578 (1927).
[FN2] Hardy v. Bumpstead, 41 S.W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931); Grayson Roper
Ltd. Partnership v. Finlinson, 782 P.2d 467 (Utah 1989).
An adverse claimant's conservation-oriented uses of the property, which included planting indigenous
rather than non-native plants and thinning trees and undergrowth rather than clearing them entirely, had
the same legal weight as would more transformative or destructive uses. Vezey v. Green, 35 P.3d 14
(Alaska 2001).
But see Shandaken Reformed Church of Mount Tremper v. Leone, 87 A.D.2d 950, 451 N.Y.S.2d 227
(3d Dep't 1982), holding that the defendants did not acquire ownership of parcel by adverse possession
because there was insufficient evidence as to a distinct, hostile assertion on the part of defendants over
the parcel, in that the defendant's testimony that he maintained a garden on the land in dispute and occa-
sionally mowed the area in question was vague as to both the area covered by the garden and as to the
exact years the garden was planted.
[FN3] Davies v. Wickstrom, 56 Wash. 154, 105 P. 454 (1909).
[FN4] Beaver v. Vandall, 547 N.E.2d 802 (Ind. 1989).
[FN5] Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981) (the annual production of hay by a party
or those under his direction for 60 or more years was more than an occasional trespass and was suffi-
cient to constitute adverse possession).
A court did not err in finding that a landowner had established title to disputed land through adverse
possession because the landowner had mowed the grass and harvested hay on the property, and the
evidence showed that the landowner and his predecessors in title had put the disputed land to the same
use that its true owner would have put the land. Thompson v. Hayslip, 74 Ohio App. 3d 829, 600
N.E.2d 756 (4th Dis!. Lawrence County 1991).
[FN6] Lewis v. Aslesen, 2001 SD 131,635 N.W.2d 744 (S.D. 2001).
rights reserved.
AMJUR ADVERSE § 32
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Adverse Possession

§ 33. Necessity
West's Key Number Digest, Adverse Possession €:=21
Generally, to constitute adverse possession of land, it is not absolutely necessary that the claimant cultivate
the land.[ I] However, some statutory provisions require cultivation of real propetty to establish title by adverse
possession.[2]
Practice Guide:
Under a statute recognizing adverse possession if it has been protected by a substantial enclosure or if it has
been usually cultivated or improved, the adverse claimant need only prove possession by one of the means stated.[3]
[FNI] Manville v. Gronniger, 182 Kan. 572, 322 P.2d 789 (1958); Monroe v. Rawlings, 331 Mich. 49,
49 N.W.2d 55 (1951).
[FN2] Lewis v. Village of Lyons, 54 A.D.2d 488,389 N.Y.S.2d 674 (4th Dep't 1976); Richey v. Miller,
142 Tex. 274, 177 S.W.2d 255, 170 A.L.R. 832 (1944); Central Pac. Ry. Co. v. Tarpey, 51 Utah 107,
168 P. 554, I A.L.R. 1319 (1917).
[FN3] Lindgren v. Martin, 130 Idabo 854, 949 P.2d 1061 (1997); Swecker v. Dom, 181 Mont. 436,593
P.2d 1055 (1979); Lewis v. Aslesen, 2001 SO 131,635 N.W.2d 744 (S.D. 2001).
rights reserved.
AMJUR ADVERSE § 33
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Westlaw.

Adverse Possession

§ 34. Pasturing or grazing
A. L.R. Library
A.L.R. 3d 818 §§ 3, 5.
Using land for pasturing or grazing may be sufficient to constitute the possession necessary to adverse pos-
session.[ I]
It has been held that a claimant may be in adverse possession of unenclosed land by using it for grazing,[2]
but is has also been held, apparently as a matter of law, that one does not have adverse possession of unenclosed
land by using it for grazing,[3] and that if grazing is relied on to support a claim of adverse possession, it must
be accompanied by enclosure of the lands[4] or other strong supporting acts.[S] If land is wild and unenclosed,
the conclusion that title by adverse possession was not acquired may be supported on the ground that the use of
such land for grazing purposes does not satisfy the requirement that the possession must be open and notorious,
or does not evidence the necessary intent to claim the land, or does not sufficiently define the extent of the ad-
verse claim, or that some other necessary ingredient of the doctrine of adverse possession is lacking.[ 6]
Adverse possession of lands by grazing is limit to those areas that are reasonably suited for grazing pur-
poses.[7]
Practice Guide:
If the claimant has enclosed the land with a fence, it is not necessary to show that any animal actually grazed up
to fence line, if the claimants and their predecessors claimed all the land within the fence and treated it as their
property to use if they wished.[8]

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[FN I] Tillison v. Taylor, 572 So. 2d 429 (Ala. 1990); Munro v. Eshe, 113 Colo. 19, 156 P.2d 700
(1944); Quarles v. Arcega, 114 N.M. 502, 841 P.2d 550 (C!. App. 1992); Fessler v. Thompson, 1942
OK 172, 191 Okla. 450, 130 P.2d 513 (1942); Hoffinan v. Freeman Land and Timber, LLC., 329 Or.
554,994 P.2d 106 (1999).
But see Lemon v. Madden, 216 Or. 539, 340 P.2d 977 (1959), holding that evidence that some of the
claimant's sheep grazed on land for a few weeks in the spring as they were being herded to summer pas-
ture and on their return in the fall, and that occasionally some of his cattle wandered on and across the
land, was insufficient to support a claim of title by adverse possession.
[FN2] Cleveland v. Dow Chemical Co., 168 Colo. 388,451 P.2d 741 (1969); Springer v. Durette, 217
Or. 196, 342 P.2d 132 (1959).
[FN3] England v. Ally Ong Hing, 105 Ariz. 65, 459 P.2d 498 (1969); Smith v. Town of Fowler, 138
Colo. 359, 333 P.2d 1034 (1959); Tragerv. Elliot, 106 Kan. 228,187 P. 875 (1920).
[FN4] Fadem v. Kimball, 1979 OK CIV APP 40,612 P.2d 287 (Okla. Ct. App. Div. I 1979); Rhodes v.
Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990).
[FN5] Elliott v. West, 665 S.W.2d 683 (Mo. Ct. App. S.D. 1984); Farella v. Rumney, 649 P.2d 185
(Wyo. 1982).
Pasturage is of some value as bearing upon acquisition of title by adverse possession, but to vest title,
there must be strong supporting acts of other types and character. Geoghegan v. Krauss, 228 Miss. 231,
87 So. 2d 461 (1956).
[FN6] Springer v. Durette, 217 Or. 196,342 P.2d 132 (1959).
[FN7] Adams v. Lamicq, 118 Utah 209, 221 P.2d 1037 (1950).
[FN8] Whittemore v. Amator, 148 Ariz. 173,713 P.2d 1231 (1986).
rights reserved.
AMJUR ADVERSE § 34
END OF DOCUMENT
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Westlaw.

Adverse Possession

§ 35. Removing timber or timber-based crops
West's Key Number Digest, Adverse Possession >8:=23
A.L.R. Library
A.L.R. 3d 818 §§ 20, 21.
Forms
Instruction to jury-Character of possession-Timberland. IB Am. Jur. Pleading and Practice Forms, Ad-
verse Possession §§ 104 to 106.
It has been held that cutting timber may be sufficient to establish the dominion over property necessary to a
claim of adverse possession,[ I] but it has also been held that cutting timber is not sufficient.[2]
Observation:
Tree fanning, when carried out in a manner as to attract the attention of those entitled to notice, can be evidence
of actual possession.[3]
To determine whether the cutting of timber suffices to constitute possession of land, It IS necessary to in-
quire whether the actual use and enjoyment of the land by the claimant amounted in kind and degree to the use
and enjoyment to be expected of the average owner of such property.[4]
If the land in question is woodland, there must ordinarily be such continuous and persistent cutting of timber
or wood from the tract as to evidence a claim of ownership and be an advertisement to the world that the party is
occupying the entire tract.[5] Occasional or sporadic entries on land for the purpose of cutting timber are not
sufficient to establish title by adverse possession.[6]
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Some state statutes provide that one may acquire title to unenclosed land by removing timber for fuel, but
the benefit of such statutes is limited to persons having color oftitle.[7]
Making turpentine, using maple groves, or gathering nuts or similar wild crops may also amount to actual
possession of timber lands if the acts amount to more than a trespass.[8]
[FN I] Grooms v. Mitchell, 426 So. 2d 820 (Ala. 1983); Cousino v. Western Shore Lumber Co., 179
Cal. I, 175 P. 406 (1918); McRae v. Ketchum, 138 Fla. 610, 189 So. 853 (1939); Maine Gravel Ser-
vices, Inc. v. Haining, 1998 ME 18,704 A.2d 417 (Me. 1998); Berry v. Coppersmith, 212 N.C. 50, 193
S.E. 3 (1937); Bardin v. Commercial Ins. & Trust Co., 82 S.c. 358, 64 S.E. 165 (1909).
Sufficient evidence supported a referee's finding that an adverse possessor proved actual, open, notori-
ous, hostile, continuous, and exclusive possession for the full statutory period because the possessor: (1)
paid the mortgages on the property; (2) paid taxes on the property; (3) marked the boundary lines, and
(4) sold timber cut ITom the property. Miller v. Leaird, 307 S.c. 56,413 S.E.2d 841 (1992).
To substantiate a claim of title to swampy woodland by adverse possession by one without color of title
as against the owner of the legal title, on the strength of occasional cutting and sales of timber ITom the
land, there must have been such persistent and continuous cutting from a particular tract of land, to the
exclusion of the owners, as to advertise to the world that the party so doing was occupying that specific
tract and claiming it as his own. Clanahan v. Morgan, 268 Ala. 71, 105 So. 2d 429 (1958).
[FN2] Mills v. Kelley, 214 Ga. 403,105 S.E.2d 316 (1958).
Adverse possession could not be acquired of land adjoining the land actually possessed, under a con-
veyance amounting merely to color of title to the two adjoining tracts, merely by cutting timber on it
and warning trespassers off a few times over a period of years. Huston v. Graves, 213 S. W. 77, 5
A.L.R. 423 (Mo. 1919).
Even if an adverse claimant could establish that her husband had cleared and sold cedar trees ITom the
tract, that was not sufficient to establish actual and visible appropriation of the land, as required for ad-
verse possession. Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause ovelTUled, (Oct. 10, 1990).
[FN3] Cheek v. Wainwright, 246 Ga. 171,269 S.E.2d 443 (1980).
[FN4] McMullen v. Dowley, 418 A.2d 1147 (Me. 1980).
[FN5] Grooms v. Mitchell, 426 So. 2d 820 (Ala. 1983).
[FN6] Bergen v. Dixon, 527 So. 2d 1274 (Ala. 1988); Dixon v. Dixon, 97 Ga. App. 54, 102 S.E.2d 74
(1958); Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733 (Tex. 1970).
[FN7] Kern County Land Co. v. Nighbert, 75 Cal. App. 103,241 P. 915 (1st Dist. 1925).
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[FN8] Richbourg v. Rose. 53 Fla. 173, 44 So. 69 (1907) (turpentine); Carson v. Keith, 1967 OK 206,
433 P.2d 956 (Okla. 1967) (pecans).
rights reserved.
AMJUR ADVERSE § 35
END OF DOCUMENT

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Westlaw

Adverse Possession

c. Enclosure
§ 36. Generally
West's Key Number Digest, Adverse Possession €;::::::>19
A.L.R. Library
Fence as factor in fixing location of boundary line-modem cases, 7 A.L.R. 4th 53 § 14.
A.L.R. 3d 818 §§ 10, II.
Forms
Bill of particulars-Acts relied on to establish adverse possession-Enclosure-Uses and improvements

enumerated. I BAm. Jur. Pleading and Practice Forms, Adverse Possession § 24.
Instruction to jury-Elements of adverse possession-Necessity that land be enclosed or improved. I BAm.

Jur. Pleading and Practice Forms, Adverse Possession § 69.
Complaint, petition, or declaration-Allegation-Enclosure. IB Am. Jur. Pleading and Practice Forms, Ad-
verse Possession §§ 93 to 95.
The significance of an intentional fencing of land by a claimant is that the act itself is evidence of an asser-
tion of a claim of ownership.[I] The enclosure of land is undoubtedly evidence of possession, and, either of it-
self or in connection with other acts of dominion, may be sufficient for an adverse possession claim.[2]
However, it has been held in some jurisdictions that title cannot be acquired merely by fencing land, without
grazing it or farming it or putting it to other use.[3]
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[FN I] Cockrell v. Kelley, 428 So. 2d 622 (Ala. 1983); Smith v. Tippett, 569 A.2d 1186 (D.C. 1990);
Horky v. Schriner, 215 Neb. 498, 340 N.W.2d I (1983); DeAnnan v. Surls, 618 S.W.2d 88 (Tex. Civ.
App. Tyler 1981), writ refused n.r.e., (Sept. 16, 1981).
[FN2] Faulks v. Schrider, 114 F.2d 587 (App. D.C. 1940); City of Dennott v. Stinson, 144 Ark. 208,
222 S.W. 54, 9 A.L.R. 1367 (1920); Ross v. Burkhard Inv. Co., 90 Cal. App. 201, 265 P. 982 (3d Dist.
1928); Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954); Pittman v. Simmons,
408 So. 2d 1384 (Miss. 1982); Woodside v. Durham, 317 Mo. 15,295 S.w. 772, 53 A.L.R. 884 (1927);
Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Davies v. Wickstrom, 56 Wash. 154, 105 P. 454
(1909); Clithero v. Fenner, 122 Wis. 356, 99 N.W. 1027 (1904); Kimball v. Turner, 993 P.2d 303
(Wyo. 1999).
The mere existence of a fence around the property for a period of at least 55 years offered a substantial
basis for holding that the defendant property owners held title to the property within the fence by ad-
verse possession. Roy v. Kayser, 501 So.2d 1110 (Miss. 1987).
An adverse claimant proved title by adverse possession by his predecessor because, during a IS-year
period, the predecessor ordered tenants to cut trees when they were down and maintained a fence, using
trees from the tract for posts to replace those that had rotted, and because the predecessor's horse ran on
the disputed property and he or a tenant ran cattle on it. Braley v. Hess, 48 Or. App. 505, 617 P.2d 308
(1980).
[FN3] Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954); Doenz v. Garber, 665
P.2d 932 (Wyo. 1983).
rights reserved.
AMJUR ADVERSE § 36
END OF DOCUMENT
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Westlaw,

Adverse Possession

c. Enclosure
§ 37. Necessity
Although enclosure of land is undoubtedly evidence of possession,[I] it is not essential to the acquisition of
title to land by adverse possession that it be enclosed[2] or fenced.[3] Thus, as a general rule, adverse possession
may be asserted without the enclosure of the property involved,[4] particularly if enclosure is impracticable, the
land is not susceptible of enclosure, or the value of the property would be adversely affected.[5] Enclosure has
been deemed essential, however, in cases of a mixed possession,[6] in some cases to support an adverse claim if
the land is used merely for grazing purposes,[7] and to indicate the extent of the possession,[8] especially in the
absence of actual occupancy of the premises.[9] Also, it is the general rule in some states that title by adverse
possession can not be shown as wilderness or woodland that has always been open and unenclosed.[ I 0]
Caution:
Some statutory provisions require enclosure of some sort,[ 11] including a requirement that the enclosure be sub-
stantial,[12] or require either enclosure or substantial improvement.[13]
An enclosure need not be absolutely secure to satisfy a "substantial enclosure" requirement of an adverse
possession statute.[14] For example, planting and maintaining a line of trees on the disputed property may con-
stitute a substantial enclosure of the property.[15]
[FNI] § 36.
[FN2] Darby v. Robbins, 409 So. 2d 722 (Ala. 1981); Truck-Trailer Supply Co. v. Farmer, 181 Kan.
396, 311 P.2d 1004 (1957); Blickenstaff v. Bromley, 243 Md. 164, 220 A.2d 558 (1966); Wanha v.
Long, 255 Neb. 849, 587 N.W.2d 531 (1998); Kimble v. Allen, 1956 OK 135,298 P.2d 1042 (Okla.
Page 82 of 665

1956); Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960); Short v. Lyness, 572
S. W.2d 116 (Tex. Civ. App. Waco 1978).
[FN3] Baudin v. Charrier, 137 So. 2d 440 (La. Ct. App. 3d Cir. 1962); Monroe v. Rawlings, 331 Mich.
49,49 N.W.2d 55 (1951); EI Cerrito, Inc. v. Ryndak, 60 Wash. 2d 847, 376 P.2d 528 (1962).
Acquisition of title by adverse possession to a strip of tidelands occupied by the claimants under a mis-
taken belief that their land extended there was not precluded by the claimants' failure to construct a
fence on the tidelands to separate the land claimed by them from the abutting land. Norgard v. Busher,
220 Or. 297, 349 P.2d 490,80 A.L.R.2d 1161 (1960).
[FN4] Abbott v. Perkinson, 144 Ky. 495, 139 S.W. 745 (191 I); Robin v. Brown, 308 Pa. 123, 162 A.
161 (1932); Bensdorff v. Uihlein, 132 Tenn. 193, 177 S.W. 481, 2 A.L.R. 1364 (1915); Young v. City
of Lubbock, 130 S.W.2d 418 (Tex. Civ. App. Amarillo 1939); Sherrard v. Henry, 88 W. Va. 315, 106
S.E. 705, 21 A.L.R. 645 (1921); Illinois Steel Co. v. Bilot, 109 Wis. 418, 84 N.W. 855 (1901).
[FN5] Lamons v. Mathes, 33 Tenn. App. 609, 232 S. W.2d 558 (1950).
[FN6] Robin v. Brown, 308 Pa. 123,162 A. 161 (1932).
[FN7] Alleman v. Joffrion, 411 So. 2d 1142 (La. Ct. App. 1st Cir. 1982), writ denied, 415 So. 2d 945
(La. 1982); Welch v. Mathews, 642 S.W.2d 829, 36 A.L.R.4th 835 (Tex. App. Tyler 1982).
[FN8] Lewis v. Village of Lyons, 54 A.D.2d 488,389 N.Y.S.2d 674 (4th Dep't 1976); Lindgren v. Mar-
tin, 130 Idaho 854, 949 P.2d 1061 (1997); Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Bender v.
Brooks, 103 Tex. 329, 127 S.W. 168 (1910); WeIner v. Steams, 40 Utah 185, 120 P. 490 (1911); Sher-
rard v. Henry, 88 W. Va. 315,106 S.E. 705, 21 A.L.R. 645 (1921).
[FN9] Robin v. Brown, 308 Pa. 123,162 A. 161 (1932).
[FNIO] Cowden v. Cutting, 339 Mass. 164, 158 N.E.2d 324 (1959).
[FN11] Di Leo v. Pecksto Holding Corporation, 304 N.Y. 505, 109 N.E.2d 600 (1952); Michelsen v.
Leskowicz, 55 N.Y.S.2d 831 (Sup 1945), judgment affd, 270 A.D. 1042, 63 N.Y.S.2d 191 (2d Dep't
1946); Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Central Pac. Ry. Co. v. Tarpey, 51 Utah 107,
168 P. 554, I A.L.R. 1319(1917).
As to statutes requiring enclosure of land in relation to the payment of taxes, see § 148.
[FNI2] Mastin v. Village of Lima, Livingston County, 86 A.D.2d 777, 448 N.Y.S.2d 274 (4th Dep't
1982); Mixon v. Clark, 518 S. W.2d 402 (Tex. Civ. App. Tyler 1974), writ refused n.r.e.
[FNI3] § 33.
[FNI4] Schultz v. Dew, 1997 SD 72, 564 N.W.2d 320 (S.D. 1997).
[FN 15] Lewis v. Aslesen, 2001 SD 131, 635 N. W.2d 744 (S.D. 2001).
Page 83 of 665

rights reserved.
AMJUR ADVERSE § 37
END OF DOCUMENT
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Westlaw.

Adverse Possession

c. Enclosure
§ 38. Adequacy of enclosure; what constitutes a "substantial" enclosure
To constitute the basis for an adverse possession claim, a claimant's enclosure should be appropriate for the
purposes to which the premises are adapted, or for which the occupant may desire to use them.[ I]
Observation:
The adequacy of an enclosure may be affected by statutory requisites in some states. For example, under a stat-
utory requirement that a fence must be substantial to support a claim of adverse possession, the court must look
to the whole fencing pattern and the use made of the fence, as well as all other facts and circumstances. [2]
If an enclosure is essential or is relied on as the evidence of possession, it must, to be effective, be complete

and so open and notorious as to charge the owner with knowledge of it.[3] The basic question is whether the en-
closure, like other acts of possession, is sufficient to "fly the flag" over the land and put the true owner on notice
that the property is held under an adverse claim of ownership.[4] This rule is applicable if a fence or a hedgerow
or the like is relied on to delineate the boundaries of the adverse claim;[5] even if it is insufficient to tum live-
stock, a fence may be sufficient to "fly the flag" and put the owner on notice of adverse possession.[6] In fact, an
enclosure having no purpose of physical exclusion may be sufficient to indicate the boundaries of an adverse
claim even though it is only a mere furrow turned with a plow around the land, or a line marked by cutting away
the brush.[7]
Constructing a fence and using the enclosed land for grazing constitutes adverse possession, even if the
fence is not maintained in a perfect state ofrepair.[8]
[FNI] Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Illinois Steel Co. v. Bilot, 109 Wis. 418, 84
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N.W. 855 (1901).
A claimant acquired title by open, continuous, adverse possession of land for the statutory period be-
cause he fenced part of the land to pen cattle, he fenced the entire tract later with a three-wire fence to
preserve it for haycutting, and the fence was always kept in repair. Carpenter v. Smith, 76 Ark. 447, 88
S. W. 976 (1905).
[FN2] Mixon v. Clark, 518 S.W.2d 402 (Tex. Civ. App. Tyler 1974), writ refused n.r.e.
[FN3] Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932).
The evidence substantiated a finding of sufficient notice of a hostile claim to support a claim of adverse
possession, and a verdict in favor of the adverse possessors was proper, because the disputed tract was
within their fenced-off enclosure, the fences had always been maintained and were capable of turning
cattle, witnesses testified as to seeing cattle grazing on the disputed plot, adverse claimants used the
land for grazing purposes for more than 12 consecutive years prior to the suit and, during that time, the
record owner had actual notice that the land was within the adverse possessors' enclosure. Mixon v.
Clark, 518 S.W.2d 402 (Tex. Civ. App. Tyler 1974), writ refused n.r.e.
[FN4] Dowdle v. Wheeler, 76 Ark. 529, 89 S. W. 1002 (1905); Mason v. Gaddis Farms, Inc., 230 Miss.
666, 93 So. 2d 629 (1957); Seavey v. Williams, 97 Or. 310, 191 P. 779 (1920); Robin v. Brown, 308
Pa. 123, 162 A. 161 (1932).
Evidence that a fence had been considered the boundary by both parties and that the adverse possessor
had openly used the land for pasture and a garden was sufficient to satisfY the elements of possession to
claim the property between the surveyed boundary and the fence. Johnson v. Roberts, 532 S. W.2d 530
(Mo. Ct. App. 1976).
[FN5] Mason v. Gaddis Farms, Inc., 230 Miss. 666, 93 So. 2d 629 (1957).
As to partition or division fences, generally, see 35A Am. Jur. 2d, Fences §§ 6 et seq.
[FN6] Grayson v. Robinson, 240 Miss. 59, 126 So. 2d 247 (1961).
[FN7] Hurt v. Given, 445 So. 2d 549 (Ala. 1983); Sherrard v. Henry, 88 W. Va. 315, 106 S.E. 705, 21
A.L.R. 645 (1921); minois Steel Co. v. Bilot, 109 Wis. 418, 84 N.W. 855 (1901).
[FN8] Pueblo of Santa Ana v. Baca, 844 F.2d 708 (10th Cir. 1988) (applying New Mexico law).
rights reserved.
AMJUR ADVERSE § 38
END OF DOCUMENT
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Westlaw,

Adverse Possession

c. Enclosure
§ 39. Adequacy of enclosure; what constitutes a "substantial" enclosure-Use of a natural barrier as an

enclosure
West's Key Number Digest, Adverse Possession €=> I 6(2), 19
Forms
Instruction to jury-Character of possession-Enclosure-By artificial or natural means. I BAm. Jur.

Pleading and Practice Fonms, Adverse Possession § 101.
It is no objection that natural barriers are taken advantage of in constructing an enclosure around land that is
adverse possessed, if the natural barriers are not out of proportion to the artificial barriers erected. If the natural
and the artificial barriers used are sufficient to clearly indicate dominion over the premises, and to give notoriety
to the claim of possession, it is sufficient to put the statute of limitations in rnotion.[l] For example, even if a
peninsula that is adversely claimed and that adjoins lands owned by the adverse claimant is unfenced, it can be
considered as enclosed for all practical purposes on the water boundary.[21
Cases:
There was no evidence that wooded area along boundary was cultivated or improved or protected by sub-
stantial inclosure, as required for adverse possession by person claiming title not founded upon written instru-
ment. McKinney RPAPL § 522. Seisser v. Eglin, 7 A.D.3d 505, 776 N.Y.S.2d 314 (2d Dep't 2004).
[FN II Pipes v. Pipes, 343 So. 2d 329 (La. Ct. App. 2d Cir. 1977), writ denied, 345 So. 2d 904 (La.

Page 87 of 665

1977); Castles v. Lawrence, 203 Mont. 421, 662 P.2d 589 (1983) (lake boundary); Cuka v. Jamesville
Hutterian Mut. Soc., 294 N.W.2d 419 (S.D. 1980).
[FN2] Springer v. Durette, 217 Or. 196,342 P.2d 132 (1959) (also holding that the pasturing of a penin-
sula by an adjoining landowner was sufficient act of dominion in view of the natural barrier).
© 2010 Thomson Reuters. 33-348 © 2010 Thomson ReuterslRIA. No Claim to Orig. U.S. Gov!. Works. All
rights reserved.
AMJUR ADVERSE § 39
END OF DOCUMENT
Page 88 of 665
Westlaw,

Database updated N ovem ber 20 I 0
Adverse Possession

c. Enclosure
§ 40. Adequacy of enclosure; what constitutes a "substantial" enclosure-Casual fencing; enclosure with
other land
Definitions:
"Casual fencing" is the making of an enclosure by joining onto existing fences erected for purposes other than
and wholly foreign to the purposes for which the enclosure is to be used.[I] If a fence exists before the adverse
claimant takes possession of the land and the claimant fails to demonstrate the purpose for which it was erected,
then it is a "casual fence," rather than a fence that IIdesignedly encloses" an area.[2]
West's Key Number Digest, Adverse Possession oC= 19
A.L.R. Library
Fence as factor in fixing location of boundary line-modem cases, 7 A.L.R. 4th 53 §§ 16 to 20.
If the character of the use of the enclosed land by an adverse claimant is not such as to constitute, of itself,
an actual and visible appropriation of the land, that use cannot be aided by a fence that casually creates the en-
closure, and to the construction of which neither the adverse claimant nor any person under whom the adverse
claimant claims has contributed.[3] In other words, an adverse claimant can derive no aid in establishing the
claim from an enclosure casually created by third persons in effecting a purpose of their own, and who are
strangers to both the claimant and the true owner of the enclosed land.[4]
The use of an insubstantial temporary fence, which is not maintained continuously, to close a gap between
line fences erected by the owners of adjoining lands, is not sufficient to cause the statute of limitations to begin
to run against the record owners.[5] However, the fact that an enclosure is formed by casual fencing does not, in
and of itself, make the use and occupancy of the enclosure nonadverse.[6]
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Caution:
Repairing or maintaining a casual fence, even for the express purpose of keeping the adverse claimant's animals
within the enclosed area, generally does not change a causal fence into a designed enclosure, but the claimant
may so change the character of casual fence that it becomes a designed enclosure.[7)
CUMULA TlVE SUPPLEMENT
Cases:
Where a fence existed prior to the claimant's possession of the land and the claimant fails to demonstrate the
purpose for which the fence was erected, the fence is a "casual fence" insufficient to support the actual and vis-
ible possession element of a claim for adverse possession. Myers v. Wright, 224 S.W.3d 466 (Tex. App. Dallas
2007).
Actual and visible possession necessary for a claim of adverse possession can be established by a design-
edly enclosed fence, but not by a casual fence. Myers v. Wright, 224 S.W.3d 466 (Tex. App. Dallas 2007).
The presence, quality, location, and purpose of fencing in relation to the disputed property and property ad-
jacent to it are facts to be weighed along with the other circumstances in the adverse possession case. Braunstein
v. Robinson Family Ltd. Partnership LLP, 2010 WY 26, 226 P.3d 826 (Wyo. 2010).
lEND OF SUPPLEMENTI
[FNI) Wynn v. Mendoza, 287 S.W.2d 217 (Tex. Civ. App. Galveston 1956), writ refused n.r.e; Rutar
Farms & Livestock, Inc. v. Fuss, 651 P.2d 1129 (Wyo. 1982).
[FN2) Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990).
[FN3) Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954).
[FN4) West Production Co. v. Kahanek, 132 Tex. 153, 121 S.W.2d 328 (Comm'n App. 1938).
An adverse possession claimant failed to prove each element of adverse possession as a matter of law
despite her testimony that her husband had cleared and sold cedar trees from the disputed tract, as well
as evidence that the claimant had paid taxes on all the land enclosed by a fence that included the cedar
tracts, and that the claimant and her husband had grazed cattle and goats on the tract, because the record
did not establish as a matter of law that the fence surrounding the cedar tracts was a designed enclosure,
rather than a casual fence. Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled,
(Oct. 10, 1990).
[FN5) Reeves v. Porta, 173 Or. 147, 144 P.2d 493 (\944).
[FN6) Wynn v. Mendoza, 287 S.W.2d 217 (Tex. Civ. App. Galveston 1956), writ refused n.r.e.
[FN7) Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRlA. No Claim to Orig. u.S. Govt. Works. All
Page 90 of 665

rights reserved.
AMJUR ADVERSE § 40
END OF DOCUMENT
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Westlaw
AMJUR ADVERSE" D REF Page I
3 Am. Jur. 2d Adverse Possession" D Refs.

Adverse Possession

D. Hostile Character of Possession
Research References
West's Key Number Digest, Adverse Possession oC=58 to 79, 85
A.L.R, Library
A.L.R. Digest: Adverse Possession §§ 21 to 26.5
Trial Strategy
Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703
Forms
IA Am. Jur. Legal Forms 2d, Adverse Possession § 11:12
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 10,64,65,73,76
rights reserved.
AMJUR ADVERSE" D REF
END OF DOCUMENT
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Warks.
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Westlaw.

Adverse Possession

I. In General
§ 41. Generally
West's Key Number Digest, Adverse Possession (:::::>58
A.L.R. Library
To acquire title by adverse possession, the possession must be hostile.[l] To be "adverse," the possession of
a claimant of real property must be hostile,[2] not only as against the true owner,[3] but also as against the
world,[4] excepting only the govemment.[5]
[FNI] Shandaken Reformed Church of Mount Tremper v. Leone, 87 A.D.2d 950, 451 N.Y.S.2d 227 (3d
Dep't 1982); Abar v. Rogers, 23 Cal. App. 3d 506, 100 Cal. Rptr. 344 (I st Dis!. 1972); Smith v. Hay-
den, 772 P.2d 47 (Colo. 1989); Levering v. City of Tarpon Springs, 92 So. 2d 638 (Fla. 1957); Cluff v.
Bonner County, 121 Idaho 184,824 P.2d 115 (1992); Ford v. Rhymes, 233 Miss. 651, 103 So. 2d 363
(1958); Burris v. McDougald, 832 S.W.2d 707 (Tex. App. Corpus Christi 1992); Content v. Dalton, 122
N.J. Eq. 425,194 A. 286,112 A.L.R. 1031 (Ct. Err. & App. 1937).
[FN2] Archuleta v. Rose, 136 Colo. 211, 315 P.2d 201 (1957); Kline v. Kramer, 179 Ind. App. 592, 386
N.E.2d 982 (3d Dis!. 1979); Meyers v. Canutt, 242 Iowa 692, 46 N.W.2d 72, 24 A.L.R.2d I (1951);
Comforto v. Skirke, 289 Mich. 707,287 NW. 353 (1939); Volkerding v. Brooks, 359 S.W.2d 736 (Mo.
1962); Van Valkenburgh v. Lutz, 304 N.Y. 95, 106 N.E.2d 28 (1952); Broadhurst v. American Colloid
Co., 85 S.D. 65,177 N.W.2d 261 (1970); Slater v. Murphy, 55 Wash. 2d 892, 339 P.2d 457 (1959).
[FN3] Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000); Enos v. Murtaugh, 47 Cal. App. 2d
269, 117 P.2d 905 (2d Dist. 1941); Seaboard Air Line Ry. Co. v. Board of Bond Trustees of Special
Road and Bridge Dist. No. I of Alachua County, 91 Fla. 612,108 So. 689, 46 A.L.R. 870 (1926);

Page 93 of 665

3 Am. JUL 2d Adverse Possession § 41
Schmidt v. Williams, 34 Idaho 723, 203 P. 1075 (1921); Kurz v. Blume, 407 Ill. 383, 95 N.E.2d 338, 25
A.L.R.2d 1258 (1950); Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Bloodsworth v.
Murray, 138 Md. 631, 114 A. 575, 22 A.L.R. 1450 (1921); Pastorino v. City of Detroit, 182 Mich. 5,
148 N.W. 231 (1914); Trimboli v. Kinkel, 226 N.Y. 147, 123 N.E. 205, 5 A.L.R. 1385 (1919); Baxter v.
Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. 1011 (1927); Lynch v. Lynch, 236 S.c. 612, 115
S.E.2d 301 (1960); Gibbs v. Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931); Salt Lake
Inv. Co. v. Fox, 32 Utah 301, 90 P. 564 (1907); State v. King, 77 W. Va. 37, 87 S.E. 170 (1915).
[FN4] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Marengo Cave Co.
v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Bond v. O'Gara, 177 Mass. 139, 58 N.E. 275 (1900);
Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 134 A.L.R. 458 (1940); Lynch v. Lynch, 236 S.c. 612,
115 S.E.2d 301 (1960); Bank of Vernal v. Uintah County, 122 Utah 410, 250 P.2d 581 (1952).
[FN5] Blumer v. Iowa Railroad Land Co., 129 Iowa 32, 105 N.W. 342 (1905), affd, 206 U.S. 482, 27
S. Ct. 769, 51 L. Ed. 1148 (1907); Maas v. Burdetzke, 93 Minn. 295, 101 N.W. 182 (1904); Smith v.
Jones, 103 Tex. 632,132 S.W. 469 (1910).
rights reserved.
AMJUR ADVERSE § 41
END OF DOCUMENT
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Westlaw

Adverse Possession

I. In General
§ 42. Origin and duration
An adverse claim must be hostile at its inception.[1] There are numerous instances wherein the occupancy
of land without original intent to claim adversely subsequently became hostile in fact;[2] but these instances do
not affect the principle that an adverse possession must be hostile from the beginning, and that this hostility
must continue for the full statutory period,[3] on the part either of the original adverse claimant or of those who
claim to hold under such c1aimant.[4]
A statute specifYing the length of time during which an adverse possession must be maintained to ripen into
title begins to run at the time the possession of the claimant becomes hostile to that of the owner, which is gener-
ally the time of entry;[5] but if the original entry is in subordination to the title of the true owner, the possession
so taken only becomes hostile when the one in possession claims title, and the running of the statute must date
from that time.[6]
[FNI] Lovejoy v. School Dis!. No. 46 of Sedgwick County, 129 Colo. 306, 269 P.2d 1067 (1954);
Dewitt v. Shea, 203 III. 393, 67 N.E. 761 (1903); Delacey v. Commercial Trust Co., 51 Wash. 542, 99
P. 574 (1909).
[FN2] §§ 50, 194.
lFN3] Weston v. Morgan, 162 S.C. 177,160 S.E. 436 (1931).
[FN4] Weston v. Morgan, 162 S.c. 177, 160 S.E. 436 (1931).
[FN5] Blumer v. Iowa Railroad Land Co., 129 Iowa 32, 105 N.W. 342 (1905), afrd, 206 U.S. 482. 27
S. Ct. 769, 5 I L. Ed. 1148 (1907); Weiner v. Steams, 40 Utah 185, 120 P. 490 (191 I).
Page 95 of 665

As to commencement of statute of limitations against the right to recover the possession of real prop-
erty, see 51 Am. Jur. 2d, Limitation of Actions § 120.
[FN6] § 50.
rights reserved.
AMJUR ADVERSE § 42
END OF DOCUMENT

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Westlaw.

Adverse Possession

2. What Constitutes Hostile Possession
§ 43. Generally
West's Key Number Digest, Adverse Possession tf;;::;::;::>67
A.L.R. Library
A.LR. 3d 818 § 6.
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § 8.
The requirement for adverse possession that the possession be hostile does not require ill will or malice, but
an assertion of ownership adverse to that of the true owner and all others.[I] Possession is hostile if the pos-
sessor holds and claims the property as his or her own, whether by mistake or willfully.[2]
Hostility of possession means that one in possession of land claims the exclusive right to that land, and oc-
cupies it as its owner.[3] To be hostile, the claimant's possession must be clear, distinct, and unequivocaI.[4]
Hostile possession must be such as to import a denial of the owner's title[5] or oust the owner trom the land.[6]
Possession that is unaccompanied by any express or inferable recognition of the right of the real owner is
adverse.[7]
It is not necessary that the claimant expressly declare the possession to be hostile,[8] or that the claimant's
use of the premises be such as to indicate at all times a hostile occupancy.[9] It also is not essential that the use
of the adverse claimant be challenged by, and the use continued over the objection of, the true owner.[IO]
The mere possession ofland does not in and of itself show hostility to the owner.[II]
A possession that is in law rightful and not an invasion of the rights of others is not adverse.[12]
Practice Guide:

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A parol gift of land, when proven by clear and convincing evidence, establishes a presumption that the donee's
claim to the property is hostile to the donor.[13]
Cases:
To constitute adverse possession, the claimant must either remain permanently upon the land, or else occupy
it in such a way, as to leave no doubt on the mind of the true owner, not only who the adverse claimant was, but
that it was his purpose to keep him out of his land. MEA Family Investments, LP v. Adams, 284 Ga. 407, 667
S.E.2d 609 (2008).
[FNI] Rorebeck v. Criste, I Ariz. App. I, 398 P.2d 678 (1965); Smith v. Hayden, 772 P.2d 47 (Colo.
1989); Estate of Wells v. Estate of Smith, 576 A.2d 707 (D.C. 1990); Isham v. Cudlip, 33 III. App. 2d
254, 179 N.E.2d 25 (2d Dis!. 1962); Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733
A.2d 984 (Me. 1999); Blickenstaff v. Bromley, 243 Md. 164, 220 A.2d 558 (1966); City of South
Greenfield v. Cagle, 591 S.W.2d 156 (Mo. C!. App. S.D. 1979); Wanha v. Long, 255 Neb. 849, 587
N. W.2d 531 (1998); Hightower v. Pendergrass, 662 S.W.2d 932 (Tenn. 1983); Jarvis v. Gillespie, 155
V!. 633, 587 A.2d 981 (1991); Calhoun v. Woods, 246 Va. 41, 431 S.E.2d 285 (1993); EI Cerrito, Inc.
v. Ryndak, 60 Wash. 2d 847, 376 P.2d 528 (1962); Burkhardt v. Smith, 17 Wis. 2d 132, 115 N.W.2d
540 (1962).
[FN2] Strickland v. Markos, 566 So. 2d 229 (Ala. 1990).
[FN3] Vezey v. Green, 35 P.3d 14 (Alaska 2001); Agers v. Reynolds, 306 S.W.2d 506 (Mo. 1957); Ber-
glund v. Sisler, 210 Neb. 258, 313 N.W.2d 679 (1981); Faulconer v. Williams, 327 Or. 381, 964 P.2d
246 (1998); Young Kee Kim v. DOllval Corp., 259 Va. 752, 529 S.E.2d 92 (2000); Chaplin v. Sanders,
100 Wash. 2d 853, 676 P.2d 431 (1984).
[FN4] Consolidated Dis!. No.4 of Jackson County v. Glandon, 363 Mo. I, 247 S.W.2d 770 (1952);
Pritchard v. Lewis, 125 Wis. 604,104 N.W. 989 (1905).
[FN5] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME Ill, 733 A.2d 984 (Me. 1999); EI Cer-
rito, Inc. v. Ryndak, 60 Wash. 2d 847, 376 P.2d 528 (1962); Conley v. Conley, 168 W. Va. 500, 285
S.E.2d 140 (1981).
As to permissive possession, see § 47.
[FN6] Clark v. Drska, I Conn. App. 481, 473 A.2d 325 (1984).
[FN7] Rossner v. JeflTey, 234 Ark. 723, 354 S.W.2d 705 (1962).
[FN8] Bond v. O'Gara, 177 Mass. 139, 58 N.E. 275 (1900); Pastorino v. City of Detroit, 182 Mich. 5,
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148 N.W. 231 (1914); Peters v. S!. Louis, 226 Mo. 62, 125 S.W. 1134 (1910); Coquille Mill & Mer-
cantile Co. v. Johnson, 52 Or. 547, 98 P. 132 (1908).
[FN9] Fear v. Barwise, 93 Kan. 131, 143 P. 505 (1914).
[FNIO] Peters v. Gillund, 186 S.W.2d 1019 (Tex. Civ. App. Galveston 1945), writ refused w.o.m.,
(June 13, 1945).
[FN II] City of New Orleans v. New Orleans Canal, Inc., 412 So. 2d 975 (La. 1981); Orsborn v. Deep
Rock Oil Corp., 153 Tex. 281,267 S. W.2d 781 (1954).
[FNI2] Mooney v. Canter, 311 S.W.2d 1 (Mo. 1958); State ex reI. Edie v. Shain, 348 Mo. 119, 152
S.W.2d 174 (1941).
[FN 13] Vezey v. Green, 35 P.3d 14 (Alaska 2001).
rights reserved.
AMJUR ADVERSE § 43
END OF DOCUMENT
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Westlaw

Adverse Possession

§ 44. Effect of relationship between claimant and owner
West's Key Number Digest, Adverse Possession <C=60 to 64
In detennining what amounts to hostility, the relation that the adverse possessor occupies with reference to
the owner is important.[l] If the parties are strangers[2] and the possession is open and notorious,[3] it may be
deemed to be hostile.[4] However if the parties are related, there may be a presumption that the use is per-
missive.[5]
[FNI] State v. Heard, 199 S.W.2d 191 (Tex. Civ. App. Austin 1946), affd, 146 Tex. 139,204 S.W.2d
344 (1947).
As to adverse possession between members of a family, see §§ 180 et seq.
[FN2] Ward v. Rodriguez, 43 N.M. 191, 88 P.2d 277 (1939); Buchanan v. Nixon, 163 Tenn. 364, 43
S.W.2d 380,80 A.L.R. 151 (1931).
[FN3] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954).
[FN4] Mintz v. Millican, 266 Ala. 479, 97 So. 2d 769 (1957).
[FN5] § 49.
rights reserved.
AMJUR ADVERSE § 44
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Westlaw.

Adverse Possession

§ 45. Intent; effect of mistake
West's Key Number Digest, Adverse Possession €=>65
It has been held that the intention with which possession is taken and maintained is the controlling factor in
determining its hostile character.[I] In other words, it is the intention of the claimant that guides the entry and
fixes its character;[2] no matter how exclusive and hostile to the true owner the possession may be in appear-
ance, it cannot be adverse unless it is accompanied by the intent on the part of the occupant to make it so.[3] Un-
der this view, a claimant must intend to hold land as the claimant's own against the owner and all the world and
intend to appropriate it to the exclusion of all others in order to constitute adverse possession. [4] If the possessor
intends to hold the land only until or unless the true owner claims the premises or demands rent, there is no
claim of right under adverse possession.[5]
However, it has also been held that the possessor's subjective intent is irrelevant if his or her acts import an
adverse character to his or her use of the land.[6] Thus, the pertinent inquiry is whether the claimant has proved
the elements based on claimant's objective manifestation of adverse use, rather than on the claimant's subjective
intent.[7]
Caution:
In jurisdictions in which hostile intent is required, it is not necessary that the occupant intends to take away from
the true owner something that the occupant knows belongs to another, or even that the occupant was indifferent
as to the facts of the legal title; because it is the intention to possess, and not the intent to take irrespective of the
right of the real owner, that governs, if the possessor occupies land intending to occupy it and own it, the occu-
pancy is adverse.[8] It is not necessary that the use be made either in the belief or under a claim that it is legally
justified; instead, the essential quality is that the use not be made in subordination to those against whom it is
claimed to be adverse.[9] Adverse possession does not depend on the remote motives or purposes of the occu-
pant, nor on whether the motivation is guilty or innocent.[IO]
A mistaken belief of the claimants that he or she owns the land in question does not prevent his or her pos-
session from being hostile.[ II] Thus, one may obtain perfect title to real property by adverse possession even if
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there is no intention by adverse possessor to claim land not belonging to the claimant.[ 12]
Cases:
Where land is occupied through mistake as to the property line with the intention to claim only to the true
line, wherever it may be, a claim for adverse possession of the mistakenly occupied land will be denied. Brewer
v. Murphy, 161 Cal. App. 4th 928, 74 Cal. Rptr. 3d 436 (5th Dist. 2008).
Title may be acquired through adverse possession irrespective of any question of motive or of mistake in ad-
versely possessing the property. Evanich v. Bridge, 119 Ohio St. 3d 260, 2008-0hio-3820, 893 N.E.2d 481 (2008).
lEND OF SUPPLEMENTI
[FNI] Boese v. Crane, 182 Kan. 777, 324 P.2d 188 (1958); Chariton v. Crocker, 665 S.W.2d 56 (Mo.
Ct. App. S.D. 1984); Hawkins v. Mahoney, 1999 MT 296,297 Mont. 98, 990 P.2d 776 (1999); Wanha
v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
[FN2] Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932).
[FN3] Baber v. Henderson, 156 Mo. 566, 57 S.W. 719 (1900); Lynch v. Lynch, 236 S.c. 612, 115
S.E.2d 301 (1960); Metze v. Meetze, 231 S.C. 154,97 S.E.2d 514 (1957).
[FN4] Taranto v. Peoples Bank of Biloxi, 242 Miss. 607, 136 So. 2d 213 (1962); Dugan v. Jensen, 244
Neb. 937, 510 N.W.2d 313 (1994); Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d
106 (1999).
[FN5] Hoffman v. McKneely, 352 So. 2d 260 (La. Ct. App. 2d Cir. 1977); Rude v. Marshall, 54 Mont.
27, 166 P. 298 (1917); Calfee v. Duke, 544 S.W.2d 640 (Tex. 1976); Illinois Steel Co. v. Bilol, 109
Wis. 418, 84 N.W. 855 (1901).
[FN6] Mavromoustakos v. Padussis, 112 Md. App. 59, 684 A.2d 51 (1996); Totman v. Malloy, 431
Mass. 143,725 N.E.2d 1045 (2000); Kellison v. Mclsaac, 131 N.H. 675, 559 A.2d 834 (1989).
[FN7] Porter v. Schaffer, 126 Md. App. 237, 728 A.2d 755 (1999); Kellison v. Mclsaac, 131 N.H. 675,
559 A.2d 834 (1989).
[FN8] City of South Greenfield v. Cagle, 591 S.W.2d 156 (Mo. Ct. App. S.D. 1979); Nebraska State
Bank v. Gaddis, 208 Neb. 136, 302 N.W.2d 686 (1981); Chaplin v. Sanders, 100 Wash. 2d 853, 676
P.2d 431 (1984).
A claimant's planting of a hedge on the asserted property line of her tract to create a barrier or fence
between that property and the adjacent tract was sufficient to evidence a hostile character of possession,
and the claimant's testimony that she believed the disputed tract was in the deed to her lot and never in-
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tended to take anyone else's land did not constitute a judicial admission that she did not possess the re-
quisite intent. Julien v. Baker, 758 S.W.2d 873 (Tex. App. Houston 14th Dis!. 1988), writ denied, (Feb.
22, 1989).
[FN9] Crandall v. Gould, 244 Conn. 583, 711 A.2d 682 (1998).
[FNIO] § 122.
[FNII] Wigfall v. Fobbs, 295 S.C. 59, 367 S.E.2d 156 (1988).
[FNI2] Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky.
1992).
rights reserved.
AMJUR ADVERSE § 45
END OF DOCUMENT

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Westlaw,

Adverse Possession

§ 46. Intent; effect of mistake-Evidence of intent
West's Key Number Digest, Adverse Possession <£:=65, 85(.5 to 3)
Even in jurisdictions in which hostile intent is required, the intent with which the occupant has held posses-
sion ordinarily is determined by what the occupant has done in respect to the property.[I] Thus, the intent with
which an occupant has held possession is to be determined from all surrounding circumstances, especially the
occupant's acts.[2]
[FNI] Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Wanha v. Long,
255 Neb. 849, 587 N.W.2d 531 (1998); Thompson v. Griffiths, 9 Utah 2d 348, 344 P.2d 983 (1959).
[FN2] Boese v. Crane, 182 Kan. 777, 324 P.2d 188 (1958); Hawkins v. Mahoney, 1999 MT 296, 297
Mont. 98, 990 P.2d 776 (1999).
© 20 I 0 Thomson Reuters. 33-34B © 20 I 0 Thomson ReuterslRIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
AMJUR ADVERSE § 46
END OF DOCUMENT
Page 104 of 665
Westlaw.

Adverse Possession

3. Permissive Possession
§ 47. Generally
West's Key Number Digest, Adverse Possession €=>60(2), 67
Trial Strategy
Proof that use of land was permissive. Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d
703 §§ 7 et seq.
Forms
Notice by landowner-To prevent acquisition of title by adverse possession. IA Am. Jur. Legal Forms 2d,
Adverse Possession § 11:12.
Notice-Of consent to use land. IB Am. Jur. Pleading and Practice Forms, Adverse Possession § 10.
Instruction to jury~Character of possession-Effect of consent of owner-Real or personal property. IB

Am. Jur. Pleading and Practice Forms, Adverse Possession § 73.
Adverse possession cannot be pennissive,[l] and permissive possession is not adverse,[2] because per-
missive possession is not considered to be the possession of the occupant, but the possession of the party on
whose pleasure the permissive possession depends.[3] In fact, some jurisdictions define hostile possession
simply as possession without the permission of the true owner.[4]
A claimant's acknowledgment of title in another by an adverse possessor is conclusive evidence of a holding

by permission.[5]
Practice Guide:
The true owner's permission to be on the land, which negates the element of hostility in common law adverse
possession actions, can be either express or implied.[6]

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If a right to the use or possession of property is conferred by grant, any use or possession that is reasonably
consistent with that grant will be considered penmissive and not adverse.[7] Thus, possession under a license or
an agreement granting the right of occupancy is not adverse; the license or agreement precludes the possibility
of a claim of adverse possession.[8] Even possession under a void license or grant is a penmissive use,[9] and
one who enters on land by the owner's pennission under a promise or expectation that the occupant will be given
the land does not have a hostile holding or possession that will ripen into title.[IO] However, a donee who ac-
cepts a gift of land asserts a property right that is independent of the record owner's, so his or her use is not per-
missive.[II]
Practice Guide:
If an adverse possession claimant's use of the land is actual, open, and exclusive for the required period years,
the nonpermissiveness of the use may be inferred.[12]
[FN I] Wiggins v. Lykes Bros., Inc., 97 So. 2d 273 (Fla. 1957); Thornhill v. Caroline Hunt Trust Estate,
594 So. 2d 1150 (Miss. 1992); Willis v. Holley, 1996 OK 107, 925 P.2d 539 (Okla. 1996).
[FN2] Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. CI. 545 (1997), judgment
affd, 230 F.3d 1375 (Fed. Cir. 1999), amended, (Mar. 27, 2000) and reh'g and reh'g en bane denied,
(Apr. 6,2000) and cert. denied, 531 U.S. 957, 121 S. Ct. 380, 148 L. Ed. 2d 293 (2000) (applying
Maryland law); Howell v. Bradford, 570 So. 2d 643 (Ala. 1990); Vezey v. Green, 35 P.3d 14 (Alaska
2001); Gregoire v. Redwood City Elementary School Dist., 174 Cal. App. 2d 667, 345 P.2d 99 (1st
Dist. 1959); Downing v. Bird, 100 So. 2d 57 (Fla. 1958); Striefel v. Charles-Keyt-Leaman Partnership,
1999 ME III, 733 A.2d 984 (Me. 1999); Warner v. Noble, 286 Mich. 654,282 N.W. 855 (1938); Eld v.
Ellis, 235 S.W.2d 273 (Mo. 1950); Fantasia v. Schmuck, 183 W. Va. 361, 395 S.E.2d 784 (1990); Hov-
endick v. Ruby, 10 P.3d 1119 (Wyo. 2000).
[FN3] Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569
(1957).
[FN4] Cluff v. Bonner County, 121 Idaho 184, 824 P.2d 115 (1992); Mavromoustakos v. Padussis, 112
Md. App. 59, 684 A.2d 51 (1996).
[FN5] §§ 101 et seq.
[FN6] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999).
[FN7] Kelley v. Anmstrong, 102 Ohio St. 478,132 N.E. 15 (1921).
[FN8] Hungerford v. Hungerford, 234 Md. 338, 199 A.2d 209 (1964); Rude v. Marshall, 54 Mont. 27,
166 P. 298 (1917); Stein v. White, 109 Ohio St. 578, 143 N.E. 124 (1924); Zimmerman v. Newport,
1966 OK 42, 416 P.2d 622 (Okla. 1966); City of Rock Springs v. Stunm, 39 Wyo. 494, 273 P. 908, 97
A.L.R. I (1929).
A claimant did not obtain title to a strip of land through adverse possession, absent clear and convincing
Page 106 of 665

evidence of the adversity of their claim to the strip for the entire statutory period; although the claimant
used the strip by mowing the grass, parking cars, and placing various items on it, the claimant asked for
permission before initially mowing the strip, did not protest when the owner drove a tractor over it, and
conceded that he knew that the strip belonged to the owner and that he never would have used it without
permission. Grace v. Koch, 81 Ohio SI. 3d 577, 692 N.E.2d 1009 (1998).
[FN9] Batts v. Greer, 71 N.M. 454, 379 P.2d 443 (1963).
[FN I 0] Triplett v. Chadwick, 311 S. W.2d 554 (Ky. 1958).
[FNII] Vezey v. Green, 35 P.3d 14 (Alaska 2001).
[FNI2] Totman v. Malloy, 431 Mass. 143,725 N.E.2d 1045 (2000).
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rights reserved.
AMJUR ADVERSE § 47
END OF DOCUMENT
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Westlaw

Adverse Possession

§ 48. Effect of lengthy or exclusive possession
West's Key Number Digest, Adverse Possession C=60(2), 67
Trial Strategy
Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703.
No matter how exclusive or long endured it is, permissive possession can never ripen into title against any-
one.[ I] Thus, occupation or use by acquiescence or permission of the owner cannot ripen into title by adverse
possession, no matter how long it is maintained.[2] However, a possession that is initially permissive may be
changed to a hostile possession if certain requirements are met.[3]
[FNI] Bell v. Pritchard, 273 Ala. 289, 139 So. 2d 596 (1962); Arkansas Commemorative Commission
v. City of Little Rock, 227 Ark. 1085, 303 S. W.2d 569 (1957); Davis v. Newton, 215 Ga. 58, 108
S.E.2d 809 (1959); Bums v. Foster, 348 Mich. 8, 81 N.W.2d 386 (1957); Groth v. Johnson's Dairy
Farm, Inc., 124 N.H. 286, 470 A.2d 399 (1983).
[FN2] Comforto v. Skirke, 289 Mich. 707, 287 N.W. 353 (1939); Thomas v. Morgan, 1925 OK 494,
113 Okla. 212, 240 P. 735 (1925) (overruled on other grounds in part by, Pearson v. Hasty, 1943 OK
179, 192 Okla. 425, 137 P.2d 545, 147 A.L.R. 232 (1943)); Laurance v. Tucker, 160 Or. 474, 85 P.2d
374 (1938).
[FN3] § 50.
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rights reserved.
AMJUR ADVERSE § 48
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END OF DOCUMENT
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Westlaw.

Adverse Possession

§ 49. Presumption of permissiveness
West's Key Number Digest, Adverse Possession ~67, 85(1)
Trial Strategy
Forms
Instruction to jury-Burden of proof-To rebut presumption of possession with consent of owner. IB Am.
Although there is a presumption that one who possesses or uses another's property does so with the owner's
permission, an adverse claimant may rebut this presumption by showing that he or she was not on the owner's
land with permission.[I]
It has been held that there is a presumption of permissiveness for adverse claimants with a familial relation-
ship to the true owner,[2] and that, if a family relationship between claimants is involved, proof of the adverse
possession must be established by stronger evidence than is required in other cases.[3] However, it has also been
held that there is no such presumption; standing alone, a familial relationship neither puts an end to the inquiry
regarding permissive use, nor shifts the burden ofproof.[4]
[FN I] Vezey v. Green, 35 P.3d 14 (Alaska 200 I).
[FN2] Pioneer Mill Co., Ltd. v. Dow, 90 Haw. 289, 978 P.2d 727 (1999), as amended on denial of re-
consideration, (May II, 1999); Ransom v. Bebemitz, 782 A.2d 1155 (VI. 2001).
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As to the effect of the fact that the parties are strangers to each other, see § 44.
[FN3] Ransom v. Bebernitz, 782 A.2d 1155 (Vt. 2001).
[FN4] Totman v. Malloy, 431 Mass. 143,725 N.E.2d 1045 (2000).
rights reserved.
AMJUR ADVERSE § 49
END OF DOCUMENT
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Westlaw,

Adverse Possession

3. Pennissive Possession
§ 50. Change to hostile possession
West's Key Number Digest, Adverse Possession €=60 to 64
A.L.R. Library
A.L.R. 3d 818 § 9[(b)].
Trial Strategy
Possession that is pennissive in its inception may become hostile.[1] However, if the original entry is not
hostile, it does not become so and the statute does not begin to run as against the rightful owner unti I the adverse
claimant disavows the idea of holding for, or in subserviency to, another and actually sets up an exclusive right
in the adverse c1aimant.[2] If the original entry on land is by permission of the owner or under some right or au-
thority derived from the owner, the possession does not become hostile until the permission or authority has
been clearly repudiated by the occupant.[3]
To change the character of the possession from permissive to hostile, the disavowal of the record owner's
title and the assertion of an adverse claim must be shown by some clear, positive, and unequivocal act brought
home to the owner,[4] such as an explicit disclaimer.[5] Otherwise, the possession will not be presumed to be
hostile.[6]
Caution:
To change pennissive possession to adverse possession, there must be either actual notice of the hostile claim, or
acts or declarations of hostility so manifest and notorious that actual notice will be presumed.[7] Under some
statutes, permissive possession cannot be the foundation of a prescription or adverse title until an adverse claim
and actual notice to the other party is made.[8]
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[FN1] Isham v. Cudlip, 33 Ill. App. 2d 254,179 N.E.2d 25 (2d Dist. 1962).
[FN2] Calhoun v. Smith, 387 So. 2d 821 (Ala. 1980); Lawse v. Glaha, 253 Iowa 1040, 114 N.W.2d 900
(1962); Humphrey v. Harrison, 646 S.W.2d 340 (Ky. 1982); Hewlett v. Henderson, 431 So. 2d 449
(Miss. 1983); Morrison v. Higbee, 204 Mont. 515, 668 P.2d 1025 (1983); Petsch v. Widger, 214 Neb.
390, 335 N.W.2d 254 (1983); Hyson v. Dodge, 198 Va. 792, 96 S.E.2d 792 (1957); Lindokken v.
Paulson, 224 Wis. 470, 272 N.W. 453, 110 A.L.R. 910 (1937); Coumas v. Transcontinental Garage, 68
Wyo. 99, 230 P.2d 748, 41 A.L.R.2d 539 (1951).
[FN3] Calhoun v. Smith, 387 So. 2d 821 (Ala. 1980); Walter v. Jones, 15 Ill. 2d 220, 154 N.E.2d 250
(1958); Hinkley v. State, 234 N.Y. 309,137 N.E. 599 (1922).
[FN4] Blalock v. Conzelman, 751 So. 2d 2 (Ala. 1999); Anderson v. Walker, 228 Ark. 113,306 S.W.2d
318 (1957); Lovejoy v. School Dis!. No. 46 of Sedgwick County, 129 Colo. 306,269 P.2d 1067 (1954);
Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931); Lawse v. Glaha, 253 Iowa 1040,
114 N.W.2d 900 (1962); Johnson v. Raddohl, 226 Minn. 343, 32 N.W.2d 860 (1948); Rice v. Pritchard,
611 So. 2d 869 (Miss. 1992); Imperial Service Corp. v. Phipps, 205 Neb. 622, 288 N.W.2d 749 (1980);
Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956); Killough v. Hinds, 161 Tex. 178, 338
S. W.2d 707 (1960); Kimball v. Turner, 993 P.2d 303 (Wyo. 1999).
[FN5] Young Kee Kim v. Douval Corp., 259 Va. 752, 529 S.E.2d 92 (2000).
[FN6] Stewart v. Childress, 269 Ala. 87, III So. 2d 8 (1959).
[FN7] Moss v. Woodrow Reynolds and Son Timber Co., Inc., 592 So. 2d 1029 (Ala. 1992); Estate of
Wells v. Estate of Smith, 576 A.2d 707 (D.C. 1990); Pioneer Mill Co., Ltd. v. Dow, 90 Haw. 289, 978
P.2d 727 (1999), as amended on denial of reconsideration, (May II, 1999); McDermott v. Boman, 165
Neb. 429, 86 N.W.2d 62 (1957); Hinman v. Barnes, 146 Ohio S!. 497, 32 Ohio Op. 564, 66 N.E.2d 911
(1946); Great Southern Life Ins. Co. v. Dodson, 155 S.W.2d 379 (Tex. Civ. App. Amarillo 1941); Gray
v. Fitzhugh, 576 P.2d 88 (Wyo. 1978).
[FN8] Proctor v. Heirs of Jernigan, 273 Ga. 29, 538 S.E.2d 36 (2000).
© 20 I 0 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. Gov!. Works. All
rights reserved.
AMJUR ADVERSE § 50
END OF DOCUMENT
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Westlaw.

Adverse Possession

§ 51. Change to hostile possession-Evidence of change to hostile use
West's Key Number Digest, Adverse Possession €=60 to 64, 85(.5 to 3)
Trial Strategy
In determining whether a permissive use has been changed into a hostile use, the evidence must be strictly
construed against the adverse user,[I] and the burden is on the claimant to prove that he or she changed the char-
acter of the possession.[2]
For the purpose of changing permissive possession to hostile possession, mere possession or ordinary acts
of ownership that are consistent with the permission are not enough to provide notice of the hostile claim.[3]
CUMULA TIVE SUPPLEMENT
Cases:
Even if neighbor possessed property on his side of fence in the mistaken belief that he owned it, neighbor
was entitled to the presumption of adverse possession and landowner had the burden to prove that neighbor's
possession of the property was not hostile, in trial of adverse possession counterclaim asserted by neighbor after
landowner brought action seeking an injunction to prevent neighbor from interfering with landowner's efforts to
relocate fence. Cook v. Eddy, 2008 WY III, 193 P.3d 705 (Wyo. 2008).
lEND OF SUPPLEMENTI
[FN I] Mielke v. Daly Ditches lrr. Dist., 225 Mont. 172,731 P.2d 927 (1987).
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consideration, (May 11, 1999); Edgell v. Canning, 1999 UT 21, 976 P.2d 1193 (Utah 1999).
[FN3] Blalock v. Conzelman, 751 So. 2d 2 (Ala. 1999); Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d
177 (1956).
rights reserved.
AMJUR ADVERSE § 51
END OF DOCUMENT
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Westlaw.

Adverse Possession

3. Pennissive Possession
§ 52. Possession after divestment of title
The continued possession of land after a judgment divesting the one in possession of title and vesting it in
another is permissive, and not adverse, until notice of a hostile claim is brought home to the prevailing party.[1]
[FNI] Shepherd v. Lyle, 1964 OK 204, 395 P.2d 641 (Okla. 1964); Green v. Vance, 158 Tex. 550, 314
S. W.2d 794 (1958).
Because a remote grantor of the plaintiff obtained a judgment in trespass to try title against the same de-
fendants covering the same property, the defendants' continued possession after entry of the prior judg-
ment was pennissive and not adverse to the title of the record owner unless it could be shown that the
record owner had knowledge or record notice that the permissive relationship had been repudiated.
Sims v. Cage, 523 S.W.2d 486 (Tex. Civ. App. Houston 1st Dist. 1975), writ refused n.r.e.
rights reserved.
AMJUR ADVERSE § 52
END OF DOCUMENT
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Westlaw

Adverse Possession

4. Possession under Mistake or Ignorance as to a Boundary
§ 53. Generally
West's Key Number Digest, Adverse Possession €=>65(.5)
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 40, 41.
Adverse possession involving ignorance or mistake as to boundaries-modem views, 80 A.L.R. 2d 1171 §§

2 to 8.
Forms
Cross-complaint-Boundary line dispute-Mistake by common grantor in fencing adjoining parcels-To

establish title by adverse possession-Additional count for trespass and waste. I BAm. Jur. Pleading and Prac-
tice Forms, Adverse Possession § 64.
Answer-Title by adverse possession-Boundary line fenced by common grant-

or-Improvements-Payment of taxes. IB Am. Jur. Pleading and Practice Forms, Adverse Possession § 65.
To possess the requisite intent to adversely obtain property, it is not necessary that the possessor be correct
in a belief as to the true boundary lines.[1] The necessary element of hostile possession in the acquisition of title
by adverse possession may exist even if possession was taken by mistake.[2] Possession is not the less hostile
because the claimant takes possession of the land innocently and through mistake or ignorance as to ownership
or as to boundary lines; it is visible and adverse possession, with the intention to possess land occupied under a
belief that it is the possessor's own, that constitutes its hostile character, and not the remote view or belief of the
possessor.[3]
In some jurisdictions, occupancy to a visible and ascertained boundary for the statutory period is the con-

Page 117 of665

trolling feature in detenmining hostility in mistaken boundary-line cases.[4] Thus, an open, notorious, and hostile
possession of property for the statutory limitation period is sufficient for the acquisition of title by adverse pos-
session, and the fact that the possession was taken under mistake or ignorance as to boundary lines is immateri-
al.[5]In other words, the mistake can not be pleaded in avoidance of the legal effect of the possession.[6]
Cases:
Fact that, at time of acquiring land, adverse possession claimants had been mistaken in their subjective be-
lief that stone wall was the boundary of their property did not show that their possession was not adverse, as an
element of their adverse possession claim to land up to wall; claimants' subjective belief was immaterial to ele-
ment of adversity. Mastroianni v. Wercinski, 158 N.H. 380, 965 A.2d 1139 (2009).
"Doctrine of acquiescence" allows a property owner to acquire neighboring property due to an honest mis-
take over the location of the boundary line. Brown v. Brodell, 2008 ND 183,756 N.W.2d 779 (N.D. 2008).
[FNI] Scarbrough v. Smith, 445 So. 2d 553 (Ala. 1984); McMullen v. Dowley, 483 A.2d 698 (Me. 1984).
[FN2] Bussey v. Bussey, 403 So. 2d 907 (Ala. 1981); Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984);
Gilardi v. Hallam, 30 Cal. 3d 317, 178 Cal. Rptr. 624, 636 P.2d 588 (1981); Yatczak v. Cloon, 313
Mich. 584,22 N.W.2d 112 (1946); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920); Norgard v.
Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960); City of Deadwood v. Summit, Inc., 2000
SD 29,607 N.W.2d 22 (S.D. 2000); Liberto v. Steele, 188 Tenn. 529,221 S.W.2d 701 (1949); Great
Southern Life Ins. Co. v. Dodson, 155 S.W.2d 379 (Tex. Civ. App. Amarillo 1941).
[FN3] Rudolph v. Peters, 35 App. D.C. 438, Am. Ann. Cas. 1912A, 446 (App. D.C. 1910); Mannillo v.
Gorski, 54 N.J. 378, 255 A.2d 258 (1969); Fespenman v. Grier, 294 Ala. 163,313 So. 2d 525 (1975);
Smart v. Murphy, 200 Ark. 406, 139 S.W.2d 33 (1940); Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d
900 (1948); Krause v. Nolte, 217 111. 298, 75 N.E. 362 (1905) (in which a line was mistakenly believed
to be the true line); McMullen v. Dowley, 483 A.2d 698 (Me. 1984); Boutin v. Perreault, 343 Mass.
329, 178 N.E.2d 482 (1961); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785
(1926); Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998); Belotti v. Bickhardt, 228 N.Y. 296, 127
N.E. 239 (1920); Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960).
As to the controlling aspect of intention, see § 46.
[FN4] Vennard v. Morrison, 3 Conn. Cir. Ct. 120,209 A.2d 202 (App. Div. 1964); Cassidy v. Lenahan,
294 III. 503,128 N.E. 544 (1920); Lyon v. Parkinson, 330 Mass. 374,113 N.E.2d 861 (1953); Vrana v.
Stuart, 169 Neb. 430, 99 N.W.2d 770 (1959); Smith v. Pettijohn, 1961 OK 246, 366 P.2d 633 (Okla.
1961); Adams v. Tamaqua Underwear Co., 105 Pa. Super. 339,161 A. 416 (1932).
[FN5] Fesperman v. Grier, 294 Ala. 163,313 So. 2d 525 (1975); Geronimo Hotel, Inc. v. City of Tuc-
Page 118 of665

son, 121 Ariz. 446, 591 P.2d 72 (Ct. App. Div. 2 1978); Burton v. Griffith, 226 Ark. 641,291 S.W.2d
516 (1956); Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Vennard v. Morrison, 3 Conn. Cir.
Ct. 120,209 A.2d 202 (App. Div. 1964); Edwards v. Fleming, 83 Kan. 653, 112 P. 836 (1911); Yatczak
v. Cloon, 313 Mich. 584, 22 N.W.2d 112 (1946); Walters v. Tucker, 308 S.W.2d 673 (Mo. 1957);
Thibault v. Flynn, 133 Mont. 461, 325 P.2d 914 (1958); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E.
239 (1920); Wilson v. Moore, 1959 OK 6, 335 P.2d 1085 (Okla. 1959); Norgard v. Busher, 220 Or.
297,349 P.2d 490,80 A.L.R.2d 1161 (1960); Schiro v. Oriental Realty Co., 272 Wis. 537, 76 N.W.2d
355,73 A.L.R.2d 1368 (1956).
[FN6] Kendall v. Selvaggio, 413 Mass. 619, 602 N.E.2d 206 (1992); Rude v. Marshall, 54 Mont. 27,
166 P. 298 (1917); Johnson v. Whelan, 1940 OK 68,186 Okla. 511, 98 P.2d 1103 (1940).
rights reserved.
AMJUR ADVERSE § 53
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Westlaw.

Adverse Possession

§ 54. Intention as controlling
West's Key Number Digest, Adverse Possession €=>65(.5)
A.L.R. Library
Adverse possession involving ignorance or mistake as to boundaries-modern views, 80 ALR. 2d 1171 §§

3 to 6.
The rule that the intention with which possession is taken and maintained is the controlling factor in detenn-
ining its adverse character[l] is applied in a number of jurisdictions in determining whether possession through
ignorance or mistake beyond the true boundary line was adverse.[2] The true test is whether, when possession
was acquired, the claimant intended to hold it against all persons; the intention is the test, and not the mistake.[3
] If one occupies land intending to occupy and own it, the occupancy is hostile, and the occupant may have the
required intent, even though he or she is mistaken as to the facts of legal ownership.[4] In other words, the intent
with which possession is held, rather than an intention to hold in accordance with a claimant's deed, is con-
trolling;[5] that one claiming title by adverse possession never intended to claim more land than is called for in a
deed is not a controlling factor.[6]
Observation:
If a claimant takes possession of land by mistake and holds adversely, claiming title, for the statutory period, the
law is not concerned with what might have been the claimant's intention had the claimant known he had no title
to the land before possession ripened into title; the question is what was the claimant's intention during the peri-
od of holding.[7]
[FN I] § 45.
[FN2] West v. Tilley, 33 A.D.2d 228, 306 N.Y.S.2d 591 (4th Dep't 1970); Rountree v. Jackson, 242
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Ala. 190,4 So. 2d 743 (1941); Simpson v. Goering, 161 Kan. 558, 170 P.2d 831 (1946); Krupp v.
Whelan, 310 Ky. 670,220 S.W.2d 956 (1949); Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
[FN3] Davis v. Miller, 352 So. 2d 1357 (Ala. 1977); Mesnick v. Caton, 183 Cal. App. 3d 1248, 228
Cal. Rptr. 779 (2d Dis!. 1986); Goodno v. South Florida Farms Co., 95 Fla. 90, 116 So. 23 (1928); Fort
Wayne Smelting & Refining Works v. City of Fort Wayne, 214 Ind. 454, [4 N.E.2d 556 ([938); Boese
V. Crane, 182 Kan. 777, 324 P.2d 188 (1958); Mooney V. Canter, 311 S.W.2d I (Mo. 1958).
[FN4] Sims V. Vandiver, 504 So. 2d 250 (Ala. 1987); Marvel v. Barley Mill Road Homes, 34 Del. Ch.
417, 104 A.2d 908 (1954); Mooney V. Canter, 3[ [ S.W.2d [ (Mo. 1958); Krosmico V. Pettit, 1998 OK
90,968 P.2d 345 (Okla. 1998); City of Deadwood V. Summit, [nc., 2000 SD 29, 607 N.W.2d 22 (S.D.
2000); Selman V. Roberts, 185 W. Va. 80, 404 S.E.2d 771 (199[).
[FN5] Vrana V. Stuart, 169 Neb. 430, 99 N.W.2d 770 ([959).
[FN6] Vrana V. Stuart, 169 Neb. 430, 99 N.W.2d 770 (1959).
[FN7] Rountree V. Jackson, 242 Ala. 190,4 So. 2d 743 (I94[); Goodno V. South Florida Farms Co., 95
Fla. 90, 116 So. 23 (1928); Mooney V. Canter, 311 S. W.2d 1 (Mo. 1958).
© 2010 Thomson Reuters. 33-34B © 20[0 Thomson Reuters/R[A. No Claim to Orig. U.S. Gov!. Works. All
rights reserved.
AMJUR ADVERSE § 54
END OF DOCUMENT
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Westiaw.

Adverse Possession

§ 55, Actual possession to boundary
West's Key Number Digest, Adverse Possession €=>66(1), (2)
A,L,R, Library
Adverse possession involving ignorance or mistake as to boundaries-modem views, 80 A.L.R. 2d 1171 § 4.
If a landowner, in ignorance of actual boundaries, takes and holds possession by mistake up to a certain line
beyond the boundary limits, on the claim and in the belief that it is the true line, with the intention to claim title,
and if necessary to acquire title by possession up to that line, that possession, having the requisite duration and
continuity, will ripen into title.[1] The mere fact that the possession originated in a mistake or in ignorance as to
the location of the true boundary line will not prevent the running of the statute of limitations, and the posses-
sion will be held to be hostile and to vest the title in the claimant under the statute,[2] even if the land was not
enclosed.[3] If the occupant of the disputed area is under a mistaken belief that it is included in the description
in the deed-a state of mind sometimes described as pure mistake to distinguish it from the cases of conscious
doubt-then the possession is hostile.[4]
Even if the claimant, on occupancy under a mistake as to the true boundary, did not intend to take land !Tom
the true owner and did not intend to occupy and possess land to which the claimant had no record title, the pos-
session may be hostile if the claimant intended to occupy and did occupy as the owner.[5]
Cases:
Where there is no written evidence of title and adverse possession is claimed by virtue of possession for 20
years, prescription will not extend beyond actual "possessio pedis" which means area of actual possession; actu-
al possession may be evidenced by enclosure, cultivation, or any use and occupation which is so notorious as to
attract attention of every adverse claimant and so exclusive as to prevent actual occupation by another. MEA

Page 122 of 665

Family Investments, LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008).
The doctrine of adverse possession protects one who has honestly entered and held possession in the belief
that the land was his own, as well as one who knowingly appropriates the land of others for the purpose of ac-
quiring title. Evanich v. Bridge, 170 Ohio App. 3d 653, 2007-0hio-1349, 868 N.E.2d 747 (9th Dis!. Lorain
County 2007), appeal allowed, 114 Ohio S!. 3d 1507, 2007-0hio-4285, 872 N.E.2d 950 (2007).
Mistake between road owner and adjacent landowner as to the true boundary was of no consequence to road
owner's claim of adverse possession; road owner and predecessors exercised exclusive, actual, adverse, continu-
ous, and open and notorious possession of the actual area making up the service road for more than twenty
years. Cumulus Broadcasting, Inc. v. Shim, 226 S. W.3d 366 (Tenn. 2007).
lEND OF SUPPLEMENTI
[FN I] Kimble v. Southern Ready Mix, Inc., 480 So. 2d 1199 (Ala. 1985); Burton v. Griffith, 226 Ark.
641,291 S.W.2d 516 (1956); Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Sieck v. Ander-
son, 231 Iowa 490, 1 N.W.2d 647 (1942); Kinder v. Ramey, 267 Ky. 312, 102 S.W.2d 32 (1937);
Thibault v. Flynn, 133 Mont. 461, 325 P.2d 914 (1958); Thornburg v. Haecker, 243 Neb. 693, 502
N.W.2d 434 (1993); Wilson v. Moore, 1959 OK 6, 335 P.2d 1085 (Okla. 1959); Norgard v. Busher, 220
Or. 297, 349 P.2d 490,80 A.L.R.2d 1161 (1960); Elder v. Smith, 196 W. Va. 660,474 S.E.2d 590 (1996).
Evidence that a parcel of land was within the fence line of the claimants' property, that they leased the
property to others for ranch purposes, that they entered into an oil and gas lease with respect to the
property, that they themselves conducted ranching operations on the property, that they thought they did
possess the property, and that they in fact intended to possess up to the fence boundary, was sufficient
to satis/)' the requirement of adverse possession. Near v. Casto, 613 P.2d 577 (Wyo. 1980).
[FN2] Gary v. Dane, 411 F.2d 711 (D.C. Cir. 1969); Lollar v. Appleby, 213 Ark. 424, 210 S.W.2d 900
(1948); Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954); Craig v. Paulk, 162
Kan. 280, 176 P.2d 529 (1947); Fredericksen v. Henke, 167 Minn. 356,209 N.W. 257, 46 A.L.R. 785
(1926).
Because a driveway that encroached on the plaintiffs' land was occupied, used, and maintained by the
defendant openly, notoriously, and exclusively for the statutory period, the defendant acquired title by
adverse possession although the right was claimed because of a mistaken belief in the location of the
boundary line. Boutin v. Perreault, 343 Mass. 329, 178 N.E.2d 482 (1961).
[FN3] Hallowell v. Borchers, 150 Neb. 322, 34 N. W.2d 404 (1948).
[FN4] Norgard v. Busher, 220 Or. 297, 349 P.2d 490,80 A.L.R.2d 1161 (1960).
[FN5] Walters v. Tucker, 308 S.W.2d 673 (Mo. 1957).
Evidence that the appellees occupied a dwelling and used and improved a garage and driveway was suf-
ficient to demonstrate an intent to claim the land, even though their possession was without intent to
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possess the land of another. Penn Cent. Transp. Co. v. Martin, 170 Ind. App. 519, 353 N.E.2d 474 (3d
Dist. 1976).
rights reserved.
AMJUR ADVERSE § 55
END OF DOCUMENT
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Westlaw

Adverse Possession

§ 56. Actual possession to boundary-Intent to claim to the true boundary
West's Key Number Digest, Adverse Possession 0(:;:;;;;>65(2), 66(1), (2)
A.L.R. Library
Adverse possession involving ignorance or mistake as to boundaries-modem views, 80 A.L.R. 2d 1171 §§

3,4.
It has been held that, if a party, through ignorance, inadvertence, or mistake, occupies up to a given line
beyond that party's actual boundary, believing it to be the true line, but not having an intention to claim title to
that extent if it should be ascertained that the line is on a neighbor's land, an indispensable element of adverse
possession is wanting; the intention shown is not absolute, but provisional, and consequently, the possession is
not hostile.[ I] Thus, if the possession is up to a fixed boundary under a mistake as to the true line and the inten-
tion is to hold only to the true line, the possession is not hostile and will not ripen into title.[2] Also, if an occu-
pant of land is in doubt as to the location of the true boundary line, it is reasonable for the court to inquire as to
the occupant's state of mind in occupying the land in dispute. If, having that doubt, the occupant intends to hold
the disputed area only if that area is included in the land described in the deed, then it is reasonable to say that
the requisite hostility is lacking.[3]
However, it has also been held that the intent required to support an adverse possession claim, even though
mistaken, is sufficient if the claimant occupies to the wrong line believing it to be true, even if he or she does
not intend to claim more than that described in the deed.[4]
[FNI] Rudolph v. Peters, 35 App. D.C. 438, Am. Ann. Cas. 1912A, 446 (App. D.C. 1910); Burton v.
Griffith, 226 Ark. 641,291 S.W.2d 516 (1956); City of Bonner Springs v. Clark, 3 Kan. App. 2d 8, 588
P.2d 477 (1978); Wilson v. Shepherd, 244 Ky. 225, 50 S.W.2d 540 (1932); Cates v. Smith, 636 A.2d
986 (Me. 1994); Rude v. Marshall, 54 Mont. 27, 166 P. 298 (1917); Norgard v. Busher, 220 Or. 297,
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349 P.2d 490, 80 A.L.R.2d 1161 (1960); Schaubuch v. Dillemuth, 108 Va. 86, 60 S.E. 745 (1908); Mc-
Cormick v. Sorenson, 58 Wash. 107, 107 P. 1055 (1910); Beltack v. Conachen, 235 Wis. 559, 294
N.W. 57 (1940).
[FN2] Tanner v. Dobbins, 255 Ala. 671, 53 So. 2d 549 (1951); Rye v. Baumann, 231 Ark. 278, 329
S.W.2d 161 (1959); Craig v. Paulk, 162 Kan. 280, 176 P.2d 529 (1947); Warner v. Noble, 286 Mich.
654,282 N.W. 855 (1938); Ward v. Rodriguez, 43 N.M. 191,88 P.2d 277 (1939).
[FN3] Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960).
rights reserved.
AMJUR ADVERSE § 56
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Westlaw.

Adverse Possession

§ 57. Visible boundary line
West's Key Number Digest, Adverse Possession €:=66(1)
A.L.R. Library
Fence as factor in fixing location of boundary line-modern cases, 7 A.L.R. 4th 53 § 13.
Adverse possession involving ignorance or mistake as to boundaries-modern views, 80 A.L.R. 2d 1171 §§

4 to 6.
If an intention is manifested to claim title to a visible, fixed, and ascertained boundary line in all events, the
possession is hostile even if it is erroneously assumed to be the true line and the possession is held and the claim
made because of the mistake as to the location of the boundary.[I] In other words, if the claim is to a visible
boundary in all events, whether it is the true line or not, the possession is hostile.[2] In other words, if an occu-
pant claims land up to an established and visible line, such as a fence, the possession may be hostile even if the
occupant claims more than is owned and claims by mistake of fact; although the line as marked by the fence is
erroneous in fact as a boundary line, the possession up to the fence is hostile if the occupant believes it to be the
true boundary line and intends to hold and claim the land to it.[3]
However, if the possession of real property, even though maintained up to certain fixed and visible lines, is
without any intention to claim title to the land, it will not be considered hostile for the purposes of an adverse
possession c1aim.[4]
[FNI] Davis v. Miller, 352 So. 2d 1357 (Ala. 1977); Higginbotham v. Kuehn, 102 Ariz. 37, 424 P.2d
165 (1967); Moss v. O'Brien, 165 Colo. 93,437 P.2d 348 (1968); Sieck v. Anderson, 231 Iowa 490, I
N.W.2d 647 (1942); Gregory v. Thorrez, 277 Mich. 197,269 N.W. 142 (1936); Dawson v. Abbott, 184
N.C. 192, 114 S.E. 15 (1922); Anthony v. Searle, 681 A.2d 892 (R.l. 1996); Christian v. Bulbeek, 120
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Va. 74, 90 S.E. 661 (1916).
[FN2] Gary v. Dane, 411 F.2d 711 (D.C. Cir. 1969); Johnson v. Thomas, 23 App. D.C. 141 (App. D.C.
1904); Davis v. Miller, 352 So. 2d 1357 (Ala. 1977); Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161
(1959); Surfside Hotel v. W. E. Moorehead Co., 149 Fla. 397, 5 So. 2d 857 (1942); Krause v. Nolte,
217111.298,75 N.E. 362 (1905); Wagner v. Thompson, 163 Kan. 662,186 P.2d 278 (1947); Mudwilder
v. Claxton, 301 S.W.2d 3 (Ky. 1957); Consolidated Mechanical Contractors, Inc. v. Ball, 263 Md. 328,
283 A.2d 154 (1971); Walker v. Bowen, 333 Mich. 13, 52 N.W.2d 574 (1952); Crane v. Loy, 436
S.W.2d 739 (Mo. 1968); Carnahan v. Cummings, 105 Neb. 337, 180 N.W. 558, 12 A.L.R. 1455 (1920);
Major v. Meyers, III S.W.2d 1184 (Tex. Civ. App. EI Paso 1937); McCormick v. Sorenson, 58 Wash.
107, 107 P. 1055 (1910); Schiro v. Oriental Realty Co., 272 Wis. 537, 76 N.W.2d 355, 73 A.L.R.2d
1368 (1956).
[FN3] Hagood v. Hensley, 371 So. 2d 421 (Ala. 1979); Peoples v. Hagaman, 31 Tenn. App. 398, 215
S.W.2d 827 (1948).
[FN4] Spradling v. May, 259 Ala. 10, 65 So. 2d 494 (1953); Swim v. Langland, 234 Iowa 46, II
N.W.2d 713 (1943).
rights reserved.
AMJUR ADVERSE § 57
END OF DOCUMENT
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Adverse Possession

§ 58. Agreement as to boundary line
West's Key Number Digest, Adverse Possession <£:=66(1), (2)
A,L.R. Library
Rights derived from use by adjoining owners for driveway, or other common purpose, of strip of land lying
over and along their boundary, 27 A.L.R. 2d 332 §§ 6 to 8.
If a boundary line is disputed, the adjacent landowners may establish a final and decisive boundary between
their lands by written or parol agreement.[l] If adjoining owners or claimants of land have orally agreed on a
boundary line for a sufficient length of time to warrant the inference of mutual assent, the line so fixed becomes
binding on the parties, even ifit is not the true line, and even if the statute of limitations has not run.[2]
While government subsection lines remain fixed and cannot be relocated by conduct of adjoining landown-
ers, a boundary line between adjacent landowners may be changed by adverse possession based on such coo-
duct.[3]
If adjoining landowners orally agree on a boundary line and each occupies up to its location, the possession
is presumed to be hostile on the part of the occupant who lacks title.[4]
[FNI] 12 Am. Jur. 2d, Boundaries §§ 75 et seq.
[FN2]12 Am. Jur. 2d, Boundaries §§ 77 et seq.
[FN3] Rutland v. Georgia Kraft Co., Inc., 387 So. 2d 836 (Ala. 1980).
[FN4] Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845 (1956).
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rights reserved.
AMJUR ADVERSE § 58
END OF DOCUMENT
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Adverse Possession

4. Possession under Mistake or [gnorance as to a Boundary
§ 59. Presence of a boundary fence
West's Key Number Digest, Adverse Possession €:=66(1), (2)
A.L.R. Library
Fence as factor in fixing location of boundary line-modem cases, 7 A.L.R. 4th 53.
If a fence is constructed as a boundary line fence between two properties, and if the parties concerned claim
ownership of the land to the fence during the statutory period without interruption in their possession or control
during that time, they will acquire title by adverse possession to any land that was improperly enclosed with or
added to the land they owned at the time the fence was constructed.[1] Long recognition and acquiescence by
adjoining landowners in a boundary fence raises a presumption that the land was held adversely up to the fence.[
2] However, the placement of a fence within one's boundary line does not lead to relinquishment of the lands
outside the fence, without an additional showing that those lands outside the fence have been used by the neigh·
boring landowner under a claim of ownership for the requisite period oftime.[3]
Ifthe fence was used as a boundary, it is immaterial who constructed it.[4]
[FNI] Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845 (1956); Konop v. Knobel, 167 Neb. 318, 92 N.W.2d
714 (1958).
Adverse possession was established because all the parties treated a rock wall, commonly used in the
locality as a boundary, as the boundary for 28 years and because the possessors used the strip of land as
part of their property as a pasture for farm animals and a garden, and picked flowers, cut trees, and used
a bam in the area for housing livestock. Nevin v. Smith, 283 Or. 347, 584 P.2d 251 (1978).
[FN2] Hobson v. Miller, 64 N.M. 215, 326 P.2d 1095 (1958); Hovendick v. Ruby, 10 P.3d 1119 (Wyo.
2000).
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[FN3] Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996).
[FN4] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954).
rights reserved.
AMJUR ADVERSE § 59
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Westlaw.

Adverse Possession

§ 60. Encroachment of a building or other structure
West's Key Number Digest, Adverse Possession €:=66(l), (2)
A.L.R. Library
Adverse possession based on encroachment of building or other structure, 2 A.L.R. 3d 1005 §§ 3, 4.
One who remains in continuous, open, and exclusive possession of a building or other structure of a per-
manent nature that encroaches beyond the boundary line, during the statutory period in which actions to recover
possession of real property may be maintained, acquires title by adverse possession to that portion of the adjoin·
ing property covered by the structure, even if it was erected in ignorance of the location of the true boundary
line, and supposedly on land rightfully owned by the builder.[I] However, an encroachment on land by permis-
sion of the owner cannot be held to have ripened into title if there was no evidence that the party responsible for
the encroachment gave notice at any time of a claim adverse to the owner.[2]
To acquire title by adverse possession by this means to a strip of adjoining property, the building or other
structure must be of a substantial and pennanent nature, sufficient to call the attention of the owner of record to
the encroachmenl.[3]
Although one may acquire title to that portion of an adjoining lot on which a building is erected and main-
tained for the statutory period, title is not obtained to that part of the adjoining lot not covered by the building,
such as a portion of a lot maintained as a lawn[4] or a portion of a lot that would have been covered had the
building been extended the full length of the 101.[5]
The claimant must occupy with the intent to claim title to all land covered by the encroachment to acquire
title by adverse possession.[6] If the improvements are located beyond what is supposed to be the true line, and
the party making them intends to claim only to the true line, to be thereafter ascertained, whenever and wherever
it might be located, the possession is not adverse.[7]

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[FNI] Rudolph v. Peters, 35 App. D.C. 438, Am. Ann. Cas. 1912A, 446 (App. D.C. 1910); Carter v.
Roberson, 214 Ark. 750, 217 S.W.2d 846 (1949); La Chance v. Rubashe, 301 Mass. 488, 17 N.E.2d 685
(1938); Romans v. Nadler, 217 Minn. 174, 14 N.W.2d 482 (1944); McDaniels v. Cutburth, 270 S.W.
353 (Mo. 1925); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920); State Bank & Trust of Ken-
mare v. Brekke, 1999 ND 212, 602 N.W.2d 681 (N.D. 1999); Moore v. Chapman, 1959 OK 185, 344
P.2d 1100 (Okla. 1959); McConmick v. Sorenson, 58 Wash. 107, 107 P. 1055 (1910); City of Rock
Springs v. Stunm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. I (1929); Scarcella v. Ascolese, 135 N.J. Eq.
283,38 A.2d 194 (Ch. 1944).
As to encroachment ripening into title by adverse possession, generally, see 1 Am. JUT. 2d, Adjoining
Landowners § 127.
[FN2] McClung v. Schulte, 214 Ga. 426, 105 S.E.2d 225 (1958); Independent School Dis!. No. 40,
Nowata County v. Allen, 1968 OK 141,446 P.2d 282 (Okla. 1968).
As to penmissive possession, see §§ 47 et seq.
[FN3] Edie v. Coleman, 235 Mo. App. 1289, 141 S.W.2d 238 (1940), cert. quashed, 348 Mo. 119, 152
S.W.2d 174 (1941); Morgan v. Jenson, 47 N.D. 137, 181 N.W. 89 (1921).
[FN4] McCarty v. Sheets, 423 N.E.2d 297 (Ind. 1981).
[FN5] Gloyd v. Franck, 248 Mo. 468, 154 S.W. 744 (1912); Scarcella v. Ascolese, 135 N.J. Eq. 283, 38
A.2d 194 (Ch. 1944).
[FN6] Janke v. McMahon, 21 Cal. App. 781, 133 P. 21 (3d Dis!. 1913); Boese v. Crane, 182 Kan. 777,
324 P.2d 188 (1958); Village of Red Jacket v. Pinton, 126 Mich. 194, 85 N.W. 567 (1901); Koch v.
Gordon, 231 Mo. 645,133 S.W. 609 (1910); Fuller v. Jackson, 62 S.W. 274 (Tenn. Ch. App. 1901).
[FN7] Diers v. Peterson, 290 Mo. 249, 234 S.W. 792 (1921); Edie v. Coleman, 235 Mo. App. 1289, 141
S.W.2d 238 (1940), cert. quashed, 348 Mo. 119, 152 S.W.2d 174 (1941).
rights reserved.
AMJUR ADVERSE § 60
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Adverse Possession

§ 61. Projection or inclination of a wall
West's Key Number Digest, Adverse Possession <C=66(1), (2)
A.L.R. Library
Adverse possession based on encroachment of building or other structure, 2 A.L.R. 3d 1005 §§ 5, 6.
It has been held that title to land by adverse possession may be based on the fact that the wall of a building
belonging to the one claiming by adverse possession leans over the land claimed by adverse possession.[I]
However, it has also been held that the mere tipping of a wall of a building so as to project into the airspace
above the adjoining lot does not interrupt the continuity of possession of the owner of the lot so as to bring it
within the provisions of the statute of limitations applicable to cases of persons not in possession.[2]
[FNI] Five Twelve Locust v. Mednikow, 270 S.W.2d 770 (Mo. 1954); De Rosa v. Spaziani, 142
N.Y.S.2d 839 (Sup 1955).
But see Baxter v. Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. lOll (1927), in which the court
denied the claim that title had been acquired by the leaning of the building over the adjoining land, on
the ground that the evidence did not establish with sufficient certainty that the building had leaned for
the full statutory period over a definite portion of the land claimed, saying that when the amount of land
claimed is so small, the rule of location of line is exacting, and possession for the statutory period must
be definitely shown.
[FN2] Kafka v. Bozio, 191 Cal. 746, 218 P. 753,29 A.L.R. 833 (1923).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslR1A. No Claim to Orig. U.S. Gov!. Works. All
rights reserved.
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AMJUR ADVERSE § 61
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AMJUR ADVERSE II E REF Page I
3 Am. JUL 2d Adverse Possession II E Refs.

Adverse Possession

E. Open, Notorious, and Visible Possession
Research References
West's Key Number Digest, Adverse Possession C=28 to 33
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 17, 19,23
rights reserved.
AMJUR ADVERSE n E REF

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Adverse Possession

§ 62. Generally; open, notorious, and visible possession
West's Key Number Digest, Adverse Possession C=28 to 30, 33
A.L.R. Library
A.L.R. 3d 818 §§ 9,15,19.
One of the requisites of adverse possession is that the possession of the adverse claimant must be open and
notorious.[I] The adverse possession of land must generally be visible to ripen into title.[2]
Cases:
Adverse possession is to be made out by acts which are open, visible, notorious and continuous; adverse
possession does not depend upon the secret purpose or intention of the intruder, or that he will return at his con-
venience, sooner or later, and reoccupy the land. MEA Family Investments, LP v. Adams, 284 Ga. 407, 667
S.E.2d 609 (2008).
Power company's use of landowners' property was open and notorious for 20 years, and thus power com-
pany had acquired a prescriptive easement in the property for underground power lines and transformers; the
landowners were living on a lot directly across the street from where the power company installed and main-
tained the underground line and transformers, the transformers were visible, and the opportunity to notice the
presence of the transfonners and inquire as to their purpose was imputed to the landowners. Taylor v. Montana
Power Co., 2002 MT 247,312 Mont. 134,58 P.3d 162 (2002).
It is the visible and adverse possession with an intent to possess that constitutes the occupancy's adverse
character, and not the remote motives or purposes of the occupant; this occupancy must be such as to give notice
to the real owner of the extent of the adverse claim. Evanich v. Bridge, 119 Ohio SI. 3d 260, 2008-0hio-3820,
893 N .E.2d 481 (2008).

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To succeed in acquiring title by adverse possession, the claimant must show exclusive possession that is
open, notorious, continuous, and adverse for 21 years. Evanich v. Bridge, 119 Ohio st. 3d 260, 2008-0hio-3820,
893 N.E.2d 481 (2008).
lEND OF SUPPLEMENTI
[FN1] McGuire v. Blount, 199 U.S. 142,26 S. Ct. 1,50 L. Ed. 125 (1905); Turnipseed v. Moseley, 248
Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687,
55 A.L.R.2d 549 (1955); Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952); Anneberg v.
Kurtz, 197 Ga. 188,28 S.E.2d 769, 152 A.L.R. 338 (1944); Walter v. Jones, 15 Ill. 2d 220, 154 N.E.2d
250 (1958); Marengo Cave Co. v. Ross, 212 Ind. 624,10 N.E.2d 917 (1937); Lawse v. Glaha, 253 Iowa
1040, 114 N.W.2d 900 (1962); Volkerding v. Brooks, 359 S.W.2d 736 (Mo. 1962); Frank v. Smith, 138
Neb. 382, 293 N.W. 329, 134 A.L.R. 458 (1940); Bowers v. Mitchell, 258 N.C. 80, 128 S.E.2d 6 (1962)
; Hassell v. Texaco, Inc., 1962 OK 136,372 P.2d 233 (Okla. 1962); Knecht v. Spake, 218 Or. 601, 346
P.2d 98 (1959); Baxter v. Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. 1011 (1927); Gibbs v.
Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931); Raleigh v. Wells, 29 Utah 217, 81 P.
908 (1905); Slater v. Murphy, 55 Wash. 2d 892, 339 P.2d 457 (1959).
As to the elements of adverse possession, generally, see § 10.
[FN2] Walter v. Jones, 15 ill. 2d 220,154 N.E.2d 250 (1958); Marengo Cave Co. v. Ross, 212 Ind. 624,
10 N.E.2d 917 (1937); Yatczak v. Cloon, 313 Mich. 584, 22 N.W.2d 112 (1946); Warner v. Noble, 286
Mich. 654, 282 N.W. 855 (1938); Meyer v. Chessman, 132 Mont. 187,315 P.2d 512 (1957); Kimble v.
Allen, 1956 OK 135,298 P.2d 1042 (Okla. 1956).
rights reserved.
AMJUR ADVERSE § 62
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Westlaw.

Adverse Possession

§ 63. What constitutes open and notorious possession
West's Key Number Digest, Adverse Possession €=>28 to 30, 33
It has been held that the words "open and notorious possession," as applied to the adverse holding of land by
another, mean that an adverse claim of ownership must be evidenced by such conduct as is sufficient to put a
person of ordinary prudence on notice of the fact that the land in question is held by the claimant as his or her
own,[I] including notice both to the record owner[2] and to the public.[3] Possession is visible if it is so obvious
that the true owner is presumed to know ofit.[4]
An adverse possessor's use of land must be sufficiently visible and open to the common observer that the
owner or an agent, on visiting the premises, might readily see that the owner's rights are being invaded.[5]
Practice Guide:
Notoriety, for purposes of establishing title by adverse possession, is not susceptible to a fixed standard, but
rather depends on the character of the land in question.[6] Thus, no particular act to establish an intention to
claim ownership of land by adverse possession is required to give notice to the world of the claim.[7]
A parol gift of land, when proven by clear and convincing evidence, establishes a presumption that the no-
toriety requirement of an adverse possession claim has been satisfied.[8]
Neither the mere possession of land[9] nor the making of vague assertions of the public that a possessor is
claiming the land[1 0] are sufficient to satisfy the requirement of open and notorious possession.
[FNI] Iowa R. Land Co. v. Blumer, 206 U.S. 482, 27 S. Ct. 769, 51 L. Ed. 1148 (1907); Strickland v.
Markos, 566 So. 2d 229 (Ala. 1990); Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920); Finn v. Al-
exander, 102 Kan. 607, 171 P. 602 (1918); Appalachian Regional Healthcare, Inc. v. Royal Crown Bot-
tling Co., Inc., 824 S.W.2d 878 (Ky. 1992); Bloodsworth v. Murray, 138 Md. 631, 114 A. 575, 22
A.L.R. 1450 (1921); Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996); Buttz v. James, 33 N.D.
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162,156 N.W. 547 (1915); Warner v. Wickizer, 1930 OK 419,146 Okla. 232, 294 P. 130 (1930); Faul-
coner v. Williams, 327 Or. 381, 964 P.2d 246 (1998); Estate of Klett v. Eboch, 430 Pa. Super. 193,633
A.2d 1204 (1993); Bender v. Brooks, 103 Tex. 329, 127 S.W. 168 (1910); Scott v. Hansen, 18 Utah 2d
303,422 P.2d 525 (1966); Jarvis v. Gillespie, 155 VI. 633, 587 A.2d 981 (1991); Downie v. City of
Renton, 167 Wash. 374, 9 P.2d 372 (1932); Bettack v. Conachen, 235 Wis. 559,294 N.W. 57 (1940).
[FN2] § 65.
[FN3] § 64.
[FN4] Calhoun v. Woods, 246 Va. 41, 431 S.E.2d285 (1993).
[FN5] Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Striefel v. Charles-
Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999); Hoffman v. Freeman Land and
Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999).
[FN6] Clanahan v. Morgan, 268 Ala. 71, 105 So. 2d 429 (1958); Vezey v. Green, 35 P.3d 14 (Alaska
2001); Appalachian Regional Heaithcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky.
1992).
[FN7] Carnevale v. Dupee, 783 A.2d 404 (R.t. 2001).
[FN9] Ruggles v. Dandison, 284 Mich. 338,279 N.W. 851 (1938); Morgan v. Jenson, 47 N.D. 137, 181
N.W. 89 (1921); Baxter v. Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. 1011 (1927).
[FN10] Rachel v. Johnson, 230 Ark. 1003,328 S.W.2d 87 (1959).
rights reserved.
AMJUR ADVERSE § 63
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Adverse Possession

§ 64. Notice to the public
It has been held that the possession of an adverse claimant must be so conspicuous that it is generally
known and talked of by the public; in other words, it must be manifest to the community.[I] However, it has
also been held that, because the notice requirement of establishing title by adverse possession pertains only to
the record owner, the adverse possessor's title does not directly depend on whether parties other than the record
owner are on notice of the adverse possession.[2]
[FNI] Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Public Lands Access Ass'n, Inc.
v. Boone and Crockett Club Foundation, Inc., 259 Mont. 279, 856 P.2d 525 (1993).
[FN2] Snook v. Bowers, 12 P.3d 771 (Alaska 2000).
rights reserved.
AMJUR ADVERSE § 64
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Adverse Possession

§ 65, Notice to the record owner
West's Key Number Digest, Adverse Possession <£;=31
A,L.R. Library
The purpose of the "open," II visible," and "notorious" requirements in a common law adverse possession ac-
tion is to provide the true owner with adequate notice that a trespass is occurring, and that the owner's property
rights are in jeopardy, so that the owner can take steps to protect his or her interests.[1) The doctrine of adverse
possession does not allow the possessors to mask their conduct and acquire the land by hiding their true inten-
tions from the owners of record.[2) Thus, it is the legal owner's knowledge, either actual or imputable, of anoth-
er's possession of lands that is required for adverse possession.[3] It is not a mere occupancy or possession that
must be known to the true owner to establish title by adverse possession, but an occupancy that is in opposition
to the owner's rights and in defiance of, or inconsistent with, legal title.[4)
Actual knowledge of an adverse holding is not ordinarily required if the circumstances are such that the
owner ought to have such knowledge;[5) open and notorious possession may be proven by acts so open and no-
torious that the owner's knowledge of them and of their adverse character may be presumed.[6) However, under
some statutes, actual knowledge is required, at least for some types of c1aims.[7)
The true owner is generally chargeable with knowledge of what is openly done, and therefore calculated to
attract attention, on the owner's land.[8) Thus, it will be presumed that the owner knew of a possession that was
openly, notoriously, and visibly maintained for the statutory period.[9)
Cases:
Prescriber must give some notice, actual or constructive, to land owner he intends to prescribe against. MEA
Family Investments, LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008).
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lEND OF SUPPLEMENT)
[FN I] Vezey v. Green, 35 P.3d 14 (Alaska 2001); Striefel v. Charles-Keyt-Leaman Partnership, 1999
ME Ill, 733 A.2d 984 (Me. 1999); Wanha v. Long, 255 Neb. 849, 587 N. W.2d 531 (1998).
[FN2] Martin v. Randono, 175 Mont. 321, 573 P.2d 1156(1978).
[FN3] Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Appalachian Regional Health-
care, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky. 1992); Trotter v. Gaddis and Mc-
Laurin, Inc., 452 So. 2d 453 (Miss. 1984); Buttz v. James, 33 N.D. 162, 156 N.W. 547 (1915); Bender
v. Brooks, 103 Tex. 329, 127 S.W. 168 (1910); Dillman v. Foster, 656 P.2d 974 (Utah 1982); Chaplin
v. Sanders, 100 Wash. 2d 853, 676 P.2d 431 (1984).
[FN4] Reinheimer v. Rhedans, 327 S.W.2d 823 (Mo. 1959); Darken v. Mooney, 144 Vt. 561, 481 A.2d
407 (1984).
[FN5] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Estate of Wells v. Estate of Smith, 576
A.2d 707 (D.C. 1990); Harrison v. Speer, 94 Fla. 937, 114 So. 515 (1927); Keng v. Franklin, 267 Ga.
472,480 S.E.2d 25 (1997); Estate of Mark v. H.H. Smith Co., 547 N.E.2d 796 (Ind. 1989); Yatczak v.
Cloon, 313 Mich. 584, 22 N.W.2d 112 (1946); Anthony v. Searle, 681 A.2d 892 (R.l. 1996).
[FN6] Emerson v. Maine Rural Missions Ass'n, Inc., 560 A.2d I (Me. 1989).
[FN7] Coleman v. Coleman, 265 Ga. 568, 459 S.E.2d 166 (1995); Johnson v. Kaster, 637 N.W.2d 174
(Iowa 200 I); Bums v. Foster, 348 Mich. 8, 81 N. W.2d 386 (1957).
[FN8] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954); Robin v. Brown, 308
Pa. 123, 162 A. 161 (1932).
[FN9] Strong v. Baldwin, 154 Cal. 150,97 P. 178 (1908); Carney v. Hennessey, 74 Conn. 107,49 A.
910 (1901); Leggett v. Norman, 192 Miss. 494, 6 So. 2d 578 (1942).
rights reserved.
AMJUR ADVERSE § 65
END OF DOCUMENT
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Westlaw

Adverse Possession

§ 66. Notice to the record owner-What constitutes notice to the owner
A.L.R. Library
Sporadic and temporary activity on the property is insufficient to give the true owner constructive notice of
an adverse claim.[l] An owner is not put on notice by occasional overnight visits,[2] occasional pasturing of
cows,[3] or casual haycutting.[4] Also, mere knowledge of the obvious fact of possession cannot be converted
into proof of knowledge that those in possession were claiming adversely.[5]
The fact that land appears to have been previously occupied is not notice to the owner of an existing intent
of the former occupant to appropriate the land if the appearances indicate an abandonment of any for that pur-
pose.[6]
To constitute constructive notice to the owner, the claimant's acts of possession must be such as to give un-
equivocal notice of a claim of the land adverse to the claims of all others and must be of such character and so
openly done that the real owner will be presumed to know that a possession adverse to the real title has been
taken.[7]
Although the enclosure of land renders the possession of land open and notorious, and tends to show that it
is exclusive, it is not the only way by which possession may be rendered open and notorious; nonenclosing im-
provements to land, such as erecting buildings or planting groves or trees, which show an intention to appropri-
ate the land to some useful purpose, are sufficient.[8]
The nature of an occupation may be sufficient to give notice of its adverse character to interested parties
who are strangers, and yet not be sufficient as to persons standing in more intimate relationship.[9] For example,
occupation of a family estate by one of the family is so usual that acts of occupation that would show hostile
possession as to strangers are not sufficient to show adverse holding as to relatives.[l 0]

Page 145 of 665

[FN I] La Due v. Currel1, 20 I Va. 200, 110 S.E.2d 217 (1959).
[FN2] Hardy v. Bumpstead, 41 S.W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
[FN3] Reeves v. Porta, 173 Or. 147, 144 P.2d 493 (1944).
[FN4] Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956).
[FN5] Mercer v. Wayman, 9 111. 2d 441, 137 N.E.2d 815 (1956).
[FN6] Hardy v. Bumpstead, 41 S. W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
[FN7] Vezey v. Green, 35 P.3d 14 (Alaska 2001); Boese v. Crane, 182 Kan. 777, 324 P.2d 188 (1958);
El1iott v. West, 665 S. W.2d 683 (Mo. Ct. App. S.D. 1984).
For the purposes of an adverse possession claim, enclosing the lots with the purported owners' other
property, and using the lots for purpose of raising cattle, was sufficient to indicate to the purchaser that
ownership adverse to him was being asserted, and to preclude his claim that the purported owners were
estopped by silence from pursuing their adverse possession claim. Krosmico v. Pettit, 1998 OK 90, 968
P.2d 345 (Okla. 1998).
An adverse claimant's conservation-oriented uses of the property, which included planting indigenous
rather than non-native plants and thinning trees and undergrowth rather than clearing them entirely, had
the same legal weight as would more transfonnative or destructive uses; they were significant to the ex-
tent that they did, or should have, alerted the record owner to the adverse possession. Vezey v. Green,
35 P.3d 14 (Alaska 2001).
[FN9] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
[FNIO] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
As to the presumption that a family member's use is pennissive, see § 49.
© 2010 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. Al1
rights reserved.
AMJUR ADVERSE § 66
END OF DOCUMENT
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AMJUR ADVERSE II F REF Page I
3 Am. Jur. 2d Adverse Possession II F Refs.

Adverse Possession

F. Exclusive Possession
Research References
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 20
Trial Strategy
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession § 63
rights reserved.
AMJUR ADVERSE II F REF
END OF DOCUMENT
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Adverse Possession

§ 67. Generally
West's Key Number Digest, Adverse Possession <£;=34, 38
A.L.R. Library
A.L.R. 3d 818 §§ 7,13.
Forms
Complaint, petltton, or declaration-Allegation-Exclusive possession. 1B Am. JUT. Pleading and Practice

To ripen into title, adverse possession must be exclusive[l] for the statutory period;[2] that is, the claimant
must hold possession of the land under a claim of ownership and not on behalf of another. [3]
"Exclusive possession" means that the claimant must show an exclusive dominion over the land and an ap-
propriation of it to his or her own use and benefit.[4]
Cases:
Evidence supported trial court's finding that neighbors failed to establish exclusive possession of disputed
tract of land on boundary, and thus neighbors could not establish title by adverse possession; evidence indicated
that both neighbors and owner of abutting lot maintained disputed tract, which contained row of forsythia
bushes, and lot owner testified that he maintained all sides of bushes, mowed lawn in front of and in between
bushes, removed overgrown bushes, and subsequently planted and cut grass where bushes had been. Chuckta v.
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Asija, 97 Conn. App. 232, 903 A.2d 243 (2006).
lEND OF SUPPLEMENTI
[FNI] Alice State Bank v. Houston Pasture Co., 247 U.S. 240, 38 S. Ct. 496, 62 L. Ed. 1096 (1918);
Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 ALR. 882 (1946); Register v. Coleman, 130
Ariz. 9, 633 P.2d 418 (1981); Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908
(1954); Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997); Walter v. Jones, 15 Ill. 2d
220, 154 N.E.2d 250 (1958); Shaw v. Bandel, 122 Kan. 343, 251 P. 1086 (1927); Bloodsworth v. Mur-
ray, 138 Md. 631, 114 A. 575, 22 A.L.R. 1450 (1921); Dead River Fishing & Hunting Club v. Stovall,
147 Miss. 385, I I3 So. 336 (1927); Grimes v. Armstrong, 304 S.W.2d 793 (Mo. 1957); Anderson v.
Johnson, 264 Mont. 66, 870 P.2d 59 (1994); Wanha v. Long, 255 Neb. 849, 587 N. W.2d 531 (1998);
Collins v. Smith, 1962 OK 128,372 P.2d 878 (Okla. 1962); W. T. Carter & Bro. v. Holmes, 131 Tex.
365,113 S.W.2d 1225 (Comm'n App. 1938); Slater v. Murphy, 55 Wash. 2d 892, 339 P.2d 457 (1959).
Landowners failed to establish exclusive possession of a disputed tract by virtue of their cattle grazing
on the land throughout the statutory period because it was not clear whether the cattle were purposely
placed on the land or whether they strayed onto it, and because another neighboring landowner's cattle
also grazed on the disputed land during the statutory period. Rutar Farms & Livestock, Inc. v. Fuss, 651
P.2d 1129 (Wyo. 1982).
[FN2] §§ 13 to 15.
[FN3] Brown v. Alabama Great Southern R. Co., 544 So. 2d 926 (Ala. 1989); Blickenstaff v. Bromley,
243 Md. 164,220 A.2d 558 (1966); Walker v. Walker, 509 S.W.2d 102 (Mo. 1974); Hehnke v. Starr,
158 Neb. 575, 64 N.W.2d 68 (1954); W. T. Carter & Bro. v. Holmes, 131 Tex. 365,113 S.W.2d 1225
(Comm'n App. 1938).
In a suit in which the plaintiffs claimed title to the disputed tract by adverse possession, there was some
evidence that the possession of the plaintiffs and their predecessors in interest was exclusive, although
the record title owners had executed oil and gas leases and possibly easements that covered the disputed
tract, because no lessee or grantee had ever actually entered the disputed premises under the record
owners' authority, and it was undisputed that no member of the record owner or predecessor's families
or any other person had ever entered upon the disputed tract. Fish v. Bannister, 759 S.W.2d 714 (Tex.
App. San Antonio 1988).
As to possession on behalf of another, see §§ 23, 24.
[FN4] Family Land & Inv. Co. v. Williams, 273 Ala. 273,138 So. 2d 696 (1961); Georgia Power Co. v.
Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997); Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917
(1937); Elliott v. West, 665 S.W.2d 683 (Mo. Ct. App. S.D. 1984); Collins v. Smith, 1962 OK 128,372
P.2d 878 (Okla. 1962); W. T. Carter & Bro. v. Holmes, 131 Tex. 365,113 S.W.2d 1225 (Comm'n App.
1938); Pioneer Investment & Trust Co. v. Board of Education of Salt Lake City, 35 Utah I, 99 P. 150
(1909).
Page 149 of 665

An adverse claimants' policy of corralling stray cattle belonging to others on land enclosed by the
claimants confirmed that their possession was exclusive. Fadem v. Kimball, 1979 OK CIV APP 40,612
P.2d 287 (Okla. C!. App. Div. I 1979).
In an action to quiet plaintiffs title to a parcel formed by accretion, a defendant who grazed cattle and
picked blueberries on the land failed to establish the exclusivity of possession requisite to title by ad-
verse possession because others grazed cattle on the land as well. Werner v. Brown, 44 Or. App. 319,
605 P.2d 1352 (1980).
rights reserved.
AMJUR ADVERSE § 67
END OF DOCUMENT
Page 150 of 665
Westlaw.

Adverse Possession

§ 68, Absolute exclusivity
West's Key Number Digest, Adverse Possession 0(;;=34
An adverse claimant's possession need not be absolutely exclusive; it need only be a type of possession that
would characterize an average owner's use.[l]
Cases:
Joint use of the property with the owner does not satisfy the adverse possession statute because possession
must be of such character as to indicate unmistakably an assertion of a c1aim of exclusive ownership in the occu-
pant. V.T.C.A., Civil Practice & Remedies Code § 16.021(1). Gulley v. Davis, 321 S.W.3d 213 (Tex. App. Hou-
ston 1st Dist. 20 I 0), petition for review filed, (Sept. 17, 20 10).
lEND OF SUPPLEMENTI
[FNI] Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996); Smith v. Hayden, 772 P.2d 47 (Colo.
1989); Smith v. Tippett, 569 A.2d 1186 (D.C. 1990); Georgia Power Co. v. Irvin, 267 Ga. 760, 482
S.E.2d 362 (1997); Blickenstaff v. Bromley, 243 Md. 164, 220 A.2d 558 (1966); Thornburg v. Haecker,
243 Neb. 693, 502 N.W.2d 434 (1993); Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994
P .2d 106 (1999).
rights reserved.
AMJUR ADVERSE § 68
END OF DOCUMENT
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Adverse Possession

§ 69, Ouster of the record owner
A.L.R. Library
A possession that does not amount to an ouster of the owner of land is not sufficiently exclusive to support
adverse possession[ I] because, in the absence of ouster, the owner of the legal title constructively possesses the
property.[2] Thus, an adverse possessor cannot share the disputed property with the true owner.[3]
[FNI] New York Annual Conference of United Methodist Church v. Fisher, 182 Conn. 272, 438 A.2d
62 (1980); Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983); Marengo Cave Co. v. Ross, 212 Ind.
624, 10 N.E.2d 917 (1937); Keller v. Harrison, 151 Iowa 320, 128 N.W. 851 (1910); Nichols v. Gaddis
& McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222 Miss. 207, 78 So. 2d 471
(1955) (cotenant); Collins v. Smith, 1962 OK 128, 372 P.2d 878 (Okla. 1962); Adams v. Lamicq, 118
Utah 209, 221 P.2d 1037 (1950); Wilson v. Braden, 56 W. Va. 372, 49 S.E. 409 (1904).
As to the ouster of a cotenant, see §§ 204 et seq.
[FN2] §27.
[FN3] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME 111,733 A.2d 984 (Me. 1999).
rights reserved.
AMJUR ADVERSE § 69
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END OF DOCUMENT
Page 153 of 665
Westi~w.

Adverse Possession

§ 70. Ouster of the record owner-What constitutes an ouster of the record owner
West's Key Number Digest, Adverse Possession €=>34, 37
To constitute an ouster of the record owner, it is generally only necessary that the adverse claimant enter
and take possession of the lands as if they were the claimant's own, and with the intention of holding them to the
exclusion of all others.[ I]
In determining what amounts to an ouster, that which is evidence of actual possession is also evidence of
ouster.[2] For example, one of the most effective means of proving an ouster is by showing the exercise of acts
of dominion over the land by the adverse claimant.[3]
To effect an ouster by entry and occupation, the occupation must be of such nature and notoriety that the
owner may be presumed to know that there is a possession of the land adverse to the owner's title.[4]
To amount to an ouster, it is not necessary that the claimant enter under color of title or either believe or as-
sert a right to enter.[5] On the other hand, setting up a mere claim or color of title is not sufficient to work an
ouster. [6]
[FNI] Thomas v. Mrkonich, 247 Minn. 481, 78 N.W.2d 386 (1956).
A plaintiff showed exclusive possession of the disputed land under a claim of ownership because the
tract, which was used as a dumping ground prior to possession by the plaintiff, was used for grazing
livestock after the plaintiffs possession, because the plaintiff posted the disputed tract and closed it to
dumping, and because the plaintiff maintained a fence on one side of the tract. Wiedeman v. James E.
Simon Co., Inc., 209 Neb. 189,307 N.W.2d 105 (1981).
[FN2] Hahn v. Keith, 170 Wis. 524,174 N.W. 551 (1919).
As to actual possession, generally, see §§ 16 et seq.
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[FN3] O'Banion v. Simpson, 44 Nev. 188, 191 P. 1083 (1920).
[FN4] Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996); Town of Cavendish v. Barlow, 120 Vt.
161,136 A.2d 352 (1957); Leake v. Richardson, 199 Va. 967,103 S.E.2d 227 (1958).
[FN5] Thomas v. Mrkonich, 247 Minn. 481, 78 N.W.2d 386 (1956).
As to color of title and claim of right, generally, see §§ 130 et seq.
[FN6] Leake v. Richardson, 199 Va. 967,103 S.E.2d 227 (1958).
rights reserved.
AMJUR ADVERSE § 70
END OF DOCUMENT
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Adverse Possession

§ 71. Effect of possession or use by two or more persons
West's Key Number Digest, Adverse Possession <£;:=35, 36
There cannot be a concurrent possession of land under conflicting claims of right.[ I] Thus, two or more per-
sons cannot hold one tract of land adversely to each other at the same time,[2] and a mixed, shared, or scrambled
possession is not exclusive and will not ripen into title.[3] If two or more persons are in possession of real estate,
ordinarily none has the exclusive possession necessary to establish adverse possession.[4] More specifically, the
requisite of exclusive possession for acquisition of title by adverse possession is not satisfied if occupancy is
shared with the owner or with agents or tenants of the owner.[5]
However, two or more persons may jointly claim and may jointly possess lands without destroying the ex-
clusive nature of their possession. [6]
Caution:
A trifling encroachment or trespass by an adjoining owner on land held adversely, removed or terminated at the
request of the adverse claimant under recognition of his claim and title, is not sufficient basis for holding that
the adverse claimant's possession has not been exclusive during the statutory period.[7]
[FNI] Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983); Sneed v. Hamilton, 299 S.W.2d 769 (Tex.
Civ. App. Beaumont 1957).
[FN2] Dzuris v. Kucharik, 164 Colo. 278, 434 P.2d 414 (1967) (record owner's flooding of land held to
prevent acquisition by the adjoining landowner); Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d
917 (1937); Ernest Realty Co. v. Hunter Co., 189 La. 379, 179 So. 460 (1938); Gilman v. McCrary, 97
N.M. 376, 640 P.2d 482 (1982); Howard v. Stanolind Oil & Gas Co., 1946 OK 56, 197 Okla. 269, 169
P.2d 737 (1946); Sneed v. Hamilton, 299 S.W.2d 769 (Tex. Civ. App. Beaumont 1957).
[FN3] Collins v. Smith, 1962 OK 128,372 P.2d 878 (Okla. 1962).
Page 156 of 665

In a dispute over real property suitable only for trapping and hunting, in which both parties had exer-
cised acts of possession and neither party had been in exclusive control of the property, title to the prop-
erty could not be acquired by prescription. Voisin v. Luke, 341 So. 2d 6 (La. C!. App. 1st Cir. 1976),
writ denied, 342 So. 2d 224 (La. 1977).
[FN4] Eason v. Samson Lodge No. 624, A.F. & A.M., 270 Ala. 194, 117 So. 2d 138 (1959); Gadd v.
Stone, 459 So. 2d 773 (Miss. 1984); Cofer v. Kuhlmann, 214 Neb. 341, 333 N.W.2d 905 (1983);
Humphreys v. Gribble, 227 S.W.2d 235 (Tex. Civ. App. Waco 1950), writ refused n.r.e., (Apr. 19,
1950); Sowerwine v. Nielson, 671 P.2d 295 (Wyo. 1983).
[FN5] Irving Pulp & Paper Ltd. v. Kelly, 654 A.2d 416 (Me. 1995); Wanha v. Long, 255 Neb. 849, 587
N.W.2d 531 (1998); Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925 (1948).
A landowner who claimed title to a disputed strip of land through adverse possession failed to prove
that he had been in exclusive possession of the disputed area for ten years; the evidence indicated that
both parties had repeatedly cut timber on the disputed strip over the years. Dees v. Pennington, 561 So.
2d 1065 (Ala. 1990).
[FN6] Anzaldua v. Richardson, 287 S. W.2d 299 (Tex. Civ. App. San Antonio 1956), writ refused n.r.e;
Bank of Vema I v. Uintah County, 122 Utah 410, 250 P.2d 581 (1952).
[FN7] Pueblo of Santa Ana v. Baca, 844 F.2d 708 (10th Cir. 1988) (applying New Mexico law); Smith
v. Hayden, 772 P.2d 47 (Colo. 1989); City of Rock Springs v. Stunn, 39 Wyo. 494, 273 P. 908, 97
A.L.R. I (1929).
The fact that cattle from neighboring fanns occasionally found their way to an area claimed by adverse
possession did not render the possession nonadverse. Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80
A.L.R.2d 1161 (1960).
rights reserved.
AMJUR ADVERSE § 71
END OF DOCUMENT
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Adverse Possession

§ 72. Effect of use by claimant and the public
A,L.R. Library
Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R. 3d 1182 §§ 3, 5.
Trial Strategy
Proof of right to title by adverse possession despite use of land by public. Acquisition of Title to Property
by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261 §§ 50 et seq.
As a general rule, any use of premises by the public that indicates a claim of common or public right will
prevent the acquisition of title by adverse possession of the premises by any person, because if there is such use,
the possession is not exc1usive.[ I] This rule does not apply, however, if the use and occupation by the claimant
and the public are not common uses.[2] Also, the permissive use of land by the public does not affect the acquis-
ition of title by adverse possession, because such pennissive use acknowledges the possession of the person
holding the land, and is subordinate to that possession.[3] The same is true of casual use by the pUblic.[4]
Cases:
Evidence was sufficient to establish that public travel and use of road was open and notorious for ten con-
secutive years, in landowners' quiet title action in which county road commission and township asserted that
two-track road bordering landowners' property was a highway by user; though "road closed," "dead end" and "no
trespassing" signs had been posted on disputed portion of road for about 50 years, prior owner of one of the
properties testified that he saw people use disputed portion of road for hunting, horseback riding, snowmobiling
and bog running and that when he farmed property people would use road to purchase grain, hay and calves,
there was evidence that members of the public used the road in spite of the signs, and individual who served as
road commission's assistant superintendent and then superintendent for almost 20 years testified that he drove

Page 158 of 665

and inspected disputed portion of road every year as part of his duties. M.C.L.A. § 221.20. Villadsen v. Mason
County Road Com'n, 268 Mich. App. 287, 706 N.W.2d 897 (2005).
[FNI] Roche v. Town of Fairfield, 186 Conn. 490, 442 A.2d 911 (1982); Striefel v. Charles-
Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999); Johnston v. City of Albuquerque,
12 N.M. 20, 72 P. 9 (1903); Pirman v. Confer, 273 N.Y. 357, 7 N.E.2d 262, III A.L.R. 216 (1937);
Kelleyv. Salvas, 146 Wis. 543,131 N.W.436(1911).
Because some 500 hunters used an island and the defendant only used it for recreational purposes, the
defendant could not claim adverse possession. Winkle v. Mitera, 195 Neb. 821, 241 N.W.2d 329 (1976).
[FN2] Bensdorffv. Uihlein, 132 Tenn. 193, 177 S.W. 481, 2 A.L.R. 1364 (1915).
The fact that trespassers may occasionally have hunted or fished on the property without permission
was not sufficient to interrupt the adverse possession of disputed property by a claimant who farmed the
property. Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993).
[FN3] Bensdorffv. Uihlein, 132 Tenn. 193, 177 S.W. 481, 2 A.L.R. 1364 (1915).
[FN4] Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969); Stark v. Stanhope,
206 Kan. 428, 480 P.2d 72, 56 A.L.R.3d 1172 (1971).
rights reserved.
AMJUR ADVERSE § 72
END OF DOCUMENT
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AMJUR ADVERSE II G REF Page I
3 Am. Jur. 2d Adverse Possession II G Refs.

Adverse Possession

G. Continuity of Possession
Research References
West's Key Number Digest, Adverse Possession C=43 to 45, 46.1 to 53, 55
A.L.R. Library
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 261
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 45, 46, 49, 50
rights reserved.
AMJUR ADVERSE II G REF
END OF DOCUMENT
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Adverse Possession

1. In General
§ 73. Generally
West's Key Number Digest, Adverse Possession <£;=44
A.L.R. Library
A.L.R. 3d 818 §§ 8,14.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § I I.
For adverse possession of real property to ripen into title, it is necessary to show that the possession has
been continuous and uninterrupted for the full statutory period.[I] Title cannot be acquired without the simultan-
eous and continuous existence of each element of adverse possession for the required period.[2] The moment the
possession is broken, it ceases to be effectual; as soon and as often as a break occurs, the law restores the con-
structive possession of the owner.[3]
Different and distinct periods of possession cannot be added together to make up the statutory period,[4] al-
though successive occupations of those in privity with each other may be tacked together to make the statutory
period.[5]
The statutory period of adverse possession need not be for the prescribed number of years immediately be-
fore suit is brought.[6] This is consistent with the rule that, after expiration of the statutory period, the adverse
claimant has a vested right or title that is not lost by cessation of occupancy of the land. [7]
[FNI] Iowa R. Land Co. v. Blumer, 206 U.S. 482, 27 S. Cl. 769, 51 L. Ed. 1148 (1907); Faulks v.
Schrider, 114 F.2d 587 (App. D.C. 1940); Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170
Page 161 of665

A.L.R. 882 (1946); Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687, 55 A.L.R.2d 549 (1955); Sea-
board Air Line Ry. Co. v. Board of Bond Trustees of Special Road and Bridge Dis!. No. I of Alachua
County, 91 Fla. 612, 108 So. 689, 46 A.L.R. 870 (1926); Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d
769, 152 A.L.R. 338 (1944); Walter v. Jones, 15 Ill. 2d 220, 154 N.E.2d 250 (1958); Philbin v. Carr, 75
Ind. App. 560, 129 N.E. 19 (1920); Meyers v. Canutt, 242 Iowa 692, 46 N.W.2d 72, 24 A.L.R.2d I
(1951); Creech v. Jenkins, 276 Ky. 163, 123 S.W.2d 267 (1938); Bloodsworth v. Murray, 138 Md. 631,
114 A. 575,22 A.L.R. 1450 (1921); Miller v. Martin, 259 Minn. 177, 106 N.W.2d 549 (1960); Volkerd-
ing v. Brooks, 359 S.W.2d 736 (Mo. 1962); Scott v. Jardine Gold Min. & Mill. Co., 79 Mont. 485, 257
P. 406 (1927); Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984); Bowers v. Mitchell, 258 N.C. 80,
128 S.E.2d 6 (1962); Anderson v. Francis, 1936 OK 312, 177 Okla. 47, 57 P.2d 619 (1936); Baxter v.
Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. lOll (1927); Atlantic Coast Line R. Co. v. Baker,
143 S.c. 445, 141 S.E. 688 (1927); Hardy v. Bumpstead, 41 S.W.2d 226, 76 A.L.R. 1488 (Tex.
Comm'n App. 1931); Calhoun v. Woods, 246 Va. 41, 431 S.E.2d 285 (1993); Slater v. Murphy, 55
Wash. 2d 892, 339 P.2d 457 (1959); Illinois Steel Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
[FN2] Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d 313 (1994).
[FN3] McBeth v. Wetnight, 57 Ind. App. 47, 106 N.E. 407 (Div. 1 1914); Atlantic Coast Line R. Co. v.
Baker, 143 S.C. 445,141 S.E. 688 (1927); Wilson v. Braden, 56 W. Va. 372, 49 S.E. 409 (1904).
As to interruption of possession, see §§ 88 et seq.
As to constructive possession of the record owner, see § 27.
[FN4] Creech v. Jenkins, 276 Ky. 163, 123 S.W.2d 267 (1938).
[FN5] §§ 76 et seq.
[FN6] Moore v. Hoffman, 327 Mo. 852, 39 S. W.2d 339, 75 A.L.R. 135 (1931)
[FN7] § 249.
rights reserved.
AMJUR ADVERSE § 73
END OF DOCUMENT
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Westlaw

Adverse Possession

I. In General
§ 74. What constitutes continuity of possession
A.L.R. Library
The term ncontinuous, n in the context of adverse possession, means a possession for the statutory period that
is uninterrupted or stretches on without a break.[I] Because what constitutes continuity of possession must ne-
cessarily depend largely on the circumstances of each case, the circumstances and situation of the possessor, and
particularly the intention of the possessor, must be considered in determining continuity.[2] The law does not re-
quire that the claimant remain continuously on the land, and perform acts of ownership from day to day on it, to
acquire title by adverse possession.[3] The claimant's possession and its continuity is sufficient if by acts and
conduct it is apparent to persons of ordinary prudence that the claimant is asserting and exercising ownership
over the property; and for this purpose it is necessary to take into consideration the nature, character, and loca-
tion of the property and the uses for which it is fitted or to which it has been put.[4]
Observation:
It is important to bear in mind that possession is not to be confused with residence.[5] The important considera-
tion is whether or not the physical use of the property by the claimant or a representative, the erection of struc-
tures, or the keeping of personal property on it demonstrates that the claimant is asserting dominion over the
property.[6] To establish title to land by adverse possession, the claimant need not show occupancy of the land
continuously unless that is the kind of use that would be expected of such land.[7]
The existence of fences and other visible indications of hosti1e claims is taken into consideration in detenn-
ining whether, in a given case, adverse possession has been continuous. if the land is enclosed, the courts seem
not to insist that other acts of possession be shown clearly to have been continuous.[8]
Because the purpose of the requirements for adverse possession is to put the true owner on notice of the ad-
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verse possessor's ciaim,[9] to establish an adverse possession claim, the continuity of possession must be suffi-
cient to signal to the true owner that a claim of title contrary to his or her own is being asserted.[10]
Cases:
Evidence that claimant added a second story to home, planted grass and bushes, and hired a maintenance
worker to mow supported inference that claimant's possession of disputed property under color of title extended
over required seven-year period, satistying requirement that adverse possession be continuous, where there was
no evidence indicating that claimant ceased occupying property for any amount of time during required period.
West's N.C.G.S.A. § 1-38. McManus v. Kluttz, 165 N.C. App. 564, 599 S.E.2d 438 (2004).
lEND OF SUPPLEMENTI
[FN I] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999); Green-
walt Family Trust v. Kehler, 267 Mont. 508, 885 P.2d 421 (1994); Wanha v. Long, 255 Neb. 849, 587
N.W.2d 531 (1998).
[FN2] Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921); N.A.S. Holdings, Inc. v.
Pafundi, 169 Vt. 437, 736 A.2d 780 (1999), cett. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d
672 (2000).
[FN3] Limbaugh v. Richardson, 402 So. 2d 957 (Ala. 1981); Jones v. Schmidt, 170 Neb. 351, 102
N.W.2d 640 (1960); Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666
N.E.2d 532 (1996).
[FN4] Vezey v. Green, 35 P.3d 14 (Alaska 2001); Thompson v. Morris, 218 Ark. 542, 237 S.W.2d 473,
24 A.L.R.2d 627 (1951); Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921); McBeth
v. Wetnight, 57 Ind. App. 47, 106 N.E. 407 (Div. I 1914); Striefel v. CharIes-Keyt-Leaman Partnership,
1999 ME 111,733 A.2d 984 (Me. 1999); Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981); Ray
v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666 N.E.2d 532 (1996); Smith
v. Southern Ry.-Carolina Division, 237 S.c. 597, 118 S.E.2d 440 (1961).
[FN5] § 31.
[FN6] Thompson v. Ratcliff, 245 S.W.2d 592 (Ky. 1952).
[FN7] Allison v. Shepherd, 285 Or. 447, 591 P.2d 735 (1979).
[FN8] Faulks v. Schrider, 114 F.2d 587 (App. D.C. 1940); Kay v. Biggs, 13 Ariz. App. 172,475 P.2d I
(Div. I 1970).
As to enclosure as showing dominion over the land, see §§ 36 to 40.
[FN9] Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996).
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[FN I 0] Anthony v. Searle, 681 A.2d 892 (R.l. 1996).
rights reserved.
AMJUR ADVERSE § 74
END OF DOCUMENT
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Westlaw.

Adverse Possession

1. In General
§ 75. What constitutes continuity of possession-Occasional acts; seasonal activities
West's Key Number Digest, Adverse Possession <£:=44, 45, 46.1
A.L.R. Library
Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R. 3d 1182 § 4.
A.L.R. 3d 818 § 18.
Adverse possession: sufficiency, as regards continuity, of seasonal possession other than for agricultural or
logging purposes, 24 A.L.R. 2d 632 §§ 4, 5 (seasonal hunting and fishing).
Occasional and sporadic acts of dominion are generally insufficient to constitute a continuous possession,
even if they are extended over the statutory period.[I] Thus, the occasional use of land for hunting or fishing is
an insufficient basis for a claim by adverse possession.[2] The requirement of continuity of possession is satis-
fied, however, by activities that are seasonal in character, if the use of land commensurate with and appropriate
to existing seasonal uses, needs, requirements, and limitations, having regard for the location and adaptability of
the land.[3] Although woodlands are usually occupied in the literal sense only during periods of harvesting the
timber, they may be subject to continuous possession within legal contemplation over periods of time during the
intervals between cuttings.[4]
The regular use of property as a summer home, and for recreation purposes during summers, is a sufficient
basis for a claim of adverse possession.[5] Also, if the continuous use of land that is the subject of an adverse
possession claim is premised upon the grazing of livestock, the requisite continuity may be established by show-
ing continuous use during the pasturing season.[6]
Cases:
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Owner's recreational use of the boat ramp that was on disputed piece of property did not interrupt the run-
ning of the statutory period for adverse possession; the use had none of the characteristics of maintenance, up-
keep, and improvement of land that evinced possession, but rather, use of the boat ramp was more akin to the
occasional, recreational use that was insufficient to establish possession. Senez v. Collins, 182 Md. App. 300,
957 A.2d 1057 (2008).
lEND OF SUPPLEMENT]
[FNI] Hagan v. Crowley, 265 Ala. 291, 90 So. 2d 760 (1956); Ennis v. Stanley, 346 Mich. 296, 78
N.W.2d 114 (1956); Norman v. Smedley, 1961 OK 143, 363 P.2d 839 (Okla. 1961); Westover Volun-
teer Fire Dept. v. Barker, 142 W. Va. 404, 95 S.E.2d 807 (1956).
In an action to recover possession of a paved tract of land being used by an adjacent landowner for
parking, the adjacent landowner could not demonstrate a continuous and uninterrupted use of land for
the full statutory period because the land had been paved for only five years, and before that the land
was unusable for parking except in dry weather. Also, during the dry periods, the use by the adjacent
landowner was not continuous. Baur v. Chevron Chemical Co., 631 F. Supp. 1491 (E.D. Mo. 1986)
(applying Missouri law).
The evidence failed to establish adverse possession because the claimant and the claimant's predecessor
in interest had made only infrequent visits to the property to pick and gather fruits, thus precluding a
finding of continuous possession. Okuna v. Nakahuna, 60 Haw. 650, 594 P.2d 128 (1979).
[FN2] W. T. Carter & Brother v. Ruth, 275 S.W.2d 126 (Tex. Civ. App. Beaumont 1955).
[FN3] Thompson v. Morris, 218 Ark. 542,237 S.W.2d 473, 24 A.L.R.2d 627 (1951); Roche v. Town of
Fairfield, 186 Conn. 490, 442 A.2d 911 (1982); Lee v. Raymond, 456 A.2d 1179 (R.l. 1983); Burkhardt
v. Smith, 17 Wis. 2d 132, lIS N.W.2d 540 (1962).
A town acquired title to a beach by adverse possession because for the requisite period it maintained the
area as a public beach on a daily basis from Memorial Day to Labor Day and on weekends in Septem-
ber. Roche v. Town of Fairfield, 186 Conn. 490, 442 A.2d 911 (1982).
A trial court's findings of adverse use for the statutory period were not clearly erroneous because the
defendants had placed steel pipes in the ground to mark the boundaries of a hunting camp and from
1947 to 1969 used the camp each year for hunting and general recreation with children and friends.
Darling v. Ennis, 138 Vt. 311,415 A.2d 228 (1980).
As to seasonal breaks in continuity not constituting interruption of possession of adverse claimant, see § 90.
[FN4) Amey v. Hall, 123 Vt. 62,181 A.2d 69 (1962).
[FN5] Kay v. Biggs, 13 Ariz. App. 172,475 P.2d I (Div. I 1970); Mahoney v. Heebner, 343 Mass. 770,
178 N.E.2d 26 (1961); Nechtow v. Brown, 369 Mich. 460, 120 N.W.2d 251 (1963); Lee v. Raymond,
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456 A.2d 1179 (R.!. 1983); Burkhardt v. Smith, 17 Wis. 2d 132, 115 N. W.2d 540 (1962).
[FN6] Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999).
rights reserved.
AMJUR ADVERSE § 75
END OF DOCUMENT
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Westlaw,

Adverse Possession

2. Tacking of Successive Possessions
a. In General
§ 76. Generally
West's Key Number Digest, Adverse Possession <E>43(l)
A. L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § II (under parol gift).
Forms
Answer-Oefense-Tacking prior possession. 18 Am. JUT. Pleading and Practice Forms, Adverse Posses-
sion §§ 45, 46.
Instruction to jury~Period of adverse possession~Tacking prior possession. I BAm. Jur. Pleading and
The doctrine of "tacking" is one that permits an adverse possessor to add his or her period of possession to
that of a prior adverse possessor to establish continuous possession for the statutory period.[ I] Under this doc-
trine, to come within the requirements as to continuity of possession, it is not necessary that an adverse posses-
sion be maintained for the statutory period by one person.[2] Continuity may be just as effectively shown by the
successive possessions of several persons between whom the requisite privity exists.[3] If the successive posses-
sions of those in privity with each other, when tacked together, constitute one continuous adverse possession for
the statutory period, it will be sufficient,[4] provided the other elements of adverse possession are also present.[5]
However, periods of adverse occupancy by parties in privity to one another cannot be tacked together if
there is an abandonment of possession or other interruption automatically returning possession of the premises
to the record owner between the periods of adverse occupancy.[6]
If the applicable statute requires the payment of taxes on land before title may be acquired by adverse pos-
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session, a prior possession cannot be tacked onto a present possession to make out the statutory period unless the
prior possessor paid the taxes.[7]
Caution:
Under some statutes, a claim by adverse possession cannot prevail by tacking on possession by predecessors in
title to the claimant.[8] Under other statutes, tacking is allowed only if the change in possession occurs by opera-
tion oflaw.[9]
[FN I] Strickland v. Markos, 566 So. 2d 229 (Ala. 1990); Hubbard v. Curtiss, 684 P.2d 842 (Alaska
1984); Bartlett v. Calhoun, 412 So. 2d 597 (La. 1982); Worm v. Crowell, 165 Neb. 713, 87 N.W.2d 384
(1958); Fagan v. Grady, 101 N.H. 18, 131 A.2d 441 (1957); Oliphant v. Dalton, 1956 OK 316, 304 P.2d
300 (Okla. 1956); Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138
(S.D. 1993); Salt Lake City v. Silver Fork Pipeline Corp., 2000 UT 3, 5 P.3d 1206 (Utah 2000); Meyer
v. Ellis, 411 P.2d 338 (Wyo. 1966).
[FN2] Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Shingleton v. North Carolina Wildlife
Resources Commission, 248 N.C. 89, 102 S.E.2d 402 (1958); Du Val v. Miller, 208 Or. 176,300 P.2d
416 (1956); Dale v. Stringer, 570 S.W.2d 414 (Tex. Civ. App. Texarkana 1978), writ refused n.r.e.,
(Dec. 13, 1978).
[FN3] Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Cooper v. Tarpley, 112 Ind. App. 1,41
N.E.2d 640 (1942); Howard v. Mitchell, 268 Ky. 429, 105 S.W.2d 128 (1936); Fredericksen v. Henke,
167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Worm v. Crowell, 165 Neb. 713, 87 N.W.2d 384
(1958); Shingleton v. North Carolina Wildlife Resources Commission, 248 N.C. 89, 102 S.E.2d 402
(1958); Buckner v. Russell, 1958 OK 237, 331 P.2d 401 (Okla. 1958); Faulconer v. Williams, 327 Or.
381,964 P.2d 246 (1998); Stark v. Lardin, 133 Pa. Super. 96, I A.2d 784 (1938); Carnevale v. Dupee,
783 A.2d 404 (R.1. 2001).
As to the necessity of privity, see § 78.
[FN4] Waller v. Dansby, 145 Ark. 306, 224 S.W. 615 (1920); Territory v. Pai-a, 34 Haw. 722, 1938
WL 6825 (1938); Smith v. Brown, 126 Ind. App. 545, 134 N.E.2d 823 (1956); Shingleton v. North Car-
olina Wildlife Resources Commission, 248 N.C. 89, 102 S.E.2d 402 (1958); Ellis v. Williams, 1956 OK
163,297 P.2d 916 (Okla. 1956); Du Val v. Miller, 208 Or. 176,300 P.2d 416 (1956); Baylor v. Soska,
540 Pa. 435, 658 A.2d 743 (1995); Sutton v. Clark, 59 S.C. 440, 38 S.E. 150 (190 I).
[FN5] Emmer v. Rector, 175 La. 82, 143 So. 11 (1932); Du Val v. Miller, 208 Or. 176,300 P.2d 416
(1956); Dale v. Stringer, 570 S.W.2d 414 (Tex. Civ. App. Texarkana 1978), writ refused n.r.e., (Dec.
13, 1978).
[FN6] Kellum v. Corr, 149 A.D. 200, 133 N.Y.S. 784 (2d Dep't 1912), affd, 209 N.Y. 486, 103 N.E.
70 I (1913); Du Val v. Miller, 208 Or. 176,300 P.2d 416 (1956).
[FN7] Judd v. Meoska, 76 S.D. 537, 82 N.W.2d 283 (1957).

Page 170 of 665

As to statutory requirements for payment of taxes, see §§ 148 et seq.
[FN8] Cochran v. Milligan, 359 Mich. 148, 101 N.W.2d 292 (1960).
[FN9] Catawba Indian Tribe of South Carolina v. State of S.c., 978 F.2d 1334 (4th Cir. 1992) (applying
South Carolina law).
© 2010 Thomson Reuters. 33-348 © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. Gov!. Works. All
rights reserved.
AMJUR ADVERSE § 76
END OF DOCUMENT
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Westlaw

Adverse Possession

a. In General
§ 77. Necessity of adverse holding by the predecessor
West's Key Number Digest, Adverse Possession oC=43(1), (2)
A claimant cannot tack or link his or her possession of the premises with that of other persons to support the
claim of adverse possession in the absence of proof of an adverse holding and occupancy on the part of the pre-
decessor;[ I] and in some jurisdictions, the predecessor must have held under color or claim of title.[2] Thus, if it
is shown that a predecessor in title held the land by permission or had abandoned every intention of holding it
adversely, the predecessor's possession cannot be tacked onto that of the successor.[3]
[FNI] Archuleta v. Rose, 136 Colo. 211, 315 P.2d 201 (1957); Marquis v. Drost, 155 Conn. 327, 231
A.2d 527 (1967); Kinder v. Ramey, 267 Ky. 312, 102 S.W.2d 32 (1937); Maas v. Platte Val. Public
Power and Irr. Disl., 167 Neb. 124,91 N.W.2d 409 (1958); McGee v. Stokes' Heirs at Law, 76 N.W.2d
145 (N.D. 1956); Norman v. Smedley, 1961 OK 143, 363 P.2d 839 (Okla. 1961); Ellis v. Jansing, 620
S.W.2d 569 (Tex. 1981); Laird Properties New England Land Syndicate v. Mad River Corp., 131 VI.
268,305 A.2d 562 (1973); Perpignani v. Vonasek, 139 Wis. 2d 695, 408 N. W.2d I (1987).
As to adverse holding or occupancy, generally, see §§ 41 et seq.
[FN2] Raby v. Hill, 11 Alaska 600, 1948 WL 777 (Terr. Alaska 1948).
As to color or claim of title, generally, see §§ 130 et seq.
[FN3] SI. Louis Union Trust Co. v. Smith, 207 Ark. 815, 182 S.W.2d 945 (1944); Masters v. Local Uni-
on No. 472, United Mine Workers of America, of South Fork, 146 Pa. Super. 143,22 A.2d 70 (1941).
As to permissive possession, generally, see §§ 47 et seq.

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AMJUR ADVERSE § 77 PageZ

rights reserved.
AMJUR ADVERSE § 77
END OF DOCUMENT

Page 173 of 665
Westlaw

Adverse Possession

a. In General
§ 78. Necessity of privity
West's Key Number Digest, Adverse Possession 0(:;=43(3)
Forms
Instruction to jury-Period of adverse possession-Tacking prior possession-Necessity of deed. 1BAm.

To tack one person's possession to that of another for purposes of adverse possession, a nexus or pnvlty
between the successive claimants is necessary.[I] Thus, successive possessions cannot be tacked for the purpose
of showing a continuous adverse possession in the absence of privity of estate or a connection between the suc-
cessive occupants.[2]
Caution:
Because the required privity is privity of possession, it is the transfer of possession, and not title, that is the es-
sential element.[3]
The requirement of privity is based on the theory that the several occupancies must be so connected that
each occupant can go back to the original entry or holding as a source of title; the successive occupants must
claim through and under their predecessors, and not independently, to make a continuous holding united into one
ground of action.[4] The law restores the possession of the rightful owner on every discontinuance of the posses-
sion of one who holds adversely to the rightful owner.[5]
[FN I] Strickland v. Markos, 566 So. 2d 229 (Ala. 1990); Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d
900 (1948); Maas v. Platte Val. Public Power and lrr. Dist., 167 Neb. 124, 91 N.W.2d 409 (1958);
Evans v. Hogue, 296 Or. 745, 681 P.2d 1133 (1984); Perpignani v. Vonasek, 139 Wis. 2d 695, 408
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N.W.2d I (1987).
[FN2] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Merritt v. Smith, 35
So. 2d 817 (La. Ct. App. 2d Cir. 1948); Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028 (1901);
Bums v. Crump, 245 N.C. 360, 95 S.E.2d 906 (1957).
[FN3] Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953); Dale v. Stringer, 570 S.W.2d 414 (Tex.
Civ. App. Texarkana 1978), writ refused n.r.e., (Dec. 13, 1978) (requiring privity of possession but not
of title); Brown v. Gobble, 196 W. Va. 559,474 S.E.2d 489 (1996); Brown v. Gobble, 196 W. Va. 559,
474 S.E.2d 489 (1996).
[FN4] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Maas v. Platte Val. Public Power and
Irr. Dist., 167 Neb. 124,91 N.W.2d 409 (1958); Masters v. Local Union No. 472, United Mine Workers
of America, of South Fork, 146 Pa. Super. 143,22 A.2d 70 (1941).
[FN5] Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028 (1901).
rights reserved.
AMJUR ADVERSE § 78
END OF DOCUMENT
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weStiaw.

Adverse Possession

a. In General
§ 79. What constitutes privity of possession
West's Key Number Digest, Adverse Possession €;;::>43(3 to 8)
A.L.R. Library
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ 7, 8.
Privity of possession is a succession of relationship to the same thing, whether created by deed or by other
act, or by operation of law.[ I] Privity of possession exists if one person holds the property under or for another
or in subordination to his or her claim and under an agreement or arrangement recognized as valid between
themselves.[2] The privity necessary to support the tacking of successive possessions of property may be based
on any connecting relationship that will prevent a breach in the adverse possession and connect the several pos-
sessions to the original entry.[3] Thus, if one adverse claimant, by agreement, surrenders possession to another,
and the acts of the parties are such that the two possessions actually connect, leaving no interval for the con-
structive possession of the true owner to intervene, the two possessions are blended into one, and the running of
the limitation period on the right of the true owner to reclaim the land is continued.[4]
A transfer of possession alone, without written evidence of the transfer, is sufficient to create privity.[5] All
that is necessary to privity between successive occupants of property is that one person receive possession from
the other by some act of such other or by operation ofJaw.[6]
Evidence of successive occupancies does not establish the necessary privity, but only shows a succession of
independent trespasses, one not necessarily supporting the other.[7]
[FNI] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Blalock v. Redwine, 191 Ga. 169, 12
S.E.2d 639 (1940); Smith v. Brown, 126 Ind. App. 545, 134 N.E.2d 823 (1956); Stark v. Lardin, 133

Page 176 of 665

Pa. Super. 96, 1 A.2d 784 (1938).
[FN2] Newkirk v. Porter, 237 N.C. 115,74 S.E.2d 235 (1953).
As to evidence of a transfer, see § 82.
As to delivery of possession, see § 83.
[FN4] Sattler v. Pellichino, 71 So. 2d 689 (La. Ct. App. 1st Cir. 1954); Morgan v. Jenson, 47 N.D. 137,
181 N.W. 89 (1921); Harris v. Grayson, 1930 OK 546, 146 Okla. 291, 294 P. 187 (1930); Illinois Steel
Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
[FN5] § 82.
[FN6] Sparks v. Byrd, 562 So. 2d 211 (Ala. 1990) (transfer of title or possession); Cooper v. Tarpley,
112 Ind. App. 1, 41 N.E.2d 640 (1942); Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953); Mor-
gan v. Jenson, 47 N.D. 137, 181 N.W. 89 (1921); Ellis v. Williams, 1956 OK 163,297 P.2d 916 (Okla.
1956); Shuttles v. Butcher, I S.W.2d 661 (Tex. Civ. App. EI Paso 1927), writ refused, (May 9, 1928);
Illinois Steel Co. v. Budzisz, 106 Wis. 499,81 N.W. 1027 (1900).
[FN7] Maas v. Platte Val. Public Power and lrr. Dist., 167 Neb. 124,91 N.W.2d 409 (1958).
rights reserved.
AMJUR ADVERSE § 79
END OF DOCUMENT
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AMJUR ADVERSE § SO Page I
3 Am. Jur. 2d Adverse Possession § SO

Adverse Possession

a. In General
§ 80. Between whom privity of possession exists
West's Key Number Digest, Adverse Possession €=>43(3 to S)
All that is generally necessary to privity between successive occupants of property is that one receive pos-
session from the other by some act of such other or by operation of law, the one taking under the other as by
descent, will, grant, or other transfer ofpossession.[I] Thus privity exists between:
- the promoters or officers of a corporation and the corporation.[2]
- a mortgagee and a mortgagor.[3]
- a landlord and a tenant.[4]
- a landlord's grantee and a tenant.[ 5]
-members ofa family.[6]
- a deceased spouse and a surviving spouse.[7]
- cotenants.[S]
- a tenant for life or years and the holder of the remainder or reversion.[9]
- a seller and a purchaser.[IO]
- a grantor and a grantee.[II]
- a decedent and his or her heirs[ 12]
- a decedent and the representative of the estate or a purchaser or an heir and the representative of the es-
tate or a purchaser. [ 13]
- a testator and a devisee.[14]
[FNI] § 79.
[FN2] Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940).
As to corporations, generally, see IS, 19 Am. Jur. 2d, Corporations.
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[FN3] Strickland v. Markos, 566 So. 2d 229 (Ala. 1990).
[FN4] Powers v. Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E. 654 (4th Dis!. Scioto
County 1927); Illinois Steel Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
As to landlord and tenant, generally, see 49, 50 Am. Jur. 2d, Landlord and Tenant.
[FN5] Shoer v. Daffe, 337 Mass. 420,149 N.E.2d 625 (1958).
[FN6] Shaffer v. Baylor's Lake Ass'n, 392 Pa. 493, 141 A.2d 583 (1958).
[FN7] Souleyette v. McKee, 296 Ky. 868,178 S.W.2d 833 (1944).
[FN8] § 210.
[FN9] Whittington v. Cameron, 385 III. 99, 52 N.E.2d 134, 150 A.L.R. 551 (1943); Charles v. Pickens,
214 Mo. 212,112 S.W. 551 (1908).
As to estates in land, generally, see 28 Am. Jur. 2d, Estates.
[FNIO] Fredericksen v. Henke, 167 Minn. 356,209 N.W. 257, 46 A.L.R. 785 (1926).
[FNII] Page v. Downs, 115 N.H. 373, 341 A.2d 767 (1975); Newkirk v. Porter, 237 N.C. 115, 74
S.E.2d 235 (1953).
But see Adams v. Adams, 220 S.C. 131,66 S.E.2d 809 (1951), holding that the possession of a grantor
cannot be tacked onto that of a grantee.
[FNI2] Catawba Indian Tribe of South Carolina v. State of S.c., 978 F.2d 1334 (4th Cir. 1992)
(applying South Carolina law); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785
(1926); Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953); Lewis v. Smith, 1940 OK 276, 187
Okla. 404, 103 P.2d 512 (1940); Cooke v. Doll, 19 Pa. D. & C. 655, 1933 WL 3756 (C.P. 1933); Sali-
nas v. Gutierrez, 341 S.W.2d 558 (Tex. Civ. App. San Antonio 1960), writ refused n.r.e., (Apr. 26, 1961).
As to descent and distribution, generally, see 23 Am. Jur. 2d, Descent and Distribution.
[FNI3] § 81.
[FNI4] Whittington v. Cameron, 385 III. 99, 52 N.E.2d 134, 150 A.L.R. 551 (1943); Charles v. Pick-
ens, 214 Mo. 212,112 S.W. 551 (1908).
As to testamentary dispositions, see 79, 80 Am. Jur. 2d, Wills.
rights reserved.
AMJUR ADVERSE § 80
END OF DOCUMENT
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Adverse Possession

a. In General
§ 81. Between whom privity of possession exists-Decedent or heirs and representative of estate or pur-
chaser from representative of estate
West's Key Number Digest, Adverse Possession €:=43(6)
A.L.R. Library
Adverse possession of executor or administrator or his vendee as continuous with that of ancestor and heirs,
43 A.L.R. 2d 1061 §§ 2, 3.
It has been held that, because the adverse possession of an executor or administrator is continuous with that
of the decedent or the latter's heirs, the possession of the personal representative may be tacked to that of the de-
cedent or the latter's heirs for the purposes of determining whether the possession continued uninterrupted for a
sufficient time to perfect the title by adverse possession.[I] Similarly, the possession of a testator is continued
by the possession of an executor asserting ownership for the benefit of the estate, under a will empowering the
executor to sell the property and vesting in the executor the power to carry out that power.[2] Also, the adverse
possession of a purchaser from an executor or administrator is continuous with that of the ancestor or heirs.[3]
However, it has also been held that, in the absence of a statute providing otherwise, privity does not exist
between a decedent and the administrator of the estate.[4]
[FN I] Cannon v. Prude, 181 Ala. 629, 62 So. 24 (1913); Farlow v. Brown, 208 Ga. 646, 68 S.E.2d 903
(1952); Stalcup v. Lingle, 76 Ind. App. 242, 131 N.E. 852 (Div. 2 1921); Abbott v. Mars, 277 Mass.
122, 177 N.E. 829 (1931); Vanderbilt v. Chapman, 172 N.C. 809,90 S.E. 993 (1916); Sinclair Refining
Co. v. Romohr, 95 Ohio App. 93, 52 Ohio Op. 456, 117 N.E.2d 489, 43 A.L.R.2d 1058 (1st Dis!. Clin-
ton County 1953).

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[FN2] Vanderbilt v. Chapman, 172 N.C. 809, 90 S.E. 993 (1916).
[FN3] Abbott v. Mars, 277 Mass. 122, 177 N.E. 829 (1931); Vanderbilt v. Chapman, 172 N.C. 809,90
S.E. 993 (1916); Sinclair Refining Co. v. Romohr, 95 Ohio App. 93, 52 Ohio Op. 456, 117 N.E.2d 489,
43 A.L.R.2d 1058 (1st Dist. Clinton County 1953).
[FN4] Charles v. Pickens, 214 Mo. 212,112 S.W. 551 (1908).
rights reserved.
AMJUR ADVERSE § 81
END OF DOCUMENT
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Adverse Possession

a. In General
§ 82. Evidence of transfer; necessity of a writing
West's Key Number Digest, Adverse Possession <80=43(1)
An adverse possession begun and continued for a time, to be available to a successor, must be transferred to
the successor in some lawful manner,[I] such as descent, will, grant,[2] or judicial sale.[3]
In some jurisdictions, it is not necessary that there be a conveyance[4] or even a transfer in writing.[5] All
that the law requires for privity of possession is a continuous adverse possession for the full statutory period,
and continuity may be accomplished as well by a parol agreement or understanding, under which the actual pos-
session of the premises is delivered, as by a written conveyance.[6] However, in other jurisdictions, one who
seeks to tack the prior adverse possession of a grantor onto his or her own possession must show an express ref-
erence to or description of the disputed property in the grantor's deed.[7]
It is generally not necessary that a conveyance by an adverse claimant be recorded in the absence of a stat-
utory requirement to this effect.[8]
[FNI] Masters v. Local Union No. 472, United Mine Workers of America, of South Fork, 146 Pa. Su-
per. 143,22 A.2d 70 (1941).
[FN2] Prestrud v. Young, 124 Colo. 95, 242 P.2d 613 (1951); Harris v. Grayson, 1930 OK 546, 146
Okla. 291, 294 P. 187 (1930).
[FN3] Illinois Steel Co. v. Budzisz, 106 Wis. 499,81 N.W. 1027 (1900).
[FN4] Withers v. Burton, 268 Ala. 365,106 So. 2d 876 (1958).
[FN5] Withers v. Burton, 268 Ala. 365, 106 So. 2d 876 (1958); Territory v. Pai-a, 34 Haw. 722, 1938
Page 182 of 665

WL 6825 (1938); Boese v. Crane, 182 Kan. 777, 324 P.2d 188 (1958).
[FN6] Withers v. Burton, 268 Ala. 365, 106 So. 2d 876 (1958); Marvel v. Barley Mill Road Homes, 34
Del. Ch. 417, 104 A.2d 908 (1954); Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Viking
Refrigerator & Mfg. Co. v. Crawford, 84 Kan. 203, 114 P. 240 (1911); Arduino v. City of Detroit, 249
Mich. 382, 228 N.W. 694 (1930); Harris v. Grayson, 1930 OK 546, 146 Okla. 291, 294 P. 187 (1930);
Evans v. Hogue, 296 Or. 745, 681 P.2d 1133 (1984); Illinois Steel Co. v. Budzisz, 106 Wis. 499, 81
N.W. 1027 (1900).
[FN7] Cutliffv. Densmore, 354 Mich. 586,93 N.W.2d 307 (1958).
[FN8] Roberson v. Downing Co., 120 Ga. 833, 48 S.E. 429 (1904); Harris v. Grayson, 1930 OK 546,
146 Okla. 291, 294 P. 187 (1930).
© 20 I 0 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
AMJUR ADVERSE § 82
END OF DOCUMENT
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Westlaw

Adverse Possession

a. In General
§ 83. Delivery of possession
West's Key Number Digest, Adverse Possession ~43(1)
Continuity with the original adverse occupation may be saved by any agreement to transfer to another the
rights and the possession of the adverse claimant, if the agreement is accompanied by an actual delivery of the
possession.[ I] It is not necessary to a continuity of possession that the new occupant be personally present on
the premises before the former occupant departs or that there be a formal, manual transfer of possession,[2] as
long as the possessory periods connect or overlap.[3]
[FNI] Keyser v. Brown, 80 Ind. App. 504, 138 N.E. 514 (Div. 1 1923); Wishart v. McKnight, 178
Mass. 356, 59 N.E. 1028 (1901); Maes v. Olmsted, 247 Mich. 180,225 N.W. 583 (1929); Powers v.
Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E. 654 (4th Dis!. Scioto County 1927); Harris
v. Grayson, 1930 OK 546,146 Okla. 291, 294 P. 187 (1930).
[FN2] Shoer v. Daffe, 337 Mass. 420, 149 N.E.2d 625 (1958).
[FN3] § 79.
© 2010 Thomson Reuters. 33-348 © 2010 Thomson ReuterslR1A. No Claim to Orig. U.S. Gov!. Works. All
rights reserved.
AMJUR ADVERSE § 83
END OF DOCUMENT
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Westlavv..

Adverse Possession

b. Necessity ofInclusion of Land in Deed or Contract
§ 84. Generally
West's Key Number Digest, Adverse Possession €;:;:;>43(l), (2)
A. L.R. Library
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ I, 3 to 6.
Periods of a prior owner's adverse possession may be tacked if the prior owner as well as the present owner
meet the requirements for adverse possession, and the instrument of conveyance to the present owner describes
the disputed parcel in terms that are minimally acceptable to identify the property.[I]
However, as a basis for tacking the successive possessions of a seHer and a purchaser of an area not within
the description of the deed or contract, some sort of privity between them must be shown as to that area,[2] and
neither a deed nor a contract creates privity of possession as to the land outside its description.[3] Nor does priv-
ity exist under such circumstances on the bare taking of possession of land previously occupied by the grantor.[4
] Thus, although this rule is sharply limited,[5] the general rule is a deed does not of itself create privity between
the grantor and the grantee as to land not described in the deed but occupied by the grantor, even if the grantee
enters into possession of the land not described and uses it in connection with the land that was conveyed.[6]
It is even clearer that, if the deed expressly excludes certain property occupied by the grantor in connection
with that conveyed, the grantee, though succeeding to the possession of the excluded property, cannot tack the
grantor's possession to that of the grantee.[7] Otherwise, a person receiving a conveyance of a part of lands oc-
cupied by a predecessor might use the possession of that predecessor of another part of the land to defeat the
right of the predecessor with respect to the part of the land that the predecessor intended to keep.[8]
Cases:
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Generally the rule is that possession cannot be tacked to make out title by prescription where the deed by
which the last occupant claims title does not include the land in dispute. Senez v. Collins, 182 Md. App. 300,
957 A.2d 1057 (2008).
lEND OF SUPPLEMENT)
[FN I] Baylor v. Soska, 540 Pa. 435, 658 A.2d 743 (1995).
[FN2] Rentschler v. Walnofer, 203 Neb. 84, 277 N. W.2d 548 (1979); Pyron v. Colbert, 46 Tenn. App.
287,328 S.W.2d 825 (1959).
[FN3] Mims v. Alabama Power Co., 262 Ala. 121,77 So. 2d 648 (1955); Isacks v. Deutsch, 114 So. 2d
746 (La. Ct. App. 1st Cir. 1959); Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 134 A.L.R. 458 (1940);
Alukonis v. Kashulines, 96 N.H. 107,70 A.2d 202, 17 A.L.R.2d 1125 (1950); Gerhart v. Hilsenbeck,
164 Pa. Super. 85, 63 A.2d 124 (1949).
[FN4] Gerhart v. Hilsenbeck, 164 Pa. Super. 85, 63 A.2d 124 (1949); Home Owners' Loan Corporation
v. Dudley, 105 Utah 208,141 P.2d 160 (1943).
As to the existence of privity on the taking of possession, see § 79.
As to the delivery of possession, see § 83.
[FN5] §§ 85 et seq.
[FN6] Cutliff v. Densmore, 354 Mich. 586, 93 N. W.2d 307 (1958); Kramper v. st. John's Church of
Vista, 131 Neb. 840,270 N.W. 478 (1936); Bums v. Crump, 245 N.C. 360, 95 S.E.2d 906 (1957); Mas-
ters v. Local Union No. 472, United Mine Workers of America, of South Fork, 146 Pa. Super. 143, 22
A.2d 70 (1941); Peoples v. Hagaman, 31 Tenn. App. 398, 215 S.W.2d 827 (1948).
[FN7] Meerhoff v. Rouse, 4 A.D.2d 740, 163 N.Y.S.2d 746 (4th Dep't 1957); Doty v. Chalk, 632 P.2d
644 (Colo. Ct. App. 1981); Marquis v. Drost, 155 Conn. 327, 231 A.2d 527 (1967); Trustees of Broad-
fording Church of the Brethren v. Western Md. Ry. Co., 262 Md. 84, 277 A.2d 276 (1971); Kramper v.
St. John's Church of Vista, 131 Neb. 840, 270 N.W. 478 (1936); Gerhart v. Hilsenbeck, 164 Pa. Super.
85,63 A.2d 124 (1949).
[FN8] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948).
rights reserved.
AMJUR ADVERSE § 84
END OF DOCUMENT
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WestLaw.

Adverse Possession

b. Necessity of Inclusion of Land in Deed or Contract
§ 85. Intention as controlling
West's Key Number Digest, Adverse Possession €=>43(1), (2)
A.L.R. Library
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ I to 5,
7 to 9.
The rule that a deed does not create privity between a grantor and a grantee so as to permit the tacking of
possessions of land not described in the deed[l] is sharply limited. It is apparently applicable only to those cases
in which the deed itself is solely relied on to create privity. and in the absence of any circumstance showing an
intent to transfer the possession of any property beyond the calls of the deed.[2]
Also, under the doctrine that a transfer of the possession of property sufficient to create privity of posses-
sion between successive occupants may be made by parol or implied from circumstances,[3] if, in connection
with a conveyance of lands, there are circumstances showing an intent to transfer to the grantee the possession
of other adjacent land occupied by the grantor, but not covered by the deed, there is privity, and the grantee is
entitled to tack the period of the grantor's occupancy to the grantee's own in establishing title by adverse posses-
sion to the land not conveyed.[4] Under these circumstances, it is not the deed that creates privity, but the trans-
fer of possession found from facts outside the deed.[5] Thus, a purchaser may tack the adverse possession of a
predecessor in interest if the land was intended to be included in the deed or contract between them, but was
mistakenly omitted from the description.[6]
Parol evidence is admissible to show that the property was bought as a whole.[7]
[FNI] § 84.

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[FN2] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Cutliff v. Densmore,
354 Mich. 586, 93 N.W.2d 307 (1958); Lurvey v. Burrell, 317 S.W.2d 458 (Mo. 1958); Alukonis v.
Kashulines, 96 N.H. 107, 70 A.2d 202, 17 A.L.R.2d 1125 (1950); Peoples v. Hagaman, 31 Tenn. App.
398,215 S.W.2d 827 (1948); lIIinois Steel Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
[FN3] § 82.
[FN4] Bussey v. Bussey, 403 So. 2d 907 (Ala. 1981); Cooper v. Tarpley, 112 Ind. App. I, 41 N.E.2d
640 (1942); Big Run Coal & Clay Co. v. Helton, 323 S.W.2d 855 (Ky. 1959); Freed v. Cloverlea Cit-
izens Ass'n, Inc., 246 Md. 288, 228 A.2d 421 (1967); Dubois v. Karazin, 315 Mich. 598,24 N.W.2d
414 (1946); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Brand v.
Prince, 35 N.Y.2d 634, 364 N.Y.S.2d 826, 324 N.E.2d 314 (1974); Morgan v. Jenson, 47 N.D. 137, 181
N.W. 89 (1921); Sinclair Refining Co. v. Romohr, 95 Ohio App. 93, 52 Ohio Op. 456, 117 N.E.2d 489,
43 A.L.R.2d 1058 (1st Dis!. Clinton County 1953); Shuttles v. Butcher, I S.W.2d 661 (Tex. Civ. App.
EI Paso 1927), writ refused, (May 9, 1928).
In an ejectment action concerning a disputed strip of land, a defendant who claimed title by adverse
possession could tack his period of possession onto that of his predecessor in interest because, although
the predecessor did not convey the disputed strip, the predecessor testified that he intended to convey,
and the defendant testified that he intended to purchase, all of the land, including the disputed strip.
Kennedy v. Findley, 552 S.W.2d 352 (Mo. Ct. App. 1977).
[FN5] Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Mary v. Maurer, 339 Mich. 115,62
N.W.2d 455 (1954).
Where in an action to quiet title there is evidence that plaintiff was shown boundaries which included
the strip of land in dispute by her predecessor in title and that such tract had been enclosed and cultiv-
ated for many years by plaintiff and her predecessors, plaintiff, in support of her right to such tract by
adverse possession, may tack the possession of her predecessors in title, even though the deeds in her
chain of title do not include the strip in question. Alukonis v. Kashulines, 96 N.H. 107,70 A.2d 202, 17
A.L.R.2d 1125 (1950).
[FN6] Buchanan v. Cassell, 53 Wash. 2d 611, 335 P.2d 600 (1959).
[FN7] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954).
rights reserved.
AMJUR ADVERSE § 85
END OF DOCUMENT
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Adverse Possession

§ 86. Unconveyed land enclosed with that conveyed
West's Key Number Digest, Adverse Possession ~43(l), (2)
A.L.R. Library
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ 9 to I I.
It has been held that, if land that is being claimed by an adverse possessor is included in the same enclosure
with land owned and conveyed by the claimant's grantor, the taking of possession by the claimant of the entire
enclosed area creates a privity with the grantor as to the portion that was not conveyed.[I] Thus, if a purchaser
of land encloses and occupies a tract outside described boundaries, believing it to be included, and in that belief
conveys it to another by the same description, intending that the grantee shall take the whole enclosed area, the
grantor's possession may be tacked to that of the grantee.[2]
However, it has also been held that successive possessions of land not within a deed of conveyance may be
tacked only if the property under possession is marked by visible bounds;[3] and it has been held that, even if
land adversely held is included in the same enclosure with land owned and conveyed by the grantor, the taking
of possession by the grantee of the entire enclosed area does not create a privity with the grantor as to the por-
tion not conveyed.[4]
[FNI] St. Louis Southwestern Ry. Co. v. Mulkey, 100 Ark. 71, 139 S.W. 643 (1911); Prestrud v.
Young, 124 Colo. 95, 242 P.2d 613 (1951); Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104
A.2d 908 (1954); Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Big Run Coal & Clay Co.
v. Helton, 323 S.W.2d 855 (Ky. 1959); Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028 (1901); Fre-
dericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Auldridge v. Spraggin, 349
Mo. 858,163 S.W.2d 1042 (1942); McCormick v. Sorenson, 58 Wash. 107, 107 P. 1055 (1910).
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Although a disputed strip of land was not included in the instrument of conveyance, the purchaser was
allowed to tack the adverse possession of the prior holder because the boundary line contended for by
the purchasers was well-defined by a fence running generally parallel to a section line described in the
deeds, because the prior holder was in possession of and using the property up to the fence at the time
he contracted to seU, and because the purchaser was placed in actual possession of the entire property,
including the disputed strip. Watson v. Price, 356 So. 2d 625 (Ala. 1978).
As to an enclosure as showing dominion over the land, see §§ 36 to 40.
[FN2] Graham v. Hawkins, 281 Ala. 288, 202 So. 2d 74 (1967); St. Louis Southwestern Ry. Co. v.
Mulkey, 100 Ark. 71, 139 S.W. 643 (1911); Prestrud v. Young, 124 Colo. 95, 242 P.2d 613 (1951);
Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Big Run Coal & Clay Co. v. Helton, 323
S.W.2d 855 (Ky. 1959); McCormick v. Sorenson, 58 Wash. 107, 107 P. 1055 (1910); Clithero v. Fen-
ner, 122 Wis. 356, 99 N.W. 1027 (1904).
Although, according to the deed, the true boundary line between plaintiffs property and that of defend-
ant was the north and south center line of the section, because for more than 30 years a boundary line
fence had been maintained more than 50 feet to the west of that line, and the successive owners in de-
fendant's chain of title had successively succeeded to possession up to the fence line, and the plaintiff,
until shortly before commencing the action, had not realized that the fence did not mark the boundary
line called for by the deeds, the defendant was entitled to tack to his own the possession of his prede-
cessors in interest. Lively v. Wick, 122 Colo. 156,221 P.2d 374 (1950).
[FN3]lsacks v. Deutsch, 114 So. 2d 746 (La. Ct. App. 1st Cir. 1959).
[FN4] JeffTies v. Sheehan, 242 Mich. 167,218 N.W. 703 (1928).
rights reserved.
AMJUR ADVERSE § 86
END OF DOCUMENT
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Westlaw,

Adverse Possession

§ 87. Encroached on land included with that conveyed
West's Key Number Digest, Adverse Possession €:=43(1), (2)
A.L.R. Library
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ 9, 10, 12.
Generally, the fact that the seller and purchaser were successively in adverse possession of buildings or oth-
er structures encroaching on land adjoining that described in the deed or contract is convincing evidence of a
transfer to the purchaser of possession of the area so appropriated.[I] Thus, it has been held that a grantee could
tack the possession of an area on which an encroaching building stood to the possession of the grantor, although
the deed describes the boundary of the premises as running to the lot of the adjoining owner.[2] However, not-
withstanding the fact that structures encroach on land adjoining that described in the deed, special circumstances
may exclude any sound basis for tacking the possessions of seller and purchaser.[3]
[FNI] Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028 (1901); Lewis v. Idones, 280 A.D. 980, 116
N.Y.S.2d 382 (2d Dep't 1952); McCormick v. Sorenson, 58 Wash. 107,107 P. 1055 (1910).
[FN2] Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920).
There was sufficient privity to allow tacking of period of possession because a brother ran a fence along
what he believed to be the correct property line, conveyed the property to the sister, who erected half of
the house on the disputed strip, the sister conveyed the property back to the brother, who in tum recon-
veyed it back to her, and the sister was put in actual possession of the disputed land adversely held by
the immediate grantor. Carpenter v. Huffman, 294 Ala. 189,314 So. 2d 65 (1975).
Page 191 of 665

[FN3] Maremont v. Ovenu, 329 III. 374, 160 N.E. 572 (1928) (owner of land encroached on by eight
inches used wall of encroaching structure as common wall); Miller v. Roberson, 165 S.W.2d 469 (Tex.
Civ. App. Eastland 1942), writ refused w.o.m., (Jan. 6, 1943) (possession of a mortgagor held not to
tack to the possession of a purchaser from the bank that foreclosed on the mortgage).
rights reserved.
AMJUR ADVERSE § 87
END OF DOCUMENT
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weStiaw.

Adverse Possession

3. Interruption of Continuity
a. In General
§ 88. Generally; substantial interruption
West's Key Number Digest, Adverse Possession €=>46.1
A,L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § II.
The statute of limitations ceases to run against a cause of action by the rightful owner of property on an in-
terruption of the continuity of possession of the adverse c1aimant.[l] The moment adverse possession is broken,
it ceases to be effectual, because the law then restores constructive possession to the owner.[2] The length of
time for which a substantial break or interruption in the possession exists is immaterial, because any substantial
interruption of the possession of an adverse claimant destroys continuity of possession and is fatal to a claim of
title by adverse possession.[3]
[FNI] Dowley v. Morency, 1999 ME 137,737 A.2d 1061 (Me. 1999); Goen v. Sansbury, 219 Md. 289,
149 A.2d 17 (1959); Trotter v. Gaddis and McLaurin, Inc., 452 So. 2d 453 (Miss. 1984).
[FN2] § 27.
[FN3] Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921).
As to temporary breaks or interruptions deemed insubstantial, see § 90.
rights reserved.
AMJUR ADVERSE § 88
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END OF DOCUMENT
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Adverse Possession

a. In General
§ 89. Common ownership
West's Key Number Digest, Adverse Possession €:=46.1
The fact that two tracts of land come into common ownership interrupts an adverse possession of one of the
tracts that was begun before the common ownership.[I]
[FNI] Salazar v. Terry, 911 P.2d 1086 (Colo. 1996); Porterfield v. Spurgeon, 379 So. 2d 56 (La. C!.
App. 3d CiL 1979), writ denied, 381 So. 2d 1235 (La. 1980).
rights reserved.
AMJUR ADVERSE § 89
END OF DOCUMENT
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Westlaw,

Adverse Possession

a. In General
§ 90. Temporary or insubstantial interruption
West's Key Number Digest, Adverse Possession <£;=44,45, 46.1
A temporary break or interruption that is not of unreasonable duration does not destroy the continuity of the
adverse claimant's possession.[I] Thus, a temporary absence from the land, without an intention to abandon pos-
session, will not break the continuity ofpossession.[2]
If there is a break in the continuity of possession under the statute of limitations, the party claiming title
through adverse possession must show that it existed only for a reasonable period.[3]
Breaks in the continuity of possession in accordance with seasonal use generally do not destroy the neces-
sary continuous possession oflands used for seasonal activities.[4]
[FNI] Thompson v. Ratcliff, 245 S.W.2d 592 (Ky. 1952); Gammons v. Caswell, 447 A.2d 361 (R.t.
1982); Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191 (1951); Arney v. Hall, 123 Vt. 62, 181
A.2d 69 (1962); Bruch v. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
[FN2] Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390 (1906); Combs v. Ezell, 232 Ky. 602, 24 S.W.2d
301 (1930); Feinstein v. McGuire, 297 S.W.2d 513 (Mo. 1957); Hubbard v. Swofford Bros. Dry Goods
Co., 209 Mo. 495,108 S.W. 15 (1907).
A husband's adverse possession as against the claim of his wife to a joint interest in land was not inter-
rupted by his absence from the property for reasons of health, because he left his personal possessions
there, put his daughters in charge of the property, and forbade his wife to come into it. Cassas v. Cassas,
73 Wyo. 147,276 P.2d 456, 69 A.L.R.2d 187 (1954).
[FN3] Hardy v. Bumpstead, 41 S.W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
Page 196 of 665

[FN4] § 75.
rights reserved.
AMJUR ADVERSE § 90
END OF DOCUMENT
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Westlaw

Adverse Possession

a. In General
§ 91. Temporary or insubstantial interruption-Vacancy during transfer oftitle or change of tenants
West's Key Number Digest, Adverse Possession €:=45, 46.1
The continuity of possession by a claimant under adverse possession is not affected by a temporary and
reasonable vacancy of the premises occurring between the time of a conveyance by the adverse holder and the
entry into possession of the purchaser or a tenant.[l] However, if one adverse occupant sells the rights to anoth-
er, who does not enter on the land, and whose tenant merely repairs the improvements on the land, the chain of
adverse holding is broken by the interval between the adverse holding of the original occupant and that of a sub-
sequent grantee.[2]
The continuity of an adverse possession is not affected by a vacancy incident to a change in tenants,
provided the hiatus is not of unreasonable length when considered with reference to the purposes for which the
premises are adapted.[3] However, the burden is on the claimant to show that the interval between tenancies was
reasonable; and in the absence of evidence as to the length of such intervals, the court cannot assume that they
were short.[4] An unreasonable interval between possessions by successive tenants constitutes an interruption in
adverse possession, even if there was considerable difficulty in obtaining tenants.[5]
[FNI] Douglas v. Skelly Oil Co., 201 Miss. 23, 28 So. 2d 227 (1946); Hubbard v. Swofford Bros. Dry
Goods Co., 209 Mo. 495,108 S.W. 15 (1907); Bruch v. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
[FN2] Hellard v. Hubbard, 160 Ky. 304,169 S.W. 727 (1914).
[FN3] Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191 (1951); Bruch v. Benedict, 62 Wyo. 213,
165 P.2d 561 (1946).
As to whether adverse possession may be maintained through a tenant, see § 24.
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[FN4] Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265 (1908).
[FN5] Reeves v. Porta, 173 Or. 147, 144 P.2d 493 (1944); Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265
(1908).
rights reserved.
AMJUR ADVERSE § 91
END OF DOCUMENT
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Adverse Possession

a. In General
§ 92. Attornment by tenant; tenant's recognition of title in third person
West's Key Number Digest, Adverse Possession €;:;;;;>46.1, 50
A. L.R. Library
Adverse possession of landlord as affected by tenant's recognition of title of third person, 38 A.L.R. 2d 826
§§ 2, 3.
Under the general rule that attornment to a third party (acceptance of a third party as the landlord) does not
affect a tenant's relationship with the original landlord or entitle a tenant to deny or dispute the original land-
lord's title,[1] a tenant's wrongful attornment to a third person is generally ineffectual in itself to affect the con-
tinuity of the landlord's possession.[2] Thus, subject to certain conditions and exceptions, the acknowledgment
or recognition of the title of a third person by one occupying land as the tenant of an adverse claimant, without
the latter's knowledge or consent, does not interrupt the continuity of the adverse possession.[3] However, if a
tenant attorns to an owner who lacks knowledge of the landlord's claim, the possession by the tenant then be-
comes that of the owner, and it is broken for the landlord.[4] Also, if the landlord has or acquires notice of the
tenant's recognition of the title of another and takes no action to protect his or her interest, the continuity of ad-
verse possession is interrupted.[5]
[FNI]49 Am. Jur. 2d, Landlord and Tenant § 923.
[FN2] Eckert v. Miller, 57 Ariz. 94, III P.2d 60 (1941); Cobb v. Robertson, 99 Tex. 138,87 S.W. 1148
(1905).
As to the effect of the relationship of landlord and tenant on the right of a tenant to claim adversely to
the landlord, see §§ 197 et seq.
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[FN3] Kimble v. Willey, 204 F.2d 238, 38 A.L.R.2d 814 (8th Cir. 1953) (applying Arkansas law); Ells-
worth v. Eslick, 91 Kan. 287, 137 P. 973 (1914); Jackson v. Ward, 292 S.W. 7 (Mo. 1927); Cobb v.
Robertson, 99 Tex. 138, 87 S.W. 1148 (1905); Point Mountain Coal & Lumber Co. v. Holly Lumber
Co., 71 W. Va. 21, 75 S.E. 197 (1912).
[FN4] Kirby Lumber Corp. v. Laird, 231 F.2d 812 (5th Cir. 1956).
[FN5] Van Deventer v. Lott, 172 F. 574 (C.C.E.D. N.Y. 1909), affd, 180 F. 378 (C.C.A. 2d Cir. 1910)
(applying law of New York); Custer v. Hall, 71 W. Va. 119,76 S.E. 183 (1912).
rights reserved.
AMJUR ADVERSE § 92
END OF DOCUMENT
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Adverse Possession

a. In General
§ 93. Acts of trespassers or intruders
A mere casual or occasional trespass on land by a stranger to the title does not interrupt the continuity of an
adverse possession. [I]
[FNI] Turnipseed v. Moseley, 248 Ala. 340,27 So. 2d 483, 170 A.L.R. 882 (1946) (occasional or des-
ultory acts of entry and cutting of timber from a swampy and densely wooded tract of land by an adjoin-
ing landowner without color of title to the woodland, being neither exclusive nor continuous); Batcheld-
er v. Robbins, 95 Me. 59, 49 A. 210 (1901) (entries to cultivate small patches of ground); Bloodsworth
v. Murray, 138 Md. 631, 114 A. 575,22 A.L.R. 1450 (1921) (use of land by trappers); Dorntee v. Ly-
ons, 224 Mass. 256, 112 N.E. 610 (1916) (temporary obstruction, consisting of barrels with planks
across the top, placed across a right-of-way); Bruch v. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
The straying of cattle on the premises did not interrupt the continuity of a c1aimanfs adverse posses-
sion. Norgard v. Busher, 220 Or. 297, 349 P.2d 490,80 A.L.R.2d 1161 (1960).
rights reserved.
AMJUR ADVERSE § 93
END OF DOCUMENT
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Adverse Possession

a. In General
§ 94, Mortgage foreclosure
West's Key Number Digest, Adverse Possession <8;=48, 52
The continuity of possession of an adverse claimant is not interrupted by a mortgage foreclosure action and
sale of the premises pursuant to the judgment in such an action.[I] However, after the foreclosure of a mortgage
and issuance of a sheriffs certificate of sale to the purchaser, the mortgagor does not have color of title for ad-
verse possession purposes.[2]
[FNI] Lewis v. Idones, 280 A.D. 980,116 N.Y.S.2d 382 (2d Dep't 1952).
[FN2] Bell v. Gussenhoven, 132 Mont. 346, 318 P.2d 251 (1957).
As to color of title, generally, see §§ 123 et seq.
rights reserved.
AMJUR ADVERSE § 94
END OF DOCUMENT
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Adverse Possession

a. In General
§ 95. Acquisition of property by a governmental entity; tax forfeitures
A.L.R. Library
Tax sales or forfeitures by or to governmental units as interrupting adverse possession, 50 A.L.R. 2d 600 §§
3 to 5.
Title by adverse possession generally cannot be acquired to lands owned by governments or their subdivi-
sions and agencies.[1] Because the statute of limitations does not run against such entities, the acquisition of
property by a governmental entity ordinarily will interrupt any claim of adverse possession.[2] Thus, it has been
held that forfeiture of title to a governmental entity for the nonpayment of taxes suspends the operation of the
statute of limitations,[3] In some cases in which there has been a finding that limitations do not run against the
state during the period of a forfeiture of the property for nonpayment of taxes, the rationale has been that a valid
tax deed fTom the state commences a new chain of title, fTee of all clouds and encumbrances.[4]
However, it has also been held that such forfeiture does not suspend the statute of limitations.[5] If the gov-
ernment's interest was considered to be in the nature of a lien, or something less than full title, adverse posses-
sion has been held to continue after forfeiture, the theory sometimes being advanced that since a governmental
title was not involved there was no violation of the rule that time does not run against the government.[6]
[FN I] §§ 268 et seq.
[FN2] Wood v. Mayo, 240 La. 109, 121 So. 2d 503 (1960); Lyndel Corp. v. Loria, 77 Misc. 2d 1066,
355 N.Y.S.2d 699 (City Civ. Ct. 1973).
[FN3] Harrison v. Everett, 135 Colo. 55, 308 P.2d 216 (1957); Greene v. Esquibel. 58 N.M. 429, 272

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P.2d 330 (1954); Dunlap v. Mayer, 1959 OK 125,341 P.2d 258 (Okla. 1959).
[FN4] Harrison v. Everett, 135 Colo. 55, 308 P.2d 216 (1957); Lippert v. Jung, 366 Md. 221, 783 A.2d
206 (2001); Kasner v. Wilson, 1950 OK 58, 202 Okla. 497, 215 P.2d 833 (1950).
[FN5] Grayson v. Robinson, 240 Miss. 59,126 So. 2d 247 (1961).
A claim of title by adverse possession under a parol gift of land, notwithstanding the execution and re-
cording of a tax deed to a third person four years after the parol gift, was upheld, because the undis-
puted evidence showed that the claimant had been in continuous and exclusive possession for four years
at the time of the execution and recording of the tax deed and remained in such continuous and exclus-
ive possession for more than 15 years thereafter before any claim of right was asserted against him.
There was no room for a claim of constructive possession under the tax deed and the claimant had the
right to defend against the tax sale. Wallis v. Clinkenbeard, 214 Iowa 343, 242 N.W. 86 (1932).
Even though the sale of land for taxes ordinarily ends adverse possession at that time, if no change in
the character of the possession by the claimant appears after the sale, and no ouster is attempted, title of
the claimant ripens by adverse possession. Grayson v. Robinson, 240 Miss. 59, 126 So. 2d 247 (1961).
[FN6] Rupley v. Fraser, 132 Minn. 311,156 N.W. 350 (1916).
A forfeiture of land to the commonwealth for nonpayment of taxes, being intended merely to create an
indefeasible lien for their collection, does not constitute a break in the required continuity of adverse
possession. Thomas v. Young, 196 Va. 1166,87 S.E.2d 127,50 A.L.R.2d 592 (1955).
rights reserved.
AMJUR ADVERSE § 95
END OF DOCUMENT
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Adverse Possession

a. In General
§ 96. Death of the record owner
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § I I [(e)].
As a general rule, the continuity of an adverse possession of real property that began during a record own-
er's lifetime is not interrupted by death of the owner; the statute of limitations continues to run against the heirs[
I] and all other persons.[2] Thus, adverse possession by a donee under a parol gift of land is not interrupted by
the donor's death.[3]
Observation:
If the statute of limitations has begun to run in favor of one in adverse possession against an owner who dies
leaving heirs who are minors, their disability of infancy does not ordinarily affect the operation of the statute,
because the disability is subsequent to the commencement of the running oflimitations.[4]
[FNI] Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
[FN2] Leggett v. Norman, 192 Miss. 494, 6 So. 2d 578 (1942); Hubbard v. Swofford Bros. Dry Goods
Co., 209 Mo. 495,108 S.W. 15 (1907).
[FN3] Lynch v. Lynch, 239 Iowa 1245, 34 N.W.2d 485 (1948); Delano v. Air, 157 Ky. 369, 163 S.W.
216 (1914).
[FN4] § 174.
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rights reserved.
AMJUR ADVERSE § 96
END OF DOCUMENT
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Adverse Possession

b. By Claimant
(I) In General; Abandonment
§ 97. Generally
West's Key Number Digest, Adverse Possession <£:=46.1, 53
The continuity of an adverse claimant's possession is necessarily destroyed by abandonment of the property,
or of the adverse claim to the property, before the expiration of the limitation period.[I] Thus, if an adverse
claimant under color of title takes possession and holds for a time adversely, but vacates before the statutory
period expires, the owner will be regarded as in constructive possession from that moment by reason of the legal
title, the adverse possession of the claimant is at an end, and the statute ceases to run in his or her favor.[2]
The intention of the claimant is very important:to constitute a sufficient abandonment to destroy the con-
tinuity of adverse possession, there must be an intention on the part of the claimant to relinquish the claim of
ownership.[3] If the attendant circumstances are such that a reasonable and prudent person would not be induced
to suppose that the possession has been abandoned, it cannot be insisted that the running of the statute has been
interrupted.[4] The possession cannot be said to have been abandoned if the property is occupied, in right of the
claimant, by an agent, employee,[5] or tenant.[6]
A mere temporary absence of the adverse claimant, without an intention to abandon possession, will not
break the continuity of possession,[7] nor will a temporary vacancy of the property due to a change of tenants.[8
] Also, the absence of the adverse claimant from the state in which the land lies does not necessarily interrupt
the continuity ofpossession.[9]
The enclosure of land is some evidence of an adverse claim, and, in some instances, may be sufficient basis
for establishing dominion over the property,[10] and a mere temporary removal of such an enclosure does not
evidence an abandonment that would interrupt the continuity of the claimant's possession.[II]
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[FNI] Alaska Nat. Bank v. Linck, 559 P.2d 1049 (Alaska 1977); Massee v. Schiller, 237 Ark. 809,376
S.W.2d 558 (1964); Kash v. Lewis, 224 Ky. 679, 6 S.W.2d 1098 (1928).
[FN2] Goen v. Sansbury, 219 Md. 289,149 A.2d 17 (1959).
As to constructive possession oflegal owner, see § 27.
[FN3] Bruch v. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
As to abandoned property, generally, see I Am. Jur. 2d, Abandoned, Lost and Unclaimed Property.
[FN4] Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191 (1951).
[FN5] Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301 (1930).
[FN6] Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301 (1930).
[FN7] § 90.
[FN8] § 91.
[FN9] McCaughn v. Young, 85 Miss. 277, 37 So. 839 (1905).
[FN I 0] §§ 36 to 40.
[FNII] Davies v. Wickstrom, 56 Wash. 154, 105 P. 454 (1909).
rights reserved.
AMJUR ADVERSE § 97
END OF DOCUMENT
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Adverse Possession

b. By Claimant
§ 98. Failure to repair or replace enclosure
Adverse possession is not necessarily interrupted by permitting fences to fall into disrepair.[l] Thus, con-
tinuity of possession is not affected by the fact that fences on a tract of land that is often covered by tide become
dilapidated and in bad repair.[2]
[FN I] Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960).
As to an enclosure as showing dominion over the land, see §§ 36 to 40.
[FN2] Davies v. Wickstrom, 56 Wash. 154, 105 P. 454 (1909).
rights reserved.
AMJUR ADVERSE § 98
END OF DOCUMENT
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Adverse Possession

b. By Claimant
§ 99. Interruption of cultivation
West's Key Num ber Digest
West's Key Number Digest, Adverse Possession <C=46.1
If the cultivation of land has been relied on as constituting adverse possession, the fact that there have been
temporary breaks in cultivation does not destroy the requisite continuity.[I]
It has been held that a failure to cultivate for one year does not interrupt adverse possession.[2] In other
cases, however, failure to cultivate the land for one year has been fatal to the adverse c1aimant.[3]
[FN I] Lewes Trust Co. v. Grindle, 53 Del. 396, 170 A.2d 280 (1961); Douglas v. Skelly Oil Co., 20 I
Miss. 23, 28 So. 2d 227 (1946).
[FN2] Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390 (1906).
[FN3] Wilson v. Nugent, 91 S.W. 241 (Tex. Civ. App. 1906).
rights reserved.
AMJUR ADVERSE § 99
END OF DOCUMENT
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Adverse Possession

b. By Claimant
§ 100. Enforced abandonment
West's Key Number Digest, Adverse Possession cC=46.1, 53
An adverse c1aimant must not yield or surrender possession under the pressure of any legal procedure insti-
tuted to oust the claimant that can be successfully resisted; if the claimant does yield, and an entry adverse to the
claimant is made, the continuity of possession will be broken.[I] However, a possession will not be regarded as
interrupted by force and violence if it is promptly regained by legal methods.[2]
If the actual occupancy of land is temporarily prevented by floods or fire, the possessor has a reasonable
time after the flood or fire has ceased to resume possession of the land to avoid a discontinuance of adverse pos-
session during the time that occupancy was so interrupted.[3] For example, if land is subject to overflow during
periods of high water, the failure of the claimant to use the land for grazing during those periods does not inter-
rupt the continuity of possession if the claimant continues the use of the land when feasible.[4]
[FNl] Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921).
As to legal action by the owner to regain possession as interrupting adverse possession, see §§ 109 et seq.
[FN2] Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921).
[FN3] Thomas v. Spencer, 66 Or. 359,133 P. 822 (1913).
[FN4] Burns v. Curran, 282 Ill. 476, 118 N.E. 750 (1918); Britt v. Houser, 171 Ky. 494, 188 S.W. 628
(1916); Halsey v. Humble Oil & Refining Co., 66 S.W.2d 1082 (Tex. Civ. App. Beaumont 1933), writ
dismissed.
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rights reserved.
AMJUR ADVERSE § 100
END OF DOCUMENT
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Adverse Possession

b. By Claimant
(2) Recognition of Title in Another
§ IO\. Generally
West's Key Number Digest, Adverse Possession C;;;>SO
A.L.R. Library
Adverse possession of land by personal representative as against deceased owner's heirs or devisees, 73
A.L.R.2d 1097 § II.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § II(i).
The title acquired by adverse possession is equivalent to that acquired in any other way, and the mere recog-
nition of title in another, thereafter, does not divest the adverse claimant of the rights acquired.[I] However, dur-
ing the running of the limitation period, if the claimant holds possession subordinate to another person, or ad-
mits of the existence of a superior title, the possession will not be deemed to be adverse, regardless of how long
the possession is continued. [2]
The appointment of one in adverse possession as administrator of the record title owner does not necessarily
suspend the adverse possession.[3] Thus, if the adverse claimant never took possession of the land in an official
capacity as administrator, did not consider it a part of the estate, did not list it as an asset, paid all the taxes, re-
tained the proceeds of the land, and treated it as his own without knowledge that the decedent's heirs had an in-
terest in it, the adverse claimant's appointment as administrator of the owner's estate does not interrupt the ad-
verse possession. [4]
An heir's adverse claim, commenced before the decedent's death, is not interrupted by his or her inheritance
of a part interest in the property; the heir still remains in adverse possession of the other part interest as against
the coheirs.[S]

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[FNI]§249.
[FN2] Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1959); Jacobi v. Jacobi, 345 III. 518, 178 N.E.
88 (1931); Howard v. Twibell, 179 Ind. 67, 100 N.E. 372 (1913); Fordson Coal Co. v. Mills, 234 Ky.
64,27 S.W.2d 382 (1930); Shanks v. Collins, 1989 OK 115,782 P.2d 1352 (Okla. 1989); Central Pac.
Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554, I A.L.R. 1319 (1917).
An adverse claimant to a disputed parcel located on an unimproved parkway acknowledged the superior
interest or title of the city when the claimant applied for a street use permit in the property and paid a
fee for that use. Jackson v. Pennington, II Wash. App. 638, 525 P.2d 822 (Div. I 1974).
As to attornment by a tenant as interrupting the adverse possession of the landlord, see § 92.
[FN3] Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
[FN4] Anderson v. Shelton, 92 N.W.2d 166, 73 A.L.R.2d 1087 (N.D. 1958).
As to adverse possession by executor or administrator, generally, see § 237.
As to adverse possession against coheirs, generally, see § 239.
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

b. By Claimant
§ 102. Claiming as tenant; taking lease or paying rent
The continuity of possession by an adverse claimant is interrupted if the claimant ceases to claim the land in
fee and begins to claim it as a tenant.[l] Even an offer by an adverse claimant to lease or rent the premises may
be evidence of recognition of title in another,[2] and the taking of a lease by an adverse claimant is generally re-
garded as a recognition of title in another that will interrupt the running of the statute of limitations.[3] To have
this effect, however, it is necessary that the claimant intentionally and knowingly lease the property.[4]
It is necessary that the lease be a valid one to interrupt the possession; an oral lease that is ineffective be-
cause of the statute of frauds does not deprive the lessor of a right to bring an action to recover possession of
property.[5]
[FN1] Holmes v. Johnson, 324 Mass. 450, 86 N.E.2d 924 (1949).
[FN2] Northern Pac. Ry. Co. v. Cash, 67 Mont. 585,216 P. 782 (1923); Houston Oil Co. of Texas v.
Pullen, 272 S. W. 439 (Tex. Comm'n App. 1925).
[FN3] Woods v. Garrard, 282 Ky. 233, 138 S.W.2d 325 (1940); Lucas v. New Hebron Bank, 181 Miss.
762, 180 So. 611 (1938); Security Savings & Trust Co. v. Ogden, 123 Or. 370,261 P. 69 (1927); GeTies
v. Magness, 31 S.W.2d 167 (Tex. Civ. App. Amarillo 1930).
[FN4] Sowa v. Schaefer, 38 Ohio App. 522, 10 Ohio L. Abs. 457, 175 N.E. 745 (8th Dist. Cuyahoga
County 1931).
[FN5] Manos v. Day Cleaners & Dyers, Inc., 91 Ohio App. 361, 48 Ohio Op. 455, 108 N.E.2d 347 (9th

Page 216 of665

Dist. Summit County 1952).
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rights reserved.
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Westlaw,

Adverse Possession

b. By Claimant
§ 103, Prosecution oflegal action
The bringing by a claimant in adverse possession of land of an action involving title to the land that is based
on the existence of a right in another is such recognition of that right as will arrest the running of the statute of
limitations in favor of the occupant and against that right.[l] For example, instituting an action for specific per-
formance of a contract to convey real estate is a recognition of the title of defendant, and some subsequent un-
equivocal act or declaration evidencing an adverse claim is necessary to again start the statute running in favor
of the one instituting such suit.[2] However, it is only as to the right claimed by the defendant in an action by the
claimant in possession that the running of the statute is arrested.[3]
However, an action to determine conflicting claims brought by an occupying claimant does not arrest the
running of the statute as between the claimant and the defendant in such action if an answer is not filed and a
right hostile to the claimant is not asserted in the action.[4]
It has been held that the bringing of an action to quiet title by a person in possession of land and claiming
title by adverse possession does not interrupt the adverse character of his or her possession.[5] However, it has
also been held that a claim of title by adverse possession fails if possession is interrupted by the claimant's filing
of an action to quiet title before the statutory period has elapsed.[6]
[FNI] Johnson v. Johnson, 1938 OK 194, 182 Okla. 293, 77 P.2d 745 (1938).
[FN2] Central Pac. Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554, I A.L.R. 1319 (1917).
[FN3] Weiner v. Steams, 40 Utah 185, 120 P. 490 (1911).

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[FN4] Chapin v. Letcher, 93 N. W.2d 415 (N.D. 1958); Weiner v. Steams, 40 Utah 185, 120 P. 490 (1911).
[FN5] Chapin v. Letcher, 93 N.W.2d 415 (N.D. 1958).
The fact that the adverse possessors had filed a 1969 suit against the record owner's predecessor in title,
obtained a temporary restraining order restraining the predecessor from interfering with the adverse
possessors' peaceful use, possession, and enjoyment of the land, and ultimately took a non-suit in 1974,
did not suspend the ten-year limitation period because the 1969 suit was neither adverse to the one
claiming under adverse possession, nor prosecuted to a final judgment. Temple Eastex Inc. v. Busby,
696 S.W.2d 609 (Tex. App. Beaumont 1985), writ refused n.r.e., (Jan. 8, 1986).
[FN6] Trede v. Superior Court of City and County of San Francisco, 21 Cal. 2d 630, 134 P.2d 745 (1943).
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Westlaw,

Database updated November 20 I0
Adverse Possession
Theresa Leming, l 0" Bill Lindsley, lD., and Eric Surette, J,D,

3, Interruption of Continuity
b, By Claimant
§ 104. Purchasing or bargaining for outstanding title, interest, or claim
West's Key Number Digest, Adverse Possession <£:=50
A person in adverse possession of land generally may fortify that right by acquiring any outstanding interest
without weakening the force or effect of the possession,[I] Thus, as a general rule, the continuity of the posses-
sion of an adverse claimant is not interrupted by the claimant's purchasing or bargaining for an outstanding
title,[2] even if the occupant was claiming under color of title,[3] In buying what is outstanding, there is nothing
partaking of the nature of an acknowledgment of the superiority of that title, or an abandonment of one's former
claim,[4] A person may very well deny the validity of an outstanding claim or title, and yet choose to buy peace
at a small price, rather than be at great expense and annoyance in litigating it,[5] As to others than the record
owner, the purchase of an outstanding title, interest, or claim to land by an adverse holder wiJI not of itself inter-
rupt the continuity of adverse possession of the land, [6]
However, an offer to purchase the legal title, or an acceptance of a conveyance of title, as distinguished
from a mere outstanding claim or interest, is a recognition of that title,[7] Although efforts to obtain deeds from
other claimants to the property do not disprove the hostile character of a possession, efforts to buy the property
from the record owner constitute an acknowledgment of the record owner's superior title, and thus disprove the
adverse holding, because there has been no claim of right,[8]
Caution:
The fact that a claimant's request to the record owner for a deed is made after the full period of adverse posses-
sion has run does not preclude consideration of that evidence for the purpose of determining whether the
claimant had been in hostile possession of the property during the period,[9]
© 2011 Thomson Reuters, No Claim to Orig, US Gov, Works,

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[FNI] Dalton v. Johnson, 320 S.W.2d 569 (Mo. 1959).
[FN2] Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984); Calkins v. Kousouros, 72 Idaho 150, 237 P.2d
1053 (1951); Rozmarek v. Plamondon, 419 Mich. 287, 351 N.W.2d 558 (1984); Alsworth v. Richmond
Cedar Works, 172 N.C. 17,89 S.E. 1008 (1916); Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256,
125 A.L.R. 817 (Comm'n App. 1939); Clithero v. Fenner, 122 Wis. 356, 99 N. W. 1027 (1904).
[FN3] Bryant v. Prewitt, 132 Ky. 799, 117 S.W. 343 (1909); John L. Roper Lumber Co. v. Richmond
Cedar Works, 168 N.C. 344, 84 S.E. 523 (1915).
[FN4] Hallowell v. Borchers, 150 Neb. 322, 34 N.W.2d404 (1948).
[FN5] Ripley v. Miller, 165 Mich. 47, 130 N.W. 345 (1911); Dozier v. Krmpotich, 227 Minn. 503, 35
N. W.2d 696 (1949); Hallowell v. Borchers, 150 Neb. 322, 34 N. W.2d 404 (1948).
[FN6] John L. Roper Lumber Co. v. Richmond Cedar Works, 168 N.C. 344, 84 S.E. 523 (1915); Mead-
ers v. Moore, 134 Tex. 127, 132 S.W.2d 256,125 A.L.R. 817 (Comm'n App. 1939).
[FN7] Tidwell v. Strickler, 457 So. 2d 365 (Ala. 1984); Munroe v. Pere Marquette Ry. Co., 226 Mich.
158, 197 N. W. 566 (1924); Myers v. Beam, 551 Pa. 670, 713 A.2d 61 (1998) (request for a quitclaim deed).
Evidence that the adverse claimants cut timber on the disputed land, that they occasionally pastured
cattle on it, and that they ran four strands of wire through a reed brake by nailing them to trees, was in-
sufficient to constitute the adverse, hostile and exclusive occupancy necessary to sustain a claim to the
property based on adverse possession in view of evidence of the claimant's attempt to purchase the
property from the record title holder on two occasions. People's Realty & Development Corp. v. Sulli-
van, 336 So. 2d 1304 (Miss. 1976).
[FN8] Kerlin v. Tensaw Land & Timber Co., Inc., 390 So. 2d 616 (Ala. 1980).
A person could not claim title to the land of an heir by adverse possession because, within the statutory
period, he recognized the title of the heir by accepting a conveyance from him of his interest. Carter v.
Thompson, 167 Ark. 272, 267 S.W. 790, 38 A.L.R. 1053 (1925).
[FN9] Gonthier v. Horne, 576 A.2d 745 (Me. 1990).
© 20 I 0 Thomson Reuters. 33-34B © 20 I 0 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
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Westlaw

Adverse Possession

b. By Claimant
Topic Summaty Correlation Table References
§ 105. Purchasing tax title or lease; acceptance of money to redeem property
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6.
The purchase of a tax title or lease by the occupant of the taxed premises, which were assessed in the name
of other parties, does not interrupt the continuity of such occupant's adverse possession.[I] Such a purchase is
not such recognition of the rightful owners title that would break the period of adverse possession.[2]
However, a later acceptance of money paid by the record owner to redeem the property would be a recogni·
tion of the owner's superior title, and would therefore interrupt the continuity ofpossession.[3]
[FNI] Merritt v. Westerman, 165 Mich. 535, 131 N.W. 66 (1911); Monnot v. Murphy, 207 N.Y. 240,
100N.E. 742(1913).
[FN2] Monno! v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913).
[FN3] Monnot v. Rudd, 139 A.D. 651,124 N.Y.S. 210 (1st Dep't 1910).
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Westlawo

Adverse Possession

c. By Owner
(I) In General; Entry Effecting an Ouster of the Claimant
§ \06, Generally
A.L.R. Library
Validity and construction of statutes providing for reversion of mineral estates for abandonment or nonuse,
16 A.L.R. 4th 1029 §§ 5, 6.
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § II.
An adverse possession can be interrupted by entry of the owner and ouster of the claimant by the owner.[ I]
The running of the statute of limitations will be tolled by the owner's entty on the land if the entry is accompan-
ied with an explicit declaration of purpose to repossess the land.[2]
It has been held that intent, as expressed or as evidenced by acts of ownership, governs the effect of the
entry; the mere act of going on the land is not enough.[3] To regain the lost possession, the owner must assert a
claim to the land or perform some act that would reinstate the owner in possession.[4] However, it has also been
held that it is presumed that, because a use of land by one who has record title is an exercise of his or her right to
enjoy it, such use interrupts the continuity of adverse possession by another.[5] Thus, an owner's use of land oc-
cupied by another is an exercise of the right of ownership that would interrupt the continuity of an adverse pos-
session.[6]
A verbal[7] or written[8] protest by the owner against occupancy of land by an adverse holder, without an
actual entry or an action by the owner, is without effect, because the owner is still disseised.
If an owner goes into occupation of a part of the land that is being claimed adversely under color of title, the
running of the statute of limitations will be stopped as to so much of the land as is constructively possessed by
the adverse claimant under color of title, and will be restricted to that in actual possession by the claimant.[9]
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An owner cannot interrupt an adverse possession secretly.[IO] Thus, an entry by stealth, under circum-
stances showing that the owner claimed no right to enter, or an entry for purposes other than those connected
with a right to enter, does not break the continuity of the adverse possession. [I I]
[FNI] Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984); American Nat. Bank of Beaumont v. Wingate,
266 S.W.2d 934 (Tex. Civ. App. Beaumont 1953), writ refused n.r.e.
[FN2] Chastang v. Chastang, 141 Ala. 451, 37 So. 799 (1904); Armstrong v. Payne, 188 Cal. 585,206
P. 638 (1922); Nelson v. Johnson, 189 Ky. 815, 226 S.W. 94 (1920).
[FN3] Armstrong v. Payne, 188 Cal. 585, 206 P. 638 (1922); Hightower v. Pendergrass, 662 S.W.2d
932 (Tenn. 1983).
As to the sufficiency of acts of entry, see § 107.
[FN4] Lambert v. State, 211 Miss. 129,51 So. 2d 201 (1951).
[FN5] Harlow v. Miller, 147 Vt. 480, 520 A.2d 995 (1986).
[FN6] Carnevale v. Dupee, 783 A.2d 404 (R.I. 2001).
[FN7] Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984); Sowa v. Schaefer, 38 Ohio App. 522, 10 Ohio
L. Abs. 457,175 N.E. 745 (8th Dist. Cuyahoga County 1931).
[FN8] Palac v. DiSanto, 424 Pa. Super. 277, 622 A.2d 378 (1993).
[FN9] Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (1959); Schlossnagle v. Kolb, 97 Md. 285, 54 A.
1006 (1903).
As to constructive possession of an adverse claimant, see § 27.
[FNIO] American Nat. Bank of Beaumont v. Wingate, 266 S.W.2d 934 (Tex. Civ. App. Beaumont
1953), writ refused n.r.e.
[FNII] Armstrong v. Payne, 188 Cal. 585, 206 P. 638 (1922); American Nat. Bank of Beaumont v.
Wingate, 266 S.W.2d 934 (Tex. Civ. App. Beaumont 1953), writ refused n.r.e.
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

c. By Owner
§ 107, Sufficiency of acts of entry
A,L.R. Library
Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse
possession, 76 A.L.R. 3d 1202.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 10, I!.
The running of the statute of limitations will be tolled by the owner's entry, together with such open and no-
torious acts of dominion as make manifest the purpose to resume possession of the land.[1] The conduct claimed
by an owner to work an intenuption of adverse possession must be such as would put a reasonably prudent per-
son on notice that he or she actually has been ousted.[2]
Not every act by the owner related to the land interrupts actual adverse possession.[3] For example, the
posting by the record owner of a "notice to prevent easements" under a statute, while constituting an act of own-
ership and evidence bearing on the continuity of an adverse possession, does not, as a matter of law, interrupt
the possession.[4] Acts of the record owner to ascertain the true condition of title are not sufficient to interrupt
the running of the adverse possession.[5] Also, a mere casual entry for a limited purpose by the record owner is
not necessarily sufficient to destroy adverse possession.[6]
Occasional hunting on the property by the record owner is insufficient to establish corporeal possession of
the property or to interrupt the claimant's possession.[7]
Whether making a survey on disputed property will interrupt continuity of adverse possession sufficiently to
toll the running of limitations must necessarily be decided in each case according to the circumstances, survey-
ing does not interrupt adverse possession as matter oflaw.[8]
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The owner1s execution of an oil and gas lease does not defeat a claim of adverse possession by a possessor
of the surface, if there are no actual entries onto the land in connection with the lease.[9]
[FNI] Annstrong v. Payne, 188 Cal. 585,206 P. 638 (1922); Nelson v. Johnson, 189 Ky. 815,226 S.W.
94 (1920); Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823, 465 N.E.2d 236 (1984); American
Nat. Bank of Beaumont v. Wingate, 266 S. W.2d 934 (Tex. Civ. App. Beaumont 1953), writ refused n.r.e.
Because both the owners of the legal title to swampy woodland and the adjoining owners exercised sim-
ilar acts of possession by desultory cutting of wood from the land and by occasional sales of timber, the
possessory acts of the owners of the legal title were an interruption of the continuous adverse posses-
sion of the adverse claimant, and tolled the repose of their title. Turnipseed v. Moseley, 248 Ala. 340,
27 So. 2d 483, 170 A.L.R. 882 (1946).
[FN2] American Nat. Bank of Beaumont v. Wingate, 266 S.W.2d 934 (Tex. Civ. App. Beaumont 1953),
writ refused n.r.e.
[FN3] Rothery v. MacDonald, 329 Mass. 238, 107 N.E.2d 432 (1952).
[FN4] Rothery v. MacDonald, 329 Mass. 238, 107 N.E.2d 432 (1952).
[FN5] Lambert v. State, 211 Miss. 129,51 So. 2d 201 (1951).
[FN7] Norton v. Addie, 324 So. 2d 497 (La. Ct. App. 2d Cir. 1975), writ issued, 326 So. 2d 378 (La.
1976) and affd in part, rev'd on other grounds in part, 337 So. 2d 432 (La. 1976).
[FN8] Sanford v. Dimes, 3 Conn. App. 639, 491 A.2d 398 (1985); Rosencrantz v. Shields, Inc., 28 Md.
App. 379, 346 A.2d 237, 76 A.L.R.3d 1188 (1975).
[FN9] Krosmico v. Pettit, 1998 OK 90, 968 P.2d 345 (Okla. 1998).
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American Jurisprudence. Second Edition

Adverse Possession

c. By Owner
§ 108. Sufficiency of acts of entry-Grazing livestock or cutting timber
West's Key Number Digest, Adverse Possession €=;>47
It has been held that the grazing of livestock or the cutting of timber, by particular record owners of real
property, defeats the exclusiveness or continuity of possession by an adverse claimant.[l] However, it has also
been held that the grazing of livestock, the gathering of a natural crop, or the cutting of timber by the record
owners of real property does not defeat the exclusiveness or continuity of possession by an adverse claiman!.[2]
[FN I] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Raftopoulos v.
Monger, 656 P.2d 1308,39 A.L.R.4th 1141 (Colo. 1983) (overruled on other grounds by, Gerner v. Sul-
livan, 768 P.2d 701 (Colo. 1989)) and (overruling recognized by, White Front Auto Sales, Inc. v. My-
gatt, 810 P.2d 234 (Colo. C!. App. 1990)); Rogers v. Haughton Timber Co., Inc., 503 So. 2d 1079 (La.
C!. App. 2d Cir. 1987); Coleman v. Waddell, 151 Tex. 337,249 S.W.2d 912 (1952).
[FN2] Winlock v. Gallaspy, 19 La. App. 861, 140 So. 846 (2d Cir. 1932); Dierks Lumber & Coal Co. v.
Vaughn, 131 F. Supp. 219 (E.D. Ark. 1954), judgment atrd, 221 F.2d 695 (8th Cir. 1955) (applying
Arkansas law); Nelson v. Johnson, 189 Ky. 815, 226 S.W. 94 (1920); Lone Star Steel Co. v. Owens,
302 S. W.2d 213 (Tex. Civ. App. Texarkana 1957), writ refused n.r.e; Zellmer v. Martin, 157 Wis. 341,
147 N.W. 371 (1914).
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Westlaw.

Adverse Possession

c. By Owner
(2) Legal Proceedings Regarding Title or Possession
§ 109. Generally
West's Key Number Digest, Adverse Possession €;;;;>51
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 7, 42 et seq.
A verdict and judgment in a proceeding by which the plaintiff recovers the contested land destroys all title
in the defendant at the date of the judgment.[l] While the defendant, by adverse possession beginning after the
judgment, may still acquire title, the period of possession prior to the judgment cannot be considered.[2] The ef-
fect of a suit or action to recover land relates back to the date of its commencement, and the claimant can ac-
quire no additional advantages by remaining in possession during its pendency.[3] Thus, a valid subsisting judg-
ment or decree, even before possession has been taken thereunder, will suspend the running of the statute,[4] if
the judgment has been made effectual by the execution of a writ of possession.[ 5]
To stop the running of the statute of limitations, the proceeding must be:
(I) to recover possession of the property;
(2) brought against the party claiming adversely;[6]
(3) must be prosecuted to final judgment.[7]
While the running of the statute in favor of one in adverse possession is arrested by the bringing of an action
disputing adverse title,[8] the statute is arrested only for the purpose of that action, and not for any other action
subsequently brought, though by the same person.[9]
In a suit to quiet title by one in possession of real property under an adverse claim, an answer by the defend-
ant disputing the plaintiffs title will suspend the plaintiffs possession from the date of the answer, provided the
answer is successfully prosecuted in the action,[ I 0] but an unsuccessful denial of title does not break the con-
tinuity of the plaintiffs possession.[II] Filing a counterclaim challenging the title of the plaintiff and making a
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claim of ownership of the property in the defendant also interrupts the adverse character of the plaintiff's posses-
sion if the counterclaim is successfulIy prosecuted and judgment is awarded to the defendant.[12]
[FNI] Shepherd v. Lyle, 1964 OK 204, 395 P.2d 641 (Okla. 1964).
[FN2] Shepherd v. Lyle, 1964 OK 204, 395 P.2d 641 (Okla. 1964).
[FN3] Flathead Lumber Corp. v. Everett, 127 Mont. 291, 263 P.2d 376 (1953).
[FN4] Creech v. Jenkins, 276 Ky. 163, 123 S.W.2d 267 (1938); Sanford v. Herron, 161 Mo. 176, 61
S.W. 839 (1901).
[FN5] EbelI v. City ofBaker, 137 Or. 427, 299 P. 313 (1931).
A person in possession, who was not a party to an ejectment suit in which a writ of restitution was is-
sued, was not affected by an execution of the writ that merely constructively placed the plaintiff in pos-
session, and the running of the statute of limitations in his favor was not tolIed. Martin v. HalI, 152 Ky.
677,153 S.W. 997 (1913).
[FN7] Gibbs v. Lester, 41 S. W.2d 28, 80 A.L.R. 431 (Tex. Comm'n App. 1931).
[FN8] Tungsten Holdings, Inc. v. Parker, 2001 MT 117, 305 Mont. 329, 27 P.3d 429 (2001).
[FN9] Weiner v. Steams, 40 Utah 185, 120 P. 490 (1911).
[FNIO] Chapin v. Letcher, 93 N.W.2d415 (N.D. 1958).
[FNII] Chapin v. Letcher, 93 N.W.2d415 (N.D. 1958).
[FNI2] Chapin v. Letcher, 93 N.W.2d415 (N.D. 1958).
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Adverse Possession

c. By Owner
(2) Legal Proceedings Regarding Title or Possession
§ 110. Unsuccessful action; discontinuance, dismissal, or reversal of judgment
West's Key Number Digest, Adverse Possession <£:=51
An unsuccessful suit on the part of the record owner does not break the continuity of adverse possession.[ I]
An action of ejectment or an action to try the title to, or obtain the possession of, real estate that fails, or that
does not result in a judgment in favor of the plaintiff, does not have the effect of suspending or tolling the run-
ning of the statute of limitations in favor of the defendant.[2] Thus, one in possession of real estate who is not
dispossessed under an adverse decision in an ejectment suit need not seek restitution on reversal of the judgment
to take advantage of the adverse possession.[3]
In computing the period of adverse possession of land, the time of pendency of any dismissed, abandoned,
or otherwise discontinued action in respect to the property is to be treated as though the action had never been
instituted.[ 4]
[FNI] Crawford v. Sasser, 238 Ky. 543, 38 S.W.2d 434 (1931); Jones v. Schmidt, 170 Neb. 351, 102
N.W.2d 640 (1960): Gibbs v. Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931).
[FN2] Garcia v. McLean, 355 So. 2d 504 (Fla. Dis!. C!. App. 1st Dis!. 1978); Martin v. Hall, 152 Ky.
677, 153 S.W. 997 (1913); Jones v. Schmidt, 170 Neb. 351,102 N.W.2d 640 (1960): Chapin v. Letcher,
93 N.W.2d415 (N.D. 1958).
[FN3] Martin v. Hall, 152 Ky. 677,153 S.W. 997 (1913).
[FN4] Thompson v. Ratcliff, 245 S.W.2d 592 (Ky. 1952) (abandonment); Butler v. Smith, 84 Neb. 78,
120 N.W. 1106 (1909); Gibbs v. Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931).
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AMJUR ADVERSE n H REF Page I
3 Am. Jur. 2d Adverse Possession n H Refs.

Adverse Possession

H. Claim to Property
Research References
West's Key Number Digest, Adverse Possession C=13, 84, 91, 97, 98, 99.1, 100, III
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 21 to 26.5
Forms
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 28,121,123,136,138
rights reserved.
AMJUR ADVERSE n H REF

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AMJUR ADVERSE § III Page I
3 Am. Jur. 2d Adverse Possession § III

Adverse Possession

1. In General; Good Faith
§ 111. Generally; definitions and distinctions
A.L.R. Library
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 § 1.
While the terms "claim of right" and "color of title" are frequently used as synonymous,[I] in fact their
functions are vastly different.[2] Terms such as "claim of right," "claim of title," and "claim of ownership,"
when used in connection with adverse possession, mean nothing more than the intention of the claimant to ap-
propriate and use the land to the exclusion of all others.[3]
"Color of title," on the other hand, is that which gives the semblance or appearance of title, but which is not
title in fact.[ 4]
Both claim and color of title may be present at the same time.[5] In some jurisdictions, a party may establish
a claim of adverse possession by showing either color of title or a claim ofright.[6]
[FN I] Sullivan v. Neel, 105 Mont. 253, 73 P.2d 206 (1937).
[FN2] Smith v. Orr, 242 Ala. 566, 7 So. 2d 294 (1942); Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19
(1920); Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910).
[FN3] § 116.
[FN4] § 130.
[FN5] Roe v. Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. lSI, 50 So. 230 (1909); Bull V.

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AMJUR ADVERSE § III Page 2

3 Am. Jur. 2d Adverse Possession § III
Beiseker, 16 N.D. 290, 113 N.W. 870 (1907).
[FN6] C.H. Moore Trust Estate by Warner v. City of Storm Lake, 423 N. W.2d 13 (lowa 1988); Tester
v. Tester, 300 Mont. 5, 3 P.3d 109 (2000); Miller v. Lambert, 196 W. Va. 24, 467 S.E.2d 165 (1995);
Kimball v. Turner, 993 P.2d 303 (Wyo. 1999).
rights reserved.
AMJUR ADVERSE § III
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Westlaw

Adverse Possession

I. In General; Good Faith
§ 112. Necessity of good faith
A.L.R. Library
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 § 3.
In some jurisdictions, with respect to the validity of a claim of title, good faith must characterize the entry
and possession of the adverse possessor.[l] In other jurisdictions, a claim for adverse possession does not re-
quire a good faith belief in the possessor's claim to the land,[2] and one who uses the land of another in defiance
of the owner is an adverse user, even if he or she admits the lack of a legal justification for the use.[3] Under
some statutes, the requirement of good faith applies only to constructive possession under color of title,[4] so
that one holding possession under color of title that he or she knows was fraudulently procured cannot acquire
prescriptive title.[5]
[FN I] Armstrong v. Cities Service Gas Co., 210 Kan. 298, 502 P.2d 672 (1972); Waterman v. Tidewa-
ter Associated Oil Co., 213 La. 588, 35 So. 2d 225 (1947); State v. Lee, 128 Wash. 2d 151,904 P.2d
1143 (1995).
[FN2] Estate of Stone v. Hanson, 621 A.2d 852 (Me. 1993); Lewis v. Moorhead, 522 N.W.2d I (S.D. 1994).
[FN3] Crandall v. Gould, 244 Conn. 583, 711 A.2d 682 (1998).
[FN4] Snook v. Bowers, 12 P.3d 771 (Alaska 2000); Armour v. Peek, 271 Ga. 202, 517 S.E.2d 527
(1999); Schlueter v. Ackerman, 215 Md. 173, 137 A.2d 179 (1957); Williams v. Howell, 108 N.M. 225,
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770 P.2d 870 (1989).
[FN5] Armour v. Peek, 271 Ga. 202, 517 S.E.2d 527 (1999).
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

1. In General; Good Faith
§ 113. What constitutes good or bad faith
A.L.R. Library
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 §§ 17 et seq.
To establish good faith for the purposes of an adverse possession claim, it is generally sufficient for the
claimant to assert title in the claimant by acts of dominion, and to rely on that title as against the world.[I]
Good or bad faith is not a result of color of claim; the faith, whether good or bad, depends on the purpose
with which the color is obtained, and the reliance placed on the claim and the color.[2] Generally, in the absence
of some statutory provision to the contrary, it is not a necessary element of color of title that the claimant believe
it to be valid; the claimant's possession will not ordinarily be any the less adverse because of knowledge of title
in another.[3] Thus, "good faith" in acquiring title by adverse possession does not require ignorance of adverse
claims or defects in title.[4]
Practice Guide:
Good faith is presumed ifthere is no evidence that the claim of possession originated in fraud.[5]
However, under some statutes, occupancy of land under color of title, to be deemed adverse, must be with
the belief that the occupant's title is valid.[6] Thus, a claimant who takes color of title with knowledge of its in-
validity is guilty of bad faith and cannot base adverse possession on that color oftitle.[7]
It has been held that the claim to the property need not have been a rightful[8] or well-founded one.[9] It is
sufficient if there is a bona fide purpose to assert and rely on the possession and claim of right as hostile or ad-
verse to that of the real owner.[IO] However, it has also been held that an adverse claimant must in good faith
believe the claimant has some claim of right or title to the premises,[ll] and that the good faith required of a
claimant under the limitations act requires that the claimant have a bona fide belief of ownership of the land
claimed.[12] It has also been held that a claim of right must be honestly entertained before adverse possession

Page 239 of665

can arise under it,[ 13] and that there must be a basis for the claim.[14]
Caution:
An adverse possession commenced in good faith under a written instrument is not affected by subsequent bad
faith of the claimant.[15] The relevant time period for determining a claimant's good faith, for a claim of adverse
possession under color of title, is when the claimant obtained color of title to or took possession of the property,
not throughout the period ofpossession.[16]
[FNI] Roe v. Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. 151,50 So. 230 (1909); Sparks v.
Douglas & Sparks Realty Co., 19 Ariz. 123, 166 P. 285 (1917).
[FN2] Bergesen V. Clauss, 15 III. 2d 337, ISS N.E.2d 20, 68 A.L.R.2d 446 (1958).
[FN3] Shutt V. Methodist Episcopal Church, 187 Ky. 350, 218 S.W. 1020 (1920); Marion Inv. CO. V.
Virginia Lincoln Furniture Corp., 171 Va. 170, 198 S.E. 508,118 A.L.R. 939 (1938).
[FN4] Foster v. Foster, 267 Ala. 90, 100 So. 2d 19 (1958); Thurmond V. Espalin, 50 N.M. 109, 171
P.2d 325 (1946); Bruch V. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
[FN5] Childs V. Sammons, 272 Ga. 737, 534 S.E.2d 409 (2000).
[FN6] Baker V. Schofield, 243 U.S. 114, 37 S. Ct. 333, 61 L. Ed. 626 (1917); Bel V. Manuel, 234 La.
135,99 So. 2d 58 (1958); Schlueter V. Ackerman, 215 Md. 173,137 A.2d 179 (1957); State v. King, 77
W. Va. 37, 87 S.E. 170(1915).
[FN7] Dussart V. M. Abdo Mercantile Co., 57 Colo. 423, 140 P. 806 (1914); Bergesen V. Clauss, IS 111.
2d 337, ISS N.E.2d 20,68 A.L.R.2d 446 (1958); Apodaca V. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
[FN8] Walker V. Bowen, 333 Mich. 13,52 N.W.2d 574 (1952); Foote V. Kearney, 157 Wash. 681, 290
P. 226 (1930).
[FN9] Walker v. Bowen, 333 Mich. 13, 52 N.W.2d 574 (1952); Marion Inv. Co. v. Virginia Lincoln
Furniture Corp., 171 Va. 170, 198 S.E. 508, 118 A.L.R. 939 (1938).
[FN 10] Foster V. Foster, 267 Ala. 90, 100 So. 2d 19 (1958).
[FNII] Creel V. Hammans, 234 Iowa 532,13 N.W.2d 305 (1944).
As to adverse possession by trespasser, see § 114.
[FN 12] Bergesen V. Clauss, IS III. 2d 337, 155 N.E.2d 20, 68 A.L.R.2d 446 (1958).
[FNI3] Hannah V. Kenny, 210 Ga. 824, 83 S.E.2d I (1954).
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[FNI4] Abel v. Abel, 245 Iowa 907, 65 N.W.2d 68 (1954).
[FNI5] Bel v. Manuel, 234 La. 135,99 So. 2d 58 (1958).
[FN 16] Snook v. Bowers, 12 P.3d 771 (Alaska 2000).
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Adverse Possession

§ 114. What constitutes good or bad faith-Possession of a trespasser
In some jurisdictions, the conduct of an intentional trespasser, if repeated, might ripen into adverse posses-
sion.[ 1] However, in other jurisdictions, a trespasser's possession cannot ripen into title through adverse posses-
sion.[2]
[FNI] Dawson v. Falls City Boat Club, 136 Mich. 259, 99 N.W. 17 (1904); Kellison v. Mclsaac, 131
N.H. 675. 559 A.2d 834 (1989); Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997).
[FN2] Jacobs v. Perry. 135 Colo. 550, 313 P.2d 1008 (1957); Mann v. Carter, 213 Ga. 85, 97 S.E.2d
137 (1957); Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920); Armstrong v. Cities Service Gas
Co., 210 Kan. 298, 502 P.2d 672 (1972).
As to an act of trespass not constituting an act of dominion, see §§ 28, 29.
As to an act of trespass not constituting open and notorious possession, see §§ 62 et seq.
As to an act of trespass not disturbing exclusiveness of possession, see § 63.
As to the unavailability of the period of possession of a trespasser in tacking periods of possession, see
§§ 78 et seq.
rights reserved.
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Westlaw

Adverse Possession

§ 115. What constitutes good or bad faith-Fraud, stealthiness, or conspiracy
West's Key Number Digest, Adverse Possession €=> 13, 84
If good faith is required, whether by general or statutory law, in the creation or acquisition of color of title,
the transaction must be free from a design to defraud those who appear to have a better title than the c1airnant's.[
I] The possession, whether it is under "claim" or "color" of title, must have nothing of stealthiness in it.[2] It
must not have originated in fraud on the part of the claimant;[3] actual fraud is neither sanctioned nor cured by
the statute of limitations.[4] Thus, actual fraud by a person will prevent a person from acquiring title by adverse
possession.[5]
Similarly, if a person obtains possession of personal property secretly by a common-law larceny and con-
ceals that possession, lapse of time cannot confer title on the thief.[6]
Under some statutes, the type of fraud that will prevent acquisition of title by adverse possession must be
actual or positive fraud, not constructive or legal fraud.[7]
[FNI] State v. King, 77 W. Va. 37, 87 S.E. 170 (1915).
[FN2] Iowa R. Land Co. v. Blumer, 206 U.S. 482, 27 S. Ct. 769, 51 L. Ed. 1148 (1907); Lightfoot v.
Davis, 198 N.Y. 261, 91 N.E. 582 (1910).
[FN4] Baker v. Schofield, 243 U.S. 114, 37 S. Ct. 333, 61 L. Ed. 626 (1917); Farabow v. Perry, 223
N.C. 21, 25 S.E.2d 173 (1943).
[FN5] Wanamaker v. Wanamaker, 215 Ga. 473, III S.E.2d 94 (1959).
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[FN6] Lightfoot v. Davis, 198 N.Y. 261, 91 N.E. 582 (19\0); Luter v. Hutchinson, 30 Tex. Civ. App.
511,70 S.W. 1013 (1902).
[FN7] Wanamaker v. Wanamaker, 215 Ga. 473,111 S.E.2d 94 (1959).
rights reserved.
END OF DOCUMENT
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Westl~w.

Adverse Possession

2. Claim of Right, Title, or Ownership
§ I 16. Generally
West's Key Number Digest, Adverse Possession C=13, 97, 98, I I I
A.L.R. Library
Forms
Instruction to jury-Effect of adverse possession under claim of right or title. I BAm. Jur. Pleading and
Practice Fonns, Adverse Possession § 121.
For the possession ofland to be adverse, it must be based on a claim ofright,[I] title,[2] or ownership.[3]
Observation:
The doctrine of adverse possession was formulated at law to protect those who knowingly appropriated the land
of others and those who honestly held the property in the beliefthat it was their own[4]
The claim of the occupant is not limited by the occupant's belief in a right to possession, but only by the in-
tent with which the occupant asserts the right.[5]
A mere claim of title wi11 not ripen into title, no matter how long it is asserted,[6] because it is only one of
several requirements for the acquisition of title by adverse possession.[7]
Cases:
The term "claim of right" as an element of a claim of ownership under the adverse possession statute is syn-
onymous with "claim of title" and "claim of ownership"; while this does not mean that the possession must be
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accompanied by a claim of title out of some predecessor, it does mean that there must be some claim of title in
the sense that the possessor claims the property as his own. Walker v. Sapelo Island Heritage Authority, 285 Ga.
194,674 S.E.2d 925 (2009).
lEND OF SUPPLEMENTI
[FNI] Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. CI. 545 (1997), judgment
affd, 230 F.3d 1375 (Fed. Cir. 1999), amended, (Mar. 27, 2000) and reh'g and reh'g en bane denied,
(Apr. 6, 2000) and cert. denied, 531 U.S. 957, 121 S. Ct. 380, 148 L. Ed. 2d 293 (2000) (applying
Maryland law); Dillard v. Alexander, 277 Ala. 202, 168 So. 2d 233 (1964); Lewes Trust Co. v. Grindle,
53 Del. 396, 170 A.2d 280 (1961); Kurz v. Blume, 407 111. 383, 95 N.E.2d 338, 25 A.L.R.2d 1258
(1950); Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920); Meyers v. Canutt, 242 Iowa 692, 46
N.W.2d 72, 24 A.L.R.2d I (1951); Ottavia v. Savarese, 338 Mass. 330, 155 N.E.2d 432, 2 A.L.R.3d 997
(1959); Horbes v. Ahearn, 369 Mich. 423, 120 N.W.2d 215 (1963); Morgan v. Jenson, 47 N.D. 137,
181 N.W. 89 (1921); Gibbs v. Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931); Sowles
v. Minot, 82 VI. 344, 73 A. 1025 (1909); Millerv. Lambert, 196 W. Va. 24, 467 S.E.2d 165 (1995).
[FN2] Raby v. Hill, II Alaska 600, 1948 WL 777 (Terr. Alaska 1948); Carnahan v. Cummings, 105
Neb. 337, 180 N.W. 558, 12 A.L.R. 1455 (1920); Van Valkenburgh v. Lutz, 304 N.Y. 95, 106 N.E.2d
28 (1952).
[FN3] Walter v. Jones, 15111. 2d 220, 154 N.E.2d 250 (1958); Ford v. Rhymes, 233 Miss. 651, 103 So.
2d 363 (1958); Reinheimer v. Rhedans, 327 S.W.2d 823 (Mo. 1959); Elsasser v. Szymanski, 163 Neb.
65,77 N. W.2d 815 (1956).
[FN4] ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 774 P.2d 6 (1989).
[FN5] Holmes v. Johnson, 324 Mass. 450, 86 N.E.2d 924 (1949); Sturm v. Mau, 209 Neb. 865, 312
N.W.2d 272 (1981).
[FN6] Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956); Bilby v. Wire, 77 N.W.2d 882 (N.D. 1956).
[FN7] §§ 10 et seq.
rights reserved.
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Westlaw

Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surelle, J.D.

§ 117. Necessity of a writing
West's Key Number Digest, Adverse Possession oC=I3, 97, 98
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 4 et seq.
A claim of right or title (as distinguished from color of title) as a basis for the acquisition of title by adverse
possession need not be based on writing,[I] and will be effective if the original entry was under an oral contract
of sale,[2] or under a parol gift,[3] or under any other parol agreement.[4] The efficacy of the acquired title does
not depend on the fact that the entry was had under the oral gift or agreement, but rather on the fact that it was
maintained under a claim ofright.[5]
[FNI] Holub v. Titus, 120 Ark. 620, 180 S.W. 218 (1915); Brooks-Scanlon Co. v. Childs, 113 Miss.
246, 74 So. 147, 2 A.L.R. 1453 (1917); Marion Inv. Co. v. Virginia Lincoln Furniture Corp., 171 Va.
170,198 S.E. 508, 118 A.L.R. 939 (1938).
As to the necessity ofa writing to establish color of title, see § 125.
[FN2] Holland v. Ousbye, 132 Minn. 106, 155 N.W. 1071 (1916); Brooks-Scanlon Co. v. Childs, 113
Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917).
[FN3] Pendley v. Pendley, 338 So. 2d 405 (Ala. 1976); Ramey v. Ramey, 353 S.W.2d 191 (Ky. 1962);
Chatman v. Carter, 226 Miss. 621, 84 So. 2d 926 (1956); Harrelson v. Reaves, 219 S.C. 394, 65 S.E.2d
478,43 A.L.R.2d I (1951); Raleigh v. Wells, 29 Utah 217, 81 P. 908 (1905).
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[FN4] Schmidt v. Brown, 226 111. 590, 80 N.E. 1071 (1907); Butcher v. Butcher, 137 Mich. 390, 100
N.W. 604 (1904); Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917).
[FN5] Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917).
rights reserved.
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Adverse Possession

§ 118. What constitutes a claim of right
A.L.R. Library
Tenns such as "claim of right," "claim of title," and "claim of ownership," when used in connection with ad-
verse possession, have been defined as the intention of the claimant to appropriate and use the land to the exclu-
sion of all others,[I] irrespective of any semblance or shadow of actual title or right.[2] "Claim of right" also has
been defined as the entry of an adverse claimant with an intent to claim and hold the land as the claimant's own,[
3] to the exclusion of all others.[4] Thus, the tenn "claim of right" means no more than the tenn "hostile;" and if
possession is hostile, it is under a claim ofright.[5]
[FNl] Guaranty Title & Trust Corp. v. U. S., 264 U.S. 200, 44 S. Ct. 252, 68 L. Ed. 636 (1924); Roe v.
Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. 151,50 So. 230 (1909); Gunther & Shirley Co.
v. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958); Fredericksen V. Henke, 167 Minn. 356,
209 N.W. 257,46 A.L.R. 785 (1926); Ball V. Martin, 217 Miss. 221, 63 So. 2d 833 (1953); Bessler V.
Powder River Gold Dredging Co., 95 Or. 271, 187 P. 621 (1920); Grappo V. Blanks, 241 Va. 58,400
S.E.2d 168 (1991); Sisson V. Koelle, 10 Wash. App. 746, 520 P.2d 1380 (Div. 2 1974).
As to claim of right, title, and ownership, generally, see §§ 112 et seq.
As to exclusiveness of possession, see §§ 67 et seq.
[FN2] Gunther & Shirley CO. V. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958); Ball V.
Martin, 217 Miss. 221, 63 So. 2d 833 (1953); Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981);
Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999); Young Kee Kim V.

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Douval Corp., 259 Va. 752, 529 S.E.2d 92 (2000).
[FN3] Eaton v. Town of Wells, 2000 ME 176, 760 A.2d 232 (Me. 2000); Hoffman v. Freeman Land
and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999); Peters v. Gillund, 186 S.W.2d 1019 (Tex. Civ.
App. Galveston 1945), writ refused w.o.m., (June 13, 1945); Young Kee Kim v. Douval Corp., 259 Va.
752,529 S.E.2d 92 (2000); Selman v. Roberts, 185 W. Va. 80, 404 S.E.2d 771 (1991).
[FN4] Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554,994 P.2d 106 (1999); Young Kee
Kim v. Douval Corp., 259 Va. 752, 529 S.E.2d 92 (2000).
[FN5] Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998); Hinman v. Barnes, 146 Ohio St. 497, 32
Ohio Op. 564,66 N.E.2d 911 (1946).
As to the hostile character of possession, see §§ 41 et seq.
rights reserved.
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Westlawo

Adverse Possession

§ 119. What constitutes a claim of right-As determined from words or actions
Forms
Instruction to jury-Notice of claim of right inferred by possession. IB Am. Jur. Pleading and Practice
The existence of a claim of right in an adverse possession case may be manifested either by words or by
acts, and it is general1y inferred from the latter.[I] Thus, it is not necessary to establish a claim of right or claim
of ownership that possession be accompanied by an express declaration or claim of title; it is sufficient if the
proof shows that the party in possession has acted so as to clearly indicate a claim of title.[2] If the claimant's
acts and conduct clearly indicate a claim of ownership, that is sufficient.[3] Thus, the actual occupation, use, and
improvement of the premises by the claimant, as if the claimant were in fact the owner, without payment of rent
or recognition of title in another or, the claimant's disavowal of title, is sufficient to raise a presumption of entry
and holding as absolute owner, and, unless rebutted, will establish the fact of a claim ofright.[4]
[FNI] Hollis v. Tomlinson, 585 So. 2d 862 (Ala. 1991); Calhoun v. Woods, 246 Va. 41, 431 S.E.2d 285
(1993); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. I (1929).
[FN2] Walter v. Jones, 15 III. 2d 220, 154 N.E.2d 250 (1958); Kendal1 v. Selvaggio, 413 Mass. 619,
602 N.E.2d 206 (1992); Nebraska State Bank v. Gaddis, 208 Neb. 136,302 N.W.2d 686 (1981); Carne-
vale v. Dupee, 783 A.2d 404 (R.1. 2001).
An adverse claim of title to land was established by evidence that the claimant filed of record a deed of
the property to the claimant, that each year after that he paid taxes on the property, that he fenced the
property and used it for the grazing of livestock, and that he placed lasting improvements on the prop-
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3 Am. Jur. 2d AdYerse Possession § 119
erty. Brewster Y. Herron, 1952 OK 440, 267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
[FN3] Hunsley Y. Valter, 12 Ill. 2d 608, 147 N.E.2d 356 (1958); Smith Y. Feneley, 240 Mich. 439, 215
N.W. 353 (1927); Marion Iny. CO. Y. Virginia Lincoln Furniture Corp., 171 Va. 170, 198 S.E. 508, 118
A.L.R. 939 (1938); Foote Y. Kearney, 157 Wash. 681, 290 P. 226 (1930).
[FN4] Carney Y. Hennessey, 74 Conn. 107, 49 A. 910 (1901); Shoer Y. Daffe, 337 Mass. 420, 149
N.E.2d 625 (1958); Marion Iny. CO. Y. Virginia Lincoln Furniture Corp., 171 Va. 170, 198 S.E. 508,
118 A.L.R. 939 (1938); Buchanan Y. Cassell, 53 Wash. 2d 611, 335 P.2d 600 (1959); Illinois Steel CO.
Y. Budzisz, 106 Wis. 499,81 N.W. 1027 (1900); State Y. Moore, 356 P.2d 141 (Wyo. 1960).
Because a man built a house on the land, planted it to lawn and surrounded it and the rest of the prop-
erty with a hedge, his use was that ordinarily made only by an owner, and it was reasonably inferable
that his possession was taken under a claim of ownership. Shoer Y. Daffe, 337 Mass. 420, 149 N.E.2d
625 (1958).
© 20 I 0 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. GOYt. Works. All
rights reserved.
END OF DOCUMENT
© 2011 Thomson Reuters. No Claim to Orig. US GOY. Works.
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Westlaw,

Adverse Possession

§ 120. What constitutes a claim of right-Particular conduct
West's Key Number Digest, Adverse Possession <C=:>97, 98
A.L.R. Library
A.L.R. 3d 818 § 12.
A particular act or series of acts is not necessary to demonstrate an intention to claim ownership.[l]
However, a claim of ownership may be evidenced by:
- possessing a void deed.[2]
- receiving the rents,[3] issues, and profits of the property.[4]
- occupying the property.[5]
- conveying,[6] devising, leasing,[7] or encumbering the property.[8]
- improving the property.[9]
A mere passive possession, without intending to claim the property, is insufficient, regardless of the length
of time it continues, or however open, notorious, or exclusive it may have been.[10] Neither continuous and un-
interrupted possession nor payment of taxes alone will establish a claim ofright.[ II]
[FNI] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, \04 A.2d 908 (1954); Robin v. Brown, 308
Pa. 123, 162 A. 161 (1932); Mandelbaum v. Looney Mercantile Co., 293 S.W. 203 (Tex. Civ. App.
Austin 1927).
[FN2] Hoftinan v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999); Bruch v. Bene-
dict, 62 Wyo. 213,165 P.2d 561 (1946).
[FN3] Allen v. Wiseman, 359 Mo. 1026,224 S.W.2d 1010 (1949).
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[FN4] Preston v. Preston, 1949 OK 59, 201 Okla. 555,207 P.2d 313 (1949).
[FN5] East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992).
[FN6] Stiff v. Cobb, 126 Ala. 381, 28 So. 402 (1900); Preston v. Preston, 1949 OK 59, 201 Okla. 555,
207 P.2d 313 (1949).
[FN7] Preston v. Preston, 1949 OK 59, 201 Okla. 555, 207 P.2d 313 (1949).
232,294 P. 130 (1930).
[FN9] Childs v. Sammons, 272 Ga. 737, 534 S.E.2d 409 (2000); Warner v. Wickizer, 1930 OK 419,
146 Okla. 232, 294 P. 130 (1930); Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826 (R.\.
2001); Pioneer Investment & Trust Co. v. Board of Education of Salt Lake City, 35 Utah 1, 99 P. 150
(1909); Illinois Steel Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
[FNIO] Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Pioneer Investment & Trust Co. v. Board of
Education of Salt Lake City, 35 Utah 1,99 P. 150 (1909).
[FNII] Lynch v. Lynch, 239 Iowa 1245,34 N.W.2d 485 (1948).
As to payment of taxes, generally, see §§ 146 et seq.
rights reserved.
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Adverse Possession

§ 121. Nature and extent of claim
West's Key Number Digest, Adverse Possession €::=97, 98, III
The nature and extent of the estate acquired by adverse possession is fixed by the claim of the possessor,
coupled with the fact of possession under the circumstances contemplated by law.[1] To establish title by ad-
verse possession, the claim of right must be as broad as the possession.[2] If an adverse claimant claims less
than the whole of a certain property, the claimant's rights will be limited accordingly, because adverse title can-
not be acquired to more than is claimed.[3] However, a disclaimer of title as to a part of the land will not affect
the claimant's adverse possession of the rest.[4]
If a person claims only a limited estate, and not a fee, the law will not, contrary to the claimant's intention,
enlarge it to a fee.[5] For example, only a life estate is acquired if an adverse possessor claims only a life estate.[ 6]
A claim as a tenant cannot ripen into title in the tenant by adverse possession.[7]
[FNI] Joy v. Outlaw, 28 Tenn. App. 565,192 S.W.2d 81 (1945).
[FN2] Brewer v. Claypool, 223 Iowa 1235,275 N.W. 34 (1937).
[FN3] Parrillo v. Riccitelli, 84 R.1. 276,123 A.2d 248 (1956) (portion of an unaccepted street).
[FN4] St. William's Church, Raquette Lake, v. People, 269 A.D. 874, 56 N.Y.S.2d 868 (3d Dep't 1945),
judgment rev'd on other grounds, 296 N.Y. 861, 72 N.E.2d 604 (1947).
[FN6] West v. Moore, 193 Tenn. 431, 246 S.W.2d 74 (1952).
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Westlaw

Adverse Possession

§ 122. Motive of claimant; acts after entry
West's Key Number Digest, Adverse Possession oC=84, 97, 98
An adverse occupant's claim of right does not depend on the remote motives or purposes of the occupant.[ I]
Thus, inquiry is not to be made into the recesses of the possessor's mind, the possessor's motives or purposes, or
the possessor's guilt or innocence.[2]
However, if, after the original entry, the claimant recognizes the real owner's title by claiming and establish-
ing an easement by prescription across the property in question, that may show that occupation was not under a
claim oftitle.[3]
[FNI] Krause v. Nolte, 217 III. 298, 75 N.E. 362 (1905); Nebraska State Bank v. Gaddis, 208 Neb. 136,
302 N.W.2d 686 (1981).
[FN2] Pettis v. Lozier, 205 Neb. 802, 290 N.W.2d 215 (1980); Fulton v. Rapp, 45 Ohio Op. 494, 59
Ohio L. Abs. 105,98 N.E.2d 430 (Ct. App. 2d Dist. Madison County 1950).
[FN3] Van Valkenburgh v. Lutz, 304 N.Y. 95,106 N.E.2d 28 (1952).
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Westlaw

Adverse Possession

3. Color of Title
a. In General
§ 123. Generally; necessity
West's Key Number Digest, Adverse Possession €;:;:;:>99.1
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § 3[(b)].
Forms
Instruction to jury-Elements of adverse possession-Necessity for color of title. IB Am. Jur. Pleading and
In the absence of a statutory requirement, color of title is not a necessary element of adverse possession.[J]
Thus, it is not generally necessary that an adverse claimant have color of title to land actually possessed to in-
voke the statute of limitations.[2]
Definitions:
"Color of title" is that which gives the semblance or appearance of title, but which is not title in fact-that
which, on its face, professes to pass title, but fails to do so because of a want of title in the person fTom whom it
comes or the employment of an ineffective means of conveyance.[3]
In certain jurisdictions, however, statutes require an entry under color of title, or the subsequent acquisition
of color of title, before the possession of land can be deemed to be adverse to the holder of the legal title.[4]
Also, some statutes make color of title an alternative requisite for establishing title by adverse possession.[5] In
some states, color of title is essential to the acquisition of title by adverse possession, usually requiring a shorter
period of adverse holding in such cases than in cases without color oftitle.[6]

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[FNI] Ruick v. Twarkins, 171 Conn. 149,367 A.2d 1380 (1976); Seaboard Air Line Ry. Co. v. Board
of Bond Trustees of Special Road and Bridge Dis!. No. I of Alachua County, 91 Fla. 612, 108 So. 689,
46 A.L.R. 870 (1926); Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Boese v. Crane, 182
Kan. 777, 324 P.2d 188 (1958); Naporra v. Weckwerth, 178 Minn. 203, 226 N.W. 569, 65 A.L.R. 124
(1929); Gates v. Roberts, 350 S.W.2d 729 (Mo. 1961); Thibault v. Flynn, 133 Mont. 461, 325 P.2d 914
(1958); Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901); Graniteville Co. v. Williams, 209 S.C.
112,39 S.E.2d 202 (1946); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. I (1929).
[FN2] Garringer v. Wingard, 585 So. 2d 898 (Ala. 1991); Hamburg Realty Co. v. Walker, 327 S.W.2d
155 (Mo. 1959); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920); City of Deadwood v. Sum-
mit, Inc., 2000 SD 29, 607 N. W.2d 22 (S.D. 2000).
The acquisition of title to an alleyway by adverse possession was not precluded by the absence of a
showing of a paper claim by the adverse possessor or by any indication that his possession may have
been based on ignorance or mistake as to the true location of the boundary line. Hub Bel Air, Inc. v.
Hirsch, 203 Md. 637,102 A.2d 550, 39 A.L.R.2d 1420 (1954).
[FN3] § 130.
[FN4] Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d I (1954); Carpenter v. Ruperto, 315 N.W.2d 782
(Iowa 1982); Bel v. Manuel, 234 La. 135, 99 So. 2d 58 (1958); Estate of Stone v. Hanson, 621 A.2d 852
(Me. 1993) (statute applicable only to uncultivated lands); Williams v. Howell, 108 N.M. 225, 770 P.2d
870 (1989); Doenz v. Garber, 665 P.2d 932 (Wyo. 1983).
[FN5] § 116.
[FN6] § 124.
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Westlaw

Adverse Possession

3. Color of Title
a. In General
§ 124. Effect
West's Key Number Digest, Adverse Possession ~99.1
A.L.R. Library
Forms
Complaint, petition, or declaration-Allegation-Tacking prior possession under color of title. IB Am. JUT.
Pleading and Practice Forms, Adverse Possession § 136.
The requirements for acquiring title by adverse possession are sometimes less stringent if the claimant
enters under color of title than if the claimant does not.[ 1]
Color of title is required to extend an actual possession of a part of a tract of land constructively over the
rest ofit;[2] however, color of title, without actual possession, does not give constructive possession.[3]
Whether or not it is required by statute, an entty under color of title affords some evidence of the character
of the possession.[4] However, color of title is not of itself evidence of adverse possession, and adverse posses·
sion cannot necessarily be proved by less evidence when the entry is under color of title than when it is not.[5]
The existence of color of title does not dispense with the necessity for acts of adverse possession.[6]
[FNl] Harper v. Smith, 582 So. 2d 1089 (Ala. 1991) (shorter period of limitations); Clark v. Dillard,
233 Ark. 760, 346 S.W.2d 684 (1961); Peters v. Smuggler-Durant Min. Corp., 930 P.2d 575 (Colo.
1997) (shorter period of limitations); Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997);
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DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999) (shorter period of limitations);
Bell v. Gussenhoven, 132 Mont. 346, 318 P.2d 251 (1957); Di Leo v. Pecksto Holding Corporation, 304
N.Y. 505, 109 N.E.2d 600 (1952); Johnson v. McLamb, 247 N.C. 534, 101 S.E.2d 311 (1958).
As to the requirement under such statutes that the claimant pay property taxes, see § 151.
[FN2] White v. Hardisty, 220 Md. 152, 151 A.2d 764 (1959).
As to actual possession, generally, see §§ 16 et seq.
[FN4] Lowrey v. Mines, 253 Ala. 556, 45 So. 2d 703 (1950); Territory v. Pai-a, 34 Haw. 722, 1938 WL
6825 (1938); Ingram v. Jeffersonville, N.A. & S. Rapid Transit Co., 65 Ind. App. 532, 116 N.E. 12
(Div. I 1917); Sailer v. Mercer County, 77 N.D. 698,45 N.W.2d 206, 22 A.L.R.2d 988 (1950).
[FN5] Roe v. Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. 151,50 So. 230 (1909); Rich-
bourg v. Rose, 53 Fla. 173,44 So. 69 (1907); McBeth v. Wetnight, 57 Ind. App. 47, 106 N.E. 407 (Div.
I 1914); Cothran v. Akers Motor Lines, Inc., 257 N.C. 782,127 S.E.2d 578 (1962).
[FN6] Leake v. Richardson, 199 Va. 967, 103 S.E.2d 227 (1958).
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Adverse Possession

3. Color of Title
a. In General
§ 125. Necessity of a writing
West's Key Number Digest, Adverse Possession o€>99.1, 100(2)
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § 3[(b)].
In some states, a writing is considered to be indispensable to color of title----either as a matter of general

law[l] or because of statutory requirements-[2]so an oral transaction, however effective it may be as between
the parties, does not constitute color oftitle.[3]
In other states, however, color of title may exist in the absence of a writing.[4] Thus, in some jurisdictions,
possession under an oral gift or sale is possession under color oftitle.[5]
[FNI] Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910); Urbanee v. Urbanee, 43 N.D. 127, 174
N.W. 880 (1919); State v. King, 77 W. Va. 37, 87 S.E. 170 (1915).
[FN2] Green v. Dixon, 727 So. 2d 781 (Ala. 1998); Snook v. Bowers, 12 P.3d 771 (Alaska 2000);
Lower Latham Ditch Co. v. Louden Irrigating Canal Co., 27 Colo. 267, 60 P. 629 (1900); Meyer v.
Law, 287 So. 2d 37 (Fla. 1973); Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997);
Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917); Currier v. Gonzales,
78 N.M. 541,434 P.2d 66 (1967); General Greene Inv. Co. v. Greene, 48 N.C. App. 29, 268 S.E.2d 810
(1980); Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901); Carnevale v. Dupee, 783 A.2d 404 (R.!.
2001).
[FN3] Territory v. Pai-a, 34 Haw. 722, 1938 WL 6825 (1938); Joplin Brewing Co. v. Payne, 197 Mo.
422,94 S.W. 896 (1906); Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910); Lyles v. Fellers, 138
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S.c. 31,136 S.E. 13 (1926).
[FN4] Guaranty Title & Trust Corp. v. U. S., 264 U.S. 200, 44 S. Ct. 252, 68 L. Ed. 636 (1924); Davis
v. Biddle, 89 Ind. App. 361, 166 N.E. 301 (1929); Sowers v. Keedy, 135 Md. 448, 109 A. 143 (1919);
Russell v. Tennant, 63 W. Va. 623, 60 S.E. 609 (1908).
[FN5] § 133.
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Adverse Possession

3. Color of Title
a. In General
§ 126. Necessity of purporting to convey particular property
West's Key Number Digest, Adverse Possession €;=100(4)
A.L.R. Library
Judgment or decree as constituting color of title, 71 A.L.R. 2d 404 §§ 2, 4, 9.
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 § I I.
For an instrument to be effective as color of title, it is generally necessary that it purport to convey the prop-
erty involved.[ I] A proper description of the premises in the instrument relied on as color of title is of vital im-
portance; if the description does not identify the land with the degree of certainty essential to ascertain the
boundaries and identity of the property, the instrument lacks one of the first essentials of color of title.[2] A deed
is not color of title if it is void for indefiniteness of description,[3] if the description is so bad that the land can-
not be located,[4] or if the lands are not described at all.[5]
A deed is color of title only for the land designated and described in it.[6] Because one cannot claim color
of title by deed beyond what the deed purports to convey,[7] a deed that describes part of a tract does not consti-
tute color of title to the part of the tract not described.[8] Also, the presence of an exception in a deed forbids the
grantee to claim under color of title any of the land embraced in the exception.[9]
Color of title cannot be based on a mistake as to the property actually described in a deed,[ I 0] but the mere
fact that a mistake has been made in describing the land is not fatal. [ II]
Observation:
If a deed on which adverse possession is based contains a vague and unsatisfactory description of the property,
and it is necessary for the purchaser to institute an investigation into the extent of the title purchased, which re-
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veals facts and conditions that should put a reasonably prudent person on guard, it then devolves on the pur-
chaser to pursue every lead and ferret out all of the facts so that the purchase is not made until complete inform-
ation is available; and the purchaser who does not do this, but who purchases on erroneous assumptions and con-
clusions, does so at his or her own risk.[12]
[FNl] Napier v. Little, 137 Ga. 242, 73 S.E. 3 (1911); Shepherd v. Cox, 191 Miss. 715, 4 So. 2d 217,
136 A.L.R. 1346 (1941); Johnson v. McLamb, 247 N.C. 534,101 S.E.2d 311 (1958).
As to requisites of instrument purporting to convey property, see § 130.
[FN2] Brannan v. Henry, 142 Ala. 698, 39 So. 92 (1905); Snook v. Bowers, 12 P.3d 771 (Alaska 2000);
Worthen v. Rushing, 228 Ark. 445, 307 S.W.2d 890 (1957); Seton v. Swann, 650 So. 2d 35 (Fla. 1995);
Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997); Carney v. Heinson, 133 Idaho 275,
985 P.2d 1137 (1999); Holcomb v. Swift Coal & Timber Co., 251 Ky. 642, 65 S.W.2d 741 (1933);
Walker v. Polk, 208 Miss. 389, 44 So. 2d 477 (1950); Allen v. Morgan, 48 N.C. App. 706, 269 S.E.2d
753 (1980); Sowles v. Minot, 82 Vt. 344, 73 A. 1025 (1909); Waldron v. Harvey, 54 W. Va. 608, 46
S.E. 603 (1904) (partition decree); Doenz v. Garber, 665 P.2d 932 (Wyo. 1983).
[FN3] Bennett v. Rewis, 212 Ga. 800, 96 S.E.2d 257 (1957).
[FN4] Hughes v. Heard, 215 Ga. 156, 109 S.E.2d 510 (1959).
[FN5] Quality Plastics, Inc. v. Moore, 131 Ariz. 238, 640 P.2d 169 (1981); Hanna v. Palmer, 194 III.
41,61 N.E. 1051 (1901).
[FN6] Tilbury v. Osmundson, 143 Colo. 12,352 P.2d 102 (1960); John Wallingford Fruit House Inc. v.
MacPherson, 386 A.2d 332 (Me. 1978); Bums v. Crump, 245 N.C. 360, 95 S.E.2d 906 (1957); State
Bank & Trust of Kenmare v. Brekke, 1999 NO 212, 602 N.W.2d 681 (N.D. 1999).
Possession of the west half of a lot under a deed describing the east half was not possession under color
of title. Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948).
[FN7] Fritts v. Ericson, 87 Ariz. 227, 349 P.2d 1107 (1960).
[FN8] Johns v. Scobie, 12 Cal. 2d 618, 86 P.2d 820, 121 A.L.R. 1404 (1939); State Bank & Trust of
Kenmare v. Brekke, 1999 ND 212,602 N.W.2d 681 (N.D. 1999).
[FN9] Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1959).
[FNIO] Fritts v. Ericson, 87 Ariz. 227, 349 P.2d 1107 (1960); John Wallingford Fruit House Inc. v.
MacPherson, 386 A.2d 332 (Me. 1978); State Bank & Trust of Kenmare v. Brekke, 1999 ND 212, 602
N.W.2d 681 (N.D. 1999).
[FNII] Acord v. Beaty, 244 Mo. 126,148 S.W. 901 (1912).
[FNI2] Boyet v. Perryman, 240 La. 339,123 So. 2d 79 (1960).
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Adverse Possession

3. Color of Title
a. In General
§ 127. Necessity of purporting to convey particular property-Adequacy of description
It is not required that a deed contain such a precise description that the land can be identified without refer-
ence to other records to support adverse possession,[l] or that the land be described in metes and bounds, if the
description in the deed permits the land to be identified with reasonable certainty.[2] If the facts warrant it, the
court should permit extrinsic evidence in aid of the description, provided the description given is susceptible of
being made definite by such evidence.[3]
[FNI] Quality Plastics, Inc. v. Moore, 131 Ariz. 238, 640 P.2d 169 (1981); Redfearn v. Kuhia, 50 Haw.
77, 43 I P.2d 945 (1967); Bruce v. Cheramie, 231 La. 881, 93 So. 2d 202 (1956).
A commissioner's deed that described the land conveyed as being bounded on the east by Montague
Street, on the north and south by lands described in certain deed books at specified pages, and on the
west by the land of a named person, contained a description capable of being made certain by testimony
at the trial so that it was sufficient to constitute color of title. Willis v. Johns, 55 N.C. App. 621, 286
S.E.2d 646 (1982).
[FN2] Snyder v. Bistrian, 156 A.D.2d 355, 548 N.Y.S.2d 311 (2d Dep't 1989).
[FN3] Canterberry v. Slade Bros., 232 La. 1081,96 So. 2d 4 (1957); Cadwalader v. Price, III Md. 310,
73 A. 273 (1909); Fore v. Berry, 94 S.c. 71, 78 S.E. 706 (1913).
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Adverse Possession

3. Color of Title
a. In General
§ 128. Execution, acknowledgment, or recording
West's Key Number Digest, Adverse Possession €=> 100(2)
A.L.R. Library
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 §§ 13 to 17, 26.
Validity is not generally required of an instrument relied on merely as color oftitle.[I] Therefore, a deed or
other conveyance may constitute sufficient color of title, even though it is not duly sealed[2] or acknowledged.[3
] Also, in the absence of a statutory requirement to the contrary, an instrument relied on as color of title gener-
ally need not be recorded.[4] Under some statutory provisions, however, recording is necessary for the instru-
ment to constitute color of title.[5] Thus, in some states, the statute of limitations does not begin to run until a
deed relied on as color of title has been placed on record.[6]
The principle that an unregistered deed is effective as color of title is sometimes so limited as not to defeat
the rights of innocent purchasers for value.[7]
[FNI] § 142.
[FN2] Power v. Kitching, 10 N.D. 254,86 N.W. 737 (1901).
[FN3] Brannan v. Henry, 142 Ala. 698, 39 So. 92 (1905).
[FN4] Perry v. Marbury Lumber Co., 212 Ala. 542, 103 So. 580 (1925); Roberson v. Downing Co., 120
Ga. 833,48 S.E. 429 (1904); Culton v. Simpson, 265 Ky. 343, 96 S.W.2d 856 (1936); Attorney General
v. Ellis, 198 Mass. 91, 84 N.E. 430 (1908); Eastman, Gardiner & Co. v. Hinton, 86 Miss. 604, 38 So.

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779 (1905); Tungsten Holdings, Inc. v. Parker, 200 I MT 117, 305 Mont. 329,27 P.3d 429 (2001).
For the purpose of establishing possession and dominion under color of title, graveyard authorities
claiming title to realty by adverse possession were entitled to show that a deed for the property, which
was not recorded and could not be found, had actually been executed and delivered by the then owners
for a consideration. C. L. Gray Lumber Co. v. Pickard, 220 Miss. 419, 71 So. 2d 211, 41 A.L.R.2d 920
(1954).
[FN5] Lewis v. Hardin, 512 So. 2d 96 (Ala. 1987); Seton v. Swann, 650 So. 2d 35 (Fla. 1995); Justice
v. Mitchell, 238 N.C. 364, 78 S.E.2d 122 (1953); Cobb v. Robertson, 99 Tex. 138,86 S.W. 746 (1905),
affd on reh'g, 99 Tex. 138,87 S.W. 1148 (1905).
[FN6] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958).
[FN7] Rook v. Horton, 190 N.C. 180, 129 S.E. 450, 41 A.L.R. 1111 (1925).
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Adverse Possession
Theresa Leming, J. D., 8ill Lindsley, J.D., and Eric Surette, J.D.

3. Color of Title
a. In General
§ 129. Conveyance or deprivation of color of title
West's Key Number Digest, Adverse Possession €:=IOO(l)
One in possession of land under either an actual or a colorable title cannot, after the occupant has conveyed
whatever title was possessed, sustain a claim of adverse possession under a claimed color of title.[l] Likewise,
one in possession of land under an actual or colorable title generally is deprived of the color of title relied on to
sustain a claim of adverse possession on the involuntary sale of the land under authority of law, such as a sale
under execution on a judgment, or a tax sale, or a sale under a power of sale in a mortgage executed by the
claimant.[2] However, if a tax foreclosure decree does not expressly cancel or otherwise deal with the owner's
deed, that deed continues to constitute color oftille.[3]
[FNI] Cagle v. Sabine Valley Timber & Lumber Co., 109 Tex. 178,202 S.W. 942,6 A.L.R. 1426 (1918).
[FN2] Lowrey v. Mines, 253 Ala. 556, 45 So. 2d 703 (1950); Cooper v. Cook, 220 Ark. 344, 247
S.W.2d 957 (1952); Shepherd v. Cox, 191 Miss. 715,4 So. 2d 217, 136 A.L.R. 1346 (1941).
As to executions, generally, see 30 Am. JUT. 2d, Executions.
As to judicial sales, generally, see 47 Am. Jur. 2d, Judicial Sales.
As to foreclosure of mortgage by action and sale, generally, see 55 Am. Jur. 2d, Mortgages §§ 532 et seq.
[FN3] Clark v. Dillard, 233 Ark. 760, 346 S. W.2d 684 (1961).
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Adverse Possession

3. Color of Title
b. What Constitutes Color of Title
(I) In General
§ 130. Generally; instrument as purporting to convey title
West's Key Number Digest, Adverse Possession (;=99.1
A.L.R. Library
"Color of title" is that which gives the semblance or appearance of title, but which is not title in fact[l]
-that which, on its face, professes to pass title, but fails to do so because of a lack of title in the person from
whom it comes or the employment of an ineffective means of conveyance. [2]
Color of title is not a claim of ownership that is defective for some technical reason, nor is it something just
short of absolute title; rather, color of title is an instrument or a record that in fact does not convey title, but ap-
pears to have the effect of a conveyance.[3] Color of title is a title that is imperfect, but not so obviously imper-
fect as to be apparent to one not skilled in the law.[4]
Any instrument that purports to convey land and shows the extent of the grantee's claim may afford color of
title for the purpose of adverse possession.[5]
If an instrument actually passes the title, it is not "color of title."[6] The title under which an adverse pos-
sessor claims need not be a good title; if it were a good title, the claimant would not be claiming by adverse pos-
session.[7] Color of title as a basis for adverse possession does not depend on the validity or effect of the instru-
ment, but entirely on its intent and meaning as an instrument purporting to convey title.[8]
A writing that does not on its face profess to pass title, but which expressly states that title will be conveyed
at a future time and on certain conditions, is not sufficient to constitute color oftitle.[9]
Possession of real property taken under authority of a statute is under color of title, even if the statute is un-
constitutional.[ I 0]

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[FN1] Green v. Dixon, 727 So. 2d 781 (Ala. 1998); Weaver v. Stafford, 134 Idaho 691, 8 P.3d 1234
(2000); Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899 (1937); Power v. Kitching, 10 N.D.
254, 86 N.W. 737 (1901); Powers v. Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E. 654
(4th Dist. Scioto County 1927); Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92 (1962);
Bassett v. City of Spokane, 98 Wash. 654, 168 P. 478 (1917); Selman v. Roberts, 185 W. Va. 80,404
S.E.2d 771 (1991).
[FN2] Fear v. Barwise, 93 Kan. 131, 143 P. 505 (1914); Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d
122 (1953); Powers v. Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E. 654 (4th Dist. Scioto
County 1927); Central Pac. Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554, I A.L.R. 1319 (1917); Knight
v. Boner, 459 P.2d 205 (Wyo. 1969).
As to the requirement ofa writing, see § 125.
[FN3] Green v. Dixon, 727 So. 2d 781 (Ala. 1998); Bergesen v. Clauss, 15 III. 2d 337, 155 N.E.2d 20,
68 A.L.R.2d 446 (1958); Long v. Pawlowski, 131 Mont. 91,307 P.2d 1079 (1957).
[FN4] Shippen v. Cloer, 213 Ga. 172,97 S.E.2d 563 (1957).
Title papers that were good enough in appearance and ostensible effect to give the holder the right to
the bona fide belief that he owned the land constituted color of title. Spicer v. Gore, 219 Md. 469, 150
A.2d 226 (1959).
[FN5] Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky.
1992).
[FN6] Roe v. Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. 151, 50 So. 230 (1909); City of
Barnesville v. Stafford, 161 Ga. 588, 131 S.E. 487, 43 A.L.R. 1045 (1926); Abeles v. Pillman, 261 Mo.
359, 168 S.W. 1180 (1914); Morrison V. Linn, 50 Mont. 396, 147 P. 166 (1915); Stoll V. Gottbreht, 45
N.D. 158, 176 N.W. 932 (1920).
[FN7] John T. Clark Realty CO. V. Harris, 253 A.D. 325, 253 A.D. 908, 2 N.Y.S.2d 137 (2d Dep't 1938) .
[FN8] Davis v. Townsend, 435 So. 2d 1280 (Ala. 1983); Hubbard V. Curtiss, 684 P.2d 842 (Alaska
1984); Sullivan V. Neel, lOS Mont. 253, 73 P.2d 206 (1937); Smith V. Nyreen, 81 N.W.2d 769 (N.D. 1957).
As to effect of instrument as purporting to convey title to particular property, see § 126.
[FN9] Shippen V. Cloer, 213 Ga. 172,97 S.E.2d 563 (1957).
[FNIO] White V. Sparkill Realty Corporation, 280 U.S. 500, 50 S. Ct. 186,74 L. Ed. 578 (1930).
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Westlaw

Adverse Possession

3. Color of Title
(1) In General
§ 131. Defective instruments generally
West's Key Number Digest, Adverse Possession €=99.1, 100(5)
Generally, any instrument purporting to convey land may be color of title, however defective or imperfect it
is, and regardless of the reason for its invalidity; a claim to the land under such an instrument will be sufficient,
if the other requisites of adverse possession are present.[1] Color of title need not be an imperfect title of a sort
that could, without aider, ripen into absolute title; it need only show some evidence of claimed ownership by the
grantee, and therefore need be only some semblance of title, however invalid that claim may be.[2)
Observation:
The strict requirements for the validity of a deed have no application to the color of title requirement for adverse
possession because the interests of the legal owner, the public, and the purchaser are adequately served by com-
pliance with the elements of the doctrine of adverse possession.[3)
The question is not whether the instrument re1ied on conveys any actual title, but whether it appears to do
so; and if the instrument it purports on its face to convey title, it will constitute color of title even if it conveys
no title at all because of matters outside the instrument.[ 4) In fact, in the absence of statutory authority to the
contrary, color of title is generally effective even if there are defects on the face of the instrument oftitle.[5)
[FNl) Edmonson v. Colwell, 504 So. 2d 235 (Ala. 1987); Holub v. Titus, 120 Ark. 620, 180 S.W. 218
(1915); Johns v. Scobie, 12 Cal. 2d 618,86 P.2d 820, 121 A.L.R. 1404 (1939); Tarver v. Depper, 132
Ga. 798, 65 S.E. 177 (1909); Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951); Tennis Coal Co. v.
Henseley, 198 Ky. 616, 250 S.W. 509 (1923); Allen v. Paggi Bros. Oil Co., 244 So. 2d 116 (La. Ct.
App. 3d Cif. 1971), writ denied, 258 La. 247, 245 So. 2d 716 (1971); Shepherd v. Cox, 191 Miss. 715,
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I So. 2d 495, 136 A.L.R. 1346 (1941), error overruled on other grounds, 191 Miss. 715, 4 So. 2d 217,
136 A.L.R. 1346 (1941); Joplin Brewing Co. v. Payne, 197 Mo. 422, 94 S.W. 896 (1906); Seals v.
Seals, 165 N.C. 409, 81 S.E. 613 (1914); Mehard v. Little, 1921 OK 76, 81 Okla. I, 196 P. 536 (1921);
Theisen v. Qualley, 42 S.D. 367, 175 N. W. 556 (1919); Petrusic v. Carson, 496 P.2d 70 (Wyo. 1972).
[FN2] Bergesen v. Clauss, 15 Ill. 2d 337, 155 N.E.2d 20,68 A.L.R.2d 446 (1958).
[FN3] Williams v. Howell, 108 N.M. 225, 770 P.2d 870 (1989).
[FN4] Shepherd v. Cox, 191 Miss. 715, I So. 2d 495,136 A.L.R. 1346 (1941), error overruled on other
grounds, 191 Miss. 715, 4 So. 2d 217,136 A.L.R. 1346 (1941).
[FN5] Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390 (1906); Marr v. Shrader, 142 Colo. 106,349 P.2d
706 (1960); Witherspoon v. Brummett, 50 N.M. 303, 176 P.2d 187 (1946); Russell v. Tennant, 63 W.
Va. 623, 60 S.E. 609 (1908).
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Westlaw

Adverse Possession

3. Color of Title
(1) In General
§ 132, Contract or mortgage
West's Key Number Digest, Adverse Possession <£;=99.1
A.L.R. Library
Color of title may be evidenced by a contract for the sale of land.[I] Thus, a contract for deed constitutes
color of title from and after its execution.[2]
Although there is authority to the contrary,[3] a mortgage of the fee has been held to be a written instrument
on which to base adverse possession, even though the mortgagor could not legally mortgage the fee; to hold oth-
erwise would, in effect, make it impossible to establish adverse possession on the basis of a written instrument if
it developed that the grantor's title was less than a fee.[4]
[FNI] Carrington v. McNeil, 58 A.D.2d 719, 396 N.Y.S.2d 286 (3d Dep't 1977); Long v. Pawlowski,
131 Mont. 91, 307 P.2d 1079 (1957); McNeeley v. South Penn Oil Co., 52 W. Va. 616, 44 S.E. 508 (1903).
As to tax sale contracts, see § 139.
[FN2] Wilson v. Divide County, 76 N.W.2d 896 (N.D. 1956).
[FN3] Slemmons v. Massie, 102 N.M. 33, 690 P.2d 1027 (1984).
[FN4]In re Harlem River Drive, City of New York, 307 N.Y. 447, 121 N.E.2d 414 (1954).
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Westlaw

Adverse Possession

3. Color of Title
(I) In General
§ 133. Oral sale or gift; parol partition
West's Key Number Digest. Adverse Possession €::=99. I
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 3, 7,12.
In jurisdictions in which a writing is not essential to color of title,[l] possession under an oral gift or sale
may constitute color of title.[2] Thus, if a donee is placed in actual possession of land with a well-defined
boundary under an unqualified parol gift, and claims to the extent of the boundary, the possession of the entire
tract is vested in the donee, both the portion enclosed and cultivated and also the remainder of the land by con-
struction,[3] but if the boundaries of the parol gift are not well defined, the donee holds adversely only those
portions of the donated land as have been reduced to actual possession by enclosure or cultivation.[4]
In other jurisdictions, a parol gift of land does not constitute color of title,[5] and an oral gift of land cannot
support constructive possession.[6]
In jurisdictions in which color of title requires a writing purporting to be evidence of title, possession under
a parol gift or sale is not under color of title as to persons not in privity with the donor or seller.[7] However, as
between the donee or purchaser in possession under an oral gift and the donor or seller or a person in privity
with the donor or seller, the oral gift or sale is color oftitle.[8]
[FNI] § 125.

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[FN2] Wallerv. Dansby, 145 Ark. 306, 224 S.W. 615 (1920).
[FN3] Nelson v. Johnson, 189 Ky. 815,226 S.W. 94 (1920).
As to an enclosure as showing dominion over property, see §§ 36 to 40.
As to cultivation as constituting dominion over property, see § 32.
As to the constructive possession of an adverse claimant, see § 27.
[FN4] Nelson v. Johnson, 189 Ky. 815,226 S.W. 94 (1920).
[FN5] Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920); Page v. O'Neal, 207 Miss. 350, 42 So. 2d
391 (1949); Lyles v. Fellers, 138 S.c. 31, 136 S.E. 13 (1926).
[FN6] Lyles v. Fellers, 138 S.C. 31,136 S.E. 13 (1926).
As to character of instrument purporting to convey title to property, see § 126.
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Westlaw.

Adverse Possession

3. Color of Title
(I) In General
§ 134. Descent cast
West's Key Number Digest, Adverse Possession €=>99. I
Under the doctrine of descent cast, if a person dies in possession of land and possession is continued by that
person's heirs, the possession of the heirs corresponds to the holding of possession under color of title, even if
the ancestor had no color of title.[l] If the ancestor was never in possession, however, a conveyance to the an-
cestor cannot accrue to heirs as color of title on their taking possession after death of the ancestor.[2]
[FNI] Scott v. Bracy, 530 So. 2d 799 (Ala. 1988); Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So.
147,2 A.L.R. 1453 (1917).
[FN2] Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147, 2 A.L.R. 1453 (1917); Barrett v.
Brewer, 153 N.C. 547, 69 S.E. 614 (1910).
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Westlaw.

Adverse Possession

3. Color of Title
(1) In General
§ 135. Patent; conveyance of or rights in public land
Color of title for purposes of adverse possession may be predicated on a patent if the patent is void.[ 1] Con-
firmation of a Spanish land grant also may be color of title.[2] A wholly unauthorized grant of public land,
however, that shows its invalidity on its face, is insufficient as the basis of a prescriptive tille.[3]
[FNl] Carson v. Turk, 146 Ky. 733, 143 S.W. 393 (1912).
[FN2] Del Pozo v. Wilson Cypress Co., 269 U.S. 82,46 S. Ct. 57, 70 L. Ed. 172 (1925), leave to file for
reh'g denied, 47 S. Ct. 235, 71 L. Ed. 1339 (U.S. 1926).
[FN3] Tiglao v. Insular Government of Philippine Islands, 215 U.S. 410, 30 S. CI. 129, 54 L. Ed. 257
(1910).
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Westlaw,

Adverse Possession

3. Color of Title
(2) Judgments and Decrees
§ 136, Generally
West's Key Number Digest, Adverse Possession <£=99.1
A. L. R. Library
Judgment or decree as constituting color of title, 71 A.L.R. 2d 404.
A defective judgment or decree of a court of record may constitute color of title in one who takes possession
under it.[I] Particular types of invalid or imperfect judgments or decrees that have been held to constitute color
of title include:
- ajudgment or decree quieting title to, or removing a cloud on title from, the land in question.[2]
- a judgment or decree in partition proceedings.[3]
- a judgment, order, or decree of a probate or comparable court,[4] such as a decree of distribution,[5] a
decree ofheirship,[6] or an order and confirmation of sale of real property by a probate court.[7]
- ajudgment or decree in divorce proceedings.[8]
- a judgment purporting to vest title to the land ofa husband in his wife.[9]
- a judgment, order, or decree setting apart real property to a widow or to a widow and minor children.[ I 0]
An ejectment judgment in favor of a person cannot form the basis for color of title for that person or one
claim ing under that person, because such a judgment does not purport to convey title, as required for instruments
to be color of title.[II] Similarly, because an ex parte judgment sending heirs or legatees into possession of an
estate is not, and does not purport to be, a transfer of title, it cannot serve as a basis for adverse possession.[12]
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[FNI] David v. Tucker, 140 Ga. 240, 78 S.E. 909 (1913); Peters v. Dicus, 254 Ill. 379, 98 N.E. 560
(1912); Quintana v. Montoya, 64 N.M. 464, 330 P.2d 549, 71 A.L.R.2d 397 (1958); Perry v. Bassenger,
219 N.C. 838, 15 S.E.2d 365 (1941); Smith v. Nyreen, 81 N.W.2d 769 (N.D. 1957); Southern Iron &
Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785 (1911); Waldron v. Harvey, 54 W. Va. 608,46 S.E.
603 (1904).
[FN2] Satariano v. Galletto, 66 Cal. App. 2d 813, 153 P.2d 201 (1st Dist. 1944); Marvin v. Witherbee,
63 Colo. 469, 168 P. 651 (1917); Wallis v. Clinkenbeard, 214 Iowa 343, 242 N.W. 86 (1932); Quintana
v. Montoya, 64 N.M. 464, 330 P.2d 549, 71 A.L.R.2d 397 (1958).
[FN3] Peters v. Dicus, 254 Ill. 379, 98 N.E. 560 (1912); John L. Roper Lumber Co. v. Richmond Cedar
Works, 165 N.C. 83, 80 S.E. 982 (1914); Tellico Mfg. Co. v. Williams, 59 S.W. 1075 (Tenn. Ch. App.
1900).
[FN4] Quick v. Quick, 267 Ala. 560, 103 So. 2d 157 (1958); Stacy v. Simpson, 91 N.M. 350, 573 P.2d
1205 (1978).
[FN5] Baker v. Baker, 4 Cal. 2d 235, 48 P.2d 685 (1935); Cranston v. Winters, 238 N.W.2d 647 (N.D.
1976); Records v. Miles, 1948 OK 71, 200 Okla. 62, 191 P.2d 918 (1948); Nicholas v. Cousins, I
Wash. App. 133,459 P.2d 970 (Div. 3 1969).
[FN7] Belsher v. Russell, 218 Ala. 597, 119 So. 659 (1928).
[FN8] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956); Cobb v. Brown, 42 Tenn. App. 595,
305 S.W.2d 241 (1956) (disapproved of on other grounds by, Howard v. State, 217 Tenn. 556, 399
S.W.2d 738 (1966)); Weaver v. Garrietty, 84 S.W.2d 878 (Tex. Civ. App. Dallas 1935), writ refused.
But see McMann v. McMann, 1926 OK 992, 123 Okla. 26, 252 P. 1093 (1926), holding that a judgment
of a divorce court purporting to vest title to land in the minor children of the parties to the divorce,
which was void because of lack of jurisdiction, did not afford color of title in the children.
[FNIO] Quick v. Quick, 267 Ala. 560, 103 So. 2d 157 (1958); Satariano v. Galletto, 66 Cal. App. 2d
813,153 P.2d 201 (1st Dis!. 1944); Wanamaker v. Wanamaker, 215 Ga. 473,111 S.E.2d 94 (1959).
[FNII] Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785 (1911).
[FNI2] Boyet v. Perryman, 240 La. 339,123 So. 2d 79 (1960).
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Adverse Possession

3. Color of Title
(2) Judgments and Decrees
§ 137. Instrument evidencing a judicial or sheriffs sale
A.L.R. Library
A deed given to a purchaser at a judicial sale that is ineffectual as a conveyance will confer color of title on
the purchaser.[ I J
A sheriffs deed that is valid on its face also will constitute color of title.[2J Also a sheriffs certificate of
sale constitutes color of title on which title by adverse possession may be founded.[3J
Color of title may also exist under a special master's deed in foreclosure[4J or partition if the proceedings
were irregular;[5J under the deed of an executor or administrator made pursuant to a void order of sale;[6J or un-
der a guardian's deed executed pursuant to a void sale by the guardian.[7)
[FN I J Joplin Brewing Co. v. Payne, 197 Mo. 422, 94 S. W. 896 (1906).
[FN2J O'Reilly v. Balkwill, 133 Colo. 474, 297 P.2d 263 (1956).
In an action brought by the widow of a purchaser of land under a 1947 sheriffs deed against the heirs of
the owner, whose title was divested in the 1947 tax sale, the sheriffs deed was sufficient to start the
running of the five-year statute of limitations in favor of the purchaser after the two-year redemption
period had expired and, because the purchaser went into possession of the realty and exercised domin-
ion and control over the land until his death in 1971, his title was perfected, notwithstanding claims by
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the heirs of the original owner that neither they nor their predecessors in title were named in or received
notice of the tax suit through which the purchaser received the sheriffs deed in question. Hunter v.
Dodds, 624 S.W.2d 365 (Tex. App. Waco 1981).
[FN3] Commercial Bank & Trust Co. v. Jordan, 85 Mont. 375,278 P. 832, 65 A.L.R. 968 (1929).
[FN4] Matlock v. Somerford, 64 N.M. 347, 328 P.2d 600 (1958).
[FN5] Weston v. Morgan, 162 S.c. 177,160 S.E. 436 (1931).
[FN6] Millican v. McNeill, 102 Tex. 189,114 S.W. 106 (1908).
[FN7] Hamilton v. Witner, 50 Wash. 689,97 P. 1084 (1908).
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West law

Adverse Possession

3. Color of Title
(3) Tax Deeds, Certificates, and Contracts of Sale
§ 138. Tax deed
West's Key Number Digest, Adverse Possession C=99.1, 100(6)
A.L.R. Library
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986.
Forms
Complaint, petition, or declaration-Allegation-Possession under defective tax deed. I BAm. Jur. Plead-
ing and Practice Fonns, Adverse Possession § 138.
A tax deed generally constitutes color of title for the purpose of adverse possession.[1] Thus, as a general
rule, tax deeds may serve as color of title on which to base adverse possession, whether or not the tax deed pro-
ceedings were valid.[2] A tax deed that is regular on its face, but that is defective as a conveyance due to certain
irregularities,[3] or that is void,[4] constitutes color of title, provided the property intended to be conveyed is de-
scribed with sufficient certainty and definiteness,[S] and provided the tax deed was not fraudulently obtained.[6]
Color of title has been held to be present under a tax deed although the tax sale was had under an unconsti-
tutional statute[7] or under a void tax judgment;[8] although it was based on a void assessment,[9] although it
was not conducted as a public sale;[IO] although it was conducted at a time and place other than that designated
by law;[ II] and although the officer who conducted the sale was guilty of a violation of duty with regard to it.[ 12]
A tax purchase that is in effect a redemption does not vest color oftitle.[13]
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[FNI] Bell v. Pritchard, 273 Ala. 289, 139 So. 2d 596 (1962); Beshea v. Vlazny, 228 Ark. 559, 309
S.W.2d 28 (1958); Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d 55 (1951); Trotter v. Roper, 229
Miss. 784, 89 So. 2d 596 (1956); Cebolleta Land Grant, ex reI. Bd. of Trustees of Cebolleta Land Grant
v. Romero, 98 N.M. 1,644 P.2d 515 (1982); Sickler v. Pope, 326 N.W.2d 86 (N.D. 1982); Kimble v.
Allen, 1956 OK 135,298 P.2d 1042 (Okla. 1956).
[FN2] Griswold v. Lagge, 132 Mont. 23, 313 P.2d 1013 (1957).
[FN3] Brannan v. Henry, 142 Ala. 698, 39 So. 92 (1905); Bradbury v. Dumond, 80 Ark. 82, 96 S.W.
390 (1906); Walters v. Webster, 52 Colo. 549, 123 P. 952 (1912); Douglass v. Aldridge, 90 Fla. 51, 105
So. 145 (1925); Pickens v. Adams, 7 111. 2d 283, 131 N.E.2d 38, 56 A.L.R.2d 605 (1955); Tibbetts v.
Holway, 119 Me. 90, 109 A. 382 (1920); Ripley v. Miller, 165 Mich. 47, 130 N.W. 345 (1911); Carney
v. Anderson, 214 Miss. 504, 58 So. 2d 13,38 A.L.R.2d 981 (1952); Woodside v. Durham, 317 Mo. 15,
295 S.W. 772, 53 A.L.R. 884 (1927); Beall v. McMenemy, 63 Neb. 70, 88 N.W. 134 (1901); Anderson
v. Shelton, 92 N.W.2d 166, 73 A.L.R.2d 1087 (N.D. 1958); Herron v. Swarts, 1960 OK 53, 350 P.2d
314 (Okla. 1960); WeIner v. Stearns, 40 Utah 185, 120 P. 490 (1911).
As to invalidity shown on face of tax deed, see § 140.
[FN4] Green v. Dixon, 727 So. 2d 781 (Ala. 1998); Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390
(1906); Trotter v. Roper, 229 Miss. 784, 92 So. 2d 230 (1957); Myers v. De Lisle, 259 Mo. 506, 168
S.W. 676 (1914); Long v. Pawlowski, 131 Mont. 91, 307 P.2d 1079 (1957); Beall v. McMenemy, 63
Neb. 70, 88 N.W. 134 (1901); Greenleaf v. Bartlett, 146 N.C. 495, 60 S.E. 419 (1908); Sailer v. Mercer
County, 77 N.D. 698, 45 N.W.2d 206, 22 A.L.R.2d 988 (1950); Kimble v. Allen, 1956 OK 135, 298
P.2d 1042 (Okla. 1956); WeIner v. Steams, 40 Utah 185, 120 P. 490 (1911).
[FN5] § 126.
[FN6] Payne v. Williams, 91 Ill. App. 3d 336, 46111. Dec. 783, 414 N.E.2d 836 (5th Dist. 1980).
As to the requirement of good faith, see § 112.
[FN7] Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390 (1906).
[FN8] Woodside v. Durham, 317 Mo. 15,295 S.W. 772, 53 A.L.R. 884 (1927).
[FN9] Florida Finance Co. v. Sheffield, 56 Fla. 285, 48 So. 42 (1908); Jacobs v. Southern Advance Bag
& Paper Co., 228 La. 462, 82 So. 2d 765 (1955).
[FNIO] Doe v. Roe, 234 Ga. 127,214 S.E.2d 880 (1975).
[FNII] Carney v. Anderson, 214 Miss. 504, 58 So. 2d 13,38 A.L.R.2d 981 (1952).
[FN 12] Greenleaf v. Bartlett, 146 N.C. 495, 60 S.E. 419 (1908).
[FNI3] Rouse v. Teeter, 214 Ark. 488, 216 S.W.2d 869 (1948).
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Adverse Possession

3. Color of Title
§ 139. Tax purchase certificate or tax sale contract
West's Key Number Digest, Adverse Possession C=91, 99.1, 100(6)
In some jurisdictions, a tax purchase certificate, under the statutory definition and limitations imposed re-
specting the use of evidences of title for prescriptive or limitation purposes, cannot be construed to purport to
convey title, and cannot, irrespective of its invalidity, become color of title.[1] However, in other cases, a certi-
ficate of purchase issued at a tax sale has been held to be color oftitle.[2)
A tax sale contract between a county whose title under its tax deed is void and a tax sale purchaser vests the
purchaser with color oftitle.[3)
[FNI) Kenworthy v. Murphy, 1951 OK 13,204 Okla. 233, 228 P.2d 382 (1951); Bozievich v. Slechta,
109 Utah 373,166 P.2d 239 (1946).
As to requisites of instrument purpotting to convey property, see § 126.
[FN2) Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901); Calvary Baptist Church of Baker v. Sax-
ton, 117 Or. 125,242 P. 616 (1925).
[FN3) Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
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Adverse Possession

3. Color of Title
§ 140. Invalidity on the face of a tax deed or tax sale proceeding
West's Key Number Digest, Adverse Possession oC=99.1, 100(6)
A.L.R. Library
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 §§ 9,10.
It has been held that a tax deed constitutes color of title to the land even if it is absolutely void, and even if
the cause of the invalidity appears on the face of the deed, if the deed follows the ordinary form for such deeds,
is executed by an official having general authority to make such deeds, and purports by apt words to convey land
either described accurately or so referred to as to permit of its accurate identification.[l] However, it has also
been held that a tax deed that is void on its face is not in itself sufficient to set the statute of limitations in mo-
tion.[2]
[FNI] Brannan v. Henry, 142 Ala. 698, 39 So. 92 (1905); Bradbury v. Dumond, 80 Ark. 82, 96 S.W.
390 (1906); Walters v. Webster, 52 Colo. 549, 123 P. 952 (1912); Florida Finance Co. v. Sheffield, 56
Fla. 285, 48 So. 42 (1908); Hanna v. Palmer, 194111. 41, 61 N.E. 1051 (1901); Carney v. Anderson, 214
Miss. 504, 58 So. 2d 13, 38 A.L.R.2d 981 (1952); Greenleaf v. Bartlett, 146 N.C. 495, 60 S.E. 419
(1908); Grandin v. Gardiner, 63 N.W.2d 128 (N.D. 1954); Wilson v. Hestand, 1956 OK 187,301 P.2d
194 (Okla. 1956); Buty v. Goldfinch, 74 Wash. 532, 133 P. 1057 (1913).
As to the requisites of an instrument purporting to convey property, see § 126.
[FN2] Mathews v. Blake, 16 Wyo. 116,92 P. 242 (1907).
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Adverse Possession

3. Color of Title
(4) Deeds
§ 141. Generally
West's Key Number Digest, Adverse Possession C=100(1)
Color of title may be evidenced by a deed,[ I] including a quitclaim deed[2] or a deed for partition.[3]
[FN I] Cothran v. Akers Motor Lines, Inc., 257 N.C. 782, 127 S.E.2d 578 (1962).
[FN2] Warlick v. Rome Loan & Finance Co., 194 Ga. 419, 22 S.E.2d 61 (1942); Waterman Hall v. Wa-
terman, 220 Ill. 569, 77 N.E. 142 (1906); Bel v. Manuel, 234 La. 135, 99 So. 2d 58 (1958); Lambert v.
State, 211 Miss. 129,51 So. 2d 201 (1951); Schumacher v. Cole, 131 Mont. 166,309 P.2d 311 (1957);
Thurmond v. Espalin, 50 N.M. 109, 171 P.2d 325 (1946); Morrison v. Hawksett, 64 N.W.2d 786 (N.D.
1954); Graniteville Co. v. Williams, 209 S.c. 112, 39 S.E.2d 202 (1946); Lloyd v. Mills, 68 W. Va.
241,69 S.E. 1094 (1910).
As to the operation and effect of quitclaim deeds, generally, see 23 Am. Jur. 2d, Deeds § 286.
[FN3] Bingham v. Brooks, 359 S.W.2d 618 (Ky. 1962).
As to effect of partition, generally, see 59A Am. Jur. 2d, Partition §§ 286 et seq.
rights reserved.
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Westlaw,

Adverse Possession

3. Color of Title
(4) Deeds
§ 142. Void or voidable deed or conveyance
West's Key Number Digest, Adverse Possession cC=100(5)
A.L.R. Library
Because the very act of claiming title by adverse possession for the statutory period precludes the idea of a
valid paper title, as do the words "color of title,"[I] the requirements as to color oftitle are sufficiently complied
with by a possession held under an instrument which, as a conveyance, is either voidable or void.[2] Thus, an
adverse possessor may claim under a color of title of a defective or imperfect instrument, such as one made by a
grantor or a predecessor who was without title or interest[3] or had no authority to convey.[4]
A void deed from a county constitutes color of title,[5] as does a void deed from a state land commissioner.[
6] A deed from one who obtained the deed pursuant to a defective or void foreclosure also constitutes color of
title. [7] However, under some statutes, instruments the invalidity of which is apparent to persons of ordinary
prudence cannot be effective as color of title.[8] Also, a deed that is void for indefiniteness of description cannot
constitute color oftitle.[9]
Cases:
Void tax deed cannot convey color of title such as would support adverse possession. Memorial Park Med-
ical Center, Inc. v. River Bend Development Group, L.P., 264 S. W.3d 810 (Tex. App. Eastland 2008), reh'g
overruled, (Aug. 14,2008).
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Page 298 of 665

[FNI]§130.
[FN2] Work v. United Globe Mines, 231 U.S. 595, 34 S. Ct. 274, 58 L. Ed. 389 (1914); Bell v.
Pritchard, 273 Ala. 289, 139 So. 2d 596 (1962); Carpenter v. Booker, 131 Ga. 546, 62 S.E. 983 (1908);
Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906); J.B. Gathright Land Co. v. Begley, 200
Ky. 808,255 S.W. 837 (1923); Novak v. Trustees of Orphans' Home in Baltimore City, 123 Md. 161,
90 A. 997 (1914); C. L. Gray Lumber Co. v. Pickard, 220 Miss. 419, 71 So. 2d 211, 41 A.L.R.2d 920
(1954); Sullivan v. Neel, 105 Mont. 253, 73 P.2d 206 (1937); Criswell v. Criswell, 101 Neb. 349, 163
N.W. 302 (1917); Turner v. Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280 (1946); Alsworth v.
Richmond Cedar Works, 172 N.C. 17, 89 S.E. 1008 (1916); Frady v. Ivester, 129 S.c. 536, 125 S.E.
134 (1924); Hamilton v. Wilner, 50 Wash. 689, 97 P. 1084 (1908); Laing v. Gauley Coal Land Co., 109
W. Va. 263, 153 S.E. 577, 71 A.L.R. 436 (1930); Marky Inv., Inc. v. Arnezeder, 15 Wis. 2d 74, 112
N.W.2d 211 (1961).
[FN3] Lambert v. State, 211 Miss. 129,51 So. 2d 201 (1951); In re Harlem River Drive, City of New
York, 307 N.Y. 447, 121 N.E.2d 414 (1954).
But see Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d I (1954), holding that a person who purchased land
from a mere squatter with knowledge of the squatter's lack of title could not acquire the land by posses-
sion of it for the statuto!), period under the conveyance from the squatter.
[FN4] Commercial Bldg. Co. v. Parslow, 93 Fla. 143, 112 So. 378 (1927); Attorney General v. Ellis,
198 Mass. 91, 84 N.E. 430 (1908); Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910); Brewster v.
Herron, 1952 OK 440, 267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
A deed from a public corporation that was defective as failing to show that it was within the corpora-
tion's authority to execute could afford color of title sufficient to support a claim of adverse possession.
Turner v. Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280 (1946).
[FN5] Wilson v. Divide County, 76 N.W.2d 896 (N.D. 1956).
[FN6] Fuller v. Terrill, 226 Ark. 1040,295 S.W.2d 625 (1956).
[FN7] Corbett v. Corbett, 249 N.C. 585,107 S.E.2d 165 (1959).
[FN8] Boyet v. Perryman, 240 La. 339, 123 So. 2d 79 (1960); Bel v. Manuel, 234 La. 135, 99 So. 2d 58
(1958).
[FN9] § 127.
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Westlaw.

Adverse Possession

3. Color of Title
(4) Deeds
§ 143. Fraudulent deed
A deed will give color of title so as to permit a plea of the statute of limitations by the grantee if the grantor
is chargeable with ITaud, as long as the grantee accepted the deed in good faith without knowledge of the fraud.[
I] Thus, the occurrence of fraud is considered immaterial by some courts.[2] However, actual fraud is neither
sanctioned nor cured by the statute oflimitations.[3]
Under a rule that any deed that is not forged or void on its face will support the running of the statute of
limitations, a deed that is void because it is in ITaud of creditors supports the statute.[4]
[FN1] Farabow v. Perry, 223 N.C. 21, 25 S.E.2d 173 (1943).
As to requirement of good faith, generally, see § 112.
[FN2] Turner v. Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280 (1946); Farabow v. Perry, 223
N.C. 21, 25 S.E.2d 173 (1943); Bora v. Hidell, 122 Tenn. 80, 120 S.W. 961 (1909); Marky Inv., Inc. v.
Arnezeder, 15 Wis. 2d 74,112 N.W.2d 211 (1961).
[FN3] § 115.
[FN4] Eckert v. Wendel, 120 Tex. 618,40 S.W.2d 796, 76 A.L.R. 855 (1931).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRlA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
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Westlaw.

Adverse Possession

3. Color of Title
(4) Deeds
§ 144. Forged deed or bond for title
A.L.R. Library
Forged deed or bond for title as constituting color of title, 68 A.L.R. 2d 452 §§ 2 to 5.
A forged deed or bond for title may be relied on by one claiming adverse possession, as constituting color of
title,[I] provided the claimant acts in good faith and is without knowledge of the forgery.[2] Thus, although a
forged deed cannot of itself convey title, it can, as color of title, constitute one necessary step to the acquisition
of title by adverse possession under color of title.[3] Accordingly, a forged deed, accepted by the named grantee
for a valuable consideration and in the bona fide belief that it is regular in all respects, is sufficient color of title
for adverse possession purposes.[4]
[FNI] Bergesen v. Clauss, 15 111. 2d 337, 155 N.E.2d 20, 68 A.L.R.2d 446 (1958); Tennis Coal Co. v.
Henseley, 198 Ky. 616, 250 S.W. 509 (1923).
[FN2] Tennis Coal Co. v. Henseley, 198 Ky. 616, 250 S.W. 509 (1923); Menefee v. Pipes, 159 So. 2d
439 (La. Ct. App. 2d Cir. 1963), writ refused, 245 La. 798,161 So. 2d 276 (1964).
As to the requirement of good faith, generally, see § 112.
[FN3] Bergesen v. Clauss, 15 111. 2d 337, 155 N .E.2d 20, 68 A.L.R.2d 446 (1958).
[FN4] Bergesen v. Clauss, 15111. 2d 337, 155 N.E.2d 20,68 A.L.R.2d 446 (1958).
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Westlaw.

Adverse Possession

3. Color of Title
(4) Deeds
§ 145. Deed or executory contract by a cotenant
West's Key Number Digest, Adverse Possession €=>\OO(l)
A.L.R. Library
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214§11.
A deed by one cotenant purporting to convey the entire estate is unquestionably sufficient as color of title to
the entire estate.[I] If one cotenant assumes to convey the entire estate, or any part of it, the deed or other instru-
ment, though legally insufficient, constitutes color of title in the grantee, and an adverse possession under it for
the statutory period will ripen into title as against all cotenants.[2] The deed need not be recorded for it to oper-
ate as color oftitle.[3]
An executory contract by a cotenant to convey the whole property is also color of title under which title by
prescription may be acquired.[4]
Ordinarily, a conveyance by one cotenant of only a part of common property, or of an individual interest in
the property, to a stranger, and entry of the stranger under the deed, does not constitute an ouster of the grantor's
cotenants as to the residue of the common property or the beginning of adverse possession.[5] However, an
entry under such a deed may constitute a basis for adverse possession if the conveyance was made pursuant to a
void power of attorney made to the grantor by the other cotenants; the power of attorney, though void, consti-
tutes a basis for color oftitle.[6]
While a quitclaim deed that conveys only the right, title, and interest of the grantor in the property limits the
estate to the right and interest as the grantor may have, and, if the grantor is a cotenant, the deed is not color of
title for anything more than the interest of the grantor,[7] a quitclaim deed by one cotenant purporting to convey
all interest in a particular tract can be considered as color of title, because it purports to convey more than the

Page 305 of 665

title and interest of the grantor.[8]
[FNI] Thompson v. Odom, 279 Ala. 211, 184 So. 2d 120 (1966); Jones v. Tate, 68 N.M. 258, 360 P.2d
920 (1961).
As to effect of a conveyance by a cotenant to a stranger, generally, see §§ 215 et seq.
[FN2] Kidd v. Borum, 181 Ala. 144,61 So. 100 (1913); Murray v. Quigley, 119 Iowa 6, 92 N.W. 869
(1902); Vonfeldt v. Schneidewind, 109 Kan. 265, 198 P. 958 (1921); Sowers v. Keedy, 135 Md. 448,
109 A. 143 (1919); Joyce v. Dyer, 189 Mass. 64, 75 N.E. 81 (1905); Eastman, Gardiner & Co. v. Hin-
ton, 86 Miss. 604, 38 So. 779 (1905); Sudduth v. Sumeral, 61 S.C. 276, 39 S.E. 534 (1901); Virginia
Coal & Iron Co. v. Hylton, 115 Va. 418, 79 S.E. 337 (1913); Lloyd v. Mills, 68 W. Va. 241, 69 S.E.
1094 (1910).
[FN3] § 128.
[FN4] Lloyd v. Mills, 68 W. Va. 241, 69 S.E. 1094 (1910).
[FN5] Laing v. Gauley Coal Land Co., 109 W. Va. 263,153 S.E. 577, 71 A.L.R. 436 (1930).
[FN6] Laing v. Gauley Coal Land Co., 109 W. Va. 263,153 S.E. 577, 71 A.L.R. 436 (1930).
[FN7] Cook v. Rochford, 60 So. 2d 531,32 A.L.R.2d 1210 (Fla. 1952).
[FN8] Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906); Lloyd v. Mills, 68 W. Va. 241, 69
S.E. 1094 (1910).
As to the sufficiency of a quitclaim deed by a cotenant as a basis for adverse possession by the grantee,
generally, see § 192.
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AMJUR ADVERSE II I REF Page I
3 Am. Jur. 2d Adverse Possession II I Refs.

Adverse Possession

I. Payment of Taxes
Research References
West's Key Number Digest, Adverse Possession -£=86 to 95
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 26.5
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 26 I
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ lIS, 145 to 148, 165
rights reserved.
AMJUR ADVERSE 111 REF
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Adverse Possession

I. Payment of Taxes
§ 146. Generally; necessity
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 §§ 3, 13.
Acquisition of title to mines or minerals by adverse possession, 35 A.L.R. 2d 124 § 19.
Trial Strategy
Proof of payment of property taxes based on value of encroachment. Acquisition of Title to Property by Ad·
verse Possession, 39 Am. Jur. Proof of Facts 2d 261 §§ 36 et seq.
Forms
Complaint, petItIOn, or declaration-Allegation-Adverse possession under claim of right-Payment of

taxes. I BAm. Jur. Pleading and Practice Forms, Adverse Possession § lIS.
Instruction to jury-Effect of payment of taxes. IB Am. Jur. Pleading and Practice Forms, Adverse Posses·
sion § 165.
In the absence of a statutory requirement to that effect, a claimant under adverse possession is not required
to prove the payment of the taxes on the land claimed; the claim may be just as effective even if the taxes were
not paid.[ I] However, some statutory provisions make the payment of taxes on the claimed property an element
of adverse possession.[2]
Cases:
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Possessor could not establish statutory adverse possession as to two properties on which possessor paid
taxes for at least 10 years, where the possessor did not pay such taxes in his own name, but in the name of a
former co-tenant of the properties. Bohanon v. Edwards, 970 So. 2d 777 (Ala. Civ. App. 2007).
Statutory bar to an action to recover on claim to land, if the claimant has failed to pay taxes on the land for
twenty years, does not bar a claim of adverse possession when the tracts are contiguous, a relatively small area
is at issue, and the adjacent owners making claims of ownership have paid their respective real estate taxes. Cu-
mulus Broadcasting, Inc. v. Shim, 226 S. W.3d 366 (Tenn. 2007).
lEND OF SUPPLEMENTI
IFNI] Garringer v. Wingard, 585 So. 2d 898 (Ala. 1991); Edwards v. Hardin Properties, Inc., 313 So.
2d 82 (Fla. Dist. Ct. App. 2d Dist. 1975); Stark v. Stanhope, 206 Kan. 428, 480 P.2d 72, 56 A.L.R.3d
1172 (1971); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257,46 A.L.R. 785 (1926); Ward v.
Rodriguez, 43 N.M. 191, 88 P.2d 277 (1939); Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901);
Krosmico v. Pettit, 1998 OK 90, 968 P.2d 345 (Okla. 1998); Siddons v. Lauterman, 165 Or. 668, 109
P.2d 1049 (1941); Harrelson v. Reaves, 219 S.C. 394, 65 S.E.2d 478,43 A.L.R.2d I (1951); Doenz v.
Garber, 665 P.2d 932 (Wyo. 1983).
[FN2] §§ 148 et seq.
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Adverse Possession

I. Payment of Taxes
§ 147. As evidence of an adverse claim
West's Key Number Digest, Adverse Possession €;:;::>89
In jurisdictions in which payment of taxes is not made an element of adverse possession by statute, the
claimant's payment of taxes on the claimed property is just one of the factors on which acquisition of title by ad-
verse possession is ordinarily founded.[I]I! may be a weighty fact in support of adverse possession,[2] but it is
not of itself sufficient to establish adverse possession.[3]
Although payment of taxes does not generally constitute evidence of possession,[ 4] it is strong evidence of
a claim of title or ownership.[5] Also, payment of taxes, if coupled with other acts, may constitute some evid-
ence of hostile possession.[6]
On the other hand, failure to pay the taxes weakens a claim of ownership and is some evidence that no such
claim was made,[7] but, in the absence of a statute providing otherwise, it is not conclusive.[8]
The assessment and collection of taxes by the taxing officers of a city does not preclude that city from
claiming or having title to the land by prescription based upon adverse possession.[9]
[FNI] Clark v. Dillard, 233 Ark. 760, 346 S.W.2d 684 (1961); Lundy v. Lakin, 96 Cal. App. 2d 221,
215 P.2d 61 (3d Dist. 1950); Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993); Turner v.
Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280 (1946); Rhodes v. Cahill, 802 S.W.2d 643 (Tex.
1990), reh'g of cause overruled, (Oct. 10, 1990).
[FN2] Geoghegan v. Krauss, 228 Miss. 231, 87 So. 2d461 (1956).
[FN3] Faulks v. Schrider, 114 F.2d 587 (App. D.C. 1940); Crowden v. Grantland, 510 So. 2d 238 (Ala.
1987); Wood v. McCoy, 228 Ark. 880,311 S.W.2d 755 (1958); People v. Ocean Shore R.R., 32 Cal. 2d
406, 196 P.2d 570, 6 A.L.R.2d 1179 (1948); Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960);
Blitch v. Sapp, 142 Fla. 166, 194 So. 328 (1940); Application of Wong, 47 Haw. 472, 391 P.2d 403
Page 310 of665

(1964); Alsup v. Stewart, 194111. 595, 62 N.E. 795 (1902); Council Bluffs Say. Bank v. Simmons, 243
N.W.2d 634 (lowa 1976) (taxes paid by record titleholder, with adverse possession adjudged in
claimant); John Widdicomb Co. v. Card, 218 Mich. 72, 187 N.W. 308, 22 A.L.R. 545 (1922); Woodside
v. Durham, 317 Mo. 15,295 S.W. 772, 53 A.L.R. 884 (1927); Consolidated Ice Co. v. City of New
York, 166 N.Y. 92, 59 N.E. 713 (1901); Corbett v. Corbett, 249 N.C. 585, 107 S.E.2d 165 (1959);
Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901); Knecht v. Spake, 218 Or. 601, 346 P.2d 98
(1959); Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990); Dill-
man v. Foster, 656 P.2d 974 (Utah 1982); Wilson v. Braden, 56 W. Va. 372,49 S.E. 409 (1904).
[FN4] Woodside v. Durham, 317 Mo. 15,295 S.W. 772, 53 A.L.R. 884 (1927); Ray v. Beacon Hudson
Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666 N.E.2d 532 (1996); Lawrence v. Pelletier, 154
Vt. 29, 572 A.2d 936 (1990).
[FN5] Walker v. Easterling, 215 Miss. 429, 61 So. 2d 163, 39 A.L.R.2d 348 (1952); Pahler v. Schoen-
hals, 234 S.W.2d 581 (Mo. 1950); Stark v. Akard, 1957 OK 181,313 P.2d 790 (Okla. 1957); Lawrence
v. PeJletier, 154 Vt. 29, 572 A.2d 936 (1990).
[FN6] Deer Island Ass'n v. TroJle, 181 Conn. 201, 435 A.2d 10 (1980); State Nat. Bank and Trust Co.
v. Jacobsen, 218 Neb. 682, 358 N.W.2d 743 (1984); City of New York v. Wilson & Co., 278 N.Y. 86,
15 N.E.2d 408 (1938).
[FN7] Territory v. Pai-a, 34 Haw. 722, 1938 WI. 6825 (1938); Pearson v. City of Guttenberg, 245
N.W.2d 519 (Iowa 1976); Krosmico v. Pettit, 1998 OK 90, 968 P.2d 345 (Okla. 1998); Siddons v. Laut-
erman, 165 Or. 668, 109 P.2d 1049 (1941); Harrelson v. Reaves, 219 S.C. 394, 65 S.E.2d 478, 43
A.L.R.2d I (1951); Rutar Farms & Livestock, Inc. v. Fuss, 651 P.2d 1129 (Wyo. 1982).
[FN8] Krosmico v. Pettit, 1998 OK 90, 968 P.2d 345 (Okla. 1998).
[FN9] City of Deadwood v. Summit, Inc., 2000 SD 29, 607 N.W.2d 22 (S.D. 2000).
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Adverse Possession

I. Payment of Taxes
§ 148. Statutory requirements-Compliance, generally
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 3, 13.
Forms
Instruction to jury-Elements of adverse possession-Payment of taxes. I BAm. Jur. Pleading and Practice
Forms, Adverse Possession §§ 145 to 148.
Under some state statutes, payment of taxes by an adverse claimant is a requisite to establishing title by ad-
verse possession.[1] In those jurisdictions, the statutory requirements must be met,[2] or title by adverse posses-
sion cannot be established.[3] Payment of taxes need not be shown, however, if no taxes had been levied or as-
sessed against the property.[4]
The payment of taxes based on an illegal or void assessment does not constitute compliance by an adverse
claimant with a statute requiring the payment of all taxes legally assessed as a condition of adverse possession.[5]
It has been held that neither the purchase of land at a tax sale nor the redemption of land rrom a tax sale or-
dinarily constitutes a payment of taxes within the purview of the statutes.[6] However, it has also been held that
an adverse claimant's payment of back real estate taxes by redemption qualifies as payment for the purposes of
[FNI] Harper v. Smith, 582 So. 2d 1089 (Ala. 1991) (for statutory adverse possession, which has a
shorter time requirement); Quality Plastics, Inc. v. Moore, 131 Ariz. 238, 640 P.2d 169 (1981); Clark v.

Page 312 of665

Dillard, 233 Ark. 760, 346 S.W.2d 684 (1961); Ernie v. Trinity Lutheran Church, 51 Cal. 2d 702, 336
P.2d 525 (1959); Seddon v. Harpster, 403 So. 2d 409 (Fla. 1981); Baxter v. Craney, 135 Idaho 166, 16
P.3d 263 (2000); Solomon's Rock Trust v. Davis, 675 A.2d 506 (Me. 1996); Tester v. Tester, 300 Mont.
5, 3 P.3d 109 (2000); Potts v. Vokits, 101 Nev. 90, 692 P.2d 1304 (1985); Williams v. Howell, 108
N.M. 225, 770 P.2d 870 (1989); Madsen v. Clegg, 639 P.2d 726 (Utah 1981).
[FN2) McKinnon v. Commerford, 88 So. 2d 753 (Fla. 1956); Uphoff v. Trustees of Tufts College, 351
Ill. 146, 184 N.E. 213, 93 A.L.R. 1224 (1932); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257,
46 A.L.R. 785 (1926); Zubieta v. Tamer, 76 Nev. 243, 351 P.2d 982 (1960); Judd v. Meoska, 76 S.D.
537,82 N.W.2d 283 (1957); Murphy v. Redeker, 16 S.D. 615, 94 N.W. 697 (1903). See also Gibbs v.
Lester, 41 S.W.2d 28, 80 A.L.R. 431 (Tex. Comm'n App. 1931); Tripp v. Bagley, 74 Utah 57, 276 P.
912,69 A.L.R. 1417 (1928).
[FN3) Hill v. Cape Coral Bank, 402 So. 2d 945 (Ala. 1981); Tobin v. Stevens, 204 Cal. App. 3d 945,
251 Cal. Rptr. 587 (1st Dist. 1988); Herrmann v. Woodell, 107 Idaho 916, 693 P.2d 1118 (Ct. App.
1985); Tester v. Tester, 300 Mont. 5, 3 P.3d 109 (2000); Tripp v. Bagley, 74 Utah 57, 276 P. 912, 69
A.L.R. 1417 (1928).
The right to assert the acquisition of an interest in realty by adverse possession was precluded by failure
to comply with statutory requisites as to the adverse claimant's return of the property to the county as-
sessor for taxation and subsequent payment of all taxes, even though the statute had been repealed, be-
cause the statute was in effect during a portion of the period relied on by the adverse claimant. Indian
Rocks Beach South Shore v. Ewell, 59 So. 2d 647,32 A.L.R.2d 940 (Fla. 1952).
[FN4) Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981).
[FN5) Illinois Cent. R. Co. v. Cavins, 238 Ill. 380, 87 N.E. 371 (1909); Grays Harbor Commercial Co.
v. McCulloch, 113 Wash. 203, 193 P. 709 (1920).
[FN6) Aggelos v. Zelia Mining Co., 99 Utah 417,107 P.2d 170, 132 A.L.R. 213 (1940).
As to the time or period of payment, generally, see § 151.
[FN7) Tungsten Holdings, Inc. v. Parker, 2001 MT 117, 305 Mont. 329, 27 P.3d 429 (200 I).
rights reserved.
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Westlaw.

Adverse Possession

I. Payment of Taxes
§ 149. Statutory requirements-Payment on particular land; effect of insufficient or inaccurate description
A.L.R. Library
Presumptions and evidence respecting identification of land on which property taxes were paid to establish
adverse possession, 36 A.L.R. 4th 843.
It is essential to the efficacy of payment of taxes as a compliance with a statute making such payment a re-
quisite to establishing title by adverse possession that the payment be made on the particular land claimed ad-
versely.[I] There must be a payment of the taxes as to all of the land claimed and described in the deed or other
instrument giving color of title to comply with the statute requiring the payment of the taxes as a condition of
Practice Guide:
If a person both owns land by deed and claims land by adverse possession, there is a presumption that taxes paid
by that person were paid on the land that the individual owned by deed, rather than the land that he or she claims
by adverse possession.[3]
If the taxes as to the particular land claimed adversely are actually paid, the fact that the land has not been
accurately described in the assessment or in the tax receipts will not affect the efficacy of the payment as a com-
pliance with the statute.[4] Even if the descriptions on the tax receipts are insufficient by themselves to identify
the property, as far as the requirements of adverse possession are concerned, the claimant may show by other
evidence that the particular land occupied was assessed and that the taxes were paid by the claimant or prede-
cessors of the claimant.[5]
If taxes are assessed by government survey designation rather than by metes and bounds, a statutory require-
ment for the payment of taxes may be met by the claimant's payment of taxes on a lot included within the sur-
vey.[6]

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[FNI] Seddon v. Harpster, 403 So. 2d 409 (Fla. 1981); Herrmann v. Woodell, 107 Idaho 916, 693 P.2d
1118 (Ct. App. 1985).
The claimants of a parcel bordered to the west by a state highway and to the east by a county road did
not establish that they had paid taxes on the parcel, as an element of the adverse possession claim, be-
cause the legal descriptions in county assessments were not clear as to whether the claimants or the ad-
joining landowner had paid the taxes, and the office supervisor of the county assessment office could
say only that the claimants were "paying taxes on the property that's east of that road, whatever that
road is." Tester v. Tester, 300 Mont. 5, 3 P.3d 109 (2000).
[FN2] Weston v. Hilliard, 232 Ark. 535, 338 S.W.2d 926 (1960); Hoencke v. Lomax, 102 Tex. 487, 119
S. W. 842 (1909).
A claimant to land by adverse possession could not claim that the payment of taxes on his land was at-
tributable to the claimed land because his deed described 42 acres, but he paid taxes on only 40 acres.
Croft v. Sanders, 283 S.C. 507, 323 S.E.2d 791 (Ct. App. 1984).
[FN3] Welch v. Mathews, 642 S.W.2d 829, 36 A.L.R.4th 835 (Tex. App. Tyler 1982).
[FN4] Sorensen v. Costa, 32 Cal. 2d 453,196 P.2d 900 (1948); Griswold v. Comer, 161 S.W. 423 (Tex.
Civ. App. Galveston 1913), writ granted, (Oct. 15, 1914) and modified on other grounds, 209 S.W. 139
(Tex. Comm'n App. 1919).
The statutory requirement of payment of taxes for five consecutive years, as a prerequisite to a claim of
ownership to a disputed boundary strip that had been improved by the plaintiff, was satisfied because
the tax assessor testified that the taxes were levied on the assumption that the area occupied, including
the disputed strip, was equivalent in amount and extent to the land taxed. Flynn v. Allison, 97 Idaho
618,549 P.2d 1065 (1976).
[FN6] Scott v. Gubler, 95 Idaho 441, 511 P.2d 258 (1973).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. u.S. Govt. Works. All
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

l. Payment of Taxes
§ 150. Statutory requirements-Payment by or on behalf of claimant or by both claimant and record owner
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § II.
As a general rule, the payment of taxes required by statute as a condition to establishing title to land by ad-
verse possession may be made either by the adverse claimant or by a third person or agent on behalf of the
claimant.[ I] This is true even if the agent pays the taxes in the agent's name, if it is shown to be for the adverse
c1aimant.[2] Thus, an adverse claimant may show that taxes paid in another's name, as indicated on tax receipts,
were in fact paid on behalf of the claimant.[3] Payment of taxes by persons in privity with the adverse claimant[
4]-such as a predecessor in interest[5] or a beneficiary[6]-are also generally deemed to be payments inuring
to the benefit of the adverse claimant.
It has been held that payment of taxes as to the land in question by both the owner and the adverse claimant
does not preclude the latter from obtaining the benefit of the payment of taxes.[7] However, it has also been held
that if there has been a double payment of taxes, or payment by the record owner and payment or offer of pay-
ment by one claiming adversely, the one who paid the taxes first prevails.[8]
Once a person has gained title to land by adverse possession by payment of the taxes and fulfillment of the
statutory conditions, a payment of the taxes by the record owner or some other claiming ownership of the land
does not affect the title, even if the owner by adverse possession has not paid the subsequent taxes. [9]
[FN I] Cooper v. Carter Oil Co., 7 Utah 2d 9, 316 P.2d 320 (1957).
[FN2] Cooper v. Carter Oil Co., 7 Utah 2d 9, 316 P.2d 320 (1957).
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[FN3] Langley v. Young, 72 Colo. 466, 211 P. 640 (1922); Western Town Lot Co. v. Pettigrew, 40 S.D.
484,168 N.W. 30 (1918).
[FN4] Cooper v. Carter Oil Co., 7 Utah 2d 9,316 P.2d 320 (1957).
[FN5] Comstock v. Finn, 13 Cal. App. 2d 151,56 P.2d 957 (4th Dis!. 1936).
[FN6] Kuhn v. Glos, 257111. 289,100 N.E. 1003 (1913).
[FN7] Pereira Farms Corp. v. Simas, 69 Cal. App. 159, 230 P. 976 (3d Dis!. 1924); Trappett v. Davis,
102 Idaho 527, 633 P.2d 592 (1981); Thomson v. Weisman, 98 Tex. 170,82 S.W. 503 (1904).
[FN8] McCastlain v. Wylie, 139 Ark. 326, 213 S.W. 743 (1919); Cramer v. Walker, 23 Idaho 495, 130
P. 1002 (1913); Parsons v. Anderson, 690 P.2d 535 (Utah 1984).
[FN9] McFarlane v. Morgan, 157 Ark. 97, 248 S.W. 257 (1923); Newsom v. De Ford, 25 Colo. App.
582, 140 P. 207 (1914); Cramer v. Walker, 23 Idaho 495, 130 P. 1002 (1913); Hobson v. Miller, 64
N.M. 215, 326 P.2d 1095 (1958).
rights reserved.
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AMJUR ADVERSE § lSI Page I
3 Am. Jur. 2d Adverse Possession § lSI

Adverse Possession

1. Payment of Taxes
§ 151. Statutory requirements-Time or period of payment
Generally, under a statute requiring payment of taxes as an element of adverse possession, a claimant or the
predecessor of a claimant must have paid the taxes for the number of consecutive or successive years comprised
in the statutory period, and the failure to pay the taxes for anyone or more years of the statutory period is fatal.[ I]
The statutory period during which the taxes on the land claimed adversely must be paid to establish title by
adverse possession may be any period of successive years before the commencement of an action trying title,
and need not be immediately preceding the action.[2]
It has been held that the payment of taxes for the consecutive years constituting the prescriptive period at
any time when the taxes are payable during the period is a sufficient compliance with the statute.[3] However, it
has also been held that, to constitute a sufficient payment of taxes, they must be paid annually and in succession
for the full number of years prescribed by the statute, and so that payment at one time for several years is not a
compliance with the statute.[4] It has been held that the claimant must pay the taxes of each year for the period
prescribed before they become delinquent, even under a statute that does not specifically require such prompt
payment.[ 5]
The payment of taxes before the acquisition of color of title or such other interest as may be required by the
particular statute is not a compliance with the statute as a payment of taxes during the period prescribed in order
to establish title by adverse possession.[6] Similarly, the payment of taxes that were past due at the time of issu-
ance of a tax deed under which title by adverse possession is claimed may not be counted as one of the neces-
sary successive payments of taxes during adverse possession in order to establish title by adverse possession.[7]
The payment of taxes after the institution of an action relating to the title of land which is claimed by ad-
verse possession is unavailing to aid as a compliance with the statute requiring payment of taxes as a condition
of adverse possession.[8]
A statute requiring payment of all taxes "which have been legally levied and assessed" to establish adverse
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possession does not require the payment of taxes that are not yet due to sustain a claim of adverse possession.[9]
[FNI] Straub v. Capps, 178 Ark. 709, 13 S.W.2d 294 (1928); Glos v. Kingman & Co., 207 Ill. 26, 69
N.E. 632 (1904); Club Land & Cattle Co. v. Wall, 99 Tex. 591, 92 S.W. 984 (1906); Central Pac. Ry.
Co. v. Tarpey, 51 Utah 107, 168 P. 554, I A.L.R. 1319 (1917).
[FN2] Deponte v. Ulupalakua Ranch, Limited, 48 Haw. 17,395 P.2d 273 (1964).
A defendant who claimed title to land by adverse possession and who paid taxes on the land for a period
of 14 years sufficiently complied with the statute providing that the adverse possessor must have occu-
pied and claimed the land for a period of five years continuously and, during such period, paid all taxes
legally levied and assessed on the land. It was immaterial that, following commencement of an action
relating to the title of the land, taxes for the two years immediately preceding the action were paid by
the plaintiffs wife. Brown v. Cartwright, 163 Mont. 139,515 P.2d 684 (1973).
[FN3] Rachels v. Stecher Cooperage Works, 95 Ark. 6, 128 S.W. 348 (1910); Murphy v. Redeker, 16
S.D. 615, 94 N.W. 697 (1903).
[FN4] Brownstin v. Brelle, 193 Wash. 553, 76 P.2d 613 (1938).
[FN5] Houston Oil Co. of Texas v. Niles, 255 S.W. 604 (Tex. Comm'n App. 1923).
[FN6] Goldman v. Sotelo, 8 Ariz. 85, 68 P. 558 (1902); Upham v. Weisshaar, 23 Colo. App. 277, 128
P. 1129 (1912); White v. Harris, 206lll. 584, 69 N.E. 519 (1903).
[FN7] Miller v. Weldon, 26 Colo. App. 108, 140 P. 930 (1914).
[FN8] Etchison v. Dail, 182 Ark. 350, 31 S.W.2d 426 (1930); Empire Ranch & Cattle Co. v. Howell, 22
Colo. App. 389, 125 P. 592 (1912), rev'd on other grounds, 60 Colo. 188, 152 P. 1175 (1915); Club
Land & Cattle Co. v. Wall, 99 Tex. 591, 92 S. W. 984 (1906); Brownstin v. Brelle, 193 Wash. 553, 76
P.2d 613 (1938).
[FN9] Tungsten Holdings, Inc. v. Parker, 2001 MT 117,305 Mont. 329, 27 P.3d 429 (2001).
rights reserved.
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AMJUR ADVERSE III A REF Page I
3 Am. Jur. 2d Adverse Possession III A Refs.

Adverse Possession
Ill. By and Against Whom Title May Be Acquired

A. In General; By Whom Title May Be Acquired
Research References
A.L.R. Library
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 119, 173
rights reserved.
AMJUR ADVERSE III A REF
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Adverse Possession

§ 152. Generally
West's Key Number Digest, Adverse Possession €o=lO
As a general rule all persons, artificial as well as natural, may acquire title by adverse possession.[l] A
claimant to title by adverse possession must ordinarily have legal capacity to take title.[2]
The conduct of an intentional trespasser, if repeated, might ripen into prescription or adverse possession
and, as a consequence, an individual landowner can lose his or her property rights to a trespasser.[3]
Adverse title may be acquired by ajunior patentee against a senior patentee.[4]
[FN I] Lincoln Parish School Bd. v. Ruston College, 162 So. 2d 419 (La. Ct. App. 2d Cir. 1964).
[FN2] Salem Church of United Brethren in Christ in Baltimore County v. Numsen, 191 Md. 43, 59
A.2d 757, 4 A.L.R.2d 117 (1948).
[FN3] Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997).
[FN4] Dishman v. Caylor, 334 S.W.2d 921 (Ky. 1960).
rights reserved.
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Adverse Possession

§ 153. Infant; ward or incompetent
West's Key Number Digest, Adverse Possession €=>IO
An infant generally may acquire title by adverse possession.[I] A guardian's possession is deemed the pos-
session of the ward, and is admissible to prove adverse possession by the ward.[2]
An incompetent person may initiate an adverse possession if of sufficient mental capacity to assert a claim
of exclusive ownership,[3] and an adverse possession begun while one is competent will not be destroyed by a
subsequent adjudication of incompetency. [4]
[FNI] Astle v. Card, 52 R.1. 357,161 A. 126 (1932).
As to effect of parent-child relationship, see § 181.
As to adverse possession against an infant, see § 172.
As to capacity of infants, generally, see 42 Am. Jur. 2d, Infants §§ 36 to 44.
[FN2] U. S. Fidelity & Guaranty Co. v. Montgomery, 226 Ala. 298, 146 So. 528 (1933); Department of
Public Welfare, for Use and Ben. of Central State Hospital v. Allen, 255 Ky. 30 1,74 S. W.2d 329 (1934).
As to adverse possession by guardian against ward, see § 179.
As to property of wards, generally, see 39 Am. Jur. 2d, Guardian and Ward §§ 107 to 115.
As to adverse possession against an incompetent person, see § 173.
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[FN4] Cathcart v. Matthews, 91 S.C. 464, 74 S.E. 985 (1912).
rights reserved.
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Westiaw.

Adverse Possession
111. By and Against Whom Title May Be Acquired

§ 154. Husband and wife
West's Key Number Digest, Adverse Possession €=>IO
Forms
Answer-Defense-Title by adverse possession-By husband and wife-Payment of taxes. I BAm. Jur.

A husband and wife may acquire title to land jointly by adverse possession.[I] It is possible, at common
law, for a husband and wife to commit an act of disseisin for their joint and mutual benefit.[2]
Where there is substantial evidence that spouses intend that their adverse possession of land would inure to
their joint benefits and not to the sole benefit of one spouse, they acquire the title jointly, but as tenants in com-
mon and not tenants by the entirety.[3] Generally, the possession of either spouse, held because of the marital
rights, and not under an independent title or color of title, will inure to the benefit of the other.[4]
Where spouses possessed property adversely, and before the statutory period expired they separated and
were divorced, and one spouse continued to occupy the property adversely, such spouse could tack the former
joint possession to the continuing possession to make out the statutory period.[5]
[FNl] Preston v. Smith, 41 Tenn. App. 222, 293 S.W.2d 51 (1955).
[FN2] Preston v. Smith, 41 Tenn. App. 222, 293 S.W.2d 51 (1955).
As to adverse possession by one spouse against other spouse, see §§ 182 to 184.
[FN3]41 Am. Jur. 2d, Husband and Wife § 31.
[FN4] Howard v. Turner, 287 Ky. 206, 152 S.W.2d 589 (1941).
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[FN5] Humphreys v. Gribble, 227 S.W.2d 235 (Tex. Civ. App. Waco 1950), writ refused n.r.e., (Apr.
19, 1950).
As to tacking of possessions, generally, see §§ 76 et seq.
rights reserved.
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Adverse Possession

§ 155. Tenant against third person
A person that is a tenant may acquire title by adverse possession to adjacent property owned by a third per-
son.[ I] Thus, a tenant is not precluded from setting up adverse possession of adjacent property which the tenant
claims under a deed and which is separated from the landlord's property by a fence.[2]
Observation:
It would seem that where the possession by a tenant of land beyond the boundaries described in a lease does not
inure to the benefit of the landlord it would support a claim by the tenant to such land by adverse possession.[3]
[FNI] Everett v. Culberson, 215 Ga. 577, III S.E.2d 367 (1959).
[FN2] Everett v. Culberson, 215 Ga. 577, III S.E.2d 367 (1959).
As to adverse possession of tenant against landlord, see §§ 197 to 200.
[FN3] Everett v. Culberson, 215 Ga. 577, III S.E.2d 367 (1959).
rights reserved.
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Adverse Possession

§ 156. Cotenant against third person
West's Key Number Digest, Adverse Possession <C=IO
The possession of one cotenant is presumptively the possession of all and inures to the benefit of all.[I]
Where one acquires an outstanding adversary title, the acquisition inures to the benefit of a cotenant.[2] Thus, if
one cotenant in possession of a jointly owned tract of land occupies and claims as part of that tract an adjoining
parcel, adverse possession of the parcel must be deemed to be that of all cotenants, and therefore adverse posses-
sion of such adjoining parcel for the statutory period will be effective to vest the title thereto in all cotenants.[3]
The possession of property by one cotenant under a color of title held by all cotenants inures to the benefit of all
so as to ripen title in each according to the interest ofeach.[4]
[FNI] Mack v. Linge, 254 Iowa 963, 119 N.W.2d 897 (1963); Poenisch v. Quarnstrom, 361 S.W.2d 367
(Tex. 1962).
[FN2]20 Am. Jur. 2d, Cotenancy and Joint Ownership §§ 76 to 89.
As to adverse possession by one cotenant against other cotenants, see §§ 201 to 213.
As to adverse possession by a third person against cotenants, see §§ 214 to 223.
[FN3] Big Run Coal & Clay Co. v. Helton, 323 S.W.2d 855 (Ky. 1959).
[FN4] Herron v. Swarts, 1960 OK 53, 350 P.2d 314 (Okla. 1960).
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We"stlaw"

Adverse Possession
III. By and Against Whom Title May Be Acquired

§ 157. Corporation
West's Key Number Digest, Adverse Possession tC=1O
Forms
Complaint, petition, or declaration-By corporation-Under conveyance-Payment of taxes. 1BAm. Jur.

A private corporation may acquire title by adverse possession in the same manner and to the same extent as
an individual.[l] An incorporated railroad company is within the general rule and may acquire title by adverse
possession for the requisite period of time of land occupied by it and used for the purpose of conducting its
transportation business, although generally a railroad company acquires by adverse possession only an easement
in a right of way.[2] Where a corporation possessing the power of eminent domain originally took title as a pur-
chaser under a deed containing words purporting to convey the fee and, from the beginning, exercised acts of
dominion over the land tending to show absolute ownership, there was no room for the presumption that the cor-
poration entered or continued to hold under its power of eminent domain, and such corporation could acquire
title by adverse possession.[3]
[FNl] Seaboard Air Line R. Co. v. California Chemical Co., 210 So. 2d 757 (Fla. Dis!. C!. App. 4th
Dist. 1968); Todd v. Kitsap County, 101 Wash. 2d 245,676 P.2d 484 (1984).
[FN2] 65 Am. Jur. 2d, Railroads §§ 55, 74, 103.
As to acquisition of title against a railroad by adverse possession, see §§ 276,277.
[FN3] Ontelaunee Orchards v. Rothermel, 139 Pa. Super. 44,11 A.2d 543 (1940).
rights reserved.
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Adverse Possession

§ 158. Corporation-Foreign corporation
West's Key Number Digest, Adverse Possession C= I 0
Although the cases are not in accord on the right of a foreign corporation to acquire title by adverse posses-
sion, it would seem that in any jurisdiction where the local laws permit foreign corporations to take and hold
title to land, such corporation may acquire title by adverse possession. [I] Of course, where the view is taken that
a foreign corporation cannot invoke the benefit of the applicable statute of limitations[2] it is denied the right to
acquire title by adverse possession to lands.[3] In jurisdictions where the rule prevails that a foreign corporation
is permanently absent from the state, it may be denied the benefit of a statute of limitations governing actions for
the possession of real property, provided a "saving clause" tolling the statute as to nonresidents is construed as
applicable to such actions.[4] Of course, if the "saving clause" is construed as not embracing nonresidents, a for-
eign or alien corporation does not fall within its terms, and in such cases, the corporation may have the benefit
of the statute of limitations and claim land the statute by adverse possession.[5]
Observation:
While this would be the holding irrespective of the view taken as to the presence or absence of the foreign cor-
poration, it is expressly supported for the additional reason that the agent or tenant of the foreign corporation
who has had possession during the limitation period could at any time have been brought into court and the
agent's right to possession determined without regard to the question whether the property was held by a repres-
entative or principa1.[6] Moreover, there is express authority for the view that a statute limiting the time within
which an action for the recovery of land may be brought is applicable to a foreign corporation unless it appears
that it could not have been served with process within the jurisdiction of the court.[7]
[FN1] Humphreys v. Idaho Gold Mines Development Co., 21 Idaho 126, 120 P. 823 (1912); Scottish
Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911).
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[FN2] 36 Am. Jur. 2d, Foreign Corporations § 246.
[FN3] Robinson v. Imperial Silver Min. Co., 5 Nev. 44, 1869 WL 2384 (1869) (overruled in part on
other grounds by, Simmons v. Trivelpiece, 98 Nev. 167,643 P.2d 1219 (1982)).
[FN4] Union Consolidated Silver Mining Co. v. Taylor, 100 U.S. 37, 25 L. Ed. 541 (1879) (bound by
construction of Nevada statutes).
[FN5] Scortish Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911).
[FN6] Scottish Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911).
[FN7] Walker v. L. E. Meyers Cons!. Co., 1935 OK 965, 175 Okla. 548, 53 P.2d 547 (1935).
rights reserved.
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Adverse Possession

§ 159. Religious corporation or society
West's Key Number Digest, Adverse Possession C=IO
A.L.R. Library
Adverse possession by religious society, 4 A.L.R. 2d 123 §§ 2, 3.
There is no distinction between a religious corporation and an individual in regard to the capacity to acquire
title by adverse possession.[l] Consequently, a religious corporation can acquire title by adverse possession.[2]
A church may generally acquire title by adverse possession[3] and religious groups may acquire property by
adverse possession by using it in the same way that such property is ordinarily used by a church.[4]
Observation:
Primarily, it is the acts of the adverse claimant to which the court must look to determine objectively whether
there is a claim of right to the disputed area openly and exclusively, and particularly is this true where the intent
in question is that of an incorporated entity, such as a church, so that a trial court is not bound by the intent of an
individual member, but instead must discern the intent of the entity as evidenced by the acts of the body as a
whole.[5]
The trustees or deacons of a religious society or church may acquire title to property by adverse possession,[
6] and hence church trustees, like other persons, under a deed as color of title, may acquire good title to land by
adverse possession.[7] There is, however, authority for the view that the trustees of an unincorporated religious
society which could not itself acquire title by adverse possession cannot acquire such title.[8] Although an unin-
corporated religious society cannot acquire property, the individuals who compose such society may acquire title
by adverse possession which, on the incorporation of the society, inures to its benefit.[9]
[FN 1] Shepherd v. Scott's Chapel, A.M.E. Zion Church, 216 Ala. 193, 112 So. 905 (1927).

Page 333 of 665

[FN2] Robertson v. Fincher, 348 So. 2d 466 (Ala. 1977).
[FN3] Burton v. Griffith, 226 Ark. 641, 291 S.W.2d 516 (1956).
An incorporated church that exercised general control over property which had been conveyed to its un-
incorporated predecessor church for use of ministers acquired good title to property by adverse posses-
sion. Presbyterian Church of James Island v. Pendarvis, 227 S.c. 50, 86 S.E.2d 740 (1955).
[FN4] O. K. C. Corp. v. Allen, 574 S.W.2d 809 (Tex. Civ. App. Texarkana 1978), writ refused n.r.e.,
(May 30, 1979).
[FN5] Robertson v. Fincher, 348 So. 2d 466 (Ala. 1977).
[FN6] Bridges v. Henson, 216 Ga. 423,116 S.E.2d 570 (1960) (trustees).
[FN7] Deepwater Ry. Co. v. Honaker, 66 W. Va. 136,66 S.E. 104 (1909).
[FN8] Salem Church of United Brethren in Christ in Baltimore County v. Numsen, 191 Md. 43, 59
A.2d 757, 4 A.L.R.2d 117 (1948).
[FN9] Refonned Church of Gallupville v. Schoolcraft, 65 N.Y. 134, 1875 WL 10945 (1875).
rights reserved.
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Adverse Possession

§ 160, Cemetery authority or association
West's Key Number Digest, Adverse Possession €=> I 0
A.L.R. Library
Acquisition of title to ground through adverse possession by cemetery or graveyard authorities, 41 A.L.R.
2d 925.
It is generally held that cemetery authorities or associations, otherwise entitled to hold legal title to property
to be used for burial purposes, may acquire such property by adverse possession,[I] even as to land not yet used
as burial plots.[2] However, the contention that a cemetery association incorporated by the owners of a group of
plots previously used for burial purposes had acquired adverse title, as against the owners of the various plots, to
land included within a fence erected by the association, has been rejected.[3]
[FNI] Kuhn v. Gabriel Cemetery Ass'n, 202 So. 2d 634 (Miss. 1967); c. L. Gray Lumber Co. v. Pick-
ard, 220 Miss. 419, 71 So. 2d 211, 41 A.L.R.2d 920 (1954).
As to adverse possession of cemeteries and lots therein, see § 266.
[FN2] Berrey v. Jean, 401 N.E.2d 102 (Ind. C!. App. 1st Dis!. 1980).
[FN3] Rathbunville Union Cemetery Ass'n v. Betson, 208 N.Y. 364,101 N.E. 892 (1913).
rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 161. Members orthe public
West's Key Number Digest, Adverse Possession C=1O
A.L.R. Library
Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.
3d 678 §§ 3, 9.
The public may obtain title by adverse possession to that which it has occupied during the full statutory
period.[l] However, the acquisition of such title would have to be through a public or governmental entity rather
than the unorganized public.[2]
Caution:
However, the occupancy or use by the public of one portion of a road does not avail it in its claim to another
portion not occupied by it.[3]
[FNl] Ogle v. Hodge, 217 Ark. 913, 234 S.W.2d 24 (1950); Lincoln Parish School Bd. v. Ruston Col-
lege, 162 So. 2d 419 (La. Ct. App. 2d Cir. 1964).
[FN2] Morgan v. McLoughlin, 6 Misc. 2d 434, 163 N.Y.S.2d 51 (Sup 1957), judgment affd, 6 A.D.2d
704, 174 N.Y.S.2d 890 (2d Dep't 1958), judgment affd, 5 N.Y.2d 1041, 185 N.Y.S.2d 801, 158 N.E.2d
498 (1959).
As to acquisition by governmental entities, see §§ 162 et seq.
[FN3] Descheemaeker v. Anderson, 131 Mont. 322, 310 P.2d 587, 63 A.L.R.2d 1153 (1957).
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rights reserved.
END OF DOCUMENT
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West law,

Adverse Possession
Theresa Leming, J, 0" Bill Lindsley, J.D., and Eric Surette, J.D.

§ 162, Governmental entity
West's Key Number Digest, Adverse Possession €= 10
A,L,R, Library
3d 678 §§ 4, 5, 9, lOe.
Title by adverse possession may be acquired by the United States,[I] or by a state,[2] county,[3] city,[4] or
other governmental entity.[5]
Practice Guide:
It has been stated that the test used to determine whether a local government has acquired property by adverse
possession is clearly not the same test as that used to determine whether a party has acquired government prop-
erty by virtue of the government's abandonment of the same.[6]
A governmental entity must show all facts that must be shown by an individual to establish title by adverse
possession.[7]
Illustration:
A state levee board of commissioners did not acquire rights in land adjacent to a levee by prescription where the
levy board in the county in question did not have the statutory power to acquire title to the land and therefore
could not acquire fee title to the land by adverse possession, and where the levee board continually recognized
that the property owner held title to the land and that the owner was liable for taxes on the land, and where the
levee board recognized that if its easement to maintain the levee ceased to exist, the board's interest in the adja-
cent land would revert to the owner.[8]
Page 338 of 665

[FNI] Stanley v. Schwalby, 147 U.S. 508,13 S. Ct. 418, 37 L. Ed. 259 (1893).
The United States had acquired good title by adverse possession to an 80-acre tract of land in a national
forest in Utah, where from at least 1937 until 1955 only the United States and a predecessor who con-
veyed to it acted as owners of the property. U.S. v. Stubbs, 776 F.2d 1472 (lOth Cir. 1985) (applying
Utah law).
[FN2] State ex reI. R.T.G., Inc. v. State, 141 Ohio App. 3d 784, 753 N.E.2d 869 (10th Dist. Franklin
County 2001); Coos County v. State, 303 Or. 173,734 P.2d 1348 (1987).
[FN3] § 163.
[FN4] § 164.
[FN5] Williams v. North Carolina State Bd. of Ed., 266 N.C. 761,147 S.E.2d 381 (1966).
As to acquisition of title by adverse possession of public property, see §§ 268 et seq.
[FN6] Heise v. Village of Pewaukee, 92 Wis. 2d 333, 285 N.W.2d 859 (1979).
[FN7] Ostrander v. Bell, 199 A.D. 304, 192 N.Y.S. 262 (3d Dep't 1921), affd, 234 N.Y. 566, 138 N.E.
449 (1922);
For cases in which governmental entity's claim for adverse possession was defeated, see Ault v. State,
688 P.2d 951 (Alaska 1984). Application of Karnakana, 58 Haw. 632, 574 P.2d 1346 (1978); Rector v.
Missouri Dept. of Natural Resources, 685 S.W.2d 225 (Mo. Ct. App. E.D. 1984).
[FN8] McDonald v. Board of Mississippi Levee Com'rs, 646 F. Supp. 449 (N.D. Miss. 1986), judgment
afrd, 832 F.2d 901 (5th Cir. 1987) (applying Mississippi law).
rights reserved.
END OF DOCUMENT
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Adverse Possession

A. In Geneml; By Whom Title May Be Acquired
§ 163. Governmental entity-Counly; possession under lax deed
Wesl's Key Number Digesl
West's Key Number Digest, Adverse Possession (:=10
A. L.R. Library
3d 678 § 6.
It is the general rule that a county may acquire title to land by adverse possession.[I] However, the posses-
sion of land by a county under a tax deed is not adverse to the former owner while the latter's right of redemp-
tion exists.[2] Thus, where a former owner's right of redemption was never cut off, because of a defective notice
of the expiration of the period of redemption, the county's possession under its tax deed was not adverse to the
former owner even though it ran for many years beyond the normal period ofredemption.[3]
[FN I]ltawamba County v. Sheffield, 195 Miss. 359, 13 So. 2d 649 (1943).
[FN2] Accola v. Miller, 76 N.W.2d 517 (N.D. 1956).
[FN3] McGee v. Stokes' Heirs at Law, 76 N.W.2d 145 (N.D. 1956).
rights reserved.
END OF DOCUMENT
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Adverse Possession
Theresa Leming, J. D., Bill Lindsley, lD., and Eric Surette, J.D.
lll. By and Against Whom Title May Be Acquired

§ 164. Governmental entity-Town or city
West's Key Number Digest, Adverse Possession €o=IO
A.L.R. Library
3d 678 § 8.
Public entities, including municipalities, may acquire land by adverse possession.[I] A municipal corpora-
tion is not deprived of the benefit of continuous adverse possession of land because of the public character of its
corporate franchise, and it may acquire title by adverse possession the same as an individual.[2] There is,
however, some authority for the view that a municipality cannot acquire title by prescription or adverse posses-
sion, particularly due to its right to acquire land by the exercise of the power of eminent domain.[3]In one state
political subdivisions of the state cannot acquire property through acquisitive prescription, as to allow such
would be in conflict with a provision of the state constitution.[4]
[FNI]In re.88 Acres of Property, 165 VI. 17,676 A.2d 778 (1996).
[FN2] City of Raleigh v. Durfey, 163 N.C. 154,79 S.E. 434 (1913).
[FN3] Sayre Land Co. v. Borough of Sayre, 384 Pa. 534,121 A.2d 579 (1956).
[FN4] Parish of Jefferson v. Bonnabel Properties, Inc., 620 So. 2d 1168 (La. 1993).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRIA. No Claim to Orig. U.S. Govl. Works. All
rights reserved.
Page 341 of 665

END OF DOCUMENT
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Adverse Possession

§ 165. Governmental entity-School district
West's Key Number Digest, Adverse Possession €=> 10
A.L.R. Library
3d 678 § 7.
A school district is a body corporate and can acquire title to land by adverse possession.[l]
A school district is not restricted to the acquisition of an easement by adverse use, but may acquire the full
title by adverse possession.[2] The test of adverse use by a school district is its manifest intention initially and
subsequently to hold the property in nonrecognition of those against whom it is claimed.[3] While the character
and quality of the use of land by a school district are naturally not of the same type and character that individu-
als might normally make of land, where it is the character of dominion and use normally exercised and made of
property by a school district, it will suffice to support a claim of title by adverse possession in the school dis-
trict.[4]
In the absence of a license or an agreement granting the right of occupancy, the placing of a school building
and other necessary appendages on the land of another, building a fence around it and conducting school and so-
cial functions thereon, is evidence of adverse and hostile possession under which title may be claimed after the
lapse of the statutory period.[5] A school district that enters into possession of land under a purported condem-
nation proceeding designed to vest it with fee simple title, and that openly uses and occupies the land as a public
school site adversely and continuously for the statutory period under a bona fide claim of ownership, becomes
vested with the complete fee simple title.[6]
[FNl] Lincoln Parish School Bd. v. Ruston College, 162 So. 2d 419 (La. Ct. App. 2d Cir. 1964); Harris
v. Consolidated School Dist. No.8 C, Dunklin County, 328 S.W.2d 646 (Mo. 1959).
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[FN2] Feeler v. Reorganized School Dis!. No.4 of Lincoln County, 290 S.W.2d 102 (Mo. 1956).
[FN3] La Grange Reorganized School Dis!. No. R-VI v. Smith, 312 S.W.2d 135 (Mo. 1958).
[FN4] La Grange Reorganized School Dist. No. R-VI v. Smith, 312 S.W.2d 135 (Mo. 1958).
[FN5] Jeffers v. Edge, 1956 OK 109,295 P.2d 787 (Okla. 1956).
[FN6] Meinders v. Board of Ed. of Wynnewood School Dis!. 1-38, 1959 OK 161, 344 P.2d 572 (Okla.
1959).
rights reserved.
END OF DOCUMENT
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AMJUR ADVERSE III B REF Page I

3 Am. Jur. 2d Adverse Possession III B Refs.

Adverse Possession

B. Against Whom Title May Be Acquired
Topic Summaty Correlation Table
Research References
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 46.5. 47
A.LR. Index: Adverse Possession
Forms
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 175, 180
rights reserved.
AMJUR ADVERSE III B REF
END OF DOCUMENT
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Westlaw.

Adverse Possession

I. In General
§ 166. Generally
Forms
Complaint, petition, or declaration-Against corporation-Claim of right-Possession by enclos-

ure-Fenced property not described in original deed. I BAm. Jur. Pleading and Practice Forms, Adverse Posses-
sion § 175.
As a general rule, title by adverse possession may be acquired against all persons who are not excepted from
the operation of the statute of limitations, even though they did not know, or claim, that they had title to the
property involved.[I] However, the possession of real property cannot ordinarily be considered as adverse as to
one who, during its continuation, did not have a right of entry,[2] as, for instance, a remaindennan or reversion-
er.[3] The presumption of a grant from an adverse possession for the statutory period arises only where the per-
son against whom the right is claimed could have lawfully interrupted or prevented the exercise of the subject of
the supposed grant.[4]
Statutory protection from adverse possession may be afforded to lands that have a pious, charitable, or pub-
lic use.[5]
[FNI] Waterman Hall v. Waterman, 220 III. 569, 77 N.E. 142 (1906).
As to legal control of property held in hostility to absentee owner, see 1 Am. Jur. 2d, Absentees § II.
[FN2] Pahler v. Schoenhals, 234 S. W.2d 581 (Mo. 1950).
[FN3] § 232.
Page 346 of 665

[FN4] Greenbaum v. Harrison, 132 Md. 34,103 A. 84 (1918).
As to presumption of grant, see § 7.
[FN5] Empire Dis!. Elec. Co. v. Gaar, 26 S.W.3d 370 (Mo. C!. App. S.D. 2000).
As to adverse possession by religious organizations, see § 159.
rights reserved.
END OF DOCUMENT
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Westiaw.

Adverse Possession

1. In General
§ 167, Trustee or beneficiary
A third person may acquire title to trust property by adverse possession.[l] Thus, the rule is uniformly re-
cognized that title by adverse possession may be acquired to property held in trust, and that if a trustee delays
the assertion of rights until the statute effects a bar against the trustee, the beneficiary will also be barred.[2]
One of the duties of a trustee is to hold the legal title, and it is the trustee's duty, if there is any interference by
anyone with trust lands, to prevent such interference ripening into any rights prejudicial to the beneficiary.[3] If
the trustee fails so to protect the trust estate, and allows intruders adverse possession for the statutory period,
both the trustee and the beneficiary will be barred from asserting any interest in the property.[4] So, where a
third party is in possession, denying that any trust affecting the estate has been created, or asserting that the trust
has been fully performed, or released or discharged, or otherwise does not exist, and claiming adversely to both
the trustee and beneficiary, such possession is adverse; and if al1 those who wou1d have a right to question it ac-
quiesce during the time of limitation, the statute is a bar.[5]
Observation:
A mere ignorance on the part of the beneficiary of the existence of rights in the trust property will not serve to
stop the running of the statute.[6]
The adverse possession of a trust estate has the effect of preventing a recovery of the property by persons
who would otherwise be entitled to the possession at the termination of the trust.[7]
Where a remainder is held in trust, an adverse possession against the trustee wi11 also be effective as against
beneficiaries[8]
[FNl] Presbyterian Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
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[FN2] Meeks v. Olpherts, 100 U.S. 564, 25 L. Ed. 735 (1879).
[FN3] Benbow v. Levi, 50 S.C. 120,27 S.E. 655 (1897).
[FN4] Benbow v. Levi, 50 S.C. 120,27 S.E. 655 (1897).
[FN5] Presbyterian Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
[FN6] Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906).
[FN7] Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906); Huntington Real Estate Co. v.
Megaree, 280 Mo. 41, 217 S.W. 301 (1919).
[FN8] Meeks v. Olpherts, 100 U.S. 564, 25 L. Ed. 735 (1879).
As to adverse possession of remainders, generally, see §§ 232 to 236.
rights reserved.
END OF DOCUMENT
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Adverse Possession

1. In General
§ 168. Mortgagee
The view has been taken that adverse possession by a stranger, even though sufficient to bar the owner's
title, does not bar the mortgagee's right thereto.[I] Other cases reach the same result, but with specific reference
to situations where the adverse possession was initiated subsequently to the mortgage.[2]
On the other hand, the view also has been taken that adverse possession that would have barred the owner's
right would also bar the mortgagee's right to the land, and an adverse possessor of mortgaged land is within the
rule that a person who has an interest in the land may set up the fact that a mortgagee's right to foreclose is
barred by the statute of Iimitations.[3] Other cases hold that adverse possession by a stranger, commenced be·
fore the execution of the mortgage and continued for the period requisite to bar the owner, bars the mortgagee's
interest in the land, apparently on the theory that the mortgagee is bound to take notice of any adverse claim be·
ing asserted at the time of the mortgage.[4] Still other courts hold that adverse possession by a stranger is a bar
against the mortgagee only after the expiration of the time within which the mortgagee is allowed to foreclose
the mortgage, plus the period intervening between the execution of the mortgage and the initiation of the adverse
possession.[5]
Adverse possession may be initiated against a mortgagee immediately on the commencement of the posses·
sion, in the absence of actual or constructive knowledge by the adverse claimant of the mortgage.[6] Adverse
possession initiated by a stranger will not be suspended as to the mortgagee by a mere extension of the indebted·
ness or undue delay of foreclosure after the adverse possession commenced.[7]
[FNI] Coe v. Finlayson, 41 Fla. 169,26 So. 704 (1899).
[FN2] Hart v. Lake Josephine Co., 149 Fla. 754, I So. 2d 635 (1941); Broad v. Warnecke, 144 S.W.2d
1005 (Tex. Civ. App. Amarillo 1940), judgment afrd, 138 Tex. 631, 161 S.W.2d 453 (1942).

Page 350 of 665

[FN3] Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570,136 A.L.R. 770 (1941).
[FN4] Drawdy v. Lake Josephine Co., 149 Fla. 756, I So. 2d 631 (1941); Stryker v. Rasch, 57 Wyo. 34,
112 P.2d 570,136 A.L.R. 770 (1941).
[FN5] Stryker v. Rasch, 57 Wyo. 34,112 P.2d 570,136 A.L.R. 770 (1941).
[FN7] Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 136 A.L.R. 770 (1941).
rights reserved.
END OF DOCUMENT
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Westiaw.

Adverse Possession

1. In General
§ 169. Judgment creditor
West's Key Number Digest, Adverse Possession C=>4
Adverse possession may run against a judgment creditor of the title holder to land.[ I] Thus, where a judg-
ment creditor sits by and fails to enforce a judgment while the actual possession of an adverse claimant ripens
into title, the latter has the superior right.[2] It is said that the judgment creditor cannot claim lack of notice of
the adverse possessor's claims, for the actual possession of such adverse claimant was sufficient to put the judg-
ment creditor on notice.[3]
Caution:
The recordation of the judgment during the adverse occupancy does not halt the running of the statute.[4]
[FN 1] Hillsborough Inv. Co. v. Lawyers Trust Co., 148 Fla. 224, 3 So. 2d 870 (1941).
[FN2] Hillsborough Inv. Co. v. Lawyers Trust Co., 148 Fla. 224, 3 So. 2d 870 (1941).
rights reserved.
END OF DOCUMENT
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Adverse Possession

I. In General
§ 170. Railroads
In some states title to real estate cannot be acquired from a railroad company by adverse possession,[1 J al-
though sometimes this rule is limited in application to where the property is being used for railroad purposes.[2]
Accordingly, in some states railroad property acquired by private sale and held in fee simple, which has not been
designated for the railroad's line or other railroad operations, is subject to adverse possession.[3] A distinction is
sometimes made between railroad property acquired through a public grant, which is not subject to adverse pos-
session,[4] and railroad property acquired by means ofa private sale, which is subject to adverse possession.[5]
[FN I] Bangor & Aroostook R. Co. v. Daigle, 607 A.2d 533 (Me. 1992); McLaurin v. Winston-Salem
Southbound Ry. Co., 323 N.C. 609, 374 S.E.2d 265 (1988).
[FN2] Boyles v. Missouri Friends of Wabash Trace Nature Trail, Inc., 981 S.W.2d 644 (Mo. Ct. App.
W.D. 1998); Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996).
[FN4] Read v. Montgomery County, 101 Md. App. 62, 643 A.2d 476 (1994).
[FN5] Meiers v. Wang, 192 Wis. 2d 115,531 N.W.2d 54 (1995).
rights reserved.
END OF DOCUMENT

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Adverse Possession

2. Persons under Disability
§ 171. Generally
Forms
Reply-Title not acquired-Plaintiff under disability. IB Am. Jur. Pleading and Practice Forms, Adverse
Possession § 180.
Under the principle that the doctrine of adverse possession is based on the presumption of a grant or con-
veyance,[l) if the person from whom the grant is presumed is under a legal disability to make a grant, there gen-
erally can be no title by adverse possession as against such person.[2) Statutes of limitation, as a rule, exempt
ITom their operation all persons who are under disabilities such as those of infancy, mental incompetency, and
the like, and in such cases an additional time is allowed in which the party may act to recover property after the
removal of the disability.[3) As a general rule, successive disabilities cannot be taken advantage of to prolong
the statute.[4)
Observation:
Regardless of what may seem to be the general rule in these situations, the local laws must be consulted in this
respect, as the question of disabilities as a bar to title by adverse possession is a purely statutory determination.[ 5)
Caution:
In some jurisdictions, it is held that when a joint action is given to several persons the statute will run against all,
even though some of them are under a statutory disability.[6)
[FNI) § 7.
Page 354 of 665

[FN2] Braue v. Fleck, 23 N.J. I, 127 A.2d I (1956); Abel v. Abel, 245 Iowa 907, 65 N.W.2d 68 (1954).
[FN3] Braue v. Fleck, 23 N.J. I, 127 A.2d I (1956).
As to acquisition of adverse possession tit1e against an infant, see § 172.
As to acquisition of adverse possession title against an incompetent person, see § 173.
[FN4] De Hatre v. Edmunds, 200 Mo. 246, 98 S.W. 744 (1906) (coverture and mental incompetency).
[FN5] Carney v. Hennessey, 74 Conn. 107,49 A. 910 (1901).
[FN6] Cameron v. Hicks, 141 N.C. 21, 53 S.E. 728 (1906).
As to adverse possession between cotenants, see §§ 20 I to 213.
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

§ 172. Infants
West's Key Number Digest, Adverse Possession 08=4
The possession of one claiming title to land by adverse possession, who begins possession at a time when
the owner is an infant, generally cannot be adverse to the owner during the time the latter is under disability, and
the statute generally does not begin to run until after removal of the disability,[I) or, in other words, until the in-
fant reaches majority.[2) Where the marriage of an infant automatically removes the disability of infancy, the
marriage of an infant owner of land held adversely to such owner starts the running of the statute of limitations.[ 3)
Observation:
A record owner who asserts the disability of infancy to defeat a claim of title by adverse possession must show
that the alleged adverse possession began during minority.[4)
Caution:
Under some statutes, an adverse possession that originates during the record owner's infancy will ripen into title
if a possessory action is not brought by the owner within the specified statutory period after attaining majority.[5 )
In some cases the benefits of the disability of infancy may extend to other co-owners of the property.[6)
However, the disability of infancy as to one cotenant will not be extended so as to protect other cotenants.[7)
[FNI) Adams v. Adams, 220 S.C. 131,66 S.E.2d 809 (1951).
As to disability subsequent to the commencement of the running of the statute, see § 174.

Page 356 of 665

As to personal disability or incapacity as affecting limitation of actions, generally, see 51 Am. Jur. 2d,
Limitation of Actions §§ 216 to 223.
[FN2] Adams v. Adams, 220 S.c. 131,66 S.E.2d 809 (1951).
As to adverse possession by an infant, see § 153.
As to adverse possession by parent against child or by child against parent, see § 181.
[FN3] Louisiana & T. Lumber Co. v. Lovell, 147 S.W. 366 (Tex. Civ. App. Galveston 1912).
[FN4] Armstrong v. Wilcox, 57 Fla. 30,49 So. 41 (1909).
[FN5] Pearson v. Hasty, 1943 OK 179, 192 Okla. 425,137 P.2d 545,147 A.L.R. 232 (1943).
[FN6] Gilbert v. Hopkins, 204 F. 204 (C.C.A. 4th Cir. 1913).
As to running of statute against a joint cause of action generally, even though some parties plaintiff are
under disability, see § 171.
[FN7] Sibley v. Sibley, 88 S.c. 184,70 S.E. 615 (1911).
The failure of the presumption of a grant is personal to the infant and cannot inure to the benefit of oth-
ertenants in common with the infant. Fore v. Berry, 94 S.C. 71, 78 S.E. 706 (1913).
As to adverse possession against cotenants, see §§ 214 to 223.
© 2010 Thomson Reuters. 33-348 © 2010 Thomson ReuterslRIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 173. Mental impairment
The possession of one claiming title to land by adverse possession, who begins possession while the owner
is mentally impaired, is not adverse to the owner during the time the latter is under such disability.[I] Time be-
gins to run only after removal of the disability.[2] The same rule applies where there is partial mental incompet-
ency which prevents the afflicted person from understanding rights in regard to the subject matter of the suit.[3]
Caution:
It is important to consult local laws in this connection, inasmuch as such laws may alter general rules, such as
statutory provisions requiring action to be brought by the incompetent within a certain number of years after be-
coming of sound mind.[4]
[FNI] Memmott v. Bosh, 520 P.2d 1342 (Utah 1974).
[FN2] Abel v. Abel, 24510wa 907, 65 N.W.2d 68 (1954).
As to the applicability of local statutes to determine questions regarding disabilities, see § 171.
As to adverse possession by an incompetent person, see § 153.
As to effect of mental impairment on limitation of actions, generally, see 51 Am. Jur. 2d, Limitation of
Actions §§ 229 to 234.
[FN3] Blalock v. Bell, 172 Ga. 313,157 S.E. 696 (1931).
[FN4] § 171.
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rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 174. Subsequently arising disability
West's Key Number Digest, Adverse Possession €o=4
Disability subsequent to the commencement of the running of the statute of limitations, such as the disabil-
ity of infancy, mental incompetency, or coverture, does not interrupt the running of the statute.[1] In the absence
of a statute otherwise providing, it is the general rule that where the statute of limitations has commenced to run
against the right of an owner of real property to sue for its recovery, the running of the statute is not interrupted
by the death of the owner and the casting of the descent of the land on one under disability, or by the fact that
the owner had conveyed the land to one under disability.[2] Thus, where the statute of limitations has begun to
run in favor of one in adverse possession against an owner who dies leaving heirs who are minors, the disability
of infancy does not affect the operation of the statute, since the disability is subsequent to the commencement of
the running of limitations.[3]
[FN I] 51 Am. Jur. 2d, Limitation of Actions § 220.
[FN2] Hogan v. Kurtz, 94 U.S. 773, 24 L. Ed. 317 (1876).
[FN3] Commercial Bank & Trust Co. v. Jordan, 85 Mont. 375, 278 P. 832,65 A.L.R. 968 (1929).
rights reserved.
END OF DOCUMENT
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AMJUR ADVERSE 1Il C REF Page I
3 Am. JUT. 2d Adverse Possession IIJ C Refs.

Adverse Possession

C. Effect of Particular Relationships between Parties
Research References

West's Key Number Digest, Husband and Wife €=>16
West's Key Number Digest, Joint Tenancy €=>9, 13
West's Key Number Digest, Judicial Sales €=>32, 61
West's Key Number Digest, Landlord and Tenant €=>14, 16
West's Key Number Digest, Life Estates €=>8
West's Key Number Digest, Mortgages €=>213, 214
West's Key Number Digest, Parent and Child €=>8
West's Key Number Digest, Trusts €=>138, 139.1
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 5 to 16,46.5
Forms
I A Am. JUT. Legal Forms 2d, Adverse Possession §§ 11: I 0, II: 17 to II: 19
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 49,176,181,183
rights reserved.
AMJUR ADVERSE 111 C REF
END OF DOCUMENT
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Westlaw.

Adverse Possession
Theresa Leming, J. D., BiII Lindsley. J.D., and Eric Surette, J.D.

1. In General
§ 175. Generally
West's Key Number Digest, Adverse Possession tC=4, 10
A.L.R. Library
3d 678 § 3.
Under the well-established principle that one cannot hold title adversely to one's self, title cannot be ac-
quired by adverse possession by a person holding land in hostility to him or herself.[I] One who has record title
and, concomitantly also possesses property cannot thereby acquire title to the property by adverse possession, as
the possession of property in an open and continuous manner is a possession and a use of property which is con-
sistent with and incident to ownership by one who has record title to the property.[2] The legal owners of prop-
erty cannot adversely possess it, even after defaulting on a promissory note that is secured by a deed of trust to
the property, as the holder of the note has no automatic right of entry.[3] It is also well settled that where two
tracts of land have a common owner, there can be no adverse possession since an owner cannot prescribe against
himself.[4] It follows that a person holding land in one capacity cannot hold it adversely to him or her self
claiming in another capacity.[5]
One governmental unit may not claim title against another governmental unit on the ground of adverse pos-
session where one is an agency of the other or where both are agencies of the same government, evidently for
the reason that neither can have an interest adverse to the interest of the other in such situations.[6]
[FNI] Pluhar v. Guderjahn, 134 Mont. 46, 328 P.2d 129 (1958).
Adverse possession cannot spring from the use of property owned in fee by the one in possession, as it
relates to the use of property owned by another. Weiss v. Cord Helmer Realty Corp., 140 N.Y.S.2d 95

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(Sup 1955).
[FN2] DeVita v. Esposito, 13 Conn. App. 101,535 A.2d 364 (1987).
Since the owner of a residential condominium unit has an undivided interest in the common elements of
the condominium, such an owner is precluded from claiming ownership, through adverse possession, of
a condominium unit that is part of the common elements of the condominium. st. Jean Place Con-
dominium Ass'n v. DeLeo, 745 A.2d 738 (R.!. 2000).
[FN3] Beal Bank, S.S.B. v. Thornton, 70 Ark. App. 336, 19 S.W.3d 48 (2000).
[FN4] Porterfield v. Spurgeon, 379 So. 2d 56 (La. Ct. App. 3d Cir. 1979), writ denied, 381 So. 2d 1235
(La. 1980).
[FN5] Pluhar v. Guderjahn, 134 Mont. 46, 328 P.2d 129 (1958).
[FN6] Trustees of University of South Carolina v. City of Columbia, 108 S.c. 244, 93 S.E. 934 (1917);
Board of Ed. of Memphis City Schools v. Shelby County, 155 Tenn. 212, 292 S.W. 462 (1927).
State could not claim title to county land by adverse possession. Coos County v. State, 303 Or. 173, 734
P.2d 1348 (1987).
rights reserved.
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Westlaw

Adverse Possession
lll. By and Against Whom Title May Be Acquired

1. In General
§ 176. Principal and agent
West's Key Number Digest, Adverse Possession €=;:>4, 10
Under the rule that the possession of an agent is the possession of the principal,[l] the possession of land by
an agent cannot be deemed adverse to the principal.[2] On the contrary, possession by an agent will be con-
sidered to be the possession of the principal in the absence of proof to the contrary.[3] This is true even as to the
possession of one who acts as agent without authority, or one who exceeds authority as an agent.[4]
Under certain circumstances, however, the holding of land by an agent may be adverse to the principal, and
where an agent disavows the idea of holding property as an agent and asserts an exclusive right in the property,
either with the principal's actual knowledge, or so openly and notoriously that the principal must know of it, the
possession then becomes adverse.[5] An agent may hold adversely to a fonner principal after the agency is ter-
minated.[6]
[FNI] §23.
[FN2] McCreary v. Coggeshall, 74 S.c. 42, 53 S.E. 978 (1906).
As to duty of agent not to act adversely to principal, see 3 Am. Jur. 2d, Agency §§ 228 to 245.
[FN3] McCreary v. Coggeshall, 74 S.c. 42, 53 S.E. 978 (1906).
[FN4] Ashford v. Ashford, 136 Ala. 631, 34 So. 10 (1903).
[FN5] Davis v. Williams, 130 Ala. 530, 30 So. 488 (1901).
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rights reserved.
END OF DOCUMENT
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Westlaw,

Database updated November 20 \0
Adverse Possession

I. In General
§ 177. Partners
West's Key Number Digest, Adverse Possession €=4, 10
It is a general principle that a partner cannot derive any benefit from the partnership relationship for such
partner as against copartners or from any act that constitutes a breach of duty to the firrn.[ I] This principle pre-
vents a partner from secretly acquiring an outstanding title to partnership property and setting it up against a co-
partner.[2] Moreover, where real estate is purchased and paid for with partnership funds and conveyed to one
partner, no length of possession by such partner bars the other partners.[3]
[FN I] 59A Am. Jur. 2d, Partnership §§ 443, 449.
[FN2] 59A Am. Jur. 2d, Partnership § 449.
[FN3] Riddle v. Whitehill, 135 U.S. 621, \0 S. CI. 924, 34 L. Ed. 282 (1890).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRIA. No Claim to Orig. U.S. Govl. Works. All
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

1. In General
§ 178. Bailor and bailee
West's Key Number Digest, Adverse Possession o€=4, 10
Forms
Form drafting guide-Checklist-Matters to consider when drafting an affidavit respecting adverse posses-
sion. IA Am. Jur. Legal Forms 2d, Adverse Possession § II: 17.
Affidavit-Disclaimer of title-By bailee. IA Am. Jur. Legal Forms 2d, Adverse Possession § II: 19.
The mere retention by a bailee of the subject matter, however exclusive or however long continued, will not
in itself be sufficient to work a change of property or ownership therein.[I] However, there is support for the
view that in certain cases the assertion by a bailee of an adverse title against the bailor, and a continued posses-
sion of the property that is open, notorious, and hostile to the bailor's title, and of which the bailor is charged
with notice, may ripen into title by adverse possession in the bailee,[2] although there is authority stating that a
bailee must return the property or its proceeds to the bailor before the bailee can assert a claim thereto adverse to
the bailor.[3] The general rule appears to be that a bailment is not so far terminated as to start the running of the
statute of limitations in favor of the bailee, so as to base a claim of title by adverse possession, until the bailee
sets up and asserts some claim adverse to the bailor which amounts to a disclaimer of the bailor's title and on
which the bailee's possession may be based.[4]
[FNI] Edgar v. Parsell, 184 Mich. 522,151 N.W. 714 (1915).
[FN2] Edgar v. Parsell, 184 Mich. 522, 151 N.W. 714 (1915).
[FN3] B1ackorby v. Friend, Crosby & Co., 134 Minn. I, 158 N.W. 708 (1916).
As to nature of bailee's possession, see 8A Am. Jur. 2d, Bailments § 55.
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[FN4) Slack v. Bryan, 299 Ky. 132, 184 S.W.2d 873 (1945); Priester v. Milleman, 161 Pa. Super. 507,
55 A.2d 540 (1947).
rights reserved.
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Westlaw

Adverse Possession

1. In General
§ 179. Guardian and ward
Under the rule that a guardian's possession is deemed to be the possession of the ward,[ I] a guardian's pos-
session cannot ordinarily lay the foundation of a claim of adverse possession of a guardian as against the ward.[2
] Thus, the general rule is that as long as the relationship of guardian and ward exists, the guardian may not as-
sert an interest or title antagonistic to the ward, and therefore cannot hold property adversely to the ward.[3]
However, a guardian may repudiate the trust and thereafter hold adversely to the ward.[4] Further, if the
guardian buys land at a guardian's sale, rendering the sale voidable, the guardian may gain title by adverse pos-
session, the statute beginning to run when the ward is ofage.[5]
[FNI] § 153.
[FN2] State v. Bank of Bristol, 165 Tenn. 461, 55 S.W.2d 771 (1933).
As to trust relation between guardian and ward, see 39 Am. Jur. 2d, Guardian and Ward §§ 246 to 255.
[FN3] Garcia v. Sanchez, 64 N.M. 114,325 P.2d 289 (1958).
As to possession of guardian being adverse to ward, see 39 Am. JUL 2d, Guardian and Ward § 252.
[FN5] Hindman v. O'Connor, 54 Ark. 627, 16 S.W. 1052 (1891).
rights reserved.
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Adverse Possession

2. Members of Family
§ 180. Generally
West's Key Number Digest, Adverse Possession €o=4, 10
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § 15 (effect of family relation-
ship between grantor and grantee).
It is a general principle that members of a family may not acquire adverse possession against each other in
the absence of a showing of a clear, positive, and continued disclaimer and disavowal of title, and an assertion of
an adverse right brought home to the true owner a sufficient length of time to bar the owner under the statute of
limitations from asserting ownership rights.[I] The existence of a family relationship between the parties will
prevent[2] or rebut[3] a presumption of adverse holding.
Practice Guide:
Stronger evidence of adverse possession is required where there is a family relation between the parties than
where no such relation exists,[4] and such claims should not be sustained except on a clear preponderance of the
evidence.[5]
Cases:
When there is a family relation between cotenants, stronger evidence of adverse possession is required.
Sherman v. Wallace, 88 Ark. App. 229,197 S.W.3d 10 (2004).
lEND OF SUPPLEMENT]
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[FNI] Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983).
[FN2] Lynch v. Lynch, 236 S.c. 612, 115 S.E.2d 301 (1960).
[FN3] Metze v. Meetze, 231 S.c. 154,97 S.E.2d 514 (1957).
[FN4] McGuire v. Wallis, 231 Ark. 506, 330 S.W.2d 714 (1960); Staggs v. Story, 220 Ark. 823,250
S.W.2d 125 (1952).
[FN5] Lynch v. Lynch, 236 S.c. 612,115 S.E.2d 301 (1960).
rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 181. Parent and child
West's Key Number Digest, Adverse Possession <£:=4, 10

West's Key Number Digest, Parent and Child <£:=8
As a general rule, an adverse possession cannot be predicated on the possession of the parent as against a
child.[l) The possession by a parent of a child's land will not be deemed adverse to the child, and such posses-
sion will ordinarily be presumed to be permissive and not adverse.[2]
Also, as a general rule, an adverse possession cannot be predicated on the possession of a child as against its
parent.[3] Where one occupies land by permission of the parents and not under a claim of title, the possession is
not adverse.[4] In such case, the fact that the parents promised to give the land to the occupying child generally
will not alter the result, at least as far as adverse possession of the land by the child is concemed.[5]
In order that a possession by a parent against a child, or vice versa, may become adverse, the owner must
have had some clear, definite, and unequivocal notice of the adverse claimant's intention to assert an exclusive
ownership in the c1aimant.[6] A child who works on land for a parent may afterward in good faith hold the land
adversely to the parent where the child buys the land from the county at a tax sale after notice to the parent and
without knowledge at that time of any infirmity in the county's tille.[7]
Caution:
Where there is a relationship of parent and child between adverse claimants and adjoining owners, the claimants
are required to sustain their proof of adverse possession by stronger evidence than is required in ordinary cases
involving the question.[8]
[FNI] Hehnke v. Starr, 158 Neb. 575, 64 N.W.2d 68 (1954).
[FN2] Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931).
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[FN3] Cockrell v. Kelley, 428 So. 2d 622 (Ala. 1983).
[FN4] Triplett v. Chadwick, 311 S.W.2d 554 (Ky. 1958).
[FN5] Humphrey v. Harrison, 646 S.W.2d 340 (Ky. 1982).
[FN6] Bellamy v. Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947); Anderson v. Shelton, 92 N.W.2d
166,73 A.L.R.2d 1087 (N.D. 1958).
Where a son remained in actual, open, hostile, notorious, exclusive, and continuous possession of a
farm for 20 years, which a father had "permitted" the son to have and attempted orally to give the son
prior to the father's death, the son gained title by adverse possession which claim commenced prior to
the father's death. Pendley v. Pendley, 338 So. 2d 405 (Ala. 1976).
[FN8] Bellamy v. Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947).
rights reserved.
AMJURADVERSE § 181
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Westlaw

Adverse Possession

§ 182. Husband and wife

West's Key Number Digest, Husband and Wife <C=16
A.L.R. Library
Adverse possession under parol gift ofland (under parol gift), 43 A.L.R. 2d 6 § lOb.
The rule is well settled, at least in the absence of possession under color of title,[I] that neither spouse can
acquire title by adverse possession, as against the other, of lands of which they have the joint use or are in joint
occupancy, during the continuance of the marriage relationship.[2] Neither spouse in possession of property as
tenants by the entirety can acquire title against the other by adverse possession.[3] The fact that one spouse
holding land in common with the other spouse manages, improves, and rents it, and collects the rent, does not
make the possession hostile and adverse to the interest of the other spouse.[4]
Observation:
Even if it were conceded that spouses under any circumstances could acquire title to lands of the other by ad-
verse possession, certainly neither can do so by having joint possession with the other, since one of the essential
elements of adverse possession is that the possession must be exclusive, and two persons cannot hold the same
property adversely to each other at the same time.[5]
A person who is living with his or her spouse on the spouse's land cannot, at least not without color of title,
and in some jurisdictions even with color of title, acquire title to the lands by adverse possession during the con-
tinuance of the marriage relationship.[6] Even the exclusive possession by one spouse of the other spouse's land
is not necessarily adverse. [7] The fact that a husband is in possession of his wife's land and makes improvements
out of the proceeds of the profits from the land gives him no interest in the title.[8]
However, a statement by one spouse to the other spouse that the other spouse has no interest in the property,
in which the other spouse claims a resulting trust on the ground of having made a contribution to the purchase

Page 375 of665

price, constitutes a repudiation of any trust that may exist, making inapplicable the rule that a trustee may not
claim title by adverse possession.[9]
[FNI] § 183.
[FN2] Kelley v. Kelley, 51 R.I. 173, 153 A. 314, 74 A.L.R. 135 (1931); Stealey v. Lyons, 128 W. Va.
686,37 S.E.2d 569 (1946).
As to adverse possession by spouses jointly, see § 154.
[FN3] Alles v. Lyon, 216 Pa. 604, 66 A. 81 (1907).
[FN4] Allen v. Allen, 292 Ill. 453, 127 N.E. 85,27 A.L.R. I (1920).
[FN5] Howard v. Turner, 287 Ky. 206,152 S.W.2d 589 (1941).
As to exclusiveness of possession, see §§ 67, 68.
[FN6] Union Oil Co. v. Stewart, 158 Cal. 149, 110 P. 313 (1910) (recognizing rule); McCallister v. Mc-
Callister, 342 111. 23 I, 173 N.E. 745, 74 A.L.R. 213 (1930).
[FN7] Hom v. Metzger, 234 Ill. 240, 84 N.E. 893 (1908).
[FN8] McCallister v. McCallister, 342 Ill. 23 I, 173 N.E. 745, 74 A.L.R. 213 (1930).
[FN9] Cassas v. Cassas, 73 Wyo. 147,276 P.2d 456, 69 A.L.R.2d 187 (1954).
As to adverse possession by a trustee, generally, see §§ 175, 176.
© 2010 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. Gov!. Works. A1I
rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 183, Husband and wife-Under color of title
West's Key Number Digest, Adverse Possession €=:>4, 10

West's Key Number Digest, Husband and Wife €=:>16
There is a conflict of authority as to the effect on adverse possession between husband and wife of posses-
sion by one spouse under color of title, some cases holding that one spouse cannot acquire title by adverse pos-
session to lands of the other even with possession under color of title,[ I] whereas other cases hold that title may
be acquired where the possession is under color of title.[2] A judgment purporting to vest title to the land of one
spouse in the other spouse is held to be color of title on which adverse possession can be based.[3]
Observation:
The presumption that possession by a spouse living with the other spouse is through and on account of the fam-
ily relation, and not under a claim of adverse ownership, does not arise where some reason exists for the asser-
tion of a title by the adverse claimant, and in such case, there is no greater reason for denying the right to ac-
quire title by adverse possession than for denying the right to maintain a suit against the spouse to recover a
debt, or to foreclose a mortgage on premises occupied by them.[4]
[FN I] Carpenter v. Booker, 131 Ga. 546,62 S.E. 983 (1908).
[FN2] Adams v. Adams, 80 N.H. 80, 113 A. 279 (1921).
[FN4] McPherson v. McPherson, 75 Neb. 830,106 N.W. 991 (1906).
rights reserved.
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Adverse Possession

§ 184. Husband and wife-Where spouses live apart; effect of divorce

West's Key Number Digest, Husband and Wife €o=I6
After divorce, former spouses ordinarily may hold adversely to each other,[I] provided the necessary re-
quisites of an adverse possession are established. This may be true even though the divorce is invalid.[2]
However, the possession of land by one spouse as trustee for the use and benefit of the other spouse is not ad-
verse even after the spouse has obtained a divorce, and in such case, the spouse can hold adversely only by re-
nouncing title as trustee, surrendering the possession, and retaking it.[3]
The cases are not in accord as to adverse possession after abandonment, and some hold that a spouse who
has been abandoned by the other spouse may acquire title to his or her land by adverse possession,[4] provided
the possession is, in fact, adverse.[5] Other cases deny the right so to acquire such property.[6]
[FNI] Bride v. Walker, 206 Ark. 498,176 S.W.2d 148 (1943).
[FN2] Bride v. Walker, 206 Ark. 498,176 S.W.2d 148 (1943).
[FN3] Meacham v. Bunting, 156111. 586,41 N.E. 175 (1895).
[FN4] Union Oil Co. v. Stewart, 158 Cal. 149, 110 P. 313 (1910).
[FN5] Hayworth v. Williams, 102 Tex. 308,116 S.W. 43 (1909).
[FN6] Kelley v. Kelley, 51 R.1. 173, 153 A. 314, 74 A.L.R. 135 (1931).
A woman whose marriage was invalid did not acquire title by adverse possession as against her hus-
band, although the husband remained away from her during most of the period in question, sometimes
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for years at a time, and on the occasions of his visits did not remain long. Hayworth v. Williams, 102
Tex. 308,116 S.W. 43 (1909).
rights reserved.
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West law,

Adverse Possession

3. Parties to Judgments and Judicial Sales
§ 185. Generally; parties to suit and purchaser pendente lite
West's Key Numher Digest
West's Key Number Digest, Adverse Possession <C::::>4, 10

West's Key Number Digest, Judicial Sales <C::::>32, 61
The possession of a purchaser pendente lite of property involved in a suit may become adverse to the parties
to the suit after termination of the litigation if the elements of adverse possession are otherwise present.[ I]
However, during the litigation the possession of a purchaser pendente lite is not adverse to the parties to the
suit.[2] Thus, a pendente lite purchaser from a judgment debtor in an action to enforce a judgment lien against
real estate of the debtor does not during the pendency of the suit hold such real estate adversely to the party
seeking to enforce the lien.[3]
Observation:
If the rule were otherwise, alienations made by parties during the pendency of the suit might defeat its whole
purpose, and there would be no end to the Iitigation.[4]
[FNI] Brown v. Crozer Coal & Land Co., 144 W. Va. 296,107 S.E.2d 777 (1959).
[FN2] Playa De Flor Land & Imp. Co. v. U.S., 70 F. Supp. 281 (D. C.Z. 1945), judgment modified on
other grounds, 160 F.2d 131 (C.C.A. 5th Cir. 1947).
[FN3] Parker's Adm'r v. Clarkson, 39 W. Va. 184, 19 S.E. 431 (1894).
[FN4] Playa De Flor Land & Imp. Co. v. U.S., 70 F. Supp. 281 (D. C.Z. 1945), judgment modified, 160
F.2d 131 (C.C.A. 5th Cir. 1947).
rights reserved.
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Westlaw.

Adverse Possession
HI. By and Against Whom Title May Be Acquired

§ 186. Owner and tax sale purchaser

West's Key Number Digest, Judicial Sales €=32, 61
A. L.R. Library
Tax sales or forfeitures by or to governmental units as interrupting adverse possession, 50 A.L.R. 2d 600 §§
3 to 5.
Owners remaining in possession for the statutory period after a tax foreclosure sale can obtain title by ad·
verse possession.[1]
Reminder:
Some statutes provide that where land is sold for taxes and the owner or a successor holds the land in adverse
possession for the statutory period after the sale, such possession shall be a bar to any action by the purchaser to
obtain the land.[2]
The possession of a purchaser at a tax sale during the period of redemption is presumptively subordinate to
the owner's title if the statute gives the purchaser the right of possession during such period, but that the posses·
sion is hostile if the purchaser lacks the legal right to possess the property prior to the expiration of the redemp-
tion period.[3] Therefore, a purchaser at a tax sale who wrongfully enters on the land under a tax sale certificate,
and who holds the land under a claim of right, openly, peaceably, hostilely, and continuously for the statutory
period, acquires title as an adverse possessor.[4]
After a county acquires property at a tax sale, a taxpayer's continued possession, allegedly adverse to the
title of the county, does not vest fee simple title in the taxpayer.[5]
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[FNI] Harvey v. Peters, 227 S.W.2d 867 (Tex. Civ. App. Fort Worth 1950).
As to defeat of valid tax title by adverse possession, see 72 Am. Jur. 2d, State and Local Taxation § 862 .
As to right of person in adverse possession of property to attack title of tax sale purchaser, see 72 Am.
Jur. 2d, State and Local Taxation § 942.
[FN3] Gunther & Shirley Co. v. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958); Feinstein
v. McGuire, 297 S.W.2d 513 (Mo. 1957).
[FN4] Gunther & Shirley Co. v. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958).
[FN5] Moultrie v. Wright, 266 Ga. 30,464 S.E.2d 194 (1995); Fred E. Young, Inc. v. Brush Mountain
Sportsmen's Ass'n, 697 A.2d 984 (Pa. Super. C!. 1997).
rights reserved.
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WestLaw.

Adverse Possession

C. Effect of Patticular Relationships between Parties
3. Patties to Judgments and Judicial Sales
§ 187. Parties to judicial sales

West's Key Number Digest, Judicial Sales ~32, 61
As a general rule, an owner who stays in possession of property after a judicial sale thereof does not hold
adversely to the purchaser.[I] The continued possession of the owner of land between the date of its sale by
commissioners and the making of the final decree confirming the conveyance is not adverse to the grantee in
such conveyance, as until the sale is confirmed, such owner holds, under the control of the court, by virtue of his
or her own title.[2] Where land is sold at a judicial sale and the buyer allows the former owner to remain in pos-
session after confirmation, the presumption is that the possession of the original owner is as a quasi tenant or
tenant at sufferance of the buyer, and the legal principles governing the acquisition of an adverse title by a ten-
ant as against the landlord[3] are applicable.[4]
The possession of the former owner of land sold by judicial sale will not become adverse as against the title
of the purchaser at the sale, unless by clear, positive, and affirmative action brought home to the new owner, the
one in possession puts the purchaser on notice that the possessor is unequivocably disclaiming the existing ten-
ancy and intends thereafter to claim possession antagonistic to the new owner.[5] Thus, the possession of a judg-
ment debtor may be adverse to that of the purchaser under the judgment, and this is so where it is shown that the
judgment debtor has claimed title, openly and notoriously, for the statutory period.[6]
[FNI] Sarasota-Fruitville Drainage Dist. v. All Lands Within Said Dis!. Upon Which Drainage Taxes
for Year 1928 Have Not Been Paid, 157 Fla. 207, 25 So. 2d 498 (1946); Brewster v. Herron, 1952 OK
440,267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
[FN2] Rosenstihl v. Cherry, 114 Ohio St. 401, 4 Ohio L. Abs. 226,151 N.E. 642 (1926).
[FN3] §§ 197 to 200.
Page 385 of 665

[FN4] Sarasota-Fruitville Drainage Dis!. v. All Lands Within Said Dis!. Upon Which Drainage Taxes
440,267 P.2d 143, 38 A.L.R.2d 335 (Okla. 1952).
[FN5] Sarasota-Fruitville Drainage Dis!. v. All Lands Within Said Dis!. Upon Which Drainage Taxes
440,267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
[FN6] Bosley v. Stewart, 140 Iowa 101, 117 N. W. 1103 (1908).
The actual and visual possession of property by a debtor for seven years after a creditor obtained a sher-
iffs deed fulfilled the requirements of peaceful possession and adverse possession within the meaning
of the applicable statute. Henderson v. Tejada, 26 Ariz. App. 462, 549 P.2d 242 (Div. I 1976).
rights reserved.
END OF DOCUMENT
Page 386 of665
WeStlaw.

Adverse Possession

§ 188. When statute begins to run-Against purchaser at judicial sale

West's Key Number Digest, Judicial Sales €=32, 61
There is a conflict of authority on the question when the statute of limitations or period of adverse posses-
sion commences to run against a purchaser at a judicial sale. Some cases state that where the purchaser has paid
the purchase price, and is entitled to a deed, the purchaser has the power to protect his or her interest by appro-
priate proceedings and the statute commences to run at that time, although a deed has not been received.[I] In
some jurisdictions, the statute of limitations begins to run against a purchaser at a judicial sale from the date of
delivery of the deed and not from the confirmation of the sale.[2] It has also been held that the statute begins to
run against a purchaser after the expiration of the period within which the defendant in execution might have re-
deemed the land if there had been a genuine sale of it,[3] and that the period of prescription should be reckoned
from the date of the sheriffs sale and not from the date of the service of notice of seizure under which the sale
was made.[4]
[FNI] Marion Inv. Co. v. Virginia Lincoln Furniture Corp., 171 Va. 170,198 S.E. 508, 118 A.L.R. 939
(1938).
[FN2] Comstock v. Finn, 13 Cal. App. 2d lSI, 56 P.2d 957 (4th Dis!. 1936).
[FN3] McGee v. Stokes' Heirs at Law, 76 N.W.2d 145 (N.D. 1956).
[FN4] Maisonneuve v. Martin, ISS La. 938, 99 So. 704 (1924).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRIA. No Claim to Orig. U.S. Gov!. Works. A11
rights reserved.
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END OF DOCUMENT
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Adverse Possession

C. Effect of Patticular Relationships between Patties
4. Patties to Sales, Grants, and Gifts
§ 189. Seller and purchaser-Under executory contract or bond for title
A.L.R. Library
Forged deed or bond for title as constituting color oftitle, 68 A.L.R. 2d 452 § 4.
The purchaser under an executory contract of sale enters into possession under, and without hostility to, the
seller.[l] Accordingly, it is the general rule (which, however, frequently yields when additional circumstances
appear) that the possession taken by a purchaser under an executory written contract for the purchase of land is
not adverse to the seller,[2] although it is as against everyone else,[3] and is as against the seller to the extent of
permitting the purchaser to dispute the seller's title.[4]
A purchaser's possession under an executory contract may become adverse to the seller, however,[5] but not
until the purchaser has repudiated the seller's title openly and notoriously, and asserted an exclusive right in the
property.[6]In such case, it is necessary that notice, either actual or constructive, of the repudiation, be given to
the seller.[7] Generally, the possession of the purchaser may be rendered adverse by such repudiation and notice,
without the necessity of surrendering the possession acquired under the executory contract.[8]
Although possession of the purchaser under an executory contract of purchase is not rendered adverse to the
seller by mere default, where there is some act on the patt of either the purchaser or the seller that characterizes
the possession as hostile, it then is deemed to become adverse.[9] A purchaser may disavow the title of the seller
after breach of the contract, but in such cases there must be a positive and continued disclaimer of title, and an
assertion of adverse right must be brought home to the seller, before the statute of limitations will begin to oper-
ate.[ I 0] The fact that purchasers paid on a seller's lien for several years does not prevent adverse possession
from maturing on the basis of disclaimer of the seller's title.[ll]
With respect to the nature of the possession taken by the purchasers under executory contracts, no distinc-
tion is made between executory contracts for the sale of land and bonds for title, and it is generally the rule that
the possession taken by a purchaser under a bond for title to land is not adverse as to the seller.[12]
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[FNI] Leo Egan Land Co., [nco V. Heelan, 210 Neb. 263, 313 N.W.2d 682 (1981).
[FN2] Leo Egan Land Co., [nco V. Heelan, 210 Neb. 263, 313 N.W.2d 682 (1981); Smith V. Pittston Co.,
203 Va. 408, 124 S.E.2d I (1962) (possession under an alleged verbal agreement of sale was not ad-
verse to the alleged seller's title but in privity with it and under its protection).
[FN3] WeIner V. Steams, 40 Utah 185, 120 P. 490 (1911).
[FN4] Blight's Lessee V. Rochester, 20 U.S. 535, 5 L. Ed. 516 (1822).
[FN5] Ripley V. Miller, 165 Mich. 47,130 N.W. 345 (1911).
[FN6] Chavez V. De Bergere, 231 U.S. 482, 34 S. C!. 144,58 L. Ed. 325 (1913).
The possession of the purchaser holding under an executory contract of purchase is not adverse to the
seller unless or until the purchaser by acts or otherwise, has repudiated the seller's title. McGuire v.
Owens, 300 S.W.2d 556 (Ky. 1957).
As to when pennissive possession changes to hostile possession, generally, see § 50.
[FN7] Beagle v. Hanks, 125 Cal. App. 2d 298, 270 P.2d 113 (3d Dis!. 1954).
[FN8] Zeller's Lessee V. Eckert, 45 U.S. 289,4 How. 289, II L. Ed. 979 (1846).
[FN9] Bennett V. Morrison, 120 Pa. 390,14 A. 264 (1888).
[FNIO] Zeller's Lessee v. Eckert, 45 U.S. 289, 4 How. 289, II L. Ed. 979 (1846).
[FNII] Parr v. Ratisseau, 236 S.W.2d 503 (Tex. Civ. App. San Antonio 1951), writ refused n.r.e.
[FNI2] Hardin V. Boyd, 113 U.S. 756, 5 S. Ct. 771, 28 L. Ed. 1141 (1885).
rights reserved.
END OF DOCUMENT
Page 390 of 665
Westlaw.

Adverse Possession

4. Parties to Sales, Grants, and Gifts
§ 190. Seller and purchaser-Under executed contract or bond for title
It is the general rule that a purchaser who has complied with the terms of the contract by paying the pur-
chase money, and who is entitled to the legal title, has a perfect equity, and possession by such purchaser, in
pursuance of such sale and purchase, is presumed to be antagonistic, and, if continued for the statutory period,
will bar the seller's right of entry or action.[I] Thus, performance by the purchaser of the obligations imposed on
the purchaser by the executory contract of purchase, entitling the purchaser to demand a deed, is generally held
to convert the possession of the purchaser into an adverse one,[2] whether the contract is oral or written.[3]
Moreover, since tender of perfonnance is sufficient to entitle the purchaser to a deed, generally after such tender
on the part of the purchaser possession by the purchaser is adverse.[4]
Observation:
Since even a defective title or a conveyance by one who has no title is effective as color of title on which an ad-
verse claim may be based,[5] a purchaser's possession is not prevented from being adverse by such purchaser's
knowledge of a defect in the title or subsequent demand for a deed.[6]
[FNI] Croxall v. Shererd, 72 U.S. 268,18 L. Ed. 572 (1866).
[FN2] Central Pac. Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554,1 A.L.R. 1319 (1917).
[FN3] Bessler v. Powder River Gold Dredging Co., 95 Or. 271,185 P. 753 (1919).
[FN4] Gamble v. Hamilton, 31 Fla. 401, 12 So. 229 (1893); Brown v. Huey, 103 Ga. 448, 30 S.E. 429
(1898) (part payment of the purchase price is not sufficient to entitle the purchaser to claim adverse
possession; the whole of the purchase price must be paid, or at least tendered).
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As to executory contracts or bonds for title, see § 189.
[FN5] §§ 123 et seq.
[FN6] Newsome v. Snow, 91 Ala. 641, 8 So. 377 (1890); Bessler v. Powder River Gold Dredging Co.,
95 Or. 271,185 P. 753 (1919).
© 20 I 0 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRIA. No Claim to Orig. U.S. Govl. Works. All
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

C. Effect of Patticular Relationships between Parties
§ 19L Seller and purchaser-Effect of invalid, unauthorized, or forged contract or bond
West's Key Number Digest, Adverse Possession <€>4, 10
As a general rule, an executory parol contract of purchase will not have the effect of rendering adverse, as to
the seller, the possession taken under the parol contract by a purchaser who enters into possession in pursuance
thereof.[I] Since the possession of the purchaser is taken in pursuance of the contract, therefore amicably to the
seller, it is looked on as so continuing, regardless of the fact that the purchaser cannot enforce rights as pur-
chaser under the contract.[2] Thus, when a party goes into possession under a verbal contract for the purchase of
land, such possession is not adverse to the seller, according to the prevailing view, but is held under the seller[3]
until the purchase money is paid.[4]
It is the rule in some jurisdictions, however, that the possession of a purchaser by parol is adverse from the
date possession is taken.[5] Further, as in other cases, the possession of the purchaser may become adverse, even
though the contract is in parol, by repudiation of the contract by the purchaser and the assertion of a claim of
right in such purchaser[6] or by the payment of the purchase price where the contractual obligation consists of a
monetary consideration.[7]
[FNI] Creech v. Creech, 186 Ky. 149,216 S.W. 127 (1919).
[FN2] Creech v. Creech, 186 Ky. 149,216 S.W. 127 (1919).
[FN3] Lanham v. Bowlby, 86 Neb. 148, 125 N.W. 149 (1910); Thompson v. Camper, 106 Va. 315, 55
S.E. 674 (1906).
[FN4] Moring v. Ables, 62 Miss. 263,1884 WL 6504 (1884).
[FN5] Moffitt v. Meeks, 29 Tenn. App. 609,199 S.W.2d 463 (1946).
Page 393 of 665

[FN6] Creech v. Abner, 106 Ky. 239, 20 Ky. L. Rptr. 1812,50 S.W. 58 (1899).
[FN7] Moring v. Ables, 62 Miss. 263, 1884 WL 6504 (1884).
It is well settled that a purchaser who has complied with the terms of the contract by paying the pur-
chase money, and is entitled to the legal title, whether the contract be in writing or by parol, has a per-
fect equity, and possession in pursuance of such sale and purchase is presumed to be antagonistic. New-
some v. Snow, 91 Ala. 641, 8 So. 377 (1890).
© 2010 Thomson Reuters. 33-348 © 2010 Thomson Reuters/RIA. No Claim to Orig. u.S. Govt. Works. All
rights reserved.
END OF DOCUMENT
Page 394 of 665
Westlaw

Adverse Possession

§ 192. Grantor and grantee; possession by grantee
A.L.R. Library
Grantor's possession as adverse possession against grantee., 39 A.L.R. 2d 6 §§ 6, 12
A grantee's possession becomes adverse, not only as to the grantor, but as to all the world, from the time a
conveyance has actually been made.[1] However, there can be no adverse possession by the grantee of a deed
made as a security for a debt.[2]
Observation:
The possession of a grantee is presumptively adverse to the grantor, and the practical utility of this rule is that a
grantee may acquire title by adverse possession as against the grantor even though the conveyance under which
the grantee holds is defective.[3]
The possession of the grantee is not shown to be adverse where the grantee recognized the paramount nature
of the grantor's claim to property by paying rent for its use after the conveyance.[ 4]
[FNI] Villa v. Rodriguez, 79 U.S. 323, 20 L. Ed. 406 (1870).
[FN2] Babcock v. Wyman, 60 U.S. 289,19 How. 289,15 L. Ed. 644 (1856).
As to mortgages, generally, see 54A Am. Jur. 2d, Mortgages.
[FN3] Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984); Polanski v. Town of Eagle Point, 30 Wis. 2d
507,141 N.W.2d 281 (1966).
Page 395 of 665

As to a tax deed grantee, see § 186.
[FN4] Findlay v. Hardwick, 230 Ala. 197, 160 So. 336 (1935).
rights reserved.
END OF DOCUMENT
Page 396 of 665
Westlaw,

Adverse Possession

§ 193, Grantor and grantee or successor of grantee; possession by grantor
West's Key Number Digest, Adverse Possession oC=4, ]0
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 §§ 3, 8, IS.
Ordinarily, where a grantor continues in possession of the land after the execution and delivery of the deed,
the possession will be that either of tenant or trustee of the grantee, and the grantor will be regarded as holding
the premises subservient to the grantee.[l) Thus, the occupation of land by a grantor, after conveyance, is pre-
sumed to be under, and in subordination to, the legal title held by the grantee, for the grantor ordinarily is es-
topped by the deed from claiming that the holding is adverse.[2] Further, although the title to land is conveyed
to another, the grantor is entitled to remain in possession, under a reservation of the 1ife estate or similar interest,
such possession will ordinarily be regarded as being under and consonant with the grantor's rights and the
grantee's title, rather than under an independent claim of title hostile to the grantee.[3] However, where a grantor
gives up possession of the major part of the property conveyed but remains in possession of a portion under the
mistaken belief that it was not conveyed, the general rule that a grantor's holding possession after conveyance is
presumptively permissive does not apply.[4]
Observation:
Where, in addition to the grantor-grantee relationship between the parties, it is shown that they were also in a
position of family relationship, some courts have appeared to be especially reluctant to find that an adverse title
arose from the continued occupation and use of the property by the grantor after conveyance. [5]
A grantor who enters onto conveyed land for the first time after the execution of a deed is treated as any
other trespasser and the grantor's period of adverse possession commences when the grantor takes "actual and
visible" possession of the property under a claim of right inconsistent with and hostile to the claim of' the
grantee.[6]

Page 397 of 665

The presumption that a grantor's possession of property after its conveyance is subservient to the grantee
obtains only between them and not between the grantor and the grantee's grantees or successors.[7] The reason
for this is that a grantor remaining in possession is presumptively a tenant at the sufferance of the grantee named
in the conveyance and not by the sufferance of some other grantee.[8] Therefore, the presumption does not apply
after the grantee has conveyed the property to a third person.[9] Nor does the presumption apply as between the
grantor or heirs of the grantor and the heirs or devisees of the grantee.[1 0]
[FNI] Miller v. Hewell, 271 Ala. 286, 123 So.2d 126 (1960); Lewicki v. Marszalkowski, 455 A.2d 307
(R.!. 1983); Carterv. Jones, 145 W. Va. 98,112 S.E.2d 705 (1960).
[FN2] Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845 (1956); Stockwell v. Gibbons, 58 Wash. 2d 391, 363
P.2d III (1961).
[FN3] Mahunda v. Thomas, 55 Tenn. App. 470, 402 S.w.2d 485 (1965).
[FN4] Stockwell v. Gibbons, 58 Wash. 2d 391, 363 P.2d III (1961).
[FN5] Frost Lumber Industries v. Harrison, 215 La. 767, 41 So. 2d 674 (1949).
As to effect of family relationship, generally, see §§ 180 et seq.
[FN6] McLaren v. Beard, 811 S.W.2d 564 (Tex. 1991).
[FN7] Walker v. Coley, 264 Ala. 492, 88 So. 2d 868 (1956).
[FN I 0] Hutchinson v. Little Four Oil & Gas Co., 275 Pa. 380, 119 A. 534 (1923).
rights reserved.
END OF DOCUMENT
Page 398 of 665
Westlaw,

Adverse Possession

§ 194. Grantor and grantee or successor of grantee; possession by grantor-When possession becomes hostile
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353.
A conveyance does not, of itself, prevent the grantor from acquiring title by adverse possession as against
the immediate and remote grantees,[I] and the presumption that the possession of a grantor is subservient to the
grantee may be rebutted.[2] Accordingly, a grantor's possession was adverse where the parties were mistaken as
to the location of the true boundary line.[3] Likewise, the use of a hunting camp property by the grantors for 22
years was hostile and adverse where the grantors intended to and mistakenly believed that they had reserved the
camp property from a conveyance.[4]
[FN I] Walker v. Easterling, 215 Miss. 429, 61 So.2d 163,39 A.L.R.2d 348 (1952).
[FN2] Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845 (1956); Carter v. Jones, 145 W. Va. 98, 112 S.E.2d
705 (1960).
[FN3] Colley v. Carpenter, 172 Ind. App. 638, 362 N.E.2d 163 (1st Disl. 1977).
[FN4] Darling v. Ennis, 138 VI. 311, 415 A.2d 228 (1980).
rights reserved.
Page 399 of 665

END OF DOCUMENT
Page 400 of 665
Westlaw,

Adverse Possession

§ 195. Grantor and grantee or successor of grantee; possession by grantor-Adverse possession by grant-
or; What constitutes hostile possession
West's Key Number Digest, Adverse Possession <8;:=4, 10
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353.
Under proper circumstances, a grantor may, by adverse possession, acquire title to land which the grantor
has conveyed.[l] Thus, it is well settled that a grantor in permissive possession of land may originate a posses-
sion adverse to the grantee.[2] This is true even though the grantor conveys the land by a general warranty
deed.[3] Where a grantor makes a conveyance, and later corrects such conveyance by a subsequent deed, the
grantor thereafter will be considered in adverse possession of that part of the property which was included in the
original deed but not included in the second conveyance.[4]
Observation:
The adverse possession of a grantor against a grantee differs from that originated by a stranger only in requiring
stronger proof to sustain it.[5]
The hostility of the grantor's holding must be brought to the grantee's attention in such manner as to put the
latter on notice of the grantor's intention to occupy the property in the grantor's own right.[6] Nothing short of an
explicit disclaimer of the subservient relation of a grantor to a grantee and a notorious assertion of right in the
grantor will be sufficient to change the character of the grantor's possession and render it adverse to the grantee.[ 7]
As a rule, open and notorious possession by a grantor will be deemed to be adverse where it is of such char-
acter as to be entirely inconsistent with the rights of the grantee.[8] Where a grantor is not in possession of the
land at the time of the deed, the grantor's actual entry and use of the land thereafter will ordinarily be adverse to
the grantee.[9] Thus, the grantor's entry after conveyance must be deemed to be adverse where there was no

Page 401 of 665

evidence that the grantor entered for or under the grantee, and the grantor acted in all respects as the sole owner,
making leases, receiving rents, paying taxes, improving the property, etc.[IO]
On the other hand, evidence of the cultivation or improvement of the land by a grantor after conveyance
does not conclusively establish the hostile nature of possession, and such possession must be deemed permissive
notwithstanding evidence of such acts.[II] That the grantor mortgaged the property after conveyance to the
grantee does not conclusively show hostility.[12] Likewise, the payment of taxes by the grantor remaining in
possession is not conclusive evidence of hostility of a claim, and adverse possession does not arise on evidence
of such payment.[13] A grantor's possession that is permissive, as where the grantor is a tenant and pays rent, is
not adverse and cannot support a claim of adverse possession.[14] That during the period of possession relied
on, the grantor, by acts, declarations, or omissions, recognized a superior title in either the grantee or another,
ordinarily is sufficient to demonstrate that the grantor's possession was not under such claim of right as to ripen
into title.[15]
[FNI] Reinheimer v. Rhedans, 327 S.W.2d 823 (Mo. 1959); Carter v. Jones, 145 W. Va. 98, 112 S.E.2d
705 (1960).
[FN2] Torgerson v. Rose, 339 N.W.2d 79 (N.D. 1983).
When the character of the possession is adequately changed, the grantee must recognize the altered
status, for if the grantee permits the adverse possession to exist without cessation and without challenge
for the statutory period, the grantor maintaining it may be reinvested with the fee. Reinheimer v. Rhe-
dans, 327 S. W.2d 823 (Mo. 1959).
[FN3] Carter v. Jones, 145 W. Va. 98,112 S.E.2d 705 (1960).
[FN4] Fox v. Windes, 127 Mo. 502, 30 S.W. 323 (1895).
[FN5] Fort Wayne Smelting & Refining Works v. City of Fort Wayne, 214 Ind. 454, 14 N.E.2d 556
(1938); Rosenstihl v. Cherry, 114 Ohio st. 401, 4 Ohio L. Abs. 226, 151 N .E. 642 (1926).
[FN6] Skelton v. Lewis, 453 So. 2d 703 (Miss. 1984).
[FN7] Miller v. Hewell, 271 Ala. 286, 123 So. 2d 126 (1960).
As to open, notorious, and visible possession, see §§ 62 et seq.
As to when peImissive possession changes to hostile possession, generally, see § 50.
[FN8] Fort Wayne Smelting & Refining Works v. City of Fort Wayne, 214 Ind. 454, 14 N.E.2d 556
(1938); Great Southern Life Ins. Co. v. Dodson, 155 S.W.2d 379 (Tex. Civ. App. Amarillo 1941).
The presumption against a grantor's adverse possession of land conveyed to the grantee was overcome
by the enclosure, cultivation, and rental of a disputed parcel continuously from the time of the convey-
ance and erection of the fence, even though the fence as erected was mistakenly regarded as the true
Page 402 of 665

boundary by all the parties. Lindl v. Ozanne, 85 Wis. 2d 424, 270 N.W.2d 249 (Ct. App. 1978).
[FN9] American Nat. Bank of Beaumont v. Wingate, 266 S. W.2d 934 (Tex. Civ. App. Beaumont 1953),
writ refused n.r.e.
[FNIO] Walkerv. Easterling, 215 Miss. 429, 61 So. 2d 163, 39 A.L.R.2d 348 (1952).
[FNII] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Bellamy v.
Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947).
[FNI2] Reid v. Reid, 219 Or. 500, 348 P.2d 29 (1959).
[FNI3] Steele v. Steele, 214 Ark. 500, 216 S.W.2d 875 (1949); Hoagland v. Fish, 238 S.W.2d 133 (Ky.
1951).
[FNI4] Walker v. McLaurin, 229 Miss. 425, 90 So. 2d 857 (1956).
[FNI5] Carney v. Loveday, 268 Mich. 640, 256 N.W. 577 (1934).
The grantors of land did not establish adverse possession where, in their deed, they reserved a right of
free use, control and possession of the property for the natural life of their mother and, following the
death of their mother, asked for and obtained permission from the grantee to continue to use the land as
before. Eady v. Eady, 362 So. 2d 830 (Miss. 1978).
rights reserved.
END OF DOCUMENT
Page 403 of 665
Westlaw.

Adverse Possession

§ 196. Donor and donee
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6.
Forms
Notice of holding adversely under parol gift ofland. IA Am. Jur. Legal Forms 2d, Adverse Possession § II: I O.
Complaint, petition, or declaration-Against executor and devisee-Color of Title-Possession under parol

gift from deceased. IB Am. Jur. Pleading and Practice Forms, Adverse Possession. § 176.
In the absence of a statute otherwise providing, a parol gift of land may ripen into title where accompanied
by actual possession for the statutory period, and under such a gift the donee's possession is adverse from its in-
ception.[I]l! has been recognized that as between a parol donee of land and the donor, or the donor's heirs, the
donee's possession is adverse and need not be notorious to ripen into title.[2] Generally, the execution of a mort-
gage by the donor after entry by the donee will not change the character of the donee's holding, or operate to
suspend the running of the statute of limitations in favor of the donee.[3] However, a different result has been
reached where the parol donee consented to the donor's placing a mortgage on the donated land, or recognized
the validity of such mortgage.[4]
Observation:
It has been said that an entry under a parol gift of land, although permissive and friendly in the popular sense, is
hostile and adverse to the paper title in a legal sense, because there is an assertion of ownership on the part of
the occupant.[5]

Page 404 of 665

It has been stated that a claim of title to realty predicated on adverse possession under a parol gift can be es-
tablished only by proof of the coexistence of all essential elements of adverse possession, that is, the possession
must be actual, hostile, open, notorious, and visible, continuous, exclusive, and under a claim of right for the
statutory period.[6] Thus, under the particular facts involved, a parol donee's possession of land may be held not
to be hostile in character.[7]
Reminder:
In jurisdictions in which the particular statute governing the acquisition of title by adverse possession requires
written evidence of title as color,[8] a parol gift ofland may not ripen into title under adverse possession.[9]
[FNI] Ramey v. Ramey, 353 S.W.2d 191 (Ky. 1962); Southern Reynolds Counry School Dis!. R-2 v.
Callahan, 313 S.W.2d 35 (Mo. 1958).
[FN2] Tenney v. Luplow, 103 Ariz. 363,442 P.2d 107 (1968).
[FN3] Harrelson v. Reaves, 219 S.C. 394,65 S.E.2d 478, 43 A.L.R.2d I (1951).
[FN4] Potter v. Smith, 68 Mich. 212, 35 N.W. 916 (1888).
[FN5] Harrelson v. Reaves, 219 S.C. 394,65 S.E.2d 478, 43 A.L.R.2d I (1951).
[FN6] Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920).
As to requisite coexistence of all elements of adverse possession, generally, see § 10.
[FN7] Gregoire v. Redwood City Elementary School Dis!., 174 Cal. App. 2d 667,345 P.2d 99 (1st Dis!.
1959).
[FN8] §§ 123 et seq.
[FN9] Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920).
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

5. Landlord and Tenant
§ 197, Generally

West's Key Number Digest, Landlord and Tenant <£;=14, 16
A.L,R. Library
Adverse possession of landlord as affected by tenant's recognition of title of third person, 38 A.L.R. 2d 826
§§ 2 et seq.
Forms
Reply-Denial-Possession with consent of plaintiff-owner-Landlord-tenant relationship. I BAm. Jur.

The rule is well-settled that during the existence of the relation of landlord and tenant, a tenant is estopped
to deny the landlord's title or to challenge or dispute it.[ I] A tenant can in no case contest the right of the land-
lord to possession, or defend such tenant by any claim or title adverse to the landlord during the time which the
statute has to run.[2]
Observation:
This is merely one application of the rule that a tenant cannot deny the landlord's title.[3]
The possession of a tenant is not deemed adverse to the landlord unless there has been a clear repudiation by
the tenant holding under the landlord, with notice of such repudiation brought home to the landlord.[4] The ad-
verse conduct on the part of the tenant necessarily furnishes the landlord with the legal right to enter and repos-
sess the premises.[ 5]
Observation:
Page 406 of 665

The rule that a tenant may initiate adverse possession which will eventually ripen into title by means of which
the tenant may resist the landlord's claim for possession or rent is not in contlict with the rule that a tenant is es-
topped to deny the landlord's title. The estoppel rule merely prevents the setting up of a title inconsistent with
that of the landlord at the commencement of the tenancy. The title acquired by the tenant by adverse possession
for the statutory period after disclaimer of the landlord's title is not inconsistent with that title, but is based on
the assumption that such title has been extinguished. The adverse holding by the tenant does not, until the expir-
ation of the full statutory period, confer any rights on the tenant, or relieve the tenant of any of the obligations
incident to tenancy.[6]
Also as a general rule, the attornment of the tenant of an adverse claimant to the true owner will not affect
the adverse possession of the original landlord,[7] at least where the owner knows of the landlord's claim and the
landlord is ignorant of the tenant's action.[8]
[FNI]49 Am. Jur. 2d, Landlord and Tenant § 915.
[FN2] Peyton v. Stith, 30 U.S. 485,8 L. Ed. 200 (\831).
As to whether the actual possession generally necessary to acquire title by adverse possession may be
effected through a tenant, see § 23.
As to tenant's acquisition of interests adverse to the landlord, see 49 Am. Jur. 2d, Landlord and Tenant
§§ 930, 931.
[FN3] Missouri Pac. R. Co. v. Bozeman, 178 Ark. 902, 12 S.W.2d 895 (\929); Burroughs v. Smith, 8
S. W.2d 30 I (Tex. Civ. App. Austin 1928), writ dismissed w.oj., (Jan. 30, 1929).
[FN4] § 199.
[FN5] Gee v. Hatley, 114 Ark. 376, 170 S.W. 72 (\914); Burroughs v. Smith, 8 S.W.2d 301 (Tex. Civ.
App. Austin 1928), writ dismissed w.oj., (Jan. 30, 1929).
[FN6] Peyton v. Stith, 30 U.S. 485, 8 L. Ed. 200 (\831).
[FN7] Kirby Lumber Corp. v. Laird, 231 F.2d 812 (5th Cir. 1956); Satterfield v. Peterson, 173 Neb.
618,114 N.W.2d 376 (1962).
[FN8] Kimble v. Willey, 204 F.2d 238,38 A.L.R.2d 814 (8th Cir. 1953) (applying Arkansas law).
rights reserved.
END OF DOCUMENT

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Westlaw,

Adverse Possession

§ 198. When possession of tenant becomes hostile

West's Key Number Digest, Landlord and Tenant €=14, 16
Forms
Form drafting guide-Checklist-Matters to consider when drafting an affidavit respecting adverse posses-
sion. IA Am. Jur. Legal Forms 2d, Adverse Possession § 11:17.
Affidavit-Disclaimer of title-By tenant. IA Am. Jur. Legal Forms 2d, Adverse Possession § II: 18.
Although the rule is well settled that so long as the relation of landlord and tenant exists, the tenant cannot
acquire an adverse title as against the landlord,[I] it is equally well settled that one who enters as tenant is not,
merely because of that fact, precluded from subsequently holding adversely to the landlord.[2] To do so,
however, it is necessary that the tenant renounce the idea of holding as tenant, and set up and assert an exclusive
right in him or herself.[3] It is also essential that the landlord should have actual notice of the tenant's claim, or
that the tenant's acts of ownership should be of such open, notorious, and hostile character that the landlord must
have known of it.[4] If a tenant has remained in possession under a claim of title for the statutory period, the au-
thorities agree that the tenant is not estopped to assert title to the property.[S] In other words, a tenant may oust
the landlord and hold adversely, and, after notice of such adverse holding, the landlord's title may be barred by
the continued adverse holding.[6]
Observation:
The rule permitting adverse holding by a tenant is generally recognized even though the tenancy was for a term
of years and the term has not expired at the time of the disclaimer of the landlord's title, which disclaimer oper-
ates as a forfeiture of the tenn and authorizes the landlord to recover the possession, and therefore, the adverse
holding commences as soon as the landlord has notice of the disclaimer and adverse claim, although the term
has not expired.[7] Other cases, however, apparently deny the power of a tenant to initiate adverse possession
during the term of a lease.[8]
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Adverse title to property held under a lease may be secured by possession for the requisite period under a
decree in partition which treats the tenant's title as a fee.[9]
[FNI]§197.
[FN2] Worthen v. Rushing, 228 Ark. 445, 307 S.W.2d 890 (1957).
As to when pennissive possession becomes adverse, generally, see § 50.
As to possession of tenant becoming adverse to landlord, see 49 Am. JUL 2d, Landlord and Tenant §§
931,932.
[FN5] Peyton v. Stith, 30 U.S. 485, 8 L. Ed. 200 (1831).
[FN6] Zeller's Lessee v. Eckert, 45 U.S. 289,4 How. 289, II L. Ed. 979 (1846).
[FN7] Walden v. Bodley, 39 U.S. 156, 10 L. Ed. 398 (1840).
[FN8] Zeller's Lessee v. Eckert, 45 U.S. 289, 4 How. 289, II L. Ed. 979 (1846).
[FN9] Townsend v. Boyd, 217 Pa. 386, 66 A. 1099 (1907).
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

§ 199. When possession of tenant becomes hostile--Sufficiency of disclaimer and notice of hostile holding
West's Key Number Digest, Adverse Possession C=>4, 10

West's Key Number Digest, Landlord and Tenant C=>14, 16
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § 12 (payment or nonpayment
of rent by grantor).
Acts of exclusive ownership by the tenant must be made manifest to the landlord in some way.[I] The mere
fact that a tenant remains in possession after the expiration of the tenn, without any express repudiation of the
relation created by the lease, is insufficient to show that the tenant holds adversely to landlord, even though the
tenant may secretly intend to do so.[2] Nor can an adverse possession by the tenant be predicated on the failure
to pay rent,[3] unless, in connection therewith, the landlord has been notified that the tenant claims title.[4]
[FN1] lunkerrnann v. Carruth, 620 S.W.2d 165 (Tex. Civ. App. Corpus Christi 198\).
[FN2] Carson v. Broady, 56 Neb. 648, 77 N.W. 80 (1898).
[FN3] Smith v. Newman, 62 Kan. 318,62 P. lOll (1900).
[FN4] Greenwood v. Moore, 79 Miss. 201, 30 So. 609 (1901); Ross v. McManigal, 61 Neb. 90, 84
N.W. 610 (1900).
rights reserved.
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END OF DOCUMENT
Page 411 of665
Westlaw,

Adverse Possession

§ 200. Possession under tenant

West's Key Number Digest, Landlord and Tenant €:=14, 16
The possession of one entering under a tenant is as a general rule regarded as subservient and not adverse to
the landlord to the same extent as that of the tenant, and placed in the shoes of the tenant, the occupant is bound
by the allegiance a tenant owes a landlord and cannot disclaim such allegiance without notice to the landlord.[I]
However, where one enters under a tenant without knowledge of the tenancy, and irrespective of it, in the asser-
tion of a title on its face adverse to the lessor, the possession will be hostile, if unequivocal acts and declarations
manifest an intention to hold against all others.[2]
Cases:
Evidence that lessees stopped making lease payments was insufficient to establish that they clearly, posit·
ively, and continuously disavowed lessor's title with lessor's knowledge, in lessees' action to quiet title by ad-
verse possession; lessees were required to establish that they took affirmative steps to repudiate lessor's title,
which they did not do, lessees' use of land remained essentially the same the entire time, and they did not dis-
avow lessor's ownership when to do so would have been consistent with their claim of adverse possession.
Hutchinson v. Taft, 2010 WY 5, 222 P.3d 1250 (Wyo. 2010).
[END OF SUPPLEMENT[
[FNI] Missouri Pac. R. Co. v. Bozeman, 178 Ark. 902, 12 S.W.2d 895 (1929); Burroughs v. Smith, 8
S.W.2d 301 (Tex. Civ. App. Austin 1928), writ dismissed w.o.j., (Jan. 30,1929).
[FN2] Gee v. Hatley, 114 Ark. 376, 170 S.W. 72 (1914); Burroughs v. Smith, 8 S.W.2d 301 (Tex. Civ.
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Page 412 of665

App. Austin 1928), writ dismissed w.o.j., (Jan. 30,1929).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. GoV!. Works. All
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

6. Cotenants
a. In General; As between Cotenants
§ 201. Generally
West's Key Number Digest, Adverse Possession €;=4, 10

West's Key Number Digest, Joint Tenancy €;=9
A.L.R. Library
Adverse possession between cotenants who are unaware of cotenancy, 27 A.L.R. 4th 420.
Adverse possession between cotenants, 82 A.L.R. 2d 5.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 8, 10 (under parol gift).
The general principle is that there is a relation of trust between cotenants, each having an equal right of
entry and possession.[l] Thus, every cotenant has the right to enter into and occupy the common property and
every part thereof, provided in so doing the cotenant does not exclude fellow cotenants or otherwise deny them
some right to which they are entitled as cotenants; and the other tenants, on their part, may safely assume, until
something occurs of which they must take notice, and which indicates the contrary, that the possession taken is
held as a cotenant and is, in law, the possession of all cotenants.[2] This proposition is based on the supposition
that the entry is made either eo nomine as a cotenant, or that it is silently made, without any particular avowal in
regard to it, or without notice to a cotenant that it is adverse.[3] In the absence of facts showing that one coten-
ant in sole possession holds such possession in opposition to the rights of other cotenants, the occupancy will be
presumed to be that of a cotenant,[4] and it is further presumed that one tenant in common holds property for the
benefit of the others.[S] Accordingly, possession by one cotenant is lawful and is not adverse to the other coten-
ants in the absence of some repudiation, notice of an adverse claim, or ouster.[6] Indeed, the presumption is
strongly against every claim by a cotenant who seeks to convert the circumstance of an apparently individual
possession into an advantage over associates.[7]
Observation:
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3 Am. Jur. 2d Adverse Possession § 20 I
Although there is considerable confusion in the cases as to whether there can be adverse possession by a coten-
ant where the possessor or a cotenant or both are ignorant of the cotenancy, on principle it would seem that one
who holds sale possession of premises as the exclusive owner has a possession which is adverse to the whole
world, including a cotenant out of possession whether either or both were ignorant of the cotenancy, and accord-
ingly, in a number of cases possession has been deemed adverse although both parties were unaware of the
cotenancy.[8] although there is authority to the contrary.[9]
Ordinarily, jf a possessor takes sole possession of the premises as exclusive owner prior to the time the
cotenancy arises, the continued sole possession under a claim of exclusive ownership after the cotenancy arises
is adverse to the cotenants.[1 0]
Cases:
When detennining whether cotenant's possession is adverse to other cotenants, for purposes of adverse pos-
session, relationship of the parties, their reasonable access to the property and opportunity or necessity for deal-
ing with it, their right to rely upon conduct and assurances of the tenant in possession, kinship, business transac-
tions directly or incidentally touching the primary subject matter, silence when one should have spoken, natural
inferences arising from indifference, and other means of conveying or concealing intent may be important in a
particular case, but not controlling in another; what a designated plaintiff or defendant had in mind when he or
she consummated an act or engaged in a course of conduct often depends upon the personal equation and the in-
dividual's method of expression, and there can therefore be no "open and shut" rule by which purpose can be
measured. Sherman v. Wallace, 88 Ark. App. 229,197 S.W.3d 10 (2004).
[END OF SUPPLEMENT]
[FNI]20 Am. Jur. 2d, Cotenancy and Joint Ownership § 2.
[FN2] Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); Hare v. Chisman, 230 Ind. 333, 101
N.E.2d 268 (1951).
The mere possession by one tenant in common who receives an the rents and profits and pays the taxes
assessed against the property, no matter for how long a period, cannot be set up as a bar against the
cotenants, and in such case, the possession of one tenant in common is in contemplation of law the pos-
session of all tenants in common. Mercer v. Wayman, 9 Ill. 2d 441,137 N.E.2d 815 (1956).
A tenant in common, claiming as such, who enters on the common land, is exercising the right given
him or her by the title to the property, and the tenant's resulting possession is presumed to be consistent
with the avowed title and therefore to be the possession of the cotenant and him or herself. Smith v.
Tremaine, 221 Or. 33, 350 P.2d 180,82 A.L.R.2d I (1960).
[FN3] Eckhardt v. Eckhardt, 43 Tenn. App. 1,305 S.W.2d 346 (1957).
[FN4] Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952); Hoverson v. Hoverson, 216
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Minn. 228,12 N.W.2d 501 (l943).
[FN5] Porter v. Marx, 179 A.D.2d 962,579 N.Y.S.2d 219 (3d Dep't 1992).
[FN6] Evans v. Covington, 795 S.W.2d 806 (Tex. App. Texarkana 1990).
[FN7] Marshall v. Callahan, 241 Mo. App. 336, 229 S. W.2d 730 (1950).
There is a strong presumption against every supposition that a cotenant in sole possession is holding the
premises in opposition to the rights of cotenants. Hare v. Chisman, 230 Ind. 333, 101 N.E.2d 268 (l951).
[FN8] Brown v. Phillips Petroleum Co., 144 S.W.2d 358 (Tex. Civ. App. Fort Worth 1940).
[FN9] Denton v. Denton, 627 S.W.2d 124,27 A.L.RAth 413 (Tenn. C!. App. 1981).
[FNIO] Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
rights reserved.
END OF DOCUMENT
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West law,

Adverse Possession

6. Cotenants
§ 202, When possession becomes hostile
West's Key Number Digest, Adverse Possession 1€>4, 10

West's Key Number Digest, Joint Tenancy 1€>9
A.L.R Library
The presumption that one tenant in common holds property for benefit of others can be rebutted by a show-
ing of adverse possession.[I] The presumption that the possession of a cotenant is not hostile to other cotenants[
2] continues until a possession legally adverse to the possessor's cotenants is established.[3] To terminate the
presumption, there must be some hostile act, conduct, or declaration on the part of the possessor amounting to a
repudiation of cotenants' rights and an assertion of exclusive title in the possessor, of which the cotenants have
knowledge or notice.[4] The statute of limitations begins to run in favor of a cotenant in possession against a
cotenant out of possession trom the time there is an ouster of the latter by the former.[5]
Where once it appears that the party occupying the premises holds not in recognition of, but in hostility to,
the rights of cotenants, the possession ceases to amount to constructive possession by them, becomes adverse,
and, if maintained for the period provided for by the statute of limitations, will vest in the possessor a sole title
by adverse possession to the premises.[6]
Reminder:
When ousted by a fellow cotenant, the others have a remedy in their own right, on their own independent title,
and if they do not exercise their right they must suffer the consequences of an adverse possession and lose their
estate.[7]
CUMULA TIVE SUPPLEMENT

Page 417 of 665

Cases:
The statutory period of time for an adverse possession claim by a cotenant does not begin to run until know-
ledge of the adverse claim has been brought home to other cotenants directly or by such notorious acts of an un-
equivocal character that notice may be presumed. Sherman v. Wallace, 88 Ark. App. 229, 197 S.W.3d 10 (2004) .
lEND OF SUPPLEMENT)
[FNI] Porter v. Marx, 179 A.D.2d 962,579 N.Y.S.2d 219 (3d Dep't 1992).
[FN2) § 20 I.
[FN3] Franks Petroleum, Inc. v. Babineaux, 446 So. 2d 862 (La. Ct. App. 2d Cir. 1984).
[FN4] Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); Linebarger v. Late, 214 Ark. 278, 216
S.W.2d 56 (1948); Cary-Glendon Coal Co. v. Warren, 303 Ky. 846, 198 S.W.2d 499 (1946).
Possession of a cotenant does not become adverse to other cotenants unless notice is given that the first
cotenant was claiming land adversely to the cotenants, or the first cotenant's acts in assertion of the ad-
verse claim are of such unequivocal notoriety as to charge them with such notice. Evans v. Covington,
795 S. W.2d 806 (Tex. App. Texarkana 1990).
[FN5] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958); Hare v. Chisman, 230 Ind. 333, 101
N.E.2d 268 (1951).
[FN6] Smith v. Tremaine, 221 Or. 33, 350 P.2d 180, 82 A.L.R.2d I (1960).
A cotenant may hold adversely to the cotenants if possession is such that it meets the requirements of
the law of adverse possession. Simons v. Tancre, 321 N.W.2d 495 (N.D. 1982).
[FN7] Koch v. Krueger, 149 Kan. 123,86 P.2d 526 (1939).
As to ejectment or trespass to try title action as maintainable by one cotenant against another cotenant
holding adversely, see 20 Am. Jur. 2d, Cotenancy and Joint Ownership § 94.
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

6. Cotenants
§ 203. What constitutes hostile possession

West's Key Number Digest, Joint Tenancy €:=9
A.L.R. Library
The possession of a cotenant may become hostile if by acts and conduct the possessor disseises the coten-
ants by repudiating their title and claiming adversely to them.[I] The possession is not hostile unless there exists
in the mind of the possessor the intent and determination to hold the premises for the possessor as of the time in
question as well as for the future, and to the exclusion of cotenants (or some of them), so as to render the exist-
ing possession hostile in fact.[2] Moreover, notice to the disseised cotenants of the repudiation of their rights
must be brought home to them.[3] The mere intention of a cotenant, unannounced, is not sufficient to support a
claim of adverse title.[4] The establishment of adverse possession between cotenants depends primarily on the
intent and conduct of the possessor, rather than on the intent of other cotenants.[5] An adverse claim by a coten-
ant against fellow cotenants cannot be established by inference.[6]
Observation:
In determining the sufficiency of an adverse claim by a cotenant, courts generally look to the totality of the cir-
cumstances, considering such factors as the relationship of the parties, the reasonable access to the property and
opportunity or necessity for dealing with it, the right to rely on conduct and assurances of the cotenant in posses-
sion, kinship, business transactions directly or incidentally touching the primary subject matter, silence when
one should have spoken, and natural inferences rising from indifference.[7] Where there is a family relation
between cotenants, stronger evidence of adverse possession is required than where no such relation exists.[8]

Page 419 of665

[FNI] Mercer v. Wayman, 9 Ill. 2d 441, 137 N.E.2d 815 (1956); Replogle v. Replogle, 350 S.W.2d 735
(Mo. 1961).
As to what constitutes ouster or exclusion of one cotenant by another, see 20 Am. Jur. 2d, Cotenancy
and Joint Ownership § 5l.
[FN2] Reed v. Bachman, 61 W. Va. 452, 57 S.E. 769 (1907).
[FN3] § 206.
[FN4] Cary-Glendon Coal Co. v. Warren, 303 Ky. 846, 198 S.W.2d 499 (1946).
[FN5] Wilson v. Wilson, 250 Ky. 247, 62 S.W.2d 572 (1933).
[FN6] Mercer v. Wayman, 9 Ill. 2d 441,137 N.E.2d 815 (1956).
[FN7] Hirsch v. Patterson, 269 Ark. 532, 601 S.W.2d 879 (1980).
[FN8] McGuire v. Wallis, 231 Ark. 506,330 S.W.2d 714 (1960).
As to effect of family relationship, generally, see §§ 180 et seq.
rights reserved.
END OF DOCUMENT
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Adverse Possession

6. Cotenants
§ 204. What constitutes hostile possession-Ouster of cotenants

West's Key Number Digest, Joint Tenancy ~9
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § 1O[(c1].
Forms
Instruction to jury-Cotenants-Necessity for ouster or notice. 1B Am. Jur. Pleading and Practice Forms,
Adverse Possession § 183.
Before the possession of one tenant in common can be adverse to the other cotenants there must be a dis-
seisin or ouster by some outward act of ownership of an unequivocal character, overt or notorious, and of such
nature as to impart information and notice to the cotenants that an adverse possession and disseisin are intended
to be asserted by the tenant in possession.[I] A parent in cotenancy with children may acquire title as against
them by adverse possession by an ouster from possession of a living spouse that continues against the heirs of
the spouse.[2] The acts relied on to establish an ouster must be of an unequivocal nature and so distinctly hostile
to the rights of the other cotenants that the intention to disseise is clear and unmistakable.[3]
Practice Guide:
While an ouster of one cotenant by another is produced by acts of the same general character as will produce any
other ouster,[4] evidence of hostile occupancy by a cotenant must be stronger than that which would be required
to establish a title by adverse possession in a stranger.[5] Thus, proof of ouster of a cotenant by another must be
stronger than in the case of strangers.[ 6]
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In order that one of several cotenants may acquire title by adverse possession as against the others, the pos-
session also must be of such actual, open, notorious, and exclusive character as to amount to an ouster of the
other cotenants.[7] The open, notorious, continuous, and exclusive possession by one cotenant with the use and
exercise of authority incident to exclusive ownership may presume ouster,[8] although the mere possession[9] or
mere use and occupation of the land by a cotenant will not ordinarily constitute ouster.[IO] Thus, mere exclusive
possession, accompanied by no act that can amount to an ouster of the other cotenant, will not be held to amount
to a disseisin of such cotenant.[ II]
Cases:
Before title may be acquired by adverse possession as between cotenants, the occupying tenant must impart
notice to the tenant out of possession, by acts of ownership of the most open, notorious and unequivocal charac-
ter, that he or she intends to oust the latter of his or her interest in the common property; such evidence must be
stronger than that which would be required to establish a title by adverse possession in a stranger, and mere ex-
clusive possession is not sufficient. Preciado v. Wilde, 139 Cal. App. 4th 321, 42 Cal. Rptr. 3d 792 (2d Dist.
2006), review denied, (Aug. 16,2006).
lEND OF SUPPLEMENTI
[FNI] Mercer v. Wayman, 9 Ill. 2d 441, 137 N.E.2d 815 (1956).
In addition to triggering an obligation to pay rent, an ouster furnishes the tenant in possession a benefit,
since it starts the time in which the tenant in possession will hold the property adversely, and the ouster
by one cotenant of others can result in the tenant in possession obtaining title to the property, if the oc-
cupying tenant otherwise satisfies the requirements for title by adverse possession. Estate of Hughes, 5
Cal. App. 4th 1607,7 Cal. Rptr. 2d 742 (4th Dist. 1992).
[FN2] Ruick v. Twarkins, 171 Conn. 149,367 A.2d 1380 (1976).
[FN3] Baker v. Clowser, 158 Iowa 156, 138 N.W. 837 (1912); Ferenbaugh v. Ferenbaugh, 104 Ohio st.
556,136 N.E. 213 (1922).
[FN4] Harjo's Heirs v. Standley, 1956 OK 286, 305 P.2d 864 (Okla. 1956).
As to ouster of owner, generally, see §§ 69, 70.
[FN5] Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956).
[FN6] Wilkerson v. Thomas, 121 Cal. App. 2d 479, 263 P.2d 678 (2d Dist. 1953); Smith v. Lemp, 31
Del. Ch. 1,63 A.2d 169 (1949).
An ouster cannot be proved merely by acts which are consistent with an honest intent to acknowledge
the rights of the cotenants. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954),
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error overruled, 222 Miss. 207, 78 So. 2d 471 (1955).
[FN7] Watson v. Little, 224 S.C. 359, 79 S.E.2d 384 (1953); Brevard v. Fortune, 221 S.c. 117, 69
S.E.2d 355 (1952).
[FN8] Wells v. Coursey, 197 S.C. 483, 15 S.E.2d 752 (1941); Eckhardt v. Eckhardt, 43 Tenn. App. I,
305 S.W.2d 346 (1957).
[FN9] Smith v. Lemp, 31 Del. Ch. 1,63 A.2d 169 (1949).
[FNIO] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958).
[FNI1] Hare v. Chisman, 230 Ind. 333,101 N.E.2d 268 (1951).
rights reserved.
END OF DOCUMENT
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Adverse Possession

6. Cotenants
§ 205. What constitutes hostile possession-Sufficiency of ouster
West's Key Number Digest, Adverse Possession €;=4, 10

West's Key Number Digest, Joint Tenancy €;=9
A.L.R. Library
It is not always easy to detel11line what acts amount to an ouster, and while a physical ouster, or "turning out
by the heels," as some of the judges have termed it, is not necessary in establishing title in a cotenant in by ad·
verse possession,[l] nevertheless, an ouster or its equivalent and an exclusion of the other cotenants from pos-
session must be shown.[2] Several courts have said that the tenn "ouster" may denote either an actual turning
out or an exclusive possession coupled with some act amounting to a total denial of the other's rights.[3]
Observation:
In order to afford the basis of title by adverse possession, ouster need not extend to all property of the cotenants
or to the whole of any tract claimed by them. It may be restricted to a part of a tract and result in the acquisition
of adverse title thereto.[4]
[FNI] Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222
Miss. 207, 78 So. 2d 471 (1955).
[FN2] Curtis v. Barber, 131 Iowa 400, 108 N.W. 755 (1906); Susquehanna Transmission Co. of Md. v.
St. Clair, 113 Md. 667, 77 A. 1119 (19\0).
[FN3] Hed v. Pullara, 128 Colo. 244, 261 P.2d 509 (1953).
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[FN4] Stevenson v. Anderson, 87 Ala. 228, 6 So. 285 (1889).
rights reserved.
END OF DOCUMENT
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Westlaw.
3 Am. J ur. 2d Adverse Possession § 206

Adverse Possession

6. Cotenants
§ 206. What constitutes hostile possession-Requirement of actual knowledge of hostile claim
West's Key Number Digest, Adverse Possession €=o;>4, 10

West's Key Number Digest, Joint Tenancy €=o;>9
A.L.R. Library
Cotenants in possession who claim adversely are required to prove either that they or their predecessors in
interest gave actual notice to other cotenants or their predecessors that the claimants' possession was hostile to
them, or that the requirement of notice was eliminated by exceptional circumstances, such as that the cotenants
out of possession had knowledge trom other sources that the property was claimed adversely.[I] Thus, it is de·
c1ared in many cases that before the possession of a cotenant can become adverse to cotenants the latter must
have knowledge that the possessor is claiming exclusive ownership and is holding the premises adversely to
them,[2] and adverse possession is not established where a cotenant out of possession is never informed of a
claim against that tenant's interest.[3]
Mere knowledge by cotenants out of possession of the obvious fact of possession by one cotenant does not
amount to proof of knowledge that the one in possession was claiming adversely.[4] Thus, an entry on real prop·
erty by a cotenant claiming an adverse possession against other cotenants can never become the foundation of
title until the other cotenants first have had actual knowledge of the repudiation of their rights.[5] There must be
an express denial by the cotenant in sole possession of the title or right to possession of a fellow cotenant
brought home to the knowledge of the latter.[6]
Caution:
The requirement of actual knowledge by other cotenants of the repudiation of their rights is particularly applic-
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able where there is a family or blood relationship or other elements of trust and confidence between the coten-
ants.[7]
Cases:
Since possession by a cotenant is not ordinarily adverse to other cotenants, each having an equal right to
possession, a cotenant, for purposes of adverse possession, must give actual notice to other cotenants that his
possession is adverse to their interests or commit sufficient acts of hostiJity so that their knowledge of his ad-
verse claim may be presumed. Sherman v. Wallace, 88 Ark. App. 229,197 S.W.3d 10 (2004).
lEND OF SUPPLEMENTI
[FNI] City and County of Honolulu v. Bennett, 57 Haw. 195,552 P.2d 1380 (1976).
As to sufficiency of constructive notice of adverse occupancy by a cotenant, see § 207.
[FN2] Draper v. Sewell, 263 Ala. 250, 82 So. 2d 303 (1955).
A cotenant had actual notice of an adverse claim to a property in its entirety where the cotenant testified
to knowing that another cotenant and her husband were living on and claiming the property as their own
for a period of years. Mosley v. Clark, 362 So. 2d 615 (Miss. 1978).
[FN3] Steele v. Mack, 341 So.2d 1322 (Miss. 1977).
[FN4] Mercer v. Wayman, 9 Ill. 2d 441, 137 N.E.2d 815 (1956).
[FN5] Holbrook v. Carter, 19 Utah 2d 288, 431 P.2d 123 (1967).
The rule does not apply to a coheir whose adverse possession commenced before the decedent's death.
Anderson v. Shelton, 92 N.W.2d 166, 73 A.L.R.2d 1087 (N.D. 1958).
[FN6] Hirsch v. Patterson, 269 Ark. 532,601 S.W.2d 879 (1980).
Although a cotenant exercised the use of the land, paid taxes, redeemed the land when it was sold for
taxes, cut timber and grazed cattle thereon, executed oil and gas leases, and obtained homestead exemp-
tions, without accounting for rents and profits to the cotenants or requesting contributions from them,
there was no ouster since a specific notice of adverse possession had not been given. Campbell v.
Dedeaux, 386 So. 2d 713 (Miss. 1980).
[FN7] Baxter v. Young, 229 Ark. 1035,320 S.W.2d 640 (1959).
rights reserved.
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END OF DOCUMENT
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Westlaw"

Adverse Possession

6. Cotenants
§ 207. What constitutes hostile possession-Sufficiency of constructive notice of hostile claim

West's Key Number Digest, Joint Tenancy <C=9
A.L.R. Library
The doctrine of many cases and the prevailing rule is that the possession may be legally adverse to the pos-
sessor's cotenants although they do not have actual knowledge of the fact of adverse possession.[I] Actual notice
of an adverse claim may not be necessary when a cotenant's use and claim of title are so long continued, open,
notorious and exclusive as to raise an inference that notice has been brought to the attention of the cotenant, but
it is only when those facts are inconsistent with the existing title in others that such inference will be raised.[2]
On the other hand, the knowledge of the hostile attitude of the possessor is not to be presumed, but must be
shown by such proof as will preclude all doubt of knowledge on the part of the cotenant who is out of posses-
sion.[3] In any event, notice of the adverse possession must be clearly brought home to the cotenants out of pos-
session.[4]
The knowledge chargeable to cotenants out of possession may arise from a disavowal or disclaimer by the
adverse possessor of any right in the cotenants[5] or it may arise from acts or circumstances attending such ad-
verse possession which are overt, notorious, and unequivocal in their character and import.[6] A judicial pro-
ceeding involving land owned in cotenancy may charge cotenants with notice that a cotenant who is in sale pos-
session claims and holds the property adversely to the others, and indeed, it ordinarily does so charge the coten-
ants out of possession where the fact of an exclusive claim appears from the proceeding.[7]
Observation:
From acts of an adverse claimant that are overt, notorious, and unequivocal, it is the duty of the other cotenants
to be informed and to draw such reasonable inferences as prudent persons possessed of, and interested in, like

Page 429 of 665

infonnation would natural1y do, and cotenants out of possession cannot prevent the operation of the statute of
limitations by proving that they did not know of the facts affecting their interest, or, knowing of them, did not
draw correct conclusions therefrom.[8]
Vague assertions of public opinion that a cotenant in possession is claiming to be the owner do not establish
notorious acts of such unequivocal character that notice to other cotenants must be presumed.[9] While the pay-
ment of taxes on the property is strong evidence of a c1aim of title, it does not suffice to give notice of the coten-
ant's claim as against the other cotenants.[IO]
Cases:
In limited circumstances, the notice requirement for a tenant c1aiming property by adverse possession will
be satisfied by constructive notice to the other cotenants and open and notorious possession. Wailuku Agribusi-
ness Co., Inc. v. Ah Sam, 114 Haw. 24, 155 P.3d 1125 (2007), as amended, (Apr. 12,2007).
lEND OF SUPPLEMENTI
[FNI] Mann v. Mann, 353 Mo. 619, 183 S.W.2d 557 (1944); Vasquez v. Meaders, 156 Tex. 28, 291
S.w.2d 926 (1956).
As to requirement of actual knowledge of hostile occupancy by cotenant, see § 206.
[FN2] Evans v. Covington, 795 S.W.2d 806 (Tex. App. Texarkana 1990).
[FN3] Schwab v. Wyss, 136 Kan. 54,12 P.2d 719 (1932).
[FN4] McCarthy v. George, 623 S.W.2d 772 (Tex. App. Fort Worth 1981), writ refused n.r.e., (Mar. 10,
1982) (insufficient notice).
The statute of limitations commences to run against cotenants when the cotenants knew, or should have
known, that another cotenant was claiming ownership by adverse possession. Dodson v. Muldrew, 239
Ark. 202, 388 S. W.2d 90 (1965).
[FN5] Mercer v. Wayman, 9111. 2d 441,137 N.E.2d 815 (1956).
[FN6] Wilkerson v. Thomas, 121 Cal. App. 2d 479, 263 P.2d 678 (2d Disl. 1953); Cook v. Rochford, 60
So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952); Mercer v. Wayman, 9 111. 2d 441, 137 N .E.2d 815 (1956).
[FN7] Derryberry v. Sims, 267 Ark. 846, 591 S.W.2d 662 (CI. App. 1979); Ruick v. Twarkins, 171
Conn. 149,367 A.2d 1380 (1976).
[FN8] Schwab v. Wyss, 136 Kan. 54, 12 P.2d 719 (1932); Severson v. McKenzie, 122 Neb. 827,241
N.W. 774 (1932).
Page 430 of665

If one tenant in common holds exclusive possession, claiming the land as his or her, and the tenant's
conduct and possession are of such character as to give notice to other cotenants that the fonner's pos-
session is adverse, the statute of limitations will run. Mercer v. Wayman, 9 III. 2d 441, 137 N.E.2d 815
(1956).
[FNIO] Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222
Miss. 207, 78 So. 2d 471 (1955).
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

6. Cotenants
§ 208. What constitutes hostile possession-Acts of ownership
West's Key Number Digest, Adverse Possession <8;=4, 10

West's Key Number Digest, Joint Tenancy <8;=9
A.L.R Library
The performance by a possessor of ordinary acts of ownership on or in respect of the land does not establish
that the possession is adverse to the cotenants, whether or not they have notice of such acts.[I] For this reason,
whether the acts of ownership will be such as to break and dissolve the unity of possession, constitute an adverse
possession as against the cotenants, and amount to a disseisin, depends on the intent with which they are done,
and on their notoriety and essential character.[2] Accordingly, it is a general rule that the entry of a cotenant on
the common property, even if the possessor takes the rents or profits without accounting or paying for any share
of it, will not ordinarily be considered as adverse to other cotenants and an ouster of them.[3] Rather, such acts
will be construed in support of the common title.[4] Although the exclusive taking of the profits by one cotenant
for a long period of time, with the knowledge of the other cotenant, may raise a natural presumption of ouster on
which the jury may find ouster to exist, yet the law will not, merely from this fact, raise a presumption of ouster.[S]
Generally, a cotenant claiming adverse possession must show a definite and continuous assertion of an ad-
verse right by overt acts of unequivocal character clearly indicating an assertion of ownership of the premises to
the exclusion of the rights of the other cotenants.[6] A cotenant's sole possession of the land becomes adverse to
fellow cotenants by the possessor's repudiation or disavowal of the relation of cotenancy between them, and any
act or conduct signifying the intention to hold, occupy, and enjoy the premises exclusively, and of which the
cotenant out of possession has know ledge, or of which there is sufficient infonnation to put such cotenant on in-
quiry, amounts to an ouster of such cotenant.[7]

Page 432 of665

[FNI] Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App. San Antonio 1981).
[FN2] Torrez v. Brady, 37 N.M. 105, 19 P.2d 183 (1932).
A tenant in common did not constructively oust the other cotenants by paying past due taxes on the
property in 1939 or by using the property without paying rents or profits to the cotenants, where the
first tenant recognized the cotenancy in 1971 by buying a share in the property from a cotenant. Sheets
v. Sheets, 57 N.C. App. 336, 291 S.E.2d 300 (1982).
[FN3] Cary-Glendon Coal Co. v. Warren, 303 Ky. 846,198 S.W.2d 499 (1946).
[FN4] Cary-Glendon Coal Co. v. Warren, 303 Ky. 846,198 S.W.2d 499 (1946).
[FN5] Hare v. Chisman, 230 Ind. 333,101 N.E.2d 268 (1951).
[FN6] Sowers v. Keedy, 135 Md. 448, 109 A. 143 (1919); Gill v. Fletcher, 74 Ohio St. 295, 78 N.E.
433 (1906).
[FN7] Hurst v. lM. Griffin & Sons, 209 Miss. 381, 46 So. 2d 440 (1950), error overruled, 209 Miss.
381,47 So. 2d 811 (1950).
The possession of one tenant in common is the possession of all, but if one has the sole possession for
20 years without acknowledgment of title in a cotenant, and without any demand or claim to rents,
profits, or possession on the part of such cotenant, who is under no disability during the time, the law
raises a presumption that such sole possession is rightful, and will protect it. Brewer v. Brewer, 238
N.C. 607, 78 S.E.2d 719, 40 A.L.R.2d 763 (1953).
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

6. Cotenants
§ 209. What constitutes hostile possession-Particular acts of ownership

West's Key Number Digest, Joint Tenancy C=9
A.L.R. Library
Where one cotenant occupies the common property notoriously as the sole owner, using it exclusively, im-
proving it, and taking to such cotenant's own use the rents and profits, or otherwise exercising over it such acts
of ownership as manifest unequivocally an intention to ignore and repudiate any right in other cotenants, such
occupation or acts and claim of sole ownership will amount to a disseisin of the other cotenants, and the posses-
sion will be regarded as adverse from the time they have knowledge of such acts or occupation and of the claim
of exclusive ownership.[l] However, leasing out the use and possession of the entire premises is not in itself an
ouster or disseisin of cotenants nor is it sufficient to establish an adverse possession against them.[2] Whatever
significance attaches to the making of improvements on the land depends on their nature and extent and on the
particular situation presented, and the making of improvements does not in ordinary circumstances provide a de-
cisive indication of possession adverse to other cotenants.[3] Although payment of real estate taxes by the coten-
ant in possession may not be a prerequisite to acquiring title by adverse possession, it is proper to consider pay-
ment of taxes as a factor in determining whether a claim of ownership exists or a claim is knowingly adverse,[4]
but the fact of payment of taxes may be inadequate or not given much weight.[5]
The recordation of a special warranty deed from the defendant cotenant, which granted one acre of the
60-acre tract at issue to her daughter, after the plaintiff cotenants had acquired an interest in the property, did not
give the plaintiff constructive notice that their cotenant relative claimed an interest adverse to theirs, since re-
cord notice goes forward, not backwards, and the law does not require a landowner to constantly examine the re-
cords to guard against instruments affecting title. [6] Many cases have held that the act of attempting to convey
the premises or a portion thereof to a stranger does not in itself establish that the grantor's possession is hostile
to other cotenants,[7] although such act may justi/)' an inference that the claimant asserts exclusive title to the

Page 434 of 665

land.[8] Nor is the act of mortgaging the property in itself conclusive evidence of an ouster,[9] but it is some
evidence of an intention to assert exclusive title in the possessor.[IO]
[FNI] Brewer v. Brewer, 238 N.C. 607, 78 S.E.2d 719, 40 A.L.R.2d 763 (1953); Preston v. Preston,
1949 OK 59, 201 Okla. 555, 207 P.2d 313 (1949).
[FN2] Dunlavy v. Lowrie, 372 111.622,25 N.E.2d 67 (1939).
[FN3] Heisel! v. Heiselt, 10 Utah 2d 126, 349 P.2d 175 (1960); Fritch v. Fritch, 53 Wash. 2d 496, 335
P.2d 43 (1959).
[FN4] Renensland v. Ellenberger, I Kan. App. 2d 659, 574 P.2d 217 (1977).
[FN5] Apodaca v. Tome Land & Imp. Co. (NSL), 91 N.M. 591, 577 P.2d 1237 (1978); Poenisch v.
Quarnstrom, 361 S.W.2d 367 (Tex. 1962).
[FN6] Spiller v. Woodard, 809 S.W.2d 624 (Tex. App. Houston 1st Dis!. 1991).
[FN7] Wheeler v. Harris, 232 Ark. 469, 339 S.W.2d 99 (1960); Moore v. Cole, 200 Tenn. 43, 289
S.W.2d 695 (1956).
[FN8] Sperry v. Tolley, 114 Utah 303,199 P.2d 542 (1948).
[FN9] Lambert v. Hemler, 244 III. 254, 91 N.E. 435 (1910).
[FNIO] Toomer v. Murphy, 198 Ark. 610, 129 S.W.2d 937 (1939); Preston v. Preston, 1949 OK 59, 201
Okla. 555, 207 P.2d 313 (1949).
rights reserved.
END OF DOCUMENT
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West law,

Adverse Possession

6. Cotenants
§ 210. What constitutes hostile possession-Possession under deed or color or title

West's Key Number Digest, Joint Tenancy oC=9
A. L.R. Library
The taking and recording of a deed by one cotenant from a third person will not have any effect as an ouster
of another cotenant as would lay the foundation for the commencement of an adverse possession, unless accom-
panied and followed by a hostile claim of which the cotenant out of possession had knowledge, and by acts of
possession not only inconsistent with, but in exclusion of, the continuing right of the cotenant out of posses-
sion.[I] Placing a tax deed for the whole tract on record by one cotenant is no ouster of another cotenant who
did not know of the adverse claim.[2] and this is true even though the claimant enters under such deed and exer-
eises certain acts of ownership.[3] The purchase by one cotenant of jointly held property from a tax sale adjudic-
atee followed by the purchaser's exclusive possession of the property does not act to oust the other cotenants as
the cotenant's purchase presumptively redeems the property for the benefit of all the co-owners.[4] However. if
one enters under color of title, claiming the whole tract for the possessor, and if other necessary conditions of
adverse ownership concur, the possession will be adverse to the other cotenant.[5] Where all cotenants originally
claimed under a particular instrument as color of title, such instrument may serve the same purpose for anyone
of them who may subsequently claim adversely as to the others.[6]
Observation:
A cotenant cannot base adverse possession on a deed acquired in bad faith.[7]
It is the prevailing view that the mere recording of a deed purporting to convey the full title to land owned
in cotenancy to a cotenant in possession, either from a cotenant or a stranger, does not in itself constitute notice
to the other cotenants of the possessor's adverse claim,[8] although the contrary result has been reached,[9] espe-

Page 436 of 665

cially where the adverse claimant believed him or herself to be the sole owner and consequently believed that he
or she did not take and hold possession as a cotenant.[ 10]
While it appears that a judicial decree purporting to establish the rights of cotenants, such as a partition de-
cree, under proper circumstances may constitute an ouster and color of title on which to base adverse posses-
sion,[1 I] this is not true where the adverse claimants hold under the decree in recognition of the right of the oth-
er cotenants.[12] Thus, where certain cotenants obtained a decree in partition adjudging them to be heirs of other
cotenants presumed dead under a statute providing for return of the property if the presumed dead should be
alive, it was ruled that the former held the property in recognition of the statute and under the decree in right of
the presumed dead cotenants and not adversely to them, and that such decree was not an ouster and was not col-
or of title on which to predicate adverse possession.[13]
[FNI] Wilkerson v. Thomas, 121 Cal. App. 2d 479, 263 P.2d 678 (2d Dist. 1953); Nichols v. Gaddis &
McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222 Miss. 207, 78 So. 2d 471
(1955); Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956).
[FN2] Miller v. Murphy, 119 Mont. 393, 175 P.2d 182 (1946).
[FN3] Boatman v. Beard, 1967 OK 33, 426 P.2d 349 (Okla. 1967).
[FN4] Boase v. Edmonson, 471 So. 2d 847 (La. Ct. App. 2d Cir. 1985).
[FN5] Black v. Beagle, 59 Wyo. 268,139 P.2d439, 148 A.L.R. 243 (1943).
As to what constitutes color of title, generally, see §§ 123 et seq.
[FN6] Russell v. Tennant, 63 W. Va. 623, 60 S.E. 609 (1908).
A partition agreement between cotenants that some would own a certain part of the land jointly and oth-
ers another part jointly constitutes a repudiation of the relationship of cotenancy and notice of adverse
possession. Condra v. Grogan Mfg. Co., 149 Tex. 380, 233 S.W.2d 565 (1950).
[FN8] Wilkerson v. Thomas, 121 Cal. App. 2d 479, 263 P.2d 678 (2d Dist. 1953) (deed from stranger);
Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222 Miss.
207,78 So. 2d 47 I (1955) (deed from cotenant).
[FN9] Arends v. Frerichs, 192 Iowa 285, 184 N.W. 650 (1921), reh'g dismissed, 192 Iowa 1318, 186
N.W. 457 (1922).
There is some indication that a conveyance from a stranger stands in a different light from that of a con-
veyance from another cotenant. Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951).
[FNIO] Johns v. Scobie, 12 Cal. 2d 618,86 P.2d 820,121 A.L.R. 1404 (1939).
Page 437 of665

[FNll] Ruick v. Twarkins, 171 Conn. 149, 367 A.2d 1380 (1976) (void probate decree may furnish
proof of the elements of ouster and claim of right against cotenants).
An award of property to a plaintiff by a decree of distribution met the statutory test for color of title
where the decedent's will was admitted to probate and an inventory containing a description of the prop-
erty was filed. Nicholas v. Cousins, I Wash. App. 133,459 P.2d 970 (Div. 31969).
[FNI2] Christiansen v. Christiansen, 159 F.2d 366 (C.C.A. 5th Cir. 1947).
[FNI3] Christiansen v. Christiansen, 159 F.2d 366 (C.C.A. 5th Cir. 1947).
rights reserved.
AMJUR ADVERSE § 2 \0
END OF DOCUMENT
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Westlaw,

Adverse Possession

C. Effect of Particular Relationships between Patties
6. Cotenants
§ 211. Tacking of successive possessions

West's Key Number Digest, Joint Tenancy €o=9
Forms
Instruction to jury-Period of adverse possession-Tacking prior possession. I BAm. Jur. Pleading and
Sufficient privity may exist between cotenants to permit the tacking of successive possessions.[I] The title
acquired by one cotenant of real property under a deed in severalty from a cotenant who is holding adversely
does not inure to the benefit of other cotenants, and the grantees may tack their possession to that of their grant-
or for the purpose of establishing a title by adverse possession as against other cotenants.[2]
Caution:
A grantee was not entitled to tack the period of such grantee's exclusive possession of the property and payment
of taxes to similar exclusive possession and payment of taxes by the grantor to establish adverse possession
against a cotenant under a statute providing that a cotenant who has been in exclusive possession of real prop'
erty for an uninterrupted period of twenty years, and has paid all taxes assessed against such property while in
possession, may bring an action to establish adverse possession as against all other cotenants.[3]
[FNI] Woodruffv. Roysden, lOS Tenn. 491, 58 S.W. 1066 (1900).
As to tacking of successive possessions, generally, see §§ 76 et seq.
[FN2] May v. Chesapeake & o. Ry. Co., 184 Ky. 493, 212 S.W. 131 (1919); Bradford v. Armijo, 28
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Page 439 of 665

N.M. 288, 210 P. 1070 (1922).
[FN3] Willson v. Hessong, 38 Or. App. 269, 589 P.2d 1194 (1979).
rights reserved.
END OF DOCUMENT
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Westiaw.

Adverse Possession

6. Cotenants
§ 212. Interruption ofstatute

The bringing of an action involving title by a cotenant in possession in the joint names of the cotenants is an
acknowledgment of the right of the cotenant out of possession and interrupts the running of the statute.[I] A suit
by a cotenant in possession against other contents to annul a previous partition and for a new partition also ar-
rests the running of the statute, which is based on the continued existence of the cotenancy.[2] A judgment
against a person in possession of land, declaring that the deed under which the possessor holds is void and that
the possessor is a cotenant with the other parties to the suit, interrupts and destroys any adverse possession the
possessor may have had against the cotenants and restores the seisin to all of them, and the subsequent silent
possession of such person claiming under the same deed, unaccompanied by an act amounting to an ouster of
cotenants, will not constitute such adverse possession against the other cotenants as will vest title by the statute
of limitations.[3]
[FNI] McLeam v. Wallace, 35 U.S. 625, 9 L. Ed. 559 (1836).
As to substantial interruption of an adverse possession before the lapse of the period required to consti-
tute the statutory bar, see §§ 88 et seq.
[FN2] Newman v. Newman, 451 S.W.2d 417 (Ky. 1970).
As to partition, generally, see 59A Am. Jur. 2d, Partition.
[FN3] Stewart v. Stewart, 83 Wis. 364, 53 N.W. 686 (1892).

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rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

6. Cotenants
§ 213. Interruption of statute--Purchase or acquisition of undivided interest by adverse occupant

It has been said that where an adverse claimant was in possession of certain specific tracts, but purchased
additional undivided interests, such purchases could be considered as purchases of title to support possession
which would be in effect a recognition of the common title.[l] Moreover, where an occupant ofland under a tax
title becomes entitled to an undivided part of the land by a conveyance of the original title to such part, a pre·
sumption arises that the occupant is a cotenant with other owners of the original title, and that the occupant
ceases to be an adverse holder; however, such presumption may be overcome by evidence that the original pos-
session was continued with the intention to exclude the other owners from any right or interest in the land.[2]
In most cases, however, a purchase or offer to purchase a cotenant's interest does not interrupt the continuity
of the occupant's adverse possession as regards the owners of other undivided interests.[3] Thus, an adverse
claimant of real property does not by taking deeds of an undivided interest become a cotenant with other holders
of undivided interests so as to affect the adverse character of the subsequent possession, regardless of the
claimant's intention to recognize the title from which the grantors derived their interest and of knowledge of the
extent or nature of the claim asserted by them.[4]
[FN1] Viduarri v. Bruni, 154 S.W.2d 498 (Tex. Civ. App. San Antonio 1941), affd in part, rev'd in part
on other grounds, 140 Tex. 138, 166 S.W.2d 81 (1942).
[FN2] Cook v. Clinton, 64 Mich. 309, 31 N.W. 317 (1887).
[FN3] Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256, 125 A.L.R. 817 (Comm'n App. 1939).

Page 443 of 665

[FN4] Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256, 125 A.L.R. 817 (Comm'n App. 1939) (heirs
at law).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRlA. No Claim to Orig. u.S. Gov!. Works. All
rights reserved.
END OF DOCUMENT
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Adverse Possession

6. Cotenants
b. Under Conveyance by Cotenant to Stranger
§ 214. Generally; conveyance of undivided interest

West's Key Number Digest, Joint Tenancy €:=9
A.L.R. Library
1214 § 2.
The mere purchase of the undivided interest of one cotenant, and entry under such conveyance, does not
amount to a disseisin of another cotenant that can ripen into a good title, since the grantee can claim merely to
succeed to the title of the granting cotenant.[l]
Thus, the grantees under a deed conveying only an undivided half interest cannot use the grantor's posses-
sion to establish title to more than the undivided half interest.[2]
A sheriffs deed of the interest of one cotenant, together with actual possession by the grantee, does not con-
stitute an ouster of the cotenant whose interest is not sold, nor can it be made the foundation for a claim of title
by adverse possession as against such cotenant since the purchaser at a sheriffs sale receives only the interest
that the execution debtor has in the property.[3]
[FN I] Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952).
[FN2] Mills v. Roy O. Martin Lumber Co., 129 So. 2d 78 (La. CI. App. 3d Cir. 1961).
[FN3] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958).
Page 445 of 665

rights reserved.
END OF DOCUMENT
Page 446 of 665
Westlaw.

Adverse Possession

6. Cotenants
§ 215. Conveyance of entire interest

West's Key Number Digest, Joint Tenancy €=>9, 13
A.L.R. Library
1214 §§ 2,14.
It is a widely accepted rule that a conveyance by one cotenant to a stranger to the title, by an instrument pur-
porting to pass the entire title in severalty, and not merely such cotenant's individual interest, followed by an
entry into actual, open, and exclusive possession by such stranger under claim of ownership in severalty,
amounts to an ouster of the other cotenants, which, if continued with the necessary requisites for the statutory
period, will ripen into good title by adverse possession.[l]
An ouster of the cotenants of the grantor will ordinarily be presumed when the grantor conveys the entire
property to a stranger who takes possession under the deed claiming sole ownership.[2] In considering this ques-
tion, the principle that one who enters on land is presumed to enter under the title that the deed purports on its
face to convey, as respects both the extent of the land and the nature of the person's interest, is applied.[3]
Therefore, in such case, a sale of the whole tract is in effect such assertion of a claim to the whole as to be in-
compatible with an admission that the other cotenant has any right whatever, and it follows that acts of owner-
ship on the part of such grantee must necessarily be adverse to any other part owner,[4] even in the absence of
actual notice to the other cotenant of the adverse character of the possession.[5]
In some jurisdictions, however, a cotenant's deed of the entire fee is not sufficient to oust the other coten-
ants.[6] Thus a grantee of a cotenant, though the conveyance purports to be in severalty, takes the place of the
grantor, and the entry under such conveyance is not, any more than if it were on its face restricted to the actual
interest of the grantor, presumed to be adverse to the other cotenants.[7]
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Observation:
The rule that a conveyance, by a cotenant in possession, of the entire interest to a stranger amounts to an ouster
of the cotenants out of possession does not apply in the situation in which the interest granted is a remainder in-
terest, subject to a life interest in the property on the part of the grantor.[8]
[FNI] Braue v. Fleck, 23 N.J. I, 127 A.2d I (1956); Jones v. Tate, 68 N.M. 258, 360 P.2d 920 (1961);
Scramlin v. Warner, 69 Wash. 2d 6, 416 P.2d 699 (1966).
[FN3] Patterson v. Miller, 154 Ark. 124,241 S.W. 875 (1922); Tate v. Tate, 15 S.W.2d 159 (Tex. Civ.
App. Eastland 1929), writ granted, (Oct. 16, 1929) and rev'd on other grounds, 27 S.W.2d 137 (Tex.
Comm'n App. 1930).
[FN4] Jackson v. Cole, 146 Ark. 565,226 S.W. 1064 (1921).
[FN5] Jackson v. Cole, 146 Ark. 565,226 S.W. 1064 (1921).
[FN6] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958), and declining to decide the question, but
citing John L. Roper Lumber Co. v. Richmond Cedar Works, 165 N.C. 83, 80 S.E. 982 (1914).
[FN7] Johnson v. McLamb, 247 N.C. 534,101 S.E.2d 311 (1958).
[FN8] Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982).
As to life tenancies and remainders, see §§ 232 to 236.
rights reserved.
END OF DOCUMENT
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Adverse Possession

6. Cotenants
§ 216. Conveyance of entire interest-Quitclaim deed

West's Key Number Digest, Joint Tenancy €:=9, 13
A.L.R. Library
1214 §4.
There is substantial authority to the effect that a quitclaim deed executed by a cotenant, that purports to con-
vey the entire property, is a sufficient basis on which to ground a title by adverse possession in the grantee.[I]
Such quitclaim deed is generally held to constitute color oftitle.[2]
The view has been taken, however, that a quitclaim deed made by one cotenant to a stranger operates only
as would a conveyance of the right, title, and interest of the grantor, and therefore does not amount to an ouster
of other cotenants which, when accompanied by the necessary possession, would start the running of the statute
of limitations against the other cotenants.[3] Under this rule, the rights of cotenants other than those directly
concerned remain unaffected by such transfers, whether voluntarily made or effected through an involuntary re-
linquishment of rights.[4] The fact that a quitclaim deed by one of two cotenants requires the grantee to assume
all taxes against the property does not show an intention of the grantor to convey more than the grantor's interest
in the property so as to establish the quitclaim deed as color oftitle against the interest of the other cotenant.[5]
[FNI] Chapin v. Letcher, 93 N.W.2d 415 (N.D. 1958).
[FN2] § 124.
[FN3] Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952); Hurst v. J.M. Griffin & Sons,
Page 449 of 665

209 Miss. 381, 46 So. 2d 440 (1950), error overruled, 209 Miss. 381, 47 So. 2d 811 (1950).
[FN4] Curtis v. Barber, 131 Iowa 400, 108 N. W. 755 (1906).
[FN5] Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952)
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

6. Cotenants
§ 217. Conveyance of entire interest-Deed on judicial or execution sale

West's Key Number Digest, Joint Tenancy €o=9, 13
A.L.R. Library
1214 §§ 5, 7
A deed issued on a judicial or execution sale has the same effect as is attributed to an ordinary deed, that is,
it amounts to an ouster of all cotenants which, when possession is taken under any such deed, starts the running
of the statute of limitations.[I] So, where a person purchases land at an execution sale, and takes possession
thinking that title has been acquired to the entire tract, although the title of all cotenants has not in fact passed,
the purchaser acquires a title by adverse possession after the lapse of the statutory period.[2] Further, where
property is sold under mortgage foreclosure, the right of cotenants of the mortgagor to assert an interest in the
estate is barred after the statutory period, where the sale purports to convey the entire property and the purchaser
enters with that understanding.[3]
[FN I] Bradshaw v. Holmes, 246 S.W.2d 296 (Tex. Civ. App. Amarillo 195 I), writ refused n.r.e.
[FN2] Call v. Phelps's Adm'r, 20 Ky. L. Rptr. 507,45 SW 1051(Ky. 1898).
[FN3] Dew v. Gamer, 207 Ala. 353, 27 A.L.R. 5 (1922).
rights reserved.
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END OF DOCUMENT
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WeSil~w.

Adverse Possession

6. Cotenants
§ 218. Conveyance of entire interest-Executory contract or bond for title
West's Key Number Digest, Adverse Possession C=>4, 10

West's Key Number Digest, Joint Tenancy C=>9, 13
To constitute an ouster, it is not required that the writing by which one cotenant purports to convey an estate
held jointly with others should at once vest legal title in the purchaser, provided possession is taken, and an
entry under a bond for title is a sufficient ouster of the cotenants of the grantor to set in motion the statute of
limitations against them, although the purchaser does not acquire the legal title until long after entry.[1] It has
also been held that a purchaser may acquire title by adverse possession as against cotenants under an executory
agreement by one cotenant to convey the whole.[2]
Observation:
It has been held, on the other hand, that where one spouse executes a contract to convey property held jointly by
both spouses, the possession of the purchaser under such a contract is not adverse to the spouse not executing
the instrument.[3]
[FNI] Rose v. Ware, 115 Ky. 420, 24 Ky. L. Rptr. 2321, 74 S.W. 188 (1903), reh'g overruled, 25 Ky. L.
Rptr. 947, 76 S.W. 505 (Ky. 1903).
Where one is a purchaser from a cotenant, and, as such, receives a bond or other writing showing a pur-
chase and that the person will be given a conveyance on complying with the terms thereof, and the per-
son enters under such writing claiming the whole, and maintains an open and notorious possession, the
person thereby ousts the cotenants of the seller, and the stalute of limitations begins to run in favor of
such purchaser from the time the person first takes exclusive possession. Lloyd v. Mills, 68 W. Va. 241,
69 S.E. 1094 (1910).
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[FN2] Patterson v. Miller, 154 Ark. 124, 241 S.W. 875 (1922); Clarke v. Dirks, 178 Iowa 335, 160
N.W. 31 (1916).
[FN3] McNeeley v. South Penn Oil Co., 52 W. Va. 616,44 S.E. 508 (1903).
As to effect of family relationship, see §§ 180 et seq.
rights reserved.
END OF DOCUMENT
Page 454 of 665
We'stlaw.

Adverse Possession

6. Cotenants
§ 219. Conveyance of entire interest-Mortgage

West's Key Number Digest, Joint Tenancy ~9, 13
A.L.R. Library
l2l4§6.
A mortgage by a cotenant to a third person, not followed by possession thereunder, does not amount to an
ouster of other cotenants so as to ripen into an adverse title as against such cotenants at the tennination of the
statutory period.[I] Thus, the giving by one cotenant of a mortgage deed to land not in the actual occupancy of
either cotenant, though purporting to cover and convey the entire lot, does not of itself operate as an ouster of
the other cotenant.[2] In order that the giving of such deed should have efficacy toward constituting an ouster, it
should be accompanied and followed by a claim of ownership of which such other cotenant had knowledge, and
by acts of possession not only inconsistent with, but in exclusion of, the other cotenant's rights.[3]
[FNI] King v. Hill, 141 Tex. 294,172 S.W.2d 298 (1943).
[FN2] Scottish-American Mortg. Co. v. Bunckley, 88 Miss. 641,41 So. 502 (1906).
[FN3] Scottish-American Mortg. Co. v. Bunckley, 88 Miss. 641,41 So. 502 (1906).
rights reserved.
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END OF DOCUMENT
Page 456 of 665


Adverse Possession

6. Cotenants
§ 220. Nature and extent of possession

A.L.R. Library
1214 § 8.
To enable one claiming an entire tract of land under a conveyance from one cotenant to establish title
thereto and oust other cotenants, it is essential for the possessor to intend to hold the property adversely and oust
the cotenants of the grantor.[I] It is stated that the entry of the grantee under a conveyance that purports to con-
vey the whole property evinces an intention on the part of the grantee to claim the whole property.[2] A grantee
of a cotenant by a deed purporting to convey a full title who promptly records the deed, takes possession of the
real estate, and thereafter seeks to quiet title as against the grantor's cotenants, is presumed to hold all that the
deed calls for and therefore to hold adversely to the other cotenants.[3] Possession under such adverse claim
does not require actual residence on the land by the grantee, but possession by tenants or by others with permis-
sion of the grantee is sufficient.[4]
A grantee who recognizes an outstanding legal title vested in the cotenants of the grantor cannot acquire
title to the whole tract by adverse possession.[5] This is true even though the deed purports to convey the entire
property,[6] and especially where the conveyance by one cotenant excepts and reserves the interests of the other
cotenants and this reservation is recognized by the grantee.[7] In a number of cases, however, it has been held
that conduct of a grantee of a cotenant acknowledging the interests of the other cotenants was insufficient to pre·
vent ripening in the grantee of title by adverse possession.[8]

Page 457 of 665

[FNl] Price v. Hall, 140 Ind. 314, 39 N.E. 941 (1895).
[FN2] Rose v. Ware, 115 Ky. 420, 24 Ky. L. Rptr. 2321, 74 S.W. 188 (1903), reh'g overruled, 25 Ky. L.
Rptr. 947, 76 S.W. 505 (Ky. 1903).
[FN3] Farmers State Bank of Clay Center v. Lanning, 162 Kan. 95, 174 P.2d 69 (1946).
A grantee under a quitclaim deed from a cotenant who farmed such land and adjoining land as a unit,
leveled the land, rendered it for taxation in his name, included it in financial statements to his banker,
and held out to neighbors that it was his land, had possession sufficiently hostile for purposes of ad-
verse possession. Lummus v. Brackin, 59 N.M. 216,281 P.2d 928 (1955).
[FN4] Whittington v. Cameron, 385 Ill. 99, 52 N.E.2d 134, 150 A.L.R. 551 (1943).
As to occupancy by agent or tenant as constituting possession by adverse claimant, see § 24.
[FN5] Allen v. Allen, 292 Ill. 453, 127 N.E. 85,27 A.L.R. I (1920).
[FN6] Long v. Morrison, 251 Ill. 143,95 N.E. 1075 (1911).
[FN7] Grand Tower Mining, Mfg. & Transp. Co. v. Gill, 111 Ill. 541, 1884 WL 9986 (1884).
[FN8] Weaver v. Blackmon, 212 Ala. 681, 103 So. 889 (1925); Harjo v. Mathis, 1935 OK 135, 170
Okla. 523, 41 P.2d 92 (1935).
rights reserved.
END OF DOCUMENT
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Adverse Possession

6. Cotenants
§ 221. Nature and extent of possession-Ouster of cotenants

West's Key Number Digest, Joint Tenancy oC=9, 13
A.L.R. Library
1214 §§ 9,10.
While it is true that ouster of the other cotenants by the grantee of one of the cotenants must appear in order
to support an adverse claim, this does not necessarily require actual physical ouster, and it is sufficient if the
grantee claims exclusive ownership and, by conduct, denies the right of others to any interest in the property.[ I]
However, in order for an ouster of the cotenants of the grantor to occur, and title to become vested in the grantee
by adverse possession, it is necessary for the grantee to enter into actual possession of the property,[2] either
personally or through another.[3] An ouster of the cotenants of a grantor will ordinarily be presumed where the
grantor conveys the property to a stranger who takes possession under the deed claiming sole ownership.[4]
Thus, where one of several cotenants conveys by an instrument purporting to vest the fee in the grantee, and the
latter enters, asserting open and exclusive ownership in severalty, the cotenants not conveying are deemed to be
ousted, and on the termination of the statutory period the title by adverse possession becomes vested in the
grantee.[5]
Cases:
In order to adversely possess the interests of co-tenants, an adverse possessor must prove ouster; ouster is
unequivocal notice by one co-tenant that he intends to adversely possess the claims of his fellow co-tenants.
Williams v. Estate of Williams ex reI. Fairley, 952 So. 2d 950 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d
563 (Miss. 2007).

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lEND OF SUPPLEMENTI
[FNI] Davis v. Hamesberger, 211 Ga. 625, 87 S.E.2d 841 (1955); Reed v. Bales, 240 Miss. 592, 128
So. 2d 374 (1961).
[FN2] Seawood v. Ozan Lumber Co., 221 Ark. 196,252 S.W.2d 829 (1952).
[FN3] §§ 23, 24.
[FN5] Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956).
rights reserved.
END OF DOCUMENT
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Westlaw

Adverse Possession

6. Cotenants
§ 222. Notice to cotenants of hostile holding

West's Key Number Digest, Joint Tenancy C=9, 13
A.L.R. Library
1214 § 12.
Where a cotenant purports to convey the fee to an entire premises held jointly with others, and the grantee
enters, endeavoring to establish title to the entire premises by adverse possession, it is essential that the coten-
ants of the grantor have notice of the adverse claim of the grantee.[I] Thus, evidence that a cotenant has not par-
ticipated in a deed executed by other cotenants purporting to convey the entire title to the land, and has no notice
of the adverse character of the holding under the deed, bars such grantee trom acquiring title thereto by adverse
possession.[2]
It is not essential, however, that the cotenants should receive actual notice, if by reason of the facts and cir-
cumstances they can be charged with notice that their interests are being jeopardized.[3] All the law seems to re-
quire is that the acts of dominion over the property be of such character as may be reasonably expected to in-
form the cotenants of the fact of possession and the adverse claim of title.[4] Constructive notice is equally ef-
fective even though the cotenants are nonresidents of the state wherein the property is located.[5]
[FNI] Wheeler v. Harris, 232 Ark. 469, 339 S.W.2d 99 (1960); Chapin v. Letcher, 93 N.W.2d 415
(N.D. 1958); Frank v. Johnson, 261 Ala. 642, 75 So. 2d 153 (1954); Hines v. Pointer, 523 S.W.2d 733
(Tex. Civ. App. Fort Worth 1975), writ refused n.r.e., (Oct. 15, 1975).
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[FN2] West v. Evans, 29 Cal. 2d 414, 175 P.2d 219 (1946); Fordson Coal Co. v. Vanover, 291 Ky. 447,
164 S. W.2d 966 (1942).
[FN3] Stull v. Board of Trustees of Dona Ana Bend Colony Community Grant, 61 N.M. 135, 296 P.2d
474 (1956); Chapin v. Letcher, 93 N.W.2d 415 (N.D. 1958).
[FN4] Stull v. Board of Trustees of Dona Ana Bend Colony Community Grant, 61 N.M. 135,296 P.2d
474 (1956).
Where the grantee from a cotenant recorded the conveyance and exercised complete dominion over the
premises, the jury could find both actual and constructive notice to the cotenants of the adverse holding
and disseisin. Beazley v. Beazley, 273 S.W.2d 938 (Tex. Civ. App. Beaumont 1954), writ refused n.r.e.,
(Mar. 30, 1955).
[FN5] Talbott v. Woodford, 48 W. Va. 449, 37 S.E. 580 (1900).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. Govl. Works. All
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

6. Cotenants
§ 223. Notice to cotenants of hostile holding-Effect of recording or failing to record deed
West's Key Number Digest, Adverse Possession <€)::::::>4, 10

A.L.R. Library
1214 §§ 12, 13.
Although there is authority to the contrary,[I] the view is widely taken that the recordation of a deed from a
cotenant to a stranger, purporting to pass title to the entire property, is sufficient notice to the grantor's cotenants
for purposes of establishing title in the grantee by adverse possession,[2] especially if it is followed by open pos-
session by the grantee.[3] Unquestionably, where one holds under the deed of a cotenant conveying a designated
specific portion of a tract held in common, the recorded deed and possession are notice to the other cotenants of
the tract that the grantee is holding the designated portion adversely to them.[4]
The mere fact that the deed conveying the entire interest in the land under which a stranger claims as
grantee of one of several cotenants was not placed on record does not prevent the statute of limitations from run-
ning, if the grantee takes open and exclusive possession.[5]
[FN I] West v. Evans, 29 Cal. 2d 414, 175 P.2d 219 (1946).
The recordation of a cotenant's deed conveying the entire interest in land is not the repUdiation of coten-
ancy as a matter of law, but is merely evidence of repudiation. Gore v. Cunningham, 297 S.W.2d 287
(Tex. Civ. App. Beaumont 1956), writ refused n.r.e.
[FN2] Sams v. Sampson, 255 S.W.2d 626 (Ky. 1953); Lummus v. Brackin, 59 N.M. 216, 281 P.2d 928

Page 463 of 665

(1955).
As to effect of recording as notice, see 66 Am. Jur. 2d, Records and Recording Laws §§ 82 to 135.
[FN3] Parr v. Ratisseau, 236 S.W.2d 503 (Tex. Civ. App. San Antonio 1951), writ refused n.r.e.
[FN4] Parr v. Ratisseau, 236 S.W.2d 503 (Tex. Civ. App. San Antonio 1951), writ refused n.r.e.
[FN5] Eastman, Gardiner & Co. v. Hinton, 86 Miss. 604, 38 So. 779 (1905).
rights reserved.
END OF DOCUMENT
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we'stii:!w.

Adverse Possession

7. Mortgagor and Mortgagee
§ 224. Possession by mortgagor and those claiming under mortgagor

As a general rule, the possession of a mortgagor or an assignee of the mortgagor cannot be adverse to the
rights and estate of the mortgagee[l] until the mortgagor has denied the mortgagee's rights under the mortgage
and claimed an exclusive title[2] so openly and notoriously that the mortgagee must have known of the adverse
claim.[3] So long as the relation of mortgagor and mortgagee is recognized between the parties by the receipt of
payments on account of principal or interest, or in any other way, there can be no adverse possession by the
mortgagor[4] or a grantee of the mortgagor.[5] A mere repudiation of the mortgagee's interest is not enough to
start the statute running.[6]
Ordinarily, where either a mortgagor or a grantee or assignee of the mortgagor claims adversely to the mort-
gagee, at least where the adverse possession does not antedate the execution of the mortgage, the period of ad-
verse possession does not, in the absence of open denial or disaffirmance of the mortgagee's interest, commence
running against the mortgagee until the maturity of the mortgage or foreclosure, since before that time the mort-
gagee has no cause of action to eject the mortgagor or those claiming under the mortgagor, and their possession
is permissive rather than adverse.[7]
Caution:
Even though there has been default in interest payments due under a mortgage, and there is a provision in the
notes for acceleration of payment on such default "at the option of the holder," where there has been no exercise
of this option, limitations do not begin until the maturity ofthe notes.[8]
[FNI] Allemannia Fire Ins. Co. v. York, 16 Tenn. App. 167, 65 S.W.2d 838 (1932); Calvert v. Hanna,

Page 465 of 665

140 S.W.2d 976 (Tex. Civ. App. Amarillo 1940).
As to adverse possession against a mortgagee, see § 168.
As to adverse possession against a purchaser at foreclosure sale, see § 225.
As to the right of a mortgagor to assert adverse title. see 54A Am. JUL 2d. Mortgages §§ 226 to 243.
[FN2] Allemannia Fire Ins. Co. v. York, 16 Tenn. App. 167, 65 S.W.2d 838 (1932); Calvert v. Hanna,
140 S.W.2d 976 (Tex. Civ. App. Amarillo 1940).
[FN3] Comstock v. Finn, 13 Cal. App. 2d 151, 56 P.2d 957 (4th Dis!. 1936); Calvert v. Hanna, 140
s. W.2d 976 (Tex. Civ. App.
Amarillo 1940).
[FN4] Lewis v. Schwenn, 93 Mo. 26, 2 S.W. 391 (1886).
[FN5] Zeller's Lessee v. Eckert, 45 U.S. 289, 4 How. 289, II L. Ed. 979 (1846).
[FN6] Moerbe v. Beckmann, 132 S.W.2d 616 (Tex. Civ. App. Austin 1939), writ dismissed, judgment
correct.
[FN7] Norris v. lie, 152 Ill. 190, 38 N.E. 762 (1894); Grether v. Clark, 75 Iowa 383, 39 N.W. 655 (1888).
[FN8] Moerbe v. Beckmann, 132 S.W.2d 616 (Tex. Civ. App. Austin 1939), writ dismissed, judgment
correct.
rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 225, Possession by mortgagor and those claiming under mortgagor-After foreclosure

West's Key Number Digest, Mortgages C=213, 214
A,L.R, Library
Possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale, 38 A.L.R. 2d

348 §§ 2, 3.
The mere sale of property on the foreclosure of a mortgage does not in itself so affect the possession of the
mortgagor or a successor in interest as to render it adverse to the purchaser or a grantee from the purchaser.[l]
As a general rule, possession by a mortgagor after a foreclosure sale is presumed to be in subordination to the
title of the purchaser and the statute of limitations does not run in favor of the mortgagor.[2] Any claim of ad-
verse possession by the mortgagor or a successor in interest against the purchaser at foreclosure sale, or the lat-
ter's grantee or assignee, is without effect where such possession is found to have been amicable.[3]
On the other hand, an adverse possession by a mortgagor and successors in interest as against purchasers at
the foreclosure sale may be commenced by open and hostile acts constituting an assertion of title, even though
the foreclosure proceedings have not been concluded by confirmation of the sale and execution of the sheritrs
deed.[4] The possession of a mortgagor or a successor in interest is adverse to the foreclosure sale purchaser, or
the latter's successor in interest, if such possession is recognized as hostile.[5] Where a mortgagor remains in the
open, notorious, and exclusive possession of the property for the statutory period after foreclosure, the mort-
gagor's title is not presumed to be subordinate to and in recognition of the rights of the purchaser at the foreclos-
ure sale.[6]
Observation:
Where a mortgagor remains in possession of only a portion of the premises for the statutory period after fore-
closure and the purchaser maintains possession of the balance of the premises, the view is taken that the pre-
sumption of subserviency of the mortgagor's title to that of the purchaser applies to such partial possession by
© 20 II Thomson Reuters, No Claim to Orig. US Gov. Works.

Page 467 of 665

the mortgagor.[7) In such situation, the mortgagor does not have the exclusive possession of the premises neces-
sary to acquire title by adverse possession.[8]
[FNI] Justice v. Graham, 246 S.W.2d 135 (Ky. 1952); Caruso v. Hunt, 69 N.J. Super. 447, 174 A.2d
381 (Ch. Div. 1961).
[FN2] Eason v. Samson Lodge No. 624, A.F. & A.M., 270 Ala. 194, 117 So. 2d 138 (1959).
A former owner who lost title to land through a foreclosure sale did not claim adversely to the record
owners where they had exercised complete dominion over the property, merely allowing the former
owner to remain on the land because of the former owner's extreme age. Justice v. Graham, 246 S.W.2d
135 (Ky. 1952).
[FN3] Bradshaw v. Darby, 201 Ark. 670, 146 S.W.2d 547 (1941); Justice v. Graham, 246 S.W.2d 135
(Ky. 1952).
[FN4) Brewster v. Herron, 1952 OK 440, 267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
[FN5] Brewster v. Herron, 1952 OK 440, 267 P.2d 143, 38 A.L.R.2d 335 (Okla. 1952).
[FN7) Eason v. Samson Lodge No. 624, A.F. & A.M., 270 Ala. 194, 117 So. 2d 138 (I 959).
As to exclusiveness of possession, generally, see §§ 67 et seq.
rights reserved.
END OF DOCUMENT
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Westlaw~

Adverse Possession

§ 226. Possession by mortgagee
West's Key Number Digest, Adverse Possession cC=4, 10

West's Key Number Digest, Mortgages cC=213, 214
A.L.R. Library
Adverse possession: Mortgagee's possession before foreclosure as barring right of redemption, 7 A.L.R. 2d
1131.
As a general rule, the possession of the mortgagee is not considered hostile to the interests of the mortgagor
during the continuance of the relationship of mortgagor and mortgagee.[l] A mortgagee who enters the mort-
gaged property with pennission, either express or implied, of the mortgagor occupies the premises in the charac-
ter of quasi trustee for the mortgagor, and cannot hold adversely until the mortgagee distinctively disavows and
repudiates the mortgage relationship, and until notice thereof is brought home to the mortgagor.[2] The taking of
possession of mortgaged property by the mortgagee will not be regarded as adverse to the mortgagor where the
mortgagee states that the property was unoccupied and possession was taken in order to protect the mortgagee's
investment.[3] Generally, the possession of the mortgaged premises by the mortgagee, under an agreement to
apply the rents and profits to the satisfaction of the mortgage debt, does not become adverse to the mortgagor
until the debt is fully discharged from that source or there has been an express repudiation of the mortgage rela-
tionship. [4] The subsequent holding may be regarded as adverse, however, where the possession is held over
after the debt has been satisfied. [5]
Despite the rule that the mortgage relation is inconsistent with an adverse claim to the property by the mort-
gagee, where the mortgagee has expressly repudiated the rights of the mortgagor, and the repudiation is brought
home to the mortgagor, subsequent possession by the mortgagee will be regarded as adverse.[6] An original
entry by a mortgagee that was under a claim inconsistent with the rights of the mortgagor is a sufficient indica-
tion to the mortgagor that the possession was not in recognition of the right of redemption, so that, if continued
for the requisite period, any right that the mortgagor had in the property would be barred.[7] Furthermore, even
where the mortgagee's entry into possession was permissive or otherwise in recognition of the rights of the mort-
gagor, if the relationship subsequently is repudiated, and the acts in denial of the mortgagor's rights are brought
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to the notice of the mortgagor, the possession of the mortgagee thereafter will be regarded as adverse.[8] Where
a mortgagee in possession has repudiated the mortgage relationship, and indicated an intent to hold adversely,
the mere payment of taxes by the mortgagor will not stop the running of the statute in the mortgagee's favor.[9]
Under the rule that the mortgagee is entitled to possession of the mortgaged premises on default by the
mortgagor, even without bringing proceedings for foreclosure,[IO] possession by the mortgagee may be hostile
to the mortgagor in the sense that it is against the mortgagor's will. However, as a right conferred by the mort-
gage relationship, it cannot be said to be in denial of the mortgage so as to be hostile in the sense of a repudi-
ation of that relationship.[ II] Nevertheless, such rightful possession, if continued for the statutory period
without any acknowledgment of the right of redemption, may serve to bar any right in the mortgagor, even
without acts of positive repudiation of the mortgage.[12] Among the various acts that amount to an acknowledg-
ment of the mortgagor's rights, so that rightful possession of the mortgagee would not bar the equity of redemp-
tion, one of the most frequently mentioned is the act of accounting for rents or profits.[13] The courts have also
said that the receipt of interest or payments on the mortgage debt acts as an acknowledgment effective to bar the
running of limitations against the mortgagor's rights.[14] In some instances, an acknowledgment of the mortgage
relationship by the mortgagee even after possession has been had for the statutory period characterizes all previ-
ous possession as under the mortgage, and to revive the otherwise barred right of redemption.[15] While the acts
of the mortgagee are generally determinative of the question whether the mortgagee's possession will bar the
rights of the mortgagor, in some instances the courts have indicated that the mortgagor's concurrence in the inde-
pendent possession of the mortgagee may also be of some importance in characterizing the possession as
friendly or adverse.[1 6]
Where the grantee under a deed absolute in form, but intended as a mortgage, enters into possession of the
land conveyed, and holds it under circumstances which show possession that is adverse to the grantor, the statute
of limitations, in the absence of any agreement as to when the indebtedness secured by the deed is to be paid, be-
gins to run immediately from the date of the delivery of the deed.[17]
[FNI] Heidelberg v. Duckworth, 206 Miss. 388,40 So. 2d 179 (1949); Ham v. Flowers, 214 S.C. 212,
51 S.E.2d 753, 7 A.L.R.2d 1124 (1949).
[FN2] Ham v. Flowers, 214 S.C. 212, 51 S.E.2d 753, 7 A.L.R.2d 1124 (1949).
[FN3] Ham v. Flowers, 214 S.c. 212, 51 S.E.2d 753, 7 A.L.R.2d 1124 (1949).
[FN4] Tiger v. Sellers, 145 F.2d 920 (C.C.A. 10th Cir. 1944).
[FN5] Blanch v. Collison, 174 Md. 427,199 A. 466 (1938).
Where two improved contiguous lots were quitclaimed by a mortgagors! successors in title to the mort-
gagee in payment of the debt, and after a storm damaged the houses, the mortgagee moved into one of
them, made repairs, paid taxes and insurance, and occupied the lots alternately, the mortgagee acquired
title to both lots by adverse possession. Baldwin Co. v. Mason, 52 So. 2d 668 (Fla. 1951).
[FN6] Knight v. Hilton, 224 S.C. 452, 79 S.E.2d 871 (1954).
Page 470 of 665

[FN7] Winburn v. Witt, 134 Ky. 339,120 S.W. 293 (1909).
[FN8] Mahaffy v. Faris, 144 Iowa 220, 122 N.W. 934 (1909); Becker v. McCrea, 193 N.Y. 423, 86
N.E. 463 (1908).
[FN9] Borden v. Clow, 21 Nev. 275, 30 P. 821 (1892).
[FNI0] 54A Am. Jur. 2d, Mortgages § 168.
[FNll] Munro v. Barton, 98 Me. 250,56 A. 844 (1903).
[FN 12] Charles B. Teasley, Inc., v. Dreyfus, 252 Ala. 41, 39 So. 2d 377 (1949).
[FNI3] Dixon v. Hayes, 171 Ala. 498, 55 So. 164 (1911) (overruled in part on other grounds by, Earn-
est v. Fite, 211 Ala. 363,100 So. 637 (1924)); Sandling v. Kearney, 154 N.C. 596, 70 S.E. 942 (1911).
[FNI4] Woods v. Sanders, 247 Ala. 492, 25 So. 2d 141 (1946).
[FNI5] Stebbins v. Clendenin, 136 Ark. 391, 206 S.W. 681 (1918).
[FNI6] Reynolds v. White, 94 Ky. 156, 14 Ky. L. Rptr. 825,21 S.W. 754 (1893).
[FNI7] Borden v. Clow, 21 Nev. 275, 30 P. 821 (1892).
rights reserved.
END OF DOCUMENT
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Westiaw.

Adverse Possession

§ 227. Possession by mortgagee-After foreclosure

Within the meaning of a statute that gives the right of redemption unless the mortgagee has maintained an
adverse possession for twenty years, a mortgagee who, with the mortgagor's consent, takes possession of the
property after a judgment of foreclosure, without sale, does not hold adversely.[I] The fact that the grantee of
the purchaser at an invalid foreclosure sale may, in equity, be deemed to be a mortgagee in possession, does not
make the grantee such in fact, so that such possession is not adverse to the mortgagor.[2] However, a mortgagee
who takes possession under invalid foreclosure proceedings after a default in payment may acquire title by ad-
verse possession for the statutory period.[3]
[FNI] Becker v. McCrea, 193 N.Y. 423, 86 N.E. 463 (1908).
[FN2] Brynjolfson v. Dagner, 15 N.D. 332,109 N.W. 320 (1906).
[FN3] Satterfield v. Peterson, 173 Neb. 618,114 N.W.2d 376 (1962).
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

8. Trustee and Beneficiary
§ 228. Possession by trustee
West's Key Number Digest, Adverse Possession 08;=4, 10

West's Key Number Digest, Trusts 08;=138
A.L.R. Library
What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54
A.L.R. 2d 13 § 38.
As a general rule, the possession of a trustee under an express trust is not adverse to that of the beneficiary.[
I] As long as the relation of trustee and beneficiary exists, the trustee, as fiduciary, may not assert an interest or
title antagonistic to the beneficiary.[2] Until the trust is openly repudiated, the beneficiary may rely on the integ-
rity and faithfulness of the trustee without forfeiting rights.[3] Indeed, the trustee's possession of trust property
is the possession of the beneficiary, whether the trust is express or implied.[4] That is, a trustee cannot set up a
title adverse to the beneficiary so long as the trust is acknowledged.[5]
Likewise, a constructive trustee of real property may not claim property by adverse possession without
clearly making the claim of ownership known to the beneficiary.[6]
[FNI] Giovani v. Rescorla, 69 Ariz. 20, 207 P.2d 1124 (1949); Boehnke v. Roenfanz, 246 Iowa 240, 67
N.W.2d 585, 54 A.L.R.2d I (1954).
As to the running of the statute of limitations against trusts, generally, see 76 Am. Jur. 2d, Trusts §§
712 to 718.
[FN3] Homer v. Wullenweber, 89 Ohio App. 255,45 Ohio Op. 481, 101 N.E.2d 229 (1st Dis!. Hamilton
Page 473 of 665

County 1951).
[FN4] Homer v. Wullenweber, 89 Ohio App. 255, 45 Ohio Op. 481, 101 N.E.2d 229 (1st Dist. Hamilton
County 1951).
[FN5] Homer v. Wullenweber, 89 Ohio App. 255, 45 Ohio Op. 481, 101 N.E.2d 229 (1st Dist. Hamilton
County 1951).
[FN6] Waxler v. Dalsted, 529 N.W.2d 176 (N.D. 1995).
A constructive trustee under a trust obligation to reconvey property upon a tender of a stipulated
amount was precluded from claiming the land by adverse possession. Warren v. Whitehall Income Fund
86,170 Ariz. 241, 823 P.2d 689 (Ct. App. Div. 21991), review withdrawn, (Jan. 21,1992).
rights reserved.
END OF DOCUMENT
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Page 474 of665
Westlaw,

Adverse Possession

§ 229. Possession by trustee---When possession becomes hostile

West's Key Number Digest, Trusts C=138
A.L.R. Library
What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54
A.L.R. 2d 13 §§ 2 et seq., 38, 40.
Generally, when a trustee repudiates the trust, and openly and notoriously claims an exclusive title, the
trustee's possession becomes hostile to the beneficiary[ I] from the time of a known disavowal of the trust.[2]
There must be a positive and continued disclaimer of title, and an assertion of adverse right brought home to the
beneficiary, before the statute of limitations will operate.[3] The mere failure of a trustee to account, without
more, is not such an entire repudiation of the trust to start the statute running.[4] The payment of taxes by or
through the trustee, or taking title in the name of the trustee, does not meet the requirement that the holding must
be open, hostile and adverse to the right of the beneficiary to start the statute running.[5] On the other hand,
where land was conveyed to church trustees in trust for use of the minister, and subsequently the church became
incorporated and leased the land and used the rents for general church purposes, assuming the trust continued
after the church became incorporated and that title became vested in it as trustee, the leasing of the land and the
use of the rentals for purposes at variance with those named in the trust instrument was tantamount to a repudi-
ation of the trust, and constituted a basis for an adverse possession ripening into title after lapse of the statutory
period.[6] A statement by a husband to his wife that she had no interest in his property, in which she claimed a
resulting trust on the ground of having contributed to the purchase price, constituted a repudiation of any trust.[7 ]
Where a trustee has repudiated obligations as a trustee, which need not be in specific words but may consist
of conduct inconsistent with the existence of the trust, and holds adversely, a beneficiary with knowledge of the
repudiation can no longer rely on the trustee's continued performance of duty, and the beneficiary is then in the
position similar to that of any other party who has an equitable claim against an adversary, and may become
barred by laches by failure to pursue a remedy with reasonable diligence.[8] If a trustee does an act that purports
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to be a termination of the trust, it gives currency to the statute from the time of such act; or in other words, the
trustee thenceforth holds adversely.[9]
Title in the trustee becomes complete when the period has elapsed which the statute prescribes.[IO]
[FNI] Satariano v. Galletto, 66 Cal. App. 2d 813,153 P.2d 201 (1st Dis!. 1944).
As to accrual of cause of action against trustee on behalf of beneficiary, see 76 Am. Jur. 2d, Trusts §§
715,718.
[FN2] Boehnke v. Roenfanz, 246 Iowa 240, 67 N.W.2d 585, 54 A.L.R.2d I (1954); Presbyterian
Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
As to effect of disability, see §§ 171 et seq.
[FN3] Dewey v. Dewey, 163 Neb. 296, 79 N.W.2d 578 (1956); Homer v. Wullenweber, 89 Ohio App.
255,45 Ohio Op. 481,101 N.E.2d 229 (1st Dis!. Hamilton County 1951).
Where a trustee openly informs the beneficiaries that the trustee has acquired their interests in the estate
by tax deed, followed by a request from them for quitclaim deeds, there is a repudiation of the trust and
an assertion of hostile possession by the trustee, and such acts by the trustee could not fail to convey to
the beneficiaries the hostile character of the possession then being asserted. Garcia v. Sanchez, 64 N.M.
114,325 P.2d 289 (1958).
[FN4] Combs v. Haddock, 190 Cal. App. 2d 151, 11 Cal. Rptr. 865 (2d Dis!. 1961).
[FN5] Whatley v. Wood, 148 Colo. 349, 366 P.2d 570 (1961).
[FN6] Presbyterian Church ofJames Island v. Pendarvis, 227 S.c. 50, 86 S.E.2d 740 (1955).
[FN7] Cassas v. Cassas, 73 Wyo. 147,276 P.2d 456, 69 A.L.R.2d 187 (1954).
[FNIO] Presbyterian Church of James Island v. Pendarvis, 227 S.c. 50, 86 S.E.2d 740 (1955).
The adverse possession by the trustees of trust property for more than 20 years bars recovery by the
heirs of the creator of the trust on the ground that the trust was void because it was against the rule
against perpetuities. American Colonization Soc. v. Soulsby, 129 Md. 605, 99 A. 944 (1917).
rights reserved.
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END OF DOCUMENT
Page 477 of 665
Westlaw,

Adverse Possession

§ 230. Possession by beneficiary

West's Key Number Digest, Trusts C=139.1
As between trustee and beneficiary, the possession of the beneficiary is the possession of the trustee, and
cannot ordinarily be adverse.[I] If the holder of a legal title, subject to a resulting trust, permits the beneficiary
to occupy and enjoy the land as owner, the beneficiary can derive no advantage from lapse oftime.[2]
[FNI] Presbyterian Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
[FN2] Miller v. Baker, 166 Pa. 414, 31 A. 121 (1895).
rights reserved.
END OF DOCUMENT
Page 478 of 665
Westlaw,

Adverse Possession

§ 231. Possession by third person under conveyance or execution sale
West's Key Number Digest, Adverse Possession <£::=4, 10
A possession must be regarded as adverse to both the trustee and the beneficiary, where the trustee sells the
trust estate to a purchaser for value, with warranty, without any intimation in the conveyance of the existence of
the subsisting trust, and the purchaser enters and occupies the estate and does no act that in any manner recog-
nizes the existence of the trust, provided, of course, that there is no fraud or concealment.[I] Furthermore, the
possession of property by a purchaser under an invalid conveyance by the trustee, without objection on the part
of the trustee, and claimed openly and exclusively for a sufficient period of time to give title by adverse posses-
sion, cannot be attacked by either the trustee or the beneficiary.[2] A trustee is not estopped from bringing an ac-
tion to recover the property because of the fact that the trustee was a party to the conveyance, and therefore,
since a right of action remains in the trustee, both the trustee and the beneficiary are barred by failure of the
trustee to act within the proper time.[3]
A purchaser in possession under a conveyance by the beneficiary acquires, after adverse possession for the
requisite period oftime, a good title as against both the trustee and the beneficiary.[4]
[FNI] Merriam v. Hassam, 96 Mass. 516,14 Allen 516,1867 WL 5522 (1867).
As to adverse possession against trustees and beneficiaries, generaBy, see § 167.
[FN2] Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906).
[FN3] Meeks v. Olpherts, 100 U.S. 564,25 L. Ed. 735 (1879).
[FN4] Thompson v. Carmichael, 122 Pa. 478, 15 A. 867 (1888).
Page 479 of 665

rights reserved.
END OF DOCUMENT
Page 480 of 665
Westlaw.

Adverse Possession

9. Life Tenant, Remainderman and Reversioner
§ 232. Generally

West's Key Number Digest, Life Estates €o=8
A.L.R. Library
What acts, claims, circumstances, instruments, color of title, judgment, or !'hing of record will ground ad-
verse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R. 2d 299 § 1.
It is a general rule that a life tenant cannot possess adversely to a remainderman,[l] although the contrary
result has been reached under certain circumstances.[2] Since the life tenant is entitled to possession and the re-
mainderman or reversioner is not, no adverse possession by the former against the latter is possible until the lat-
ter's interest becomes a present interest, and it is immaterial that the life tenant claims a larger interest under col-
or of title or informs the remainderman or reversioner that the life tenant claims an estate in fee simple or does
both.[3] The statute of limitations never runs against a remainderman or reversioner during the existence of the
life estate, for the reason that no cause or compel1ing right of action is in the remainderman or reversioner dur-
ing the life estate.[4]
Observation:
That prior to the termination of the life estate the remainderman or reversioner can sue under the local law to
quiet title, remove clouds, or determine adverse claims is not ordinarily significant on !'he question whether the
life tenant's possession is adverse. While in some jurisdictions since the remainderman can bring an action to
have title quieted as against an adverse possessor before the remainder interest becomes possessory, the period
of adverse possession begins to run as soon as the right to have the title quieted arises the view in most jurisdic-
tions is that the right of action to have the title quieted does not start the statute running; one reason for !'his lat-
ter view is that if the remainderman is compelled to bring a quiet title action before the remainder interest be-
comes possessory, on penalty of losing title to the adverse possessor, it means that the possessory action, such as
ejectment or trespass, may never be available.[5]

Page 481 of 665

Caution:
Once the statutory period for adverse possession is activated, the subsequent creation of a life estate and re-
mainder neither negates nor suspends the running of the period.[6]
The presumption is that the possession of a life tenant, or one holding under or through the life tenant, is
lawful, and not adverse to remaindermen.[7] The rule has been applied with respect to life tenants in right of
dower[8] and in right of curtesy. [9]
The rule that a life tenant under an instrument cannot hold adversely to persons named remaindermen in that
instrument does not apply where the remaindennen claim the entire fee and immediate right of possession under
an entirely different and conflicting instrument in which they are not remaindermen and to which the life tenant
is a complete stranger.[ to] The fact that claimants are vested with a life estate in property conveyed under a dif-
ferent chain of title does not prevent them from acquiring title by prescription to neighboring property.[ I I] The
period of adverse possession by remaindermans can begin running against the interests of third parties prior to
the date the outstanding life estate on property is removed, and a life tenant's possession may be hostile as to
third parties and can be tacked on to the remainderman's interest.[12]
An intermediate remainder will not be affected by the acquisition, by the ultimate remainderman, of the life
estate under an adverse possession claimed against the life tenant, and this is especially true where it is admitted
that the intermediate remainder is unaffected.[J3]
The remaindermen of a life estate to property conveyed in a probate decree of 1882, who opposed an owner-
ship and partition proceeding brought by another remainderman, did not gain title to the property by adverse
possession, where the predecessors possessed the property as life tenants and did not act in a manner consistent
with an adverse possession claim, and the period over which they could adversely possess as a matter of law was
less than the time required for adverse possession.[14]
[FNI] Eldridge v. Loftis, 723 So. 2d 562 (Ala. 1998).
An individual's residency at a premises of which ownership was in dispute was legally insufficient to
support a claim of adverse possession, where the individual's occupancy was pursuant to a life estate
rather than an estate in fee, and the record contained no evidence of hostile possession, in that the indi-
vidual's occupancy was entirely consistent with her claimed life tenancy and as such did not contlict
with the rights or call for the objection of the record owner, who was the individual's daughter. Berman
v. Golden, 13 I A.D.2d 416, 515 N.Y.S.2d 859 (2d Dep't 1987).
[FN2] § 233.
[FN3] Haynes v. Strange, 232 Ark. 374, 337 S.W.2d 661 (1960).
[FN4] Cotney v. Eason, 269 Ala. 354, 113 So. 2d 512 (1959).
[FN5] McDonald v. Burke, 288 S.W.2d 363 (Ky. 1955).
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[FN6] Miller v. Leaird, 307 S.C. 56, 413 S.E.2d 841 (1992).
[FN7] Criswell v. Criswell, 101 Neb. 349,163 N.W. 302 (1917).
[FN8] § 241.
[FN9] Dice v. Reese, 342 Pa. 379, 21 A.2d 89 (1941).
The possession of a tenant by the curtesy who acquired a tax title based on failure to pay taxes which it
was the person's duty to pay is not adverse to the remaindermen. Perszyk v. Milwaukee Elec. Railway
& Light Co., 215 Wis. 233, 254 N.W. 753, 93 A.L.R. 395 (1934).
[FNIO] West v. Moore, 193 Tenn. 431, 246 S.W.2d 74 (1952).
[FN I I] Young v. Faulkner, 2 17 Ga. App. 32 1,457 S.E.2d 584 (J 995).
[FN I 2] Robertson v. Dombroski, 678 So. 2d 637 (Miss. 1996).
[FN J3] McCreary v. Coggeshall, 74 S.C. 42, 53 S.E. 978 (J 906).
[FNI4] Ransom v. Bebemitz, 782 A.2d 1155 (VI. 2001).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslR1A. No Claim to Orig. U.S. GOVI. Works. All
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

9. Life Tenant, Remaindennan and Reversioner
§ 233. When possession by life tenant becomes hostile

West's Key Number Digest, Life Estates €:=8
A.L.R. Library
What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground ad-
verse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R. 2d 299 §§ I to 4.
It is widely held that a life tenant, under certain circumstances, can hold the premises adversely to the re-
mainderman or reversioner.[I) Thus, the holding over of a tenant for the life of another may become adverse to
remainderman of the person for whose lifetime the estate was granted.[2) While there is strong support for the
position that a life tenant cannot by acts and words alone establish an adverse holding,[3) there is considerable
authority to the effect that, by renouncing the life estate and declaring ownership of the premises in fee, and
bringing notice of those facts horne to the remaindennan or reversioner, a life tenant may establish an adverse
possession.[4)
Observation:
To enable a life tenant to establish a possession adverse to the remainderman or reversioner, it is generally held
that the life estate must first be extinguished, as by a renunciation, repudiation, disavowal, disclaimer, or aban-
donment of that estate and all right of possession referable to it.[5)
It has also been said that to establish an adverse possession in a life tenant an unequivocal ouster of the re-
mainderman must be shown,[6) and the life tenant's conduct must demonstrate a clear purpose to infringe the re-
maindennan's rights.[7] Moreover, to constitute adverse possession, notice to the remainderman or reversioner
of the hostile holding by the life tenant is essential.[8) Adverse possession may be acquired by the life tenant
where the knowledge is clearly brought home to the remainderman that the former claims the entire estate in the
claimant's own right, hostile to any claim or interest in the land by the remaindennan or others claiming under
the remainderman.[9) Express notice is not generally required, with anything unmistakably amounting to notice

Page 484 of 665

being sufficient.[IO] However, some cases seem to take the view that actual knowledge by the remainderman or
reversioner of the life tenant's hostile claim of title is essential.[II]
Caution:
Mere knowledge by a remainderman of the obvious fact of possession by the life tenant does not amount to
proof ofknowledge that the life tenant was claiming adversely.[12]
The life tenant's making of substantial improvements to the knowledge of the remainderman or reversioner
may be sufficient to apprise the latter of a hostile claim of title,[ 13] but, in most circumstances, the making of
improvements by a life tenant is of little or no weight on the question whether possession became legally ad-
verse to the remainderman or reversioner.[14] The acts of a life tenant in executing deeds or mortgages of the
premises, purportedly in fee, or oil and gas leases or mineral deeds thereof, or devising the same generally, are
ordinarily without effect to establish possession as adverse to the remainderman or reversioner.[15] The selling
of timber from the premises by a life tenant is not sufficient to establish an adverse holding.[16]
[FNI] Cessna v. Carroll, 178 Kan. 650,290 P.2d 803, 58 A.L.R.2d 291 (1955); White v. Inman, 212
Miss. 237, 54 So. 2d 375, 30 A.L.R.2d 380 (1951).
[FN2] Cessna v. Carroll, 178 Kan. 650,290 P.2d 803, 58 A.L.R.2d 291 (1955).
[FN3] Crawford v. Meis, 123 Iowa 610, 99 N.W. 186 (1904) (overruled in part on other grounds by,
Koch v. Kiron State Bank of Kiron, 230 Iowa 206, 297 N.W. 450, 140 A.L.R. 273 (1941)).
[FN4] Howth v. Farrar, 94 F.2d 654 (C.C.A. 5th Cir. 1938).
In order for a life tenant, whose interests arose out of a homestead right, to acquire title by adverse pos-
session against the remainderman, the life tenant must have first abandoned her homestead right and
must have brought this fact home to the remainderman in order to set the statute of limitations into ac-
tion. Henderson v. Ellis, 10 Ark. App. 276, 665 S.W.2d 289 (1984).
[FN5] Pooler v. Hyne, 213 F. 154 (C.C.A. 7th Cir. 1914); Jefferson v. Bangs, 197 N.Y. 35, 90 N.E. 109
(1909).
[FN6] White v. Inman, 212 Miss. 237, 54 So. 2d 375, 30 A.L.R.2d 380 (1951).
[FN7] Copenhaver v. Copenhaver, 1957 OK 215, 317 P.2d 756 (Okla. 1957).
[FN8] Howth v. Farrar, 94 F.2d 654 (C.C.A. 5th Cir. 1938); Murphy v. Boling, 273 Ky. 827, 117
S.W.2d 962,117 A.L.R. 1373 (1938).
[FN9] Myers v. Grant, 212 Ga. 677, 95 S.E.2d 9 (1956); Cessna v. Carroll, 178 Kan. 650, 290 P.2d 803,
58 A.L.R.2d 291 (1955).
[FNIO] Howth v. Farrar, 94 F.2d 654 (C.C.A. 5th Cir. 1938); Mills v. Pennington, 213 Ark. 43, 209
S. W.2d 281 (1948).
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[FNII] Maurer v. Reifschneider, 89 Neb. 673, 132 N.W. 197 (1911); Jefferson v. Bangs, 197 N.Y. 35,
90 N.E. 109 (1909).
[FNI2] Dunlavy v. Lowrie, 372111. 622, 25 N.E.2d 67 (1939).
[FN 13] Howth v. Farrar, 94 F.2d 654 (C.C.A. 5th Cir. 1938).
[FNI4] Content v. Dalton, 122 N.J. Eq. 425,194 A. 286,112 A.L.R. 1031 (Ct. Err. & App. 1937).
[FN 15] Content v. Dalton, 122 N.J. Eq. 425, 194 A. 286, 112 A.L.R. 1031 (Ct. Err. & App. 1937).
[FNI6] Lake v. Ford, 244 Ky. 803, 52 S.W.2d 724 (1932).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRIA. No Claim to Orig. u.s. GoV!. Works. All
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

9. Life Tenant, Remaindennan and Reversioner
§ 234. When possession by life tenant becomes hostile-Under color of title

West's Key Number Digest, Life Estates C=8
A.L.R. Library
verse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R. 2d 299 §§ 5, 6, 8 to 13.
Where a life tenant acquires an independent title, or an instrument amounting to color of title, subsequent
possession under such title or instrument may be adverse to the remaindennan.[l] If a judgment, order, or decree
purporting to vest title in the life tenant is not wholly void, though in part void or ineffective, the possession
taken or maintained under such judgment, order, or decree by the life tenant is ordinarily adverse to the remain-
dennan or reversioner.[2] Ordinarily, where a life tenant purchases the property at a void administrator's, execut-
or's, or commissioner's sale, possession thereunder will be adverse to the remaindennan or reversioner.[3]
A life tenant's possession following expiration of the time for redemption from a proceeding in attempted
and supposedly valid foreclosure of a mortgage held by the life tenant on the premises would seem in most cases
to be, in intent at least, patently adverse to the remainderman or reversioner.[4]
On the other hand, a life tenant's acquisition of a purported conveyance of the fee from a stranger does not
in itself render possession adverse to the remainderman or reversioner.[5] Nor does a life tenant's acquisition of
a tax title to the property, or assertion of a claim of ownership in fee founded on a tax title acquired by another,
ground an adverse possession in the life tenant.[6] The same is true of a wholly void judgment, order, or decree
purporting to vest the fee in the life tenant.[7]
Observation:
A life tenant's purchase of the premises at a sale in foreclosure of a mortgage or deed of trust thereon will gener-
ally be deemed to have been made for the benefit of remaindermen or reversioners contributing their portion of
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the purchase money, and therefore such purchase does not readily supply a basis for adverse possession by the
life tenant.[8]
[FN I] Calvary Baptist Church of Baker v. Saxton, 117 Or. 125,242 P. 616 (1925).
The statute of limitations runs in favor of a person to whom a life estate is left by a will naming the per-
son as executor, and against those named as remaindermen and their successors in interest, where the
probate court decree in final settlement of the estate names the person as the sole heir and devisee of the
"entire estate" and that person and the person's successors in interest hold the open, notorious, exclus-
ive, and hostile possession of the realty for the statutory period. Cessna v. Carroll, 178 Kan. 650, 290
P.2d 803, 58 A.L.R.2d 291 (1955).
[FN2] Cessna v. Carroll, 178 Kan. 650, 290 P.2d 803, 58 A.L.R.2d 291 (1955).
A decedent acquired title by adverse possession against a remainderman where the decedent brought
suit to remove any cloud from the decedent's alleged fee simple title, and operated the premises as fee
owner for longer than the statutory period by collecting rents, paying all taxes, executing oil and gas
lease, and finally disposing of entire fee by devise, such constituting an open, notorious, and adverse
possession in good faith under a color of fee simple title of record. Ellis v. Bartlett, 21 Ill. 2d 332, 172
N.E.2d 768 (1961).
[FN3] Balkham v. Woodstock Iron Co., 43 F. 648 (C.C.N.D. Ala. 1890), affd, 154 U.S. 177, 14 S. Ct.
1010,38 L. Ed. 953 (1894); Woodstock Iron Co. v. Fullenwider, 87 Ala. 584,6 So. 197 (1889).
[FN4] Mitchell v. Vest, 157 Iowa 336, 136 N.W. 1054 (1912).
[FN5] Hinton v. Farmer, 148 Ala. 211, 42 So. 563 (1906).
[FN6] Perszyk v. Milwaukee Elec. Railway & Light Co., 215 Wis. 233, 254 N.W. 753, 93 A.L.R. 395
(1934).
[FN7] Cessna v. Carroll, 178 Kan. 650, 290 P.2d 803, 58 A.L.R.2d 291 (1955).
[FN8] Edwards v. Puckett, 196 Tenn. 560, 268 S.W.2d 582 (1954).
rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 235. Grantee of life tenant

West's Key Number Digest, Life Estates €:=8
A.L.R. Library
verse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R. 2d 299 § I.
It is the general rule that prior to the death of a tenant for life, a grantee of the life tenant cannot hold ad-
versely to the remainderman or reversioner since the latter do not have a right of entry and possession during the
existence of the life estate.[I] Ordinarily, the task of establishing that the possession of a life tenant's grantee
was adverse to the remainderman or reversioner is not aided by the fact that the grantee anticipated getting the
fee, or by the fact that the grantee was without knowledge or notice that the grantor was a mere life tenant and
was unaware of the claim of the remaindennan or reversioner.[2] Generally, that a conveyance by a life tenant
purports to convey the fee does not affect the question as to whether possession by the life tenant's grantee may
be adverse to the remainderman during the period of the life estate.[3] For the life tenant to make a deed pur-
porting to convey the fee is no such repudiation or forfeiture of a life estate as would start the running of the
statute of limitations against the remainderman.[4] Possession adverse to, and effective to bar the claim of, re-
maindermen is not established by the delivery and recording of deeds of bargain and sale, with full warranty, in-
cluding a declaration of seisin or right to convey, given by the life tenants, followed by an open and notorious
occupancy.[5]
Adverse possession begins to run in favor of a grantee of a life tenant when a right of entry and a right of
possession exist in the remainderman and not when the remainderman has a right to bring an action to quiet title
as to the future interest.[6] On the other hand, where, by statute, a remainderman or reversioner has the right,
prior to the death of the life tenant, to bring an action to quiet title or settle such party's interest in the property,
the failure of the remaindennan or reversioner to bring such action with respect to property in possession of a
grantee of the life tenant under a deed purporting to cover the fee may cause the statute of limitations to run
against the remainderman or reversioner prior to the termination of the life estate.[?] The same result follows

Page 489 of 665

where the life tenant's deed may be construed as giving color of title to the grantee under statutes permitting the
acquisition of title by possession under color of title for a prescribed period.[8] The general rule that the owner
of real estate by acts or conduct may be estopped to assert title thereto applies to owners of the estate in re-
mainder, and the owner of such estate, by consenting to a sale of the fee by the life tenant, or by inducing such
sale, is estopped as against a purchaser acting in good faith and without knowledge of the remaindennan's title,
to assert title in remainder.[9] This is especially true where the remainderman has received a part of the purchase
money.[IO]
[FNI] Meadows v. Hardcastle, 219 Ark. 406, 242 S.W.2d 710 (1951); Ontelaunee Orchards v. Rother-
mel, 139 Pa. Super. 44, II A.2d 543 (1940).
[FN2] Content v. Dalton, 122 N.J. Eq. 425, 194 A. 286, 112 A.L.R. 1031 (Ct. Err. & App. 1937).
[FN3] Allen v. Wiseman, 359 Mo. 1026,224 S.W.2d 1010 (1949); Content v. Dalton, 122 N.J. Eq. 425,
194 A. 286,112 A.L.R. 1031 (Ct. Err. & App. 1937).
[FN4] McDonald v. Burke, 288 S.W.2d 363 (Ky. 1955).
[FN6] Maxwell v. Hamel, 138 Neb. 49, 292 N.W. 38 (1940).
As to possession of life tenant becoming adverse, see §§ 233, 234.
[FN7] Murray v. Quigley, 119 Iowa 6, 92 N.W. 869 (1902).
[FN8] Lewis v. Barnhart, 145 U.S. 56, 12 S. Ct. 772, 36 L. Ed. 621 (1892).
The deed of a life tenant with an expectancy in the fee which purports, and is understood, to convey the
land in fee may give color of title. Wilson v. Linder, 21 Idaho 576, 123 P. 487 (1912).
[FN9] Knutson v. Vidders, 126 Iowa 511, 102 N.W. 433 (1905); Mcintosh v. Ropp, 222 Pa. 606, 72 A.
230 (1909).
[FNIO] Knutson v. Vidders, 126 Iowa 511, 102 N.W. 433 (1905); McIntosh v. Ropp, 222 Pa. 606, 72
A. 230 (1909).
rights reserved.
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Westlaw

Adverse Possession

C. Effect of particular Relationships between Parties
§ 236. Effect of termination of particular estate; holding over

West's Key Number Digest, Life Estates C=8
As a general rule, the statute begins to run against a remainderrnan only when the remainderman's right of
possession commences,[l] through termination of prior estate,[2] such as on the death of the life tenant.[3]
Where a life tenant purports to convey a fee simple title,[4] a holding over by the grantee after death of the life
tenant would, without more, be adverse to the remainderman in the absence of circumstances showing to the
contrary.[5] However, where a grantee or representative of a life tenant simply holds over after the life tenant's
death without asserting a claim to anything more than a life estate, possession is subordinate to and in privity
with the title of remaindermen and does not become hostile after the termination of the life estate until some
positive act of disclaimer is brought home to the remaindermen.[6]
One who was in adverse possession of the life estate, and who remains in possession after death of the ten-
ant for life, is thereafter in possession adversely to the remaindennan.[7] So, if a remainderman or reversioner
permits the grantee or representative of a life tenant to retain possession of the premises under claim of title after
the termination of the life estate, such possession is adverse to the remaindennan or reversioner.[8]
[FN1] Ransom v. Bebemitz, 782 A.2d 1155 (VI. 2001)
[FN2] Young v. Faulkner, 217 Ga. App. 321, 457 S.E.2d 584 (1995).
[FN3] Beasley v. Beasley, 404 Ill. 225, 88 N.E.2d 435 (1949).
[FN4] § 235.
[FN5] Ontelaunee Orchards v. Rothermel, 139 Pa. Super. 44, 11 A.2d 543 (1940).

Page 491 of 665

As to when life tenant's possession becomes hostile to remaindermen, see § 233.
[FN7] Rutledge v. Rutledge, 204 Va. 522, 132 S.E.2d 469 (1963).
rights reserved.
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Westlaw

Adverse Possession

10. Representative of Decedent's Estate, Surviving Spouse, and Heirs
§ 237. Generally; possession by executor or administrator
West's Key Number Digest, Adverse Possession o€:=4, 10
A.L.R. Library
A.L.R. 2d 1097 §§ 2 to 10.
The possession of a decedent's land by the personal representative is not normally adverse to the deceased
owner's heirs or devisees.[l] The possession of land by an executor or administrator in such representative capa-
city can never become adverse to the decedent's heirs or devisees, because the representative does not hold the
lands personally, but as the lands of the estate, and, consequently, in clear recognition of the title of such heirs or
devisees. [2]
Under certain conditions, however, the possession of the personal representative of an estate may be ad-
verse.[3] Thus, an administrator or executor may under some circumstances hold adversely to the heirs or de-
visees.[4] If an executor or administrator repudiates the representative capacity, at least in so far as the land in
dispute is concerned, and claims an independent, exclusive, and hosti1e right, openly and notoriously, the pos-
session may become adverse to the heirs or devisees of the estate,[5] provided the heirs or devisees have notice
or knowledge of the repudiation and hostile claim.[6] The inquiry in all such cases is not whether the executor or
administrator has a right by virtue of office to the possession, but whether in point of fact the executor or admin-
istrator assumed such right and claimed to hold under i1.[7] The validity of the claim is immaterial, as its hostil-
ity to the heirs is the important and controlling issue.[8] In some cases, where a personal representative bought
estate property at a sale initiated as personal representative,[9] and in other cases where it appeared that the per-
sonal representative sold the property to one who later conveyed it back to him or her as the representative,[10]
the possession was held adverse so as to give the personal representative title as against the deceased owner's
heirs or devisees.
Observation:

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An administrator or executor clearly may hold adversely where the adverse possession commenced before ap-
pointment as representative of the estate. [I I]
[FNI] Cook v. Craft. 1952 OK 289, 207 Okla. 125, 248 P.2d 236 (1952); Howell v. Wilson, 323
S. W.2d 6 I (Tex. Civ. App. EI Paso 1959), writ refused n.r.e.
[FN2] Cook v. Craft, 1952 OK 289, 207 Okla. 125,248 P.2d 236 (1952).
[FN3] Anderson v. Shelton, 92 N.W.2d 166, 73 A.L.R.2d 1087 (N.D. 1958); Cook v. Craft, 1952 OK
289,207 Okla. 125,248 P.2d 236 (1952).
[FN5] Garcia v. Sanchez, 64 N.M. 114, 325 P.2d 289 (1958); Anderson v. Shelton, 92 N.W.2d 166, 73
A.L.R.2d 1087 (N.D. 1958).
The acts of an administrator in seeking and obtaining an order setting aside the estate to the administrat-
or, and seeking and obtaining a decree granting the administrator title, and in dealing with the property
as the administrator's own, gave notice of the hostility of the administrator's claims, as against the estate
of the deceased husband and all persons claiming an interest therein, and was sufficient to permit the
administrator to acquire title by adverse possession. Satariano v. Galletto, 66 Cal. App. 2d 813, 153
P.2d201 (1st Dist. 1944).
[FN8] Anderson v. Shelton, 92 N.W.2d 166, 73 A.L.R.2d 1087 (N.D. 1958).
In an action by the wife of an intestate decedent against a son to quiet title to land which had belonged
solely to the decedent, but which the plaintiff and decedent had jointly operated as a ranch, the plaintiff,
as administratrix, had a fiduciary duty to advise the son of the value of the land and of the son's interest
therein, and in the absence of such a disclosure, whether advertent or inadvertent, the plaintiff could not
claim a period in which the wife was in possession of the decedent's land as administratrix of the de-
cedent's estate for the purpose of acquiring title by adverse possession. Venator v. Quier, 285 Or. 19,
589 P.2d 73 I (1979).
[FN9] Reid v. Reid, 206 N.C. I, 173 S.E. 10 (1934).
[FNIO] Oxford v. Estes, 229 Ala. 606,158 So. 534 (1934).
[FNII] Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
rights reserved.
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Adverse Possession

§ 238. Possession by heirs or devisees
The possession of an heir or devisee will not be deemed adverse to either an executor or administrator
where the heir or devisee goes into possession c1aiming under the decedent as heir or devisee, or in other words,
where the heir or devisee takes or maintains possession as such heir or devisee, the possession is not adverse.[l]
Where, after the commencement of administration of the decedent's estate, an heir or devisee makes entry on
land and sets up a hostile claim, the heir or devisee cannot acquire title by adverse possession against the execut-
or or administrator.[2] Further, the possession of heirs is not adverse to a purchaser at an administrator's sale for
the payment of debts, since the heirs take subject to the payment of debts of the deceden!.[3]
In some situations, however, an heir or devisee may hold possession of the decedent's lands adversely to the
executor or administrator,[4] or to the decedent's creditors,[5] or to the heirs or devisees of a grantee of the de-
cedent.[6]
[FNI] Mawson v. Gray, 78 Utah 542, 6 P.2d 157 (1931).
[FN2] Johns v. Scobie, 12 Cal. 2d 618, 86 P.2d 820,121 A.L.R. 1404 (1939).
[FN3] Rogers v. Johnson, 125 Mo. 202, 28 S.W. 635 (1894).
[FN4] Mawson v. Gray, 78 Utah 542, 6 P.2d 157 (1931).
[FN5] Ricard v. Williams, 20 U.S. 59, 5 L. Ed. 398 (1822).
[FN6] Hutchinson v. Little Four Oil & Gas Co., 275 Pa. 380, 119 A. 534 (1923).
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rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 239. Possession as between coheirs
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 7 et seq, 66
A.L.R. 2d 1097 § II.
Where an entry is made as heir and without claim of an exclusive title, it will be deemed an entry not ad·
verse to the rights of other heirs.[I]
The possession of one coheir may become adverse to other coheirs, however, by acts or dec1arations re-
pelling the presumption that the possession is in the character as coheir and clearly showing a claim of exclusive
right; however, the hostile intent of the possession must be manifested by mOTe unequivocal acts than are neces-
sary where there is no privity between the parties.[2] Thus, one heir, notwithstanding entry as an heir, may after-
ward, by ouster of coheirs, acquire an exclusive possession on which the statute will run against the coheirs.[3]
Observation:
The rule that a cotenant cannot hold adversely until notification of other cotenants does not apply to a coheir
whose adverse possession commenced before the decedent's death, as no further act of ouster is necessary, and
the heir may continue the adverse occupancy against the other heirs.[4] Thus, an adverse possession commenced
before the decedent's death is not interrupted by the claimant's inheritance of a part interest in the property, and
the claimant still remains in adverse possession of the other part interest as against coheirs.[5]
[FNI] Ricard v. Williams, 20 U.S. 59, 5 L. Ed. 398 (1822).

Page 498 of 665

As to adverse possession between cotenants, generally, see §§ 201 to 213.
[FN2J Replogle v. Replogle, 350 S.W.2d 735 (Mo. 1961).
[FN3J Ricard v. Williams, 20 U.S. 59, 5 L. Ed. 398 (1822).
[FN4J Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
As to notice to cotenants of hostile holding, see §§ 206, 207.
[FN5J Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
rights reserved.
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Adverse Possession

§ 240. Possession of grantees as against heirs
West's Key Number Digest, Adverse Possession 08;=4, 10
The owner of an estate created by a decedent or by operation of law, and taking effect on the decedent's
death, does not hold adversely to the heirs.[I] Possession of real estate under an instrument that expressly ex-
cepts rights of heirs at law of a deceased person is not adverse to such heirs.[2] A possession cannot be adverse
to the heirs where it is held, by virtue of marital rights, by a surviving spouse,[3] by a surviving spouse jointly
with a new spouse,[4] or by anyone holding under them.[5]
[FNI] Lee v. Harris, 188 Tenn. 373, 219 S.W.2d 892 (1949).
[FN2] Fowler v. Manheimer, 70 A.D. 56, 75 N.Y.S. 17 (1st Dep't 1902), affd, 178 N.Y. 581, 70 N.E.
1098 (1904).
[FN3] § 241.
[FN4] Tennison v. Carroll, 219 Ark. 658, 243 S.W.2d 944 (1951).
[FN5] Wilson v. Frost, 186 Mo. 311, 85 S.W. 375 (1905).
rights reserved.
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Westlaw.

Adverse Possession

§ 241. Possession of surviving spouse as against heirs
A.L.R. Library
Adverse possession between cotenants. 82 A.L.R. 2d 5 §§ 3, 9, 56.
It is a general rule that the possession by a surviving spouse of the deceased spouse's property by virtue of
marital rights is not adverse to the heirs of the deceased spouse.[l] Moreover. during the time a widow is right-
fully in possession of her husband's lands under her dower and quarantine rights, her possession is not adverse to
the rights of the heirs, even though she claims entire ownership.[2] Thus, unless an adverse holding of an open
and notorious character is established by proof, it is generally held that the widow's possession of the house,
etc., under her statutory right of quarantine, until dower is assigned, is not of itself adverse to an heir or those
claiming under the heir or to the purchasers of the fee.[3] The widow's right to possession under her quarantine
prevents the running of the statute of limitations against heirs until dower is assigned, or until (but not after) the
right to have dower assigned is barred by the statute of limitations.[4] A widow whose dower has never been as-
signed to her, by merely remaining in possession of property that belonged to her deceased husband, cannot ac-
quire title by adverse possession as against the heirs.[5]
Before a widow's possession can become adverse as against the heirs of her husband, it is necessary for her
to repudiate the title of her husband and to disavow any claim as his widow, and notice of disavowal of title as
widow must be brought home to the heirs.[6] It is only where there is a divestiture of the dower right, as by a re-
lease to the heir or other act amounting to a relinquishment of dower, that the widow can claim possession that
would be adverse and prove ownership according to the usual rules of adverse possession.[7] Even if a widow
disavows homestead rights and claims as a tenant in common, her possession and occupancy are presumed to be
permissive and not hostile to cotenants unless the fact of hostility affirmatively appears.[8] After the period of a
widow's rightful possession of her deceased husband's property expires, her possession under a claim of owner-
ship is adverse to the heirs.[9]
A widow in possession, with no muniment of title, may acquire a title by adverse possession against the

Page 501 of 665

heirs of her husband, where occupancy is open, notorious, visible, and by acts unequivocally conveying to the
heirs notice that she is holding in defiance of their title.[IO] For possession by a widow to be adverse to the chil-
dren, there must be some open assertion of a hostile claim of title, other than mere possession, and notice of
such claim must be brought home to the children.[II]
The heirs at law of a deceased wife cannot question her husband's title to property held by her in her own
right prior to her death, and which she, by a conveyance in which the husband joined, transferred to a purchaser,
who, after the death of the wife, conveyed the same to the husband, where the husband has held the property, re-
ceived the rents and profits, and sold and conveyed different parcels of it during a period of time longer than that
limited by statute for bringing ejectment.[l2]
[FNI] Lee v. Harris, 188 Tenn. 373, 219 S.W.2d 892 (1949).
Title by adverse possession is not established by occupancy by a claimant and the claimanfs wife for a
period of years of a house placed by the claimant on a lot belonging to the wife's children, although the
claimant continued to live there, and rented it, after the wife's death. Meyers v. Canul!, 242 Iowa 692,
46 N.W.2d 72, 24 A.L.R.2d I (1951).
The statute of limitations does not begin to run against an heir at law to a property held by one who oc-
cupies it as a tenant by the curtesy or as grantee of the tenant by the curtesy, until the death of the tenant
by the curtesy. Dice v. Reese, 342 Pa. 379, 21 A.2d 89 (1941).
[FN2] White v. Williams, 260 Ala. 182, 69 So. 2d 847 (1954); Haynes v. Strange, 232 Ark. 374, 337
S. W.2d 661 (1960).
[FN3] Moore v. Hofftnan, 327 Mo. 852, 39 S.W.2d 339, 75 A.L.R. 135 (1931).
[FN4] Moore v. Hofftnan, 327 Mo. 852, 39 S.W.2d 339, 75 A.L.R. 135 (1931).
[FN5] Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931); Lee v. Harris, 188 Tenn.
373,219 S.W.2d 892 (1949).
A widow while in possession of the lands of which her husband died seised and possessed, and in which
land she is entitled to dower, but which dower was never set apart to her, cannot perfect title to the
premises in herself by claiming adverse possession under color of title where it appears she mortgaged
the premises, intentionally defaulted, and purchased the property at her own mortgagee's sale in order
that she might obtain a deed on which she could rely as color of title. Farabow v. Perry, 223 N.C. 21, 25
S.E.2d 173 (1943).
[FN6] Haynes v. Strange, 232 Ark. 374, 337 S.W.2d 661 (1960).
[FN7] White v. Williams, 260 Ala. 182,69 So. 2d 847 (1954).
[FN8] Tennison v. Carroll, 219 Ark. 658, 243 S.W.2d 944 (1951).
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[FN9] Niederhelman v. Niederhelman, 336 S. W.2d 670 (Mo. 1960).
[FNIO] Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931).
[FNII] Mullan v. Bank ofpasco County, 101 Fla. 1097, 133 So. 323 (1931).
Widow with a dower interest, as cotenant of property, will not be presumed to have ousted deceased's
heirs, as cotenants, by sole possession of the property for 20 years where the widow in possession has
recognized the cotenancy or the rights of deceased's heirs. Hi-Fort, Inc. v. Burnette, 42 N.C. App. 428,
257 S.E.2d 85 (1979).
[FNI2] Mercer's Lessee v. Selden, 42 U.S. 37, I How. 37, II L. Ed. 38 (1843).
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AMJUR ADVERSE IV A REF Page I
3 Am. Jur. 2d Adverse Possession IV A Refs.

Adverse Possession
IV. Operation and Effect

A. Overview; Title or Right Acquired
Research References
West's Key Number Digest, Adverse Possession €:=104 to 109
A.L.R. Library
rights reserved.
AMJUR ADVERSE IV A REF
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Westlaw.

Adverse Possession

I. Prior to Expiration of Statutory Period
§ 242. Generally; between record owner and adverse claimant
West's Key Number Digest, Adverse Possession <8;:=104, \06(1) to 106(5)
The mere fact that one is in possession of real property under an adverse claim or color of title does not pre-
vent the legal owner from proceeding, by ejectment or otherwise, for the purpose of repossessing the land at any
time prior to the expiration of the statutory period.[I] In some states, statutes may expressly authorize the recov-
ery for use and occupation against one whose possession from the beginning was adverse and hostile to the true
owner.[2]
Reminder:
The effect of adverse possession is subject to change by statute at any time before the lapse of the statutory peri-
od.[3]
[FNI] Jasperson v. Scharnikow, 150 F. 571 (C.C.A. 9th CiT. 1907).
As to conversion, see 18 Am. JUT. 2d, Conversion.
As to replevin, see 66 Am. Jur. 2d, Replevin.
[FN2] Sheppard v. Coeur d'Alene Lumber Co., 62 Wash. 12, 112 P. 932 (1911).
[FN3] Preston v. Smith, 41 Tenn. App. 222, 293 S. W.2d 51 (1955).
rights reserved.
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Adverse Possession

§ 243. With respect to strangers or subsequent intruders
West's Key Number Digest, Adverse Possession cC=105, 106(4)
The possession of one holding in adverse possession is good as against strangers. The adverse claimant is
not an outlaw, and has a right to remain peaceably in possession until expelled by the owner or someone who
can show a superior right of possession.[I] The courts will protect the adverse claimant against all the world ex-
cept the true owner.[2]
[FNI] Hallmark v. Baca, 61 N.M. 420, 301 P.2d 527 (1956).
[FN2] Spring Val. Estates, Inc. v. Cunningham, 181 Colo. 435, 510 P.2d 336 (1973); Howard v.
Mitchell, 268 Ky. 429, 105 S.W.2d 128 (1936).
rights reserved.
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Adverse Possession

§ 244. Right to challenge tax deed
West's Key Number Digest, Adverse Possession oC=106(1)
Where an adverse claimant is in possession of land under a claim of ownership prior to the accrual of a lien
for state and county taxes and the foreclosure of such lien by a tax sale, and the claimant has such possession as
to enable him to perfect title by adverse possession, the claimant's rights are undoubtedly affected by the making
of the tax deed in pursuance of the sale, and the claimant therefore has the right to challenge the sufficiency of
the foreclosure proceedings and the tax deed under which the purchasers at the tax sale obtained their title;[I] if
the issuance of the tax deed, however, is detennined to be valid, any title acquired by adverse possession prior
thereto effectively vanishes.[2] Thus, one claiming title by adverse possession may question a tax deed where
the adverse possession antedated the lien for the taxes.[3]
[FNI] Shaw v. Armstrong, 361 Mo. 648, 235 S.W.2d 851 (1951) (overruled in part on other grounds
by, Journey v. Miler, 363 Mo. 163,250 S.W.2d 164 (1952)).
As to tax deeds, generally, see 72 Am. Jur. 2d, State and Local Taxation §§ 883 to 970.
[FN2] Linville v. Russell, 168 Colo. 459, 452 P.2d 18 (1969)
[FN3] King v. Fasching, 234 S.W.2d 549 (Mo. 1950).
As to aggressive use of title acquired by adverse possession, see § 251.
© 2010 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RlA. No Claim to Orig. U.S. Gov!. Works. All
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Adverse Possession

§ 245. Right to redeem from tax sale
Generally a person in possession of property sold for taxes, claiming adversely to the rights of the original
owner or the world in general, is, within statutory definitions, an "owner" of land or a "person interested" in the
land and is entitled to redeem from a tax sale;[l] and the circumstance that the adverse occupancy did not extend
for the full period necessary to give good title by adverse possession is immaterial insofar as the result reached
is concemed.[2]
[FN1] Parsons v. Prudential Real Estate Co., 86 Neb. 271, 125 N.W. 521 (1910); Turner v. Sanchez, 50
N.M. 15, 168 P.2d 96,164 A.L.R. 1280 (1946).
[FN2] Turner v. Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280 (1946).
As to redemption rights in tax sales, generally, see 72 Am. Jur. 2d, State and Local Taxation §§ 898 to 940.
rights reserved.
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Adverse Possession

2. After Expiration of Statutory Period
a. Nature of Title Generally
§ 246. Grant oftitle upon expiration of statutory period
West's Key Number Digest, Adverse Possession 0(:::::>104 to 107
Generally title is acquired by an adverse possession of the land for the prescribed period of time,[ I] or upon
the expiration of the period there is created a conclusive presumption of title.[2] An adverse possession of land
for the period of limitation operates of itself as a grant of all adverse title and interests to the occupants.[3] Thus,
a statute of limitations relating to adverse possession does more than bar an action by a record owner who has
remained quiescent for the statutory period; the operation of this statute vests title in the adverse possessor,[4]
such that upon the expiration of the limitation period, the adverse claimant becomes possessed of a vested right
or title to the property.[5] No judicial action is necessary to effectuate transfer.[6] However, the level of use de-
tennines whether the claimant has acquired fee title of the estate via adverse possession or merely a prescriptive
easement; the fee simple title, rather than a mere easement, is acquired if all the required elements of adverse
possession are met.[7]
Reminder:
Statutes of limitation are not unconstitutional as impairing the obligation of contracts or as denying a person
property without due process of law, even though they extinguish the right of the party having a true title and
vest a perfect title in the adverse holder.[8]
[FN I] Guaranty Title & Trust Corp. v. U. S., 264 U.S. 200, 44 S. Ct. 252, 68 L. Ed. 636 (1924);
McKinney v. Hindman, 86 Or. 545, 169 P. 93, I A.L.R. 1476 (1917) (possession under grant from
state); Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 136 A.L.R. 770 (1941).
[FN2] Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962).
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[FN5] Guaranty Title & Trust Corp. v. U. S., 264 U.S. 200, 44 S. Ct. 252, 68 L. Ed. 636 (1924); Mon-
toya v. Gonzales, 232 U.S. 375, 34 S. Ct. 413, 58 L. Ed. 645 (1914); Colquhoun v. Webber, 684 A.2d
405 (Me. 1996); Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339, 75 A.L.R. 135 (1931); Williams v.
Bailey, 1954 OK 19, 268 P.2d 868 (Okla. 1954); Brewster v. Herron, 1952 OK 440, 267 P.2d 143, 38
A.L.R.2d 335 (Okla. 1952); McKinney v. Hindman, 86 Or. 545, 169 P. 93, I A.L.R. 1476 (1917);
lordan v. Chambers, 226 Pa. 573, 75 A. 956 (1910); Marky Inv., Inc. v. Amezeder, 15 Wis. 2d 74, 112
N.W.2d211 (1961).
[FN6] Colquhoun v. Webber, 684 A.2d 405 (Me. 1996).
[FN7] Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996).
[FN8] Short v. Texaco, Inc., 273 Ind. 518, 406 N.E.2d 625 (1980), judgment affd, 454 U.S. 516, 102 S.
Ct. 781, 70 L. Ed. 2d 738 (1982).
© 20 I 0 Thomson Reuters. 33-34B © 20 I 0 Thomson ReuterslRIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
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Adverse Possession

§ 247. Extent of title
West's Key Number Digest, Adverse Possession 08:=106(1) to 106(5)
A title acquired by adverse possession upon the expiration of the limitation period becomes the true title and
extinguishes all other inconsistent titles, except that of the govemment.[l] The title that the adverse claimant
possesses is such that the title of the original owner is extinguished[2] or destroyed.[3] Thus such right and title
is good not only as against strangers, but also as against the fanner owner.[4] However, the adverse possessor
acquiring property held in fee simple does not acquire more than could have been acquired in a conveyance from
the original owner,[5] considering that the ownership acquired through adverse possession includes those things
that would pass with a transfer by deed, including easements appurtenant to possessed land.[6]
Generally, unless a contract for the sale of land calls for a record title, title by adverse possession is suffi-
cient to constitute marketable title which a purchaser must accept.[7]
[FNI] Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525, 69 S.W. 572 (1902); Hearn v. Leverette, 213
Ga. 286, 99 S.E.2d 147 (1957); Miser v. O'Shea, 37 Or. 231, 62 P. 491 (1900).
[FN2] Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Moore v. Hoffman, 327 Mo. 852,39
S.W.2d 339, 75 A.L.R. 135 (1931); Marky Inv., Inc. v. Amezeder, 15 Wis. 2d 74,112 N.W.2d 211 (1961).
[FN3] Scottish Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911); Stolfa v. Gaines, 1929 OK
487, 140 Okla. 292, 283 P. 563 (1929).
[FN4] Russell v. Mcintosh, 179 Ky. 677, 201 S.W. 33 (1918); Saxon v. Saxon, 242 Miss. 491, 136 So.
2d 210 (1962); City of South Greenfield v. Cagle, 591 S.W.2d 156 (Mo. Ct. App. S.D. 1979); River-
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wood Commercial Properties, Inc. v. Cole, 138 N.H. 333, 639 A.2d 714 (1994); State Bank & Trust of
Kenmare v. Brekke, 1999 ND 212, 602 N.W.2d 681 (N.D. 1999) (eliminates title and right of ejectment
in title owner); Williams v. Bailey, 1954 OK 19,268 P.2d 868 (Okla. 1954).
[FN6] Greenan v. Solomon, 252 Va. 50, 472 S.E.2d 54 (1996).
[FN7] Messer-Johnson Realty Co. v. Security Savings & Loan Co., 208 Ala. 541, 94 So. 734 (1922);
Smith v. Biddle, 171 Ark. 644, 286 S.W. 801 (1926); Willingham Loan & Trust Co. v. Moore, 163 Ga.
679, 136 S.E. 795 (1927); Christopher v. West, 345 III. App. 515, 104 N.E.2d 309 (3d Dis!. 1952);
Summers v. Hively, 78 W. Va. 53, 88 S.E. 608 (19\6).
rights reserved.
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Adverse Possession

§ 248. Character of title acq uired
West's Key Number Digest. Adverse Possession €:= 104, 106(5)
Title acquired by adverse possession is a corporeal right.[ I] Title so acquired is a new and independent title
by operation of law and is not in privity in any way with any former title.[2] Generally. the result of the statute
of limitations is so absolute that an adverse possession operates thereunder as a transfer of the legal tille,[3] and
thus it is as effective as a formal conveyance[4] by deed or patent from the govemment[5] or by deed from the
original owner.[6]
A title acquired by adverse possession is in every respect as good as a title by deeds running back to the
govemment.[7] In fact, it is an actual,[8] absolute,[9] complete,[IO] and perfect legal title[ll] in fee simple,[12]
carrying all of the remedies attached thereto. [13]
Title acquired by adverse possession cannot be divested by acts other than those required where title is ac-
quired by deed.[14] Thus after the running of the statute, the adverse possessor has an indefeasible title which
can only be divested by conveyance of the land to another,[15] or by a subsequent ouster for the statutory limita-
tion period.[16] The title acquired by adverse possession will pass by deed.[17]
A title acquired through adverse possession penn its of no condition or limitation sounding in pennission or
consent.[18] Thus, a condition of reverter may not be imposed on a title acquired by adverse possession.[19]
[FNI] Downing v. Bird, 100 So. 2d 57 (Fla. 1958).
[FN2] Pearson v. Hasty, 1943 OK 179, 192 Okla. 425,137 P.2d 545,147 A.L.R. 232 (1943).
[FN3] Calvert v. Murphy, 73 W. Va. 731, 81 S.E. 403 (1914).
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[FN4] Counce v. Yount-Lee Oil Co., 87 F.2d 572 (C.C.A. 5th Cir. 1937); Jasperson v. Schamikow, 150
F. 571 (C.C.A. 9th Cir. 1907); Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); Strong v. Bald-
win, 154 Cal. 150, 97 P. 178 (1908); Morris v. McCaskill Inv. Co., 92 Fla. 1045, 118 So. 490 (1926);
Te Selle v. Storey, 133 Mont. 1,319 P.2d 218 (1957); Stolfa v. Gaines, 1929 OK 487, 140 Okla. 292,
283 P. 563 (1929).
[FN5] Sanderson v. McManus, 252 S.W.2d 351 (Mo. 1952); King v. Fasching, 234 S.W.2d 549 (Mo.
1950); Gibbs v. Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931); Thomely v. Andrews,
40 Wash. 580, 82 P. 899 (1905).
[FN6] Niederhelman v. Niederhelman, 336 S.W.2d 670 (Mo. 1960); Thomely v. Andrews, 40 Wash.
580, 82 P. 899 (1905).
[FN8] Braue v. Fleck, 23 N.J. 1, 127 A.2d 1 (1956).
[FN9] Vidmer v. Lloyd, 193 Ala. 386, 69 So. 480 (1915).
[FNIO] Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 134 A.L.R. 458 (1940); Itawamba County v.
Sheffield, 195 Miss. 359,13 So. 2d 649 (1943).
[FNII] Wallace v. Ayres, 228 Ark. 1007, 311 S.W.2d 758 (1958); Lowe v. Cox, 210 Ark. 169, 194
S.W.2d 892 (1946); Creel v. Hammans, 234 Iowa 532, 13 N.W.2d 305 (1944); Scottish Am. Mortg. Co.
v. Butler, 99 Miss. 56, 54 So. 666 (1911).
[FNI2] Montoya v. Gonzales, 232 U.S. 375, 34 S. Ct. 413, 58 L. Ed. 645 (1914); Wallace v. Ayres, 228
Ark. 1007, 311 S.W.2d 758 (1958); Meyers v. Canutt, 242 Iowa 692, 46 N.W.2d 72, 24 A.L.R.2d I
(1951); Creel v. Hammans, 234 Iowa 532, 13 N.W.2d 305 (1944); Niederhelman v. Niederhelman, 336
S.W.2d 670 (Mo. 1960); Preston v. Smith, 41 Tenn. App. 222, 293 S.W.2d 51 (1955); Thomely v. An-
drews, 40 Wash. 580, 82 P. 899 (1905).
[FNI3] Toltec Ranch Co. v. Cook, 191 U.S. 532, 24 S. ct. 166,48 L. Ed. 291 (1903).
[FNI4] EI Cerrito, Inc. v. Ryndak, 60 Wash. 2d 847, 376 P.2d 528 (1962).
[FNI5] Crowden v. Grantland, 510 So. 2d 238 (Ala. 1987); Barry v. Thomas, 273 Ala. 527, 142 So. 2d
918 (1962); Davis v. Haines, 349 Ill. 622, 182 N.E. 718 (1932); Lurvey v. Burrell, 317 S.W.2d 458
(Mo. 1958).
[FNI6] Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); Sparks v. Douglas & Sparks Realty Co.,
19 Ariz. 123, 166 P. 285 (1917); Strong v. Baldwin, 154 Cal. 150,97 P. 178 (1908); Oahu Railway &
Land Co. v. Kaili, 22 Haw. 673, 1915 WL 1423 (1915); Davis v. Haines, 349 Ill. 622, 182 N.E. 718
(1932); Lurvey v. Burrell, 317 S.W.2d 458 (Mo. 1958); Laurin v. Wyroski, 20 Wis. 2d 254, 121
N.W.2d 764 (1963).
[FN17] Keith v. Kennard, 222 Mass. 398, llO N.E. 1030 (1916).
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[FN 18] Harris v. Consolidated School Dis!. No.8 C, Dunklin County, 328 S. W.2d 646 (Mo. 1959).
[FNI9] Harris v. Consolidated School Dis!. No.8 C, Dunklin County, 328 S.W.2d 646 (Mo. 1959).
© 2010 Thomson Reuters. 33-348 © 2010 Thomson ReuterslRIA. No Claim to Orig. u.S. Govt. Works. All
rights reserved.
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Adverse Possession

§ 249. Character of title acquired-Acts after title acquired
West's Key Numher Digest
After title has been acquired by adverse possession, it is not necessary to continue holding the land ad-
versely; thus, the failure to continue to hold the land adversely will not defeat the title already acquired, nor will
it reinvest the title in another.[I] Once title has been acquired by adverse possession a subsequent break in the
occupancy or possession has no effect on the title so acquired unless the title is defeated by one of the following
methods:
• a grant from the state or the proprietor
• tracing the title back to a common source existing between the parties
• a presumption of grant which is the occupancy of the subject propetty continually, hostilely, openly, ad-
versely, notoriously and exclusively for a period of20 years
• adverse possession for the adverse period of years with the necessary elements of adverse possession[2]
Thus, once title is vested in adverse possessors, they do not have to continue adversely possessing the prop-
etty in order to retain title to it.[3]
The purchase or attempted purchase of an outstanding title by one in adverse possession, after the expiration
of the statutory period, is not sufficient to break the continuity of possession or divest it of its adverse character,
although the occupant may believe that he is thereby acquiring the true title.[4] Thus the validity of a title per-
fected by adverse possession is not impaired by a subsequent offer to pay the record title claimants for a
quitclaim deed of their interests, made for the purpose of avoiding Iitigation.[5] An offer of settlement does not
amount to a disclaimer of the right to title.[6] Similarly, grantees who take title from a grantor who had obtained
the propetty by adverse possession cannot lose that title by attempting to secure an agreement with another to
establish a boundary line in order to settle a dispute and avoid possible Iitigation.[7]
The title acquired by adverse possession cannot be lost by a mere abandonment, or by a cessation of occu-
pancy,[8] or by an expression of willingness to vacate the land,[9] or by the acknowledgment or recognition of
title in another,[IO] or by subsequent legislation,[ll] or by survey.[12] Thus the fact that one who has acquired
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title to land by adverse possession recognizes the justice of another's claim thereto will not divest that person of
title acquired by adverse possession, and it will not estop such person from asserting title,[13] since where the
title has become vested in an adverse claimant, a mere recognition of some other title does not revest the title ac-
quired by adverse possession.[14]
[FNI] Klaar v. Lemperis, 303 S.W.2d 55 (Mo. 1957).
[FN2] Johnson v. Pritchard, 302 S.C. 437, 395 S.E.2d 191 (Ct. App. 1990).
[FN3] Crowden v. Grantland, 510 So. 2d 238 (Ala. 1987).
[FN4] Hallowell v. Borchers, 150 Neb. 322, 34 N. W.2d 404 (1948).
[FN5] Able v. Lawson, 523 So. 2d 395 (Ala. 1988); Brewer v. Brewer, 238 N.C. 607, 78 S.E.2d 719, 40
A.L.R.2d 763 (1953).
[FN6] Schultz v. Dew, 1997 SD 72, 564 N.W.2d 320 (S.D. 1997).
[FN7] Crowden v. Grantland, 510 So. 2d 238 (Ala. 1987).
[FN8] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Creel v. Hammans,
234 Iowa 532, 13 N.W.2d 305 (1944); Fredericksen v. Henke, 167 Minn. 356,209 N.W. 257, 46 A.L.R.
785 (1926).
[FN9] Major v. Meyers, III S.W.2d 1184 (Tex. Civ. App. EI Paso 1937).
[FNIO] Strong v. Baldwin, 154 Cal. 150,97 P. 178 (1908); Oahu Railway & Land Co. v. Kaili, 22 Haw.
673, 1915 WL 1423 (1915); Cassidy v. Lenahan, 294 III. 503, 128 N.E. 544 (1920); Maloney v. Bed-
ford, 290 Ky. 647,162 S.W.2d 198 (1942); Martin v. Martin, 76 Neb. 335,107 N.W. 580 (1906).
[FNII] Oahu Railway & Land Co. v. Kaili, 22 Haw. 673, 1915 WL 1423 (1915); Thibault v. Flynn, 133
Mont. 461, 325 P.2d 914 (1958).
[FNI2] Krause v. Nolte, 217 III. 298, 75 N.E. 362 (1905) (survey only establishes the line, not title);
Peterson v. Hollis, 90 Kan. 655,136 P. 258 (1913).
[FNI3] Tull v. Ashcraft, 231 Ark. 928, 333 S.W.2d490 (1960).
[FNI4] Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1959).
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Adverse Possession

§ 250. Relation back; liability to record owner
West's Key Number Digest, Adverse Possession <C=106(3), 106(5)
It is a general theory underlying adverse possession that the title, once matured, relates back to the begin-
ning of the adverse holding;[ I] and under such theory, it is presumed that the origin of the title was rightful, not
wrongful, that the possession which has matured it was in support, not in derogation, of the rightful title, and
that the claimant, who by a possession pursuant to law has matured a title, has been the owner of the title from
the beginning.[2] After the title has matured the former owner of the land cannot call the adverse possession
owner to account for any actions done to the land in the course of the possession that has ripened such party's
right and title to it.[3]
[FNI] Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
[FN2] Counce v. Yount-Lee Oil Co., 87 F.2d 572 (C.C.A. 5th Cir. 1937); Suplee v. Eckert, 38 Del. Ch.
359, 152 A.2d 289 (1959); Oahu Railway & Land Co. v. Kaili, 22 Haw. 673, 1915 WL 1423 (1915);
Davis v. Haines, 349 Ill. 622, 182 N.E. 718 (1932); Lagonda Nat. Bank of Springfield v. Robnett, 77
Ohio L. Abs. 1,77 Ohio L. Abs. 3,147 N.E.2d 637 (Ct. App. 2d Dist. Clark County 1957).
[FN3] Counce v. Yount-Lee Oil Co., 87 F.2d 572 (C.C.A. 5th Cir. 1937).
rights reserved.
END OF DOCUMENT
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Adverse Possession

A. Overview; Tille or Right Acquired
b. Particular Aspects Affecting Title
§ 251. Aggressive use of title acquired adversely
The statute on adverse possession confers a title which can be enforced by suit and is not merely a defensive
statute.[ I] However, one claiming ownership of land by adverse possession must rely on the strength of the title
by adverse possession and not on any possible weakness in the interest ortille of the adversary.[2]
The general rule is that title gained by adverse possession may be used by the adverse possessor either as a
weapon or as a shield, as necessities may demand.[3] Thus adverse possession and the operation of the statute of
limitations will create a title which can be used offensively or defensively,[4] and one seeking to acquire title
under a statute of limitations is not required to institute suit against anyone. but is not prohibited from doing 50.[ 5]
One claiming land adversely is entitled, as against those who would contest his right, to have the questions
involved determined in an appropriate action,[6] in any court or proceeding, in accordance with the laws that
were in force during the time possession was ripening into title.[7]
[FNI] Worthen v. Rushing, 228 Ark. 445, 307 S.W.2d 890 (1957).
[FN2] Maas v. Platte Val. Public Power and Irr. Dis!., 167 Neb. 124, 91 N.W.2d 409 (1958); Ohm v.
Clear Creek Drainage Dis!., 153 Neb. 428,45 N.W.2d 117 (1950).
As to adverse claimant's right to challenge tax deed, see § 244.
[FN3] Jasperson v. Scharnikow, 150 F. 571 (C.C.A. 9th Cir. 1907); Hart v. Sternberg, 205 Ark. 929,
171 S.W.2d 475 (1943); Lomas v. Webster, 109 Colo. 107, 122 P.2d 248 (1942); Kurz v. Blume, 407
Ill. 383, 95 N.E.2d 338, 25 A.L.R.2d 1258 (1950); Fagan v. Bach, 253 Ill. 588, 97 N.E. 1087 (1912);
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Scottish Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911); McGowan v. Carlton, 1930 OK 227,
143 Okla. 106,288 P. 338 (1930); Stolfa v. Gaines, 1929 OK 487,140 Okla. 292, 283 P. 563 (1929).
[FN4] Freemon v. Funk, 85 Kan. 473,117 P. 1024 (1911).
As to defensive use of title by adverse possession, see § 295.
[FN5] Gibbs v. Lester, 41 S.W.2d 28, 80 A.L.R. 431 (Tex. Comm'n App. 1931).
[FN6] La Cotts v. Pike's Estate, 91 Ark. 26,120 S.W. 144 (1909);
[FN7] McGowan v. Carlton, 1930 OK 227, 143 Okla. 106, 288 P. 338 (1930); Stolfa v. Gaines, 1929
OK 487,140 Okla. 292, 283 P. 563 (1929); Sutton v. Clark, 59 S.C. 440, 38 S.E. 150 (1901).
As to what law governs, see § 9.
rights reserved.
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Adverse Possession

§ 252. Defensive use of title acquired adversely
West's Key Number Digest, Adverse Possession €o=106(5)
Title acquired by adverse possession, being the equivalent of title acquired by purchase and conveyance,[ I]
is a bar to recovery of the property by the former owner and is in every respect as good for purposes of defense
as a title by deeds running back to the government.[2] Title by adverse possession will be effective as a defense
to a bill in equity for the removal of a cloud from the title.[3]
[FNI] § 249.
[FN3] Logan's Heirs v. Ward, 58 W. Va. 366, 52 S.E. 398 (1905).
As to quieting title in defendant, see 65 Am. Jur. 2d, Quieting Title and Determination of Adverse
Claims § 60.
rights reserved.
END OF DOCUMENT
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Westlaw,
AM1UR ADVERSE § 253 Page I
3 Am. lur. 2d Adverse Possession § 253

Adverse Possession
Theresa Leming, J. D., Bill Lindsley, 1.D., and Eric Surette, J.D.

2. After Expiration of StatutoI)' Period
Topic SummaI)' Correlation Table References
§ 253. Effect on boundaries
Where title is acquired and perfected by adverse possession, the boundaries thereby established become the
proper boundaries, irrespective of the operation of the principles which would otherwise fix and determine their
location.[l] Thus, once title to land is acquired by adverse possession, by owners of adjoining property who
erect a fence under a mistaken belief that their land extends thereto, it is not necessary for the adverse possessors
to keep up the fence thereafter.[2]
[FNI] Krause v. Nolte, 217 Ill. 298, 75 N.E. 362 (1905).
As to the fixation ofboundal)' lines, generally, see 12 Am. lur. 2d, Boundaries.
[FN2] Norgard v. Busher, 220 Or. 297, 349 P.2d 490,80 A.L.R.2d 1161 (1960).
rights reserved.
AM1UR ADVERSE § 253
END OF DOCUMENT
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Adverse Possession

§ 254. Effect of recording statutes; protection against purchasers from record owner
West's Key Number Digest, Adverse Possession €:= 106(3), 106(5)
Generally a conveyance by the holder of the apparent record title is ineffective as against a title previously
acquired by adverse possession.[I] Adverse possession statutes do not require that the written instrument upon
which an adverse possession claim is grounded be recorded in order to provide notice of the adverse possession
to the true owner.[2] Title by adverse possession is not affected by recording statutes, meaning that an adverse
title once obtained is good even as against those holding a title recorded as provided by statute, or a title derived
from a recorded title, whether or not the adverse holder continued in actual possession after having perfected
title by adverse possession.[3] Further, under a statute providing for the recording of conveyances, the provision
that an unrecorded conveyance sha11 be void as against a bona fide purchaser whose conveyance is first recorded
does not make a conveyance of the record title to a bona fide purchaser effective to extinguish a title acquired by
adverse possession.[4] Thus a title by adverse possession may be good as against a recorded quitclaim deed from
the former owner to a third person, even though the adverse titleholder has entered into possession under deeds
not recorded before the quitclaim deed and even though the grantee in the latter has no actual notice of the unre·
corded deeds.[5] However, in some jurisdictions one who for value purchases the record title without notice ac-
tual or constructive of any equity or adverse claim therein may be protected.[6]
It devolves on a purchaser from the record owner to ascertain whether there has been adverse possession of
the property hostile to the record title.[?] One cannot be an innocent purchaser against a title acquired by ad-
verse possession[8] since who has acquired title by adverse possession is not required to proclaim it publicly.[9]
The principle that a public proclamation of a claim of title by adverse possession is not necessary to protect the
title so acquired, even as against a bona fide purchaser from the former owner, applies whether the adverse title-
holder is in actual possession of the property at the time of the conveyance[lO] or is not in actual possession of
the property at the time of the conveyance by the record owner, and even though the grantee of the record owner
has no notice of the adverse holders title.[II]

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[FNI] Sisson v. Swift, 243 Ala. 289, 9 So. 2d 891 (1942).
[FN2] Tungsten Holdings, Inc. v. Parker, 200 I MT 117, 305 Mont. 329, 27 P.3d 429 (200 I).
[FN3] Fairley v. Howell, 159 Miss. 668, 131 So. 109 (1930); Lowi v. David, 134 Miss. 296, 98 So. 684
(1924); Roysdon v. Terry, 4 Tenn. App. 638, 1927 WL 2096 (1927); Kinney v. Johnson, 135 S.W.2d
773 (Tex. Civ. App. EI Paso 1939), writ dismissed, judgment correct; Mugaas v. Smith, 33 Wash. 2d
429,206 P.2d 332, 9 A.L.R.2d 846 (1949).
[FN4] Mugaas v. Smith, 33 Wash. 2d 429,206 P.2d 332, 9 A.L.R.2d 846 (1949).
[FN6] Ricks v. Batchelor, 225 N.C. 8,33 S.E.2d 68 (1945).
[FN7] Lowi v. David, 134 Miss. 296, 98 So. 684 (1924).
[FN8] Marshburn v. Stewart, 295 S.W. 679 (Tex. Civ. App. Beaumont 1927), writ dismissed w.o.j.,
(Oct. 26, 1927).
[FN9] Yatczak v. Cloon, 313 Mich. 584, 22 N.W.2d 112 (1946); Lowi v. David, 134 Miss. 296, 98 So.
684 (1924); Marshburn v. Stewart, 295 S. W. 679 (Tex. Civ. App. Beaumont 1927), writ dismissed
w.o.j., (Oct. 26,1927); Mugaas v. Smith, 33 Wash. 2d 429, 206 P.2d 332, 9 A.L.R.2d 846 (1949).
[FNIO] Yatczak v. Cloon, 313 Mich. 584,22 N.W.2d 112 (1946).
[FNII] Lowi v. David, 134 Miss. 296, 98 So. 684 (1924); Marshburn v. Stewart, 295 S.W. 679 (Tex.
Civ. App. Beaumont 1927), writ dismissed w.o.j., (Oct. 26, 1927); Mugaas v. Smith, 33 Wash. 2d 429,
206 P.2d 332, 9 A.L.R.2d 846 (1949).
rights reserved.
END OF DOCUMENT
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weSti~w.

Adverse Possession

2. After Expiration of Statutm)' Period
§ 255. Registration of title; establishment of record title
West's Key Number Digest, Adverse Possession €:::>106(1), 106(4)
A title acquired by adverse possession may be registered since, for purposes of registration, a title by ad-
verse possession canuot be distinguished from title by grant.[I] However, the title acquired by adverse posses-
sion is not a record title unless it is made so.[2]
Establishing title by adverse possession as a record title is held to require evidence showing the presence of
all elements necessary to make out a title by adverse possession; and it is said that this can be done only in a ju-
dicial proceeding to which the persons to be bound by the judgment have been made parties. Ex parte affidavits
filed in the recorder's office without sanction of law do not establish a record title to land acquired by adverse
possession.[3]
[FNI] Keith v. Kennard, 222 Mass. 398,110 N.E. 1030 (1916).
As to registration of title, see 66 Am. Jur. 2d, Registration of Land Titles.
[FN2] Horton v. Matheny, 72 Ohio App. 187,27 Ohio Op. 69, 51 N.E.2d 41 (6th Dis!. Williams County
1943).
As to recording of instruments relating to real property, generally, see 66 Am. JUL 2d, Records and Re-
cording Laws.
[FN3] Horton v. Matheny, 72 Ohio App. 187,27 Ohio Op. 69, 51 N.E.2d 41 (6th Dis!. Williams County
1943).
As to evidence at trial on an adverse claim, see §§ 296 to 308.
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rights reserved.
END OF DOCUMENT
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We'stlaw
AMJUR ADVERSE IV B REF Page I
3 Am, Jur. 2d Adverse Possession IV B Refs,

Adverse Possession
Theresa Leming, J. D" Bill Lindsley, J.D., and Eric Surette, J.D.

B. Effect Based on Nature or Extent of Possession
Research References
West's Key Number Digest, Adverse Possession >C=96 to 103
A.L.R. Library
rights reserved.
AMJUR ADVERSE IV B REF
END OF DOCUMENT
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Adverse Possession

I. In General
§ 256. Extent of actual possession
The extent of an adverse claimant's possession is determinative of the boundaries of the land acquired. [ I]
However, the extent of possession required under color of title differs from that required where there is no color
of title. A possession with color of title generally may ripen into title not only to the land actually occupied but
to all land described in the color of title document, whereas a possession without color of title will not ripen into
title to more property than is actually possessed.[2] If a claimant enters on land under color of title, the title
shows what the claimant intends to seize. A claimant who enters without color of tit1e must give some indication
of the extent of the intended seizure.[3] Although, under certain circumstances, an adverse possessor's occu-
pancy of a portion of a unitary tract of land may constructively extend to the entire tract.[ 4] In either case, the
essential elements of adverse possession remain the same.[5] Thus, to establish title by adverse possession on
the part of an adjoining landowner to a line beyond the record boundary of real estate, the line to which property
is claimed must be definitely established, and possession to that line for the statutory period must be shown.[6]
The rule that adverse possession of land cannot be extended beyond the calls of the deed applies only to
constructive and not actual possession; thus if land is actually occupied beyond the calls of the deed, hostile to
the true owner, the written instrument does not preclude such occupancy from being adverse. The occupancy
does not refer to the deed, but to the fact itself and its hostile charaeter.[7]
Reminder:
It is not necessary that a party asserting an adverse possession claim prove a complete enclosure or that he re-
main continuously on the land for the statutory period, but only that the land be used continuously for the pur-
poses to which it was by its nature adapted.[8]
[FNI] Friendship Baptist Church, Inc. v. West, 265 Ga. 745, 462 S.E.2d 618 (1995); Culton v.
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Simpson, 265 Ky. 343, 96 S.W.2d 856 (1936); Georgia-Carolina Land & Timber Co. v. Potter, 189
N.C. 56, 127 S.E. 343 (1925); N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780 (1999), cert.
denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672 (2000).
[FN2] Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997); McBeth v. Wetnight, 57
Ind. App. 47, 106 N.E. 407 (Div. I 1914); Page v. O'Neal, 207 Miss. 350, 42 So. 2d 391 (1949); Com-
munity Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152,559 A.2d 1068 (1989).
For full discussion as to nature and extent of possession under color oftitle, see §§ 258 et seq.
As to color of title, generally, see §§ 123 to 145.
For full discussion of actual possession required as element of adverse possession, see §§ 16 to 24.
[FN3] Culton v. Simpson, 265 Ky. 343, 96 S.W.2d 856 (1936); Georgia-Carolina Land & Timber Co. v.
Potter, 189 N.C. 56,127 S.E. 343 (1925).
[FN4] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME I I I, 733 A.2d 984 (Me. 1999).
[FN5] McBeth v. Wetnight, 57 Ind. App. 47, 106 N.E. 407 (Div. I 1914); Illinois Steel Co. v. Bilot, 109
Wis. 418,84 N.W. 855 (1901).
[FN6] Baxter v. Girard Trust Co., 288 Pa. 256,135 A. 620,49 A.L.R. 101 1(1927).
[FN7] Frank v. Smith, 138 Neb. 382, 293 N.W. 329,134 A.L.R. 458 (1940).
As to continuity of possession required to establish adverse possession, see §§ 73 to 75.
rights reserved.
END OF DOCUMENT
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Adverse Possession

I. In General
§ 257. Possession under claim of right
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 3(b), 12, (without color oftitle under parol gift).
As a general rule, in the absence of color of title, the adverse possession of one who claims title in that man-
ner extends only to such part of the land as the claimant has actually occupied and possessed continuously and
uninterruptedly during the statutory period.[1] The rights of those who enter on lands without color of title are
ordinarily confined to that portion of the property that was subjected to their actual possession.[2] Thus the
claimant acquires title to all the land actually adversely possessed by the claimant during the whole of the stat-
utory period, and it is immaterial if the claimant also occupied additional land during a part of the statutory peri-
od.[3]
In cases without color oftitle there can be no constructive possession by the c1aimant,[4] although in at least
one jurisdictions, pursuant to the particular statute applicable, possession may be construed to include the en-
tirety of a tract that is enclosed.[5] Thus, for the purpose of sustaining an adverse claim, an occupant without
color of title must establish the boundaries of the land that was actually in the possession of the occupant,[6] as
indicated by marked lines,[7] and limited to that area the claimant actually adversely occupied, which may be
evidenced by a statement of intent to possess.[8]
A grantee who undertakes to claim by adverse possession real estate that is outside the clearly defined
boundaries of the property conveyed to the grantee must enter thereon and claim to own the same adversely to
the true owner.[9] A deed that describes part of a tract does not constitute color of title to the part of the tract not
described so as to establish constructive adverse possession to the whole from the possession of part.[IO] A deed
that is void due to the uncertain and indefinite description of the land conveyed does not constitute color of title
and possession under it is limited to "possessio pedis."[1 I]
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[FNI] Baudin v. Charrier, 137 So. 2d 440 (La. Ct. App. 3d Cir. 1962); Ennis v. Stanley, 346 Mich. 296,
78 N.W.2d 114 (1956); Bankers Trust Co. of Muskegon v. Robinson, 280 Mich. 458, 273 N.W. 768
(1937); Hamburg Realty Co. v. Woods, 327 S.W.2d 138 (Mo. 1959).
[FN2] Tennessee Coal, Iron & R. Co. v. Brewer, 92 F.2d 804 (C.C.A. 5th Cir. 1937); Turnipseed v.
Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Anderson v. Cold Spring Tungsten, Inc.,
170 Colo. 7, 458 P.2d 756 (1969); McCurdy v. Rich, 76 Ind. App. 469, 132 N.E. 315 (Div. I 1921);
Tennis Coal Co. v. Sackett, 172 Ky. 729, 190 S.W. 130 (1916); Meade v. Ratliff, 133 Ky. 411, 118
S.W. 271 (1909); Page v. O'Neal, 207 Miss. 350, 42 So. 2d 391 (1949); Van Valkenburgh v. Lutz, 304
N.Y. 95, 106 N.E.2d 28 (1952); Powers v. Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E.
654 (4th Dist. Scioto County 1927); Bender v. Brooks, 103 Tex. 329, 127 S.W. 168 (1910); Slater v.
Murphy, 55 Wash. 2d 892,339 P.2d 457 (1959).
Absent a claim founded on a written instrument, only those lands actually occupied are deemed to have
been held adversely. Carrington v. McNeil, 58 A.D.2d 719, 396 N.Y.S.2d 286 (3d Dep't 1977).
[FN3] Baudin v. Charrier, 137 So. 2d 440 (La. Ct. App. 3d Cir. 1962).
[FN4] Cooper v. Tarpley, 112 Ind. App. I, 41 N.E.2d 640 (1942); McBeth v. Wetnight, 57 Ind. App.
47, 106 N.E. 407 (Div. I 1914); Holcomb v. Swift Coal & Timber Co., 251 Ky. 642,65 S.W.2d 741
(1933); Morrison v. Linn, 50 Mont. 396, 147 P. 166 (1915).
[FN5] W. T. Carter & Bro. v. Wells, 130 Tex. 189, 106 S.W.2d 1050, 115 A.L.R. 1293 (Comm'n App.
1937).
[FN6] Chastang v. Chastang, 141 Ala. 451, 37 So. 799 (1904).
[FN7] Culton v. Simpson, 265 Ky. 343, 96 S. W.2d 856 (1936).
[FN8] Martin v. Randono, 175 Mont. 321, 573 P.2d 1156 (1978) (occupant's failure to pay rent for land
on which a trailer home was located did not constitute adverse possession of an entire parcel much lar-
ger in size).
As to acts and declarations ofthe adverse claimant as evidence at trial, see § 304.
[FN9] Ames v. Brooks, 179 Kan. 590,297 P.2d 195 (1956).
[FNIO] Johns v. Scobie, 12 Cal. 2d 618, 86 P.2d 820,121 A.L.R. 1404 (1939).
[FNII] Mitchell v. Moore, 152 Fla. 843, 13 So. 2d 314 (1943).
As to what constitutes color of title, see § 130.
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rights reserved.
END OF DOCUMENT
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Adverse Possession

2. Possession under Color of Title
§ 258. Generally
West's Key Number Digest, Adverse Possession <£;:::;;>99 to 100(6)
The function of the doctrine of color of title is to define the exact boundaries of the land claimed;[I] that is,
the object of color of title is not to pass title, but to define the extent of the claim and extend the possession bey-
ond the actual occupancy to the whole property described in the instrument.[2] One who enters on land under
color of title, such as a deed, and possesses only a part of the land, will be deemed to have possession of the en-
tire tract to the limits of the boundaries described in the color of title for purposes of adverse possession,[3] and
color of title is necessary where an adverse claimant, in actual possession of part of the land, seeks to draw to
that part the whole of the land claimed.[4] Thus one who is in adverse possession of land under color of title by
virtue of a decree quieting title is constructively in possession of all land described in the decree, and the fact
that only a portion of the land is in his actual possession is immaterial.[5]
The constructive seisin of a grantee under a deed is the equivalent of actual seisin.[6] In other words, one
who enters on land under color of title is presumed to have entered in accordance therewith; therefore, actual
possession of a portion of the property will, by presumption of law, be constructively extended to the boundaries
defined by the color of title, except insofar as the land so included is in the adverse possession of another.[7]
Thus the fencing of part of a tract of land held under color of title, and the payment of taxes and cutting of a
small amount of timber on the remainder, may ripen into title to the whole tract under a statute providing that
the possession under color of title of a part of a tract in the name of the whole tract claimed, and the exercise
during the time of such possession of the usual acts of ownership over the whole tract so claimed, shall be
deemed to be possession of the whole of such tract.[8]
When one adversely possesses land under color of title, the extent of the land possessed is measured by the
terms of the purported instrument giving color of title rather than by the actual physical use by the claimant.[9]
Another effect of the doctrine is to shorten the period of prescription.[1 0] Thus title acquired by an occupant ex-
tends to an entire section of land where the occupant goes into possession under color and claim of title under a
tax deed to the entire section and pays the taxes on the whole of it continuously thereafier.[II]
Reminder:
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Specific statutory provisions may affect the extent of possession under color oftitle.[12]
Actual possession under color of title is sufficient to put on inquiry, to the extent of such color of title, any-
one claiming or seeking an interest in the land.[13] Even though the deed or title is void, the true owner will be
deemed disseised to the extent of the boundaries of such deed or title by the possession of an adverse claimant of
a part of the premises under such deed or title.[14] Beyond such boundaries, however, the claimant's possession
will not be extended by construction,[15] and in claiming title to property by asserting adverse possession under
color of title, the claimant's color of title is limited to property shown in the public records and does not extend
ITom that ownership to the claimant's neighbor's contiguous land.[16]
Color of title, without adverse possession thereunder, does not operate to give constructive possession. It
amounts to nothing unless connected with an adverse possession. While color of title imparts constructive pos-
session of the whole premises from the actual possession of a part only and is evidence of the nature of the entry
and of the extent and boundaries of the possession claimed, it is not of itself evidence of adverse possession, and
it does not necessarily follow that adverse possession can be proved by less evidence when the entry is under
color of title than when it is no1.[17]
[FNI] Lott v. Muldoon Road Baptist Church, Inc., 466 P.2d 815 (Alaska 1970).
[FN2] Fore v. Berry, 94 S.C. 71, 78 S.E. 706 (1913).
[FN3] Liberty Coal & Coke Co. v. Lewis, 52 F.2d 655 (E.D. Ky. 1931); U S v. Algodones Land Co, 52
F.2d 359 (C.C.A. 10th Cir. 1931); Hackman v. Maund, 443 So. 2d 899 (Ala. 1983); Long v. Ladd, 273
Ala. 410, 142 So. 2d 660 (1962); McCoy v. Anthony Land Co., 230 Ark. 244, 322 S.W.2d 439 (1959);
Cooper v. Cook, 220 Ark. 344, 247 S.W.2d 957 (1952); Wheatley v. San Pedro, L.A. & S.L.R. Co., 169
Cal. 505, 147 P. 135 (1915); Chaney v. State Mineral Bd., 444 So. 2d 105 (La. 1983); Agurs v. Holt,
232 La. 1026, 95 So. 2d 644 (1957); Wentworth v. Fome, 242 Miss. 883, 137 So. 2d 166 (1962);
Woodside v. Durham, 317 Mo. 15,295 S.W. 772, 53 A.L.R. 884 (1927); Chapin v. Letcher, 93 N.W.2d
415 (N.D. 1958); Tamovsky v. Security State Bank of Killdeer, 77 N.W.2d 828 (N.D. 1956); Sioux
City Boat Club v. Mulhall, 79 S.D. 668, 117 N. W.2d 92 (1962); Smith v. Pittston Co., 203 Va. 408, 124
S.E.2d I (1962).
As to adverse possession pursuant to color of title, generally, see §§ 123 to 135.
[FN4] Hamburg Realty Co. v. Walker, 327 S.W.2d 155 (Mo. 1959).
[FN5] Quintana v. Montoya, 64 N.M. 464, 330 P.2d 549, 71 A.L.R.2d 397 (1958).
[FN6] McRae v. Ketchum, 138 Fla. 610, 189 So. 853 (1939); Wachovia Bank & Trust Co. v. Miller,
243 N.C. 1,89 S.E.2d 765 (1955); Dorman v. Goodman, 213 N.C. 406,196 S.E. 352 (1938).
[FN7] State of Mich. v. State of Wis., 270 U.S. 295, 46 S. Ct. 290, 70 L. Ed. 595 (1926); Montoya v.
Gonzales, 232 U.S. 375, 34 S. Ct. 413, 58 L. Ed. 645 (1914); Long v. Ladd, 273 Ala. 410, 142 So. 2d
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660 (1962); Hart v. Sternberg, 205 Ark. 929,171 S.W.2d 475 (1943); McRae v. Ketchum, 138 Fla. 610,
189 So. 853 (1939); Roberson v. Downing Co., 120 Ga. 833, 48 S.E. 429 (1904); Howard v. Twibell,
179 Ind. 67, 100 N.E. 372 (1913); Ingram v. Jeffersonville, N.A. & S. Rapid Transit Co., 65 Ind. App.
532, 116 N.E. 12 (Div. I 1917); Ford Motor Co. v. Collett, 303 S.W.2d 553 (Ky. 1957); Tennis Coal
Co. v. Sackett, 172 Ky. 729, 190 S.W. 130 (1916); Hornblower v. Banton, 103 Me. 375, 69 A. 568
(1907); Spicer v. Gore, 219 Md. 469, 150 A.2d 226 (1959); Goen v. Sansbury, 219 Md. 289, 149 A.2d
17 (1959); Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d 55 (1951); Shepherd v. Cox, 191 Miss. 715,
I So. 2d 495, 136 A.L.R. 1346 (1941), error overruled, 191 Miss. 715,4 So. 2d 217, 136 A.L.R. 1346
(1941); Seals v. Williams, 80 Miss. 234, 31 So. 707 (1902); Wachovia Bank & Trust Co. v. Miller, 243
N.C. I, 89 S.E.2d 765 (1955); Willis v. Johns, 55 N.C. App. 621, 286 S.E.2d 646 (1982); Powers v.
Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E. 654 (4th Dis!. Scioto County 1927); Weston
v. Morgan, 162 S.c. 177, 160 S.E. 436 (1931); Fore v. Berry, 94 S.C. 71, 78 S.E. 706 (1913); Sioux
City Boat Club v. Mulhall, 79 S.D. 668, 117 N. W.2d 92 (1962); Lieberman, Loveman & O'Brien v.
Clark, 114 Tenn. 117,85 S.W. 258 (1905); Chittim v. Auld, 219 S.W.2d 702 (Tex. Civ. App. San Anto-
nio 1949), writ refused n.r.e; Weiner v. Stearns, 40 Utah 185, 120 P. 490 (1911); Gauley Coal Land Co.
v. O'Dell, 144 W. Va. 730,110 S.E.2d 833 (1959); State v. Morgan, 75 W. Va. 92, 83 S.E. 288 (1914).
[FN8] Woodside v. Durham, 317 Mo. 15,295 S.W. 772, 53 A.L.R. 884 (1927).
[FN9] Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996); Lott v. Muldoon Road Baptist Church,
Inc., 466 P.2d 815 (Alaska 1970).
[FNIO] Lott v. Muldoon Road Baptist Church, Inc., 466 P.2d 815 (Alaska 1970).
[FNII] Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d 55 (1951).
[FNI2] Bumgarner v. Corpening, 246 N.C. 40, 97 S.E.2d 427 (1957) (seven-year statute requiring actu-
al possession and area not extended by constructive possession based on color of title).
[FNI3] Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (1959) (notice of claim limited to the extent of
claimant's actual occupancy); Tarnovsky v. Security State Bank of Killdeer, 77 N.W.2d 828 (N.D. 1956).
As to notice or knowledge, generally, see § 62.
[FNI4] Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766 (1944).
[FNI5] U S v. Algodones Land Co, 52 F.2d 359 (C.C.A. 10th Cir. 1931); Rust Land & Lumber Co. v.
Isom, 70 Ark. 99, 66 S.W. 434 (1902); McRae v. Ketchum, 138 Fla. 610, 189 So. 853 (1939); McBeth
v. Wetnight, 57 Ind. App. 47, 106 N.E. 407 (Div. I 1914); Wachovia Bank & Trust Co. v. Miller, 243
N.C. I, 89 S.E.2d 765 (1955); Dorman v. Goodman, 213 N.C. 406, 196 S.E. 352 (1938); Pritchard v.
Lewis, 125 Wis. 604,104 N.W. 989 (1905).
[FNI6] Lawson v. Murray, 365 So. 2d 744 (Fla. Dist. C!. App. 1st Dist. 1978).
[FNI7] French v. Hillman, 216 F. Supp. 117 (W.D. Va. 1963), judgment afrd, 331 F.2d 305 (4th Cir.
1964); Roe v. Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. 151, 50 So. 230 (1909); Birch-
field V. Thiercof, 5 Ariz. App. 484, 428 P.2d 148 (1967); Richbourg V. Rose, 53 Fla. 173, 44 So. 69
Page 537 of665

(1907); McBeth v. Wetnight, 57 Ind. App. 47,106 N.E. 407 (Div. 1 1914); Wachovia Bank & Trust Co.
v. Miller, 243 N.C. 1,89 S.E.2d 765 (1955); Grandin v. Gardiner, 63 N.W.2d 128 (N.D. 1954).
As to nature of claim to property predicated on color of title, see §§ 101, 106.
rights reserved.
END OF DOCUMENT
Page 538 of 665
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Adverse Possession

§ 259. Several contiguous tracts
Generally, the doctrine that the actual possession of a part of the premises will be constructively extended to
all land described in the color of title relates only to an entire tract: constructive possession can only extend to
the whole of that which is partially occupied.[l] Constructive possession generally does not extend to parcels
other and distinct from those partially occupied, even though they are contiguous,[2] and were conveyed to the
claimant by the same person and at one time.[3] One who has an actual possession of land which that person
owns will not be deemed in law to be in possession of land which that person does not own from the simple fact
that that person may claim under a deed which purports to convey land to them to which he or she gets no title,
as well as land to which he or she truly acquires title, even though the tracts purporting to be conveyed be con-
tiguous to that to which title passes.[4] Thus, if several lots conveyed by the same instrument which are contigu-
ous are separately described and the instrument does not purport to convey !'hem by one embracing description
as one tract, the actual occupancy of one lot will not give the claimant constructive possession of the entire tract.[5]
Where, however, a conveyance of several lots is made by one instrument which in one general description
covers the premises conveyed as a whole, the rule in most jurisdictions is that the actual possession of one of the
parcels by the grantee gives the grantee constructive possession under color of title to the entire tract conveyed,[
6] which is not affected by the fact that the grantor under whom the adverse claimant holds acquired the title to
the various parcels of land involved from different persons, since they become merged into one tract by the con-
veyances to the grantee.[7] Thus, unless lots with reference to which title by adverse possession is claimed are
enclosed by a common fence, embraced under one general description in the deed, or in some such way merged
in one parcel so that the occupation of a portion thereof could not reasonably be referred to anything less than
the whole tract, the rule of constructive possession is inapplicable.[S] The reasons generally given for this are
that in the absence of actual adverse possession the law constructively places the possession of land in the owner
of the legal title,[9] and the actual possession of one tract of land is not a sufficiently open and notorious posses-
sion of an adjoining tract that is not occupied to give !'he owner notice of the adverse claim.[IO]
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Page 539 of 665

Reminder:
The rule requiring a general description embracing several tracts in order to permit adverse possession of the
several tracts by occupying a part of one tract has not obtained in al1 instances, such that in some cases where
the tracts, though separately described, are conveyed by the same person and embraced in the same deed, and
are contiguous to each other, adverse possession of one of the tracts for the statutory period may be extended to
the whole.[ll]
[FNl] Andrus v. Hutchinson, 17 F.2d 472 (C.C.A. 5th Cir. 1927); Gracy v. Fielding, 71 Fla. 1,70 So.
625 (1916); Elliott v. Hensley, 188 Ky. 444, 222 S.W. 507 (1920); Hornblower v. Banton, 103 Me. 375,
69 A. 568 (1907); John L. Roper Lumber Co. v. Richmond Cedar Works, 168 N.C. 344, 84 S.E. 523 (1915).
As to effect of possession under color of title, generally, see § 258.
As to adverse possession pursuant to color oftitle, generally, see §§ 123 to 145.
[FN2] Andrus v. Hutchinson, 17 F.2d 472 (C.C.A. 5th Cir. 1927); Gracy v. Fielding, 71 Fla. 1,70 So.
625 (1916); Elliott v. Hensley, 188 Ky. 444, 222 S.W. 507 (1920); John L. Roper Lumber Co. v. Rich-
mond Cedar Works, 168 N.C. 344, 84 S.E. 523 (1915).
As to nature of claim to property predicated on color of title, see §§ 101, 106.
[FN3] Andrus v. Hutchinson, 17 F.2d 472 (C.C.A. 5th Cir. 1927); Gracy v. Fielding, 71 Fla. 1,70 So.
625 (1916); Elliott v. Hensley, 188 Ky. 444, 222 S.W. 507 (1920); Hornblower v. Banton, 103 Me. 375,
69 A. 568 (1907); Bowers v. Mitchell, 258 N.C. 80, 128 S.E.2d 6 (1962).
[FN4] Harris v. Wood County Cotton Oil Co., 222 S.W.2d 331 (Tex. Civ. App. Texarkana 1949), writ
refused n.r.e.
[FN5] Hornblower v. Banton, 103 Me. 375, 69 A. 568 (1907); Bowers v. Mitchell, 258 N.C. 80, 128
S.E.2d 6 (1962); Camp v. Riddle, 128 Tenn. 294, 160 S.W. 844 (1913).
[FN6] Hornblower v. Banton, 103 Me. 375, 69 A. 568 (1907); Camp v. Riddle, 128 Tenn. 294, 160
S.W. 844 (1913).
[FN7] Kingston v. Guck, 155 Mich. 264, 118 N.W. 967 (1908); Allen v. Boggess, 94 Tex. 83, 58 S.W.
833 (1900); Sharp v. Shenandoah Furnace Co., 100 Va. 27,40 S.E. 103 (1901).
[FN8] Hornblower v. Banton, 103 Me. 375, 69 A. 568 (1907).
[FN9] Andrus v. Hutchinson, 17 F.2d 472 (C.C.A. 5th Cir. 1927); st. Louis, I.M. & S.R. Co. v. Moore,
83 Ark. 377, 103 S.W. 1136 (1907); Elliott v. Hensley, 188 Ky. 444, 222 S.W. 507 (1920); Proctor v.
Maine Cent. R. Co., 100 Me. 27, 60 A. 423 (1905); McNeeley v. South Penn Oil Co., 52 W. Va. 616,
44 S.E. 508 (1903); Schmitt v. Traphagen, 73 N.J. Eq. 399, 69 A. 189 (Ct. Err. & App. 1908).
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[FNIO] Andrus v. Hutchinson, 17 F.2d 472 (C.C.A. 5th Cir. 1927); St. Louis, l.M. & S.R. Co. v.
Moore, 83 Ark. 377, 103 S.W. 1136 (1907); Elliott v. Hensley, 188 Ky. 444, 222 S.W. 507 (1920);
Schmitt v. Traphagen, 73 N.J. Eq. 399, 69 A. 189 (Ct. Err. & App. 1908).
[FNII] Ford Motor Co. v. Collett, 303 S.W.2d 553 (Ky. 1957); U.S. Trust Co. v. Frakes, 282 Ky. 683,
139 S. W.2d 759 (1940); Parsons v. Dills, 159 Ky. 471, 167 S.W. 415 (\ 914).
© 2010 Thomson Reulers. 33-348 © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
END OF DOCUMENT
Page 541 of 665
Westlaw.

Adverse Possession

§ 260. Tracts separately owned
The rule that a claimant's actual possession is constructively extended to the limits of such c1aimant's color
of title is not applicable to land separately owned, which is to say that constructive possession under color of
title does not extend to land embraced in such color of title where the land is owned by a person other than the
owner of the tract partially occupied by the adverse claimant.[ I] Thus, where an occupant's boundary covers ad-
joining lands of separate owners, his possession of the land of one will not, on the theory of constructive posses-
sion, be deemed adverse possession of the land of the other;[2] and where a deed is void as to a part of the land
conveyed, and the grantee occupies a portion of that to which he actually has title, such fact does not give him
constructive possession of the part to which he has no title so as to disseise the real owner.[3]
The rule that governs where the tracts are separately owned is both practical and just, for otherwise the own-
er of land would be compelled to seek out and examine the color of title held by every newcomer taking posses-
sion of other land in the vicinity, lest the latter's actual possession be constructively extended to destroy the
former's titIe.[4]
[FN I] McCoy v. Anthony Land Co., 230 Ark. 244, 322 S. W.2d 439 (1959).
As to what constitutes adverse possession pursuant to color of title, generally, see §§ 123 to 145.
[FN2] United Fuel Gas Co. v. Dyer. 185 F.2d 99 (4th Cir. 1950).
[FN3] Wentworth v. Forne, 242 Miss. 883, 137 So. 2d 166 (1962).
[FN4] McCoy v. Anthony Land Co., 230 Ark. 244, 322 S.W.2d 439 (1959).
Page 542 of 665

rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 261. Tract erroneously included in deed
The presumption that a person who has a title and possession conformable to it possesses according to the
title and to the full extent of its boundaries does not apply to land erroneously included in the deed where the
grantee did not possess or intend to possess such land.[l] Thus, where it is shown that a purchaser did not intend
to buy or possess certain property described in the deed, there is no basis for a conclusion that the purchaser pos-
sessed it conformably to the title and, if it were found that the purchaser possessed a part, the presumption it was
possessed according to the title is rebutted by the fact that such possession was not intended.[2]
[FN 1] Agurs v. Holt, 232 La. 1026,95 So. 2d 644 (1957).
[FN2] Agurs v. Holt, 232 La. 1026,95 So. 2d 644 (1957).
As to what constitutes hostile possession as an element of adverse possession, see §§ 41 to 61.
rights reserved.
END OF DOCUMENT
Page 544 of 665
Westlaw.

Adverse Possession

§ 262. Conflicting grants and claims
West's Key Number Digest, Adverse Possession €;:;;;;>96, 103
Constructive possession by virtue of occupancy of certain portions of a tract under color of title cannot pre-
vail against the actual possession of other portions by another.[I] Adjacent owners may be in constructive pos-
session of the same land, being included in the described boundaries of each tract. In such cases, no prescription
can arise in favor of either, but the rights of the parties will be determined according to the superiority of the one
title or the other aside from such prescription.[2] If one occupies the lappage and the other not, the possession of
the whole lappage is in the former.[3] A similar rule prevails where none of the claimants is in possession; thus,
where the title deeds of two rival claimants to land overlap each other, and neither is in the actual possession of
any of the lands covered by both deeds, the law adjudges the possession of the lappage in the one who has the
better title.[4]
Where constructive possession between senior and junior patentees or grantees claiming from a common
source clash, the older title generally takes precedence, although this rule has no application to one who claims
under a senior grant but whose chain of title does not reach back to it.[5] Where title deeds of two rival
claimants overlap each other, if both have actual possession of some part of the lappage, the possession of the
true owner, by virtue of a superior title, extends to all not actually occupied by the other.[6]
[FNI] Big Run Coal & Clay Co. v. Helton, 323 S.W.2d 855 (Ky. 1959); Hornblower v. Banton, 103
Me. 375, 69 A. 568 (1907); Smith v. Pittston Co., 203 Va. 408, 124 S.E.2d I (1962).
As to effect of two or more persons in possession of same tract, see § 71.
As to effect of possession under color of tille, generally, see § 258.

Page 545 of665

[FN2] Bunger v. Grimm, 142 Ga. 448, 83 S.E. 200 (1914).
[FN3] Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766 (1944).
[FN5] Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (1959); Sledge v. Miller, 249 N.C. 447, 106 S.E.2d
868 (1959); Baldwin v. Mothena, 171 Va. 94, 198 S.E. 569 (1938); Schmitt v. Traphagen, 73 N.J. Eq.
399,69 A. 189 (Ct. Err. & App. 1908).
As to actual possession required as element of adverse possession, see §§ 16 to 24.
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

§ 263. Owner in possession of part
The doctrine of constructive possession by color of title does not apply against a person having legal title
and in peaceable and actual possession of the land in dispute.[I] A record owner who is in actual possession of a
part of the premises is in a constructive possession of all of the land not actually possessed by another claiming
under color of title,[2] even though the owner's actual possession is not within the limits of the land claimed by
the other.[3]
Reminder:
In a claim for adverse possession, possession must be exclusive, and if the occupier shared possession with the
title owner, the occupier may not obtain title by adverse possession.[4]
Since both parties cannot be seised at the same time of the same land under different titles, the law adjudges
the seisin of all property that is not in the actual occupancy of the adverse party to be in the one who has the bet-
ter title.[5] In the case of a mixed or common possession by the legal owner and another, the law adjudges the
rightful possession in the former, and the latter's possession cannot ripen into title.[6]
[FNI] Chittim v. Auld, 219 S.W.2d 702 (Tex. Civ. App. San Antonio 1949), writ refused n.r.e.
[FN2] Acosta v. Nunez, 5 So. 2d 574 (La. Ct. App., Orleans 1942), decree affd by, 203 La. 275, 13 So.
2d 860 (1943); Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (1959); Wentworth v. Fome, 242 Miss.
883,137 So. 2d 166 (1962); Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766 (1944).
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Page 547 of665

[FN6] Vider v. Zavislan, 146 Colo. 519, 362 P.2d 163 (1961).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRIA. No Claim to Orig. u.S. Govt. Works. All
rights reserved.
END OF DOCUMENT
Page 548 of 665
Westlaw,
AMJUR ADVERSE V A REF Page I
3 Am. Jur. 2d Adverse Possession V A Refs.

Adverse Possession
V. Particular Properties and Estates Affected

A. In General
Research References
West's Key Number Digest, Adverse Possession €:=5.1, 6
A.L.R. Library
rights reserved.
AMJUR ADVERSE V A REF
END OF DOCUMENT
Page 549 of 665
Westlaw.

Adverse Possession

A. In General
§ 264. Generally
West's Key Number Digest, Adverse Possession oC=5.1, 6
Generally adverse possession for the prescribed period of time will be effective as against any property not
exempt from the statute of limitations governing periods of adverse possession, that is except property such as
that owned by the federal government, public lands generally in most jurisdictions, and certain other properties
imbued with a public interest such as railroad property in many jurisdictions.[I] So long as incidents of adverse
possession are complied with, platted land is no less subject to adverse possession than unplatted land.[2] Ad-
verse possession may be established as against non-public entity fee owner despite existence of easements, in-
cluding public easements to county or state.[3] While an individual cannot adversely possess a public way, when
streets are laid out on a plat but are not so used by the public, they are nothing more than private ways and may
be adversely possessed.[4]
In some jurisdictions adverse possession may not generally run against lands appropriated to pious or charit-
able use,[5] and particular exemptions may be established by statute,[6] such as particular lands governed by
statutory provisions protecting native claims.[7]
[FNI]lllinois Steel Co. v. Bilot, 109 Wis. 418, 85 N.W. 402 (1901).
As to property owned by the federal government, see § 268.
As to public property, generally, see §§ 269 to 274.
As to railroad property, see § 276.
[FN3] Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. Cl. 545 (1997), judgment
Page 550 of 665

(Apr. 6, 2000) and cer!. denied, 531 U.S. 957, 121 S. Ct. 380, 148 L. Ed. 2d 293 (2000) (pursuant to
Maryland law).
As to highways and streets in particular, see § 272.
[FN5] Billings v. Paine, 319 S.W.2d 653 (Mo. 1959).
[FN6] Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 830
F.2d 374 (D.C. Cir. 1987); Snook v. Bowers, 12 P.3d 771 (Alaska 2000).
rights reserved.
END OF DOCUMENT
Page 551 of 665
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Adverse Possession

A. In General
§ 265. Land under or surrounded by water; accretions
West's Key Number Digest, Adverse Possession 0(:;=5.1
The fact that land is covered by water does not render the acquisition of title thereto impossible. [I] Where
land under water is the subject of private ownership, adverse possession may be acquired by any means that ac-
tually and notoriously exclude and oust the true owner. Neither the physical ouster of the owner nor the actual
residence of the adverse claimant is required.[2] Where property claimed adversely consists of a fresh-water
pond or stream surrounded by lands of different owners~ whose titles as riparian owners include the land under
the water to the center of such pond or stream, the acts of ownership must indicate a change of condition, show-
ing a notorious claim of title, accompanied by the essential elements of adverse possession.[3]
Title to an island may be acquired by adverse possession,[4] as well as title to a peninsula.[5] Where the
level of a lake is raised by artificial means and is maintained at its new height for the prescriptive period, the ad-
ditional lands submerged become subject to adverse possession as fully as those under the lake in its original
condition; thus where the waters of natural navigable lakes are extended by artificial means, so as to cause the
land of riparian owners to be flooded without their consent, and this condition is continued for a sufficient
length of time for the standing waters to produce a distinctive new high-water mark, this gives the state as the
owner of such lake bed the possession of the lands so covered to the new high-water mark; such possession is
open, for a complete submergence of one's land in this manner could not escape observation, and, if the owner is
powerless to remove the cause or to restore the lands to their fanner condition, such possession is also adverse,
and if it continues for the statutory period without interruption the state acquires title to the lands so submerged.[ 6]
The ownership of accretions to land may be acquired by adverse possession.[7] One who has acquired title
to land by adverse possession is entitled to any accretions thereto, regardless of the time of their forrnation.[8]
Accretions to an island held adversely and occupied for more than the statutory period belong to the owner of
the island, and not to the riparian owner to whom the island or a part of it would otherwise belong.[9]
The exercise by riparian owners of their rights in a stream or the placing of fences by such owners across
the stream or erecting fences on each side of the stream so as to inclose their land and hold their livestock there-
on will not constitute adverse possession so as to vest title to the bed of the stream in such owners.[IO]

Page 552 of 665

[FNI] Leake v. Richardson, 199 Va. 967, 103 S.E.2d 227 (1958); Illinois Steel Co. v. Bilot, 109 Wis.
418,85 N.W. 402 (1901).
As to land under navigable or public waters, see § 274.
As to acquisition of water or water rights by adverse possession or prescription, see 75 Am. JUT. 2d,
Waters §§ 367 to 379.
[FN2] Illinois Steel Co. v. Bilot, 109 Wis. 418,85 N.W. 402 (1901).
As to actual possession required as element of adverse possession, see §§ 16 to 24.
[FN3] Leake v. Richardson, 199 Va. 967,103 S.E.2d 227 (1958).
[FN4] Burket v. Krimlofski, 167 Neb. 45, 91 N.W.2d 57 (1958); James v. McNair, 164 Neb. I, 81
N.W.2d 813 (1957).
[FN5] Springer v. Durette, 217 Or. 196,342 P.2d 132 (1959).
[FN6] State v. Parker, 132 Ark. 316,200 S.W. 1014 (1917); State ex reI. O'Connor v. Sorenson, 222
Iowa 1248,271 N.W. 234 (1937).
[FN7] Gaskill v. Cook, 315 S.W.2d 747 (Mo. 1958); Jones v. Schmidt, 170 Neb. 351, 102 N.W.2d 640
(1960).
As to rights to accreted land, generally, see 78 Am. Jur. 2d, Waters §§ 315 to 318.
[FN8] Rieke v. Olander, 207 Kan. 510,485 P.2d 1335 (1971); Peterson v. Harpst, 247 S.W.2d 663 (Mo.
1952); Doebbeling v. Hall, 310 Mo. 204, 274 S.W. 1049,41 A.L.R. 382 (1925); Kapp v. Hansen, 79
S.D. 279, III N.W.2d 333 (1961).
[FN9] Burket v. Krimlofski, 167 Neb. 45, 91 N.W.2d 57 (1958).
[FNIO] Heard v. State, 146 Tex. 139,204 S.W.2d 344 (1947).
rights reserved.
END OF DOCUMENT
Page 553 of 665
Westiaw.

Adverse Possession

A. In General
§ 266. Cemetery or burial lots
The general rule is that a burial or cemetery lot may be acquired by adverse possession.[l] While the right
which one acquires in a cemetery lot is rather in the nature of a perpetual easement, subject to control by the
state in the exercise of its police power, it is such a valuable right as a court of equity will protect, and the same
general character of adverse possession that will confer title to real estate will suffice to confer such right.[2]
Thus, title to a burial lot with the rights in cemetery aisles or lanes may be acquired by adverse possession or
prescription according to statutory and other legal requirements.[3]
Reminder:
A distinction is generally recognized benveen a claim of title to a cemetery being devoted to a public and charit-
able use and a claim against a private interest in a specific lot or lots.[4] As between opposing private claims to
the proprietary rights and interests in a burial lot in an established public cemetery, adverse possession may in
the absence of previous interment on the lot.[5]
A burial lot may be adversely held without inclosure as long as it is marked, by gravestones or otherwise, as
a burial place.[6] However title to a burial lot is not acquired by adverse possession or prescription, notwith-
standing that occupancy thereof for more than the statutory period was notorious and adverse in the general
sense of the rule regarding adverse possession, where it was due to a mistake as to the boundary line of an ad-
joining lot purchased by the ancestor of the person claiming adversely and there was no desire or purpose on the
part of the possessor or that of descendants to claim more than the lot purchased.[7] Moreover, possession of
and burial in a lot by permission or license cannot ripen into title by adverse possession.[8]
[FNI] Brunton v. Roberts, 265 Ky. 569, 97 S.W.2d 413, 107 A.L.R. 1289 (1936); Forest Home
Cemetery Ass'n v. Dardanella Financial Corp., 329 N.W.2d 885 (S.D. 1983); Sherrard v. Henry, 88 W.
Va. 315,106 S.E. 705, 21 A.L.R. 645 (1921).

Page 554 of 665

[FN2] Sherrard v. Henry, 88 W. Va. 315,106 S.E. 705, 21 A.L.R. 645 (1921).
Generally, as to the nature of the right, title, or interest in a cemetery lot, see 14 Am. Jur. 2d, Cemeter-
ies §§ 31 to 36.
[FN3] Brunton v. Roberts, 265 Ky. 569,97 S.W.2d 413,107 A.L.R. 1289 (1936).
[FN4] Billings v. Paine, 319 S.W.2d 653 (Mo. 1959); Forest Home Cemetery Ass'n v. Dardanella Fin-
ancial Corp., 329 N.W.2d 885 (S.D. 1983).
As to public property, generally, see §§ 268 to 274.
[FN5] Billings v. Paine, 319 S.W.2d 653 (Mo. 1959); Forest Home Cemetery Ass'n v. Dardanella Fin-
ancial Corp., 329 N.W.2d 885 (S.D. 1983).
[FN6] Roumillot v. Gardner, 113 Ga. 60, 38 S.E. 362 (1901); Sherrard v. Henry, 88 W. Va. 315, 106
S.E. 705, 21 A.L.R. 645 (1921).
[FN7] Brunton v. Roberts, 265 Ky. 569, 97 S.W.2d413, 107 A.L.R. 1289 (1936).
[FN8] Rowley v. Laingsburg Cemetery Ass'n, 215 Mich. 673,184 N.W. 480 (1921).
rights reserved.
END OF DOCUMENT
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Westi~w.

Adverse Possession

A. In General
§ 267. Life tenancies, remainders, and reversions
West's Key Number Digest, Adverse Possession C=>5.1, 6
A third person may acquire the title to the interest of a life tenant in lands in which there is a life estate and
remainder, by adverse possession for the statutory period, but the title thus acquired does not affect the estate in
remainder, nor can it be defeated by a conveyance by the life tenant of the life tenant's interest in the land to the
remaindennan.[l] Possession adverse to a life tenant is not per se adverse to a remaindennan.[2] A remainder-
man, having no right to possession until the death of the life tenant, or not being bound to enter until then to es-
tablish a claim against interference with an easement of way appurtenant to the property, is not barred by ad-
verse possession that might result against the life tenant.[3] Thus, where there is adverse occupancy of land sub-
ject to a life estate, the statute of limitations does not generally run against remaindermen until the life estate has
terminated, for until then the possession is not adverse as to them,[4] since they do not have a right of entry and
possession until the life estate is ended. [5]
[FNI] Meadows v. Hardcastle, 219 Ark. 406, 242 S.W.2d 710 (1951).
As to adverse possession involving life tenancies and remainders and reversions, see §§ 232 to 236.
[FN3] Frawley v. Forrest, 310 Mass. 446, 38 N.E.2d 631, 138 A.L.R. 999 (1941).
[FN4] United Fuel Gas Co. v. Dyer, 185 F.2d 99 (4th Cir. 1950).
[FN5] Heustess v. Oswalt, 253 Ark. 730, 488 S.W.2d 707 (1973); Maxwell v. Hamel, 138 Neb. 49, 292
N.W. 38 (1940).
rights reserved.
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END OF DOCUMENT
Page 557 of 665
Westlawo
AMJUR ADVERSE V B REF Page I
3 Am. Jur. 2d Adverse Possession V B Refs.

Adverse Possession

B. Public Property
Research References
West's Key Number Digest, Adverse Possession €;:;:;>7 to 9
A.L.R. Library
rights reserved.
AMJUR ADVERSE V B REF
END OF DOCUMENT
Page 558 of 665
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Adverse Possession

B. Public Property
I. In General
§ 268. Generally; property of federal government
West's Key Number Digest, Adverse Possession €;=7(1) to 7(3)
A.L.R. Library
Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R. 3d 1182.
It is the general rule that title by adverse possession cannot be acquired as to public property,[l] or to prop-
erty held as a public trust.[2] Ordinarily, in the absence of legislation providing otherwise, the statute of limita·
tions does not run against the government,[3] and therefore title to public lands cannot be acquired by adverse
possession as against the United States,[4] a state,[5] or local governmental bodies,[6] except as may be
provided specifically by statute.[7]
[FN I] Engel v. U.S., 258 F.2d 50 (6th Cir. 1958); Smith v. U.S., 28 Fed. CI. 430 (1993), decision affd,
19 F.3d 39 (Fed. Cir. 1994); Harrison v. Everett, 135 Colo. 55, 308 P.2d 216 (1957); Deer Island Ass'n
v. Trolle, 181 Conn. 201,435 A.2d 10 (1980); State Highway Dept. of Ga. v. Harris, 214 Ga. 521, 106
S.E.2d 19 (1958); Gauger v. State, 249 Kan. 86, 815 P.2d 501 (1991); Wood v. Mayo, 240 La. 109, 121
So. 2d 503 (1960); Housing Authority of New Orleans v. Banks, 224 La. 172, 69 So. 2d 5 (1953);
Hernik v. Director of Highways, 169 Ohio St. 403, 8 Ohio Op. 2d 438, 160 N.E.2d 249 (1959); Merritt
Independent School Dist. No.2 of Beckham County v. Jones, 1952 OK 381, 207 Okla. 376, 249 P.2d
1007 (1952); Com., Dept. ofTransp. v. J. W. Bishop & Co., Inc., 497 Pa. 58, 439 A.2d 101 (1981).
As to public lands, generally, see 63A Am. Jur. 2d, Public Lands.
[FN2] Messersmith v. Mayor and Common Council of Riverdale, 223 Md. 323, 164 A.2d 523 (1960).
[FN3] City of Marietta v. CSX Transp., Inc., 272 Ga. 612, 533 S.E.2d 372 (2000); Hellerud v. Hauck,
52 Idaho 226, 13 P.2d 1099 (1932); Kimball v. Turner, 993 P.2d 303 (Wyo. 1999).
Page 559 of 665

[FN4] U.S. v. State of Cal., 332 U.S. 19, 67 S. Ct. 1658,91 L. Ed. 1889 (1947), opinion supplemented,
332 U.S. 804,68 S. Ct. 20, 92 L. Ed. 382 (1947) and petition denied, 334 U.S. 855, 68 S. Ct. 1517,92
L. Ed. 1776 (1948); U.S. v. Hato Rey Bldg. Co., Inc., 886 F.2d 448 (1st Cir. 1989); Yamashita v.
People of Territory of Guam, 59 F.3d 114 (9th Cir. 1995) (regarding United States property in Guam);
U.S. v. Vasarajs, 908 F.2d 443 (9th Cir. 1990); U.S. v. Pappas, 814 F.2d 1342 (9th Cir. 1987); Carr v.
Moore, 11910wa 152,93 N.W. 52 (1903).
[FN5] § 269.
[FN6] § 270.
[FN7] U.S. v. Vasarajs, 908 F.2d 443 (9th Cir. 1990).
rights reserved.
END OF DOCUMENT
Page 560 of 665
Westlaw,

Adverse Possession

B. Public Property
1. In General
§ 269. Property of state government
West's Key Number Digest, Adverse Possession €:=7(1), 7(2)
Under the rule that, in the absence of legislation providing otherwise, the statute of limitations does not run
against the government, generally title to public lands cannot be acquired by adverse possession as against any
of the several states.[I] in some of which there are constitutional and statutory provisions to this effect.[2] Also,
because state's rights in land are not always enforced and protected with the same vigilance as private rights, no
person can acquire title to state lands by adverse possession;[3] the statute exempting public lands from limita-
tions period for adverse possession is intended to enable holders of land in public use to oust trespassers and
preserve the public use, regardless of how long trespasser had possessed the land.[4] Thus the assertion, by one
who is encroaching on state property, of the presumption that possession of property peaceably acquired is law-
ful, cannot be used to circumvent the fundamental principle that adverse rights cannot run against the state,[S]
no matter how peaceful the encroachment has been or for how long.[6]
The general rule that title by adverse possession cannot be acquired against the state applies with particular
force to state lands appropriated to a public use[7] or made inalienable by statute or constitutional provision,[8]
although the application of this rule may be limited where neither the state or its grantees have considered the
subject property to be held in sovereign trust.[9] The rule has been applied to highways,[IO] lands granted to the
state in aid of railroad construction, or other land used by the state in aid of other internal improvements,[II]
school and university property,[12] land under state waters,[I3] islands,[14] accretions to riparian lands owned
by a state,[IS] and lands in a forest preserve.[16] In some jurisdictions the rule applies to lands forfeited to the
state for nonpayment of taxes,[I7] while it has not been followed in such instances in other jurisdictions.[18]In
some jurisdictions the rule is not applied to state lands sold but not yet patented; thus after the state has sold land
pursuant to statute, and before issuance of the patent therefor, the land is subject to acquisition by adverse pos-
session even though the legal title is in the state; the failure of the purchasers to demand the issuance of the pat-
ent and the state's delay in issuing it cannot defeat a claim to title by adverse possession under such circum-
stances on the ground that such possession was adverse to the state.[19]
The general rule that title cannot be acquired by adverse possession against the state has no application in

Page 561 of 665

litigation where the state is only a nominal party, its name being used merely for the enforcement of the rights of
third persons who alone will enjoy the benefits.[20] Even in states in which the statute does not run against the
government, one may acquire rights in public lands by adverse occupancy against all third persons,[21] and this
is true even though the claimant admits the government's ownership;[22] in other words, the claimant's posses-
sion may be adverse to third persons without being hostile to the govemment.[23]
In some jurisdictions, it is expressly provided that the statute of limitations shall run against the state gener-
ally, or to a limited extent, and of course in that event its lands are as liable to effective adverse occupancy as
are those of individuals.[24]
Observation:
Although the statute of limitations will not ordinarily run against the state, in some cases there may be a pre-
sumption of a lost grant, that is a conveyance from the state may be presumed from exclusive possession under a
claim of ownership for a long time.[25] The greatest practical difference between adverse possession and the
doctrine of a presumption of grant to possessor by the state is that the latter allows assertions of claims against
the sovereign, despite statutes barring adverse possession against state.[26]
Cases:
The general rule is that adverse possession does not apply against the state. Houck v. Bd. of Park Commrs.
of the Huron Cly. Park Dist., 116 Ohio St. 3d 148, 2007-0hio-5586, 876 N.E.2d 1210 (2007).
[FNI] City of Marietta v. CSX Transp., Inc., 196 F.3d \300,45 Fed. R. Servo 3d 1142 (11th Cir. 1999),
certified question answered, 272 Ga. 612, 533 S.E.2d 372 (2000); U. S. v. Fenton, 27 F. Supp. 816 (D.
Idaho 1939); Patton v. North Jersey Dis!. Water Supply Com'n, 93 N.J. 180,459 A.2d 1177 (1983);
Wyatt v. Wycough, 232 Ark. 760, 341 S.W.2d 18 (1960); Goldman v. Quadrato, 142 Conn. 398, 114
A.2d 687, 55 A.L.R.2d 549 (1955); State ex reI. Sprynczynatyk v. Mills, 523 N.W.2d 537 (N.D. 1994);
Com., Dept. ofTransp. v. J. W. Bishop & Co., Inc., 497 Pa. 58, 439 A.2d 101 (1981).
[FN2] People ex info Board of Harbor Com'rs for San Diego Bay v. Kerber, 152 Cal. 731, 93 P. 878
(1908); Gibson v. State Land Com'r, 374 So. 2d 212 (Miss. 1979).
[FN3] State v. Tallman, \39 N.H. 223, 652 A.2d \34 (1994).
[FN4]In re.88 Acres of Property, 165 Vt. 17,676 A.2d 778 (1996).
[FN5] Arkansas Game and Fish Com'n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987); Ketchum v.
Whitfield County, 270 Ga. 180, 508 S.E.2d 639 (1998); Hernik v. Director of Highways, 169 Ohio St.
403,8 Ohio Op. 2d 438,160 N.E.2d 249 (1959).
Page 562 of 665

[FN6] Hernik v. Director of Highways, 169 Ohio St. 403, 8 Ohio Op. 2d 438, 160 N.E.2d 249 (1959).
[FN7] Smith v. People, 9 A.D.2d 205, 193 N.Y.S.2d 127 (3d Dep't 1959); Kempner v. Aetna Hose,
Hook & Ladder Co., 394 A.2d 238 (Del. Ch. 1978); Trigg v. Allemand, 95 N.M. 128, 619 P.2d 573 (Ct.
App. 1980).
[FN8] City of New York v. Wilson & Co., 278 N.Y. 86, 15 N.E.2d 408 (1938).
[FN9] People v. System Properties, Inc., 2 N.Y.2d 330, 160 N.Y.S.2d 859, 141 N.E.2d 429 (1957).
[FN10] §272.
[FNII] Wright v. Louisville & N.R. Co., 203 Ala. 118, 82 So. 132 (1919); Pearce v. Cone, 147 Fla.
165,2 So. 2d 360 (1941).
[FNI2] § 273.
[FN 13] § 274.
[FNI4] Smith v. People, 9 A.D.2d 205,193 N.Y.S.2d 127 (3d Dep't 1959) (island in reservoir).
[FNI5] Topping v. Cohn, 71 Neb. 559, 99 N.W. 372 (1904).
[FNI6] People v. Baldwin, 233 N.Y. 672,135 N.E. 964 (1922).
[FNI7] Bigler v. Graham County, 128 Ariz. 474, 626 P.2d 1106 (Ct. App. Div. 21981).
[FNI8] To the contrary, see Ortiz v. Pacific States Properties, 96 Cal. App. 2d 34, 215 P.2d 514 (2d
Dist. 1950); Wood v. Mayo, 240 La. 109, 121 So. 2d 503 (1960).
[FN 19] Minersville Land & Livestock Co. v. Staten, 7 Utah 2d 331,325 P.2d 260 (1958).
[FN20] Thomas v. Young, 196 Va. 1166,87 S.E.2d 127, 50 A.L.R.2d 592 (1955).
[FN21] Hamblin v. Woolley, 64 Ariz. 152, 167 P.2d 100 (1946); Mackinac Island Development Co.,
Ltd. v. Burton Abstract and Title Co., 132 Mich. App. 504, 349 N.W.2d 191 (1984); Test v. Reichert,
144 Neb. 836,14 N.W.2d 853,153 A.L.R. 504 (1944).
[FN22] Hamblin v. Woolley, 64 Ariz. 152, 167 P.2d 100 (1946); Blumer v. Iowa Railroad Land Co.,
129 Iowa 32, 105 N.W. 342 (1905), affd, 206 U.S. 482, 27 S. Ct. 769, 51 L. Ed. 1148 (1907); Fear v.
Barwise, 93 Kan. 131, 143 P. 505 (1914); Stonum v. Davis, 348 Mo. 267, 152 S.W.2d 1067 (1941);
Test v. Reichert, 144 Neb. 836, 14 N.W.2d 853, 153 A.L.R. 504 (1944); Boe v. Arnold, 54 Or. 52, 102
P. 290 (1909).
[FN23] Hamblin v. Woolley, 64 Ariz. 152, 167 P.2d 100 (1946); Fear v.Barwise, 93 Kan. 131, 143 P.
505 (1914); Stonum v. Davis, 348 Mo. 267,152 S.W.2d 1067 (1941).
[FN24] State of Alabama v. Schmidt, 232 U.S. 168,34 S. Ct. 301, 58 L. Ed. 555 (1914); Carino v. Insu-
Page 563 of 665

lar Government of Philippine Islands, 212 U.S. 449, 29 S. Ct. 334, 53 L. Ed. 594 (1909); State v. Phil-
lips, 400 A.2d 299 (Del. Ch. 1979), judgment affd, 449 A.2d 250 (Del. 1982) (adverse possession for
period prior to repeal of statute allowing adverse possession as against state); Caywood v. Department
of Natural Resources, 71 Mich. App. 322, 248 N.W.2d 253 (1976).
[FN25] U.S. v. Fullard-Leo, 331 U.S. 256, 67 S. Ct. 1287, 91 L. Ed. 1474 (1947); Kohala Corp. v.
State, 69 Haw. 54, 732 P.2d 652 (1987); Trustees of Schools of Tp. No. 8 v. Lilly, 373 III. 431, 26
N.E.2d 489 (1940) (80 years).
[FN26] Board of Trustees of Monroe County Bd. of Educ. v. Rye, 521 So. 2d 900, 45 Ed. Law Rep. 919
(Miss. 1988).
rights reserved.
END OF DOCUMENT

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Westlaw

Adverse Possession

B. Public Property
1. In General
§ 270. Property held by municipalities, counties, and other political units
A.L.R. Library
Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R. 3d 1182.
As a general rule, property held by municipal and quasi-municipal corporations cannot be acquired by ad-
verse possession, at least in so far as such property is held for the public;[ 1] and this is true even though the
property has not been irrevocably dedicated to public use.[2] This rule has been applied to the property of
counties,[3] municipalities,[4] towns,[5] school districts and universities,[6] irrigation districts,[7] and flood
management districts.[8] A municipality does not forfeit its immunity from adverse possession merely by lack of
use of property that is intended for development for public use at some future date.[9]
However, in some jurisdictions, either as a matter of general law, or because of legislation, the property of
counties, municipal and quasi-municipal corporations, and towns, is deemed to be subject to adverse occu-
pancy,[lO] and in particular such property may be subject to adverse possession if it has not been dedicated to a
public use,[ll] or the public has not accepted the dedication,[12] or the property is not devoted to a public use.[
13] Once property has been dedicated, however, it cannot later be acquired by adverse possession.[14]
The statutory exemption for lands given, granted, sequestered, or appropriated to public, pious, or charitable
use is not construed to provide a town with a blanket exemption from adverse possession claims, but to provide
only for the presumption that property is given to public use which can be rebutted by evidence to the contrary,
resulting in property not being exempt from adverse possession claims.[15]
[FN I] Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 429 A.2d 865 (1980); Waterman v.
Smith, 94 So. 2d 186 (Fla. 1957); Fischer v. City of Sauk Rapids, 325 N.W.2d 816 (Minn. 1982).
Page 565 of 665

[FN2] City of Oakland v. Bums, 46 Cal. 2d 401, 296 P.2d 333 (1956); Goldman v. Quadrato, 142 Conn.
398, 114 A.2d 687, 55 A.L.R.2d 549 (1955); Waterman v. Smith, 94 So. 2d 186 (Fla. 1957); State
Highway Dep!. of Ga. v. Harris, 214 Ga. 521, 106 S.E.2d 19 (1958); Messersmith v. Mayor and Com-
mon Council of Riverdale, 223 Md. 323, 164 A.2d 523 (1960).
[FN3] Harrison v. Everett, 135 Colo. 55, 308 P.2d 216 (1957); Williams v. Fayette County, 270 Ga.
528,510 S.E.2d 825 (1999); Moultrie v. Wright, 266 Ga. 30, 464 S.E.2d 194 (1995).
[FN4] American Trading Real Estate Properties, Inc. v. Town of Trumbull, 215 Conn. 68, 574 A.2d 796
(1990); Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687,55 A.L.R.2d 549 (1955); Hames v. City of
Marietta, 212 Ga. 331, 92 S.E.2d 534 (1956); City of Louisville v. Louisville Scrap Material Co., Inc.,
932 S. W.2d 352 (Ky. 1996); Town of Sedgwick v. Butler, 1998 ME 280, 722 A.2d 357 (Me. 1998) ..
[FN5] Town of Refugio v. Heard, 95 S.W.2d 1008 (Tex. Civ. App. San Antonio 1936), rev'd on other
grounds in part, 129 Tex. 349,103 S.W.2d 728 (1937).
[FN6] § 273.
[FN7] Fresno Irr. Dis!. v. Smith, 58 Cal. App. 2d 48,136 P.2d 382 (4th Dis!. 1943).
[FN8] Miami Conservancy Dis!. v. Elleman, 50 Ohio App. 2d 357, 4 Ohio Op. 3d 313, 363 N.E.2d 593
(2d Dis!. Miami County 1976).
(1990).
[FNIO] State of Alabama v. Schmidt, 232 U.S. 168,34 S. C!. 301, 58 L. Ed. 555 (1914); Thompson v.
Morris, 218 Ark. 542,237 S.W.2d 473, 24 A.L.R.2d 627 (1951); Hart v. Sternberg, 205 Ark. 929, 171
S.W.2d 475 (1943); Haas v. Board of Com'rs of Red River, Atchafalaya and Bayou Boeuf Levee Dis!.,
206 La. 378, 19 So. 2d 173 (1944) (levee district); Warren County v. Lamkin, 93 Miss. 123,46 So. 497
( 1908).
[FNII] Deer Island Ass'n v. Trolle, 181 Conn. 201, 435 A.2d 10 (1980); Goldman v. Quadrato, 142
Conn. 398, 114 A.2d 687, 55 A.L.R.2d 549 (1955); Cobb County v. Crew, 267 Ga. 525,481 S.E.2d 806
(1997); City of New Iberia v. Romero, 391 So. 2d 548 (La. C!. App. 3d Cir. 1980).
[FNI2] Gregg Neck Yacht Club, Inc. v. County Com'rs of Kent County, 137 Md. App. 732, 769 A.2d
982 (2001)
[FNI3] Siejack v. City of Baltimore, 270 Md. 640, 313 A.2d 843 (1974) (limiting decision to same or
similar facts).
[FNI4] Gregg Neck Yacht Club, Inc. v. County Com'rs of Kent County, 137 Md. App. 732, 769 A.2d
982 (2001).
[FNI5] Jarvis v. Gillespie, 155 Vt. 633, 587 A.2d 981 (1991).
Page 566 of 665

rights reserved.
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Westiaw.

Adverse Possession

B. Public Property
1. In General
§ 271. Property held by municipalities, counties, and other political units-Property held in a proprietary
capacity
A.L.R. Library
Private improvement of land dedicated but not used as street as estopping public rights, 36 A.L.R. 4th 625.
The distinction may be made in some jurisdictions between property that is held in a governmental capacity
and that which is owned by a governmental unit in its proprietary capacity, such that title to the latter might be
acquired by adverse possession.[1] Indeed, in some jurisdictions the general rule is that land or property of a
governmental unit such as a municipality that is not held for a public use, but is held in a proprietary or business
capacity, may be acquired by adverse possession, in the absence of statutory modification or enactments to the
contrary.[2] The distinction may extend to property which is not held for the use of which all the inhabitants of a
city or other place, and even strangers, are entitled in common, but are things which are to be employed by the
administrators for the advantage of the inhabitants of the municipality, and are therefore subject to acquisitive
prescription.[3] However, the distinction between governmental and proprietary use has not been accepted in all
jurisdictions as a ground for allowing adverse possession against a governmental unit.[4]
[FNI] Lewis v. Village of Lyons, 54 A.D.2d 488, 389 N.Y.S.2d 674 (4th Dep't 1976) (municipality);
Hammond v. Shepard, 186 Ill. 235, 57 N.E. 867 (1900) (municipality); Pioneer Investment & Trust Co.
v. Board of Education of Salt Lake City, 35 Utah I, 99 P. 150 (1909) (municipality); Sisson v. Koelle,
10 Wash. App. 746, 520 P.2d 1380 (Div. 21974) (county).
[FN2] Monthie v. Boyle Road Associates, L.L.C., 281 A.D.2d 15, 724 N.Y.S.2d 178, 153 Ed. Law Rep.
741 (2d Dep't 2001); Casini v. Sea Gate Ass'n, 262 A.D.2d 593, 692 N.Y.S.2d 676 (2d Dep't 1999);
Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687, 55 A.L.R.2d 549 (1955); Read v. Montgomery
Page 568 of 665

County, 101 Md. App. 62, 643 A.2d 476 (1994).
As to property held by municipalities, counties, and other political units, see § 270.
[FN3] Town of Broussard v. Broussard Volunteer Fire Dept., 357 So. 2d 25 (La. Ct. App. 3d Cir. 1978).
[FN4] Grand Lodge of Ga., Independent Order of Odd Fellows v. City of Thomasville, 226 Ga. 4, 172
S.E.2d 612 (1970).
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

B. Public Property
2. Particular Kinds of Property Used by the Public
§ 272, Highways, streets, parks, and the like
West's Key Number Digest, Adverse Possession <£:=8(2)
The general rule, sometimes embodied in statute, is that the statute of limitations does not run in favor of
those who occupy property held for public use as a street or highway,[I] and that title cannot be acquired thereto
by such occupancy,[2] no matter how long the occupancy has been continued and whatever may have been its
character.[3] Thus, generally, the rights of the public in its highways cannot be lost by acquiescence in the use or
occupation thereof by individuals,[4] and where only part of the width of a public street is opened and used by
the authorities, adverse possession of the remainder by a private individual cannot ripen into title.[5] There are,
however, jurisdictions in which municipal property of this character may be acquired by adverse possession.[6]
Where such highways have not been opened or used, in many jurisdictions the general rule that highways
cannot be lost through adverse possession applies,[7] while in other jurisdictions when streets are laid out on a
plat but are not so used by the public, they are nothing more than private ways and may be adversely possessed.[
8] Thus, in some states, title by adverse possession may be acquired relative to streets or parks that are un-
opened,[9] unaccepted,[IO] or unused.[1 1]ln the absence of passage of title to the public, a public roadway is
not created which would be immune from adverse possession.[I2]In some jurisdictions title may be acquired by
the adverse possession ofland when its use as a highway has been abandoned[13] or vacated.[14]
Cases:
Establishing a public highway pursuant to the highway-by-user stalUte requires four elements: (1) a defined
line; (2) that the road was used and worked on by public authorities; (3) public travel and use for ten consecutive
years without interruption; and (4) open, notorious, and exclusive public use. M.C.L.A. § 221.20. Villadsen v.
Mason County Road Com'n, 268 Mich. App. 287, 706 N.W.2d 897 (2005).
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[FNI] Messersmith v. Mayor and Common Council of Riverdale, 223 Md. 323, 164 A.2d 523 (1960);
McCauley v. Thompson-Nistler, 2000 MT 215, 301 Mont. 81, 10 P.3d 794 (2000); Bauer Enterprises,
Inc. v. City of Elkins, 173 W. Va. 438, 317 S.E.2d 798 (1984).
[FN2] Baertsch v. County of Lewis and Clark, 256 Mont. 114,845 P.2d 106 (1992); Catalano v. Wood-
ward, 617 A.2d 1363 (R.1. 1992); Bauer Enterprises, Inc. v. City of Elkins, 173 W. Va. 438, 317 S.E.2d
798 (1984).
[FN3] Staunton v. Texas Company, 237 F.2d 195 (2d Cir. 1956); Wood v. Setliff, 229 Ark. 1007, 320
S.W.2d 655 (1959) (by statute); City of Oakland v. Bums, 46 Cal. 2d 401, 296 P.2d 333 (1956) (by stat-
ute); Waterman v. Smith, 94 So. 2d 186 (Fla. 1957) (alley); State Highway Dept. of Ga. v. Harris, 214
Ga. 521, 106 S.E.2d 19 (1958); Messersmith v. Mayor and Common Council of Riverdale, 223 Md.
323, 164 A.2d 523 (1960); Petition of Cara Ave., Sandy Beach, Cass County, 350 Mich. 283, 86
N.W.2d 319 (1957); Application of Stein, 256 Minn. 485, 99 N.W.2d 204 (1959) (public way); City of
Billings v. Pierce Packing Co., 117 Mont. 255, 161 P.2d 636 (1945); Steadman v. Town of Pinetops,
251 N.C. 509, 112 S.E.2d 102 (1960); City of Jamestown v. Miemietz, 95 N.W.2d 897 (N.D. 1959);
Town of Chouteau v. Blankenship, 1944 OK 275, 194 Okla. 401, 152 P.2d 379, 171 A.L.R. 87 (1944);
Hoffman v. City of Pittsburgh, 365 Pa. 386, 75 A.2d 649 (1950) (public square); Town of Warren v.
Wietecha, 84 R.!. 407, 124 A.2d 861 (1956); Bauer Enterprises, Inc. v. City of Elkins, 173 W. Va. 438,
317 S.E.2d 798 (1984).
[FN4] Pullin v. City of Kimberly, 100 Idaho 34, 592 P.2d 849 (1979); Ollison v. Village of Climax
Springs, 916 S.W.2d 198 (Mo. 1996); City of Billings v. Pierce Packing Co., 117 Mont. 255, 161 P.2d
636 (1945); McCauley v. Thompson-Nistler, 2000 MT 215,301 Mont. 81, 10 P.3d 794 (2000); Wanha
v. Long, 255 Neb. 849,587 N.W.2d 531 (1998); Erie County v. Matjorie's Grove and Catering Service,
Inc., 97 Misc. 2d 329, 411 N.Y.S.2d 501 (Sup 1978); 1540 Columbus Corp. v. Cuyahoga Cty., 68 Ohio
App. 3d 713, 589 N.E.2d 467 (8th Dist. Cuyahoga County 1990); Catalano v. Woodward, 617 A.2d
1363 (R.!. 1992); South Carolina State Highway Dept. v. Metts, 270 S.C. 73, 240 S.E.2d 816 (1978); A
& M Properties, Inc. v. Norfolk Southern Corp., 203 W. Va. 189,506 S.E.2d 632 (1998).
[FN5] State Highway Dept. of Ga. v. Harris, 214 Ga. 521,106 S.E.2d 19 (1958).
[FN6] Southern Pac. Co. v. City and County of San Francisco, 62 Cal. 2d 50, 41 Cal. Rptr. 79, 396 P.2d
383 (1964) (rule recognized, but holding that use of vacated street by railroad was permissive and not
adverse); Mauck v. Bailey, 247 Md. 434, 231 A.2d 685 (1967).
[FN7] Landon v. City of Binghamton, 79 A.D.2d 810, 435 N.Y.S.2d 91 (3d Dep't 1980); Wallace v.
Cable, 87 Kan. 835, 127 P. 5 (1912); City of Billings v. Pierce Packing Co., 117 Mont. 255, 161 P.2d
636 (1945); Teter v. Teter, 163 W. Va. 770, 260 S.E.2d 270 (1979) (status of platted street as public
way defeats adverse possession).
[FN8] Wanha v. Long, 255 Neb. 849, 587 N. W.2d 531 (1998).

Page 571 of 665

[FN9] Brewer v. Claypool, 223 Iowa 1235, 275 N.W. 34 (1937); In re Willard Parker Hospital, 217
N.Y. I, III N.E. 256 (1916); Byerlyte Corp. v. City of Cleveland, 32 Ohio L. Abs. 609, 1940 WL 2976
(CI. App. 8th Dist. Cuyahoga County 1940); Simpson v. Incorporated Village of Johnstown, 9 Ohio
App. 102,30 Ohio C.D. 532, 1918 WL 835 (5th Disl. Licking County 1918).
[FNIO] Steadman v. Town of Pinetops, 251 N.C. 509, 112 S.E.2d 102 (1960); Parrillo v. Riccitelli, 84
R.l. 276,123 A.2d 248 (1956).
[FNII] Brewer v. Claypool, 223 Iowa 1235,275 N.W. 34 (1937).
[FNI2] Geronimo Hotel, Inc. v. City of Tucson, 121 Ariz. 446, 591 P.2d 72 (CI. App. Div. 2 1978)
(resolution constituting planning does not constitute establishment of public roadway).
[FNI3] Meeks v. Hill, 557 So. 2d 1238 (Ala. 1990); Alsman v. Matthews, 125 Ind. App. 132, 122
N.E.2d 145 (1954); In re Willard Parker Hospital, 217 N.Y. I, III N.E. 256 (1916); Farrar v. Murphy,
1956 OK 298, 305 P.2d 862 (Okla. 1956) (alley).
[FNI4] Truck-Trailer Supply Co. v. Farmer, 181 Kan. 396, 311 P.2d 1004 (1957); Woolaver v. Texaco,
Inc., 638 S.W.2d 153 (Tex. App. Fort Worth 1982), writ refused n.r.e., (Nov. 10, 1982).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. u.S. Govl. Works. All
rights reserved.
END OF DOCUMENT
Page 572 of 665
Westlaw

Adverse Possession

B. Public Property
§ 273. School or university property
West's Key Number Digest, Adverse Possession €=8(3)
In many jurisdictions title to school property or land devoted to school purposes cannot be acquired by ad-
verse possession.[I] Constitutional or statutory provisions may provide the basis for the rule that school property
cannot be acquired by adverse possession,[2] including where school property is deemed within the scope of a
statute excepting public lands from the statute of limitation for prescriptive purposes.[3] Title to school property
cannot be acquired by adverse possession for the reason that the statute of limitations does not run against the
school district, and not because it is impossible to hold possession against the school sufficiently adverse to cre-
ate an action for possession,[4] thus, a school district may not be divested by one claiming title to school prop-
erty by adverse possession.[5]
The rule that adverse possession does not run against municipal property devoted to a public use may apply
to school district lands.[6] The rule that title by adverse possession or prescription cannot be acquired as against
the state may be applied with respect to lands donated by the United States to the state for public school pur-
poses, or otherwise acquired and held by the state for such purposes or for university or college purposes.[7]
Under particular circumstances, however, title to certain school lands has been held subject to acquisition by
adverse possession,[8] and in jurisdictions where in the absence of a statute to the contrary, the statute of limita-
tions may run against a school district.[9]
[FNI] Lovejoy v. School Dist. No. 46 of Sedgwick County, 129 Colo. 306, 269 P.2d 1067 (1954);
Hellerud v. Hauck, 52 Idaho 226, 13 P.2d 1099 (1932); Martin v. Louisiana Cent. Lumber Co., 157 La.
538, 102 So. 662 (1925); Junes v. Junes, 158 Minn. 53, 196 N.W. 806 (1924); Grand Lodge of Okl., In-
dependent Order of Odd Fellows v. Webb, 1956 OK 342, 306 P.2d 340 (Okla. 1956).
[FN2] Hellerud v. Hauck, 52 Idaho 226, 13 P.2d \099 (1932); Newton v. Weiler, 87 Mont. 164,286 P.
Page 573 of 665

133 (1930); Jackson v. Nacogdoches County, 188 S.W.2d 237 (Tex. Civ. App. Dallas 1945); Van Wag-
oner v. Whitmore, 58 Utah 418, 199 P. 670 (1921).
[FN3] Wilson v. Wheeler Farms, Inc., 591 S.W.2d 287 (Mo. Ct. App. S.D. 1979).
[FN4] Grand Lodge of Ok!., Independent Order of Odd Fellows v. Webb, 1956 OK 342, 306 P.2d 340
(Okla. 1956).
[FN5] Pittman v. Cottonwood School Dist. No.4, Coal County, 1980 OK C[V APP 32, 614 P.2d 582
(Okla. Ct. App. Div. I 1980).
[FN6] Murtaugh v. Chicago, M. & St. P. Ry. Co., 102 Minn. 52, 1[2 N.W. 860 (1907); Merritt [nde-
pendent School Dist. No.2 of Beckham County v. Jones, [952 OK 38[, 207 Okla. 376, 249 P.2d 1007
(1952).
As to property held by municipalities, generally, see § 270.
[FN7] State of Alabama v. Schmidt, 232 U.S. 168, 34 S. Ct. 301, 58 L. Ed. 555 (1914); Murtaugh v.
Chicago, M. & St. P. Ry. Co., 102 Minn. 52, 112 N. W. 860 (1907); State v. City of Seattle, 57 Wash.
602, 107 P. 827 (1910).
As to state property, generally, see § 269.
[FN8] Brown v. Board of Education, Monroeville Local School Dist., 20 Ohio st. 2d 68, 49 Ohio Op.
2d 347, 253 N.E.2d 767 (1969).
[FN9] Thompson v. Morris, 218 Ark. 542,237 S.W.2d 473, 24 A.L.R.2d 627 (1951).
© 2010 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRIA. No Claim to Orig. U.S. GoV!. Works. All
rights reserved.
END OF DOCUMENT
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Westlaw.

Adverse Possession

B. Public Property
§ 274. Navigable and other public waters; river and lake beds and shores
West's Key Number Digest, Adverse Possession €==5.1, 7(1)
It is the general rule that an adverse possession cannot ripen into title to waters on public lands, except
where it is otherwise provided by statute.[I] Generally, as against the state, the title to land under water cannot
be acquired by adverse possession for any period.[2] This may extend to barring property owners from acquiring
ownership of a strip of land cleared by dredging, exposing property previously under water and thus held by the
state in public trust.[3]
Where it is provided by statute that lands under water shall not be granted by the state, there is an additional
reason against the acquisition of title to such lands by adverse possession, since title by adverse possession rests
on a presumed grant, and the statute forbids any such presumption.[4] The rule that title by adverse possession
or prescription cannot be acquired as against the United States or as against the state is applied in a number of
cases involving tidelands[5] and swamplands.[6] Title to land under water vested in a municipality cannot be di-
vested by adverse possession, even after it is filled, if it was made inalienable by statute or is held for a public
purpose.[7]
Title to navigable waters cannot be acquired by adverse possession;[8] neither can title by adverse posses-
sion to lands under navigable waters be acquired as against the state;[9] nor can title to the beds or shores of
such waters,[IO] or to islands therein, be so acquired.[ll]
[FNl] Jersey City v. Hall, 79 N.J.L. 559, 76 A. 1058 (N.J. Ct. Err. & App. 1910).
As to public lands, generally, see 63A Am. Jur. 2d, Public Lands.
As to acquisition of water or water rights by adverse possession or prescription, generally, see 78 Am.
Jur. 2d, Waters §§ 367 to 379.
Page 575 of 665

As to adverse possession of wharf property, see 79 Am. Jur. 2d, Wharves § 7.
[FN2] Cedar Rapids Gaslight Co. v. City of Cedar Rapids, 144 Iowa 426, 120 N.W. 966 (1909), affd,
223 U.S. 655, 32 S. Ct. 389, 56 L. Ed. 594 (1912) (land under river); State v. Akers, 92 Kan. 169, 140
P. 637 (1914), affd, 245 U.S. 154, 38 S. Ct. 55, 62 L. Ed. 214 (1917); Jersey City v. Hall, 79 N.J.L.
559,76 A. 1058 (N.J. Ct. Err. & App. 1910).
As to land under or surrounded by water that is not navigable or public, see § 265.
[FN3] Hall v. Nascimento, 594 A.2d 874 (R.I. 1991).
[FN4] Sterling v. Sterling, 211 Md. 493,128 A.2d277 (1957).
[FN5] U.S. v. State of Cal., 332 U.S. 19,67 S. Ct. 1658,91 L. Ed. 1889 (1947), opinion supplemented,
332 U.S. 804, 68 S. Ct. 20, 92 L. Ed. 382 (1947) and petition denied, 334 U.S. 855, 68 S. Ct. 1517,92
L. Ed. 1776 (1948); Marine Ry. & Coal Co. v. U.S., 257 U.S. 47, 42 S. Ct. 32, 66 L. Ed. 124 (1921);
O'Neill v. State Highway Dept., 50 N.J. 307, 235 A.2d I (1967); People ex inf. Board of Harbor Com'rs
for San Diego Bay v. Kerber, 152 Cal. 731, 93 P. 878 (1908).
As to federal property, see § 268.
As to state property, see § 269.
[FN6] Brinneman v. Scholem, 95 Ark. 65, 128 S.W. 584 (1910); Penick v. Floyd Willis Cotton Co., 119
Miss. 828, 81 So. 540 (1919).
[FN7] In re College Point Industrial Park, Urban Renewal, Project II, New York City, 72 A.D.2d 745,
421 N.Y.S.2d 258 (2d Dep't 1979).
[FN8] People ex info Board of Harbor Com'rs for San Diego Bay V. Kerber, 152 Cal. 731, 93 P. 878
(1908); Brickell V. Trammell, 77 Fla. 544, 82 So. 221 (1919); Gray v. Gray, 178 Md. 566, 16 A.2d 166
(1940).
As to navigable or public waters, generally, see 78 Am. Jur. 2d, Waters §§ 122 to 173.
[FN9] People ex inf. Board of Harbor Com'rs for San Diego Bay V. Kerber, 152 Cal. 731, 93 P. 878
(1908); Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1919); Sterling V. Sterling, 211 Md. 493, 128
A.2d 277 (1957); Gray V. Gray, 178 Md. 566, 16 A.2d 166 (1940).
[FNIO] Mobile Transp. CO. V. City of Mobile, 153 Ala. 409, 44 So. 976 (1907).
[FNII] U.S. V. Turner, 175 F.2d 644 (5th Cir. 1949); Wunderlich V. Cates, 213 Ark. 695, 212 S.W.2d
556 (1948); Bode V. Rollwitz, 60 Mont. 481, 199 P. 688 (1921).
rights reserved.
Page 576 of 665

END OF DOCUMENT
Page 577 of 665
Westlaw,

Adverse Possession

B. Public Property
3. Property Imbued with Public Purpose; Railroad Property
§ 275. Generally
The principles which exempt the government and its subdivisions from application of the statute of limita-
tions, and which prevent the acquisition of public property by adverse possession, may also apply to the preser-
vation of property owned by quasi-public corporations, such as canal, railroad, gas and electric, water, telegraph,
and telephone companies.[I] An important factor is whether the property is deemed to be dedicated to a public
use as provided by statutory provisions limiting the applicability of adverse possession to such property,[2] con-
sidering the general rule that no prescriptive right can be acquired in property affected with public interest or
dedicated to public use.[3] Thus, while title to realty held in fee by the state or any of its subdivisions for public
use generally cannot be acquired by adverse possession, a public entity may claim immunity from adverse pos-
session only to the extent that the property against which the claim has been asserted is held for public use.[4]
[FNI] Harvey v. Missouri Pac. R. Co., III Kan. 371,207 P. 761, 50 A.L.R. 300 (1922); Bode v. Roll-
witz, 60 Mont. 481,199 P. 688 (1921).
[FN2] Boyle v. Burk, 749 S.W.2d 264 (Tex. App. Fort Worth 1988), writ denied, (Sept. 14, 1988)
(utility power line easement not within statute).
[FN3] Norfolk and Western Ry. Co. v. Waselchalk, 244 Va. 329, 421 S.E.2d 424 (1992).
(1990).
rights reserved.
Page 578 of 665

END OF DOCUMENT
Page 579 of 665
We·stlaw.

Adverse Possession

B. Public Property
§ 276. Railroad property generally
West's Key Number Digest, Adverse Possession tC=8(4)
In some jurisdictions, the doctrine prevails that land embraced within a railroad right-of-way is held for a
public purpose, and for that reason cannot be acquired by adverse possession,[I] so long as a railroad is operated
thereon,[2] largely based on the theory that the general public has the same interest in the preservation and
maintenance of railroads as it has in the maintenance of other higbways.[3] In some states, railroad rights-
of-way are expressly exempted by statute from the operation of the statute of limitations as being public high-
ways or lands devoted to public use,[4] while in other jurisdictions the statute protecting a railroad from the loss
of its land by adverse possession does not require that railroad actually use the land for a railroad purpose.[5]
Generally land acquired by a railroad under a grant from the public cannot be extinguished by adverse posses-
sion,[6] since the right so granted is inalienable.[7]
[FNI] Northern Pac. Ry. Co. v. Concannon, 239 U.S. 382, 36 S. Ct. 156,60 L. Ed. 342 (1915); Howard
v. Perrin, 200 U.S. 71, 26 S. Ct. 195, 50 L. Ed. 374 (1906); Northern Pac. Ry. Co. v. Townsend, 190
U.S. 267, 23 S. Ct. 671,47 L. Ed. 1044 (1903); Bangor & Aroostook R. Co. v. Daigle, 607 A.2d 533
(Me. 1992).
[FN3] McLucas v. St. Joseph & G.I.R. Co., 67 Neb. 603, 93 N.W. 928 (1903), atrd, 67 Neb. 603, 97
N.W. 312 (1903); Muse v. Seaboard Air Line Ry., 149 N.C. 443, 63 S.E. 102 (1908).
As to adverse possession of highways, see § 272.
[FN4] Hurlbut Rogers Machinery Co. v. Boston & M.R.R., 235 Mass. 402, 126 N.E. 789 (1920); Cent-
ral Vermont Ry. Co. v. Bowers, 100 Vt. 26,134 A. 608 (1926).
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[FN5) McLaurin v. Winston-Salem Southbound Ry. Co., 323 N.C. 609, 374 S.E.2d 265 (\ 988).
[FN6) Great Northern Ry. Co. v. Steinke, 261 U.S. 119,43 S. Ct. 316, 67 L. Ed. 564 (\923); Nadeau v.
Union Pac. R. Co., 253 U.S. 442, 40 S. Ct. 570, 64 L. Ed. 1002 (\ 920); Kindred v. Union Pac. R. Co.,
225 U.S. 582, 32 S. Ct. 780, 56 L. Ed. 1216 (\912); Seaboard Air Line Ry. Co. v. Board of Bond Trust-
ees of Special Road and Bridge Dist. No.1 of Alachua County, 91 Fla. 612, 108 So. 689,46 A.L.R. 870
(\ 926).
[FN7) Crandall v. Goss, 30 Idaho 661, 167 P. 1025 (\917); Etheredge v. Chicago, B. & Q.R. Co., 105
Neb. 778,181 N.W. 928 (\921).
rights reserved.
END OF DOCUMENT
Page 581 of 665
Westlaw.

Adverse Possession

B. Public Property
§ 277. Railroad property generally-Railroad property subject to adverse possession
West's Key Number Digest, Adverse Possession €:=>8(4)
Title by adverse possession may be acquired to lands within the right-of-way of a railroad company in some
jurisdictions,[ I] particularly in the absence of a statute to the contrary and where the title or easement of the rail-
road to the land was not acquired by a public grant,[2] and including particularly portions of the right-of-way as
have not been dedicated to public use.[3] Public policy does not bar a private citizen's claim for adverse posses-
sion of a railroad right-of-way when the railroad acquired the property by means of a private sale.[4] Thus, in
states where no controlling statutes intervene, such parts of a railroad right-of-way as were acquired by private
grant, purchase, gift, condemnation, or prescription, and are not enclosed or covered by the tracks of the railroad
company and its structures, may be acquired by other persons by adverse possession.[5]
Railroad property acquired by a private sale and held in fee simple, which has not been designated for the
railroad's line or other railroad operations, is subject to adverse possession.[6]
[FNI] Iowa R. Land Co. v. Blumer, 206 U.S. 482, 27 S. C!. 769, 51 L. Ed. 1148 (1907); Seaboard Air
Line Ry. Co. v. Board of Bond Trustees of Special Road and Bridge Dis!. No. I of Alachua County, 91
Fla. 612, 108 So. 689, 46 A.L.R. 870 (1926); Bowers v. Atchison, T. & S.F. Ry. Co., 119 Kan. 202, 237
P. 913, 42 A.L.R. 228 (1925); Delaware, L. & W. R. Co. v. Tobyhanna Co., 228 Pa. 487, 77 A. 811
(1910); Dulin v. Ohio River R. Co., 73 W. Va. 166,80 S.E. 145 (1913).
[FN2] Louisville & N.R. Co. v. Malchow, 216 Ala. 656, 114 So. 53 (1927); Seaboard Air Line Ry. Co.
v. Board of Bond Trustees of Special Road and Bridge Dist. No. I of Alachua County, 91 Fla. 612, 108
So. 689,46 A.L.R. 870 (1926); Atlantic Coast Line R. Co. v. Dawes, 100 S.c. 258, 84 S.E. 830 (1915);
Dulin v. Ohio River R. Co., 73 W. Va. 166,80 S.E. 145 (1913).
[FN3] Seaboard Air Line Ry. Co. v. Board of Bond Trustees of Special Road and Bridge Dis!. No. I of
Page 582 of 665

Alachua County, 91 Fla. 612, 108 So. 689, 46 A.L.R. 870 (1926); Chicago, M. & S!. P. Ry. Co. v.
Hanken, 140 Iowa 372, 118 N. W. 527 (1908).
[FN4] Meiers v. Wang, 192 Wis. 2d 115,531 N.W.2d 54 (1995).
[FN5] Seaboard Air Line Ry. Co. v. Board of Bond Trustees of Special Road and Bridge Dis!. No. I of
Alachua County, 91 Fla. 612, 108 So. 689, 46 A.L.R. 870 (1926); Meiers v. Wang, 192 Wis. 2d 115,
531 N.W.2d 54 (1995).
rights reserved.
END OF DOCUMENT
Page 583 of 665
Westlaw.
AMJUR ADVERSE V C REF Page I
3 Am. Jur. 2d Adverse Possession V C Refs.

Adverse Possession

C. Mines, Minerals, and Mineral Lands
Research References
West's Key Number Digest, Adverse Possession <£;=5.1, 16, 17

West's Key Number Digest, Mines and Minerals <£;=49
A.loR, Library
A.L.R. Digest: Adverse Possession § 48
A.L.R. Index: Mines and Minerals
rights reserved.
AMJUR ADVERSE V C REF
END OF DOCUMENT
Page 584 of 665
Westlaw.

Adverse Possession

I. In General
§ 278. Generally
West's Key Number Digest, Adverse Possession <£=:>5.1

West's Key Number Digest, Mines and Minerals oC=49
The factors required to establish adverse possession of minerals are generally identical with those required
for the adverse possession of land,[I] although where there is a severance between the surface and mineral es-
tates, the activity must be consistent with mining for the full statutory period.[2] Thus, as a general rule, to ac-
quire title to mines or minerals by adverse possession, the possession must be open, notorious, continuous, hos-
tile, and under a claim of right, and, in jurisdictions where color of title is required, under adequate color of
title.[3] Possession under a void claim is not permissive and may support a title acquired by adverse possession.[ 4]
One cannot obtain a royalty interest in minerals by adverse possession; that the collection of royalty pay-
ments for a tenn of years does not constitute adverse possession of the minerals in place; such collection of roy-
alty payments is merely conversion of the minerals that have already been produced and does not affect what re-
mains in the ground.[5] Knowledge of the contents of an instrument attempting to make an assignment of natural
gas distribution rights cannot ripen into adverse possession.[6]
[FN I] Diederich v. Ware, 288 S. W.2d 643 (Ky. 1956); White Log Jellico Coal Co., Inc. v. Zipp, 32
S. W.3d 92 (Ky. Cl. App. 2000), review denied, (Dec. 13,2000).
As to mines and minerals, generally, see 53A Am. Jur. 2d, Mines and Minerals.
[FN2] White Log Jellico Coal Co., Inc. v. Zipp, 32 S.W.3d 92 (Ky. Cl. App. 2000), review denied,
(Dec. 13,2000).
As to absence of severance, see § 280.
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As to effect of severance on adverse possession, generally, see § 284.
[FN3] Parker v. Sinclair, 59 F.2d 1033 (App. D.C. 1932); Big Three Min. & Mill. Co. v. Hamilton, 157
Cal. 130, 107 P. 301 (1909); Diederich v. Ware, 288 S.W.2d 643 (Ky. 1956); White Log Jellico Coal
Co., Inc. v. Zipp, 32 S.W.3d 92 (Ky. Ct. App. 2000), review denied, (Dec. 13,2000).
As to federal statutory provisions governing possession of mining claims sufficient to relieve claimant
of the necessity of making proof and recording notice, see 53A Am. Jur. 2d, Mines and Minerals § 55.
[FN4]25 Corp., Inc. v. Eisenman Chemical Co., 101 Nev. 664, 709 P.2d 164 (1985).
[FN5] Stratmann v. Stratmann, 6 Kan. App. 2d 403, 628 P.2d 1080 (1981).
[FN6] Boggs v. Burton, 547 S.W.2d 786 (Ky. Ct. App. 1977).
rights reserved.
END OF DOCUMENT
Page 586 of 665
Westlaw.

Adverse Possession

1. In General
§ 279. Extent of possession
West's Key Number Digest, Adverse Possession C=5.1, 16, 17

West's Key Number Digest, Mines and Minerals C=49
As a general rule, title founded on adverse possession of mines, minerals, or mineral lands will be limited to
that area of which actual possession has been maintained.[I] Where adverse possession of mineral lands is taken
and maintained under color of title, however, it is widely recognized that the general rule that actual possession
of a part of premises under color of title will be extended by construction for adverse possession purposes to the
whole premises may be applied.[2]
[FN I] Davis v. Federal Land Bank of Columbia, 219 N.C. 248, 13 S.E.2d 4 I7 (1941).
[FN2] Pollard v. Simpson, 240 Ala. 401, 199 So. 560 (1940); Lundy v. Lakin, 96 Cal. App. 2d 221, 215
P.2d 61 (3d Dist. 1950); Kinder v. La Salle County Carbon Coal Co., 310 Ill. 126, 141 N.E. 537 (1923);
Diederich v. Ware, 288 S.W.2d 643 (Ky. 1956); Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117 (1943);
Medusa Portland Cement Co. v. Lamantina, 353 Pa. 53,44 A.2d 244 (1945).
rights reserved.
END OF DOCUMENT
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Westlaw

Adverse Possession

2. In Absence of Severance
Topic SummaI)' Correlation Table References
§ 280. Generally; possession of surface
West's Key Number Diges!

West's Key Number Digest, Mines and Minerals €:=49
In the absence of a severance of the mineral and surface estates, mineral lands do not constitute an excep-
tion 10 the general rule that the title of the owner of real property includes not the surface thereof alone, but also
that which lies beneath and above the surface.[I] Therefore, an adverse possession of the surface of mineral
lands in the absence of severance may ripen into title to the minerals as well as to the land.[2] However if the
possession of the surface is limited to a particular purpose, such as a right-of-way, title to the minerals does not
pass thereby.[3]
In the absence of a severance of title to the surface estate of land from the underlying minerals, the posses·
sion of the surface must be actual,[4] hostile,[5] visible and exclusive,[6] continuous and uninterrupted,[7] in
good faith,[8] and under a claim of title, for the statutoI)' period, in order to give title to the minerals by adverse
possession. Residence on the land is not required, however.[9]
[FNI] Jones v. Brown, 211 Ark. 164, 199 S.W.2d 973 (1947); Red River Lumber Co. v. Null, 66 Cal.
App. 499, 226 P. 812 (3d Dist. 1924); Lykes Bros., Inc. v. McConnel, 115 So. 2d 606 (Fla. Dist. Ct.
App. 2d Dist. 1959); Kinder v. La Salle County Carbon Coal Co., 301 Ill. 362, 133 N.E. 772 (1921);
McPherson v. Thompson, 203 Ky. 35, 261 S.W. 853 (1924); Smith v. Nyreen, 81 N.W.2d 769 (N.D.
1957); Chapman v. Parks, 347 S.W.2d 805 (Tex. Civ. App. Amarillo 1961), writ refused n.r.e., (Oct. 3,
1961).
As to effect of severance of mineral and surface estates, see §§ 284 to 289.
[FN2] Stowers v. Huntington Development & Gas Co., 72 F.2d 969, 98 A.L.R. 536 (C.C.A. 4th Cir.
1934); Goree v. Sanders, 203 La. 859, 14 So. 2d 744 (1943); Broughton v. Humble Oil & Refining Co.,
Page 588 of 665

105 S. W.2d 480 (Tex. Civ. App. EI Paso 1937), writ refused.
[FN3] Michigan Cent. R. Co. v. Garfield Petroleum Corp., 292 Mich. 373, 290 N.W. 833, 127 A.L.R.
507 (1940).
[FN4] Whittington v. Cameron, 385 III. 99, 52 N.E.2d 134, 150 A.L.R. 551 (1943); Tennis Coal Co. v.
Sackett, 172 Ky. 729, 190 S.W. 130 (1916); Waterman v. Tidewater Associated Oil Co., 213 La. 588,
35 So. 2d 225 (1947).
[FN5] Midkiff v. Colton, 252 F. 420 (C.C.A. 4th Cir. 1918); Whittington v. Cameron, 385 III. 99, 52
N.E.2d 134, 150 A.L.R. 551 (1943); Tennis Coal Co. v. Sackett, 172 Ky. 729, 190 S.W. 130 (1916);
Michigan Cent. R. Co. v. Garfield Petroleum Corp., 292 Mich. 373, 290 N.W. 833, 127 A.L.R. 507 (1940).
[FN6] Whittington v. Cameron, 385 III. 99, 52 N.E.2d 134, 150 A.L.R. 551 (1943).
[FN7] United Fuel Gas Co. v. Dyer, 185 F.2d 99 (4th Cir. 1950) (applying West Virginia law).
[FN8] Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So. 2d 225 (1947); Goree v.
Sanders, 203 La. 859, 14 So. 2d 744 (1943).
[FN9] Whittington v. Cameron, 385 111. 99, 52 N.E.2d 134, 150 A.L.R. 551 (1943).
© 20 I 0 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 281. Possession of minerals

West's Key Number Digest, Mines and Minerals €=>49
It is widely held that title to minerals may pass by adverse possession of the minerals, even in the absence of
a severance of the surface, trom the underlying mineral estate.[l] Thus, a person who not only occupies the sur-
face of lands before a severance of the mineral rights, but also exercises acts of dominion with respect to the
minerals, acquires title to the mineral rights if the possession has the attributes of notoriety, continuity, and hos-
tility required by the general rules oflaw relating to adverse possession.[2]
In order to pass title to minerals by adverse possession in the absence of a severance of the surface from the
minerals, the possession relied on must be, for the statutory period, actual,[3] hostile,[4] open, notorious, or vis-
ible,[5] continuous,[6] exclusive,[7] and under a claim of right.[8] To establish title by adverse possession, such
use must have been made of the mines and mineral rights as they were amenable to.[9] A finding that the ad-
verse claimants established adverse possession may be supported by evidence that they have drilled core holes,
have marked the boundary with paint, have built and traversed roads, have posted mining permits, and have
made inspections to prevent trespass.[IO]
Working part of a mine may constitute adverse possession of the whole property where there is color of
title.[ II] Presence on the premises at all times is not required.[ 12]
[FNI] Lundy v. Lakin, 96 Cal. App. 2d 221, 215 P.2d 61 (3d Dis!. 1950); Lockwood v. Carter Oil Co.,
73 W. Va. 175, 80 S.E. 814 (1913); Lloyd v. Mills, 68 W. Va. 241, 69 S.E. 1094 (1910).
[FN2] Thompson v. Ratcliff, 245 S.W.2d 592 (Ky. 1952); Stark v. Pennsylvania Coal Co., 241 Pa. 597,
88 A. 770 (1913).
Page 590 of 665

[FN3] Stark v. Pennsylvania Coal Co., 241 Pa. 597, 88 A. 770 (1913).
[FN4] Costello v. Muheim, 9 Ariz. 422, 84 P. 906 (1906); Smith v. Kingsley, 331 Pa. 10,200 A. II (1938).
[FN5] Pierce v. Barney, 209 Pa. 132,58 A. 152 (1904).
[FN6] Thompson v. Ratcliff, 245 S. W.2d 592 (Ky. 1952) (holding that an abandoned suit to quiet title
to the minerals will not affect the continuity of the possession); Davis v. Federal Land Bank of
Columbia, 219 N.C. 248, 13 S.E.2d 417 (1941).
[FN7] Original Consol. Mining Co. v. Abbott, 167 F. 681 (C.C.D. Mont. 1908).
[FN8] Costello v. Muheim, 9 Ariz. 422, 84 P. 906 (1906).
[FN9] Davis v. Federal Land Bank of Columbia, 219 N.C. 248, 13 S.E.2d 417 (1941).
[FNIO] Cullman Wholesale, Inc. v. Simmons, 592 So. 2d 1031 (Ala. 1992).
As to evidence to establish adverse possession, generally, see § 296.
[FNII] Lundy v. Lakin, 96 Cal. App. 2d 221, 215 P.2d 61 (3d Dis!. 1950).
[FN 12] Thompson v. Ratcliff, 245 S. W.2d 592 (Ky. 1952).
rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

§ 282. Possession by cotenant
West's Key Number Digest, Adverse Possession oC=5.1

West's Key Number Digest, Mines and Minerals oC=49
A.L.R. Library
In accordance with the general rule as to adverse possession between cotenants, and in the absence of a sev-
erance of the mineral estate from the surface, the possession of the minerals by one cotenant does not give title
by adverse possession as against other cotenants, unless there is an ouster of the other cotenants of which they
have notice.[I] The general rule, that where a cotenant purports to convey not only such cotenant's interest but
also the interest of other cotenants there is an ouster of the other cotenants on which to base adverse possession,
applies to a conveyance of unsevered minerals by a cotenant.[2]
[FNI] Frye v. Gullion, 143 Iowa 719, 121 N.W. 563 (1909); Fitschen Bros. Commercial Co. v. Noyes'
Estate, 76 Mont. 175,246 P. 773 (1926).
As to adverse possession between cotenants, generally, see §§ 201 et seq.
As to effect of severance on adverse possession of mines or minerals, see § 284.
[FN2] Zackery v. Warmack, 213 Ark. 808, 212 S.W.2d 706 (1948); Smith v. Kingsley, 331 Pa. 10,200
A. II (1938).
rights reserved.

Page 592 of 665

END OF DOCUMENT
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Page 593 of 665
Westlaw.

Adverse Possession

§ 283. Payment of taxes

West's Key Number Digest, Mines and Minerals ~49
A.L.R. Library
In some jurisdictions the payment of all taxes levied or assessed on a mining claim may be necessary to ac-
quiring title thereto by adverse possession,[I] while otherwise the payment of taxes may be one of the circum-
stances showing that adverse possession was established.[2] The payment of taxes by an adverse possessor of
the surface who conveys the minerals before such possession ripens into title inures to the benefit of the mineral
grantee. [3]
[FN I] Standard Quicksilver Co. v. Habishaw, 132 Cal. Il5, 64 P. 113 (1901).
As to effect of payment of taxes regarding severed mineral estate, see § 292.
[FN2] Lundy v. Lakin, 96 Cal. App. 2d 221, 215 P.2d 61 (3d Dist. 1950).
[FN3] Pierson v. Case, 272 Ala. 527,133 So. 2d 239 (1961).
rights reserved.
Page 594 of 665

END OF DOCUMENT
Page 595 of 665
Westlaw,

Adverse Possession
V. Patticular Properties and Estates Affected

3. On Occurrence of Severance
a. Possession of Surface as Possession of Minerals
§ 284. Possession by adverse claimant of surface
West's Key Number Digest, Adverse Possession <£:=5.1

West's Key Number Digest, Mines and Minerals <£:=49
Generally, after title to the surface estate of land has been severed from title to the underlying mineral es-
tate, title to the minerals cannot be acquired by the adverse possession of the surface.[I] The severance of the
title of the mineral estate from the surface estate creates two estates which are as distinct as if they constituted
two different parcels of land, from which it naturally follows that the title to one cannot be acquired by adverse
possession of the other.[2] Where a portion of the mineral interest is conveyed or reserved, only that portion
which is conveyed or reserved is considered severed from the surface estate.[3] Thus, the mere possession of the
surface estate cannot constitute adverse possession of the mineral estate.[4] When the surface is separated from
the minerals, mineral rights are adversely possessed by drilling and producing the minerals for the statutory peri-
od oftime.[5]
[FNI] Winslett v. Rozan, 279 F.2d 654 (10th Cir. 1960); Moragne v. Doe ex demo Moragne, 143 Ala.
459, 39 So. 161 (1905); Claybrooke v. Barnes, 180 Ark. 678,22 S.W.2d 390, 67 A.L.R. 1436 (1929);
Uphoff v. Trustees of Tufts College, 351 Ill. 146, 184 N.E. 213, 93 A.L.R. 1224 (1932); Griffith v. J. C.
Miller Oil Co., 349 S.W.2d 833 (Ky. 1961); Gill v. Fletcher, 74 Ohio SI. 295, 78 N.E. 433 (1906);
Noble v. Kahn, 1952 OK 42, 206 Okla. 13,240 P.2d 757, 35 A.L.R.2d 119 (1952); Kanawha & Hock-
ing Coal & Coke Co. v. Carbon County, 535 P.2d 1139 (Utah 1975).
[FN2] Beulah Coal Mining Co. v. Heihn, 46 N.D. 646, 180 N.W. 787 (1920); State ex reI. Cross v.
Board of Land Com'rs, 50 Wyo. 181,58 P.2d 423 (1936).
[FN3] Fadem v. Kimball, 1979 OK CIV APP 40, 612 P.2d 287 (Okla. Ct. App. Div. I 1979).
Page 596 of 665

[FN4] Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727 (Ky. 2000), as
amended, (Mar. 22, 2000) and as amended, (Mar. 30, 2000) and as modified on denial of reh'g, (May
18,2000).
[FN5] Thedford v. Union Oil Co. of California, 3 S.W.3d 609 (Tex. App. Dallas 1999).
As to sufficiency of mining operations to establish possession, see § 289.
rights reserved.
END OF DOCUMENT
Page 597 of 665
Westlaw.

Adverse Possession

§ 285. Possession by owner of surface
West's Key Number Digest, Adverse Possession €=>S.I

West's Key Number Digest, Mines and Minerals €=>49
Where the title to the mineral rights has been severed from the title to the surface, possession of the surface
by its owner is not adverse to the owner of the minerals below it; the mineral owner does not lose possession of
the minerals by any length of nonuser, and the surface owner cannot acquire title to the minerals by adverse pos-
session based on his exclusive and continued occupancy of the surface,[I] even though title to minerals was as-
serted at all times by the surface owner.[2] The rule is not changed ordinarily by the fact that the possession of
the surface is under an instrument conveying the entire estate without any mention of the mineral rights,[3] or
under a deed that describes the land by metes and bounds and makes no reference to the mineral rights reserved
by an earlier deed,[4] or under a deed purporting to convey the mineral estate to the surface owner,[S] or under a
deed reserving the minerals,[6] or where no one knows what minerals are or are not present.[7]
After a severance of a mineral interest from the ownership of the surface, the possession of the surface is not
adverse to the separate mineral estate even where the surface owner also owns a portion of the minerals.[8] A
mutual mistake regarding ownership, particularly without actual or constructive possession of the mineral in-
terest, will not support an adverse possession.[9] The presumption that a party who has possession of the surface
ofland has possession of the subsoil does not exist when these rights are severed.[10]
Reminder:
In some state statutes may alter the general rule, and permit adverse holding of a mineral estate by the possessor
of the surface.[ll]
In some jurisdictions, where the owner of the surface is considered a trustee of the minerals for the use and
benefit of the owner of the minerals,[12] it is recognized that the owner of the surface may repudiate this trust
and claim adversely to the mineral holder by acts or words that clearly and unmistakably bring home to the min-
erai holder the knowledge that the surface owner is claiming the minerals adversely.[13] However, such owner

Page 598 of 665

nor anyone entering under such owner can acquire title to the minerals by adverse possession except on a very
strong showing of a repudiation of the trust relationship.[14] In other cases, it has been recognized that the gen-
eral rule may not be applicable where a subsequent purchaser of the land has no notice of the severance.[15]
[FN I] United Fuel Gas Co. v. Dyer, 185 F.2d 99 (4th CiT. 1950); Parker v. Sinclair, 59 F.2d 1033 (App.
D.C. 1932); Stowers v. Huntington Development & Gas Co., 72 F.2d 969, 98 A.L.R. 536 (C.C.A. 4th
Cir. 1934); Jones v. Brown, 211 Ark. 164, 199 S.W.2d 973 (1947); Pickens v. Adams, 7 Ill. 2d 283,131
N.E.2d 38, 56 A.L.R.2d 605 (\955); Scott v. Laws, 185 Ky. 440, 215 S.W. 81, 13 A.L.R. 369 (1919);
Bilby v. Wire, 77 N.W.2d 882 (N.D. 1956); Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (\906); Has-
sell v. Texaco, Inc., 1962 OK 136,372 P.2d 233 (Okla. 1962); McCoy v. Lowrie, 42 Wash. 2d 24,253
P.2d 415 (\953); Ohio Oil Co. v. Wyoming Agency, 63 Wyo. 187, 179 P.2d 773 (1947).
[FN2] Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390, 67 A.L.R. 1436 (1929).
[FN3] Uphoffv. Trustees ofTufts College, 351 Ill. 146, 184 N.E. 213, 93 A.L.R. 1224 (1932).
[FN4] J.R. Crowe Coal & Mining Co. v. Atkinson, 85 Kan. 357, 116 P. 499 (\911); Ohio Oil Co. v.
Wyoming Agency, 63 Wyo. 187, 179 P.2d 773 (1947).
[FN5] Douglass v. Mounce, 1956 OK 288, 303 P.2d 430 (Okla. 1956).
[FN6] Greene v. White, 137 Tex. 361,153 S.W.2d 575,136 A.L.R. 626 (\941).
[FN7] Bilby v. Wire, 77 N.W.2d 882 (N.D. 1956).
[FN8] Douglass v. Mounce, 1956 OK 288, 303 P.2d 430 (Okla. 1956).
[FN9] Florida Gas Exploration Co. v. Searcy, 385 So. 2d 1293 (Miss. 1980).
[FNI0] Stowers v. Huntington Development & Gas Co., 72 F.2d 969, 98 A.L.R. 536 (C.C.A. 4th Cir.
1934); Wallace v. Elm Grove Coal Co., 58 W. Va. 449, 52 S.E. 485 (\ 905).
[FNll] Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (\977).
[FNI2] Diederich v. Ware, 288 S.W.2d 643 (Ky. 1956).
[FNI3] Diederich v. Ware, 288 S.W.2d 643 (Ky. 1956).
[FN 14] Kentucky River Coal Corp. v. Bayless, 318 S.W.2d 554 (Ky. 1955).
[FNI5] Goree v. Sanders, 203 La. 859, 14 So. 2d 744 (\943).
rights reserved.
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END OF DOCUMENT
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Westlaw,

Adverse Possession

§ 286. Severance after surface has been claimed adversely

Where an unsevered mineral land is held adversely, and either the owner of the land, or the one in adverse
occupancy, conveys or leases the mineral estate, the adverse possession will continue in the same manner as if
there had been no such conveyance or lease.[I] A deed severing the mineral rights from the surface, executed by
one who is in possession and continues his possession the full length of the limitation period, does not stop the
running of the statute of limitations in favor of the adverse possession of mineral rights.[2] The adverse posses-
sion of the surface by one who conveys the mineral estate before such possession ripens into title inures to the
benefit of the mineral grantee.[3] The adverse possession of a grantee of the surface estate continuing after sev-
erance may inure to the benefit of a grantor who reserves the mineral estate and will ripen a limitation title in
such grantor to the minerals.[4]
[FN I] Tennessee Coal, Iron & R. Co. v. Brewer, 92 F.2d 804 (C.C.A. 5th Cir. 1937); Fadem v. Kim-
ball, 1979 OK CIV APP 40, 612 P.2d 287 (Okla. Ct. App. Div. I 1979); Rio Bravo Oil Co. v. Staley Oil
Co., 138 Tex. 198, 158 S.W.2d 293 (Comm'n App. 1942).
[FN2] Kilpatrick v. Gulf Production Co., 139 S.W.2d 653 (Tex. Civ. App. Beaumont 1940), writ dis-
missed, judgment correct.
[FN3] Pierson v. Case, 272 Ala. 527,133 So. 2d 239 (1961).
[FN4] Houston Oil Co. of Tex. v. Moss, ISS Tex. 157,284 S.W.2d 131 (1955).
Page 601 of 665

rights reserved.
END OF DOCUMENT
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Westlaw,

Adverse Possession

§ 287. Severance while land is subject to tax lieo; possession under tax deed
West's Key Number Digest, Adverse Possession 0(;;=5.1

West's Key Number Digest, Mines and Minerals 0(;;=49
Where a mineral interest is severed from the surface at a time when the whole interest in the land is subject
to a county's lien for taxes, the severance does not affect the county.[I] The rule that the possession of the sur-
face of the land does not constitute possession of a severed mineral interest[2] is not applicable in such case. Ac-
cordingly, a grantee who enters into actual and hostile possession of land under the color of a tax deed, which
grants a new presumptive title to every interest in the land, acquires title to all such interests, provided the pos-
session continues for the statutory period and the claimant complies with other requirements for acquiring title
by adverse possession.[3]
Observation:
A tax title granted by the county is regarded as unitary; it is title to a single estate which comprises every pos-
sible interest in the land, and possession under such title is considered as unitary as if the former chain of title
had not shown any separation of estates or interests as between the parties privy to it.[ 4]
[FNI] Payne v. A. M. Fruh Co., 98 N.W.2d27 (N.D. 1959).
[FN2] § 284.
[FN3] Payne v. A. M. Fruh Co., 98 N.W.2d 27 (N.D. 1959).
[FN4] Payne v. A. M. Fruh Co., 98 N.W.2d27 (N.D. 1959).

Page 603 of 665

As to tax deeds, generally, see 72 Am. Jur. 2d, State and Local Taxation §§ 883 to 970.
rights reserved.
END OF DOCUMENT
Page 604 of 665
Westlaw,

Adverse Possession

b. Particulars of Possession
§ 288. Possession of minerals

Although after severance of the surface and mineral estates title to the minerals cannot be acquired by ad-
verse possession of the surface alone,[ I] title to the minerals may nevertheless be acquired by adverse posses-
sion, not only by the owner of the surface, but by a person having no interest in the surface,[2] provided there is
an actual,[3] hostile,[4] open, notorious or visible,[5] peaceable,[6] exclusive,[7] continuous[8] possession
thereof, under a claim of right,[9] for the statutory period. [1 0] There is some authority that possession of the
minerals under color of title also may be necessary.[II]
After severance of the surface and mineral estate, the mineral owner must be ousted to lose the mineral
rights, and there cannot be an ouster in the absence of an act that actually takes the mineral out of the owner's
possession. [12]
[FNI] § 284.
[FN2] Reavis v. Fianza, 215 U.S. 16, 30 S. Ct. I, 54 L. Ed. 72 (1909); Midkiff v. Colton, 252 F. 420
(C.C.A. 4th Cir. 1918); Kentucky Block Cannel Coal Co. v. Sewell, 249 F. 840, I A.L.R. 556 (C.C.A.
6th Cir. 1918); Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390, 67 A.L.R. 1436 (1929); Diederich
v. Ware, 288 S.W.2d 643 (Ky. 1956); Smith v. Pittston Co., 203 Va. 408, 124 S.E.2d I (1962).
[FN3] Downey v. North Alabama Mineral Development Co., 420 So. 2d 68 (Ala. 1982) (occasional for-
ays to monitor others' attempts to remove coal insufficient); Claybrooke v. Barnes, 180 Ark. 678, 22
S.W.2d 390, 67 A.L.R. 1436 (1929); Weberrneier v. Pace, 37 Colo. App. 546, 552 P.2d 1021 (1976),
judgment affd, 193 Colo. 157, 563 P.2d 950 (1977); McBeth v. Wetnight, 57 Ind. App. 47, 106 N.E.
Page 605 of 665

407 (Div. I 1914) (not necessary to live in mine); Gordon v. Park, 202 Mo. 236, 100 S.W. 621 (1907);
Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (1906); Douglass v. Mounce, 1956 OK 288, 303 P.2d 430
(Okla. 1956).
[FN4] Moragne v. Doe ex demo Moragne, 143 Ala. 459, 39 So. 161 (1905); Gordon V. Park, 202 Mo.
236, 100 S.W. 621 (1907); Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (1906); Barker v. Campbell-
Ratcliff Land Co., 1917 OK 208, 64 Okla. 249, 167 P. 468 (1917).
[FN5] Kentucky Block Cannel Coal CO. V. Sewell, 249 F. 840, I A.L.R. 556 (C.C.A. 6th Cir. 1918);
Downey V. North Alabama Mineral Development Co., 420 So. 2d 68 (Ala. 1982) (lack of notice); Gill
V. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (1906); McCoy V. Lowrie, 42 Wash. 2d 24, 253 P.2d 415 (1953).
[FN6] Gordon V. Park, 202 Mo. 236,100 S.W. 621 (1907).
[FN7] Gordon V. Park, 202 Mo. 236, 100 S.W. 621 (1907); Gill v. Fletcher, 74 Ohio St. 295, 78 N.E.
433 (1906).
[FN8] Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390, 67 A.L.R. 1436 (1929); Gordon V. Park,
202 Mo. 236,100 S.W. 621 (1907); Gill V. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (1906).
[FN9] Sanford V. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562 (1951); Kinder V. La Salle County
Carbon Coal Co., 301 Ill. 362,133 N.E. 772 (1921).
[FNIO] Kentucky Block Cannel Coal CO. V. Sewell, 249 F. 840, I A.L.R. 556 (C.C.A. 6th Cir. 1918);
Skelly Oil CO. V. Johnson, 209 Ark. 1107, 194 S.W.2d 425 (1946); Humphreys V. Idaho Gold Mines
Development Co., 21 Idaho 126, 120 P. 823 (1912); Cook V. Farley, 195 Miss. 638, 15 So. 2d 352
(1943); Northcut V. Church, 135 Tenn. 541, 188 S.W. 220 (1916); Smith V. Pittston Co., 203 Va. 408,
124 S.E.2d I (1962); McCoy V. Lowrie, 42 Wash. 2d 24, 253 P.2d 415 (1953).
[FNII] Calvat V. Juhan, 119 Colo. 561,206 P.2d 600 (1949); McCoy V. Lowrie, 42 Wash. 2d 24, 253
P.2d 415 (1953).
[FNI2] Duke Power CO. V. Toms, 118 F.2d 443 (C.C.A. 4th Cir. 1941); Vance V. Pritchard, 213 N.C.
552, 197 S.E. 182 (1938); Hassell V. Texaco, Inc., 1962 OK 136, 372 P.2d 233 (Okla. 1962).
rights reserved.
END OF DOCUMENT
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Westlaw

Adverse Possession

§ 289. Necessity and sufficiency of mining operations
West's Key Number Digest, Adverse Possession €;=S.l

West's Key Number Digest, Mines and Minerals €;=49
Generally speaking, mining operations are necessary in order to constitute adverse possession of a severed
mineral estate.[l] Possession of the surface of land by its owner, after severance of mineral rights from the title
to the surface, is not adverse to the owner of the minerals so as to enable the fanner to acquire title to the miner-
als by prescription, in the absence of a taking of actual possession of the minerals by drilling wells or opening
mines for the statutory period.[2] Thus title to the minerals cannot be gained through adverse possession after
severance without a penetration of the mineral estate.[3] That is, after severance, an adverse possession must
consist of the actual taking of possession of the minerals by drilling weIls or digging mines and capturing or tak-
ing dominion over the minerals, either by producing and removing them or by holding them capped in a com-
pleted well to the exclusion of the mineral titleholder and the world, for the statutory period of adverse posses-
sion.[4]
Adverse possession requires at least that solid minerals be actually removed from the ground or oil and gas
actually produced.[S] Oil and gas leases, while evidence of possession, do not constitute actual possession suffi-
cient for adverse possession of severed mineral interest,[6] thus recording of leases, in reference to mineral es-
tate severed from the surface estate, is not sufficient to establish an adverse possession in the absence of mining
activity on the property itself.[7] Acts of dominion over the minerals entail, at the very least, actual removal of
some minerals and includes any acts sufficient to apprise community that mineral estate is in exclusive use and
enjoyment of claiming party.[8] Thus the sinking of mining shafts and posting of signs and making advertise-
ments offering the product of the mining for sale over a period of years may be sufficient to establish possession
of the minerals sufficient to support an adverse possession.[9]
Mining operations are necessary even though it is not known what minerals are or are not present.[lO] In ac-
cordance with the general rule as to cotenants, where there is a severance of the surface and mineral estates, the
possession of the minerals by one cotenant does not give title by adverse possession as against other cotenants
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Page 607 of 665

unless there is an ouster of which the other cotenants have notice.[II]
[FN1] Downey v. North Alabama Mineral Development Co., 420 So. 2d 68 (Ala. 1982); Claybrooke v.
Barnes, 180 Ark. 678, 22 S.W.2d 390, 67 A.L.R. 1436 (1929); Hassell v. Texaco, Inc., 1962 OK 136,
372 P.2d 233 (Okla. 1962); N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780 (1999), cert.
denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672 (2000); Ohio Oil Co. v. Wyoming Agency, 63
Wyo. 187, 179 P.2d 773 (1947).
[FN2] Noble v. Kahn, 1952 OK 42, 206 Okla. 13,240 P.2d 757, 35 A.L.R.2d 119 (1952).
[FN3] Diederich v. Ware, 288 S.W.2d 643 (Ky. 1956).
[FN4] Cook v. Farley, 195 Miss. 638, 15 So. 2d 352 (1943); Hassell v. Texaco, Inc., 1962 OK 136,372
P.2d 233 (Okla. 1962).
[FN5] Pickens v. Adams, 7 III. 2d 283,131 N.E.2d 38, 56 A.L.R.2d 605 (1955).
[FN6] Sickler v. Pope, 326 N.W.2d 86 (N.D. 1982).
[FN7] Schaneman v. Wright, 238 Neb. 309, 470 N.W.2d 566 (1991).
[FN8] Payne v. Williams, 91 Ill. App. 3d 336, 46 Ill. Dec. 783, 414 N.E.2d 836 (5th Dis!. 1980).
[FN9] Thweatt v. HaImes, 265 Ark. 606, 580 S.W.2d 685 (1979).
[FNIO] Bilby v. Wire, 77 N.W.2d 882 (N.D. 1956).
[FN11] Pan Mu!. Royalties v. Williams, 1961 OK 165,365 P.2d 138 (Okla. 1961); Silver Surprize, Inc.
v. Sunshine Mining Co., 15 Wash. App. I, 547 P.2d 1240 (Div. 3 1976), review granted, 87 Wash. 2d
1005, 1976 WL 50402 (1976) and judgment affd, 88 Wash. 2d 64, 558 P.2d 186 (1977).
As to adverse possession as against cotenants, generally, see § 201.
rights reserved.
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Page 608 of 665
Westlaw.

Adverse Possession

§ 290. Extent of operation
West's Key Number Digest, Adverse Possession <8;=5.1

West's Key Number Digest, Mines and Minerals <8;=49
Where there has been a severance of minerals from the surface of land, limited operations involving the
working of a part of the mineral estate may not be sufficient to give title by adverse possession to the minerals
underlying the whole of it,[I] this is based, in part, on the peculiar problems involved in designating the bound-
aries of the mineral estate.[2] However, in some cases, under the particular circumstances involved, the working
of a part of the property is sufficient to give title to the minerals underlying the whole property.[3] Occasional,
desultory, or temporary acts of mining are not sufficient to constitute adverse possession of the minerals after
severance oftitle to the minerals from title to the surface ofthe land.[4]
[FNI] Sanford v. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562 (1951); Piney Oil & Gas Co. v.
Scott, 258 Ky. 51, 79 S.W.2d 394 (1934); White v. Miller, 78 Misc. 428, 139 N.Y.S. 660 (Sup 1912);
French v. Lansing, 73 Misc. 80, 132 N.Y.S. 523 (Sup 1911); Davis v. Federal Land Bank of Columbia,
219 N.C. 248,13 S.E.2d417 (1941).
[FN3] Kinderv. La Salle County Carbon Coal Co., 310 Ill. 126, 141 N.E. 537 (1923).
[FN4] Claybrooke v. Barnes, 180 Ark. 678,22 S.W.2d 390, 67 A.L.R. 1436 (1929); Uphoff v. Trustees
of Tufts College, 351 Ill. 146, 184 N.E. 213, 93 A.L.R. 1224 (1932); Gordon v. Park, 202 Mo. 236, 100
S. W. 621 (1907).
Page 609 of 665

rights reserved.
END OF DOCUMENT
Page 610 of665
Westlaw

Adverse Possession

§ 291. Constructive possession; color of title
West's Key Number Digest, Adverse Possession C=5.1
The rules of constructive possession applicable to surface estates may be applied to mineral estates, such
that one working part of a well-defined, severed mineral estate may be deemed to be in constructive possession
of the whole estate,[l] especially since the courts tend to treat mineral estates and surface estates alike for most
other purposes.[2] In order for the rules of constructive possession to operate, however, the adverse possessor
must ordinarily have color of title.[3] A surface owner who works the minerals under the land relying on a gen-
eral warranty deed that does not except the prior severed minerals may be deemed to have color of title to those
minerals,[ 4] although the contrary view has also been taken.[5]
[FNl] Pollard v. Simpson, 240 Ala. 401, 199 So. 560 (1940); Kinder v. La Salle County Carbon Coal
Co., 310 Ill. 126, 141 N.E. 537 (1923); Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117 (1943); Medusa
Portland Cement Co. v. Lamantina, 353 Pa. 53,44 A.2d 244 (1945).
As to what constitutes adverse possession pursuant to color oftitle, generally, see §§ 123 to 145.
[FN3] Diederich v. Ware, 288 S.W.2d 643 (Ky. 1956); Blacksburg Min. & Mfg. Co. v. Bell, 125 Va.
565,100 S.E. 806 (1919); White Flame Coal Co. v. Burgess, 86 W. Va. 16, 102 S.E. 690 (1920).
[FN4] Sanford v. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562 (1951); Diederich v. Ware, 288
S.W.2d 643 (Ky. 1956); Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117 (1943).
Page 611 of665

[FN5] Piney Oil & Gas Co. v. Scott, 258 Ky. 51, 79 S.W.2d 394 (1934).
rights reserved.
END OF DOCUMENT
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Adverse Possession

§ 292. Payment of taxes

A.L.R. Library
The payment of taxes assessed against the surface estate does not constitute payment of taxes on severed
minerals unless specific reference to this effect is made of record.[ 1] The surface owner's payment of taxes as-
sessed against the realty involved is not such payment of taxes on the minerals as to give title under a statutory
provision regarding payment of taxes for a specified number of successive years, in the absence of payment of
taxes on the minerals under a separate assessment ofthem.[2]
[FNI] Winslett v. Rozan, 279 F.2d 654 (lOth Cir. 1960); Pond Creek Coal Co. v. Hatfield, 239 F. 622
(C.C.A. 6th Cir. 1917); Buckner v. Wright, 218 Ark. 448, 236 S.W.2d 720 (1951); Foss v. Central Pa-
cific R. Co., 9 Cal. App. 2d 117,49 P.2d 292 (3d Dis!. 1935).
As to payment of taxes as an element of adverse possession, generally, see § 146.
[FN2] Downey v. North Alabama Mineral Development Co., 420 So. 2d 68 (Ala. 1982); McCoy v.
Lowrie, 42 Wash. 2d 24, 253 P.2d 415 (1953).
rights reserved.
Page 613 of665

END OF DOCUMENT
Page 614 of665
Westlaw
AMJUR ADVERSE VI A REF Page I
3 Am. Jur. 2d Adverse Possession VI A Refs.

Adverse Possession
VI. Practice and Procedure

A. In General
Research References
West's Key Number Digest, Adverse Possession C:=IIO to III
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 1,2, 19
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 5 to 8, 22, 23, 25 to 27, 43 to 46, 63, 65,
93 to 97,112 to 119,134 to 144, 163, 164, 173 to 177
rights reserved.
AMJUR ADVERSE VI A REF
END OF DOCUMENT
Page 615 of 665
Westlaw.

Adverse Possession

A. In General
§ 293. Generally
West's Key Number Digest, Adverse Possession C=IIO to III
Forms
Checklist-Matters that should be alleged in complaint, petition, or declaration in action to establish title by
adverse possession. 1BAm. Jur. Pleading and Practice Forms, Adverse Possession § 22.
Checklist-Matters that should be alleged in answer raising defense of title by adverse possession. 1BAm.
JUT. Pleading and Practice Forms, Adverse Possession § 23.
Practice and procedure in adverse possession claims is generally consistent with civil practice generally,[ I]
and as such ordinary and reasonable extensions of time for the filing of pleadings may be appropriate when
timely sought based on good reasons.[2]
Summary judgment is inappropriate if there are disputed material facts regarding an adverse possession,[3]
although in proper cases where the evidence is sufficient to support the claim of adverse possession based on un-
controverted affidavits, summary judgment may be appropriate[4]
[FN I] Solomon's Rock Trust v. Davis, 675 A.2d 506 (Me. 1996); Matzke v. Hackbart, 224 Neb. 535,
399 N.W.2d 786 (1987).
As to pleading, generally, see 61A, 61B Am. JUT. 2d, Pleading.
[FN2] Solomon's Rock Trust v. Davis, 675 A.2d 506 (Me. 1996).
[FN3] Boozer v. NCNB Nat. Bank of Florida, 606 So. 2d 1208 (Fla. Dist. Ct. App. 2d Dist. 1992); Read
v. Montgomery County, 101 Md. App. 62, 643 A.2d 476 (1994); Rogers v. South Slope Holding Corp.,
172 Misc. 2d 33, 656 N.Y.S.2d 169 (Sup 1997), order affd as modified, 255 A.D.2d 898, 680 N.Y.S.2d
Page 616 of665

772 (4th Dep't 1998).
[FN4] Casini v. Sea Gate Ass'n, 262 A.D.2d 593, 692 N.Y.S.2d 676 (2d Dep't 1999).
rights reserved.
END OF DOCUMENT
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Page 617 of 665
Westlaw,

Adverse Possession

A. In General
§ 294. Plaintifrs plea of acquisition of title by adverse possession
West's Key Number Digest, Adverse Possession C=IIO to III
Forms
Complaints, petitions, or declarations. IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 5
to 8, 43, 63, 93 to 96, 112 to 115, 134 to 138, 163, 173 to 177.
Answers, denials, and defenses. I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 25 to 27,
44 to 46, 65, 97, 116 to 119, 139 to 144, 164.
A claimant of title by adverse possession must describe the land adversely possessed in an exact and defin-
ite manner.[J] The logical inference of a presumptive grant need not be specifically pled in order for the trial
court to apply the resulting rule of law that determines property interest.[2] Averments that property is used for
recreational or farming purposes may be sufficient to establish possession for adverse possession purposes.[3]
[FNI] Matzke v. Hackbart, 224 Neb. 535,399 N.W.2d 786 (1987).
[FN2] EI Paso Production Co. v. PWG Partnership, 116 N.M. 583, 866 P.2d 311 (1993).
[FN3] Catawba Indian Tribe of South Carolina v. State of S.C., 978 F.2d 1334 (4th Cir. 1992).
© 20 I 0 Thomson Reuters. 33-34B © 20 I 0 Thomson ReuterslRIA. No Claim to Orig. U.S. Gov!. Works. All
rights reserved.
END OF DOCUMENT
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Page 618 of665
Westlaw.

Adverse Possession

A. In General
§ 295. Defendant's plea of acquisition of title by adverse possession
West's Key Number Digest, Adverse Possession C= 110 to III
Forms
Answers, denials, and defenses. IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 25 to 27,
44 to 46, 65, 97, 116to 119, 139to 144, 164.
The plea of statute in an adverse possession case, being simply a denial of the plaintiffs title, need not be
pleaded specially,[I] except where a special pleading is required by statute.[2] In some jurisdictions adverse
possession is an affirmative defense which must be pleaded and proved, and that it is waived by a failure to do
so.[3] In such cases, where the defense is based on a possessory right unaided by title or color of title, it must be
specially pleaded either in the answer or by separate pleading. [4] A pleading of adverse possession by defend-
ants for the statutory period is insufficient to constitute a defense, unless it is alleged that such period matured
prior to the commencement of the action, since the limitations period must have been completed at the time the
suit was commenced, or it will avail the claimant nothing.[5]
[FNI] Reiter v. Landon Homes, Inc., 56 Misc. 2d 168, 287 N.Y.S.2d 724 (Sup 1968), judgment affd,
31 A.D.2d 538, 295 N.Y.S.2d 103 (2d Dep't 1968).
[FN2] Strayhorn v. McCall, 78 Ark. 209, 95 S.W. 455 (1906).
[FN3] Moses v. Weaver, 210 Miss. 228, 49 So. 2d 235 (1950).
[FN4] Peoples v. Hagaman, 31 Tenn. App. 398, 215 S.W.2d 827 (1948).
[FN5] Flathead Lumber Corp. v. Everett, 127 Mont. 291, 263 P.2d 376 (1953).

Page 619 of 665

rights reserved.
END OF DOCUMENT
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Page 620 of 665
Westlaw,
AMJUR ADVERSE VI B REF Page I
3 Am. Jur. 2d Adverse Possession VI B Refs.

Adverse Possession

B. Evidence
Research References
West's Key Number Digest, Adverse Possession €::=27, 33, 38, 57, 85(1) to 85(5), 112 to 114
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 1,2,21 to 26.5
Forms
I A Am. Jur. Legal Forms 2d, Adverse Possession §§ II: 17 to II :21
rights reserved.
AMJUR ADVERSE VI B REF
END OF DOCUMENT
Page 621 of 665
Westlaw.

Adverse Possession

B. Evidence
1. Burden of Proof
§ 296. Proof of necessary elements generally
West's Key Number Digest, Adverse Possession C=I 12
Under the rule that the doctrine of adverse possession is to be taken strictly, all constituent elements of ad-
verse possession must be proved.[I] It is generally necessary to prove an actual, hostile, open, notorious, and
visible, exclusive, and continuous possession for the full statutory period.[2] Thus, the elements of adverse pos-
session must be established by clear proofs of acts and conduct fit to put person of ordinary prudence, and par-
ticularly the true owner, on notice that estate in question is actually, visibly, and exclusively held by claimant in
antagonistic purpose.[3]
[FN I] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Pauls Valley Nat.
Bank v. Foss, 99 Okla. 178,226 P. 567 (1924); Russell v. Davidson, 1947 OK 381, 200 Okla. 408, 194
P.2d 887 (1947); Bull Run Development Corp. v. Jackson, 201 Va. 95,109 S.E.2d 400 (1959).
[FN2] White v. Inman, 212 Miss. 237, 54 So. 2d 375, 30 A.L.R.2d 380 (1951); Russell v. Davidson,
1947 OK 381, 200 Okla. 408, 194 P.2d 887 (1947); Baxter v. Girard Trust Co., 288 Pa. 256, 135 A.
620,49 A.L.R. 1011 (1927).
[FN3] Falvo v. Pejepscot Indus. Park, Inc., 1997 ME 66, 691 A.2d 1240 (Me. 1997).
As to standard of proof, see § 306.
rights reserved.
END OF DOCUMENT
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Adverse Possession

B. Evidence
1. Burden of Proof
§ 297. Party with burden of proof
In accordance with the familiar rule that the burden of proof rests on the party who has the affirmative of an
issue, the party relying on a title by adverse possession has the burden of proving all facts necessary to establish
such title.[ 1] Thus, the burden of establishing each and every element of adverse possession is on the party rely-
ing on title by adverse possession.[2] One who enters into possession of realty is presumed to do so subordinate
to the legal titleholder, and not adversely thereto, and one who claims adversely has burden of overcoming this
presumption.[3] Thus, where one party has established a prima facie claim of title to land and the other party
claims title by adverse possession, the burden is on the latter affirmatively to establish it by the evidence.[4]
Cases:
In an action to quiet title based on adverse possession the burden is upon the claimant to prove every neces-
sary element: (1) possession must be by actual possession under such circumstances as to constitute reasonable
notice to the owner; (2) it must be hostile to the owner's title; (3) the holder must claim the property as his or her
own under either color of title or claim of right; (4) possession must be continuous and uninterrupted for five
years; and (5) the holder must pay all the taxes levied and assessed upon the property during the period. Pre-
ciado v. Wilde, 139 Cal. App. 4th 321, 42 Cal. Rptr. 3d 792 (2d Dis!. 2006), review denied, (Aug. 16,2006).
The burden of establishing prescriptive title lies on the plaintiff. Murray v. Stone, 283 Ga. 6, 655 S.E.2d 821
(2008).
lEND OF SUPPLEMENTI
[FNl] Bell v. Pritchard, 273 Ala. 289, 139 So. 2d 596 (1962); Turnipseed v. Moseley, 248 Ala. 340,27
Page 623 of 665

So. 2d 483, 170 A.L.R. 882 (1946); Larson v. Lindsay, 80 Idaho 242, 327 P.2d 775 (1958); Simmons v.
Perkins, 63 Idaho 136, 118 P.2d 740 (1941); Nichols v. Kirchner, 241 Iowa 99, 40 N.W.2d 13 (1949);
Porter v. Schaffer, 126 Md. App. 237, 728 A.2d 755 (1999); Taranto v. Peoples Bank of Biloxi, 242
Miss. 607, 136 So. 2d 213 (1962); White v. Inman, 212 Miss. 237, 54 So. 2d 375, 30 A.L.R.2d 380
(1951); Walker v. Polk, 208 Miss. 389, 44 So. 2d 477 (1950); White v. Wilks, 357 S.W.2d 908 (Mo.
1962); Hamburg Realty Co. v. Walker, 327 S.W.2d 155 (Mo. 1959); Bell v. Gussenhoven, 132 Mont.
346, 318 P.2d 251 (1957); Collins v. Smith, 1962 OK 128, 372 P.2d 878 (Okla. 1962); Norman v.
Smedley, 1961 OK 143, 363 P.2d 839 (Okla. 1961); Melton v. Goodman, 1957 OK 266, 317 P.2d 244
(Okla. 1957); Fanmers' Nat. Bank of Oklahoma City v. Gillis, 1932 OK 208, 155 Okla. 290, 9 P.2d 47
(1932) (overruled in part on other grounds by, Parks v. Lyons, 1938 OK 528, 183 Okla. 529, 83 P.2d
573 (1938)); Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960); Ontelaunee
Orchards v. Rothermel, 139 Pa. Super. 44, II A.2d 543 (1940); Lynch v. Lynch, 236 S.C. 612, 115
S.E.2d 30 I (1960); Salt Lake City v. Silver Fork Pipeline Corp., 2000 UT 3, 5 P.3d 1206 (Utah 2000).
[FN2] Garringer v. Wingard, 585 So. 2d 898 (Ala. 1991); Harmon v. Ingram, 572 So. 2d 411 (Ala.
1990); Sal vis v. Lawyer, 73 Idaho 469, 253 P.2d 589 (1953); Holmes v. Johnson, 324 Mass. 450, 86
N.E.2d 924 (1949); Bums v. Foster, 348 Mich. 8, 81 N.W.2d 386 (1957); Ford v. Rhymes, 233 Miss.
651, 103 So. 2d 363 (1958); Geoghegan v. Krauss, 228 Miss. 231, 87 So. 2d 461 (1956); Gaskill v.
Cook, 315 S.W.2d 747 (Mo. 1958); Krumm v. Streiler, 313 S.W.2d 680 (Mo. 1958); City of Deadwood
v. Summit, Inc., 2000 SD 29, 607 N. W.2d 22 (S.D. 2000).
As to elements of adverse possession, generally, see § 10.
[FN4] Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959).
rights reserved.
END OF DOCUMENT
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Adverse Possession

B. Evidence
I. Burden of Proof
§ 298. When burden shifts
While a party relying on adverse possession has the burden of proof, where the burden has been met by a
showing of continuous hostile possession of the land for more than the statutory period, the burden of proof
shifts to the opposing party.[I] Where there has been an open, continuous use of land for the statutory period,
the use is deemed against, and not under, the true owner, and the burden of proof is then on the owner to show
that the use was permissive and not adverse.[2] Thus, after a claimant has established the elements of a pre-
scriptive right, a presumption of adverse use arises and the burden shifts to the landowner affected by the pre-
scriptive claim to establish that the claimant's use was permissive.[3] Thus, if the use of the property is open, no-
torious and continuous for the statutory period, a presumption of hostility arises, and the burden shifts to the re-
cord owner to produce evidence rebutting presumption of adversity,[ 4] or to show that the use was by license.[ 5]
Where an adverse claimant has shown proper adverse possession during the statutory period, the burden of
showing that the period was interrupted is on the party who seeks to benefit thereby.[6] If a presumption of ad-
verse use is established for adverse possession purposes, the other party may overcome that presumption by
showing that use was permissive.[7]
Cases:
Prescriptive rights are to be strictly construed. MEA Family Investments, LP v. Adams, 284 Ga. 407, 667
S.E.2d 609 (2008).
lEND OF SUPPLEMENTI
[FNI] Platt v. Smith, 127 N.Y.S.2d 66 (Sup 1954); Hillard v. Marshall, 888 P.2d 1255 (Wyo. 1995);
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State v. Moore, 356 P.2d 141 (Wyo. 1960).
[FN2] Vrana v. Stuart, 169 Neb. 430, 99 N.W.2d 770 (1959); McDermott v. Boman, 165 Neb. 429, 86
N.W.2d 62 (1957); Purdum v. Sherman, 163 Neb. 889, 81 N.W.2d 331 (1957); Springer v. Durette, 217
Or. 196,342 P.2d 132 (1959).
[FN3] Wareing v. Schreckendgust, 280 Mont. 196,930 P.2d 37 (1996).
[FN4] Porter v. Marx, 179 A.D.2d 962,579 N.Y.S.2d 219 (3d Dep't 1992).
[FN5] Kusmierz v. Baan, 144 A.D.2d 829, 534 N.Y.S.2d 786 (3d Dep't 1988).
[FN7] Greenwalt Family Trust v. Kehler, 267 Mont. 508, 885 P.2d 421 (1994).
As to presumptions, see § 299.
rights reserved.
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Adverse Possession

B. Evidence
2. Presumptions and Inferences
§ 299. Generally
West's Key Number Digest, Adverse Possession <£:=85(1), 112
The law presumes the possession of land to be under the regular title,[I] but mere possession of land does
not in and of itself show hostility to the owner,[2] even though the doctrine of adverse possession provides an
evidentiary presumption of hostility to the occupation of property to a visible and ascertainable boundary for the
statutory period.[3] If the initial possession of land by a stranger is by permission, it is presumed to so continue
until the contrary appears.[4] When the land is wild and uncultivated, one state applies the rule that open and
continuous use for the requisite length of time raises a rebuttable presumption that the use was pennissive, for
purposes of adverse possession.[5] A casual rather than customary use of vacant, unenclosed, unimproved land
may be presumed to be permissive rather than adverse.[6]
Acts of possession by a cotenant are presumed to be done consistently with the title of the other cotenant
and not adversely, and thus burden of proving hostile and notorious possession against a cotenant is much great-
er than against one who is not a cotenant.[7] When a cotenninous owner builds a fence as dividing line and oc-
cupies and claims to it as such, with knowledge of the other, the claim of the former is presumptively hostile and
possession adverse.[8] In some jurisdictions there is a presumption of permissiveness for adverse claimants with
a familial relationship to the true owner;[9] however in other jurisdictions no presumption exists that a close
family membership between claimants to property renders prior use of that property permissive, and thus insuffi-
cient to support adverse possession claim. While evidence of a familial relationship may sometimes assist the
fact finder in determining the individual nature of the relationship between the claimants, or to whose benefit the
property was used, standing alone a familial relationship neither puts an end to the inquiry regarding pennissive
use, nor shifts the burden ofproof.[IO]
Property that is held in fee simple ownership by municipalities must be presumed to be held for public use
and the party seeking title by adverse possession must bear the burden of rebutting that presumption.[II]
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[FNI] Lawse v. Glaha, 253 Iowa 1040, 114 N.W.2d 900 (1962); Meyers v. Canutt, 242 Iowa 692, 46
N.W.2d 72, 24 A.L.R.2d I (1951); Nichols v. Kirchner, 241 Iowa 99, 40 N.W.2d 13 (1949); Miller v.
Leaird, 307 S.C. 56,413 S.E.2d 841 (1992).
[FN2] Miller v. Leaird, 307 S.c. 56, 413 S.E.2d 841 (1992).
[FN3] Lewis v. Moorhead, 522 N.W.2d I (S.D. 1994).
consideration, (May II, 1999); Hoverson v. Hoverson, 216 Minn. 228, 12 N.W.2d 501 (1943); Edgell
v. Canning, 1999 UT 21, 976 P.2d 1193 (Utah 1999).
[FN5] Eaton v. Town of Wells, 2000 ME 176, 760 A.2d 232 (Me. 2000).
[FN6] Plaza v. Flak, 7 N.J. 215, 81 A.2d 137,27 A.L.R.2d 324 (1951).
[FN7] Mackinac Island Development Co., Ltd. v. Burton Abstract and Title Co., 132 Mich. App. 504,
349 N.W.2d 191 (1984); M & B Realty, Inc. v. Duval, 767 A.2d 60 (R.I. 2001) ..
As to burden of proof, generally, see §§ 296 et seq.
[FN8] Garringer v. Wingard, 585 So. 2d 898 (Ala. 1991).
consideration, (May II, 1999); Ransom v. Bebemitz, 782 A.2d 1155 (Vt. 2001).
[FNIO] Tottnan v. Malloy, 431 Mass. 143,725 N.E.2d 1045 (2000).
[FNII] American Trading Real Estate Properties, Inc. v. Town of Trumbull, 215 Conn. 68, 574 A.2d
796 (1990).
As to adverse possession of municipal property, see § 270.
rights reserved.
END OF DOCUMENT
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Westlaw.
American Jurisprudence. Second Edition

Database updated N ovem ber 20 I 0
Adverse Possession

B. Evidence
§ 300. In favor of record owner
All reasonable presumptions are made in favor of the true owner in case of a claim by adverse possession.[1
Thus, one having the record title to real property is presumed to have possession of such property until
something occurs to show otherwise;[2] a person establishing a legal title to property in an action for recovery
thereof is presumed to have been possessed thereof within the time required by law;[3] and the possession of
land owned by another will not ordinarily be presumed to be adverse.[4] It is presumed that use of land by one
who has record title is exercise of his right to enjoy it, and such use interrupts continuity of adverse possession
byanother.[S]
That all reasonable presumptions are made in favor of the true owner in case of a claim by adverse posses-
sion also includes the presumption that the actual possession is subordinate to the right of the true owner.[6] The
occupation of property by another than the record titleholder is deemed to have been under and in subordination
to the legal title unless it appears that the property has been held and possessed adversely to such legal title for
the statutory period.[7] Thus the mere possession of land is not prima facie adverse to the title of the true owner
given that all presumptions and intendments are favorable to the title, and possessions are not presumed to be
hostile but rather in subordination to it.[8]
If the use of the property of another was permissive in the beginning, that use can be changed into hostile
and adverse use only by the most unequivocal conduct of the user; evidence of adverse use must be strictly con-
strued against the adverse user, and every reasonable intendment should be made in favor of true owner.[9]
Thus, where the legal title holder is operating on the assumption that one living on its land is doing so with its
permission, and does not interfere with that occupancy, it would be manifestly unjust to allow occupancy to
ripen into ownership interest by adverse possession through silence or inaction of occupant; presumptions are in
favor of legal title holder and, though they may be overcome, claimant must produce evidence which will over-
come them.[10]

Page 629 of 665

[FNI] Meyer v. Law, 287 So. 2d 37 (Fla. 1973); Roberts v. Walker, 238 Iowa 1330, 30 N.W.2d 314
(1947); Mooney v. Canter, 311 S.W.2d I (Mo. 1958); Copenhaver v. Copenhaver, 1957 OK 215, 317
P.2d 756 (Okla. 1957); Lynch v. Lynch, 236 S.C. 612, 115 S.E.2d 301 (1960); Allie v. Russo, 88 Wis.
2d 334, 276 N.W.2d 730 (1979).
[FN2] C.H. Moore Trust Estate by Warner v. City of Stonn Lake, 423 N.W.2d 13 (Iowa 1988); Meyers
v. Canutt, 242 Iowa 692, 46 N.W.2d 72, 24 A.L.R.2d I (1951); Triplett v. David H. Fulstone Co., 109
Nev. 216,849 P.2d 334 (1993); Schultz v. Dew, 1997 SD 72, 564 N.W.2d 320 (S.D. 1997).
[FN3] Holen v. Phelps, 131 Mont. 146,308 P.2d 624 (1957).
[FN4] Boese v. Crane, 182 Kan. 777, 324 P.2d 188 (1958); City of Rock Springs v. Stunm, 39 Wyo.
494,273 P. 908, 97 A.L.R. I (1929).
[FN5] Harlow v. Miller, 147 Vt. 480, 520 A.2d 995 (1986).
[FN6] Meyer v. Law, 287 So. 2d 37 (Fla. 1973); Roberts v. Walker, 238 Iowa 1330, 30 N.W.2d 314
(1947); Mooney v. Canter, 311 S.W.2d I (Mo. 1958); Copenhaver v. Copenhaver, 1957 OK 215, 317
P.2d 756 (Okla. 1957); Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999)
; Lynch v. Lynch, 236 S.C. 612, 115 S.E.2d 301 (1960); Allie v. Russo, 88 Wis. 2d 334, 276 N.W.2d
730 (1979).
[FN7] Holen v. Phelps, 131 Mont. 146,308 P.2d 624 (1957).
[FN8] Stewart v. Childress, 269 Ala. 87, III So. 2d 8 (1959); Van Meter v. Kelsey, 91 So. 2d 327 (Fla.
1956); Palmer v. Greene, 159 Fla. 174, 31 So. 2d 706 (1947); Walter v. Jones, 15 III. 2d 220, 154
N.E.2d 250 (1958).
[FN9] Mielke v. Daly Ditches lIT. Dist., 225 Mont. 172, 731 P.2d 927 (1987).
[FNIO] Mary Moody Northen, Inc. v. Bailey, 244 Va. 118,418 S.E.2d 882 (1992).
rights reserved.
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Adverse Possession

B. Evidence
§ 301. In favor of adverse claimant
A.L.R. Library
Ordinarily, presumptions cannot be indulged in support of a claim of adverse possession.[I] However,

where it is shown that an adverse claimant has used the land as an owner would use it, or that the possession has
been open, notorious, and continuous for the statutory period, a presumption or inference of a hostile holding by
the claimant may arise,[2] even where the possession was taken under a mistake as to, or in ignorance of, the
true boundary line.[3] Thus possession may be presumed to have been adverse where the evidence tends to show
that it had all the qualities of an adverse holding.[4]
A claim of right will be presumed from the assertion of dominion, particularly where the assertion of
dominion is made by the erection of valuable improvements.[S] In the absence of any explanation whatsoever,
where one is shown to have been for the statutory period in actual, open, notorious, continuous and exclusive
possession, apparently as owner, and such possession is unexplained, either by showing that it was under a lease
from, or other contract with or otherwise by pennission of the true owner, the presumption is that such posses-
sion was hostile.[6] While possession under a statute of limitations, in the absence of evidence to the contrary
qualifying and explaining the possession, may raise a presumption or inference that it is adverse and hostile, the
proof establishing the possession must itself be consistent with a hostile claim of ownership in order to support
such a presumption.[7]
Good faith may be presumed from an open, exclusive, continuous, hostile possession,[8] or from the pay·
ment of money for color of title and taxes by a person who acts as though the owner of the property.[9] Good
faith may be presumed from entry under a recorded deed,[ I 0] or when there is no evidence that the claim of pos·
session originated in fraud.[ II]

Page 631 of 665

[FNI] Kilpatrick v. Gulf Production Co., 139 S.W.2d 653 (Tex. Civ. App. Beaumont 1940), writ dis-
missed, judgment correct.
[FN2] Vrana v. Stuart, 169 Neb. 430, 99 N.W.2d 770 (1959); Platt v. Smith, 127 N.Y.S.2d 66 (Sup
1954); Springer v. Durette, 217 Or. 196, 342 P.2d 132 (1959); Harvey v. Peters, 227 S.W.2d 867 (Tex.
Civ. App. Fort Worth 1950); Kimball v. Turner, 993 P.2d 303 (Wyo. 1999).
[FN3] Dubois v. Karazin, 315 Mich. 598, 24 N.W.2d 414 (1946); Meyer v. Ellis, 411 P.2d 338 (Wyo.
1966); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. I (1929).
[FN4] Rossner v. Jefrrey, 234 Ark. 723, 354 S.W.2d 705 (1962).
[FN5] Childs v. Sammons, 272 Ga. 737, 534 S.E.2d 409 (2000).
consideration, (May II, 1999).
[FN7] Gilbert v. Green, ISO Tex. 521, 242 S.W.2d 879 (1951).
[FN8] Dupuy v. Shannon, 136 So. 2d III (La. Ct. App. 3d Cir. 1961), saying that good faith is always
presumed in matters of prescription.
[FN9] Bergesen v. Clauss, 15 Ill. 2d 337, ISS N.E.2d 20,68 A.L.R.2d 446 (1958).
[FNIO] Thurmond v. Espalin, 50 N.M. 109, 171 P.2d 325 (1946).
[FN II] Childs v. Sammons, 272 Ga. 737, 534 S.E.2d 409 (2000).
rights reserved.
END OF DOCUMENT
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Page 632 of 665
Westlaw,

Adverse Possession

B. Evidence
3. Admissibility of Evidence
§ 302. Generally
West's Key Number Digest, Adverse Possession €:=>27, 33, 38, 57, 85(2), 113
Forms
Affidavits. 3 Am. Jur. Legal Forms 2d, Adverse Possession §§ II: 17 to II :21.
The admissibility of evidence as to adverse possession follows the general rules applicable to civil cases.[I]
Relevant evidence includes that evidence showing the constituent elements of title by adverse possession, in-
cluding facts tending to prove such acts of dominion on the part of the claimant as would singly or collectively,
put all persons, and particularly the true owner, on notice of the fact that the property in question is in the ad-
verse possession of the c1aimant.[2] The introduction of extrinsic evidence to cure a deficiency in a deed de-
scription so as to establish adverse possession under color of title is governed by evidentiary and not substantive
rules oflaw.[3]
Anyone possessing personal knowledge of the ownership or use of real property is competent to testifY on
the issue of the adverse use of that property,[4] regardless of whether they are in privity with the party claiming
adverse possession,[5] and including tenants or agents who may testifY as to the extent of a party's understand-
ing as to boundaries of the subject property.[6]
[FNI] Tumey v. Sousa, 146 Cal. App. 2d 787, 304 P.2d 1025 (1st Dis!. 1956).
[FN2] Stiff v. Cobb, 126 Ala. 381, 28 So. 402 (1900); Horton v. Smith-Richardson Inv. Co., 81 Fla.
255,87 So. 905 (1921); Ater v. Smith, 245 III. 57, 91 N.E. 776 (1910); Weeks v. Morin, 85 N.H. 9, 153
A. 471 (1931).
[FN3] Williams v. Howell, 108 N.M. 225, 770 P.2d 870 (1989).
Page 633 of 665

[FN4] Caywood v. Department of Natural Resources, 71 Mich. App. 322, 248 N.W.2d 253 (1976); Ly-
man v. Ferrari, 66 Ohio App. 2d 72, 20 Ohio Op. 3d 138,419 N.E.2d 1112 (1st Dist. Hamilton County
1979).
[FN5] Caywood v. Department of Natural Resources, 71 Mich. App. 322, 248 N.W.2d 253 (1976).
[FN6] King v. Inwood North Associates, 563 S. W.2d 309 (Tex. Civ. App. Houston 1st Dist. 1978).
rights reserved.
END OF DOCUMENT
Page 634 of 665
Westlaw,

Adverse Possession

B. Evidence
§ 303. Acts and declarations of adverse claimant and predecessors during statutory period
A,L,R. Library
An adverse claimant may testify as to the claimant's own acts of adverse possession and also as to those of a
predecessor.[I] It is generally recognized that evidence of the acts and declarations of the claimant or prede·
cessors in possession, during the statutory period, is admissible to show the nature of possession,[2] or to show
the character of the right asserted.[3] While the declaration of the adverse claimant are admissible to prove the
character of possession otherwise proved or admitted, such declarations are inadmissible to prove possession it-
self.[4]
The payment of taxes is evidence of an adverse possession,[5] while the failure to pay taxes may be evid-
ence that the claimant did not claim title,[6] so in proving a claim of title by adverse possession it is competent
in some cases to introduce evidence showing the payment of taxes by the claimant on the property involved for
all, or a part, of the time it was in the claimant's possession.[7] Where, however, the record is not clear regarding
the land on which the claimant has paid taxes, the claimant may fail to prove adverse possession,[8] The pay-
ment of taxes is not sufficient, however, to establish adverse possession as a matter oflaw.[9]
Continuous occupation of property for five years creates presumption that the possession has been adverse
and under a claim of right.[lO] Cultivation of property, or changing nature and appearance thereof, may be evid-
ence supporting acts of actual possession,[II] including the planting and harvesting of trees,[I2] or the plowing
and maintaining of fire breaks.[13] However, without a showing of a duration and sufficient frequency of cattle
and timber operations to indicate continuous nature of use, fails to establish prima facie adverse possession;[14]
similarly, evidence of such cultivation that falls short of showing the cultivation was visible and evident to the
public may be too vague to establish actual, open, notorious and continuous possession necessary to prima facie
case of adverse possession.[I5]

Page 635 of 665

Declarations or admissions of one in possession tending to show that the possessor had no title or did not
claim title, whether the possession was or was not by permission of the true owner, are admissible evidence that
the possession was not adverse.[16] Documental)' evidence may be introduced to show actual possession(17]
which may include photographs showing the nature of the claimant's use of the property.[18] The enclosure of
property is admissible evidence supporting adverse possession,[19] as is evidence of adding to and maintaining
fences, along with use of land up to the fence,[20] or in conjunction with other acts consistent with actual pos-
session and use of the property.[21]
[FNI] Feinstein v. McGuire, 329 S.W.2d 611 (Mo. 1959); Spence v. Spence, 238 Mo. 71, 141 S.W. 898
(1911).
[FN2] Richterberg v. Wittich Memorial Church, 222 F. Supp. 324 (W.O. Okla. 1963), judgment affd,
334 F.2d 869 (10th Cir. 1964); Park Const. Realty & Securities Corporation v. Emmett, 145 Kan. 604,
66 P.2d 379 (1937); Stephens v. Fowlkes, 338 Mo. 527, 92 S.W.2d 617 (1936); Mallet v. Huske, 262
N.C. 177, 136 S.E.2d 553 (1964); Lamons v. Mathes, 33 Tenn. App. 609,232 S.W.2d 558 (1950).
[FN3] Cleveland v. Hensley, 548 S.W.2d473 (Tex. Civ. App. Texarkana 1977).
[FN4] Turney v. Sousa, 146 Cal. App. 2d 787, 304 P.2d 1025 (1st Dist. 1956).
[FN5] Yamashita v. People of TerritoI)' of Guam, 59 F.3d 114 (9th Cir. 1995); Miller v. Leaird, 307
S.C. 56, 413 S.E.2d 841 (1992); Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993); Rhodes
v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990); Armstrong v. Dailey,
514 So. 2d 993 (Ala. 1987); Maynard v. Hibble, 244 Va. 94, 418 S.E.2d 871 (1992).
[FN6] United Park City Mines Co. v. Estate of Clegg, 737 P.2d 173 (Utah 1987).
[FN7] McCal)' v. Crumpton, 267 Ala. 484, 103 So. 2d 714 (1958); Faulks v. Schrider, 114 F.2d 587
(App. D.C. 1940); DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999); Bailey v.
Kamopp, 170 Neb. 836, 104 N.W.2d 417 (1960); Corbett v. Corbett, 249 N.C. 585, \07 S.E.2d 165
(1959); Perry v. Alford, 225 N.C. 146, 33 S.E.2d 665 (1945); Knecht v. Spake, 218 Or. 601, 346 P.2d
98 (1959); Siddons v. Lauterman, 165 Or. 668, \09 P.2d 1049 (1941).
[FN8] Baxter v. Craney, 135 Idaho 166, 16 P.3d 263 (2000); Tester v. Tester, 300 Mont. 5, 3 P.3d 109
(2000).
[FN9] Rhodes v. Cahill, 802 S. W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990).
[FN10] Cluffv. Bonner County, 121 Idaho 184,824 P.2d 115 (1992).
[FNII] Williamson v. Fain, 274 Ga. 413, 554 S.E.2d 175 (2001); Maynard v. Hibble, 244 Va. 94, 418
S.E.2d 871 (1992).
[FNI2] Lewis v. Aslesen, 2001 SO 131, 635 N.W.2d 744 (S.D. 2001); Brown v. Williams, 259 Ga. 6,
375 S.E.2d 835 (1989).
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[FNI3] Brown v. Williams, 259 Ga. 6, 375 S.E.2d 835 (1989).
[FNI4] Gilbert v. Summers, 240 Va. 155,393 S.E.2d 213 (1990).
[FNI5] Morinoue v. Roy, 86 Haw. 76, 947 P.2d 944 (1997).
[FNI6] White v. Williams, 260 Ala. 182,69 So. 2d 847 (1954); Archuleta v. Rose, 136 Colo. 211, 315
P.2d 201 (1957).
[FN 17] Resseau v. Bland, 268 Ga. 634, 491 S.E.2d 809 (1997).
[FN 18] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999); Harkins
v. Fuller, 652 A.2d 90 (Me. 1995) (photographs showing lack of use).
[FNI9] Lindgren v. Martin, 130 Idaho 854, 949 P.2d 1061 (1997).
[FN20] Lewis v. Moorhead, 522 N.W.2d I (S.D. 1994) (even though fence did not run full length of
disputed area); Kendall v. Selvaggio, 413 Mass. 619, 602 N.E.2d 206 (1992); Stallings v. Bailey, 558
So. 2d 858 (Miss. 1990).
[FN21] Roy v. Kayser, SOl So. 2d 1110 (Miss. 1987).
rights reserved.
END OF DOCUMENT
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Page 637 of665
Westlaw.

Adverse Possession
Theresa Leming, J. D., Bill Lindsley, lD., and Eric Surette, lD.

B. Evidence
§ 304. Acts and declarations of adverse claimant and predecessors after expiration of statutory period
West's Key Number Digest, Adverse Possession 0<:=113
While acts or conversations of the claimant or a predecessor after the expiration of the statutory period and
recognizing the title of the original owner are not admissible for the purpose of divesting title held by the ad-
verse occupant and revesting it in the original owner, such evidence is admissible for the purpose of showing
that the possession of the occupant was not adverse, and that the occupant did not acquire title by the possession,
which was only permissive.[1] Thus, where the possession was taken under mistake or ignorance as to the true
boundary line, evidence of acts or statements occurring after the running of the statutory period may be admiss-
ible to show that there was no intent to hold adversely during the running of the period.[2]
Evidence that a claimant thought that he or she was supposed to pay something for the property and that he
or she was willing to do so may be introduced to defeat claim of adverse possession.[3]
[FNI] Lowe v. Cox, 210 Ark. 169, 194 S.W.2d 892 (1946); Sloan v. Ayres, 209 Ark. 119, 189 S.W.2d
653 (1945); Maloney v. Bedford, 290 Ky. 647,162 S.W.2d 198 (1942).
[FN2] Davis v. Wright, 220 Ark. 743, 249 S.W.2d 979 (1952); Deweese v. Logue, 208 Ark. 79, 185
S. W.2d 85 (1945).
[FN3] Gonthier v. Home, 576 A.2d 745 (Me. 1990).
rights reserved.
END OF DOCUMENT
Page 638 of 665
Westlaw

Adverse Possession

B. Evidence
§ 305. Reputation as to ownership, or claim of ownership
West's Key Number Digest. Adverse Possession tC= 113
The adverse claimant may introduce evidence of reputed ownership to show that the claim was open and no-
torious,[ I] or for the purpose of showing the hostility of the claimant's possession.[2] However, evidence of gen-
eral reputation as to the ownership or claim of title to land is generally inadmissible for the purpose of showing
the acquisition or existence of title thereto by adverse possession.[3] Evidence of the reputed ownership by the
claimant of the land in controversy is not admissible to show the element of actual possession.[4]
Parties claiming the record title ordinarily may show a reputed title in themselves and their predecessors in
title, including where such evidence may tend to show the absence of notoriety of the adverse claim and of the
record owner's knowledge thereof.[5]
[FNI] Walker v. Town of Fruithurst, 272 Ala. 141, 130 So. 2d 12 (1961); International Harvester Co. of
America v. Myers, 86 Kan. 497, 121 P. 500 (1912); Spicer v. Spicer, 249 Mo. 582, 155 S.W. 832
(1913); Brewer v. Brewer, 238 N.C. 607, 78 S.E.2d 719, 40 A.L.R.2d 763 (1953).
[FN2] Watters v. Brown, 177 Ala. 78, 58 So. 291 (1912); Northern Pac. Ry. Co. v. City of Spokane, 45
Wash. 229, 88 P. 135 (1907).
[FN3] Brewer v. Brewer, 238 N.C. 607, 78 S.E.2d 719, 40 A.L.R.2d 763 (1953).
[FN4] Williams v. Lyon, 181 Ala. 531, 61 So. 299 (1913); Luttrell v. Whitehead, 121 Ga. 699, 49 S.E.
691 (1905).
[FN5] Spicer v. Spicer, 249 Mo. 582,155 S.W. 832 (1913).
Page 639 of 665

rights reserved.
END OF DOCUMENT
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Page 640 of 665
Westlaw.

Adverse Possession

B. Evidence
4. Weight and Sufficiency
§ 306. Generally; standard of proof
West's Key Number Digest, Adverse Possession C;:;:>27, 85(3), 114(1) to 114(3)
Title by adverse possession cannot be made out by inference; generally, it must be established by clear and
positive proof,[I] or clear and convincing,[2] or by clear and satisfactory evidence;[3] some cases hold that it
may be established by a preponderance of the evidence,[4] or of the credible evidence.[5] A greater showing
must be made to establish an adverse possession than is necessary to establish a prescriptive easement.[6]
When establishing title by adverse possession, evidence of actual possession must be sufficient to alert a
reasonably diligent owner to the adverse possessor's exercise of dominion and contro1.[7] Evidence may be suf-
ficient to support adverse possession even though conflicting evidence is introduced.[8] A deed or color of title,
where one exists, purporting to convey an interest in property subject to an adverse possession claim is evidence
of a claim of right, but even that evidence can be overcome by acts or statements indicating that the claimant in-
tends to claim more or less than the claimant's deed purports to convey.[9]
In detennining whether the character of the possession was hosti1e, where the possession of land was taken
under mistake or ignorance as to the true boundary, evidence of statements indicating a lack of intent to claim
the land adversely has in some cases been held entitled to great, if not conclusive, weight,[IO] and in other cases
to little weight.[ll] Where an intent to claim title element of adverse possession is required in a case involving
possession under a mistaken belief as to the true boundary, proof of such an element is not met if the party had
conscious doubt concerning the state of title.[ 12] Record title is highest evidence of ownership and, while such
title may be defeated by adverse possession, mere possession is lowest evidence ofownership.[13]
Cases:
There is no hard and fast rule by which the sufficiency of an adverse claim may be determined, for purposes
of a cotenant's adverse possession claim against other cotenants; courts generally look to the totality of the cir-
cumstances and consider such factors as the relationship of the parties, their reasonable access to the property,
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Page 641 of 665

kinship, and numerous other factors to determine if non-possessory catenants have been given sufficient warn-
ing that the status of a cotenant in possession has shifted from mutuality to hostility. Sherman v. Wallace, 88
Ark. App. 229,197 S.W.3d 10 (2004).
Adjacent landowner's evidence of continuous and exclusive maintenance and use of land for more than
twenty years accompanied by a claim of right supported finding of prescriptive title by adverse possession, al-
though a neighboring landowner testified that over the years he saw both landowners mowing the property; adja-
cent landowners mowed, maintained, fenced, and placed old cars, boats, a chicken coop, basketball goals, and a
driveway on the land. Murray v. Stone, 283 Ga. 6, 655 S.E.2d 821 (2008).
In a claim for adverse possession, intent is objective rather than subjective in determining whether the ad-
versity element of adverse possession has been established, and the legal requirement that possession be adverse
is satisfied by clear and convincing evidence that for 21 years the claimant possessed property and treated it as
the claimant's own. Evanich v. Bridge, 119 Ohio st. 3d 260, 2008-0hio-3820, 893 N.E.2d 481 (2008).
consideration, (May 11, 1999); Kessinger v. Matu1evich, 278 Mont. 450, 925 P.2d 864 (1996); Turnip-
seed v. Moseley, 248 Ala. 340, 27 So. 2d 483,170 A.L.R. 882 (1946); Van Meter v. Kelsey, 91 So. 2d
327 (Fla. 1956); Schramm v. Schramm, 13 III. 2d 281, 148 N.E.2d 799 (1958); Kurz v. Blume, 407 III.
383, 95 N.E.2d 338, 25 A.L.R.2d 1258 (1950); Lawse v. Glaha, 253 Iowa 1040, 114 N.W.2d 900
(1962); Bums v. Foster, 348 Mich. 8, 81 N.W.2d 386 (1957); Hoverson v. Hoverson, 216 Minn. 228, 12
N.W.2d 501 (1943); Birtrong v. Coronado Bldg. Corp., 90 N.M. 670, 568 P.2d 196 (1977); Van
Valkenburgh v. Lutz, 304 N.Y. 95, 106 N.E.2d 28 (1952); Willis v. Holley, 1996 OK 107,925 P.2d 539
(Okla. 1996); Fry v. Woodward, 221 Or. 39, 350 P.2d 183 (1960); Cuka v. Jamesville Hutterian Mut.
Soc., 294 N.W.2d 419 (S.D. 1980).
As to presumptions and inferences, see §§ 299 to 30 I.
As to who has burden of proof, generally, see § 297.
[FN2] Carnevale v. Dupee, 783 A.2d 404 (R.1. 2001); Grace v. Koch, 81 Ohio St. 3d 577, 692 N.E.2d
1009 (1998); East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992); Ray v.
Beacon Hudson Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666 N.E.2d 532 (1996); Brown v.
Gobble, 196 W. Va. 559, 474 S.E.2d 489 (1996) (preponderance of evidence is not sufficient); Horton
v. Kroner, 575 So. 2d 1026 (Ala. 1990); Gammon v. Verrill, 651 A.2d 831 (Me. 1994); Rice v.
Pritchard, 611 So. 2d 869 (Miss. 1992); Hoffinan v. Freeman Land and Timber, LLC., 329 Or. 554,994
P.2d 106 (1999); Miller v. Leaird, 307 S.C. 56,413 S.E.2d 841 (1992); Lewis v. As1esen, 2001 SO 131,
635 N.W.2d 744 (S.D. 2001).
[FN3] Baxter v. Craney, 135 Idaho 166, 16 P.3d 263 (2000).
[FN4] Saunders v. Rebuck, 242 Neb. 610,496 N.W.2d 472 (1993); Bums v. Owen, 235 Ark. 203, 357
S.W.2d 520 (1962); State v. Phillips, 400 A.2d 299 (Del. Ch. 1979), judgment affd, 449 A.2d 250 (Del.
1982).
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[FN5] Hamburg Realty Co. v. Woods, 327 S.W.2d 138 (Mo. 1959).
[FN6] Moran v. Edman, 194 W. Va. 342, 460 S.E.2d 477 (1995).
[FN8] Lawrence v. Pelletier, 154 V!. 29, 572 A.2d 936 (1990).
[FN9] Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999).
[FNIO] Waters v. Madden, 197 Ark. 380, 122 S.W.2d 554 (1938); Patrick v. Cheney, 226 Iowa 853,
285 N.W. 184 (1939); Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956).
[FNII] Gathings v. Johns, 216 Ark. 668, 226 S.W.2d 978 (1950); Patterson v. Wilmont, 245 S.W.2d
116 (Mo. 1952); Konop v. Knobel, 167 Neb. 318, 92 N.W.2d 714 (1958).
[FNI2] Sebrell v. Carter, 105 N.C. App. 322,413 S.E.2d I (1992).
[FNI3] Estate of Mark v. H.H. Smith Co., 547 N.E.2d 796 (Ind. 1989).
rights reserved.
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Westlaw.

Adverse Possession

B. Evidence
§ 307. Particular Evidence
West's Key Number Digest, Adverse Possession E:=>27, 85(3), 114(1) to 114(3)
A.L.R. Library
Grazing of livestock, gathering of natural crop, or cutting of timber by record owner as defeating exclusive-
ness or continuity of possession by one claiming title by adverse possession, 39 A.L.R. 4th 1148.
A.L.R. 3d 818.
Evidence has been sufficient to establish adverse possession by proof showing continuous maintenance of
the property evidenced by mowing and removing trees,[I] other evidence of regular cultivation and use,[2] by
evidence of obvious use of the property for the statutory period combined with maintenance of the grounds and
construction of a fence with a locked gate around the property,[3] and where claimants grazed their cattle on the
subject property, built fences around the property, exclusively maintained existing the fences, and constructed
other structures thereon, and chased off persons entering the property without their permission.[4] Grazing
horses and occasionally cutting grass may be sufficient evidence of open, notorious, hostile, continuous, and ex-
clusive possession of disputed land.[5] Sufficient evidence of adverse possession may be shown by the making
of improvements to the land by planting grass, trees, and flowers and by building a tool shed and installing a
septic system below the ground,[6] or showing that the property was used for storing farm equipment, pasturing
livestock, hunting, and woodcutting.[7]
The threshold for legal sufficiency of physical acts as proof of possession for purposes of establishing title
by adverse possession varies with the character of the land;[8] thus a seasonal use of the property may be suffi-
cient evidence to support adverse possession where character of property is such that seasonal use is consistent
with a claimant continuously using the property as an average owner of similar property would use it.[9]
However, occasional cultivation and other use may not be sufficient;[10] thus evidence showing that use of the
property consisting, at most, of maintaining fence, and occasionally visiting to pick blackberries and to picnic,
may fail to constitute actual, exclusive, open, notorious, and hostile possession necessary for adverse posses-

Page 644 of 665

sion.[1I] Recreational use is insufficient to raise a presumption of adverse use.[12] Where there is a familial re-
lationship between opposing parties, the planting of trees is not sufficient evidence to establish an adverse pos-
session.[13]
A partial construction of structures on the property may be insufficient evidence of adverse possession,[14]
and evidence that another maintains part of the property may defeat a claim to the whole.[15] A claimant's mis-
taken belief that a fence on the disputed parcel of land was a boundary fence may not be sufficient to establish
claimant's adverse possession of the land,[16] and a fence that does not establish boundary and is for the con-
venience of the parties implies permission,[17] and will not be sufficient to support an adverse holding of the
disputed land.[18]
The testimony of the record owner that permission had been given to the claimants may be sufficient to sup-
port a finding there was no adverse possession.[ 19]
Cases:
Sufficient evidence supported conclusion that owner of first floor of building did not exercise continuous,
exclusive, and uninterrupted actual possession of 1,350 square foot space located at rear of second floor of
building, as necessary for owner to establish valid adverse possession claim with respect to the space against
renter of adjacent front portion of second floor of building; renter replaced door at base of stairwell leading to
second floor and did not provide a key to that door to anyone, he used rear space to store material for renovation
of front area, he did not observe anyone other than himself and his agents either possessing the space or repair-
ing or maintaining it, and, after rear space was conveyed to him via quitclaim deed, he posted UNo Trespassing"
signs and, on two occasions, someone entered without authority. MEA Family Investments, LP v. Adams, 284
Ga. 407, 667 S.E.2d 609 (2008).
Evidence was sufficient to support finding that property owners acquired disputed property by adverse pos-
session, despite owner's testimony that he never intended to encroach on adjoining landowners' property; there
was evidence that property owners' use continued exclusively for 35 years until adjoining landowners conducted
a survey, that the use was without attempted concealment, and that property owners adversely used the property
by erecting a split-rail fence, installing raised planting beds composed of railroad ties, bushes, flowers, and at
least one tree, installing sandstone blocks, and installing wrought iron fencing. Evanich v. Bridge, 170 Ohio
App. 3d 653, 2007-0hio-1349, 868 N.E.2d 747 (9th Dis!. Lorain County 2007), appeal allowed, 114 Ohio st. 3d
1507, 2007-0hio-4285, 872 N.E.2d 950 (2007).
Adverse possession must be proven by clear and convincing evidence; "clear and convincing evidence" is
that proof which establishes in the minds of the trier of fact a firm conviction as to the allegations sought to be
proved. Evanich v. Bridge, 170 Ohio App. 3d 653, 2007-0hio-1349, 868 N.E.2d 747 (9th Dist. Lorain County
2007), appeal allowed, 114 Ohio St. 3d 1507, 2007-0hio-4285, 872 N.E.2d 950 (2007).
lEND OF SUPPLEMENTI
[FNI] Woodrow v. Sisson, 154 A.D.2d 829, 546 N.Y.S.2d 492 (3d Dep't 1989); Bergen v. Dixon, 527
So. 2d 1274 (Ala. 1988).

Page 645 of 665

[FN2] Williamson v. Fain, 274 Ga. 413, 554 S.E.2d 175 (2001).
[FN3] Golden Hammer Auto Body Corp. v. Consolidated Rail Corp., 151 A.D.2d 545, 542 N.Y.S.2d
320 (2d Dep't 1989).
[FN4] Butler v. De La Cruz, 812 S.W.2d 422 (Tex. App. San Antonio 199\), writ denied, (Nov. 20,
1991) and reh'g of writ of error overruled, (Jan. 22, 1992); Lewis v. Johnson, 507 So. 2d 918 (Ala.
1987); Robertson v. Dombroski, 678 So. 2d 637 (Miss. 1996).
[FN5] Tillison v. Taylor, 572 So. 2d 429 (Ala. 1990).
[FN6] Fencl v. City of Harpers Ferry, 620 N.W.2d 808 (Iowa 2000).
[FN7] Triplett v. David H. Fulstone Co., 109 Nev. 216, 849 P.2d 334 (1993)
[FN9] Nome 2000 v. Fagerstrom, 799 P.2d 304 (Alaska 1990).
[FNIO] Rawls v. Parker, 602 So. 2d 1164 (Miss. 1992).
[FN I I] Harmon v. Ingram, 572 So. 2d 41 I (Ala. 1990).
[FNI2] Kessinger v. Matulevich, 278 Mont. 450, 925 P.2d 864 (1996).
[FNI3] Harlow v. Miller, 147 Vt. 480, 520 A.2d 995 (1986).
[FNI4] ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 774 P.2d 6 (1989).
[FNI5] Carney v. Heinson, 133 Idaho 275, 985 P.2d 1137 (1999).
[FN 16] Hovendick v. Ruby, 10 P.3d 1119 (Wyo. 2000).
[FN 17] Lake v. Severson, 993 P.2d 309 (Wyo. 1999).
[FN 18] Kimball v. Turner, 993 P.2d 303 (Wyo. 1999).
[FN 19] Cooper v. Cate, 591 So. 2d 68 (Ala. 1991).
© 20 I 0 Thomson Reuters. 33-34B © 2010 Thomson ReuterslRIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
AMJUR ADVERSE § 307 .
END OF DOCUMENT
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Page 646 of 665
Westlaw

Adverse Possession

B. Evidence
§ 308. Adverse claimant's statement or admission as to intent to claim
West's Key Number Digest, Adverse Possession oC=I14(1) to 114(3)
The claimant's declarations as to intent may support a finding of adverse possession.[I] However, an ad-
verse claimant's testimony that he or she did not intend to claim more than his or her own is sufficient to pre-
clude a claim of title by adverse possession.[2] However it is not necessary for a claimant to avow wrongdoing.[
3] In arriving at the intent of the claimant, it is better for the court to weigh the reasonable import of the
claimant's conduct in the years preceding the litigation rather than rely on a remark, made under the stress of tri-
al, that is elsewhere refuted by the evidence.[4] A conversation during which the claimant informs the neighbor
of claimant's opinion as to established property line does not evidence an intent to exclude the neighbor from use
as required to satisfY exclusive and hostile elements of adverse possession claim.[5]
[FNI] Smith v. Hayden, 772 P.2d47 (Colo. 1989).
[FN2] Ogle v. Hodge, 217 Ark. 913, 234 S.W.2d 24 (1950); Patrick v. Cheney, 226 Iowa 853, 285
N.W. 184 (1939); Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956); Orlando v. Moore, 274
S.W.2d 86 (Tex. Civ. App. Waco 1954), writ refused n.r.e., (Apr. 6, 1955).
[FN3] Schmidt v. Marschel, 211 Minn. 539,2 N.W.2d 121 (1942).
[FN4] Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1959); Rindeikis v. Coffinan, 231 Ark. 422,
329 S.W.2d 550 (1959).
[FN5] Rawls v. Parker, 602 So. 2d 1164 (Miss. 1992).
rights reserved,
Page 647 of665

END OF DOCUMENT
Page 648 of 665
Westlaw
AMJUR ADVERSE VI C REF Page I
3 Am. Jur. 2d Adverse Possession VI C Refs.

Adverse Possession

C. Trial
Research References
West's Key Number Digest, Adverse Possession oC=I15 to 117
A.L.R. Library
A.L.R. Digest: Adverse Possession § I
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 28, 47 to 52, 68 to 80, 98 to 106, 121 to
123, 145 to 148
rights reserved.
AMJUR ADVERSE VI C REF
END OF DOCUMENT
Page 649 of 665
Westlaw,

Adverse Possession

e. Trial
§ 309. Generally
West's Key Number Digest, Adverse Possession <£;=115 to 117
In actions for the recovery of land where either party relies on a title by adverse possession, and the evid-
ence demands a finding that such title has ripened and thereby extinguished an inconsistent title to the land, the
court is authorized to direct a verdict.[I] The only manner in which a claimant who brings an action to quiet title
to property based on adverse possession can establish ownership, is by proving the elements of adverse posses-
sion against all claimants.[2] Sufficient evidence of the time during which adverse acts took place must be intro-
duced to support claim of adverse possession.[3]
A claim of adverse possession is based upon an assertion of ownership rights as against all persons, not
simply the record owner, thus it is not inconsistent for a jury to find adverse claimants to be in adverse posses-
sion and the opposing party to not be the record title holder.[4] It is not necessary to show that all others were
totally excluded from the property,[5] considering some hospitality is consistent with exclusive use;[6] generally
not sharing the parcel with the true owner or the world at large is sufficient.[7]
Actual notice to the true and rightful owner that the possession is adverse may not be necessary to prove
where there was no evidence ofperrnissive possession and such possession was open.[8]
[FNI] Hearn v. Leverette, 213 Ga. 286, 99 S.E.2d 147 (1957); Bordages v. Stanolind Oil & Gas Co.,
129 S.W.2d 786 (Tex. Civ. App. Galveston 1938), writ dismissed, judgment correct.
[FN2] Cluffv. Bonner County, 126 Idaho 950,895 P.2d 551 (1995).
[FN3] Morinoue v. Roy, 86 Haw. 76, 947 P.2d 944 (1997).
As to duration of possession as a necessary element, see § 13.
[FN4] Lake Drive Corp. v. Portner, 108 N.C. App. 100,422 S.E.2d 452 (1992).
Page 650 of 665

[FN5] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME 111,733 A.2d 984 (Me. 1999).
[FN7] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999); Vezey v.
Green, 35 P.3d 14 (Alaska 2001).
[FN8] Proctor v. Heirs of Jernigan, 273 Ga. 29, 538 S.E.2d 36 (2000).
rights reserved.
END OF DOCUMENT
Page 651 of 665
Westlaw,

Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, 1.0.

C. Trial
§ 310. Questions of law and questions offact
West's Key Number Digest, Adverse Possession C=115(l) to 115(7)
Adverse possession issues are usually a mixed question of law and fact.[I] Whether the facts exist that con-
stitute adverse possession is for a jury to determine, but whether the facts as delineated are sufficient to consti-
tute adverse possession is a question of law for the court.[2] Ordinarily, however, the jury determines whether
the elements of adverse possession have been proven; only when reasonable minds could not differ does the is-
sue become one of law for court.[3] Thus, if the evidence is conflicting or doubtful, the question of adverse pos-
session is for the jury; if the evidence is clear and undisputed, adverse possession becomes a question of law for
the court.[4] Issues of fact for the jury become matters of law for the court where the evidence, or want of evid·
ence is conclusive.[5]
The character of the possession is a question for the jury.[6] Whether the claimants' acts of dominion were
sufficient to create title by adverse possession is a question of law,[7] although whether those acts were really
done, and the circumstances under which they were done, are questions of fact.[8] Where there is no evidence of
enclosure or cultivation, notoriety and exclusivity become questions offact.[9]
Ordinarily, intent to rely on the statute of limitations as a basis for title presents a fact question.[IO] While a
claim of right can be inferred from unequivocal conduct that is inconsistent with any other reasonable inference,
whether the conduct relied upon is sufficient to establish a claim of right is generally a question for the jury.[II]
Questions of fact are ordinarily presented by the issue of actual possession,[12] and whether fences were
constructed and maintained by an adverse claimant is a proper question for the jury.[13] The extent of adverse
possession, and the duration of adverse possession, are questions for the jury where there is a conflict in the
evidence.[14]
If there is a dispute as to whether the possession of one who claims title to lands by adverse possession is
hostile, the question is for the determination of the jury.[15] The question of hostility of possession only be·
comes one of law for the court when the evidence is undisputed and susceptible of but one inference.[ 16]
An acknowledgment by the adverse possessor of title in another is evidence tending to show that claim was

Page 652 of 665

not truly adverse, and weight to be given acknowledgment is for trier of fact.[17] The determination of facts
which lead to either a presumption of adverse and hostile use of the property or a presumption of a permissive
use are within prerogative oftrial court.[18]
Cases:
As to a claim of adverse possession of real property, a claimant's subjective belief that the claimed property
adversely belonged to him, standing alone, fails to raise a fact issue. Martin v. McDonnold, 247 S. W.3d 224
(Tex. App. EI Paso 2006), reh'g overruled, (July 25, 2007).
lEND OF SUPPLEMENTI
[FN I] Proctor v. Heirs of Jernigan, 273 Ga. 29, 538 S.E.2d 36 (2000); Striefel v. Charles-Keyt-Leaman
Partnership, 1999 ME Ill, 733 A.2d 984 (Me. 1999); Horton v. Smith-Richardson Inv. Co., 81 Fla.
255, 87 So. 905 (1921); Stark v. Akard, 1957 OK 181,313 P.2d 790 (Okla. 1957); N.A.S. Holdings,
Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L.
Ed. 2d 672 (2000).
[FN2] Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997); Drawdy Inv. Co. v. Leonard,
158 Fla. 444, 29 So. 2d 198 (1947); Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921).
[FN3] Grappo v. Blanks, 241 Va. 58,400 S.E.2d 168 (1991).
[FN4] Alaska Nat. Bank v. Linck, 559 P.2d 1049 (Alaska (977); ITT Rayonier, Inc. v. Bell, 112 Wash.
2d 754, 774 P.2d 6 (1989).
[FN5] Matter of Keamo, 3 Haw. App. 360, 650 P.2d 1365 (1982).
consideration, (May II, 1999).
[FN7] McGeechan v. Sherwood, 2000 ME 188, 760 A.2d 1068 (Me. 2000); Schultz v. Dew, 1997 SD
72,564 N.W.2d 320 (S.D. 1997).
[FN8] Eaton v. Town of Wells, 2000 ME 176,760 A.2d 232 (Me. 2000).
[FN9] Friendship Baptist Church, Inc. v. West, 265 Ga. 745,462 S.E.2d 618 (1995).
[FNIO] State ex reI. Gallion v. Graham, 273 Ala. 634, 143 So. 2d 810 (1962); Greenway Parks Home
Owners Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235 (1958).
[FNII] Young Kee Kim v. Douval Corp., 259 Va. 752, 529 S.E.2d 92 (2000).
Page 653 of 665

[FN 12] Mills v. Kelley, 214 Ga. 403, 105 S.E.2d 316 (1958).
[FN13] Drawdy 1nv. Co. v. Leonard, 158 Fla. 444, 29 So. 2d 198 (1947).
[FN14] Dunn v. Jones, 330 S.W.2d 932 (Ky. 1959).
[FNI5] Goldman v. Quadrato, 142 Conn. 398,114 A.2d 687,55 A.L.R.2d 549 (1955); Ames v. Brooks,
179 Kan. 590,297 P.2d 195 (1956); Lynch v. Lynch, 236 S.c. 612, 115 S.E.2d 301 (1960); Harrelson
v. Reaves, 219 S.c. 394, 65 S.E.2d 478, 43 A.L.R.2d 1 (1951); Bepp1e v. Reiman, 51 Wash.2d 144,
316 P.2d 452 (1957); Mugaas v. Smith, 33 Wash. 2d 429, 206 P.2d 332, 9 A.L.R.2d 846 (1949).
[FN 16] Lynch v. Lynch, 236 S.C. 612, 115 S.E.2d 301 (1960).
[FN 17] Shanks v. Collins, 1989 OK 115, 782 P.2d 1352 (Okla. 1989).
[FN18] A.B. Cattle Co. v. Forgey Ranches, Inc., 943 P.2d 1184 (Wyo. 1997).
rights reserved.
END OF DOCUMENT
Page 654 of 665
Westlaw.
3 Am. Jur. 2d Adverse Possession § 31 I

Adverse Possession

C. Trial
§ 311. Instructions to jury
West's Key Number Digest, Adverse Possession €:=116(1) to 116(8)
Forms
Instructions to jury. IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 28, 47 to 52, 68 to 80,
98 to 106, 121 to 123.
Instructions to jury-Elements of adverse possession. IB Am. Jur. Pleading and Practice Forms, Adverse
Possession §§ 145 to 148.
Generally jury instructions are proper if they provide guidance to the jury in making its determination,[I]
are correct statements of the law, and are not erroneous as a charge on the facts.[2] The court may give such in-
structions on the law as are supported by the evidence presented in the case,[3] and decline to give an instruction
on adverse possession where possession for the statutory period is not established.[4] Unnecessary instructions
need not be given.[5]
The use of an instruction that a failure to pay property taxes may be considered evidence of absence of bona
fide claim of title may be proper where supported by the evidence.[6] An instruction, that if a person occupies
land by mistake without intention to claim title to it, adverse possession is unavailable, is proper.[7]
[FNI] Shouse v. Roberts, 737 S.W.2d 354 (Tex. App. Houston 14th Dis!. 1987), writ refused n.r.e.,
(Dec. 16, 1987).
[FN2] Harrelson v. Reaves, 219 S.c. 394, 65 S.E.2d478, 43 A.L.R.2d I (1951).
[FN3] Georgia Power Co. v. Irvin, 267 Ga. 760,482 S.E.2d 362 (1997).
[FN4] Noland v. Wise, 333 S.W.2d 501 (Ky. 1960).
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Page 655 of 665

[FN5] McLaren v. Beard, 811 S.W.2d 564 (Tex. 1991).
[FN6] Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997).
[FN7] Crosby v. Baizley, 642 A.2d 150 (Me. 1994).
rights reserved.
END OF DOCUMENT
Page 656 of 665
Westlaw,

Adverse Possession

C. Trial
§ 312. Verdict and findings
The trial court must be scrupulous in chronicling relevant facts and delineating linkage of those facts and
the ultimate conclusion of adverse possession vel non; the court must discuss not only the evidence that supports
its decision but also all substantial evidence contrary to its opinion.[I] It is proper for the court to decree the
specific rights of the parties, incorporating the jury's factual findings into the judgment.[2] A judgment in an ad-
verse possession action is adequate where it is explicit as to the ownership of the land in question.[3] An error in
the conclusions made by the court which is not critical to the adverse possession findings will not invalidate
those findings,[4] but the failure of the court to adequately address, in its findings, critical evidence introduced,
is improper.[5] Where there is conflicting evidence as to whether a landowner's claim was under color of title or
claim of right, the trial court should make findings on that issue.[6]
[FN I] Brown v. Gobble, 196 W. Va. 559, 474 S.E.2d 489 (1996).
[FN2] Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997).
[FN3] Turner v. Reed, 606 A.2d 194 (Me. 1992).
[FN4] Brown v. Whitcomb, 150 Vt. 106,550 A.2d I (1988).
[FN5] Whittemore v. Cooley, 147 Vt. 529, 520 A.2d 1002 (1986).
[FN6] Turner v. Floyd C. Reno & Sons, Inc., 769 P.2d 364 (Wyo. 1989).
rights reserved.
Page 657 of 665

END OF DOCUMENT
Page 658 of 665
We'stiaw.
AMJUR ADVERSE COR Page I
3 Am. Jur. 2d Adverse Possession Correlation Table

Adverse Possession
Topic Summary
Correlation Table
Adverse Possession
I. ................................................................................§I, §3, §4
2 .................................................................................§2
3 .................................................................................§5
4 .................................................................................§6
5 .................................................................................§7
6................................................................................. §8
7................................................................................. §9
8................................................................................. §IO
9................................................................................. §II
10, II ......................................................................... §27
12 ............................................................................... §12,§13
13 ............................................................................... §13
14 ............................................................................... §14
15 ............................................................................... § 15
16 ............................................................................... § 16
17 ............................................................................... § 17
18 ............................................................................... § 18
19,20 ......................................................................... §19
21 ............................................................................... §20
22 ............................................................................... §21
23 ............................................................................... §22
24 ............................................................................... §23
25 ............................................................................... §24
26 ............................................................................... §25
27 ............................................................................... §26
28 ............................................................................... §28
29 ............................................................................... §31
30 ............................................................................... §33
31 ............................................................................... §37
32 ............................................................................... §29
Page 659 of 665
AMJUR ADVERSE COR Page 2

33 ............................................................................... §32
34 ............................................................................... §34
35 ............................................................................... §35
36 ............................................................................... §36 to §39
37 ............................................................................... §40
38 ............................................................................... §30
39 ............................................................................... §256
40 ............................................................................... §257
41 ............................................................................... §124, §258
42 ............................................................................... §259
43 ............................................................................... Deleted
44 ............................................................................... §260
45 ............................................................................... §261
46 ............................................................................... §262
47 ............................................................................... §263
48 ............................................................................... §41, §42
49 ............................................................................... §42
50 ............................................................................... §43, §44
51 ............................................................................... §45,§46
52 ............................................................................... §47, §48
53 ............................................................................... §50
54 ............................................................................... §52
55 ............................................................................... Deleted
56 ............................................................................... §53
57 ............................................................................... §54
58 ............................................................................... §55
59 ............................................................................... §56
60, 61 ......................................................................... §57
62 ............................................................................... §58
63 ............................................................................... Deleted
64 ............................................................................... §59
65 ............................................................................... §60
66 ............................................................................... Deleted
67 ............................................................................... §6l
68 ............................................................................... §15
69 ............................................................................... §62, §63
70 ............................................................................... §63, §64
71 ............................................................................... §65
72 to 74 ...................................................................... §66
75 ............................................................................... §67, §68
76 ............................................................................... §69
77 ............................................................................... §70
78 ............................................................................... §7l
79 ............................................................................... §72
80,81 ......................................................................... §73
Page 660 of 665

82 ............................................................................... §74
83 ............................................................................... §75
84 ............................................................................... §76
85 ............................................................................... §77
86 ............................................................................... §78
87 ............................................................................... §79
88 ............................................................................... §80
89 ............................................................................... §81
90 ............................................................................... §82, §87
91 ............................................................................... §83
92 ............................................................................... Deleted
93 ............................................................................... §84
94 ............................................................................... §85
95 ............................................................................... §86
96 ............................................................................... §87
97 ............................................................................... Deleted
98 ............................................................................... §88, §89
99 ............................................................................... §90
100 .............................................................................. §91
I 0 I .............................................................................. Deleted
102 .............................................................................. §92
103 .............................................................................. §93
I 04 .............................................................................. Deleted
105 .............................................................................. §94
106 .............................................................................. §95
I 07 .............................................................................. Deleted
108 .............................................................................. §96
109 to Ill ................................................................... §97
112 .............................................................................. §98
113 .............................................................................. §99
114, 115 ...................................................................... §100
116 .............................................................................. §IOI
117 .............................................................................. §102
118 .............................................................................. §103
119 .............................................................................. §104
120 .............................................................................. §105
121, 122 ...................................................................... Deleted
123 .............................................................................. §IOI
124, 125 ...................................................................... §106
126 .............................................................................. §107
127 .............................................................................. §109
128 .............................................................................. Deleted
129 .............................................................................. §109
130 .............................................................................. §IIO
131 .............................................................................. Deleted
Page 661 of 665

132 .............................................................................. §111,§118,§130

133 .............................................................................. §112
134 .............................................................................. §113
135 .............................................................................. §114
136 .............................................................................. §115
137 .............................................................................. §116
138 .............................................................................. §117
139 .............................................................................. §118, §119
140 .............................................................................. §120
141 .............................................................................. §121
142 .............................................................................. §122
143 .............................................................................. Deleted
144 .............................................................................. §123
145 .............................................................................. §124
146 .............................................................................. §125
147 .............................................................................. §126, §127
148 .............................................................................. §128
149 .............................................................................. §129
150 .............................................................................. §130, §141
151 .............................................................................. §131
152 .............................................................................. §142
153 .............................................................................. § 143
154 .............................................................................. §144
155 .............................................................................. §132
156 .............................................................................. §145
157 .............................................................................. §136
158 .............................................................................. §137
159 .............................................................................. §138, §139
160 .............................................................................. §140
161 .............................................................................. Deleted
162 .............................................................................. §133
163 .............................................................................. §134
164 .............................................................................. §135
165 .............................................................................. §146, §147
166 .............................................................................. §148, §151
167 .............................................................................. §149
168 .............................................................................. §150
169 .............................................................................. §151
170 .............................................................................. §152
171 .............................................................................. § 153
172 .............................................................................. §154
173 .............................................................................. §155
174 .............................................................................. § 156
175 .............................................................................. §157
176 .............................................................................. §158

Page 662 of 665

177 .............................................................................. §159

178 .............................................................................. §160
179 .............................................................................. §161
180 .............................................................................. §162
181 .............................................................................. §163
182 .............................................................................. §164
183 .............................................................................. §165
184 .............................................................................. §166
185 .............................................................................. §167
186, 187 ...................................................................... Deleted
188 .............................................................................. §168
189 .............................................................................. §169
190 .............................................................................. §171
191 .............................................................................. §172
192 .............................................................................. §173
193, 194 ...................................................................... Deleted
195 .............................................................................. §174
196 .............................................................................. §175
197 .............................................................................. §176
I 98 .............................................................................. Deleted
199 .............................................................................. §177
200 .............................................................................. §178
201 .............................................................................. §179
202 .............................................................................. §180
203 .............................................................................. §181
204 .............................................................................. §182
205 .............................................................................. §183
206 .............................................................................. §184
207 .............................................................................. § 185
208 .............................................................................. §186
209 .............................................................................. Deleted
210 .............................................................................. §187
21 I .............................................................................. §188
2 I 2 .............................................................................. Deleted
213 .............................................................................. §189
214 .............................................................................. §190
215 .............................................................................. §19l
216 .............................................................................. §192
217 .............................................................................. §193
218 .............................................................................. §194, §195
219 .............................................................................. §196
220 .............................................................................. §197
221 .............................................................................. §198
222 .............................................................................. §199
223 .............................................................................. §200
Page 663 of 665

224 .............................................................................. §201

225 .............................................................................. §202
226 .............................................................................. §203
227 .............................................................................. §204, §205
228 .............................................................................. §206
229 .............................................................................. §207
230 .............................................................................. §208, §209
231 .............................................................................. §210
232 .............................................................................. §211
233 .............................................................................. §212
234 .............................................................................. §213
235 .............................................................................. §214
236 .............................................................................. §215
237 .............................................................................. §216
238 .............................................................................. §217
239 .............................................................................. §218
240 .............................................................................. §219
241 .............................................................................. §220
242 .............................................................................. §221
243 .............................................................................. §222
244 .............................................................................. §223
245 .............................................................................. §224
246 .............................................................................. §225
247 .............................................................................. §226
248 .............................................................................. §227
249 .............................................................................. §228
250 .............................................................................. §229
251 .............................................................................. §230
252 .............................................................................. §231
253 .............................................................................. §232
254 .............................................................................. §233
255 .............................................................................. §234
256 .............................................................................. §235
257 .............................................................................. §236
258 .............................................................................. §237
259 .............................................................................. §238
260 .............................................................................. §239
261 .............................................................................. §240
262 .............................................................................. §241
263 .............................................................................. §264
264 .............................................................................. §265
265 .............................................................................. §266
266 .............................................................................. §267
267 .............................................................................. Deleted
268 .............................................................................. §268, §271
Page 664 of 665

269 .............................................................................. §269

270 .............................................................................. §270
271 .............................................................................. §272
272 .............................................................................. Deleted
273 .............................................................................. §273
274 .............................................................................. §274
275 .............................................................................. §275
276 .............................................................................. §276, §277
277, 278 ...................................................................... Deleted
279 .............................................................................. §278
280 .............................................................................. §279
281 .............................................................................. §280
282 .............................................................................. §281
283 .............................................................................. §282
284 .............................................................................. §283
285 .............................................................................. §284
286 .............................................................................. §285
287 .............................................................................. §286
288 .............................................................................. §287
289 .............................................................................. §288
290 .............................................................................. §289
291 .............................................................................. §290, §291
292 .............................................................................. §292
293 .............................................................................. §242
294 .............................................................................. §243
295 .............................................................................. §244
296 .............................................................................. §245
297 .............................................................................. §246 to §249
298 .............................................................................. §248, §249
299 .............................................................................. §250
300 .............................................................................. §251
301 .............................................................................. §252
302 .............................................................................. §253
303 .............................................................................. §254
304 .............................................................................. §255
305 .............................................................................. §293
306 .............................................................................. §294
307 .............................................................................. §295
308 .............................................................................. §296
309 .............................................................................. §299, §300
310 .............................................................................. §301
311 .............................................................................. §297
312 .............................................................................. §298
313 .............................................................................. §302
314 .............................................................................. §303
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Page 665 of 665

3 Am. JUL 2d Adverse Possession Correlation Table
315 .............................................................................. §304

316,317 ...................................................................... §305
318 .............................................................................. §306, §307
319 .............................................................................. §308
320 .............................................................................. §309
321 .............................................................................. §310
322 .............................................................................. §311
rights reserved.
AMJUR ADVERSE COR
END OF DOCUMENT

Adverse Possession 3 Am Jur 2d

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Adverse Possession 3 Am Jur 2d

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AMJUR ADVERSE SUM Page I

American Jurisprudence, Second Edition

Adverse Possess ron

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AMJUR ADVERSE SUM Page 2

Am. Jur. 2d, Dedication § 34

West's Key Number Digest

West's Key Number Digest, Adverse Possession

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AMJUR ADVERSE SUM Page 3

West's Key Number Digest, Joint Tenancy ~9, 13

A.L.R. Digest: Adverse Possession

A.L.R. Index: Adverse Possession

Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703

1A Am. Jur. Legal Forms 2d, Adverse Possession

18 Am. Jur. Pleading and Practice Forms, Adverse Possession

AMJUR ADVERSE SUM

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

American Jurisprudence, Second Edition

Topic Summary Correlation Table

West's Key Number Digest

West's Key Number Digest, Adverse Possession €;= I to 3, 13

A.L.R. Digest: Adverse Possession §§ I, 54

A.L.R. Index: Adverse Possession

I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 51, 52

AMJUR ADVERSE I REF

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American Jurisprudence, Second Edition

Topic Summary Correlation Table References

West's Key Number Digest

West's Key Number Digest, Adverse Possession €=I

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AMJUR ADVERSE § I Page 2

[FN3) McDonald v. Burke, 288 S.W.2d 363 (Ky. 1955).

[FN6) Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996).

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American Jurisprudence, Second Edition

Topic Summary Correlation Table References

§ 2. Definitions and nature

West's Key Number Digest

West's Key Number Digest, Adverse Possession €=I, 13

[FN3] Blankinship v. Payton, 605 So. 2d 817 (Miss. 1992).

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AMJUR ADVERSE § 2 Page 2

As to the elements of adverse possession, generally, see §§ 10 et seq.

[FN5] Martin v. Winston, 209 Ark. 464,190 S.W.2d 962 (1945).

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American Jurisprudence, Second Edition

Topic Summary Correlation Table References

West's Key Number Digest, Adverse Possession C=3

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AMJUR ADVERSE § 3 Page 2

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American Jurisprudence, Second Edition

Topic Summary Correlation Table References

§ 4. Construction and interpretation

West's Key Number Digest

West's Key Number Digest, Adverse Possession C=I, 13

[FN3] Meyer v. Law, 287 So. 2d 37 (Fla. 1973).

[FN4] Meyer v. Law, 287 So. 2d 37 (Fla. 1973).