We generally think of rights in land as being a bundle of rights. Some of this bundle can be separated from the larger bundle and conveyed to others. (Right of way, water rights, mineral rights, etc.)
Is it possible to adversely possess just a portion of the bundle of rights without obtaining the entire bundle owned by the original possessor?
If you have conveyed the water rights for your property to Party B and I adversely possess a portion of that property, have I also acquired the previously conveyed water rights?
If no, does that mean it is possible that I could adverse possess a portion of your rights you actually hold? Say I build a fence and adversely possess the "surface rights". What about rights to minerals that lie beneath the surface?
Suppose I dig a mine under your property (or construct a subway system) and you don't happen to catch me. Some might contend that the usage is not Open and the surface owner has no notice of my possession. Ok, does that mean I can never acquire the subsurface rights under any circumstances?
Inquiring minds would like to know the thoughts of the group.
Larry P
The cat just adversely possessed my arm. She jumps up on my desk and lies down on my arm.
Adverse possession is an unwritten conveyance of land. Like all conveyances of land , certain “sticks” in the bundle of rights can be separated from the bundle. For instance, if there is an easement on the parcel being adversely possessed (if the adverse possessory is not the dominate estate) the easement would continue to run with the land. Of course adverse possession is not perfected until successfully adjudicated, and generally, if properly placed before the court, the adjudication would address the other “sticks” involved.
Water rights are really going to vary from state to state and from irrigation district to irrigation district within the states. For instance, some water rights are personal property not attached to the land. Some are personal property “attached to the land”, in that the water cannot be used on any other land than that so designated. In some instances, the water right stays attached to the land, but the water can be transferred to other land, and the assessment is the responsibility of the attached land owner. Water law, especially in Idaho, is better left to the very few attorneys who actually understand that complicated area of law.
As to mineral rights and digging mines under the property of others - I’ll leave that to the experts with knowledge of such things.
One common requirement of AP is exclusivity of possession. So that kind of precludes a partial occupation, doesn't it? Then again, isn't a prescriptive easement sort of AP without the exclusivity?
Larry,
Is this an inquiry from an actual client, or do you just have the form down pat after all these years (the unanswerable question):)
Dear potential client: Almost anything is possible. We would need to perform a survey with the attendant research in order to offer up the possible answers to your questions. There will likely be more than one. If you are in disagreement with your neighbor over this it will likely result in either an amicable agreement or years of litigation and lots of money. Any generalized rules or answers I might throw at you now will almost certainly turn out to be false in your jurisdiction under the particular facts and evidence we turn up. Property law is about the exceptions to the rule rather than the rule. We do however specialize in this area and can help you resolve these questions for $$$$$$$$$$$$. You will almost certainly need an attorney to help eventually but the survey investigation should come first. We can start on ^^^^^.
Thanks for your inquiry. Look forward to hearing from you.
What if I get prescriptive rights over the same property occupied by someone else's written easement? Do I take over their easement? Do I have prescriptive rights in addition to the written easement ie: do we both have easements rights over that strip of land? Could it be for the same purpose as the written easement?
Is it possible to adversely possess just a portion of the bundle of rights without obtaining the entire bundle owned by the original possessor?
Fencing in a neighbor's 40 and running cattle on it for ten years can end up getting you the surface ownership if you meet the AP requirements, but that won't give you the minerals. Many times (pretty close to 100%) the minerals and the surface are "split". This can mean there could be 100 different owners to the minerals while the surface owner has no mineral estate. So possession of the surface does not affect mineral estate. And even if the possessed owner has all the minerals he would still retain the minerals after the surface has been taken. At least in the states I work in. Also, the surface estate is "subservient" to the mineral estate. This means that a mineral owner can pull up and start mining coal or drilling for oil without even telling the surface owner (in theory, in practice there are regulations that have been established to prevent that).
As for water rights; the water rights I work with are controlled by the state and are administrated by the state and are not necessarily connected to surface ownership. So no; adverse possession cannot transfer water rights. However, a landowner can petition the state to remove water rights from another landowner and transfer that water to him. And those fights can get real nasty. Again state specific.
As possession is nine tenths of the law, your question is dealing with the remaining one tenth and that is subject to the vagaries of our legal system which, as Warren Burger, Chief Justice of SCOTUS said in his 1984 'Report on the State of the Judiciary' is 'no longer acceptable for a civilised society'.
Richard Schaut
> Larry,
>
> Is this an inquiry from an actual client, or do you just have the form down pat after all these years (the unanswerable question):)
>
I like to ponder things. Have found this a good way to sharpen my skills as a professional. Love to learn how others think on these matters. (Yes even the ones that obviously have no clue.) (I don't count you, Duane in that group.) 😉
Larry P
> What if I get prescriptive rights over the same property occupied by someone else's written easement? Do I take over their easement? Do I have prescriptive rights in addition to the written easement ie: do we both have easements rights over that strip of land? Could it be for the same purpose as the written easement?
All good questions Tom. Hope things are well in your world.
Larry P
> Is it possible to adversely possess just a portion of the bundle of rights without obtaining the entire bundle owned by the original possessor?
>
> Fencing in a neighbor's 40 and running cattle on it for ten years can end up getting you the surface ownership if you meet the AP requirements, but that won't give you the minerals.
Do you have a citation to a specific statute or court case where this principle is established? Not doubting your contention, just looking to learn more about the principle.
> Many times (pretty close to 100%) the minerals and the surface are "split". This can mean there could be 100 different owners to the minerals while the surface owner has no mineral estate. So possession of the surface does not affect mineral estate. And even if the possessed owner has all the minerals he would still retain the minerals after the surface has been taken. At least in the states I work in. Also, the surface estate is "subservient" to the mineral estate. This means that a mineral owner can pull up and start mining coal or drilling for oil without even telling the surface owner (in theory, in practice there are regulations that have been established to prevent that).
>
> As for water rights; the water rights I work with are controlled by the state and are administrated by the state and are not necessarily connected to surface ownership.
I work here in the east and have thankfully not had to deal with that sort of burden imposed on the property owners. Almost everything I've ever seen in this area is Fee Simple. Few deeds reserve mineral rights and even fewer mention water rights. Then again, every hollow contains a spring and small creek so water isn't as big a deal here as it is in the west.
Larry P
Larry
I'm sure there are some court cases. But the theory is so ingrained into all us western land and mineral owners that we don't question it. I was looking for a famous case that went to the state Supreme Court but couldn't find it quickly. I'll see if I can find one this weekend. Most of the instances where I have heard of someone trying to adversely possess (steal) minerals ended up with them in jail.
As far as water rights; here there are no riparian rights. All the water is claimed by the state and it administrates the water. So if you want a reservoir you apply for a water right, if you want a well you apply for a water right, if you want to irrigate you apply for a water right. If you live next a creek and put a pump in the creek and divert water and you have no right; you can get into trouble.
I know, me too. I do know of an interesting case involving AP and a cave. I'll see if I can find it and post it. Essentially, a tourist attraction being run underneath someones house for many years. If I recall, AP failed.
