Didn't want to hijack the previous AP thread. I can only think of one fairly clear Adverse Possession claim.?ÿA small (under 1/2 acre) triangle sits where three rural tracts join. Apparently there is/was some confusion about which of the three old road beds was the one that was there when these tracts were surveyed (1920-1930). Each was surveyed by the same surveyor at different times. The intersecting lines are 2000-2500' feet long and there is enough uncertainty in the old plat distances that your guess is as good as mine as to what happened. All three tracts were later surveyed at different times and none took in the little triangle. Ten years ago the owner of one of the tracts has the triangle surveyed and obtained a Q/C deed (survey and deed recorded) from the person he bought his tract from. He has openly kept and used it since. In this state AP ripens in seven years with color of title and twenty years without. He acted on his attorney's instructions as to obtaining the survey and deed. That's the clearest one that I've encountered in my career. I would think it's rare. Anyone see AP more often?
It's more prevalent here, the last case that made everyone sit up and take notice was Edmond A Cook Vs. Ivan Eddy WY SC,
Without looking it up, I remember the basics; a fence along a township line dividing two landowners, the fence falls into disrepair and the southern landowner's?ÿcattle wander over and graze a 40 ac parcel, 11 years (1988-1999)?ÿafter buying the south parcel the owner of the land north of the township line starts constructing a fence to recapture the pasture, the south owner files a complaint saying the land is now his since he grazed cattle for one year longer than the time necessary to establish AP. He won. The north owner lost the 40 Ac.
One long time land surveyor told me it was nothing short of theft of Cook's property, but it was legal.
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I was taught that adverse possession, acquiescence, etc. were part of property law for a reason. I don't recall stealing being part of that reason.?ÿ
Land title is not absolute and forever, it depends upon maintenance by the record title holder.
I was taught that adverse possession, acquiescence, etc. were part of property law for a reason. I don't recall stealing being part of that reason.?ÿ
The term adverse possession is self defining.
I always advise my clients with long standing adverse claims to continue their adverse claims and not pursue the issue beyond my preliminary survey with shows otherwise if the adverse claim has not ripened.?ÿ I'll suggest an amicable agreement between the landowner(s) to quiet title but 40 acres seems worthy of going to court for.
Grazing cattle is one of only a few examples that meet the requirements to have a claim on the property.
The condition of a fence or lack of or location of has very little in deciding where a boundary is established based upon its own merits.
There seems to be so much of the adverse possession claim being dependent on how the Lawyer presents it's case instead of the merits of the case.
My understanding of the law would be that the South landowner that claimed the 40 acres above did not have a claim unless he was maintaining the other 3 fences on the 40 acres. Just failure to maintain you own fence and letting your cattle roam free is not a good claim.
I know it is hard to properly represent a case in one paragraph but there just seems to be too much depending on the quality and personality of the Lawyer.
James
I would say both sides had competent lawyers. The fence that held the cattle?ÿwas an existing fence that enclosed a hill. Each state is different, what?ÿwill work to acquire AP in Wyoming probably won't work in Montana. The court discussed a number of issues including permission and rejected Cook's arguments. Paying taxes?ÿis irrelevant, permissive use was rejected, so Cook lost the land, I would assume if the old existing fence enclosed 100 acres he would have lost that also.?ÿ
I've spent time in the area surveying, a few tens of miles north, and many fences are not on property lines, mostly they have slid to positions that work best as pasture fences and landowners understand that, for some reason this dispute didn't follow those examples. The court ruled on the law, they may not personally like it, but it fits with the law for the state.
....the south owner files a complaint saying the land is now his since he grazed cattle for one year longer than the time necessary to establish AP. He won. The north owner lost the 40 Ac......
That would not have won the day in Oregon. There are 2 types of AP in Oregon, statutory and common law. The statutory brand, which would have applied to this time period,?ÿ requires that the claimant have the "honest belief" that the property being claimed is rightfully his when he takes possession and that the belief continue uninterrupted during the?ÿ period.?ÿ ?ÿEven with the common law version I doubt that the claimant would have prevailed. Oregon courts have ruled that mere grazing of cattle is not sufficient to prove hostility.
....the south owner files a complaint saying the land is now his since he grazed cattle for one year longer than the time necessary to establish AP. He won. The north owner lost the 40 Ac......
That would not have won the day in Oregon. There are 2 types of AP in Oregon, statutory and common law. The statutory brand, which would have applied to this time period,?ÿ requires that the claimant have the "honest belief" that the property being claimed is rightfully his when he takes possession and that the belief continue uninterrupted during the?ÿ period.?ÿ ?ÿEven with the common law version I doubt that the claimant would have prevailed. Oregon courts have ruled that mere grazing of cattle is not sufficient to prove hostility.
I like Oregon's position.
The case I found, in San Luis Obispo County, involved a large tract which had a 50' wide strip in fee which ran east to the public road.?ÿ The smaller tract adjoining to the south of the 50' wide strip and to the east of the larger tract had it enclosed in the fences.?ÿ The Assessor did not show the 50' strip; it was shown as part of the smaller tract.?ÿ Therefore the smaller tract paid the taxes according to the Court although the 50' wide strip was not included in the legal description of the smaller tract.?ÿ In California the presumption is taxes are paid on the legal description of the Assessor Parcel; the presumption was defeated here because the AP map showed the strip as part of the smaller tract.
My question was, the fences are probably not exactly on the various boundary lines so do the tract owners have constructive possession up to the boundary lines or did the Court Judgment fix the boundaries at the fences??ÿ I believe this was a claim of right case so constructive possession would not normally apply.?ÿ The Court did not discuss this issue, however.?ÿ It was purely a question of who had title to the 50' wide strip.
Found it, it is a 40' strip and my memory was somewhat faulty.?ÿ The strip was an orphan parcel in which an attempt was made to Deed it to the owner to the east, the case is unpublished:
