Claim of Right Title of Authorities

Table of Authorities - Claim of Right

"An entry upon land with the intent to claim the land and to hold it."Title and Trust Corp v U.S. 264 US 200, 204."As regards adverse possession, claim of land as one's own to hold it for oneself."Tex.Civ.App., 186 S.W.2d1019, 1020."Claim of right, claim of title and claim of ownership are synonymous."Ewing v. Tanner, 193 S.E. 243, 247. Also one in Wyoming.http://www.judiciary.state.nj.us/criminal/charges/theft002.pdf The IRS didn't buy it!http://www.irs.gov/pub/irs-drop/rr-04-29.pdf Defense of Property under the Common Law – LexisNexishttp://www.lexisnexis.com/lawschool/study/outlines/html/crim/crim10.htm

[3] Claim of Right –

When a person asserts a claim of right to property in the possession of another and seeks toreclaim such property, the possessor is not justified in using force to thwart the dispossession if he knows, believes, or as a reasonable person should believe, that the claimant has a legitimate claim of right to possession of the property inquestion. Since the use of force to protect property is legitimate only if the act/attempted act of dispossession isunlawful, in such cases of a legitimate claim to property, the act of dispossession is lawful.

[A] Common Law –

A person in possession of real or personal property is justified in using non-deadly force againsta would-be dispossessor if he reasonably believes that such force is necessary to prevent imminent and unlawfuldispossession of the property. Under no circumstances may a person use deadly force to prevent dispossession.

Can't kill 'em, but you can sure kick their ass!

And it gets even better:

Claim of Right

Description

This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany.Also available from Amazon:A Treatise on the Modern Law of Real Property and Other Interests in Land .

Sec. 520. Necessity of claim of right

It is frequently stated that, in order that one may acquire arightby prescription, the user must be under claim of right.85 Sometimes this requirement is stated as adof such space by another even for his own purpose is permissive.Gascho v. Lennert, 176, Ind. 677, 97 N. E. 6.Declaration by the Scottish estates in 1689 accompanying their recognition of the new regime of William and Maryfollowing the ‘Glorious Revolution’ of 1688. The declaration asserted the right to depose any monarch who violated thelaw, listing grievances against James VII and II, as well as denouncing the Lords of the Articles and episcopacy inScotland.

83. See Bennett v. Biddle, 150 Pa. St. 420, 24 Atl. 738.84. Thompson v. Easley, 87 Ga. 320, 13 S. E. 511; Clark v. Hen-ckel - (Md.) - , 26 Atl. 1039; Dow-ling v. Hennings,20 Md. 179, 83 Am. Dec. 545; Barnes v. Haynes, 13 Gray (Mass.) 188, 74 Am. Dec. 629; Jensen v. Showalter, 79 Neb.544, 113 N. W. 202; Nicholls v. Wentworth, 100 N. Y. 455, 3 N. E. 482; Craven v. Rose, 3 S. C. 72 See Scott v.Dishough, 83 Ark. 369, 103 S. W. 1153. But see Wilkinson v. Hutzel, 142 Mich. 674, 10G N. W. 207.84a. Watkins v. Peck, 13 N. H. 360; Shaughnessey v. Leary, 162 Mass. 108, 38 N. E. 197.85. Union Mill & Mining Co. v. Ferris, 2 Sawy. 176, Fed Cas. No. 14371; Trump v. Mcdonnell, 120 Ala. 200, 24 So.353; Barbour v. Pierce, 42 Cal. 657; Brandon v. Umpqua Lumber &Timber Co., 26 Cal. App. 96, 146 Pac. 46; Clarkev. Clarke, 133 Cal. 667, 66 Pac. 10; Medlock v. Owen, 105 Ark. 460, 151 S. W. 995; Brossard v. Morgan, 7 Idaho, 215,61 Pac. 1031; Dexter v. Tree, 117 111. 532, 6 N. E. 506; Hill v. Hagaman, 84 Ind. 287; Parish v. Kaspare, 109 Ind. 586,10 N. E. 109; Bowman v. Wickliffe, 15 B. Mon. (Ky.) 84; Rollins v. Black-den, 112 Me. 459, Ann. Cas. 1917A 875, 92Atl. 521; Sargent v. Ballard, 9 Pick. (Mass.) 251; Brace v. Yale, 10 Allen (Mass.) 441; Bigelow Carpet Co. v. Wig-gin,239 Mass. 542, 95 N. E. 938; Wallace v. Fletcher, 30 N. H. 434; Burnham v. Mcquosten, 48 .N. H. 446; Cobb v.Davenport, 32 N. J. L. 369; Felton v. Simpson, 11 Ired. L. (33 N. C.) 84; Louisville & N. R. Co. v. Ihiys, 11 Lea,86. Deerfield v. Connecticut R. R., 144 Mass. 325, 11 N. E. 105: Smith v. Putnam, 62 N. H. 369; Hammond v. Zehner,21 N. Y. 118; Townsend v. Bissell, 4 Hun (N. Y.) 297; Snowden v. Bell, 159 N. C. 497, 75 S. E. 721; Pavey v. Vance, 56Ohio St. 162, 46 N. E. 898; Hall v. Austin, 20 Tex. Civ. App. 59, 48 S. W. 53; Barber v. Bailey, 86 Vt. 219, 44 L. R. A.(N. S) 98, 84 Atl. 608; Dodge v. Stacy, 39 Vt. 558. An Iowa statute provides that user shall not be evidence of a claimof right, and thatexpress notice of the claim must be given. See Gates v. Colax Northern R. Co., 177 Iowa, 690, 159 N. W. 456; Mcbridge v. Bair, 134 Iowa, 611, 112 N. W. 169.87. Smith v. Ponsford, 184 Ind. 53, 110 N. E. 194; Mitchell v. Pratt, 177 Ky. 438, 197 S. W. 961; Blake v. Everett, 1Allen (Mass.) 248; Miller v. Garlock, 8 Barb. (N. Y.) 153; Pavey v. Vance, 56 Ohio St. 162, 46 N. E. 898; Barber v.Bailey, 86 Vt. 219, 44 L. R. A. (N. S.) 98, 84 Atl. 608; Poronto v. Sinnott, 89 Vt. 479, 95 Atl. 647; Muncy v. Updike,119 Va. 636, 89 S. E. 884; Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. 632; Wend-ler v. Woodward, 93 Wash. 684,161 Pac. 1043.88. As in Polly v. Mccall, 37 Ala. 20; Stevens v. Dennett, 51 N. H. 324; Worrall v. Rhoads, 2 Whart. (Pa.) 427; Webster v. Lowell, 142 Mass. 324, 8 N. E. 54.In the English Prescription Act, the two expressions "as of right" and "claiming right" are used, and they are regardedas similar in meaning. Tickle v. Brown, 4 Ad. & El. 369, and "as of right," it has been decided, means as a personrightfully entitled would have enjoyed the user. Bright v. Walker, 1 Cromp. Mees. & Ros. 211, while the user is not "asof right" if permissive. International Tea Stores v. Hobbs (1903) 2 ch. 165; Gardner v. Hodgson's Kingston Brewery(1903) App. Cas. 229.89. Ante, Sec. 504 note 72.90. The decision in Wilder v. Wheeldon, 56 Vt. 344, that the claim of a right of way by prescription was defeated by . .. . . . . . ???This requirement of claim of right is additional to that of the adverseness of the user, and sometimes as explanatory of what the requirement of adverseness means. In whichever way it be asserted, the recognition of such a requirement,like that of claim of title as a prerequisite to the running of the statute of limitations in favor of one wrongfully in possessionof land, involves considerable difficulty. It appears to be conceded that this requirement of claim of right does not involve anynecessityof a verbal assertion, during the period of user, of a right to exercise such user, and thatit is sufficient if an assertion of such a claim can be inferred from the circumstances of the user itself. 86 And so it has

been stated that, in the absence of evidence to the contrary, the user of another's land without interruption for the prescriptive periodwillbe presumed to have been under claim of right.(Tenn.) 382, 47 Am. Rep. 291; Dodge v. Stacy, 39 Vt. 558; Wilder v. Wheeldon, 56 Vt. 344; Kent v. Dobyns, 112 Va.586, 72 S. E. 139; Bisbee v. Lacky, 97 Wash. 447, 166 Pac. 638. In Boyd v. Morris, 32 Ky. L. Rep. 642, 106 S. W. 867,it is said to be immaterial whether the adverse use of a passway over the land of another is claimed as a matter of rightor merely as a matter of convenience.But the burden of proof , in the sense of risk of non persuaright thus appears to resolve itself into a requirement merelyof a user which will justify an inference or presumption of such a claim, and the only user which can possibly satisfythis requirement is obviously a user "as of right," that is, a user unaccompanied by any recognition of a right in thelandowner to stop such user. It would be more satisfactory if the courts, instead of asserting that the user must be under claim of right, would assert merely that it must be "as of right"88 or would be satisfied with the statement that it must be adverse, which apparently means the same. As it is not necessary that the person exercising the wrongful useverbally assert a claim of right to make such use, so, it is conceived, it is not necessary that he believe himself to havesuch a right, that is, a mental claim of right is no more necessary than a verbal claim of right. It is recognized that goodfaith is not necessary to entitle one to the benefit of the statute of limitations,89 and there is no reason for regarding itas necessary for the application of the doctrine of prescription.90 sion of the jury, is necessarily upon the personasserting the prescriptive right. Shea v. Gavitt, 89 Conn. 359, L. R. A. 1916A 689, 94 Atl. 360; Rollins v. Blackden, 112Me. 459, Ann. Cas. 1917A 875, 92 Atl. 521; Smith v. Sedalia, 152 Mo. 283, 48 L. R. A. 711, 53 S. W. 907; St. Martin v.Skamania Boom Co., 79 Wash. 393, 140 Pac. 355; District of Columbia v. Robinson, 180 U. S. 92, 45 L. Ed. 440(dictum).

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