C hapter 2
Owning Real Property
Imagine that you are sitting in the living room of your country house on a
leather chair enjoying the Picasso mounted on your wall and sipping a cool glass
of water. Suppose you inherited your house 25 years ago from your mother,
found the chair by the side of the highway last week, bought the Picasso six years
ago from a friend recently found to be an art thief, and pumped the water from the
well in your back yard. While you are clearly in possession of these things, do you
hold title to any of them? Do you have any property rights at all?
In the United States, we generally divide property into two broad categories:
real property and personal property. Real property consists of rights in land and
things attached to land, such as buildings, fences, and trees. So in the example
above, your country house and the land it sits on are real property. In contrast,
personal property refers to rights in moveable items (such as chairs, pens, and
computers) and intangible things (such as patents and shares of stock). The chair,
the Picasso, and the glass of water are all personal property.
Traditionally, real property was the more important category. Property law
in the United States was profoundly shaped by English law. For centuries, land
constituted the foundation of economic, social, and political power in England.
Accordingly, the real property law that evolved in England was extraordinarily
complex, while personal property law was comparatively simple. Because the
new United States inherited this system, our own vision of property law has long
been dominated by real property principles—as the first-year course in Property
usually reflects. This chapter will begin your study of real property, while Chapter
3 will introduce you to personal property.
The real property law that we inherited from England was based on conditions quite different from those prevailing in the United States. England was a
mature agricultural economy where most land was privately-owned and in productive use. In contrast, about 95% of the new United States was undeveloped,
wild land owned by the federal government. The government sought to transfer
these lands to private owners in order to facilitate national development—initially
by allowing land purchases on credit and distributing free land to veterans, and
96
Property A Contemporary Approach
later through the Homestead Act of 1862. The judicial system also played a
role in this process. As the Supreme Court explained in one early case: “The
country was a wilderness, and the universal policy was to procure its cultivation
and improvement.” Van Ness v. Pacard, 27 U.S. (2 Pet.) 137, 145 (1829). Thus,
the need to develop land for productive use became a major theme in American
property law.
In this chapter, we will examine three aspects of real property law: adverse
possession; the vertical limits of ownership; and water law. The law in these areas
has evolved over time in response to factors such as geography, technology, economic conditions, and social forces—and this evolution continues today. Each
doctrine illustrates the central challenge in American property law: striking the
appropriate balance between the rights of the owner and the interests of society
in general.
_______________
A. Adverse Possession
Suppose A occupies B’s land for 20 years. B never inspects his land, so he
does not know about A’s occupancy. Who owns the land? Surprisingly, the
answer may be A—based on adverse possession.
Adverse possession is easily the most controversial doctrine in property law.
As one authority noted: “Title by adverse possession sounds, at first blush, like
title by theft or robbery, a primitive method of acquiring land without paying for
it.” Henry W. Ballentine, Title by Adverse Possession, 32 Harv. L. Rev. 135, 135
(1918). In effect, if A occupies B’s land for a long enough period while meeting
certain conditions, A acquires title to the land without B’s consent. Why does the
law recognize this doctrine?
Four justifications have been suggested for adverse possession:
• Preventing frivolous claims: Under the dominant view,
adverse possession is seen as a special statute of limitations
for recovering possession of land. Thus, like any other
statute of limitations, it bars lawsuits based on stale,
unreliable evidence, thereby protecting the occupant from
frivolous claims. It also provides the occupant with security
of title, thus encouraging the productive use of land.
Chapter 2 Owning Real Property
• Correcting title defects: Technical mistakes often occur in
the process of conveying title to land. For example, the
property description in a deed might contain an error.
Adverse possession resolves such problems by protecting
the title of the person who actually occupies the land.
Under this model, lengthy possession serves as proof of
title.
• Encouraging development:
Adverse possession may be
viewed as a legal tool to encourage economic development.
Under this view, it reallocates title from the idle owner to
the industrious squatter, thus promoting the productive
use of land.
• Protecting personhood: Supreme Court Justice Oliver
Wendell Holmes, Jr. offered another explanation for
adverse possession, which echoes personhood theory: “A
thing which you have enjoyed and used as your own for
a long time…takes root in your being and cannot be torn
away without your resenting the act….” Oliver Wendell
Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 477
(1897).
As you read the materials in this unit, consider which theory best explains the
adverse possession doctrine.
_______________
1. Elements of Adverse Possession
In most jurisdictions, an occupant obtains title to land through adverse possession if her possession is: actual, exclusive, open and notorious, adverse and
hostile, and continuous for the required period. Typically, the period for adverse
possession is established by a statute, while the other elements stem from case law.
A handful of jurisdictions also require that the occupant pay the taxes assessed
against the land.
How much possession is required? This varies according to the character, nature, and location of the particular land. For example, in order for C to
adversely possess a condominium unit in a large city, she would probably have to
reside in the unit, because this is how a reasonable unit owner would behave. But
97
98
Property A Contemporary Approach
D might adversely possess a tract of rural grassland just by having cattle graze on
it occasionally, because this is an appropriate use for such property. The precise phrasing of the adverse possession standards varies somewhat
from state to state. A typical state requires these elements:
• Actual possession: The claimant must physically use the
land in the same manner that a reasonable owner would,
given its character, location, and nature.
• Exclusive possession: The claimant’s possession cannot be
shared with the owner or with the public in general.
• Open and notorious possession: The claimant’s possession
must be visible and obvious, so that if the owner made a
reasonable inspection of the land, he would become aware
of the adverse claim.
• “Adverse and hostile” possession (some states also require
“claim of right”): This element is complex, and will be
discussed in more detail below. All states agree that
possession authorized by the owner does not meet this
requirement. Beyond this point, states differ. Some find
the element is met only if the claimant believes in good
faith that he owns the land. In most states, the claimant’s
state of mind is irrelevant. A third view—now rare—
requires bad faith, that is, the claimant must intend to take
title from the owner.
• Continuous possession: The claimant’s possession must be
as continuous as a reasonable owner’s would be, given the
character, location, and nature of the land.
• For the statutory period: The period for adverse possession
ranges from 5 to 40 years, depending on the state. The
most common periods are 10, 15, and 20 years.
_______________
Chapter 2 Owning Real Property
Our first case involves a successful adverse possession claim to a tract of “rough,
brushy, wooded land” in central Missouri. Why did the owners lose their title?
Gurwit v. Kannatzer
Court of Appeals of Missouri
788 S.W.2d 293 (1990)
PER CURIAM:
The trial court after a court-tried case entered judgment quieting title in
plaintiffs Monte and Martha Gurwit, husband and wife, to a certain 17-acre tract
of land in Boone County. Defendants Eugene H. Gruender and Dorothy Gruender,
husband and wife, and John R. Gruender and Karen Gruender, husband and wife,
have appealed….
The first question presented is whether the evidence supported the judgment
of the trial court. The judgment was based upon the court’s finding that the Gurwits had acquired title to the disputed tract by ten years’ adverse possession under
section 516.010, RS Mo 1986.
See It
Click here to see a map of the disputed land in Gurwit. Note that the
property description is based on the
U.S. Government Survey, which you
will study in Chapter 8. This system divides most of the nation into
rectangular tracts of land that can be
identified with range, township, and
section designations.
The tract of land in dispute is
located in Boone County, Missouri,
and is described as: All that part of the
East Half of the Southeast Quarter of
Section 4, Township 50 North, Range
13 West, lying north and west of the
Oak Grove School Road and south of
Stidham Road, now vacated.
The Oak Grove School Road enters
the east half of the southeast quarter of
section 4 from the west at a point 382
feet north of the southwest corner of the 80-acre tract; curves to the northeast
to its easternmost point 398 feet north and 391 feet east of the point where it
entered; thence curves toward the northwest and proceeds in almost a straight
line a distance of 1,266 feet to where it intersects with Stidham Road at a point
208 feet east and 1,518 feet north of the point where it entered the 80-acre tract.
The disputed 17-acre tract is embraced then, on the south and [east], within the
curve of Oak Grove School Road, with Stidham Road as its north boundary, and
with the west line of the east half of the southeast quarter as its west boundary.
99
100
Property A Contemporary Approach
The plaintiffs Gurwit took possession of the property (if they did possess it, a
disputed point in the case) in 1963. At that time they bought from Mr. and Mrs.
Orval Putnam the half-quarter lying immediately to the west of the now disputed
tract, to wit, the west half of the southeast quarter, except a four-acre tract in the
southeast corner thereof, approximately 76 acres. (The excepted four-acre tract
was triangular in shape and was cut off from the remainder of the half-quarter
by the Oak Grove School Road. The road therefore furnished the boundary of
the southeast corner of the 76-acre tract.) As the purchase was pending, Putnam
conducted Monte Gurwit around the property to point out the boundaries. He
pointed out the Oak Grove School Road as being the south and east boundary of
the property, and Gurwit relied upon Putnam’s representation.
The Putnams, however, did not have record title to the 17-acre tract and their
deed to the Gurwits did not include it in the description. The deed described only
the property in the west half of the southeast quarter.
The now disputed 17-acre tract was of the same character as the west half of
the southeast quarter, which lay immediately to the west. It was rough, brushy,
wooded land. There was no fence, monument or any kind of demarcation marking the west line of the east half of the southeast quarter, which was the west line
of the now-disputed tract. The land
See It
was uncultivated and was used not
even for pasture. With the addition of
Click here to see modern photoother land, the plaintiffs Gurwit had a
graphs of the disputed land in Gurprimitive 300-acre recreational area,
wit.
on which they built and stocked with
fish a large lake.
The Gurwits, assuming they had a secure title, took possession of the 17-acre
tract along with the land to the west thereof, and for the space of twenty years
continued to possess it and exercise dominion over it in the manner we shall
describe. They posted “no trespassing” and “no hunting” signs along the road.
They cut firewood on the tract, and gave friends permission to cut firewood
thereon. Gurwit assisted over a period of years to clean up the downed trees
and brush along the road, which had been left there when the road was widened
before the Gurwits purchased the land. For a time Gurwit planted plots of food
for wildlife on the tract which included the disputed tract. He was not sure that
any of the plots were on the disputed tract, but he did enter the tract from the road
with the machinery he used in the operation.
The Gurwits’ ownership of the 17-acre tract was apparently acknowledged
by all. Defendants Mr. and Mrs. Eugene Gruender, who owned and occupied the
property on the east side of the Oak Grove School Road, on occasion called the
Chapter 2 Owning Real Property
101
Gurwits about trespassers on the 17-acre tract. Defendant John Gruender, son of
the Eugene Gruenders, once protested Gurwit’s cutting a tree on his property lying
north of vacated Stidham Road. Gurwit acknowledged his mistake, moved south
of Stidham Road, onto the tract which is now disputed, and continued with his
tree-cutting with the apparent approval of John Gruender.
In 1983 Eugene Gruender told Gurwit that Gurwit did not have record title
to the 17-acre tract. Gurwit went to the assessor’s office and verified what Gruender had told him. The 17-acre tract had in fact been included with Gruender’s tax
bills, and those of his predecessors in title, who owned that part of the east half of
the southeast quarter of section 4 which lay east of the road. From 1983 on,
Gurwit paid the taxes on the 17-acre tract.
Afterwards the Gurwits instituted
this quiet title action, which included
the 17-acre tract in question. The two
Gruender families were made defendants. They filed answers and a counterclaim, seeking to have the title to the
17-acre tract quieted in themselves.
From the judgment adverse to themselves the Gruenders have appealed.
What’s That?
A quiet title action is a lawsuit
brought to establish the plaintiff’s
title to land. Typically, the plaintiff
sues all persons who claim any right,
title, or interest in the land, and the
court issues a judgment that resolves the controversy. In this case,
the Gurwits sought to quiet their
title to four parcels of land, one of
which was claimed by Kannatzer, the
defendant named in the title of the
case. However, Kannatzer had no
claim to the 17-acre parcel involved
in this appeal.
In order to establish their title to
the 17-acre tract by adverse possession,
it was incumbent upon the plaintiffs to
prove that their possession was hostile,
that is under claim of right; actual; open
and notorious; exclusive; and continuous over the statutory period. Counts v. Moody, 571 S.W.2d 134, 138 (Mo. App.
1978). See also, Walker v. Walker, 509 S.W.2d 102, 106 (Mo. 1974)….Appellants, the
Gruenders, claim that the Gurwits’ possession was not hostile, was not actual, was
not open and notorious, was not exclusive and was not continuous over the statutory period. We hold, however, that each element of adverse possession was proved.
The Gurwits possessed and exercised dominion over the property as much as
the character of the property admitted. The land, as noted, was unimproved and
uncultivated. It had no buildings, no cross fences, and no fences along the road.
The Gurwits did as they chose with the property, in the manner we have recounted
above. Their possession was hostile, not in the sense that they fortified and stood
ready to defend it by force of arms—though their posting of “no trespassing” and
“no hunting” signs indicates most strongly a “hostile” possession. The intent of the
Gurwits to possess, occupy, control, use and exercise dominion over the property
satisfies the requirement of hostility. Counts, 571 S.W.2d at 139….
102
Property A Contemporary Approach
The Gurwits’ possession was actual. Possession…depends upon the nature
and location of the property. The Gurwits lived some distance from the land. It
was not necessary that they occupy or use every foot of the land at every minute.
Their acts of dominion over the property were sufficient to establish the required
possession. Miller v. Medley, 281 S.W.2d 797, 801 (Mo. 1955); Teson v. Vasquez,
561 S.W.2d 119, 126 (Mo. App. 1977).
The Gurwits’ possession was open and notorious. Gurwit testified to the fact
of his cutting firewood, picking up trash along the road, cleaning up the brush
and trees left by the road widening project, all in the sight of passersby. No one
having an adverse claim to the property could fail to have noticed that the Gurwits
were claiming this property as their own. Porter v. Posey, 592 S.W.2d 844, 849
(Mo. App. 1979).
The Gurwits’ possession was exclusive. “‘Exclusive possession’ means that the
claimant must hold the possession of the land for himself, as his own, and not for
another.” Walker, 509 S.W.2d at 106.
The Gurwits’ possession was as continuous as the nature of the property
would admit. There were no doubt days or weeks when they were not physically
present on the disputed tract, but continuous possession clearly does not require
continuous occupation and use. Teson, 561 S.W.2d at 127.
We hold that the evidence amply supported the trial court’s finding that the
Gurwits’ possession of the disputed tract was of a character that ripened into title
with the passage of the statutory period of ten years….
_______________
Points for Discussion
a. Justifying Adverse Possession
Do any of the justifications for adverse possession explain why—based on
the facts of this case—the Gruenders lost their title? Notice the role of mistake.
Before 1983, both sides mistakenly believed that the Gurwits owned the disputed
tract. Should the Gruenders lose title simply because they made an error?
b. Actual Possession
Exactly why did the Gurwits meet the requirement of actual possession?
Should the court have required evidence of more extensive use? For example,
under Alabama law the adverse possession of woodlands requires “such a continuous and persistent cutting of timber or wood from the tract, as to be evidence of a claim of ownership….” Rutland v. Georgia Kraft Co., 387 So. 2d 836,
Chapter 2 Owning Real Property
837 (Ala. 1980). But this appears to be a minority view. In most jurisdictions,
activities such as gathering firewood, cutting small amounts of timber, grazing
cattle or other animals, or removing minerals are considered sufficient “actual”
possession of wild and undeveloped lands. However, the use of land solely for
recreational purposes is not considered actual possession in some states. See, e.g.,
Moore v. Stills, 307 S.W.3d 71 (Ky. 2010) (“hunting, fishing, hiking, and riding
four-wheelers” on forest land did not constitute actual possession).
c. Exclusive Possession
Suppose the Gruenders had collected firewood on the disputed property once
each summer. Would the Gurwits’ possession still be considered “exclusive”? In
answering this question consider Adams v. Lamicq, 221 P.2d 1037 (Utah 1950).
There, A and B relied on adverse possession in claiming title to an 80-acre tract
of remote rangeland which they had used for grazing sheep during the winter.
Record owner C, who had cultivated between 15 and 35 acres of the tract each
summer, argued that the exclusive possession element was not met. Because their
possession of the cultivated area was not exclusive, the court awarded A and B
title only to the non-cultivated portion of the tract. Use of disputed property by
third parties may also prevent an adverse claimant from proving exclusive possession. See, e.g., ITT v. Rayonier, Inc. v. Bell, 774 P.2d 6 (Wash. 1989) (claimant
who moored his boat along the shore of the disputed tract did not have exclusive
possession because other people used the land for the same purpose).
d. Open and Notorious Possession
The Gurwit court explained that the open and notorious requirement was
met because the Gurwits’ activities of cutting firewood and the like were “all in
sight of passersby.” Is such a fleeting glimpse enough or should a court require
permanent, visible evidence of the adverse possessor’s presence such as a fence?
Did the Gurwits do anything that provided permanent notice of their possession?
In Zambrotto v. Superior Lumber Co., 4 P.3d 62 (Or. Ct. App. 2000), the court
found that using a 5-acre forest tract for occasional hiking and rattlesnake hunting
was actual possession, but not open and notorious possession. It explained that
“the nature and frequency of those activities hardly were sufficient to put [the
owners] on notice that their title was being challenged.” Id. at 66. Is Gurwit
consistent with Zambrotto? Activities such as clearing brush, cultivating crops,
building fences and other structures, or posting signs are often used to satisfy the
“open and notorious” requirement. e. Continuous Possession
The Gurwits’ possession was deemed “continuous” even though there were
“days or weeks when they were not physically present on the disputed tract.”
How often would a reasonable owner of such land use it? Because the required
103
104
Property A Contemporary Approach
continuity is measured by a reasonable owner’s conduct, sporadic uses of wild
lands are usually deemed continuous. For instance, in Sleboda v. Heirs at Law of
Harris, 508 A.2d 652 (R.I. 1986), this element was met when the adverse claimants visited the land twice each year to cut trees and gather firewood. f. Adverse Possession Problems
Has adverse possession been established in these situations? Assume that the
statutory period is 10 years.
(1) A held title to a 200-acre tract of remote and unimproved desert
land, which she never visited. Driving past the land one day, B noticed that
rare and valuable cacti grew there; B spent 20 minutes digging out four small
cacti, which he later sold. Over the next 10 years, he visited the property
on five more occasions, each time removing a few cacti. B claims title to the
tract.
(2) C owned a home in a rural subdivision. D owned the house next
door. All backyards in the subdivision were unfenced and covered by wild
grass. Over the next 10 years, D occasionally watered the wild grass behind
his house; he also mowed it three or four times each summer. D then discovered that part of the land he had been watering and mowing (a strip about
20 feet wide) was actually part of C’s original lot. Over the years, C’s children
had played on this strip of land on 8 or 9 occasions. D claims title to the
strip.
g. Adverse Possession and Environmentalism
Is adverse possession obsolete? In Meyer v. Law, 287 So. 2d 37, 41 (Fla.
1973), the Florida Supreme Court commented:
…[F]aced, as we are, with problems of unchecked over-development, depletion of
precious natural resources, and pollution of our environment, the policy reasons
that once supported the idea of adverse possession may well be succumbing to new
priorities. A man who owns some virgin land, who refrains from despoiling that land,
even to the extent of erecting a fence to mark its boundaries, and who makes no
greater use of that land than an occasional rejuvenating walk in the woods, can hardly
be faulted in today’s increasingly “modern” world.
Suppose the Gruenders knew they owned the 17-acre parcel, but intentionally
preserved it in natural condition to protect the environment. Would they still
have lost the case?
Chapter 2 Owning Real Property
h. Aftermath of Gurwit
Two years after the case was decided, the Gurwits sold all their land (including the disputed 17-acre tract) to the Missouri Department of Conservation. Now
called the “Lick Creek Conservation Area,” the land is open to the public for
camping, fishing, hiking, hunting, and other uses. Anyone may gather nuts, berries, fruits, edible wild greens, and mushrooms there for personal consumption.
_______________
In a minority of states—including California, Florida, and New York—the
traditional elements for adverse possession are supplemented by special statutory
requirements. Our next case illustrates this minority approach.
In 1912, Mary and William Lutz, a newly-married couple, decided to build a
home in Yonkers, New York. Accordingly, they purchased two adjacent lots in the
Murray Estate subdivision. The lots were located on the top of an extremely steep
hill and, like the other lots in the subdivision, were covered with wild trees and
brush—much like the disputed tract in Gurwit v. Kannatzer. The Lutzes began
gardening on four other lots, which they did not own. The resulting controversy
produced one of the most famous adverse possession decisions.
Van Valkenburgh v. Lutz
Court of Appeals of New York
106 N.E.2d 28 (1952)
[The Lutzes purchased Lots 14 and 15, on Leroy Avenue, where they built
their home. Immediately southwest of their land were four vacant lots (Lots 19,
20, 21, and 22), “somewhat triangular in shape” with dimensions of 150 by 126
by 170 feet, fronting on Gibson Place.
This triangular parcel was covered by
See It
“a wild natural growth of brush and
small trees.” Because Leroy Avenue
Click here to see a map of the diswas unpaved and steep, the Lutzes
puted land in Van Valkenburgh.
reached their home by parking on
Gibson Street and then walking across
the triangular parcel, along a walkway
or “traveled way” that Lutz built for this purpose. By 1916, Lutz had cleared much
of the triangular parcel and begun farming activities there, which continued until
his death in 1948. He also built a one-room dwelling there for his brother Charlie.
Joseph and Marion Van Valkenburgh purchased property on the west side
of Gibson Place in 1937, where they built a home. A feud developed between
105
Property A Contemporary Approach
106
the Lutzes and the Van Valkenburghs, in part because of an incident where Lutz
chased the Van Valkenburgh children off the triangular parcel, while waving an
iron pipe and shouting, “I’ll kill you.” No one paid taxes on the triangular parcel,
and it was accordingly auctioned off at a foreclosure sale for nonpayment of taxes
in 1947, where the Van Valkenburghs bought it for $379.50. The Lutzes did not
receive notice of the foreclosure sale. The Van Valkenburghs promptly demanded
that the Lutzes vacate the land.
Lutz then consulted an attorney. Based on his attorney’s advice, Lutz filed a
lawsuit against the Van Valkenburghs in 1947, alleging that (a) the Van Valkenburghs owned title to the triangular parcel but that (b) he was entitled to an
easement to cross it. (An easement is a nonpossessory right to use land in the
possession or ownership of another person.) Lutz won this case in January, 1948.
In April, 1948, the Van Valkenburghs sued the Lutzes to obtain possession
of the triangular parcel and for related relief. The Lutzes hired a new attorney,
who advised them to assert the defense of adverse possession. Note that the
Lutzes were allowed to challenge the Van Valkenburgh’s title despite the tax sale
because they never received notice of the sale, as due process requires. Lutz died
in August, 1948, leaving all of his property to his wife. In 1950, the case was
tried before Hon. Frederick P. Close, Official Referee. He found that Lutz had
acquired title to the triangular tract in 1935 by adverse possession. The Van
Valkenburghs appealed.]
DYE, Judge.
…To acquire title to real property by adverse possession not founded upon
a written instrument, it must be shown by clear and convincing proof that for at
least fifteen years (formerly twenty years) there was an “actual” occupation under
a claim of title, for it is only the premises so actually occupied “and no others”
that are deemed to have been held adversely. Civil Practice Act, §§ 34, 38, 39.1
1
At the time, the relevant sections of the New York Civil Practice Act were:
§ 34. An action to recover real property or the possession thereof cannot be maintained…unless
the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in
question within fifteen years before the commencement of the action….
§ 39. Where there has been an actual continued possession of premises under a claim of title…
not founded upon a written instrument or a judgment or decree, the premises so occupied, and
no others, are deemed to have been held adversely.
§ 40. For the purpose of constituting an adverse possession by a person claiming title not founded
upon a written instrument or a judgment or decree, land is deemed to have been possessed and
occupied in either of the following cases, and no others:
1. Where it has been protected by a substantial inclosure.
2. Where it has been usually cultivated or improved.
Chapter 2 Owning Real Property
The essential elements of proof being either that the premises (1) are protected by
a substantial inclosure, or are (2) usually cultivated or improved. Civil Practice
Act, § 40.
Concededly, there is no proof here that the subject premises were “protected
by a substantial inclosure” which leaves for consideration only whether there is
evidence showing that the premises were cultivated or improved sufficiently to
satisfy the statute.
We think not. The proof concededly fails to show that the cultivation incident
to the garden utilized the whole of the premises claimed. Such lack may not be
supplied by inference on the showing
that the cultivation of a smaller area,
Food for Thought
whose boundaries are neither defined
nor its location fixed with certainty,
Why does the court emphasize that
“must have been…substantial” as
the boundaries of the cultivated area
“are neither defined nor its location
several neighbors were “supplied…
fixed with certainty”? As the attorwith vegetables.” This introduces an
ney for Lutz, how would you have
element of speculation and surmise
proven this at trial?
which may not be considered since
the statute clearly limits the premises adversely held to those “actually”
occupied “and no others” (Civil Practice Act, § 39), which we have recently interpreted as requiring definition by clear and positive proof….
Furthermore, on this record, the proof fails to show that the premises were
improved. Civil Practice Act, § 40. According to the proof the small shed or
shack (about 5 by 10½ feet) which, as shown by survey map, was located on the
subject premises about 14 feet from the Lutz boundary line. This was built in
about the year 1923 and, as Lutz himself testified, he knew at the time it was not
on his land and, his wife, a defendant here, also testified to the same effect.
The statute requires as an essential element of proof, recognized as fundamental on the concept of adversity since ancient times, that the occupation of
premises be “under a claim of title” (Civil Practice Act, § 39), in other words,
hostile…and when lacking will not operate to bar the legal title…no matter how
long the occupation may have continued….
Similarly, the garage encroachment, extending a few inches over the boundary line, fails to supply proof of occupation by improvement. Lutz himself testified
that when he built the garage he had no survey and thought he was getting it on
his own property, which certainly falls short of establishing that he did it under a
claim of title hostile to the true owner. The other acts committed by Lutz over the
107
108
Property A Contemporary Approach
years, such as placing a portable chicken coop on the premises which he moved
about, the cutting of brush and some of the trees, and the littering of the property
with odds and ends of salvaged building materials, cast-off items of house furnishings and parts of automobiles which the defendants and their witnesses described
as “personal belongings,” “junk,” “rubbish” and “debris,” were acts which under
no stretch of the imagination could be deemed an occupation by improvement
within the meaning of the statute, and which, of course, are of no avail in establishing adverse possession.
We are also persuaded that the defendant’s subsequent words and conduct
confirms the view that his occupation was not “under a claim of title.” When
the defendant had the opportunity to declare his hostility and assert his rights
against the true owner, he voluntarily chose to concede that the plaintiffs’ legal
title conferred actual ownership entitling them to the possession of these and
other premises in order to provide a basis for establishing defendant’s right to an
easement by adverse possession—the use of a well-defined “traveled way” that
crossed the said premises. In that action, Lutz v. Van Valkenburgh, 274 App. Div.
813, 81 N.Y.S.2d 161, William Lutz, a defendant here (now deceased), chose to
litigate the issue of title and possession and, having succeeded in establishing his
claim of easement by adverse possession, he may not now disavow the effect of
his favorable judgment…or prevent its use as evidence to show his prior intent.
Declarations against interest made by a prescriptive tenant are always available on
the issue of his intent….
On this record we do not reach the question of disseisin by oral disclaimer,
since the proof fails to establish actual occupation for such time or in such manner
as to establish title. What we are saying is that the proof fails to establish actual
occupation for such a time or in such a manner as to establish title by adverse
possession. Civil Practice Act, §§ 39, 40….
The judgments should be reversed, the counterclaim dismissed and judgment directed to be entered in favor of plaintiff Joseph D. Van Valkenburgh for
the relief prayed for in the complaint subject to the existing easement…with costs
in all courts.
FULD, Judge (dissenting).
In my judgment, the weight of evidence lies with the determination made
by the court at Special Term and affirmed by the Appellate Division. But whether
that is so or not, there can be no doubt whatsoever that the record contains some
evidence that the premises here involved were occupied by William Lutz, defendant’s late husband, for fifteen years under a claim of title—and that, of course,
should compel an affirmance.
Chapter 2 Owning Real Property
The four lots in suit, located in the city of Yonkers, comprise a fairly level
parcel of land, triangular in shape, with approximate dimensions of 150 by 126
by 170 feet. It is bounded on the north by a “traveled way,” on the west and south
by Gibson Place, an unopened street, and on the southeast by a vacant lot. Immediately to the east of the parcel, the land descends sharply to Leroy Avenue, forming a steep hill; on the hill are situated two lots, purchased by Lutz in 1912, upon
which his family’s home has stood for over thirty years.
Wild and overgrown when the
See It
Lutzes first moved into the neighborhood, the property was cleared by
When the Lutzes began using the
disputed land, it was covered by a
defendant’s husband and had been, by
“wild natural growth of brush and
1916, the referee found, developed into
small trees,” according to the court.
a truck farm “of substantial size”. Lutz,
Click here to see a modern phototogether with his children, worked the
graph of land in similar condition;
this photograph was taken of undefarm continuously until his death in
veloped land a few feet away from
1948; indeed, after 1928, he had no
the triangular tract at issue in Van
other employment. Each year, a new
Valkenburgh.
crop was planted and the harvest of
vegetables was sold to neighbors. Lutz
also raised chickens on the premises,
and constructed coops or sheds for them. Fruit trees were planted, and timber
was cut from that portion of the property not used for the farm. On one of the
lots, Lutz in 1920 built a one-room dwelling, in which his brother Charles has
lived ever since.
Although disputing the referee’s finding that the dimensions of Lutz’s farm
were substantial, the court’s opinion fails to remark the plentiful evidence in support thereof. For instance, there is credible testimony in the record that “nearly
all” of the property comprised by the four lots was cultivated during the period to
which the referee’s finding relates. A survey introduced in evidence indicates the
very considerable extent to which the property was cultivated in 1950, and many
witnesses testified that the farm was no larger at that time than it had ever been.
There is evidence, moreover, that the cultivated area extended from the “traveled
way” on one side of the property to a row of logs and brush—placed by Lutz for
the express purpose of marking the farm’s boundary—at the opposite end of the
premises.
According to defendant’s testimony, she and her husband, knowing that they
did not have record title to the premises, intended from the first nevertheless
to occupy the property as their own. Bearing this out is the fact that Lutz put
down the row of logs and brush, which was over 100 feet in length, to mark the
southwestern boundary of his farm; this marker, only roughly approximating the
lot lines, extended beyond them into the bed of Gibson Place. The property was,
109
110
Property A Contemporary Approach
moreover, known in the neighborhood as “Mr. Lutz’s gardens,” and the one-room
dwelling on it as “Charlie’s house;” the evidence clearly indicates that people living
in the vicinity believed the property to be owned by Lutz. And it is undisputed
that for upwards of thirty-five years—until 1947, when plaintiffs became the
record owners—no other person ever asserted title to the parcel.
With evidence such as that in the record, I am at a loss to understand how
this court can say that support is lacking for the finding that the premises had
been occupied by Lutz under a claim of title. The referee was fully justified in
concluding that the character of Lutz’s possession was akin to that of a true owner
and indicated, more dramatically and effectively than could words, an intent to
claim the property as his own. Recognizing that “A claim of title may be made by
acts alone quite as effectively as by the most emphatic assertions” (Barnes v. Light,
116 N.Y. 34, 39, 22 N.E. 441, 442), we have often sustained findings based on
evidence of actual occupation and improvement of the property in the manner
that “owners are accustomed to possess and improve their estates.” La Frombois v.
Jackson, 8 Cow. 589, 603….That Lutz knew that he did not have the record title
to the property—a circumstance relied upon by the court—is of no consequence,
so long as he intended, notwithstanding that fact, to acquire and use the property
as his own. As we stated in Ramapo Mfg. Co. v. Mapes, 216 N.Y. 362, 370-371, 110
N.E. 772, 775, “the bona fides of the claim of the occupant is not essential, and it
will not excuse the negligence of the owner in forbearing to bring his action until
after the time in the statute of limitations shall have run against him to show that
the defendant knew all along that he was in the wrong….”
Quite obviously, the fact that Lutz alleged in the 1947 easement action—
twelve years after title had, according to the referee, vested in him through adverse
possession—that one of the plaintiffs was the owner of three of the lots, simply
constituted evidence pointing the other way, to be weighed with the other proof
by the courts below. While it is true that a disclaimer of title by the occupant of
property, made before the statutory period has run, indelibly stamps his possession as nonadverse and prevents title
FYI
from vesting in him…a disclaimer
made after the statute has run carries
The client is generally bound by the
with it totally different legal conseactions of his attorney. Otherwise,
quences. Once title has vested by virtue
our legal system simply could not
of adverse possession, it is elementary
function. Thus, assuming that Lutz’s
admission in the first lawsuit was
that it may be divested, not by an oral
caused by his attorney’s erroneous
disclaimer, but only by a transfer comadvice, the court will not permit his
plying with the formalities prescribed
successor to challenge that admisby law….Hence, an oral acknowledgsion in this second lawsuit. But the
attorney might be liable for malpracment of title in another, made after the
tice.
statutory period is alleged to have run,
“is only evidence tending to show the
Chapter 2 Owning Real Property
character of the previous possession.”…Here, Official Referee Close, of the opinion that the 1947 admission was made by Lutz under the erroneous advice of his
attorney…chose to rest his decision rather on evidence of Lutz’s numerous and
continual acts of dominion over the property—proof of a most persuasive character. Even if we were to feel that the referee was mistaken in so weighing the evidence, we would be powerless, to change the determination, where, as we have
seen, there is some evidence in the record to support his conclusion.
In view of the extensive cultivation of the parcel in suit, there is no substance
to the argument that the requirements of sections 39 and 40 of the Civil Practice
Act were not met. Under those provisions, only the premises “actually occupied”
in the manner prescribed—that is, “protected by a substantial inclosure” or “usually cultivated or improved”—are deemed to have been held adversely. The object
of the statute, we have recognized, “is that the real owner may, by unequivocal
acts of the usurper, have notice of the hostile claim, and be thereby called upon
to assert his legal title.”…Since the character of the acts sufficient to afford such
notice “depends upon the nature and situation of the property and the uses to
which it can be applied,” it is settled that the provisions of sections 39 and 40
are to be construed, not in a narrow or technical sense, but with reference to the
nature, character, condition, and location of the property under consideration.
See Ramapo Mfg. Co. v. Mapes, supra, 216 N.Y. 362, 372, 373, 110 N.E. 722,
776….
Judge Dye considers it significant that the proof “fails to show that the cultivation incident to the garden utilized the whole of the premises claimed.” There
surely is no requirement in either statute or decision that proof of adverse possession depends upon cultivation of “the whole” plot or of every foot of the property in
question. And, indeed, the statute—which, as noted, reads “usually cultivated or
improved”—has been construed to mean only that the claimant’s occupation must
“consist of acts such as are usual in the ordinary cultivation and improvement of
similar lands by thrifty owners.” Ramapo Mfg. Co. v. Mapes, supra, 216 N.Y. 362,
373, 110 N.E. 772, 776. The evidence demonstrates that by far the greater part of
the four lots was regularly and continuously used for farming, and, that being so,
the fact that a portion of the property was not cleared should not affect the claimant’s ability to acquire title by adverse possession: any frugal person, owning and
occupying lands similar to those here involved, would have permitted, as Lutz
did, some of the trees to stand—while clearing the bulk of the property—in order
to provide a source of lumber and other tree products for his usual needs. The
portion of the property held subservient to the part actively cultivated is as much
“occupied” as the portion actually tilled. The nature of the cultivation engaged in
by Lutz was more than adequate, as his neighbors’ testimony establishes, to give
the owner notice of an adverse claim and to delimit the property to which the
claim related….
111
Property A Contemporary Approach
112
In short, there is ample evidence to sustain the finding that William Lutz
actually occupied the property in suit for over fifteen years under a claim of title.
Since, then, title vested in Lutz by 1935, the judgment must be affirmed….
_______________
Points for Discussion
a. The New York Approach
Although the Van Valkenburgh opinion is remarkably silent on the point, New
York law also requires that the claimant prove the traditional common law elements
of adverse possession. See Walling v. Przybylo, 851 N.E.2d 1167, 1169 (N.Y. 2006).
As a practical matter, the statutory and case law elements overlap substantially. For
example, the “usual cultivation” that meets the statutory standard will normally
also fulfill the elements of actual, open and notorious, and continuous possession.
b. The Mysterious Owner
The trial court found that Lutz acquired title by adverse possession in 1935,
long before the Van Valkenburghs arrived on the scene. Who owned the triangular tract until 1935? Why do you suppose that owner never acted to evict Lutz?
c. Exploring the Rationale
The majority and the dissent differ sharply on whether Lutz acquired title by
adverse possession. Which side is right? An appellate court will normally defer
to the factual findings of the trial court, unless they are clearly unsupported by
evidence in the record. To what extent did the majority defer to the trial court’s
findings?
d. “Usually Cultivated”
The dissent cites evidence that the Lutz garden occupied “nearly all” of the
triangular tract. Why doesn’t this meet the § 40(2) requirement that the land be
“usually cultivated,” according to the majority? In a later New York case, the court
held that this requirement was met where the adverse claimants “mowed the lawn,
planted grass and a vegetable garden, raked leaves, removed debris, and planted,
transplanted and pruned trees and bushes within the disputed parcel.” Franzen v.
Cassarino, 552 N.Y.S.2d 789, 791 (App. Div. 1990). Is Franzen consistent with Lutz?
e. Color of Title
Most states provide enhanced protection for the adverse possessor whose
claim is based on color of title. In this context, color of title refers to a deed, a judgment, or another written document that is invalid for some reason. The standards
Chapter 2 Owning Real Property
for adverse possession based on color of title are easier to meet in many states. For
example, the required period is often shortened for a claimant holding color of
title. In addition, the successful claimant with color of title may be able to acquire
more land. Suppose that Greenacre consists of 40 acres. If adverse possessor A
occupies two acres of Greenacre without color of title and succeeds in his claim,
he acquires title only to those two acres—as N.Y. Civil Practice Act § 39 provided.
But if A holds color of title, then he is deemed to be in constructive possession of all
40 acres, so he will obtain title to all of Greenacre.
f. “Under a Claim of Title”
According to the majority, what state of mind must an adverse possessor have
in order to make a “claim of title”? Good faith, bad faith, or what? Did Lutz meet
any of these standards? The majority stresses the fact that in 1947 (12 years after
Lutz’s adverse possession was complete, according to the trial court), Lutz admitted in the first lawsuit that the Van Valkenburghs owned the triangular tract. In
determining Lutz’s state of mind during the adverse possession period, how much
weight should the court give to a statement made after that period?
g. Comparing Gurwit and Van Valkenburgh
Gurwit and Van Valkenburgh both involved adverse possession claims to open,
undeveloped lands. The claimants in Gurwit (whose activities were minimal)
won. But the claimants in Van Valkenburgh (whose activities were extensive) lost.
How can we reconcile these results in light of the theories used to justify adverse
possession?
h. Aftermath of Van Valkenburgh
The Court of Appeals decision did not end the feud between the Lutz and
Van Valkenburgh families. To collect their costs in the case, the Van Valkenburghs
tried to force a sale of the Lutz home. Van Valkenburgh v. Lutz, 175 N.Y.S.2d 203
(App. Div. 1958). And brother Charlie
unsuccessfully tried to challenge the
See It
Van Valkenburghs’ title. Lutz v. Van
Valkenburgh, 237 N.E.2d 84 (N.Y.
Click here for modern photographs
1968). The Van Valkenburgh family
of the church parking lot, where the
Lutz garden was located. The “traveventually sold the triangular tract and
eled way” ran along the left side of
their home to the Prophet Elias Greek
the lot.
Orthodox Church. Today, the site of
their home is occupied by an impressive church, while the triangular tract
is part of the church parking lot. However, members of the Lutz family still reside
in their original home. They access the home by crossing the church parking lot
along the path of the former “traveled way.”
_______________
113
Property A Contemporary Approach
114
2. The Adverse Possessor’s State of Mind
The “adverse and hostile” element is the most puzzling aspect of adverse possession. At a minimum, all states agree that possession stemming from the true
owner’s consent does not meet this standard. For example, if A leases his land to
B, B’s possession is not “adverse and hostile.” But must the claimant also have a particular state of mind in order to be
“adverse and hostile”? Courts disagree. In some states, the adverse possessor must
believe in good faith that she is the owner of the land. Historically, some states
required that the adverse possessor have bad faith—know she is not the owner
and intend to take title from the owner—and echoes of this approach linger. But
in most jurisdictions, the claimant’s state of mind is irrelevant. Within this third
group, some courts create confusion by insisting that the adverse possessor have
a claim of right, which implies that some type of special mindset is required. But
this requirement is essentially meaningless, because these courts reason that the
claimant’s objective conduct—measured by the other adverse possession requirements—demonstrates a claim of right. Which of these three approaches is best?
Fulkerson v. Van Buren
Court of Appeals of Arkansas
961 S.W.2d 780 (1998)
JENNINGS, Judge.
Appellant Floyd H. Fulkerson appeals the Pulaski County Circuit Court’s
judgment awarding title to a 4.5-acre parcel of real estate to appellee the Progressive Church, Inc. The church claimed title to the land by adverse possession. We
reverse and remand.
The 4.5 acres at issue are situated in Pulaski County, near the town of Scott.
The parcel is irregularly configured and has eleven sides. The northernmost part
of the parcel abuts Old Highway 30 for approximately 115 feet. A single-story
church building is situated near the highway. This building is the meeting place
for appellee, the Progressive Church, Inc. When the litigation between the parties
began, appellant Fulkerson had held
legal title to the parcel since December
See It
1949. Sometime in 1985, the congregation of the Progressive Church,
Click here to see a map of the diswithout obtaining permission from
puted land in Fulkerson.
Fulkerson, began using the church
building on the property as their place
Chapter 2 Owning Real Property
of worship. Over the next several years, the congregation greatly improved the
church building itself and the surrounding land….
In November 1994, Fulkerson sent to Reverend Van Buren a letter demanding that he and the church congregation immediately vacate the church building
located on the parcel. The church did not vacate the premises. In May 1995, Fulkerson filed in Pulaski County Circuit Court a complaint in which he requested
that the court eject the congregation from the church building and from the rest of
the parcel at issue….[The church filed a counterclaim, asserting] that it owned the
parcel of land at issue by adverse possession….In October 1996, trial was held in
Pulaski County Circuit Court….After hearing testimony from witnesses presented
by both parties, the circuit court subsequently caused to be entered a judgment
in which the court determined that the Progressive Church owned the parcel of
land by adverse possession.
The legal principles governing establishment of title to land by adverse possession are well established. We recently set forth these principles as follows:
It is well settled that, in order to establish title by adverse possession, appellee had
the burden of proving that she had been in possession of the property continuously
for more than seven years and that her possession was visible, notorious, distinct,
exclusive, hostile, and with intent to hold against the true owner. The proof required
as to the extent of possession and dominion may vary according to the location and
character of the land. It is ordinarily sufficient that the acts of ownership are of such
a nature as one would exercise over her own property and would not exercise over
that of another, and that the acts amount to such dominion over the land as to which
it is reasonably adapted….
Moses v. Dautartas, 53 Ark. App. 242, 244, 922 S.W.2d 345 (1996)….For possession to be adverse, it is only necessary that it be hostile in the sense that it
is under a claim of right, title, or ownership as distinguished from possession
in conformity with, recognition of, or subservience to the superior right of the
holder of title to the land. Possession of land will not ordinarily be presumed
to be adverse, but rather subservient to the true owner of the land. See Dillaha
v. Temple, 267 Ark. 793, 797, 590 S.W.2d 331 (1979). Therefore, mere possession of land is not enough to adversely possess the land, and there is every
presumption that possession of land is in subordination to the holder of the legal
title to the land. The intention to hold adversely must be clear, distinct, and
unequivocal….
The core of the church’s proof of adverse possession of the 4.5 acres at issue
was provided by appellee, Reverend Sylvester Van Buren. As noted above, the
intent required for adverse possession is the intention to claim the land at issue
under right, title, or ownership as distinguished from possession in conformity
with, recognition of, or subservience to the superior right of the true owner of
115
116
Property A Contemporary Approach
the land. We conclude that Reverend Van Buren’s testimony shows that, from the
time the congregation occupied the church building on the parcel until November
1994, the church congregation was unsure of the precise nature of its interest in
the land and, moreover, recognized that Fulkerson owned the land.
On cross-examination, Reverend Van Buren testified that in 1990 or 1991 he
first realized that the church did not have a deed to the land at issue. He testified
further that, prior to this time, he made no assumptions about whether the church
was on the land with permission or whether the church had purchased the land.
Reverend Van Buren specifically stated in this regard, “I didn’t know how or what
kind of possession they had.” In order
to clarify the matter of the church’s
What’s That?
right to occupy the land, Reverend Van
Buren contacted appellant Fulkerson.
A quitclaim deed conveys all the title
He asked Fulkerson to give a quitclaim
the grantor has in the property—if
deed to the church, which Fulkerson
any. Thus, the grantor does not represent or warrant that he has any title
refused to do. Reverend Van Buren tesat all. A quitclaim deed is often used
tified further that, after Fulkerson told
when the grantor wishes to release
him that he (Fulkerson) held legal title
a weak or invalid title claim, in order to resolve an ownership dispute.
to the land, he (Van Buren) “accepted
You will study the different types of
that as a fact.”…With regard to the
deeds in Chapter 8.
time at which the church congregation
decided to claim the land at issue, Reverend Van Buren testified:
Once the term adverse had been positioned and he [Fulkerson] had caused us to be
evicted or had asked us out of the church and we had no other alternatives. I just
wondered what we should do. It wasn’t a decision that was made impulsively at that
time. We made the decision that we wanted the land once we found out it wasn’t ours.
And as far as adverse, adverse only came into play when no other avenue worked.
When asked whether this decision would have been reached in 1994 to 1995,
Reverend Van Buren replied, “If you say so, that’s close.”
Given this testimony by Reverend Van Buren, given that a possessor of land
does not possess adversely if, while in possession, he recognizes the ownership
right of the titleholder to the land, and given that proof of the possessor’s intention
to hold adversely must be clear, distinct, and unequivocal and must have lasted
seven years, we conclude that the circuit court’s finding of fact that the congregation of the Progressive Church possessed for seven years the requisite intent to
possess the land at issue adversely to appellant Fulkerson is clearly against the
preponderance of the evidence. Because the church congregation did not possess
the land with the requisite intent for seven years, the church congregation did not
adversely possess the land.
Chapter 2 Owning Real Property
For the reasons set forth above, we reverse the Pulaski County Circuit Court’s
judgment in favor of appellee the Progressive Church, Inc., on its counterclaim
for adverse possession….
MEADS, Judge, dissenting.
The trial court determined that appellees established their claim for adverse
possession of the tract of land they had occupied since 1985. Because I do not
believe the trial court’s findings of fact are clearly erroneous or clearly against the
preponderance of the evidence, I would affirm.
Reverend Van Buren testified that he became pastor of the Progressive Church
in 1985 and that he and other church members immediately began cleaning up
the premises, which he described as a “wilderness” and “dumping site.” The land
was overgrown with vines and littered with storm debris, and the church building
was infested with snakes. They cut down trees, cleared out debris, and cleaned
up the highway frontage so that the building became visible from the road. They
repaired the building by installing central heat and air, and by replacing the roof,
siding, windows, and floor. They added a 40-foot building and office. After two
years, the property was in “immaculate” condition, and the congregation received
compliments for their efforts from the local community. When asked whether
he had treated the property as his own, Reverend Van Buren asserted: “There’s
no way that I would have gone to this property and cleared it by hand…if I had
assumed we didn’t have business being there, the right to be there, or if the church
didn’t have the needed possession.”
Reverend Van Buren further testified that he had no dealings whatsoever with
appellant until sometime in the early nineties, when appellant stopped by the
church, asked to speak to the preacher, complimented him on the church’s efforts
to improve the appearance of the church and grounds, but was silent as to his
ownership of the site. It was not until 1992 that appellant, through his attorney,
notified appellee that he (appellant) owned the land and was willing to negotiate
a lease with the church. Subsequently, appellant personally spoke to Reverend
Van Buren about a lease. Ultimately, appellant’s attorney sent appellees a demand
to vacate dated November 4, 1994, and filed the ejectment action in May 1995.
All during this time, the Progressive Church steadfastly refused to negotiate with
appellant, asserted its intent to remain in possession, and defied eviction efforts.
Reverend Van Buren repeatedly asked appellant for a quitclaim deed to the premises. He contended there were never any “negotiations” with appellant for a lease,
and “the only reason lease was mentioned is because Mr. Fulkerson dominated
the conversation. You only talk about what Mr. Fulkerson wants to talk about. It
doesn’t matter what you say.”
117
118
Property A Contemporary Approach
To establish adverse possession which ripens into ownership, the claimant
must prove possession for seven years that has been actual, open, notorious, continuous, hostile, and exclusive, accompanied with an intent to hold against the
true owner. Utley v. Ruff, 255 Ark. 824, 827, 502 S.W.2d 629, 632 (1973). The
majority believes appellee failed to establish the requisite intent to hold against
the true owner, because once appellant asserted his ownership and the church
“recognized” appellant’s ownership right, the church’s occupancy ceased to be
adverse, thus interrupting the seven-year statutory period. I disagree.
First, I do not believe the church recognized appellant’s ownership. Church
members began to occupy the premises in 1985, using the building regularly,
without interruption, and without notice of appellant’s ownership until 1992.
After being notified of appellant’s title and after receiving a demand to vacate and
later an eviction notice, they continued to occupy the premises, using the building
regularly and without interruption. By their actions, the congregation continued
to repudiate appellant’s ownership even through the date of trial and beyond. To
date, they have been in continuous possession for almost thirteen years.
Second, I believe the church clearly demonstrated a hostile intent within the
meaning of the law. As this court stated in Walker v. Hubbard, 31 Ark. App. 43,
787 S.W.2d 251 (1990):
The word hostile, as used in the law of adverse possession, must not be read too
literally. For adverse possession to be hostile, it is not necessary that the possessor
have a conscious feeling of ill will or enmity toward his neighbor. Claim of ownership,
even under a mistaken belief, is nevertheless adverse.
Id. at 46-47, 787 S.W.2d 251. Additionally, for possession to be adverse, it is only
necessary that it be hostile in the sense that it is under a claim of right, title, or
ownership as distinguished from possession in conformity with, recognition of, or
subservience to, the superior right of the owner. Barclay v. Tussey, 259 Ark. 238,
241, 532 S.W.2d 193, 195 (1976). For the reasons stated in the previous paragraph, I cannot say that appellee’s possession was “in conformity with, recognition
of, or subservience to” appellant’s rights….
_______________
Points for Discussion
a. Why Did the Church Lose?
Does Arkansas law require bad faith, that is, the adverse claimant must (1)
know that he is not the true owner and (2) intend to claim title anyway? Or is the
Arkansas requirement more complex?
Chapter 2 Owning Real Property
b. The Bad Faith Approach
In a provocative article, Professor Lee Anne Fennell argues that bad faith
should be required for adverse possession. She suggests that the ultimate purpose
of adverse possession is to maximize economic efficiency by shifting title from the
current owner (who places a low value on the land, as evidenced by his lack of
use) to an adverse possessor (who places a higher value on the land, as shown by
his use). Accordingly, she reasons that it makes sense to require that an adverse
claimant expressly consider how much he values the land:
If we define an inefficient trespass as one that harms the record owner more than it
benefits the trespasser, then it follows that an encroachment becomes increasingly
efficient…as the trespasser’s valuation of an entitlement in the land grows relative to
that of the record owner.
Lee Anne Fennell, Efficient Trespass: The Case for “Bad Faith” Adverse Possession,
100 Nw. U. L. Rev. 1037, 1073 (2006). How strong is this argument? Are there
other reasons to require bad faith?
c. Productive Use of Land
Through hard work, the church members converted a neglected “wilderness”
into an “immaculate” property suitable for religious services. Fulkerson, the
record owner, apparently ignored all this activity for years—as if he had abandoned the property. In light of the justifications for adverse possession, should
the church have won this case? d. Legal Ethics and Adverse Possession
Suppose that you represent the Progressive Church in this case. You are
aware that Reverend Van Buren’s state of mind will be a central issue at trial.
Should you explain the Arkansas law on the point before asking him about his
intent? Or should you inquire about his intent before explaining the law? Consider the American Bar Association’s Model Rule of Professional Conduct 3.4(b),
which provides that an attorney shall not “counsel or assist a witness to testify
falsely.” Is that rule relevant here? e. Breaking a Tie
If the evidence in a case is equally balanced on a particular point, a presumption can serve as a “tie breaker” that tips the balance toward one side. In Fulkerson,
the majority uses the presumption that a non-owner’s possession of land is not
adverse to the owner. Should the law presume adversity in this situation? Would
the case have come out differently if Arkansas law did presume adversity?
119
Property A Contemporary Approach
120
f. Aftermath of Fulkerson
See It
Click here to see a modern photograph of the disputed land in Fulkerson. Note the dilapidated condition
of the former church building.
The Progressive Church eventually moved to a new location a few
miles away. Today, the former church
building—bearing a “No Trespassing”
sign—is unoccupied and deteriorating.
The trees, vines, and other vegetation
that the church members cleared away
are slowly growing back.
_______________
Tioga Coal Co. v. Supermarkets General Corp.
Supreme Court of Pennsylvania
546 A.2d 1 (1988)
FLAHERTY, Justice.
In September, 1978 Tioga Coal Company filed a complaint in equity against
Supermarkets General Corporation seeking title by adverse possession to a strip
of land known as Agate Street, located within Supermarkets’ property and bordering Tioga’s property. Agate Street is a paper street forty feet wide which was entered
on the plan of the City of Philadelphia but was never opened to the public. It was
stricken from the city plan in 1966….
[At trial] the Chancellor determined…that some time around 1948 Tioga
took control of a gate controlling access to Agate Street by putting its lock on
the gate, and maintained the lock
See It
until approximately 1978, when the
gate was removed. The court found
Click here to see (a) a map of the disthat during the thirty year period
puted land and (b) a photograph of
between 1948 and 1978 Tioga conthe disputed land.
trolled ingress and egress from Agate
Street….
The Chancellor also found that Tioga used Agate Street from 1948 through
1978 for its entire forty feet width from the gate northward for 150 feet….
Although the court found that Tioga’s possession was “actual, open, notorious,
exclusive and continuous” for a period in excess of the required twenty-one years,
it determined that Tioga had failed to establish that its use or possession of Agate
Street was hostile or adverse to the true owner of the land....[The basis for this
ruling was that Tioga thought the true owner of the land was the City, when in
Chapter 2 Owning Real Property
fact it was owned by defendant Supermarkets, such that Tioga did not “intend”
to claim title against the actual owner. This ruling was affirmed on appeal by the
Pennsylvania Superior Court.]
B.
The elements of Pennsylvania’s law of adverse possession are stated in Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949):
It has long been the rule of this Commonwealth that one who claims title by adverse
possession must prove that he had actual, continuous, exclusive, visible, notorious,
distinct, and hostile possession of the land for twenty-one years….
Id. 362 Pa. at 594-5, 66 A.2d at 829. With regard to the requirement of hostility,
this Court has stated: “While the word ‘hostile’ has been held not to mean ill will
or hostility, it does imply the intent to hold title against the record title holder.”
Vlachos v. Witherow, 383 Pa. 174, 118 A.2d 174, 177 (1955).
Intent, thus, has become a part of Pennsylvania law of adverse possession….
Exactly how Pennsylvania’s state of mind requirement may be proved, however, is
a matter of some uncertainty….
Superior Court required that Tioga prove its subjective hostility by establishing that it directed its hostility toward the true owner [Supermarkets], not the
mistaken owner of the land [the City]….Tioga believed that Agate Street was
owned by the City, and Superior Court was unwilling to imply hostility “where
the claimant acknowledges the ownership of another.” In Superior Court’s view,
therefore, what was required was that Tioga know who the true owner of the land
was, meet all of the other requirements of actual, continuous, exclusive, visible,
notorious, and distinct possession, and direct its hostility toward the true owner
of the land.
...Tioga asserts that its taking and using the lands of another for longer than
the required twenty-one years is “hostile” within the meaning of the law of adverse
possession.
C.
Perhaps the reason that many appellate courts have been reluctant to rely on
objective evidence of adverse possession without also considering the possessor’s
mental state of mind…is that they are reluctant to award title to a “land pirate.”
The thought of allowing a knowing trespasser to attain title to the land he has
usurped is often regarded as unacceptable. There are, however, sound reasons to
avoid entanglement with attempting to discern the mental state of adverse
121
122
Property A Contemporary Approach
possessors. For one thing, discerning the mental state of an adverse possessor is,
at best, an exercise in guesswork; and at worst, impossible. Beyond that, application of objective tests as to whether the land was adversely possessed promotes
use of the land in question against abandonment. Also, as Justice Holmes points
out in a letter to William James, the use of objective, as opposed to subjective
tests, may involve an essentially equitable consideration that a person who has put
down his roots on land develops an attachment to the land which is deserving of
protection:
The true explanation of title by prescription seems to me to be that man, like a tree in
a cleft of a rock, gradually shapes his roots to his surroundings, and when the roots
have grown to a certain size, cannot be displaced without cutting at his life. The law
used to look with disfavor on the Statute of Limitations, but I have been in the habit
of saying it is one of the most sacred and indubitable principles that we have, which
used to lead my predecessor Field to say that Holmes didn’t value any title that was
not based on fraud or force.
Lerner, The Mind and Faith of Justice Holmes, 417 (1953)….In other words, as
Holmes puts it, if an owner abandons his land and the land is possessed and used
by another for the statutory period, beyond which the true owner no longer has a
cause of action in ejectment, the trespasser has put down roots which we should
not disturb.
We believe that Justice Holmes’ view of adverse possession represents sound
public policy. Furthermore, this view is consistent with a requirement that adverse
possession be characterized by hostility as well as the other elements of the cause
of action, for it is inconceivable that
if an adverse possessor actually takes
FYI
possession of land in a manner that is
Oliver Wendell Holmes, Jr. was a giopen, notorious, exclusive and conant in American jurisprudence. As a
tinuous, his actions will not be hostile
scholar, a professor at Harvard Law
to the true owner of the land as well
School, the Chief Justice of the Suas to the world at large, regardless of
preme Judicial Court of Massachusetts, and—most importantly—as an
the adverse possessor’s state of mind.
Associate Justice of the United States
We hold, therefore, that if the true
Supreme Court for almost 30 years,
owner has not ejected the interloper
he profoundly impacted our legal
system. His book The Common
within the time allotted for an action
Law influenced the development of
in ejectment, and all other elements
both legal realism and the law and
of adverse possession have been
economics movement.
established, hostility will be implied,
regardless of the subjective state of
mind of the trespasser.
Judgment of Superior Court is reversed….
Chapter 2 Owning Real Property
McDERMOTT, Justice, dissenting.
I dissent, and would affirm the Superior Court and the Chancellor below.
There is no reason to change the law of this Commonwealth on the basis of a
letter from Justice Holmes to William James. We have previously held with the
prevailing opinion in this country that one must intend to take against the record
title holder….
The romantic notion that an interloper upon the land of another challenges
the world bespeaks a time of wilderness and unrecorded land titles. In a modern
organized state all titles are recorded and the “world” cannot bring an action in
ejectment any more than a record title owner need periodically bring one against
the “world.” Recorded land titles should lie peacefully in their owners unless one
who seeks to own them intends to own them by exercising exclusive, open, notorious, and hostile possession against the record title owner and not somebody
else.
_______________
Points for Discussion
a. Role of Intent
Do you agree with the majority’s view that an adverse claimant’s intent should
be irrelevant? This is certainly the approach followed by most jurisdictions—and
it represents the modern trend. When the Washington Supreme Court abandoned the good faith standard in Chaplin v. Sanders, 676 P.2d 431, 435 (Wash.
1984), it explained that the standard “does not serve the purpose of the adverse
possession doctrine.” What did the court mean?
b. Land Piracy Revisited
Decisions such as Tioga Coal Co. and Chaplin seem to facilitate land piracy.
Now that you are familiar with adverse possession law, suppose that you set out to
adversely possess a remote and undeveloped parcel of land in a jurisdiction where
intent is irrelevant. You take the minimum steps needed to meet the adverse
possession standards (e.g., you periodically gather firewood, cut trees, etc.) for the
required period. Would a court now recognize your title? Or should your prior
knowledge of the law make a difference?
c. The Court’s Rationale
One reason for the majority’s new standard is the difficulty of determining the
adverse possessor’s mental state. How strong is this argument? Courts routinely
decide cases that involve a person’s state of mind. For example, in a criminal
123
124
Property A Contemporary Approach
prosecution the defendant’s punishment will typically be more severe if he intended a crime than if he was merely negligent or reckless. Beyond this point, what
other reasons does the court offer for changing Pennsylvania law?
d. Native Americans and Ownership
In Nome 2000 v. Fagerstrom, 799 P.2d 304 (Alaska 1990), a Native American
family claimed title to a forest tract by adverse possession. The record owner
argued that the claimants lacked the required intent to claim title because they
“thought of themselves not as owners but as stewards pursuant to the traditional
system of Native Alaskan land usage.” Id. at 310. Assuming that Alaska law
requires an affirmative intent to claim title, would the intent to use land as stewards meet this standard? The Alaska Supreme Court bypassed this question by
adopting the majority view that subjective intent is irrelevant.
e. Death(?) of Good Faith
A minority of states require that the adverse possessor act in good faith.
What are the pros and cons of this approach? After reviewing over 800 appellate
decisions on adverse possession, Professor R.H. Helmholz concluded that most
courts implicitly require good faith in adverse possession cases, even if this is not
an express requirement: “…[T]he results of most cases show that where courts
allow adverse possession to ripen into title, bad faith on the part of the possessor
seldom exists. Where the possessor knows that he is trespassing, title does not
accrue to him simply by the passage of years.” R.H. Helmholz, Adverse Possession
and Subjective Intent, 61 Wash. U. L.Q. 331, 347 (1983). If Professor Helmholz is
correct, should states explicitly require good faith for adverse possession?
In Walling v. Przybylo, 851 N.E.2d 1167 (N.Y. 2006), the New York Court of
Appeals held that the plaintiffs (an attorney and his wife) had obtained title to part
of their neighbors’ lot by adverse possession, even though they knew they did not
own that land. The case generated such adverse publicity that the New York Legislature adopted a statute that requires good faith for adverse possession without
color of title: “a reasonable basis for the belief that the property belongs to the
adverse possessor….” N.Y. Real Prop. Acts. § 501(3). The Sponsor’s Memorandum in support of the legislation explained that: “Adverse possession…should
not be a doctrine which can be used offensively to deprive a landowner of his real
property. This only encourages mischief between neighbors….No good can come
of it.” Do you agree?
_______________
Chapter 2 Owning Real Property
3. Proving Adverse Possession
Adverse possession claims normally arise in two procedural situations: the
adverse possessor either brings a quiet title action to confirm his title (as in Gurwit)
or raises the doctrine as a defense to an owner’s lawsuit to recover possession (as
in Van Valkenburgh). But judicial action is not necessary for an adverse possessor
to obtain title. For example, if A occupies B’s land for the required period
Practice Pointer
and satisfies the adverse possession
elements, A automatically acquires
ABA Model Rule of Professional
Conduct 3.1 provides that a lawyer
title to B’s land when the period ends,
“shall not bring or defend a prowithout any litigation. In order to
ceeding…unless there is a basis in
ensure that the public land records
law and fact for doing so that is not
frivolous.” Thus, if it is clear that A
show that the adverse possessor has
has satisfied all the requirements for
title, it is common for a successful
adverse possession, B’s attorney has
claimant like A to bring a quiet title
an ethical obligation not to assert a
frivolous defense. B’s attorney will
action; the court’s judgment recognizpresumably advise B to give A a deed
ing A’s title can then be entered in the
to the property in order to avoid
public records. Alternatively, a former
litigation. On the other hand, B’s atowner may avoid litigation by voluntorney may assert any nonfrivolous
defense to A’s claim.
tarily giving A a deed. In this section,
we will examine the mechanics of
proving adverse possession.
The adverse possession periods of two or more successive occupants may
be added together to meet the statutory period under the doctrine of tacking.
Suppose F owns land in a jurisdiction with a 10-year adverse possession period.
G occupies the land for 3 years and conveys her rights to H who occupies it for 8
more years. If G and H both satisfied the other adverse possession requirements,
H may combine the two periods and receive credit for 11 years, thus obtaining
title.
Our next case examines tacking in the context of an adverse possession claim
to a summer beach cottage on the shore of Hood Canal in Washington. Hood
Canal is a natural saltwater fiord just off Puget Sound. The parcels involved in
this case are located in a forest area on the southeastern side of the canal, next to
Twanoh State Park. They adjoin one of the warmest beaches in the state, which
attracts crowds of swimmers and sunbathers each summer.
125
Property A Contemporary Approach
126
Howard v. Kunto
Court of Appeals of Washington
477 P.2d 210 (1970)
PEARSON, Judge.
Land surveying is an ancient art but not one free of the errors that often creep
into the affairs of men. In this case, we are presented with the question of what
happens when the descriptions in deeds do not fit the land the deed holders are
occupying. Defendants appeal from a decree quieting title in the plaintiffs of a
tract of land on the shore of Hood Canal in Mason County.
At least as long ago as 1932 the record tells us that one McCall resided in
the house now occupied by the appellant-defendants, Kunto. McCall had a deed
that described a 50-foot-wide parcel on the shore of Hood Canal. The error that
brings this case before us is that 50 feet described in the deed is not the same 50
feet upon which McCall’s house stood. Rather, the described land is an adjacent
50-foot lot directly west of that upon
which the house stood. In other words,
See It
McCall’s house stood on one lot and
his deed described the adjacent lot.
Click here to see a map of the disputed land in Howard.
Several property owners to the west of
defendants, not parties to this action,
are similarly situated.
Over the years since 1946, several conveyances occurred, using the same
legal description and accompanied by a transfer of possession to the succeeding
occupants. The Kuntos’ immediate predecessors in interest, Millers, desired to
build a dock. To this end, they had a survey performed which indicated that the
deed description and the physical occupation were in conformity. Several boundary stakes were placed as a result of this survey and the dock was constructed, as
well as other improvements. The house as well as the others in the area continued
to be used as summer recreational retreats.
The Kuntos then took possession of the disputed property under a deed from
the Millers in 1959. In 1960, the respondent-plaintiffs, Howard, who held land
east of that of the Kuntos, determined to convey an undivided one-half interest in
their land to the Yearlys. To this end, they undertook to have a survey of the entire
area made. After expending considerable effort, the surveyor retained by the Howards discovered that according to the government survey, the deed descriptions
and the land occupancy of the parties did not coincide. Between the Howards and
the Kuntos lay the Moyers’ property. When the Howards’ survey was completed,
they discovered that they were the record owners of the land occupied by the
Chapter 2 Owning Real Property
Moyers and that the Moyers held record title to the land occupied by the Kuntos. Howard approached Moyer and in return for a conveyance of the land upon
which the Moyers’ house stood, Moyer conveyed to the Howards record title to
the land upon which the Kunto house stood. Until plaintiffs Howard obtained the
conveyance from Moyer in April, 1960, neither Moyer nor any of his predecessors
ever asserted any right to ownership of the property actually being possessed by
Kunto and his predecessors. This action was then instituted to quiet title in the
Howards and Yearlys. The Kuntos appeal from a trial court decision granting this
remedy.
At the time this action was commenced on August 19, 1960, defendants
had been in occupancy of the disputed property less than a year. The trial court’s
reason for denying their claim of adverse possession is succinctly stated in its
memorandum opinion: “In this instance, defendants have failed to prove, by a
preponderance of the evidence, a continuity of possession or estate to permit
tacking of the adverse possession of defendants to the possession of their predecessors.”…
Two issues are presented by this appeal:
(1) Is a claim of adverse possession defeated because the physical use of the
premises is restricted to summer occupancy?
(2) May a person who receives record title to tract A under the mistaken belief
that he has title to tract B (immediately contiguous to tract A) and who subsequently occupies tract B, for the purpose of establishing title to tract B by adverse
possession, use the periods of possession of tract B by his immediate predecessors
who also had record title to tract A?
In approaching both of these questions, we point out that the evidence, largely undisputed in any material sense, established that defendant or his immediate
predecessors did occupy the premises, which we have called tract B, as though it
was their own for far more than the 10 years as prescribed in RCW 4.16.020….
We start with the oft-quoted rule that:
[T]o constitute adverse possession, there must be actual possession which is
uninterrupted, open and notorious, hostile and exclusive, and under a claim of right
made in good faith for the statutory period.
(Italics ours.) Butler v. Anderson, 71 Wash.2d 60, 64, 426 P.2d 467, 470 (1967)….
We reject the conclusion that summer occupancy only of a summer beach
home destroys the continuity of possession required by the statute. It has become
firmly established that the requisite possession requires such possession and
127
128
Property A Contemporary Approach
dominion “as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition.” Whalen v. Smith, 183
Iowa 949, 953, 167 N.W. 646, 647 (1918)….
We hold that occupancy of tract B during the summer months for more than
the 10-year period by defendant and his predecessors, together with the continued existence of the improvements on the land and beach area, constituted
“uninterrupted” possession within this rule. To hold otherwise is to completely
ignore the nature and condition of the property….
We now reach the question of tacking. The precise issue before us is novel in
that none of the property occupied by defendant or his predecessors coincided
with the property described in their deeds, but was contiguous.
In the typical case, which has been subject to much litigation, the party seeking to establish title by adverse possession claims more land than that described in
the deed. In such cases it is clear that tacking is permitted.
In Buchanan v. Cassell, 53 Wash.2d 611, 614, 335 P.2d 600, 602 (1959) the
Supreme Court stated:
This state follows the rule that a purchaser may tack the adverse use of its predecessor
in interest to that of his own where the land was intended to be included in the deed
between them, but was mistakenly omitted from the description.
The general statement which appears in many of the cases is that tacking
of adverse possession is permitted if the successive occupants are in “privity.”
See Faubion v. Elder, 49 Wash.2d 300, 301 P.2d 153 (1956). The deed running
between the parties purporting to transfer the land possessed traditionally furnishes the privity of estate which connects the possession of the successive occupants. Plaintiff contends, and the trial court ruled, that where the deed does not
describe any of the land which was occupied, the actual transfer of possession is
insufficient to establish privity.
To assess the cogency of this argument and ruling, we must turn to the
historical reasons for requiring privity as a necessary prerequisite to tacking the
possession of several occupants. Very few, if any, of the reasons appear in the
cases, nor do the cases analyze the relationships that must exist between successive possessors for tacking to be allowed. See W. Stoebuck, The Law of Adverse
Possession In Washington in 35 Wash. L. Rev. 53 (1960).
The requirement of privity had its roots in the notion that a succession of
trespasses, even though there was no appreciable interval between them, should
not, in equity, be allowed to defeat the record title. The “claim of right,” “color of
Chapter 2 Owning Real Property
title” requirement of the statutes and cases was probably derived from the early
American belief that the squatter should not be able to profit by his trespass.
However, it appears to this court that there is a substantial difference between
the squatter or trespasser and the property purchaser, who along with several of
his neighbors, as a result of an inaccurate survey or subdivision, occupies and
improves property exactly 50 feet to
the east of that which a survey some
Food for Thought
30 years later demonstrates that they
in fact own. It seems to us that there
Why is there “a strong public policy
is also a strong public policy favoring
favoring early certainty as to the loearly certainty as to the location of
cation of land ownership”? In formulating your answer, consider how
land ownership which enters into a
concern for certainty of title affected
proper interpretation of privity.
the decisions in Johnson v. M’Intosh
and Van Valkenburgh v. Lutz.
On the irregular perimeters of
Puget Sound exact determination of
land locations and boundaries is difficult and expensive. This difficulty is convincingly demonstrated in this case by the
problems plaintiff’s engineer encountered in attempting to locate the corners. It
cannot be expected that every purchaser will or should engage a surveyor to ascertain that the beach home he is purchasing lies within the boundaries described in
his deed. Such a practice is neither reasonable nor customary. Of course, 50-foot
errors in descriptions are devastating where a group of adjacent owners each hold
50 feet of waterfront property.
The technical requirement of “privity” should not, we think, be used to upset
the long periods of occupancy of those who in good faith received an erroneous
deed description. Their “claim of right” is no less persuasive than the purchaser
who believes he is purchasing more land than his deed described.
Make the Connection
Based on this decision, the Howards
and the Yearlys lost any title claim to
the Kunto lot. Did they have rights
against anyone else? In Chapter 8,
you will study techniques to protect
the buyer’s title such as deed covenants and title insurance policies.
In the final analysis, however, we
believe the requirement of “privity” is
no more than judicial recognition of
the need for some reasonable connection between successive occupants of
real property so as to raise their claim
of right above the status of the wrongdoer or the trespasser. We think such
reasonable connection exists in this
case.
129
130
Property A Contemporary Approach
Where, as here, several successive purchasers received record title to tract
A under the mistaken belief that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is transferred and occupied in
a continuous manner for more than 10 years by successive occupants, we hold
there is sufficient privity of estate to permit tacking and thus establish adverse
possession as a matter of law….
Judgment is reversed with directions to dismiss plaintiffs’ action and to enter
a decree quieting defendants’ title to the disputed tract of land in accordance with
the prayer of their cross-complaint.
_______________
Points for Discussion
a. Tacking Basics
As the Howard court notes, most states allow tacking only if the successive
occupants are in privity. This requirement is generally satisfied when one occupant transfers his rights in the property to a successor, for example, by a deed or a
will. Conversely, suppose A abandons his occupancy after 3 years; B sees A leave
the land, and begins to occupy it herself. In the eyes of the law, this is a succession
of trespasses which will not justify B tacking on A’s possession. Why does the law
treat these two situations differently? Indeed, why is tacking ever allowed?
b. Privity in Howard
The facts in Howard fall somewhere between the two standard situations.
The Kuntos did receive a deed, but the land described in that deed was different
from the lot they claimed by adverse possession. So why were the Kuntos allowed
to tack? In light of the purposes behind the privity requirement, what is the
“substantial difference” the court mentions between the Kuntos and an ordinary
trespasser? Note that there is wide variation among the states as to when tacking
is permitted.
c. Group Privity?
In East 13th Street Homesteaders’ Coalition v. Lower East Side Coalition Housing
Development, 646 N.Y.S.2d 324 (App. Div. 1996), an organized group of squatters
occupied four vacant, city-owned apartment buildings and later claimed title by
adverse possession. The City had “sealed the buildings numerous times during
the claimed period, and…the occupants had to break these seals, sometimes with
a sledgehammer, to reenter the buildings.” Id. at 326. Although the claimants
argued that “there was a chain of possession of coalition members in all of the
Chapter 2 Owning Real Property
buildings during the requisite period,” the court refused to allow tacking because
“there is no evidence of privity between successive occupants of the apartments.”
Id. If all the occupants were members of the same group, should the court have
found privity and thus permitted tacking? d. Tackle These Hypotheticals
Under the Howard approach, is tacking allowed in the following situations?
Assume the jurisdiction has a 10-year statutory period.
(1) A occupies O’s land for 6 years. A then tells his friend B: “You can
be here if you want, but I’m leaving.” B occupies the land for 5 more years.
(2) C occupies O’s land for 2 years. C then tries to convey the land to
her sister D, but the deed C uses for this purpose is invalid. D occupies the
land for 9 more years.
e. Continuity Revisited
Why did the Kuntos’ summer occupancy satisfy the requirement of “continuous” possession? How would the court have ruled if the Kuntos (and their
predecessors) had occupied the home for only 6 summers in 10 years? What if
there was no house at all on the lot, but the Kuntos and their predecessors camped
on the land for 6 weekends every summer? In Ray v. Beacon Hudson Mountain
Corp., 666 N.E.2d 532, 534 (N.Y. 1996), the continuity requirement was satisfied
because the adverse possessor occupied a summer vacation cottage for “about one
month per year.”
f. Abolish Adverse Possession?
At the beginning of this unit, we explored the justifications offered for adverse
possession. Now that you have studied the doctrine in detail, assume you are a
member of your state’s legislature which is considering a bill to abolish adverse
possession. How would you vote on that bill and why?
_______________
131
Property A Contemporary Approach
132
Other Procedural Issues
a. Disabilities
What happens if owner A is unable to sue adverse possessor B during the
state’s 10-year statutory period because, for example, A is insane? The period for
adverse possession will be extended due to A’s disability. The most commonly
recognized disabilities are imprisonment, minority, and lack of mental capacity.
Some jurisdictions also protect the owner who is away on military service or who
resides outside of the state.
States differ on how a disability affects the statutory period. For example,
some jurisdictions suspend the running of the period until the disability is
removed. But most states provide a limited period of time after the disability
ends within which suit must be brought. For example, in our hypothetical above,
assume a state statute allows an owner to bring suit within five years after her
disability is removed. Suppose B’s adverse possession period begins in 2000, and
thus would normally end in 2010, ten years later. If A became mentally incompetent in 1995, and is cured in 2012, then A still has five years to sue to eject B, that
is, until 2017. In many states, only a disability that exists at the beginning of the
adverse possession period (such as A’s incompetence here) will extend the statutory period. Note that death ends all disabilities; disabilities cannot be tacked;
and a disability does not shorten the standard period for adverse possession.
To test your understanding of disabilities, consider this problem. Suppose
owner C is ten years old in 2000. D begins adverse possession of C’s land in 2000.
C dies in 2003, and all his rights in the land are inherited by his heir H. However,
H has been mentally incompetent since 2002. The normal adverse possession
period is ten years, but an owner under a disability may bring suit within five
years after his disability is removed. When is the earliest time that D can perfect
title by adverse possession?
b. Identity of the Parties
The identity of the record owner may affect the availability and scope of
adverse possession. Normally, we tend to think of adverse possession as a claim
made against a private owner who holds fee simple absolute or complete title, which
you will study in Chapter 5. But suppose the owner holds a lesser interest, such
as a life estate (roughly equivalent to full ownership rights, but lasting only for the
life of a specific person). In this case, the successful adverse possessor receives
only what the owner had—a life estate. And adverse possession is not available
at all against an owner who does not hold the present right to possession of land.
In most jurisdictions, adverse possession cannot be asserted against land
owned by state or local governments. However, statutes in some jurisdictions
permit adverse possession against land held by state or local governments if that
Chapter 2 Owning Real Property
133
land is used for a proprietary or nonpublic purpose. In such a jurisdiction, for
example, city-owned forest land used only for timber production may be subject
to adverse possession, just as if it was owned by an individual; but a public park
could not be adversely possessed.
_______________
B. The Vertical Dimension of Ownership
How far up do property rights extend? And how far down? We normally
think of real property in terms of rights to the land surface. But some airspace and
subsurface rights are obviously necessary for any meaningful use of the surface. If
A builds a three-story house on her land, for example, the structure may rise 25 feet
into the air, while its foundation penetrates 3 feet into the ground. But do A’s rights
extend upward and downward for 100 feet, 10 miles, 1,000 miles, or farther?
Early English courts grandly
proclaimed that a landowner’s title
extended up to the “heavens” and down
to the center of the earth. This concept
was reflected in the Latin maxim cujus
est solum, ejus est usque ad coelum et ad
inferos. Under this view, a parcel of real
property was seen as a long, slender
column which stretched upward from
our planet’s center to the surface and
then infinitely outward into space.
It’s Latin to Me
This Latin maxim is usually translated as meaning that the rights of
the surface owner extend upward
to the heavens (ad coelum) and
downward to the center of the earth
(ad inferos).
Over the last century, courts have modified the traditional approach in light
of technological advances. The quaint notion that ownership extends to the
“heavens” collapsed with the invention of the airplane. And new technology that
allows ever-deeper drilling—coupled with modern scientific discoveries about the
earth’s interior—is leading to a reexamination of subsurface rights as well. (After
all, the common law view means that each surface owner holds title to a slice of
the earth’s molten core, with a temperature of 5000º C!)
Accordingly, the vertical dimensions of real property today are far less clear
than they were in common law England. An owner is certainly entitled to the
airspace immediately above his property. For example, a condominium is—in
legal theory—the ownership of a cube of air space, surrounded by walls. Thus,
landowner B may subdivide his land vertically by selling off condominium units
within the airspace just above the surface. Similarly, owner C may sever part of
his subsurface rights by giving a mining company the right to extract the coal just
134
Property A Contemporary Approach
below the surface. But beyond such near-surface situations, the precise upward
and downward limits of real property are now less clear than in the past.
_______________
1. Airspace Rights
The Fifth Amendment to the Constitution provides, in part: “[N]or shall
private property be taken for public use, without just compensation.” So if the
federal government established a post office on land you owned, for example, you
would be entitled to compensation. You will study this process—which is called
eminent domain—in Chapter 12.
The next case examines whether the government effectively “took” part of
the owners’ airspace rights when military planes flew over the land at very low
altitudes during World War II. The right at issue was an easement—a nonpossessory right to use land in the possession or ownership of another person, such
as the right to use a private road across land owned by another. (You will study
easements in depth in Chapter 9.) Here, the plaintiffs claim that the government
took an easement for airplane transit through their airspace (an avigation easement) without their consent.
United States v. Causby
Supreme Court of the United States
328 U.S. 256 (1946)
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a case of first impression. The problem presented is whether respondents’ property was taken within the meaning of the Fifth Amendment by frequent
and regular flights of army and navy aircraft over respondents’ land at low altitudes. The Court of Claims held that there was a taking and entered judgment for
respondent, one judge dissenting. 60 F. Supp. 751....
Respondents own 2.8 acres near an airport outside of Greensboro, North
Carolina. It has on it a dwelling house, and also various outbuildings which were
mainly used for raising chickens. The
See It
end of the airport’s northwest-southeast
runway is 2,220 feet from respondents’
Click here to see a diagram of the
barn and 2,275 feet from their house.
farm involved in Causby.
The path of glide to this runway passes
directly over the property—which is
Chapter 2 Owning Real Property
100 feet wide and 1,200 feet long. The 30 to 1 safe glide angle approved by the
Civil Aeronautics Authority passes over this property at 83 feet, which is 67 feet
above the house, 63 feet above the barn and 18 feet above the highest tree. The
use by the United States of this airport is pursuant to a lease executed in May, 1942,
for a term commencing June 1, 1942 and ending June 30, 1942, with a provision
for renewals until June 30, 1967, or six months after the end of the national emergency, whichever is the earlier.
Various aircraft of the United States use this airport—bombers, transports
and fighters. The direction of the prevailing wind determines when a particular
runway is used. The north-west-southeast runway in question is used about four
per cent of the time in taking off and about seven per cent of the time in landing.
Since the United States began operations in May, 1942, its four-motored heavy
bombers, other planes of the heavier type, and its fighter planes have frequently
passed over respondents’ land buildings in considerable numbers and rather close
together. They come close enough at times to appear barely to miss the tops of the
trees and at times so close to the tops of the trees as to blow the old leaves off. The
noise is startling. And at night the glare from the planes brightly lights up the
place. As a result of the noise, respondents had to give up their chicken business.
As many as six to ten of their chickens were killed in one day by flying into the
walls from fright. The total chickens
lost in that manner was about 150.
What’s That?
Production also fell off. The result was
the destruction of the use of the propThe Court of Claims was a federal
erty as a commercial chicken farm.
court that was established to considRespondents are frequently deprived
er claims for money damages against
of their sleep and the family has
the United States government arising
from the Constitution, a law, a regubecome nervous and frightened….
lation, or a federal contract. Today it
These are the essential facts found by
is known as the United States Court
the Court of Claims. On the basis of
of Federal Claims.
these facts, it found that respondents’
property had depreciated in value. It
held that the United States had taken
an easement over the property on June 1, 1942, and that the value of the property destroyed and the easement taken was $2,000.
The United States relies on the Air Commerce Act of 1926, 44 Stat. 568, 49
U.S.C. § 171 et seq., as amended by the Civil Aeronautics Act of 1938, 52 Stat.
973, 49 U.S.C. § 401 et seq. Under those statutes the United States has “complete
and exclusive national sovereignty in the air space” over this country. 49 U.S.C.
§ 176(a). They grant any citizen of the United States “a public right of freedom
of transit in air commerce through the navigable air space of the United States.”
49 U.S.C. § 403. And “navigable air space” is defined as “airspace above the
minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.” 49
U.S.C. § 180. And it is provided that “such navigable airspace shall be subject to a
135
136
Property A Contemporary Approach
public right of freedom of interstate and foreign air navigation.” Id. It is, therefore,
argued that since these flights were within the minimum safe altitudes of flight
which had been prescribed, they were an exercise of the declared right of travel
through the airspace. The United States concludes that when flights are made
within the navigable airspace without any physical invasion of the property of the
landowners, there has been no taking of property. It says that at most there was
merely incidental damage occurring as a consequence of authorized air navigation.
It also argues that the landowner does not own superadjacent airspace which he
has not subjected to possession by the erection of structures or other occupancy….
It is ancient doctrine that at common law ownership of the land extended to
the periphery of the universe—Cujus est solum ejus est usque ad coelum. But that
doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject
the operator to countless trespass suits. Common sense revolts at the idea. To
recognize such private claims to the airspace would clog these highways, seriously
interfere with their control and development in the public interest, and transfer
into private ownership that to which only the public has a just claim.
But that general principle does not control the present case. For the United
States conceded on oral argument that if the flights over respondents’ property
rendered it uninhabitable, there would be a taking compensable under the Fifth
Amendment. It is the owner’s loss, not the taker’s gain, which is the measure of the
value of the property taken. Market value fairly determined is the normal measure
of the recovery. And that value may reflect the use to which the land could readily be converted, as well as the existing use. If, by reason of the frequency and
altitude of the flights, respondents could not use this land for any purpose, their
loss would be complete. It would be as complete as if the United States had
entered upon the surface of the land and taken exclusive possession of it.
We agree that in those circumstances there would be a taking. Though it
would be only an easement of flight which was taken, that easement, if permanent
and not merely temporary, normally
would be the equivalent of a fee interMake the Connection
est. It would be a definite exercise of
complete dominion and control over
In medieval England, deeds were not
used to transfer title to land. Rather,
the surface of the land. The fact that
title was transferred through an elabthe planes never touched the surface
orate ceremony called feoffment with
would be as irrelevant as the absence in
livery of seisin. This technique became
obsolete in 1677, when the Statute of
this day of the feudal livery of seisin on
Frauds mandated the use of deeds.
the transfer of real estate. The owner’s
You will study deeds in Chapter 8.
right to possess and exploit the land—
that is to say, his beneficial ownership
of it—would be destroyed….
Chapter 2 Owning Real Property
There is no material difference between the supposed case and the present
one, except that here enjoyment and use of the land are not completely destroyed.
But that does not seem to us to be controlling. The path of glide for airplanes
might reduce a valuable factory site to grazing land, an orchard to a vegetable
patch, a residential section to a wheat field. Some value would remain. But the use
of the airspace immediately above the land would limit the utility of the land and
cause a diminution in its value….
We have said that the airspace is a public highway. Yet it is obvious that if the
landowner is to have full enjoyment of the land, he must have exclusive control of
the immediate reaches of the enveloping atmosphere. Otherwise buildings could
not be erected, trees could not be planted, and even fences could not be run. The
principle is recognized when the law gives a remedy in case overhanging structures
are erected on adjoining land. The landowner owns at least as much of the space
above the ground as he can occupy or use in connection with the land. See Hinman v. Pacific Air Transport, 9 Cir., 84 F.2d 755. The fact that he does not occupy
it in a physical sense—by the erection of buildings and the like—is not material.
As we have said, the flight of airplanes, which skim the surface but do not touch
it, is as much an appropriation of the use of the land as a more conventional entry
upon it. We would not doubt that if the United States erected an elevated railway
over respondents’ land at the precise altitude where its planes now fly, there would
be a partial taking, even though none of the supports of the structure rested on
the land. The reason is that there would be an intrusion so immediate and direct
as to subtract from the owner’s full enjoyment of the property and to limit his
exploitation of it. While the owner does not in any physical manner occupy that
stratum of airspace or make use of it in the conventional sense, he does use it in
somewhat the same sense that space left between buildings for the purpose of
light and air is used. The superadjacent airspace at this low altitude is so close to
the land that continuous invasions of it affect the use of the surface of the land
itself. We think that the landowner, as an incident to his ownership, has a claim
to it and that invasions of it are in the same category as invasions of the surface….
The airplane is part of the modern environment of life, and the inconveniences
which it causes are normally not compensable under the Fifth Amendment. The
airspace, apart from the immediate reaches above the land, is part of the public
domain. We need not determine at this time what those precise limits are. Flights
over private land are not a taking, unless they are so low and so frequent as to
be a direct and immediate interference with the enjoyment and use of the land.
We need not speculate on that phase of the present case. For the findings of the
Court of Claims plainly establish that there was a diminution in value of the
property and that the frequent, low-level flights were the direct and immediate
cause. We agree with the Court of Claims that a servitude has been imposed upon
the land….
137
Property A Contemporary Approach
138
MR. JUSTICE BLACK, dissenting.
…It is inconceivable to me that the Constitution guarantees that the airspace
of this Nation needed for air navigation is owned by the particular persons who
happen to own the land beneath to the same degree as they own the surface
below. No rigid constitutional rule, in my judgment, commands that the air must
be considered as marked off into separate compartments by imaginary metes and
bounds in order to synchronize air ownership with land ownership. I think that
the Constitution entrusts Congress with full power to control all navigable airspace. Congress has already acted under that power….
No greater confusion could be brought about in the coming age of air transportation than that which would result were courts by constitutional interpretation to hamper Congress in its efforts to keep the air free. Old concepts of private
ownership of land should not be introduced into the field of air regulation. I have
no doubt that Congress will, if not handicapped by judicial interpretations of the
Constitution, preserve the freedom of the air, and at the same time, satisfy the just
claims of aggrieved persons. The noise of newer, larger, and more powerful planes
may grow louder and louder and disturb people more and more. But the solution
of the problems precipitated by these technological advances and new ways of
living cannot come about through the application of rigid constitutional restraints
formulated and enforced by the courts. What adjustments may have to be made,
only the future can reveal. It seems certain, however, the courts do not possess the
techniques or the personnel to consider and act upon the complex combinations
of factors entering into the problems….
_______________
Points for Discussion
a. How High?
The majority states that a landowner “owns at least as much of the space
above the ground as he can occupy or use in connection with the land.” What
is the source of this rule? Under this approach, how far upward do the surface
owner’s rights extend? One question is whether we measure the upper limit of an
owner’s airspace by facts applicable only to that owner or to owners in general.
For example, if A owns a 50-story office building, are her airspace rights different
from those of B, who owns a single-story house? Another issue is whether the
upward boundary of airspace rights can change over time as social and economic
conditions evolve.
Chapter 2 Owning Real Property
b. Other Approaches to Airspace Rights
In addition to the approach adopted by the Causby majority, two other standards have been suggested: (1) the surface owner holds title upward only to a
fixed height, usually 500 feet (typically the minimum altitude for aircraft flight
under federal law); or (2) the surface owner’s title extends infinitely upward to
the “heavens,” but aircraft have an easement to travel through this zone. Which
approach is best?
c. A Dissenting View
Dissenting, Justice Black argues that the Court should not introduce “[o]ld
concepts of private ownership of land” into airspace regulation. Is he suggesting
that a landowner should have no right at all to exclude airplanes from entering the
airspace over her land? If so, why?
d. Value of Airspace
Airspace rights may be quite valuable, especially in metropolitan areas. For
example, Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)
involved a 50-year lease of airspace rights over Grand Central Terminal in New
York City valued at more than $150,000,000. You will study Penn Central—a
landmark decision—in Chapter 13. In contrast, the value of airspace over most
of the land surface of the United States is quite small.
e. Toward a Better Rule
Given the pace of technological change, what legal standard should govern
property rights in airspace? In framing your answer, consider two recent developments. First, the world is witnessing a boom in the construction of skyscrapers, as
new technologies make it possible to construct higher and higher buildings. The
tallest building in the world is the new Burj Khalifa in Dubai which reaches 2,723
feet, while a skyscraper proposed for Saudi Arabia—the “Mile High Tower”—
would be even higher. Accordingly, we can anticipate that the height of buildings
in the United States will continue to increase as well. Second, new nonstructural
uses for airspace are beginning to appear. One inventor has received a patent
on a lighter-than-air wind turbine to produce electricity; the turbine would be
mounted on a blimp floating about 1,000 feet above the surface, and connected to
the surface with a long tether. Airborne Wind Turbines, N.Y. Times Magazine, Dec.
9, 2007. Does the majority’s rule adequately address these new technologies?
f. Other Legal Controls on Airports
Today most municipalities mitigate the Causby problem through land use
regulation, typically by restricting the height of structures located near airplane
flight paths. Courts have uniformly upheld such restrictions against constitutional
139
140
Property A Contemporary Approach
attack. Alternatively, low altitude flights might trigger nuisance liability under the
standards discussed in Chapter 1. In fact, should the Causby court have based
its decision on nuisance law, since the main problem was noise? What are the
advantages and disadvantages of addressing airplane noise as a nuisance rather
than a trespass? g. Airspace Hypotheticals
How would these hypotheticals be resolved under the majority’s view of airspace rights?
(1) A hires a company to spray a chemical into the clouds 1,000 feet over
B’s land in order to prevent them from producing rain when they float over A’s
land, because this would harm A’s mature wheat crop. B, whose young crops
need water, argues that the spraying violated his airspace rights because he
lost the rain these clouds would have produced over his land.
(2) C is erecting a high-rise office building on land next to D’s house.
Temporary construction scaffolding on the 20th floor of C’s building intrudes
3 feet into the airspace above D’s land. D objects.
_______________
2. Subsurface Rights
A plans to install a fiber optic cable for electronic data that will pass 100 feet
below the land surface owned by B. Under the traditional common law view, B’s
title extended downward to the center of the earth, so B could exclude A’s cable.
But how far down do B’s rights go under modern law?
Perspective and Analysis
…For decades, the American legal system has answered this question with
the solemn assurance that a landowner’s title extends to everything between the
land surface and the center of the planet….
This Article demonstrates that the center of the earth approach is mere poetic
hyperbole, not law. Indeed, the law of subsurface ownership is so confused that
it is impossible to know how deep property rights extend. Accordingly, this
Article proposes a new subsurface ownership model that strikes an appropriate
balance between the legitimate interests of the surface owner and the needs of
society in general….
Chapter 2 Owning Real Property
[T]he center of the earth theory has never been binding law. In cases
involving underground uses within one hundred feet or so of the surface—such
as disputes about building foundations or tree roots—courts have routinely
recognized the surface owner’s title. Beyond this point, however, the law is
inconsistent at best. Broadly speaking, the deeper the disputed region, the less
likely courts are to rely on the center of the earth theory….
John G. Sprankling, Owning the Center of the Earth, 55 UCLA L. Rev.
979, 980-82 (2008).
_______________
Our next case involves the Lima, Ohio plant of BP Chemicals, Inc. which
produced acrylonitrile, a chemical used in the manufacture of products such as
clear plastic wrap and plastic car parts. Over the course of 20 years—with the
approval of the federal Environmental Protection Agency—BP disposed of almost
four billion gallons of acrylonitrile-contaminated water by injecting it through
wells into rock formations deep below the earth’s surface. Acrylonitrile is recognized as a carcinogen: it is capable of causing cancer in humans after prolonged
exposure. In 1991, when the case began, this plant was the largest polluter in
Ohio according to EPA statistics. Assuming that these liquid wastes migrated into
the subsurface below lands belonging to other owners, did a trespass occur?
Chance v. BP Chemicals, Inc.
Supreme Court of Ohio
670 N.E.2d 985 (1996)
ALICE ROBIE RESNICK, J.
This litigation commenced on July 17, 1991, when the named plaintiffs-appellants, Rose M. Chance, Eliza Avery, and Bessie Shadwick, filed a complaint in the
Court of Common Pleas of Cuyahoga
County on behalf of those whose interSee It
ests in real property had allegedly been
injured by the described operation of
Click here to see modern pictures of
the BP Chemicals plant involved in
a chemical refining plant operated by
Chance.
defendant-appellee BP Chemicals, Inc.
in Lima, Ohio. Appellants’ claims
focused on appellee’s practice of disposing of hazardous waste byproducts from the manufacture of industrial chemicals through the use of “deepwell” injection technology. Appellants in essence
141
142
Property A Contemporary Approach
claimed that the “injectate” placed under the surface of appellee’s property by
appellee had laterally migrated to be below the surface of appellants’ properties
and that the migration violated their rights as property owners.
Appellants sought recovery for trespass, nuisance, negligence, strict liability,
and fraudulent concealment. The complaint prayed for one billion dollars in general and punitive damages and included a request for injunctive relief….
Trial commenced on November 3, 1993, and a jury was seated. Testifying
for appellants were property owners who were concerned about the possible
presence of the injectate under their properties. Appellants’ key expert was a
hydrogeologist who had developed a model to determine the extent the injectate had laterally migrated away from appellee’s property. On cross-examination,
appellee’s attorney challenged the expert’s model as inaccurate. The witness in
turn explained the reasoning behind decisions he had made in setting up his
model, and also criticized the model on extent of migration developed by appellee’s expert. In particular, appellants’ witness did not accept the accuracy of data
obtained by appellee through its use of a test well to monitor the site, and so did
not incorporate that site-specific data into his model.
At the close of appellants’ case in chief, the trial court granted appellee’s
motion for directed verdicts as to appellants’ claims of ultrahazardous activity,
fraud, and nuisance. The trial court thus limited the case to appellants’ trespass
claim….
Appellee’s presentation of its case included testimony of a geological engineer
on the permeability and porosity of the substrata into which the injecting was
done. This geological engineer’s testimony explained why, in his opinion, appellee’s site in Lima was suited to deepwell injection. Several impermeable (or barely
permeable) layers of rock contained
the injectate in the relatively permeSee It
able and porous, mostly sandstone
injection zone in the Eau Claire geoClick here to see a diagram showing
how BP’s injection wells functioned.
logic formation (beginning at a depth
of approximately 2,430 feet) and the
Mt. Simon formation (beginning at
a depth of approximately 2,813 feet). The geological engineer testified that in
his opinion the injectate was safely contained in the injection zone. On crossexamination, appellants’ attorney observed that the real issue was the extent of
lateral migration of the injectate, so that the witness’s testimony that the injectate
had not migrated upward was irrelevant to appellants’ trespass claim.
Another of appellee’s expert witnesses was a hydrogeologist who had developed his own model of the extent of lateral migration. This witness was critical of
Chapter 2 Owning Real Property
the model developed by appellants’ expert and of appellants’ expert’s view of the
extent of lateral migration, opining that appellants’ expert had erred by failing to
take into account available site-specific data in developing his model….
On November 18, 1993, the jury returned a general verdict in favor of appellee on the trespass claim and answered ten interrogatories. [The jury found,
among other things,] (1) that the injectate was more than 2,600 feet below the
surface of the earth; (2) that the model of appellee’s expert best described the
extent of its migration; (3) that appellants did not prove by a preponderance
What’s That?
of the evidence that appellee had
unreasonably interfered with the
A general verdict is a verdict by which
named plaintiffs’ use of their properthe jury simply finds in favor of one
party, without resolving specific
ties; (4) that the named plaintiffs did
factual questions. In many states,
not prove by a preponderance of the
a jury may be asked to answer speevidence that the deepwells had caused
cific questions or interrogatories to
any actual and substantial damage to
supplement a general verdict, which
is what happened here.
their properties…; …(7) that no trespass as to the property owners had
occurred, assuming portions of the
injectate had migrated into the native brine flowing through the Eau Claire and
Mt. Simon formations located more than one-half mile below the surface of their
properties;….
This case presents unique questions surrounding the process of deepwell
disposal of wastes. We stress at the outset that, because appellee’s operation of the
wells is authorized by the relevant regulating bodies, this case does not involve the
general propriety of deepwell waste injection….
Our agreement with the conclusions reached by the court of appeals on
[most issues in the case] leaves appellants’ trespass claim as the principal issue
to be resolved. Trespass is an unlawful entry upon the property of another. See
Keesecker v. G.M. McKelvey Co. (1943), 141 Ohio St. 162, 166, 47 N.E.2d 211,
214. In order to address the trespass issue, we first must examine the extent of the
property interest owned by appellants involved here….
Appellants argue in their Proposition of Law No. 1 that “[t]he owner of land
has absolute ownership of all the subsurface property.” If this proposition is correct, then as one of the incidents of absolute ownership, appellants have the right
to exclude others. Appellants claim that while this court has recognized some
limitations on absolute ownership of air rights by surface property owners, no
such limitation exists on ownership of subsurface property rights by surface owners.
143
144
Property A Contemporary Approach
Appellants’ argument implicates the ancient Latin maxim cujus est solum, ejus
est usque ad coelum et ad inferos, defined in Black’s Law Dictionary (6 Ed. 1990)
378, as “[t]o whomsoever the soil belongs, he owns also to the sky and to the
depths. The owner of a piece of land owns everything above and below it to
an indefinite extent.” In Winton v. Cornish (1832), 5 Ohio 477, 478, this court
appeared to adopt the position illustrated by that maxim, stating, “The word land
includes not only the face of the earth, but everything under it or over it. He who
owns a piece of land, therefore, is the owner of everything underneath in a direct
line to the center of the earth and everything above to the heavens.”
In Willoughby Hills v. Corrigan (1972), 29 Ohio St.2d 39, 49, 278 N.E.2d
658, 664, this court, citing the United States Supreme Court in United States v.
Causby (1946), 328 U.S. 256, stated that “the doctrine of the common law, that
the ownership of land extends to the periphery of the universe, has no place in the
modern world.” The court in Willoughby Hills, 29 Ohio St.2d at 50, 278 N.E.2d at
665, quoted from Hinman v. Pacific Air Transp. (C.A.9, 1936), 84 F.2d 755, 758:
“‘We own so much of the space above the ground as we can occupy or make use
of, in connection with the enjoyment of our land. This right is not fixed. It varies
with our varying needs and is coextensive with them. The owner of land owns as
much of the space above him as he uses, but only so long as he uses it.’”
Appellee claims that injectate is placed into the native brine in the Mt. Simon
and Eau Claire formations, and that the native brine waters are “waters of the
state” under R.C. 6111.01(H), and therefore are exclusively regulated by the state
of Ohio. Appellee argues that the court of appeals correctly found that appellants
have no possessory interest in these
waters, and further argues that the
Make the Connection
alleged presence of injectate does not,
as a matter of law, infringe any property
In some jurisdictions, underground
water is considered to be property
right of appellants. To the extent that
owned by the state, not by the owner
appellee appears to be arguing that the
of the land surface. You will study
way the injectate disperses into the
different approaches to property
rights in groundwater later in this
native brine serves to insulate appellee
chapter.
from all liability in all circumstances,
we reject appellee’s contention. The
native brine exists naturally in the
porous sandstone into which the injecting is done. The injectate displaces and
mixes with the brine in the injection zone. Appellants have a property interest in
the rock into which the injectate is placed, albeit a potentially limited one,
depending on whether appellants’ ownership rights are absolute. If appellee’s act
of placing the injectate into the rock interferes with appellants’ reasonable and
foreseeable use of their properties, appellee could be liable regardless of the way
the injectate mixes with the native brine.
Chapter 2 Owning Real Property
Our analysis above concerning the native brine illustrates that appellants do
not enjoy absolute ownership of waters of the state below their properties, and
therefore underscores that their subsurface ownership rights are limited. As the
discussion in Willoughby Hills makes evident, ownership rights in today’s world
are not so clear-cut as they were before the advent of airplanes and injection wells.
Consequently, we do not accept appellants’ assertion of absolute ownership
of everything below the surface of their properties. Just as a property owner must
accept some limitations on the ownership rights extending above the surface of
the property, we find that there are also limitations on property owners’ subsurface rights. We therefore extend the reasoning of Willoughby Hills, that absolute
ownership of air rights is a doctrine which “has no place in the modern world,” to
apply as well to ownership of subsurface rights. Furthermore, as we will discuss
below regarding other considerations in this case, given the unique facts here
we find that appellants’ subsurface rights in their properties include the right to
exclude invasions of the subsurface property that actually interfere with appellants’ reasonable and foreseeable use of the subsurface.
Having determined that appellants’ subsurface rights are not absolute, we
must determine whether appellants proved an actionable trespass given the facts
of this case….
As discussed previously, the actual location of the injectate was vigorously
contested by the parties throughout the litigation, with each side’s experts testifying
as to the models developed to illustrate the extent of the migration. The parties’
experts disagreed as to the permeability and porosity of the rocks into which the
injecting is done. Permeability and porosity are two factors upon which the models
were based that would affect the extent of the lateral migration of the injectate….
Another variable that figures in the equation involving lateral migration and
the location of the injectate is the concentration of the injectate at any given point
in the substrata as it intermixes with the native brine. As the injectate diffuses
into the brine, its concentration decreases as the distance from the injection point
increases. Therefore it is theoretically impossible to define an absolute perimeter
on the extent of lateral migration, since any statement on the extent of migration
must be in terms of a particular concentration level at that perimeter….
All of these and more disputed variables went into the construction of the
hypothetical models that attempted to illustrate the lateral extent of the migration.
Given all these variables, there were great difficulties in appellants’ establishing, as
a factual matter, that a property invasion had occurred, so that appellants’ claim
must be regarded as somewhat speculative.
Appellants in essence argue that through its rulings, the trial court mistakenly
imposed a requirement that they prove “actual” damages as an element of their
145
146
Property A Contemporary Approach
trespass claim. Appellants argue that damages can be presumed in every case of
trespass, and given that the bifurcation order left damages to be quantified at a
future time, the trial court erred in requiring proof of any damages at all, much
less of “actual” ones. We do not accept appellants’ argument in this regard in the
specific circumstances of this case, but find that some type of physical damages
or interference with use must be shown in an indirect invasion situation such as
this. Even assuming that the injectate had laterally migrated to be in an offending
concentration under some of the appellants’ properties, we find that some type
of physical damages or interference with use must have been demonstrated for
appellants to recover for a trespass….
We find that appellants, given all the factors present in this case, did not,
as a matter of law, establish an unlawful entry on their properties by appellee.
Our ultimate conclusion that appellants did not prove an actionable trespass is
dictated by considering the sum total of the circumstances of this case, as we
have done in our foregoing discussion. Appellee operates the wells pursuant to
required permits; appellants’ subsurface property rights are not absolute and in
these circumstances are contingent upon interference with the reasonable and
foreseeable use of the properties; the trespass alleged is an indirect one and, due to
the type of invasion alleged, physical damage or actual interference with the reasonable and foreseeable use of the properties must be demonstrated; appellants’
trespass claim is a novel one, of a type previously unrecognized by any court.
When all of the circumstances of this case are considered, appellants’ evidence of
trespass was simply too speculative….
For all the foregoing reasons, the judgment of the court of appeals is affirmed.
_______________
Points for Discussion
a. The Scope of Subsurface Rights
The Chance court rejects the common law view that the surface owner’s absolute title extends to the center of the earth. What are the policy arguments for and
against the court’s approach? After this case, how far downward does the surface
owner’s title extend in Ohio? Because property rights are generally defined by
state law, the depth of subsurface ownership may differ in other states. Does this
state-by-state variation pose any difficulties?
b. Interference with Reasonable and Foreseeable Use
Consider the meaning of the court’s statement that a landowner has a right to
exclude invasions only if they “actually interfere” with the owner’s “reasonable and
foreseeable use of the subsurface.” What does this mean? How likely is it that a
Chapter 2 Owning Real Property
surface owner will be able to meet this test? In Boehringer v. Montalto, 254 N.Y.S.
276, 278 (Sup. Ct. 1931), the court held that “the title of an owner of the soil
will not be extended to a depth below ground beyond which the owner may not
reasonably make use thereof.” Accordingly, it suggested that a public sewer line
buried 150 feet deep did not violate the surface owner’s property rights.
c. Jacque Revisited
In Jacque v. Steenberg Homes, Inc. (Chapter 1), the Wisconsin Supreme Court
found trespass liability even though the Jacques’ property had not been damaged.
But the Chance court required proof of “some type of physical damages or interference with use” before the plaintiffs could recover in trespass. What explains this
difference? Note that the jury foreman in Chance told a Cleveland newspaper
that the evidence “showed that the injected liquids have migrated under [the
plaintiffs’] residential properties but present no harm.” Jury Says BP Waste Disposal
Does No Harm, Plain Dealer, Nov. 19, 1993. Were the plaintiffs harmed?
d. Chance It
Using the Chance standard, has a trespass occurred in the following situations?
(1) City builds and operates a subway tunnel that runs 300 feet below
A’s house. There is no vibration or other physical indication of the subway’s
presence that can be detected by anyone on the land surface. A has no plans
to use his subsurface.
(2) B designates his subsurface land as a “nature preserve,” noting that it
is a pristine natural area akin to a wilderness. Two years later, C injects salt
water two miles underneath her land in order to create subsurface pressure
that enhances production from her oil wells, a common procedure in oil
fields. Some of the salt water migrates laterally underneath B’s land, destroying an indigenous species of bacteria.
(3) D installs a television cable that passes 50 feet below the land surface
owned by E and others. E hopes to build a 6-story office building on his
land. The planned underground parking garage for the building will extend
20 feet below the surface. Because the project is still in its preliminary stage,
E does not yet know how deep the excavations for the parking garage will be.
e. Mitigating Global Climate Change
Carbon sequestration is a technique for mitigating the impact of climate change
by removing carbon dioxide from the air, and then injecting it underground a mile
147
148
Property A Contemporary Approach
or two deep for long-term storage. The U.S. Department of Energy estimates that
the area of contamination from an injection of one million tons of carbon dioxide
each year over 20 years might spread 15 square miles or more. Assume that you
are an attorney for a new corporation that hopes to enter the carbon sequestration business. If your client buys a 10-acre parcel in Ohio and begins injecting
carbon dioxide underground—knowing that it will migrate laterally underneath
the lands of nearby owners—will Chance protect your client from trespass liability? Alternatively, in a state where the surface owner’s absolute title is viewed as
extending to the center of the earth, how likely is it that your client can purchase
all the properties in a 15-square mile area in order to avoid liability?
_______________
C. Water Law
A drills a new well on his 500-acre estate in order to provide more irrigation
water for his prize-winning rose garden. But he removes so much water that B’s
nearby well runs dry; B must now use trucks to haul in water for his thirsty cattle.
Is A liable?
Mark Twain once (allegedly) remarked that “in the west, whiskey is for
drinkin’ and water is for fightin’.” The reason is simple: water is vital for the
productive use of land. Due to the geography of the United States, water tends to
be scarce in the west and plentiful in the east. This difference profoundly influenced the laws governing rights in surface water, such as lakes, rivers, streams and
other watercourses. Three main approaches are used:
• Riparian system: Eastern states generally adopted this
system, which assigns water rights to each landowner
whose property adjoins a watercourse. Over time, most
states following this view also adopted the reasonable use
doctrine, which allows a riparian owner to take water for
reasonable uses on her land, but not to unreasonably
interfere with the uses of other riparian owners.
• Prior appropriation system: Under this system, followed
by many western states, the location of the owner’s land
is irrelevant; instead, water rights are allocated to the
first person to divert the water for beneficial use. This
requirement ensures that an appropriator will not abuse her
water rights, serving the same function as the reasonable
use doctrine in riparian states.
Chapter 2 Owning Real Property
• Permit system: Today many states require a permit for the
diversion of surface water, so the government effectively
regulates the amount of water that may be withdrawn.
The law governing rights in groundwater, however, developed quite differently. Groundwater is underground, dispersed water that percolates through
permeable subsurface layers—in other words, the type of water usually produced
by a well. In nineteenth-century England, blessed with plentiful surface water,
groundwater was thought to be a minor and unreliable water source. Accordingly,
England adopted the absolute ownership rule or rule of capture, by which the owner
of the land surface could remove as much groundwater as he wished, even if this
process caused severe injury to his neighbors. American courts generally adopted
the absolute ownership approach, only to abandon it during the twentieth century when its consequences proved to be too harsh. Today, almost all states follow
one of three approaches to groundwater ownership:
• Reasonable use approach: The dominant view is that a
surface owner may use groundwater only for a reasonable
use on the overlying land.
• Correlative rights: The surface owner is entitled to a
proportional share of the groundwater beneath his land.
• Permit system: Title to groundwater is vested in the state, so
the surface owner can obtain water rights only by securing
a permit.
Unlike the absolute ownership rule, all three modern approaches effectively
prevent any one landowner from injuring other owners by withdrawing too much
groundwater.
Our next case examines rights to groundwater in connection with the bottled
water industry. The largest producer of bottled water in the United States is Nestle
Waters of North America, whose regional brands have about one-third of the
market. One of its brands is Ozarka Natural Spring Water Company, which sells
bottled water in Arkansas, Kansas, Mississippi, Missouri, Texas, and other nearby
states. Founded in 1905, Ozarka originally obtained all of its water from a spring
in Arkansas. But it eventually began using water from Texas.
149
150
Property A Contemporary Approach
Sipriano v. Great Spring Waters of America, Inc.
Supreme Court of Texas
1 S.W.3d 75 (1999)
Justice ENOCH delivered the opinion for a unanimous Court.
For over ninety years, this Court has adhered to the common-law rule of capture in allocating the respective rights and liabilities of neighboring landowners for
use of groundwater flowing beneath their property. The rule of capture essentially
allows, with some limited exceptions, a landowner to pump as much groundwater
as the landowner chooses, without liability to neighbors who claim that the pumping has depleted their wells. We are asked today whether Texas should abandon this
rule for the rule of reasonable use, which would limit the common-law right of a
surface owner to take water from a common reservoir by imposing liability on landowners who “unreasonably” use groundwater to their neighbors’ detriment. Relying
on the settled rule of capture, the trial court granted summary judgment against
landowners who sued a bottled-water company for negligently draining their water
wells. The court of appeals affirmed. Because we conclude that the sweeping change
to Texas’s groundwater law Sipriano urges this Court to make is not appropriate at
this time, we affirm the court of appeals’ judgment.
Henderson County landowners Bart Sipriano, Harold Fain, and Doris Fain
(Sipriano) sued Great Spring Waters of America, Inc., a/k/a Ozarka Natural Spring
Water Co., for negligently draining
their water wells. According to SipriSee It
ano’s allegations, which we take as
true for summary judgment purposes,
Click here to see sample bottles of
Ozarka, in 1996, began pumping
Ozarka water.
about 90,000 gallons of groundwater per day, seven days a week, from
land near Sipriano’s. Soon after the
pumping began, Sipriano’s wells were severely depleted. Sipriano sought injunctive relief, as well as actual and punitive damages for Ozarka’s alleged nuisance,
negligence, gross negligence, and malice.
Ozarka moved for summary judgment, asserting that Texas does not recognize Sipriano’s claims because Texas follows the rule of capture….[The trial
court granted summary judgment for Ozarka, which was affirmed by the court
of appeals.]
This Court adopted the common-law rule of capture in 1904 in Houston &
Texas Central Railway Co. v. East [98 Tex. 146, 81 S.W. 279]. The rule of capture
answers the question of what remedies, if any, a neighbor has against a landowner
Chapter 2 Owning Real Property
based on the landowner’s use of the water under the landowner’s land. Essentially,
the rule provides that, absent malice or willful waste, landowners have the right
to take all the water they can capture under their land and do with it what they
please, and they will not be liable to neighbors even if in so doing they deprive
their neighbors of the water’s use….
In East, this Court faced a choice between the rule of capture and its counterpart, the rule of reasonable use. No constitutional or statutory considerations
guided or constrained our selection at that time. Articulating two public-policy
reasons, we chose the rule of capture. First, we noted that the movement of
groundwater is “so secret, occult, and concealed that an attempt to administer
any set of legal rules in respect to [it] would be involved in hopeless uncertainty,
and would, therefore, be practically impossible.” [East, 81 S.W. at 281 (quoting
Frazier v. Brown, 12 Ohio St. 294, 311 (1861)).] And second, we determined that
“any…recognition of correlative rights would interfere, to the material detriment
of the commonwealth, with drainage and agriculture, mining, the construction
of highways and railroads, with sanitary regulations, building, and the general
progress of improvement in works of embellishment and utility.” [Id.]…
After droughts in 1910 and 1917, the citizens of Texas voted in August 1917
to enact section 59 of article 16 of the Texas Constitution, which placed the duty
to preserve Texas’s natural resources on the State:
The conservation and development of all of the natural resources of this State…and
the preservation and conservation of all such natural resources of the State are each
and all hereby declared public rights and duties; and the Legislature shall pass all
such laws as may be appropriate thereto.
This constitutional amendment, proposed and passed after our common-law
decision in East, made clear that in Texas, responsibility for the regulation of
natural resources, including groundwater, rests in the hands of the Legislature….
Now, Sipriano asks us to fundamentally alter the common-law framework
within which Texas has operated since the 1904 East decision. That common-law
framework existed in 1917 when the citizens of Texas charged the Legislature
with the constitutional duty to preserve groundwater through regulation….
With the allocation of responsibility for groundwater regulation contemplated by the 1917 amendment in mind, it is important that this case comes to
us on the heels of Senate Bill 1, which has been described as a “comprehensive
water management bill.” Passed in June 1997, Senate Bill 1 revamped significant parts of the Water Code and other Texas statutes in an attempt to improve
on this State’s water management. Perhaps most relevant to our decision today
is the Legislature’s efforts to streamline the process for creating groundwater
151
152
Property A Contemporary Approach
conservation districts and to make them more effective in the water management
process. Indeed, the Legislature expressly stated that “[g]roundwater conservation
districts…are the state’s preferred method of groundwater management.” [Tex.
Water Code § 36.0015.]
The Legislature first exercised its constitutional authority to create groundwater conservation districts in 1949. And since then the Legislature has repeatedly
revisited and modified the operation of groundwater conservation districts. Now,
with Senate Bill 1, the Legislature has given more authority to locally-controlled
groundwater conservation districts for establishing requirements for groundwater
withdrawal permits and for regulating water transferred outside the district. Senate Bill 1 also revised the “critical area” designation process to require the Texas
Natural Resource Conservation Commission and the Texas Water Development
Board to identify areas anticipated to experience critical groundwater problems,
and streamlined the process by which the TNRCC or the Legislature can create a
district in these areas. Senate Bill 1 also included various provisions calling for
more comprehensive and coordinated water planning. While the efficacy of the
groundwater management methods the Legislature chose and implemented
through Senate Bill 1 has been a matter of considerable debate, as the amicus briefs
filed in this case reflect, we cannot say at this time that the Legislature has ignored
its constitutional charge to regulate this natural resource….
We do not shy away from change when it is appropriate. We continue to believe
that “the genius of the common law rests in its ability to change, to recognize when a
timeworn rule no longer serves the needs of society, and to modify the rule accordingly.” [Gutierrez v. Collins, 583 S.W.2d
312, 317 (Tex. 1979).] And Sipriano
Food for Thought
presents compelling reasons for
What “compelling reasons” for regugroundwater use to be regulated. But
lating groundwater do you suppose
unlike in East, any modification of the
Sipriano presented? Is the court
common law would have to be guided
suggesting that the rule of capture is
obsolete, a “timeworn rule [that] no
and constrained by constitutional and
longer serves the needs of society”? If
statutory considerations. Given the
so, should the court have changed it?
Legislature’s recent efforts to regulate
groundwater, we are not persuaded that
it is appropriate today for this Court to
insert itself into the regulatory mix by substituting the rule of reasonable use for the
current rule of capture. Accordingly, we affirm the court of appeals’ judgment.
Justice HECHT…concurring.
The people of Texas have given the Legislature, in article XVI, section 59 of
the Texas Constitution, not only the power but the duty to “pass all such laws
Chapter 2 Owning Real Property
as may be appropriate” for the conservation, development, and preservation of
the State’s natural resources, including its groundwater. The Legislature has concluded that local “[g]roundwater conservation districts…are the state’s preferred
method of groundwater management.” [Tex. Water Code § 36.0015.] Actually,
such districts are not just the preferred method of groundwater management, they
are the only method presently available. Yet in the fifty years since the Legislature
first authorized the creation of groundwater conservation districts, the record in
this case shows that only some forty-two such districts have been created, covering a small fraction of the State. Not much groundwater management is going on.
The reason is not lack of groundwater. Twenty-nine aquifers underlie eightyone percent of the State. Nor is the reason lack of use. In 1992, groundwater
sources supplied fifty-six percent of all water used in the State, including sixtynine percent of agricultural needs and forty-one percent of municipal needs. Nor
is the reason lack of need of management. Over twenty-five years ago the Texas
Senate’s Interim Committee on Environmental Affairs warned of severe, impending problems with municipal groundwater use and called for comprehensive regulation. The predicted problems have in fact occurred. The comprehensive revision
of the Water Code in 1997 was motivated by what the Lieutenant Governor’s
general counsel has called “the seriousness of the situation”: recurring droughts,
expansive population growth, and dwindling water supplies.
What really hampers groundwater management is the established alternative, the common law rule of capture, which entitles a landowner to withdraw
an unlimited amount of groundwater for any purpose other than willful waste or
malice, and as long as he is not negligent in causing subsidence of nearby property. When this Court adopted the rule of capture as a common-law rule ninetyfive years ago in Houston & Texas Central Railway. Co. v. East, we believed it to
have been adopted in England and by the court of last resort in every state in this
country except New Hampshire. Thirty-five years later only eleven of the eighteen
western states still followed the rule of capture; after two more decades, only three
western states still followed the rule. Now there is but one lone holdout: Texas….
Neither respondent nor any of the more than a dozen amici curiae who have
appeared in support of respondent’s position attempt a principled argument for
retaining the rule of capture. They focus instead on pragmatics. First, they say, the
rule should not be abandoned because it has been the rule for a long time. The
oft-cited wisdom of Justice Holmes is sufficient to rebut this argument:
It is revolting to have no better reason for a rule of law than that so it was laid down
in the time of Henry IV. It is still more revolting if the grounds upon which it was laid
down have vanished long since, and the rule simply persists from blind imitation of
the past.
[Oliver Wendell Holmes, Jr, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).]
153
154
Property A Contemporary Approach
…Finally, respondent argues that water regulation is the Legislature’s responsibility under the Constitution, and that the Court should not venture into the
area. I agree that this argument has merit, at least since 1917 when article XVI,
section 59 was adopted, but it comes ninety-five years too late: the Court entered
the area of water regulation in East when it adopted the rule of capture. Does the
Court intrude on the Legislature’s constitutional responsibility and duty by maintaining the rule of capture or by abandoning it? It is hard to see how maintaining
the rule of capture can be justified as deference to the Legislature’s constitutional
province when the rule is contrary to the local regulation that is the Legislature’s
“preferred method of groundwater management.”
…Nevertheless, I am persuaded for the time being that the extensive statutory changes in 1997, together with the increasing demands on the State’s water
supply, may result before long in a fair, effective, and comprehensive regulation of
water use that will make the rule of capture obsolete. I agree with the Court that
it would be inappropriate to disrupt the processes created and encouraged by the
1997 legislation before they have had a chance to work. I concur in the view that,
for now—but I think only for now—East should not be overruled.
_______________
Points for Discussion
a. Competing Groundwater Theories
Why did states originally adopt the rule of capture for groundwater ownership? Your study of Pierson v. Post (Chapter 1) may be helpful here. Is groundwater like a wild fox? Under today’s conditions, what are the advantages and
disadvantages of (1) the rule of capture and (2) the reasonable use approach, as
applied to groundwater?
b. Henry IV and Legal Reform
The Holmes passage quoted in the concurring opinion is frequently cited by
advocates seeking to change existing law. It reflects a fundamental assumption
of our legal system: law is based on reason. Thus, when the reason for a rule no
longer exists, the rule itself must fall. But if we assume that the stability of property rights is desirable (for example, to encourage investment), should this be a
sufficient reason to keep an existing rule even if the original reasons are obsolete?
For instance, if Ozarka and others invested in good faith reliance on existing Texas
law by purchasing land and installing pumping equipment, should this be a basis
for retaining the rule of capture?
Chapter 2 Owning Real Property
c. Deference to the Legislature
In Cline v. American Aggregates Corp., 474 N.E.2d 324 (Ohio 1984), the Ohio
Supreme Court abandoned the rule of capture in favor of the reasonable use standard. A concurring justice noted that judicial action on the question was necessary because “our legislators have not acted.” In contrast, while the Sipriano court
found “compelling reasons for groundwater use to be regulated,” it concluded that
this change should be made by the state legislature. Which approach is better?
d. Negative Externalities
Law and economics scholars approach the dilemma of conflicting land uses
with the concept of negative externalities. Before purchasing its Henderson County
land, Ozarka presumably weighed the benefits and costs of the planned project,
and decided to proceed. But it did not consider the effect that its project would
have on neighbors like Sipriano, because it was insulated from liability by the rule
of capture. The impact on Sipriano is a negative externality—a cost that is not
considered in the decision-making process. Law and economics theorists argue
that efficiency is maximized if a landowner such as Ozarka is required to internalize such costs—that is, to consider them in the decision-making process. You will
learn more about negative externalities in Chapter 3.
e. Groundwater Conservation Districts
Why didn’t the people affected by Ozarka’s pumping create a groundwater
conservation district—the technique already authorized by the Texas Legislature—to regulate pumping? In fact, before the lawsuit was filed, more than 700
local residents signed a petition asking the Legislature to approve an election to
form such a district. Ozarka opposed the plan. One resident later complained:
“The bill was just flying through the Legislature, then Ozarka got wind of it and
started its public relations machine and—Poof!—all of a sudden everyone says we
can’t do that.” The Biggest Pump Wins, Dallas Observer, Nov. 19, 1998.
f. Aftermath of Sipriano
Today all Ozarka water comes from four springs in Texas, including the
spring at issue in Sipriano. In 2011, the Texas Legislature attempted to clarify
rights in groundwater by amending Texas Water Code § 36.002. The amended
statute “recognizes that a landowner owns the groundwater below the surface of
the landowner’s land,” and specifies that this ownership entitles the landowner “to
drill for and produce the groundwater below the surface of the real property…but
does not entitle a landowner to capture a specific amount of groundwater below
the surface of that landowner’s land.” Would this amendment have changed the
outcome in Sipriano?
_______________
155
156
Property A Contemporary Approach
Summary
• Adverse Possession Basics. In order to obtain title to land by adverse
possession in most jurisdictions, the occupant must prove these elements: (1)
actual possession; (2) exclusive possession; (3) open and notorious possession;
(4) adverse and hostile possession; (5) continuous possession; (6) for the statutory period. Some states add special statutory requirements.
• Adverse and Hostile Possession. The majority rule (and modern trend)
is that the adverse possessor’s state of mind is irrelevant. Thus, this element is
satisfied so long as the owner has not authorized the occupancy. However, some
jurisdictions require that the adverse possessor believe in good faith that he is the
owner of the land.
• Justifications for Adverse Possession. Four justifications have been suggested for adverse possession. The dominant view is that adverse possession is
a specialized statute of limitations. Other suggested justifications are correcting
title defects, encouraging development, and protecting personhood.
• Mechanics of Adverse Possession. Proof of adverse possession may
involve special doctrines: tacking, color of title, disabilities, and enhanced protection for certain owners.
• Airspace Rights. Under traditional theory, a landowner’s title extended
upward to the heavens, but this view collapsed with the invention of the airplane.
Today, most authorities agree that the surface owner’s rights do not extend upward
indefinitely. One view is that the owner holds title only up to a fixed height,
usually 500 feet.
• Subsurface Rights. The traditional view was that a landowner’s title
extended downward to the center of the earth, but modern courts increasingly
question this view. Some courts suggest that the surface owner’s rights extend
downward only so far as to accommodate a reasonable and foreseeable use of the
subsurface.
• Rights to Groundwater. Today
almost all states have rejected the rule
of capture approach to groundwater.
The dominant view is the surface owner may withdraw groundwater only for
reasonable uses on his overlying land.
Review Quiz
Click here to test your knowledge
of the principles discussed in this
chapter.
Chapter 2 Owning Real Property
For More Information
For more information about the subjects covered in this chapter, please consult these
sources:
• Dylan O. Drummond et al., The Rule of Capture in Texas—Still So Misunderstood After
All These Years, 37 Texas Tech. L. Rev. 1 (2004).
• Alexandra B. Klass, Adverse Possession and Conservation: Expanding Traditional Notions
of Use and Possession, 77 U. Colo. L. Rev. 283 (2006).
• John G. Sprankling, Owning the Center of the Earth, 55 UCLA L. Rev. 979 (2008).
• Jeffrey Evans Stake, The Uneasy Case for Adverse Possession, 89 Geo. L.J. 2419 (2001).
157
158
Property A Contemporary Approach